Part II - Contract Clauses

**[Section I]{.underline}**

TABLE OF CONTENTS

[1. FAR 52.202-1 DEFINITIONS (DEC 2001) as modified by DEAR 952.202-1
6](#far-52.202-1-definitions-dec-2001-as-modified-by-dear-952.202-1)

[2. FAR 52.203‑3 GRATUITIES (APR 1984)
9](#far-52.2033-gratuities-apr-1984)

[3. FAR 52.203-5 COVENANT AGAINST CONTINGENT FEES (APR 1984)
9](#far-52.203-5-covenant-against-contingent-fees-apr-1984)

[4. FAR 52.203‑6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
GOVERNMENT (JUL 1995)
10](#far-52.2036-restrictions-on-subcontractor-sales-to-the-government-jul-1995)

[5. FAR 52.203‑7 ANTI‑KICKBACK PROCEDURES (JUL 1995)
10](#far-52.2037-antikickback-procedures-jul-1995)

[6. FAR 52.203-8 CANCELLATION, RESCISSION, AND RECOVERY OF FUNDS FOR
ILLEGAL OR IMPROPER ACTIVITY (JAN 1997)
12](#far-52.203-8-cancellation-rescission-and-recovery-of-funds-for-illegal-or-improper-activity-jan-1997)

[7. FAR 52.203‑10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER
ACTIVITY (JAN 1997)
13](#far-52.20310-price-or-fee-adjustment-for-illegal-or-improper-activity-jan-1997)

[8. FAR 52.203‑12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL
TRANSACTIONS (JUN 2003)
15](#far-52.20312-limitation-on-payments-to-influence-certain-federal-transactions-jun-2003)

[9. FAR 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON RECYCLED PAPER
(AUG 2000)
22](#far-52.204-4-printed-or-copied-double-sided-on-recycled-paper-aug-2000)

[10. FAR 52.208-8 REQUIRED SOURCES FOR HELIUM AND HELIUM USAGE DATA (APR
2002)
23](#far-52.208-8-required-sources-for-helium-and-helium-usage-data-apr-2002)

[11. FAR 52.209‑6 PROTECTING THE GOVERNMENT\'S INTEREST WHEN
SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR
DEBARMENT (JUL 1995)
24](#far-52.2096-protecting-the-governments-interest-when-subcontracting-with-contractors-debarred-suspended-or-proposed-for-debarment-jul-1995)

[12. FAR 52.215‑8 ORDER OF PRECEDENCE - UNIFORM CONTRACT FORMAT (OCT
1997)
25](#far-52.2158-order-of-precedence---uniform-contract-format-oct-1997)

[13. FAR 52.215-15 PENSION ADJUSTMENTS AND ASSET REVERSIONS (DEC 1998)
25](#far-52.215-15-pension-adjustments-and-asset-reversions-dec-1998)

[14. FAR 52.219‑8 UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2000)
26](#far-52.2198-utilization-of-small-business-concerns-oct-2000)

[15. FAR 52.219‑9 SMALL BUSINESS SUBCONTRACTING PLAN (JAN 2002)
28](#far-52.2199-small-business-subcontracting-plan-jan-2002)

[16. FAR 52.219‑16 LIQUIDATED DAMAGES ‑ SUBCONTRACTING PLAN (JAN 1999)
36](#far-52.21916-liquidated-damages-subcontracting-plan-jan-1999)

[17. FAR 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (FEB 1997)
37](#far-52.222-1-notice-to-the-government-of-labor-disputes-feb-1997)

[18. FAR 52.222‑3 CONVICT LABOR (JUN 2003)
37](#far-52.2223-convict-labor-jun-2003)

[19. FAR 52.222‑4 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ‑
OVERTIME COMPENSATION (SEPT 2000)
38](#far-52.2224-contract-work-hours-and-safety-standards-act-overtime-compensation-sept-2000)

[20. FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES (FEB 1999)
39](#far-52.222-21-prohibition-of-segregated-facilities-feb-1999)

[21. FAR 52.222‑26 EQUAL OPPORTUNITY (APR 2002)
39](#far-52.22226-equal-opportunity-apr-2002)

[22. FAR 52.222-29 NOTIFICATION OF VISA DENIAL (JUN 2003)
42](#far-52.222-29-notification-of-visa-denial-jun-2003)

[23. FAR 52.222‑35 EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS,
VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)
42](#far-52.22235-equal-opportunity-for-special-disabled-veterans-veterans-of-the-vietnam-era-and-other-eligible-veterans-dec-2001)

[24. FAR 52.222‑36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN
1998)
47](#far-52.22236-affirmative-action-for-workers-with-disabilities-jun-1998)

[25. FAR 52.222‑37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS,
VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)
49](#far-52.22237-employment-reports-on-special-disabled-veterans-veterans-of-the-vietnam-era-and-other-eligible-veterans-dec-2001)

[26. FAR 52.223-5 POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION
(AUG 2003)
50](#far-52.223-5-pollution-prevention-and-right-to-know-information-aug-2003)

[27. FAR 52.223-10 WASTE REDUCTION PROGRAM (AUG 2000)
51](#far-52.223-10-waste-reduction-program-aug-2000)

[28. FAR 52.223-12 REFRIGERATION EQUIPMENT AND AIR CONDITIONERS (MAY
1995)
52](#far-52.223-12-refrigeration-equipment-and-air-conditioners-may-1995)

[29. FAR 52.224‑1 PRIVACY ACT NOTIFICATION (APR 1984)
52](#far-52.2241-privacy-act-notification-apr-1984)

[30. FAR 52.224‑2 PRIVACY ACT (APR 1984)
52](#far-52.2242-privacy-act-apr-1984)

[31. FAR 52.225-1 BUY AMERICAN ACT --SUPPLIES (JUN 2003) as modified by
AL 2002-06
53](#far-52.225-1-buy-american-act-supplies-jun-2003-as-modified-by-al-2002-06)

[32. FAR 52.225-9 BUY AMERICAN ACT -- CONSTRUCTION MATERIALS (JUN 2003)
54](#far-52.225-9-buy-american-act-construction-materials-jun-2003)

[33. FAR 52.225‑13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (JUN 2003)
58](#far-52.22513-restrictions-on-certain-foreign-purchases-jun-2003)

[34. FAR 52.229-10 STATE OF NEW MEXICO GROSS RECEIPTS AND COMPENSATING
TAX (APR 2003) as modified by DEAR 970.2904-1(a)
59](#far-52.229-10-state-of-new-mexico-gross-receipts-and-compensating-tax-apr-2003-as-modified-by-dear-970.2904-1a)

[35. FAR 52.230‑2 COST ACCOUNTING STANDARDS (APR 1998)
60](#far-52.2302-cost-accounting-standards-apr-1998)

[36. FAR 52.230‑6 ADMINISTRATION OF COST ACCOUNTING STANDARDS (NOV 1999)
62](#far-52.2306-administration-of-cost-accounting-standards-nov-1999)

[37. FAR 52.232‑17 INTEREST (JUN 1996)
65](#far-52.23217-interest-jun-1996)

[38. FAR 52.232‑23 ASSIGNMENT OF CLAIMS (JAN 1986)
66](#far-52.23223-assignment-of-claims-jan-1986)

[39. FAR 52.233‑1 DISPUTES (JUL 2002) (ALTERNATE I) (DEC 1991)
66](#far-52.2331-disputes-jul-2002-alternate-i-dec-1991)

[40. FAR 52.237‑3 CONTINUITY OF SERVICES (JAN 1991)
68](#far-52.2373-continuity-of-services-jan-1991)

[41. FAR 52.242‑1 NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)
69](#far-52.2421-notice-of-intent-to-disallow-costs-apr-1984)

[42. FAR 52.242‑13 BANKRUPTCY (JUL 1995)
69](#far-52.24213-bankruptcy-jul-1995)

[43. FAR 52.242‑15 STOP‑WORK ORDER (AUG 1989)(ALTERNATE I) (APR 1984)
70](#far-52.24215-stopwork-order-aug-1989alternate-i-apr-1984)

[44. FAR 52.244‑5 COMPETITION IN SUBCONTRACTING (DEC 1996)
71](#far-52.2445-competition-in-subcontracting-dec-1996)

[45. FAR 52.244‑6 SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL
COMPONENTS (APR 2003)
71](#far-52.2446-subcontracts-for-commercial-items-and-commercial-components-apr-2003)

[46. FAR 52.247‑1 COMMERCIAL BILL OF LADING NOTATIONS (APR 1984)
72](#far-52.2471-commercial-bill-of-lading-notations-apr-1984)

[47. FAR 52.247‑63 PREFERENCE FOR U.S. FLAG AIR CARRIERS (JUN 2003)
73](#far-52.24763-preference-for-u.s.-flag-air-carriers-jun-2003)

[48. FAR 52.249-6 TERMINATION (COST REIMBURSEMENT) (SEP 1996) as
modified by DEAR 970.4905-1(b)
74](#far-52.249-6-termination-cost-reimbursement-sep-1996-as-modified-by-dear-970.4905-1b)

[49. FAR 52.250-1 INDEMNIFICATION UNDER PUBLIC LAW 85-804 (APR 1984)
(ALTERNATE I) (APR 1984) (DEVIATION)
79](#far-52.250-1-indemnification-under-public-law-85-804-apr-1984-alternate-i-apr-1984-deviation)

[50. FAR 52.251‑2 INTERAGENCY FLEET MANAGEMENT SYSTEM (IFMS) VEHICLES
AND RELATED SERVICES (JAN 1991)
83](#far-52.2512-interagency-fleet-management-system-ifms-vehicles-and-related-services-jan-1991)

[51. FAR 52.252‑6 AUTHORIZED DEVIATIONS IN CLAUSES (APR 1984)
83](#far-52.2526-authorized-deviations-in-clauses-apr-1984)

[52. FAR 52.253‑1 COMPUTER‑GENERATED FORMS (JAN 1991)
83](#far-52.2531-computergenerated-forms-jan-1991)

[53. DEAR 952.203-70 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES
(DEC 2000)
84](#dear-952.203-70-whistleblower-protection-for-contractor-employees-dec-2000)

[54. DEAR 952.204‑2 SECURITY (MAY 2002) (DEVIATION)
84](#dear-952.2042-security-may-2002-deviation)

[55. DEAR 952.204‑70 CLASSIFICATION/DECLASSIFICATION (SEP 1997)
87](#dear-952.20470-classificationdeclassification-sep-1997)

[56. DEAR 952.204-71 SENSITIVE FOREIGN NATIONS CONTROLS (APR 1994)
88](#dear-952.204-71-sensitive-foreign-nations-controls-apr-1994)

[57. DEAR 952.204-75 PUBLIC AFFAIRS (DEC 2000)
88](#dear-952.204-75-public-affairs-dec-2000)

[58. DEAR 952.208‑7 TAGGING OF LEASED VEHICLES (APR 1984)
89](#dear-952.2087-tagging-of-leased-vehicles-apr-1984)

[59. DEAR 952.209‑72 ORGANIZATIONAL CONFLICTS OF INTEREST (JUN 1997) -
ALTERNATE I
90](#dear-952.20972-organizational-conflicts-of-interest-jun-1997---alternate-i)

[60. DEAR 952.211-71 PRIORITIES AND ALLOCATIONS (ATOMIC ENERGY)
(JUN 1996)
93](#dear-952.211-71-priorities-and-allocations-atomic-energy-jun-1996)

[61. DEAR 952.211-71 PRIORITIES AND ALLOCATIONS (DOMESTIC ENERGY
SUPPLIES) (JUN 1996) -- ALTERNATE I
93](#dear-952.211-71-priorities-and-allocations-domestic-energy-supplies-jun-1996-alternate-i)

[62. DEAR 952.215-70 KEY PERSONNEL (DEC 2000)
93](#dear-952.215-70-key-personnel-dec-2000)

[63. DEAR 952.217-70 ACQUISITION OF REAL PROPERTY (APR 1984) (See H-30)
94](#dear-952.217-70-acquisition-of-real-property-apr-1984-see-h-30)

[64. DEAR 952.223-75 PRESERVATION OF INDIVIDUAL OCCUPATIONAL RADIATION
EXPOSURE RECORDS (APR 1984)
95](#dear-952.223-75-preservation-of-individual-occupational-radiation-exposure-records-apr-1984)

[65. DEAR 952.224‑70 PAPERWORK REDUCTION ACT (APR 1994)
95](#dear-952.22470-paperwork-reduction-act-apr-1994)

[66. DEAR 952.226-74 DISPLACED EMPLOYEE HIRING PREFERENCE (JUN 1997)
95](#dear-952.226-74-displaced-employee-hiring-preference-jun-1997)

[67. DEAR 952.250‑70 NUCLEAR HAZARDS INDEMNITY AGREEMENT (JUN 1996)
96](#dear-952.25070-nuclear-hazards-indemnity-agreement-jun-1996)

[68. DEAR 952.251-70 CONTRACTOR EMPLOYEE TRAVEL DISCOUNTS (DEC 2000)
101](#dear-952.251-70-contractor-employee-travel-discounts-dec-2000)

[69. DEAR 970.5203-1 MANAGEMENT CONTROLS (DEC 2000)
102](#dear-970.5203-1-management-controls-dec-2000)

[70. DEAR 970.5203-3 CONTRACTOR\'S ORGANIZATION (DEC 2000) (DEVIATION)
103](#dear-970.5203-3-contractors-organization-dec-2000-deviation)

[71. DEAR 970.5204-1 COUNTERINTELLIGENCE (DEC 2000)
104](#dear-970.5204-1-counterintelligence-dec-2000)

[72. DEAR 970.5204-2 LAWS, REGULATIONS, AND DOE DIRECTIVES (DEC 2000)
(DEVIATION)
104](#dear-970.5204-2-laws-regulations-and-doe-directives-dec-2000-deviation)

[73. DEAR 970.5204-3 ACCESS TO AND OWNERSHIP OF RECORDS (DEC 2000)
106](#dear-970.5204-3-access-to-and-ownership-of-records-dec-2000)

[74. DEAR 970.5208-1 PRINTING (DEC 2000)
108](#dear-970.5208-1-printing-dec-2000)

[75. DEAR 970.5215-3 CONDITIONAL PAYMENT OF FEE, PROFIT, OR INCENTIVES
(DEC 2000) - ALTERNATE I (DEC 2000) (DEVIATION)
109](#dear-970.5215-3-conditional-payment-of-fee-profit-or-incentives-dec-2000---alternate-i-dec-2000-deviation)

[76. DEAR 970.5222-1 COLLECTIVE BARGAINING AGREEMENTS - MANAGEMENT AND
OPERATING CONTRACTS (DEC 2000)
111](#dear-970.5222-1-collective-bargaining-agreements---management-and-operating-contracts-dec-2000)

[77. DEAR 970.5222-2 OVERTIME MANAGEMENT (DEC 2000)
111](#dear-970.5222-2-overtime-management-dec-2000)

[78. DEAR 970.5223‑1 INTEGRATION OF ENVIRONMENT, SAFETY, AND HEALTH INTO
WORK PLANNING AND EXECUTION (DEC 2000)
112](#dear-970.52231-integration-of-environment-safety-and-health-into-work-planning-and-execution-dec-2000)

[79. DEAR 970.5223-2 AFFIRMATIVE PROCUREMENT PROGRAM (MARCH 2003)
(DEVIATION)
115](#dear-970.5223-2-affirmative-procurement-program-march-2003-deviation)

[80. DEAR 970.5223-4 WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE
SITES (DEC 2000)
116](#dear-970.5223-4-workplace-substance-abuse-programs-at-doe-sites-dec-2000)

[81. DEAR 970.5226-1 DIVERSITY PLAN (DEC 2000)
117](#dear-970.5226-1-diversity-plan-dec-2000)

[82. DEAR 970.5226-2 WORKFORCE RESTRUCTURING UNDER SECTION 3161 OF THE
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1993 (DEC 2000)
117](#dear-970.5226-2-workforce-restructuring-under-section-3161-of-the-national-defense-authorization-act-for-fiscal-year-1993-dec-2000)

[83. DEAR 970.5226-3 COMMUNITY COMMITMENT (DEC 2000)
117](#dear-970.5226-3-community-commitment-dec-2000)

[84. DEAR 970.5227-2 RIGHTS IN DATA-TECHNOLOGY TRANSFER (DEC 2000)
(ALTERNATE I) (DEC 2000)
118](#dear-970.5227-2-rights-in-data-technology-transfer-dec-2000-alternate-i-dec-2000)

[85. DEAR 970.5227-3 TECHNOLOGY TRANSFER MISSION (AUG 2002) (DEVIATION)
132](#dear-970.5227-3-technology-transfer-mission-aug-2002-deviation)

[86. DEAR 970.5227-4 AUTHORIZATION AND CONSENT (AUG 2002)
145](#dear-970.5227-4-authorization-and-consent-aug-2002)

[87. DEAR 970.5227-5 NOTICE AND ASSISTANCE REGARDING PATENT AND
COPYRIGHT INFRINGEMENT (AUG 2002)
146](#dear-970.5227-5-notice-and-assistance-regarding-patent-and-copyright-infringement-aug-2002)

[88. DEAR 970.5227-6 PATENT INDEMNITY -- SUBCONTRACTS (DEC 2000)
146](#dear-970.5227-6-patent-indemnity-subcontracts-dec-2000)

[89. DEAR 970.5227-8 REFUND OF ROYALTIES (AUG 2002)
147](#dear-970.5227-8-refund-of-royalties-aug-2002)

[90. DEAR 970.5227-12 PATENT RIGHTS MANAGEMENT AND OPERATING CONTRACTS,
FOR-PROFIT CONTRACTOR, ADVANCE CLASS WAIVER (AUG 2002) ALTERNATE 1
(DEVIATION)
148](#dear-970.5227-12-patent-rights-management-and-operating-contracts-for-profit-contractor-advance-class-waiver-aug-2002-alternate-1-deviation)

[91. DEAR 970.5228-1 INSURANCE \-- LITIGATION AND CLAIMS (MAR 2002)
(DEVIATION)
165](#dear-970.5228-1-insurance----litigation-and-claims-mar-2002-deviation)

[92. DEAR 970.5229-1 STATE AND LOCAL TAXES (DEC 2000)
168](#dear-970.5229-1-state-and-local-taxes-dec-2000)

[93. DEAR 970.5232-1 REDUCTION OR SUSPENSION OF ADVANCE, PARTIAL, OR
PROGRESS PAYMENTS (DEC 2000)
169](#dear-970.5232-1-reduction-or-suspension-of-advance-partial-or-progress-payments-dec-2000)

[94. DEAR 970.5232-2 PAYMENTS AND ADVANCES (DEC 2000) - ALTERNATE III
(DEC 2000)
169](#dear-970.5232-2-payments-and-advances-dec-2000---alternate-iii-dec-2000)

[95. DEAR 970.5232-3 ACCOUNTS, RECORDS, AND INSPECTION (DEC 2000) -
ALTERNATE II (DEC 2000)
173](#dear-970.5232-3-accounts-records-and-inspection-dec-2000---alternate-ii-dec-2000)

[96. DEAR 970.5232-4 OBLIGATION OF FUNDS (DEC 2000)
175](#dear-970.5232-4-obligation-of-funds-dec-2000)

[97. DEAR 970.5232-5 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS
(DEC 2000)
177](#dear-970.5232-5-liability-with-respect-to-cost-accounting-standards-dec-2000)

[98. DEAR 970.5232-6 WORK FOR OTHERS FUNDING AUTHORIZATION (DEC 2000)
177](#dear-970.5232-6-work-for-others-funding-authorization-dec-2000)

[99. DEAR 970.5232-7 FINANCIAL MANAGEMENT SYSTEM (DEC 2000)
178](#dear-970.5232-7-financial-management-system-dec-2000)

[100. DEAR 970.5232-8 INTEGRATED ACCOUNTING SYSTEM (DEC 2000)
178](#dear-970.5232-8-integrated-accounting-system-dec-2000)

[101. DEAR 970.5235-1 FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER
SPONSORING AGREEMENT (DEC 2000) (See Clause H-17)
178](#dear-970.5235-1-federally-funded-research-and-development-center-sponsoring-agreement-dec-2000-see-clause-h-17)

[102. DEAR 970.5236-1 GOVERNMENT FACILITY SUBCONTRACT APPROVAL (DEC
2000)
179](#dear-970.5236-1-government-facility-subcontract-approval-dec-2000)

[103. DEAR 970.5242-1 PENALTIES FOR UNALLOWABLE COSTS (DEC 2000)
179](#dear-970.5242-1-penalties-for-unallowable-costs-dec-2000)

[104. DEAR 970.5243-1 CHANGES (DEC 2000)
181](#dear-970.5243-1-changes-dec-2000)

[105. DEAR 970.5244‑1 CONTRACTOR PURCHASING SYSTEM (DEC 2000)
(DEVIATION)
181](#dear-970.52441-contractor-purchasing-system-dec-2000-deviation)

[106. DEAR 970.5245-1 PROPERTY (DEC 2000) (ALTERATION)
187](#dear-970.5245-1-property-dec-2000-alteration)

Note 1: The references cited herein are from the Federal Acquisition
Regulation (FAR) (48 CFR Chapter 1), the U.S. Department of Energy
Acquisition Regulation (DEAR) (48 CFR Chapter 9).

**[Part II]{.underline}**

**[Section I]{.underline}**

**[CONTRACT CLAUSES]{.underline}**

# FAR 52.202-1 DEFINITIONS (DEC 2001) as modified by DEAR 952.202-1

> \(a\) *Head of Agency* means: (*i)* The Secretary; (*ii)* Deputy
> Secretary; (*iii)* Under Secretaries of the Department of Energy and
> (*iiii*) the Chairman, Federal Energy Regulatory Commission.
>
> \(b\) \"Commercial component\" means any component that is a
> commercial item.

(c) \"Commercial item\" means-

    1.  Any item, other than real property, that is of a type
        customarily used by the general public or by non-governmental
        entities for purposes other than governmental purposes, and
        that-

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

> \(ii\) Has been offered for sale, lease, or license to the general
> public;
>
> \(2\) Any item that evolved from an item described in paragraph (c)(1)
> of this clause through advances in technology or performance and that
> is not yet available in the commercial marketplace, but will be
> available in the commercial marketplace in time to satisfy the
> delivery requirements under a Government solicitation;
>
> \(3\) Any item that would satisfy a criterion expressed in paragraphs
> (c)(1) or (c)(2) of this clause, but for-

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

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

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

> \(5\) Installation services, maintenance services, repair services,
> training services, and other services if-

(i) Such services are procured for support of an item referred to in
    paragraph (c)(1), (2), (3), or (4) of this definition, regardless of
    whether such services are provided by the same source or at the same
    time as the item; and

(ii) The source of such services provides similar services
     contemporaneously to the general public under terms and conditions
     similar to those offered to the Federal Government

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

(i) \"Catalog price\" means a price included in a catalog, price list,
    schedule, or other form that is regularly maintained by the
    manufacturer or vendor, is either published or otherwise available
    for inspection by customers, and states prices at which sales are
    currently, or were last, made to a significant number of buyers
    constituting the general public; and

(ii) \"Market prices\" means current prices that are established in the
     course of ordinary trade between buyers and sellers free to bargain
     and that can be substantiated through competition or from sources
     independent of the offerors.

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

> \(8\) A nondevelopmental item, if the procuring agency determines the
> item was developed exclusively at private expense and sold in
> substantial quantities, on a competitive basis, to multiple State and
> local Governments.
>
> \(d\) \"Component\" means any item supplied to the Government as part
> of an end item or of another component, except that for use in
> 52.225-9, and 52.225-11 see the definitions in 52.225-9(a) and
> 52.225-11(a).
>
> \(e\) \"Contracting Officer\" means a person with the authority to
> enter into, administer, and/or terminate contracts and make related
> determinations and findings. The term includes certain authorized
> representatives of the Contracting Officer acting within the limits of
> their authority as delegated by the Contracting Officer.

\(f\) \"Nondevelopmental item\" means-

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

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

> \(3\) Any item of supply being produced that does not meet the
> requirements of paragraph (f)(1) or (f)(2) solely because the item is
> not yet in use.
>
> \(g\) Except as otherwise provided in this contract, the term
> \"subcontracts\" includes, but is not limited to, purchase orders and
> changes and modifications to purchase orders under this contract.
>
> \(h\) The term *DOE* means the Department of Energy, *FERC* means the
> Federal Energy Regulatory Commission, and *NNSA* means the National
> Nuclear Security Administration.

(i) The term *Senior Procurement Executive* means, for DOE:

> Department of Energy - Director, Office of Procurement and Assistance
> Management, DOE;
>
> National Nuclear Security Administration - Administrator for Nuclear
> Security, NNSA; and
>
> Federal Energy Regulatory Commission - Chairman, FERC.

# FAR 52.203‑3 GRATUITIES (APR 1984)

> \(a\) The right of the Contractor to proceed may be terminated by
> written notice if, after notice and hearing, the agency head or a
> designee determines that the Contractor, its agent, or another
> representative‑‑
>
> \(1\) Offered or gave a gratuity (e.g., an entertainment or gift) to
> an officer, official, or employee of the Government; and
>
> \(2\) Intended, by the gratuity, to obtain a contract or favorable
> treatment under a contract.
>
> \(b\) The facts supporting this determination may be reviewed by any
> court having lawful jurisdiction.
>
> \(c\) If this Contract is terminated under paragraph (a) above, the
> Govern­ment is entitled‑‑
>
> \(1\) To pursue the same remedies as in a breach of the contract; and
>
> \(2\) In addition to any other damages provided by law, to exemplary
> damages of not less than three nor more than 10 times the cost
> incurred by the Contractor in giving gratuities to the person
> concerned, as determined by the agency head or a designee. (This
> subparagraph (c)(2) is applicable only if this Contract uses money
> appropriated to the Department of Defense.)
>
> \(d\) The rights and remedies of the Government provided in this
> clause shall not be exclusive and are in addition to any other rights
> and remedies provided by law or under this contract.

# FAR 52.203-5 COVENANT AGAINST CONTINGENT FEES (APR 1984)

> \(a\) The Contractor warrants that no person or agency has been
> employed or retained to solicit or obtain this Contract upon an
> agreement or understanding for a contingent fee, except a bona fide
> employee or agency. For breach or violation of this warranty, the
> Government shall have the right to annul this Contract without
> liability or, in its discretion, to deduct from the Contract price or
> consideration, or otherwise recover, the full amount of the contingent
> fee.
>
> \(b\) \"*Bona fide agency*,\" as used in this clause, means an
> established commercial or selling agency, maintained by a contractor
> for the purpose of securing business, that neither exerts nor proposes
> to exert improper influence to solicit or obtain Government contracts
> nor holds itself out as being able to obtain any Government contract
> or contracts through improper influence.
>
> \"*Bona fide employee*,\" as used in this clause, means a person,
> employed by a contractor and subject to the contractor\'s supervision
> and control as to time, place, and manner of performance, who neither
> exerts nor proposes to exert improper influence to solicit or obtain
> Government contracts nor holds out as being able to obtain any
> Government contract or contracts through improper influence.
>
> \"*Contingent fee*,\" as used in this clause, means any commission,
> percentage, brokerage, or other fee that is contingent upon the
> success that a person or concern has in securing a Government
> contract.
>
> \"*Improper influence*,\" as used in this clause, means any influence
> that induces or tends to induce a Government employee or officer to
> give consideration or to act regarding a Government contract on any
> basis other than the merits of the matter.

# FAR 52.203‑6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1995)

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

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

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

# FAR 52.203‑7 ANTI‑KICKBACK PROCEDURES (JUL 1995)

\(a\) *Definitions*.

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

*\"Person,\"* as used in this clause, means a corporation, partnership,
business association of any kind, trust, joint‑stock company, or
individual.

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

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

\"*Prime Contractor employee*,\" as used in this clause, means any
officer, partner, employee, or agent of a Prime Contractor.

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

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

\"*Subcontractor employee*,\" as used in this clause, means any officer,
partner, employee, or agent of a subcontractor.

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

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

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

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

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

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

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

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

\(5\) The Contractor agrees to incorporate the substance of this clause,
including this subparagraph (c)(5) but excepting subparagraph (c)(1), in
all subcontracts under this Contract which exceed \$100,000.

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

> \(a\) If the Government receives information that a contractor or a
> person has engaged in conduct constituting a violation of subsection
> (a), (b), (c), or (d) of section 27 of the Office of Federal
> Procurement Policy Act (41 U.S.C. 423) (the Act), as amended by
> section 4304 of the National Defense Authorization Act for Fiscal Year
> 1996 (Pub. L. 104-106), the Government may \--
>
> \(1\) Cancel the solicitation, if the contract has not yet been
> awarded or issued; or
>
> \(2\) Rescind the contract with respect to which \--
>
> \(i\) The Contractor or someone acting for the Contractor has been
> convicted for an offense where the conduct constitutes a violation of
> subsection 27(a) or (b) of the Act for the purpose of either \--
>
> \(A\) Exchanging the information covered by such subsections for
> anything of value; or
>
> \(B\) Obtaining or giving anyone a competitive advantage in the award
> of a Federal agency procurement contract; or
>
> \(ii\) The head of the contracting activity has determined, based upon
> a preponderance of the evidence, that the Contractor or someone acting
> for the Contractor has engaged in conduct constituting an offense
> punishable under subsection 27(e)(1) of the Act.
>
> \(b\) If the Government rescinds the Contract under paragraph (a) of
> this clause, the Government is entitled to recover, in addition to any
> penalty prescribed by law, the amount expended under the contract.
>
> \(c\) The rights and remedies of the Government specified herein are
> not exclusive, and are in addition to any other rights and remedies
> provided by law, regulation, or under this contract.

# FAR 52.203‑10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER ACTIVITY (JAN 1997)

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

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

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

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

\(3\) For cost‑plus‑award‑fee contracts ‑‑

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

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

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

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

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

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

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

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

# FAR 52.203‑12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JUN 2003)

\(a\) [Definitions]{.underline}.

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

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

(1) The awarding of any Federal contract.

(2) The making of any Federal grant.

(3) The making of any Federal loan.

(4) The entering into of any cooperative agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

\"State,\" as used in this clause, means a State of the United States,
the District of Columbia, or an outlying area of the United States, an
agency or instrumentality of a State, and multi‑State, regional, or
interstate entity having governmental duties and powers.

\(b\) [Prohibitions]{.underline}.

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

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

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

\(i\) Agency and legislative liaison by own employees.

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

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

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

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

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

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

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

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

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

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

\(ii\) Professional and technical services.

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

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

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

\(B\) For purposes of subdivision (b)(3)(ii)(A) of this clause,
\"professional and technical services\" shall be limited to advice and
analysis directly applying any professional or technical discipline. For
example, drafting of a legal document accompanying a bid or proposal by
a lawyer is allowable.

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

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

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

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

\(c\) Disclosure.

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

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

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

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

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

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

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

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

\(e\) Penalties.

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

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

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

# FAR 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON RECYCLED PAPER (AUG 2000) 

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

> \"Postconsumer material\" means a material or finished product that
> has served its intended use and has been discarded for disposal or
> recovery, having completed its life as a consumer item. Postconsumer
> material is a part of the broader category of \"recovered material.\"
> For paper and paper products, postconsumer material means
> \"postconsumer fiber\" defined by the U.S. Environmental Protection
> Agency (EPA) as-
>
> \(1\) Paper, paperboard, and fibrous materials from retail stores,
> office buildings, homes, and so forth, after they have passed through
> their end-usage as a consumer item, including: used corrugated boxes;
> old newspapers; old magazines; mixed waste paper; tabulating cards;
> and used cordage; or
>
> \(2\) All paper, paperboard, and fibrous materials that enter and are
> collected from municipal solid waste; but not
>
> \(3\) Fiber derived from printers\' over-runs, converters\' scrap, and
> over-issue publications.
>
> \"Printed or copied double-sided\" means printing or reproducing a
> document so that information is on both sides of a sheet of paper.
>
> \"Recovered material,\" for paper and paper products, is defined by
> EPA in its Comprehensive Procurement Guideline as \"recovered fiber\"
> and means the following materials:
>
> \(1\) Postconsumer fiber; and
>
> \(2\) Manufacturing wastes such as-
>
> \(i\) Dry paper and paperboard waste generated after completion of the
> papermaking process (that is, those manufacturing operations up to and
> including the cutting and trimming of the paper machine reel into
> smaller rolls or rough sheets) including: envelope cuttings, bindery
> trimmings, and other paper and paperboard waste resulting from
> printing, cutting forming, and other converting operations; bag, box,
> and carton manufacturing wastes; and butt rolls, mill wrappers, and
> rejected unused stock; and
>
> \(ii\) Repulped finished paper and paperboard from obsolete
> inventories of paper and paperboard manufacturers, merchants,
> wholesalers, dealers, printers, converters, or others.
>
> \(b\) In accordance with Section 101 of Executive Order 13101 of
> September 14, 1998, Greening the Government through Waste Prevention,
> Recycling, and Federal Acquisition, the Contractor is encouraged to
> submit paper documents, such as offers, letters, or reports, that are
> printed or copied double-sided on recycled paper that meet minimum
> content standards specified in Section 505 of Executive Order 13101,
> when not using electronic commerce methods to submit information or
> data to the Government.
>
> \(c\) If the Contractor cannot purchase high-speed copier paper,
> offset paper, forms bond, computer printout paper, carbonless paper,
> file folders, white wove envelopes, writing and office paper, book
> paper, cotton fiber paper, and cover stock meeting the 30 percent
> postconsumer material standard for use in submitting paper documents
> to the Government, it should use paper containing no less than 20
> percent postconsumer material. This lesser standard should be used
> only when paper meeting the 30 percent postconsumer material standard
> is not obtainable at a reasonable price or does not meet reasonable
> performance standards.

# FAR 52.208-8 REQUIRED SOURCES FOR HELIUM AND HELIUM USAGE DATA (APR 2002)

a.  Definitions.

> \"Bureau of Land Management,\" as used in this clause, means the
> Department of the Interior, Bureau of Land Management, Amarillo Field
> Office, Helium Operations, located at 801 South Fillmore Street, Suite
> 500, Amarillo, TX 79101-3545.
>
> \"Federal helium supplier\" means a private helium vendor that has an
> in-kind crude helium sales contract with the Bureau of Land Management
> (BLM) and that is on the BLM Amarillo Field Office\'s Authorized List
> of Federal Helium Suppliers available via the Internet at
> http://www.nm.blm.gov/www/amfo/amfo_home.html.
>
> \"Major helium requirement\" means an estimated refined helium
> requirement greater than 200,000 standard cubic feet (scf) (measured
> at 14.7 pounds per square inch absolute pressure and 70 degrees
> Fahrenheit temperature) of gaseous helium or 7510 liters of liquid
> helium delivered to a helium use location per year.

\(b\) Requirements-

(1) Contractors must purchase major helium requirements from Federal
    helium suppliers, to the extent that supplies are available.

(2) The Contractor shall provide to the Contracting Officer the
    following data within 10 days after the Contractor or subcontractor
    receives a delivery of helium from a Federal helium supplier-

    i.  The name of the supplier;

> \(ii\) The amount of helium purchased;
>
> \(iii\) The delivery date(s); and
>
> \(iv\) The location where the helium was used.
>
> \(c\) Subcontracts. The Contractor shall insert this clause, including
> this paragraph (c), in any subcontract or order that involves a major
> helium requirement.

# FAR 52.209‑6 PROTECTING THE GOVERNMENT\'S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT (JUL 1995)

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

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

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

\(1\) The name of the subcontractor.

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

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

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

# FAR 52.215‑8 ORDER OF PRECEDENCE - UNIFORM CONTRACT FORMAT (OCT 1997)

> Any inconsistency in this solicitation or Contract shall be resolved
> by giving precedence in the following order:
>
> \(a\) the Schedule (excluding the specifications);
>
> \(b\) Representations and other instructions;
>
> \(c\) Contract clauses;
>
> \(d\) Other documents, exhibits, and attachments; and
>
> \(e\) The specifications.

# FAR 52.215-15 PENSION ADJUSTMENTS AND ASSET REVERSIONS (DEC 1998)

(a) The Contractor shall promptly notify the Contracting Officer in
    writing when it determines that it will terminate a defined-benefit
    pension plan or otherwise recapture such pension fund assets.

(b) For segment closing, pension plan terminations, or curtailment of
    benefits, the adjustment amount shall be the amount measured,
    assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12)
    for contracts and subcontracts that are subject to Cost Accounting
    Standards (CAS) Board rules and regulations (48 CFR Chapter 99). For
    contracts and subcontracts that are not subject to CAS
    9904.413-50(c)(12), except the numerator of the fraction at 48 CFR
    9904.413-50(c)(12)(iv) shall be the sum of the pension plan costs
    allocated to all non-CAS-covered contracts and subcontracts that are
    subject to Federal Acquisition Regulation (FAR) Subpart 31.2 or for
    which cost or pricing data were submitted.

> \(c\) For all other situations where assets revert to the Contractor
> or such assets are constructively received by it for any reason, the
> Contractor shall, at the Government's option, make a refund or give a
> credit to the Government for its equitable share of the gross amount
> withdrawn. The Government's equitable share shall reflect the
> Government's participation in pension costs through those contacts for
> which cost of pricing data were submitted or that are subject to FAR
> Subpart 31.2.
>
> \(d\) The Contractor shall include the substance of this clause in all
> subcontracts under this Contract which meet the applicability
> requirements of FAR 15.408(g).

# FAR 52.219‑8 UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2000)

> \(a\) It is the policy of the United States that small business
> concerns, veteran-owned small business concerns, service-disabled
> veteran-owned small business concerns, HUBZone small business
> concerns, small disadvantaged business concerns, and women-owned small
> business concerns shall have the maximum practicable opportunity to
> participate in performing contracts let by any Federal agency,
> including contracts and subcontracts for subsystems, assemblies,
> components, and related services for major systems. It is further the
> policy of the United States that its prime contractors establish
> procedures to ensure the timely payment of amounts due pursuant to the
> terms of their subcontracts with small business concerns,
> veteran-owned small business concerns, service-disabled veteran-owned
> small business concerns, HUBZone small business concerns, small
> disadvantaged business concerns, and women-owned small business
> concerns.
>
> \(b\) The Contractor hereby agrees to carry out this policy in the
> awarding of subcontracts to the fullest extent consistent with
> efficient contract performance. The Contractor further agrees to
> cooperate in any studies or surveys as may be conducted by the United
> States Small Business Administration or the awarding agency of the
> United States as may be necessary to determine the extent of the
> Contractor\'s compliance with this clause.
>
> \(c\) *Definitions*. As used in this contract---
>
> \"HUBZone small business concern\" means a small business concern that
> appears on the List of Qualified HUBZone Small Business Concerns
> maintained by the Small Business Administration.
>
> \"Service-disabled veteran-owned small business concern\"---
>
> \(1\) Means a small business concern---
>
> \(i\) Not less than 51 percent of which is owned by one or more
> service-disabled veterans or, in the case of any publicly owned
> business, not less than 51 percent of the stock of which is owned by
> one or more service-disabled veterans; and
>
> \(ii\) The management and daily business operations of which are
> controlled by one or more service-disabled veterans or, in the case of
> a veteran with permanent and severe disability, the spouse or
> permanent caregiver of such veteran.
>
> \(2\) Service-disabled veteran means a veteran, as defined in 38
> U.S.C. 101(2), with a disability that is service-connected, as defined
> in 38 U.S.C. 101(16).
>
> \"Small business concern\" means a small business as defined pursuant
> to Section 3 of the Small Business Act and relevant regulations
> promulgated pursuant thereto.
>
> \"Small disadvantaged business concern\" means a small business
> concern that represents, as part of its offer that---
>
> \(1\) It has received certification as a small disadvantaged business
> concern consistent with 13 CFR part 124, Subpart B;
>
> \(2\) No material change in disadvantaged ownership and control has
> occurred since its certification;
>
> \(3\) Where the concern is owned by one or more individuals, the net
> worth of each individual upon whom the certification is based does not
> exceed \$750,000 after taking into account the applicable exclusions
> set forth at 13 CFR 124.104(c)(2); and
>
> \(4\) It is identified, on the date of its representation, as a
> certified small disadvantaged business in the database maintained by
> the Small Business Administration (PRO-Net).
>
> \"Veteran-owned small business concern\" means a small business
> concern---
>
> \(1\) Not less than 51 percent of which is owned by one or more
> veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
> publicly owned business, not less than 51 percent of the stock of
> which is owned by one or more veterans; and
>
> \(2\) The management and daily business operations of which are
> controlled by one or more veterans.
>
> \"Women-owned small business concern\" means a small business
> concern---
>
> \(1\) That is at least 51 percent owned by one or more women, or, in
> the case of any publicly owned business, at least 51 percent of the
> stock of which is owned by one or more women; and
>
> \(2\) Whose management and daily business operations are controlled by
> one or more women.
>
> \(d\) Contractors acting in good faith may rely on written
> representations by their subcontractors regarding their status as a
> small business concern, a veteran-owned small business concern, a
> service-disabled veteran-owned small business concern, a HUBZone small
> business concern, a small disadvantaged business concern, or a
> women-owned small business concern.

# FAR 52.219‑9 SMALL BUSINESS SUBCONTRACTING PLAN (JAN 2002)

> \(a\) This clause does not apply to small business concerns.
>
> \(b\) *Definitions*. As used in this clause-
>
> \"Commercial item\" means a product or service that satisfies the
> definition of commercial item in section 2.101 of the Federal
> Acquisition Regulation.
>
> \"Commercial plan\" means a subcontracting plan (including goals) that
> covers the offeror\'s fiscal year and that applies to the entire
> production of commercial items sold by either the entire company or a
> portion thereof (*e.g*., division, plant, or product line).
>
> \"Individual contract plan\" means a subcontracting plan that covers
> the entire contract period (including option periods), applies to a
> specific contract, and has goals that are based on the offeror\'s
> planned subcontracting in support of the specific contract, except
> that indirect costs incurred for common or joint purposes may be
> allocated on a prorated basis to the contract.
>
> \"Master plan\" means a subcontracting plan that contains all the
> required elements of an individual contract plan, except goals, and
> may be incorporated into individual contract plans, provided the
> master plan has been approved.
>
> \"Subcontract\" means any agreement (other than one involving an
> employer-employee relationship) entered into by a Federal Government
> prime Contractor or subcontractor calling for supplies or services
> required for performance of the contract or subcontract.
>
> \(c\) The offeror, upon request by the Contracting Officer, shall
> submit and negotiate a subcontracting plan, where applicable, that
> separately addresses subcontracting with small business, veteran-owned
> small business, service-disabled veteran-owned small business, HUBZone
> small business concerns, small disadvantaged business, and women-owned
> small business concerns. If the offeror is submitting an individual
> contract plan, the plan must separately address subcontracting with
> small business, veteran-owned small business, service-disabled
> veteran-owned small business, HUBZone small business, small
> disadvantaged business, and women-owned small business concerns, with
> a separate part for the basic contract and separate parts for each
> option (if any). The plan shall be included in and made a part of the
> resultant contract. The subcontracting plan shall be negotiated within
> the time specified by the Contracting Officer. Failure to submit and
> negotiate the subcontracting plan shall make the offeror ineligible
> for award of a contract.
>
> \(d\) The offeror\'s subcontracting plan shall include the following:
>
> \(1\) Goals, expressed in terms of percentages of total planned
> subcontracting dollars, for the use of small business, veteran-owned
> small business, service-disabled veteran-owned small business, HUBZone
> small business, small disadvantaged business, and women-owned small
> business concerns as subcontractors. The offeror shall include all
> subcontracts that contribute to contract performance, and may include
> a proportionate share of products and services that are normally
> allocated as indirect costs.
>
> \(2\) A statement of-
>
> \(i\) Total dollars planned to be subcontracted for an individual
> contract plan; or the offeror\'s total projected sales, expressed in
> dollars, and the total value of projected subcontracts to support the
> sales for a commercial plan;
>
> \(ii\) Total dollars planned to be subcontracted to small business
> concerns;
>
> \(iii\) Total dollars planned to be subcontracted to veteran-owned
> small business concerns;
>
> \(iv\) Total dollars planned to be subcontracted to service-disabled
> veteran-owned small business;
>
> \(v\) Total dollars planned to be subcontracted to HUBZone small
> business concerns;
>
> \(vi\) Total dollars planned to be subcontracted to small
> disadvantaged business concerns; and
>
> \(vii\) Total dollars planned to be subcontracted to women-owned small
> business concerns.
>
> \(3\) A description of the principal types of supplies and services to
> be subcontracted, and an identification of the types planned for
> subcontracting to-
>
> \(i\) Small business concerns;
>
> \(ii\) Veteran-owned small business concerns;
>
> \(iii\) Service-disabled veteran-owned small business concerns;
>
> \(iv\) HUBZone small business concerns;
>
> \(v\) Small disadvantaged business concerns; and
>
> \(vi\) Women-owned small business concerns.
>
> \(4\) A description of the method used to develop the subcontracting
> goals in paragraph (d)(1) of this clause.

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

> \(6\) A statement as to whether or not the offeror included indirect
> costs in establishing subcontracting goals, and a description of the
> method used to determine the proportionate share of indirect costs to
> be incurred with-
>
> \(i\) Small business concerns;
>
> \(ii\) Veteran-owned small business concerns;
>
> \(iii\) Service-disabled veteran-owned small business concerns;
>
> \(iv\) HUBZone small business concerns;
>
> \(v\) Small disadvantaged business concerns; and

(vi) Women-owned small business concerns.

> \(7\) The name of the individual employed by the offeror who will
> administer the offeror\'s subcontracting program, and a description of
> the duties of the individual.
>
> \(8\) A description of the efforts the offeror will make to assure
> that small business, veteran-owned small business, service-disabled
> veteran-owned small business, HUBZone small business, small
> disadvantaged business, and women-owned small business concerns have
> an equitable opportunity to compete for subcontracts.
>
> \(9\) Assurances that the offeror will include the clause of this
> contract entitled \"Utilization of Small Business Concerns\" in all
> subcontracts that offer further subcontracting opportunities, and that
> the offeror will require all subcontractors (except small business
> concerns) that receive subcontracts in excess of \$500,000
> (\$1,000,000 for construction of any public facility) to adopt a
> subcontracting plan that complies with the requirements of this
> clause.
>
> \(10\) Assurances that the offeror will-
>
> \(i\) Cooperate in any studies or surveys as may be required;
>
> \(ii\) Submit periodic reports so that the Government can determine
> the extent of compliance by the offeror with the subcontracting plan;
>
> \(iii\) Submit Standard Form (SF) 294, Subcontracting Report for
> Individual Contracts, and/or SF 295, Summary Subcontract Report, in
> accordance with paragraph (j) of this clause. The reports shall
> provide information on subcontract awards to small business concerns,
> veteran-owned small business concerns, service-disabled veteran-owned
> small business concerns, HUBZone small business concerns, small
> disadvantaged business concerns, women-owned small business concerns,
> and Historically Black Colleges and Universities and Minority
> Institutions. Reporting shall be in accordance with the instructions
> on the forms or as provided in agency regulations.

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

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

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

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

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

> \(A\) Whether small business concerns were solicited and, if not, why
> not;
>
> \(B\) Whether veteran-owned small business concerns were solicited
> and, if not, why not;
>
> \(C\) Whether service-disabled veteran-owned small business concerns
> were solicited and, if not, why not;
>
> \(D\) Whether HUBZone small business concerns were solicited and, if
> not, why not;
>
> \(E\) Whether small disadvantaged business concerns were solicited
> and, if not, why not;
>
> \(F\) Whether women-owned small business concerns were solicited and,
> if not, why not; and
>
> \(G\) If applicable, the reason award was not made to a small business
> concern.
>
> \(iv\) Records of any outreach efforts to contact-
>
> \(A\) Trade associations;
>
> \(B\) Business development organizations;
>
> \(C\) Conferences and trade fairs to locate small, HUBZone small,
> small disadvantaged, and women-owned small business sources; and
>
> \(D\) Veterans service organizations.
>
> \(v\) Records of internal guidance and encouragement provided to
> buyers through-
>
> \(A\) Workshops, seminars, training, etc.; and
>
> \(B\) Monitoring performance to evaluate compliance with the
> program\'s requirements.
>
> \(vi\) On a contract-by-contract basis, records to support award data
> submitted by the offeror to the Government, including the name,
> address, and business size of each subcontractor. Contractors having
> commercial plans need not comply with this requirement.
>
> \(e\) In order to effectively implement this plan to the extent
> consistent with efficient contract performance, the Contractor shall
> perform the following functions:

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

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

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

> \(4\) Provide notice to subcontractors concerning penalties and
> remedies for misrepresentations of business status as small,
> veteran-owned small business, HUBZone small, small disadvantaged, or
> women-owned small business for the purpose of obtaining a subcontract
> that is to be included as part or all of a goal contained in the
> Contractor\'s subcontracting plan.
>
> \(f\) A master plan on a plant or division-wide basis that contains
> all the elements required by paragraph (d) of this clause, except
> goals, may be incorporated by reference as a part of the
> subcontracting plan required of the offeror by this clause; provided-
>
> \(1\) The master plan has been approved;
>
> \(2\) The offeror ensures that the master plan is updated as necessary
> and provides copies of the approved master plan, including evidence of
> its approval, to the Contracting Officer; and
>
> \(3\) Goals and any deviations from the master plan deemed necessary
> by the Contracting Officer to satisfy the requirements of this
> contract are set forth in the individual subcontracting plan.
>
> \(g\) A commercial plan is the preferred type of subcontracting plan
> for contractors furnishing commercial items. The commercial plan shall
> relate to the offeror\'s planned subcontracting generally, for both
> commercial and Government business, rather than solely to the
> Government contract. Commercial plans are also preferred for
> subcontractors that provide commercial items under a prime contract,
> whether or not the prime contractor is supplying a commercial item.
>
> \(h\) Prior compliance of the offeror with other such subcontracting
> plans under previous contracts will be considered by the Contracting
> Officer in determining the responsibility of the offeror for award of
> the contract.

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

    1.  The clause of this contract entitled \"Utilization Of Small
        Business Concerns;\" or

> \(2\) An approved plan required by this clause, shall be a material
> breach of the contract.
>
> \(j\) The Contractor shall submit the following reports:
>
> \(1\) *Standard Form 294, Subcontracting Report for Individual
> Contracts.* This report shall be submitted to the Contracting Officer
> semiannually and at contract completion. The report covers subcontract
> award data related to this contract. This report is not required for
> commercial plans.
>
> \(2\) *Standard Form 295, Summary Subcontract Report.* This report
> encompasses all of the contracts with the awarding agency. It must be
> submitted semi-annually for contracts with the Department of Defense
> and annually for contracts with civilian agencies. If the reporting
> activity is covered by a commercial plan, the reporting activity must
> report annually all subcontract awards under that plan. All reports
> submitted at the close of each fiscal year (both individual and
> commercial plans) shall include a breakout, in the Contractor\'s
> format, of subcontract awards, in whole dollars, to small
> disadvantaged business concerns by North American Industry
> Classification System (NAICS) Industry Subsector. For a commercial
> plan, the Contractor may obtain from each of its subcontractors a
> predominant NAICS Industry Subsector and report all awards to that
> subcontractor under its predominant NAICS Industry Subsector.

# FAR 52.219‑16 LIQUIDATED DAMAGES ‑ SUBCONTRACTING PLAN (JAN 1999)

> \(a\) \"Failure to make a good faith effort to comply with the
> subcontracting plan,\" as used in this clause, means a willful or
> intentional failure to perform in accordance with the requirements of
> the subcontracting plan approved under the clause in this Contract
> entitled "Small Business Subcontracting Plan,\" or willful or
> intentional action to frustrate the plan.
>
> \(b\) Performance shall be measured by applying the percentage goals
> to the total actual subcontracting dollars or, if a commercial plan is
> involved, to the pro rata share of actual subcontracting dollars
> attributable to Government contracts covered by the commercial plan.
> If, at Contract completion or, in the case of a commercial plan, at
> the close of the fiscal year for which the plan is applicable, the
> Contractor has failed to meet its subcontracting goals and the
> Contracting Officer decides in accordance with paragraph (c) of this
> clause that the Contractor failed to make a good faith effort to
> comply with its subcontracting plan, established in accordance with
> the clause in this Contract entitled "Small Business Subcontracting
> Plan," the Contractor shall pay the Government liquidated damages in
> an amount stated. The amount of probable damages attributable to the
> Contractor\'s failure to comply shall be an amount equal to the actual
> dollar amount by which the Contractor failed to achieve each
> subcontract goal.
>
> \(c\) Before the Contracting Officer makes a final decision that the
> Contractor has failed to make such good faith effort, the Contracting
> Officer shall give the Contractor written notice specifying the
> failure and permitting the Contractor to demonstrate what good faith
> efforts have been made and to discuss the matter. Failure to respond
> to the notice may be taken as an admission that no valid explanation
> exists. If, after consideration of all the pertinent data, the
> Contracting Officer finds that the Contractor failed to make a good
> faith effort to comply with the subcontracting plan, the Contracting
> Officer shall issue a final decision to that effect and require that
> the Contractor pay the Government liquidated damages as provided in
> paragraph (b) of this clause.
>
> \(d\) With respect to commercial products plans, the Contracting
> Officer who approved the plan will perform the functions of the
> Contracting Officer under this clause on behalf of all agencies with
> contracts covered by the commercial plan.
>
> \(e\) The Contractor shall have the right of appeal, under the clause
> in this Contract entitled "Disputes," from any final decision of the
> Contracting Officer.
>
> \(f\) Liquidated damages shall be in addition to any other remedies
> that the Government may have.

# FAR 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (FEB 1997)

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

# FAR 52.222‑3 CONVICT LABOR (JUN 2003)

> \(a\) Except as provided in paragraph (b) of this clause, the
> Contractor shall not employ in the performance of this contract any
> person undergoing a sentence of imprisonment imposed by any court of a
> State, the District of Columbia, Puerto Rico, the Northern Mariana
> Islands, American Samoa, Guam, or the Virgin Islands.
>
> \(b\) The Contractor is not prohibited from employing persons-
>
> \(1\) On parole or probation to work at paid employment during the
> term of their sentence;
>
> \(2\) Who have been pardoned or who have served their terms; or
>
> \(3\) Confined for violation of the laws of any of the States, the
> District of Columbia, Puerto Rico, the Northern Mariana Islands,
> American Samoa, Guam, or the U.S. Virgin Islands who are authorized to
> work at paid employment in the community under the laws of such
> jurisdiction, if\--
>
> \(i\) The worker is paid or is in an approved work training program on
> a voluntary basis;
>
> \(ii\) Representatives of local union central bodies or similar labor
> union organizations have been consulted;
>
> \(iii\) Such paid employment will not result in the displacement of
> employed workers, or be applied in skills, crafts, or trades in which
> there is a surplus of available gainful labor in the locality, or
> impair existing contracts for services; and
>
> \(iv\) The rates of pay and other conditions of employment will not be
> less than those paid or provided for work of a similar nature in the
> locality in which the work is being performed; and
>
> \(v\) The Attorney General of the United States has certified that the
> work-release laws or regulations of the jurisdiction involved are in
> conformity with the requirements of Executive Order 11755, as amended
> by Executive Orders 12608 and 12943.

# FAR 52.222‑4 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ‑ OVERTIME COMPENSATION (SEPT 2000)

> \(a\) Overtime requirements. No Contractor or subcontractor employing
> laborers or mechanics (see Federal Acquisition Regulation 22.300)
> shall require or permit them to work over 40 hours in any workweek
> unless they are paid at least 1 and 1/2 times the basic rate of pay
> for each hour worked over 40 hours.
>
> \(b\) Violation; liability for unpaid wages; liquidated damages. The
> responsible Contractor and subcontractor are liable for unpaid wages
> if they violate the terms in paragraph (a) of this clause. In
> addition, the Contractor and subcontractor are liable for liquidated
> damages payable to the Government. The Contracting Officer will assess
> liquidated damages at the rate of \$10 per affected employee for each
> calendar day on which the employer required or permitted the employee
> to work in excess of the standard workweek of 40 hours without paying
> overtime wages required by the Contract Work Hours and Safety
> Standards Act.
>
> \(c\) Withholding for unpaid wages and liquidated damages. The
> Contracting Officer will withhold from payments due under the contract
> sufficient funds required to satisfy any Contractor or subcontractor
> liabilities for unpaid wages and liquidated damages. If amounts
> withheld under the contract are insufficient to satisfy Contractor or
> subcontractor liabilities, the Contracting Officer will withhold
> payments from other Federal or Federally assisted contracts held by
> the same Contractor that are subject to the Contract Work Hours and
> Safety Standards Act.
>
> \(d\) Payrolls and basic records.
>
> \(1\) The Contractor and its subcontractors shall maintain payrolls
> and basic payroll records for all laborers and mechanics working on
> the contract during the contract and shall make them available to the
> Government until 3 years after contract completion. The records shall
> contain the name and address of each employee, social security number,
> labor classifications, hourly rates of wages paid, daily and weekly
> number of hours worked, deductions made, and actual wages paid. The
> records need not duplicate those required for construction work by
> Department of Labor regulations at 29 CFR 5.5(a)(3) implementing the
> Davis-Bacon Act.
>
> \(2\) The Contractor and its subcontractors shall allow authorized
> representatives of the Contracting Officer or the Department of Labor
> to inspect, copy, or transcribe records maintained under paragraph
> (d)(1) of this clause. The Contractor or subcontractor also shall
> allow authorized representatives of the Contracting Officer or
> Department of Labor to interview employees in the workplace during
> working hours.
>
> \(e\) Subcontracts. The Contractor shall insert the provisions set
> forth in paragraphs (a) through (d) of this clause in subcontracts
> exceeding \$100,000 and require subcontractors to include these
> provisions in any lower tier subcontracts. The Contractor shall be
> responsible for compliance by any subcontractor or lower-tier
> subcontractor with the provisions set forth in paragraphs (a) through
> (d) of this clause.

# FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES (FEB 1999)

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

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

# FAR 52.222‑26 EQUAL OPPORTUNITY (APR 2002)

> \(a\) *Definition*. \"United States,\" as used in this clause, means
> the 50 States, the District of Columbia, Puerto Rico, the Northern
> Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and
> Wake Island.
>
> \(b\) If, during any 12-month period (including the 12 months
> preceding the award of this contract), the Contractor has been or is
> awarded nonexempt Federal contracts and/or subcontracts that have an
> aggregate value in excess of \$10,000, the Contractor shall comply
> with paragraphs (b)(1) through (b)(11) of this clause, except for work
> performed outside the United States by employees who were not
> recruited within the United States. Upon request, the Contractor shall
> provide information necessary to determine the applicability of this
> clause.

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

> \(2\) The Contractor shall take affirmative action to ensure that
> applicants are employed, and that employees are treated during
> employment, without regard to their race, color, religion, sex, or
> national origin. This shall include, but not be limited to-
>
> \(i\) Employment;
>
> \(ii\) Upgrading;
>
> \(iii\) Demotion;
>
> \(iv\) Transfer;
>
> \(v\) Recruitment or recruitment advertising;
>
> \(vi\) Layoff or termination;
>
> \(vii\) Rates of pay or other forms of compensation; and

(vii) Selection for training, including apprenticeship.

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

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

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

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

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

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

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

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

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

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

# FAR 52.222-29 NOTIFICATION OF VISA DENIAL (JUN 2003)

> It is a violation of Executive Order 11246 for a Contractor to refuse
> to employ any applicant or not to assign any person hired in the
> United States, Puerto Rico, the Northern Mariana Islands, American
> Samoa, Guam, the U.S. Virgin Islands, or Wake Island, on the basis
> that the individual\'s race, color, religion, sex, or national origin
> is not compatible with the policies of the country where the work is
> to be performed or for whom the work will be performed (41 CFR
> 60-1.10). The Contractor agrees to notify the U.S. Department of
> State, Assistant Secretary, Bureau of Political-Military Affairs (PM),
> 2201 C Street NW, Room 6212, Washington, DC 20520, and the U.S.
> Department of Labor, Deputy Assistant Secretary for Federal Contract
> Compliance, when it has knowledge of any employee or potential
> employee being denied an entry visa to a country where this contract
> will be performed, and it believes the denial is attributable to the
> race, color, religion, sex, or national origin of the employee or
> potential employee.

# FAR 52.222‑35 EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)

> \(a\) *Definitions*. As used in this clause-
>
> \"All employment openings\" means all positions except executive and
> top management, those positions that will be filled from within the
> Contractor\'s organization, and positions lasting 3 days or less. This
> term includes full-time employment, temporary employment of more than
> 3 days duration, and part-time employment.
>
> \"Executive and top management\" means any employee-
>
> \(1\) Whose primary duty consists of the management of the enterprise
> in which the individual is employed or of a customarily recognized
> department or subdivision thereof;
>
> \(2\) Who customarily and regularly directs the work of two or more
> other employees;
>
> \(3\) Who has the authority to hire or fire other employees or whose
> suggestions and recommendations as to the hiring or firing and as to
> the advancement and promotion or any other change of status of other
> employees will be given particular weight;
>
> \(4\) Who customarily and regularly exercises discretionary powers;
> and
>
> \(5\) Who does not devote more than 20 percent or, in the case of an
> employee of a retail or service establishment, who does not devote
> more than 40 percent of total hours of work in the work week to
> activities that are not directly and closely related to the
> performance of the work described in paragraphs (1) through (4) of
> this definition. This paragraph (5) does not apply in the case of an
> employee who is in sole charge of an establishment or a physically
> separated branch establishment, or who owns at least a 20 percent
> interest in the enterprise in which the individual is employed.
>
> \"Other eligible veteran\" means any other veteran who served on
> active duty during a war or in a campaign or expedition for which a
> campaign badge has been authorized.
>
> \"Positions that will be filled from within the Contractor\'s
> organization\" means employment openings for which the Contractor will
> give no consideration to persons outside the Contractor\'s
> organization (including any affiliates, subsidiaries, and parent
> companies) and includes any openings the Contractor proposes to fill
> from regularly established \"recall\" lists. The exception does not
> apply to a particular opening once an employer decides to consider
> applicants outside of its organization.
>
> \"Qualified special disabled veteran\" means a special disabled
> veteran who satisfies the requisite skill, experience, education, and
> other job-related requirements of the employment position such veteran
> holds or desires, and who, with or without reasonable accommodation,
> can perform the essential functions of such position.
>
> \"Special disabled veteran\" means-
>
> \(1\) A veteran who is entitled to compensation (or who but for the
> receipt of military retired pay would be entitled to compensation)
> under laws administered by the Department of Veterans Affairs for a
> disability-
>
> \(i\) Rated at 30 percent or more; or
>
> \(ii\) Rated at 10 or 20 percent in the case of a veteran who has been
> determined under 38 U.S.C. 3106 to have a serious employment handicap
> (*i.e*., a significant impairment of the veteran\'s ability to prepare
> for, obtain, or retain employment consistent with the veteran\'s
> abilities, aptitudes, and interests); or
>
> \(2\) A person who was discharged or released from active duty because
> of a service-connected disability.
>
> \"Veteran of the Vietnam era\" means a person who-
>
> \(1\) Served on active duty for a period of more than 180 days and was
> discharged or released from active duty with other than a dishonorable
> discharge, if any part of such active duty occurred-
>
> \(i\) In the Republic of Vietnam between February 28, 1961, and May 7,
> 1975; or
>
> \(ii\) Between August 5, 1964, and May 7, 1975, in all other cases; or
>
> \(2\) Was discharged or released from active duty for a
> service-connected disability if any part of the active duty was
> performed-
>
> \(i\) In the Republic of Vietnam between February 28, 1961, and May 7,
> 1975; or
>
> \(ii\) Between August 5, 1964, and May 7, 1975, in all other cases.
>
> \(b\) *General*.
>
> \(1\) The Contractor shall not discriminate against the individual
> because the individual is a special disabled veteran, a veteran of the
> Vietnam era, or other eligible veteran, regarding any position for
> which the employee or applicant for employment is qualified. The
> Contractor shall take affirmative action to employ, advance in
> employment, and otherwise treat qualified special disabled veterans,
> veterans of the Vietnam era, and other eligible veterans without
> discrimination based upon their disability or veterans\' status in all
> employment practices such as-
>
> \(i\) Recruitment, advertising, and job application procedures;
>
> \(ii\) Hiring, upgrading, promotion, award of tenure, demotion,
> transfer, layoff, termination, right of return from layoff and
> rehiring;
>
> \(iii\) Rate of pay or any other form of compensation and changes in
> compensation;
>
> \(iv\) Job assignments, job classifications, organizational
> structures, position descriptions, lines of progression, and seniority
> lists;
>
> \(v\) Leaves of absence, sick leave, or any other leave;
>
> \(vi\) Fringe benefits available by virtue of employment, whether or
> not administered by the Contractor;
>
> \(vii\) Selection and financial support for training, including
> apprenticeship, and on-the-job training under 38 U.S.C. 3687,
> professional meetings, conferences, and other related activities, and
> selection for leaves of absence to pursue training;
>
> \(viii\) Activities sponsored by the Contractor including social or
> recreational programs; and
>
> \(ix\) Any other term, condition, or privilege of employment.
>
> \(2\) The Contractor shall comply with the rules, regulations, and
> relevant orders of the Secretary of Labor issued under the Vietnam Era
> Veterans\' Readjustment Assistance Act of 1972 (the Act), as amended
> (38 U.S.C. 4211 and 4212).
>
> \(c\) *Listing openings*.
>
> \(1\) The Contractor shall immediately list all employment openings
> that exist at the time of the execution of this contract and those
> which occur during the performance of this contract, including those
> not generated by this contract, and including those occurring at an
> establishment of the Contractor other than the one where the contract
> is being performed, but excluding those of independently operated
> corporate affiliates, at an appropriate local public employment
> service office of the State wherein the opening occurs. Listing
> employment openings with the U.S. Department of Labor\'s America\'s
> Job Bank shall satisfy the requirement to list jobs with the local
> employment service office.
>
> \(2\) The Contractor shall make the listing of employment openings
> with the local employment service office at least concurrently with
> using any other recruitment source or effort and shall involve the
> normal obligations of placing a bona fide job order, including
> accepting referrals of veterans and nonveterans. This listing of
> employment openings does not require hiring any particular job
> applicant or hiring from any particular group of job applicants and is
> not intended to relieve the Contractor from any requirements of
> Executive orders or regulations concerning nondiscrimination in
> employment.
>
> \(3\) Whenever the Contractor becomes contractually bound to the
> listing terms of this clause, it shall advise the State public
> employment agency in each State where it has establishments of the
> name and location of each hiring location in the State. As long as the
> Contractor is contractually bound to these terms and has so advised
> the State agency, it need not advise the State agency of subsequent
> contracts. The Contractor may advise the State agency when it is no
> longer bound by this contract clause.
>
> \(d\) *Applicability*. This clause does not apply to the listing of
> employment openings that occur and are filled outside the 50 States,
> the District of Columbia, the Commonwealth of Puerto Rico, the
> Commonwealth of the Northern Mariana Islands, American Samoa, Guam,
> the Virgin Islands of the United States, and Wake Island.
>
> \(e\) *Postings*.
>
> \(1\) The Contractor shall post employment notices in conspicuous
> places that are available to employees and applicants for employment.
>
> \(2\) The employment notices shall-
>
> \(i\) State the rights of applicants and employees as well as the
> Contractor\'s obligation under the law to take affirmative action to
> employ and advance in employment qualified employees and applicants
> who are special disabled veterans, veterans of the Vietnam era, and
> other eligible veterans; and
>
> \(ii\) Be in a form prescribed by the Deputy Assistant Secretary for
> Federal Contract Compliance Programs, Department of Labor (Deputy
> Assistant Secretary of Labor), and provided by or through the
> Contracting Officer.
>
> \(3\) The Contractor shall ensure that applicants or employees who are
> special disabled veterans are informed of the contents of the notice
> (e.g., the Contractor may have the notice read to a visually disabled
> veteran, or may lower the posted notice so that it can be read by a
> person in a wheelchair).
>
> \(4\) The Contractor shall notify each labor union or representative
> of workers with which it has a collective bargaining agreement, or
> other contract understanding, that the Contractor is bound by the
> terms of the Act and is committed to take affirmative action to
> employ, and advance in employment, qualified special disabled
> veterans, veterans of the Vietnam era, and other eligible veterans.
>
> \(f\) *Noncompliance*. If the Contractor does not comply with the
> requirements of this clause, the Government may take appropriate
> actions under the rules, regulations, and relevant orders of the
> Secretary of Labor issued pursuant to the Act.
>
> \(g\) *Subcontracts*. The Contractor shall insert the terms of this
> clause in all subcontracts or purchase orders of \$25,000 or more
> unless exempted by rules, regulations, or orders of the Secretary of
> Labor. The Contractor shall act as specified by the Deputy Assistant
> Secretary of Labor to enforce the terms, including action for
> noncompliance.

# FAR 52.222‑36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN 1998)

> \(a\) [General]{.underline}.
>
> \(1\) Regarding any position for which the employee or applicant for
> employment is qualified, the Contractor shall not discriminate against
> any employee or applicant because of physical or mental disability. .
> The Contractor agrees to take affirmative action to employ, advance in
> employment, and otherwise treat qualified individuals with
> disabilities
>
> without discrimination based upon their physical or mental disability
> in all employment practices such as‑‑
>
> \(i\) Recruitment, advertising, and job application procedures;
>
> \(ii\) Hiring, upgrading, promotion, award of tenure, demotion,
> transfer, layoff, termination, right of return from layoff, and
> rehiring;

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

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

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

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

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

> \(viii\) Activities sponsored by the Contractor, including social or
> recreational programs; and
>
> \(ix\) Any other term, condition, or privilege of employment.

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

\(b\) [Postings]{.underline}.

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

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

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

> \(c\) [Noncompliance]{.underline}. If the Contractor does not comply
> with the requirements of this clause, appropriate actions may be taken
> under the rules, regulations, and relevant orders of the Secretary
> issued pursuant to the Act.
>
> \(d\) [Subcontracts]{.underline}. The Contractor shall include the
> terms of this clause in every subcontract or purchase order in excess
> of \$10,000 unless exempted by rules, regulations, or orders of the
> Secretary. The Contractor shall act as specified by the Deputy
> Assistant Secretary to enforce the terms, including action for
> noncompliance.

# FAR 52.222‑37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)

> \(a\) Unless the Contractor is a State or local government agency, the
> Contractor shall report at least annually, as required by the
> Secretary of Labor, on-
>
> \(1\) The number of special disabled veterans, the number of veterans
> of the Vietnam era, and other eligible veterans in the workforce of
> the Contractor by job category and hiring location; and
>
> \(2\) The total number of new employees hired during the period
> covered by the report, and of the total, the number of special
> disabled veterans, the number of veterans of the Vietnam era, and the
> number of other eligible veterans; and
>
> \(3\) The maximum number and the minimum number of employees of the
> Contractor during the period covered by the report.
>
> \(b\) The Contractor shall report the above items by completing the
> Form VETS-100, entitled \"Federal Contractor Veterans\' Employment
> Report (VETS-100 Report).\"
>
> \(c\) The Contractor shall submit VETS-100 Reports no later than
> September 30 of each year beginning September 30, 1988.
>
> \(d\) The employment activity report required by paragraph (a)(2) of
> this clause shall reflect total hires during the most recent 12-month
> period as of the ending date selected for the employment profile
> report required by paragraph (a)(1) of this clause. Contractors may
> select an ending date-
>
> \(1\) As of the end of any pay period between July 1 and August 31 of
> the year the report is due; or
>
> \(2\) As of December 31, if the Contractor has prior written approval
> from the Equal Employment Opportunity Commission to do so for purposes
> of submitting the Employer Information Report EEO-1 (Standard Form
> 100).
>
> \(e\) The Contractor shall base the count of veterans reported
> according to paragraph (a) of this clause on voluntary disclosure.
> Each Contractor subject to the reporting requirements at 38 U.S.C.
> 4212 shall invite all special disabled veterans, veterans of the
> Vietnam era, and other eligible veterans who wish to benefit under the
> affirmative action program at 38 U.S.C. 4212 to identify themselves to
> the Contractor. The invitation shall state that-S
>
> \(1\) The information is voluntarily provided;
>
> \(2\) The information will be kept confidential;
>
> \(3\) Disclosure or refusal to provide the information will not
> subject the applicant or employee to any adverse treatment; and
>
> \(4\) The information will be used only in accordance with the
> regulations promulgated under 38 U.S.C. 4212.

f.  The Contractor shall insert the terms of this clause in all
    subcontracts or purchase orders of \$25,000 or more unless exempted
    by rules, regulations, or orders of the Secretary of Labor.

# FAR 52.223-5 POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION (AUG 2003)

> \(a\) *Definitions*. As used in this clause-
>
> \"Priority chemical\" means a chemical identified by the Interagency
> Environmental Leadership Workgroup or, alternatively, by an agency
> pursuant to Section 503 of Executive Order 13148 of April 21, 2000,
> Greening the Government through Leadership in Environmental
> Management.
>
> \"Toxic chemical\" means a chemical or chemical category listed in 40
> CFR 372.65.
>
> \(b\) Executive Order 13148 requires Federal facilities to comply with
> the provisions of the Emergency Planning and Community Right-to-Know
> Act of 1986 (EPCRA) (42 U.S.C. 11001-11050) and the Pollution
> Prevention Act of 1990 (PPA) (42 U.S.C. 13101-13109).
>
> \(c\) The Contractor shall provide all information needed by the
> Federal facility to comply with the following:
>
> \(1\) The emergency planning reporting requirements of Section 302 of
> EPCRA.
>
> \(2\) The emergency notice requirements of Section 304 of EPCRA.
>
> \(3\) The list of Material Data Safety Sheets required by Section 311
> of EPCRA.
>
> \(4\) The emergency and hazardous chemical inventory forms of Section
> 312 of EPCRA, and the toxic chemical release inventory of Section 313
> of EPCRA.
>
> \(5\) The toxic chemical release inventory of Section 313 of EPCRA,
> which includes the reduction and recycling information required by
> Section 6607 of PPA.
>
> \(6\) The toxic chemical priority chemical, and hazardous substance
> release and use reduction goals requirements of Sections 502 and 503
> of Executive Order 13148.

# FAR 52.223-10 WASTE REDUCTION PROGRAM (AUG 2000)

> \(a\) Definition*.* As used in this clause-
>
> *\"Recycling\"* means the series of activities, including collection,
> separation, and processing, by which products or other materials are
> recovered from the solid waste stream for use in the form of raw
> materials in the manufacture of products other than fuel for producing
> heat or power by combustion.
>
> *\"Waste prevention\"* means any change in the design, manufacturing,
> purchase, or use of materials or products (including packaging) to
> reduce their amount or toxicity before they are discarded. Waste
> prevention also refers to the reuse of products or materials.
>
> *\"Waste reduction,\"* means preventing or decreasing the amount of
> waste being generated through waste prevention, recycling, or
> purchasing recycled and environmentally preferable products.
>
> \(b\) Consistent with the requirements of Section 701 of Executive
> Order 13101, the Contractor shall establish a program to promote
> cost-effective waste reduction in all operations and facilities
> covered by this contract. The Contractor\'s programs shall comply with
> applicable Federal, State, and local requirements, specifically
> including Section 6002 of the Resource Conservation and Recovery Act
> (42 U.S.C. 6962, et seq.) and implementing regulations (40 CFR part
> 247).

# FAR 52.223-12 REFRIGERATION EQUIPMENT AND AIR CONDITIONERS (MAY 1995)

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

# FAR 52.224‑1 PRIVACY ACT NOTIFICATION (APR 1984)

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

# FAR 52.224‑2 PRIVACY ACT (APR 1984)

> \(a\) The Contractor agrees to‑‑

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

\(i\) The system of records; and

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

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

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

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

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

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

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

# FAR 52.225-1 BUY AMERICAN ACT --SUPPLIES (JUN 2003) as modified by AL 2002-06

> \(a\) *Definitions*. As used in this clause-
>
> \"Component\" means an article, material, or supply incorporated
> directly into an end product.

#### \"Cost of components\" means- {#cost-of-components-means- .unnumbered}

> \(1\) For components purchased by the Contractor, the acquisition
> cost, including transportation costs to the place of incorporation
> into the end product (whether or not such costs are paid to a domestic
> firm), and any applicable duty (whether or not a duty-free entry
> certificate is issued); or
>
> \(2\) For components manufactured by the Contractor, all costs
> associated with the manufacture of the component, including
> transportation costs as described in paragraph (1) of this definition,
> plus allocable overhead costs, but excluding profit. Cost of
> components does not include any costs associated with the manufacture
> of the end product.

#### \"Domestic end product\" means- {#domestic-end-product-means- .unnumbered}

> \(1\) An unmanufactured end product mined or produced in the United
> States; or
>
> \(2\) An end product manufactured in the United States, if the cost of
> its components mined, produced, or manufactured in the United States
> exceeds 50 percent of the cost of all its components. Components of
> foreign origin of the same class or kind as those that the agency
> determines are not mined, produced, or manufactured in sufficient and
> reasonably available commercial quantities of a satisfactory quality
> are treated as domestic. Scrap generated, collected, and prepared for
> processing in the United States is considered domestic.
>
> \"End product\" means those articles, materials, and supplies to be
> acquired under the contract for public use.
>
> \"Foreign end product\" means an end product other than a domestic end
> product.
>
> \"United States\" means the 50 States, the District of Columbia, and
> outlying areas.
>
> \(b\) The Buy American Act (41 U.S.C. 10a - 10d) provides a preference
> for domestic end products for supplies acquired for use in the United
> States.
>
> \(c\) Offerors may obtain from the Contracting Officer a list of
> foreign articles that the Contracting Officer will treat as domestic
> for this contract.
>
> \(d\) The Contractor shall *use* only domestic end products except to
> the extent that it specified delivery of foreign end products in the
> provision of the solicitation entitled \"Buy American Act
> Certificate.\"

# FAR 52.225-9 BUY AMERICAN ACT -- CONSTRUCTION MATERIALS (JUN 2003)

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

#### \"Cost of components\" means- {#cost-of-components-means--1 .unnumbered}

> \(1\) For components purchased by the Contractor, the acquisition
> cost, including transportation costs to the place of incorporation
> into the construction material (whether or not such costs are paid to
> a domestic firm), and any applicable duty (whether or not a duty-free
> entry certificate is issued); or
>
> \(2\) For components manufactured by the Contractor, all costs
> associated with the manufacture of the component, including
> transportation costs as described in paragraph (1) of this definition,
> plus allocable overhead costs, but excluding profit. Cost of
> components does not include any costs associated with the manufacture
> of the end product.
>
> \"Domestic construction material\" means-
>
> \(1\) An unmanufactured construction material mined or produced in the
> United States; or
>
> \(2\) A construction material manufactured in the United States, if
> the cost of its components mined, produced, or manufactured in the
> United States exceeds 50 percent of the cost of all its components.
> Components of foreign origin of the same class or kind for which
> nonavailability determinations have been made are treated as domestic.
>
> \"Foreign construction material\" means a construction material other
> than a domestic construction material.
>
> \"United States\" means the 50 States, the District of Columbia, and
> outlying areas.
>
> \(b\) *Domestic preference*.
>
> \(1\) This clause implements the Buy American Act (41 U.S.C. 10a -
> 10d) by providing a preference for domestic construction material. The
> Contractor shall use only domestic construction material in performing
> this contract, except as provided in paragraphs (b)(2) and (b)(3) of
> this clause.
>
> \(2\) This requirement does not apply to the construction material or
> components listed by the Government as follows: [None]{.underline}.
>
> \(3\) The Contracting Officer may add other foreign construction
> material to the list in paragraph (b)(2) of this clause if the
> Government determines that-
>
> \(i\) The cost of domestic construction material would be
> unreasonable. The cost of a particular domestic construction material
> subject to the requirements of the Buy American Act is unreasonable
> when the cost of such material exceeds the cost of foreign material by
> more than 6 percent;
>
> \(ii\) The application of the restriction of the Buy American Act to a
> particular construction material would be impracticable or
> inconsistent with the public interest; or
>
> \(iii\) The construction material is not mined, produced, or
> manufactured in the United States in sufficient and reasonably
> available commercial quantities of a satisfactory quality.
>
> \(c\) *Request for determination of inapplicability of the Buy
> American Act*.
>
> \(1\) (i) Any Contractor request to use foreign construction material
> in accordance with paragraph (b)(3) of this clause shall include
> adequate information for Government evaluation of the request,
> including-
>
> \(A\) A description of the foreign and domestic construction
> materials;
>
> \(B\) Unit of measure;
>
> \(C\) Quantity;
>
> \(D\) Price;
>
> \(E\) Time of delivery or availability;
>
> \(F\) Location of the construction project;
>
> \(G\) Name and address of the proposed supplier; and
>
> \(H\) A detailed justification of the reason for use of foreign
> construction materials cited in accordance with paragraph (b)(3) of
> this clause.

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

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

> \(iv\) Any Contractor request for a determination submitted after
> contract award shall explain why the Contractor could not reasonably
> foresee the need for such determination and could not have requested
> the determination before contract award. If the Contractor does not
> submit a satisfactory explanation, the Contracting Officer need not
> make a determination.
>
> \(2\) If the Government determines after contract award that an
> exception to the Buy American Act applies and the Contracting Officer
> and the Contractor negotiate adequate consideration, the Contracting
> Officer will modify the contract to allow use of the foreign
> construction material. However, when the basis for the exception is
> the unreasonable price of a domestic construction material, adequate
> consideration is not less than the differential established in
> paragraph (b)(3)(i) of this clause.
>
> \(3\) Unless the Government determines that an exception to the Buy
> American Act applies, use of foreign construction material is
> noncompliant with the Buy American Act.
>
> \(d\) *Data*. To permit evaluation of requests under paragraph (c) of
> this clause based on unreasonable cost, the Contractor shall include
> the following information and any applicable supporting data based on
> the survey of suppliers:

+---+--------------------------+-------------+---------+--------------+---+
|   | Foreign and Domestic     |             |         |              |   |
|   | Construction Materials   |             |         |              |   |
|   | Price Comparison         |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | [Construction Material   | [Unit of    | [       | [Price       |   |
|   | Description]{.underline} | Measure]{   | Quantit | (Dollars)\*] |   |
|   |                          | .underline} | y]{.und | {.underline} |   |
|   |                          |             | erline} |              |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | *Item 1*:                |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | Foreign construction     | \_\         | \_\_\_\ | \_           |   |
|   | material                 | _\_\_\_\_\_ | _\_\_\_ | \_\_\_\_\_\_ |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | Domestic construction    | \_\         | \_\_\_\ | \_           |   |
|   | material                 | _\_\_\_\_\_ | _\_\_\_ | \_\_\_\_\_\_ |   |
+---+--------------------------+-------------+---------+--------------+---+
|   |                          |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | *Item 2:*                |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | Foreign construction     | \_\         | \_\_\_\ | \_           |   |
|   | material                 | _\_\_\_\_\_ | _\_\_\_ | \_\_\_\_\_\_ |   |
+---+--------------------------+-------------+---------+--------------+---+
|   | Domestic construction    | \_\         | \_\_\_\ | \_           |   |
|   | material                 | _\_\_\_\_\_ | _\_\_\_ | \_\_\_\_\_\_ |   |
+---+--------------------------+-------------+---------+--------------+---+
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| * |                          |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+

# FAR 52.225‑13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (JUN 2003)

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

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

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

# FAR 52.229-10 STATE OF NEW MEXICO GROSS RECEIPTS AND COMPENSATING TAX (APR 2003) as modified by DEAR 970.2904-1(a)

> \(a\) Within thirty (30) days after award of this contract, the
> Contractor shall advise the State of New Mexico of this contract by
> registering with the State of New Mexico, Taxation and Revenue
> Department, Revenue Division, pursuant to the Tax Administration Act
> of the State of New Mexico and shall identify the contract number.
>
> \(b\) The Contractor shall pay the New Mexico gross receipts taxes,
> pursuant to the Gross Receipts and Compensating Tax Act of New Mexico,
> assessed against the contract fee and costs paid for performance of
> this contract, or of any part or portion thereof, within the State of
> New Mexico. The allowability of any gross receipts taxes or local
> option taxes lawfully paid to the State of New Mexico by the
> Contractor or its subcontractors will be determined in accordance with
> the *Payments and Advances* clause of this contract except as provided
> in paragraph (d) of this clause.

(c) The Contractor shall submit applications for Nontaxable Transaction
    Certificates, Form CSR-3C, to the:

> State of New Mexico Taxation and Revenue Dept.\
> Revenue Division\
> PO Box 630\
> Santa Fe, New Mexico 87509
>
> When the Type 15 Nontaxable Transaction Certificate is issued by the
> Revenue Division, the Contractor shall use these certificates strictly
> in accordance with this contract, and the agreement between the
> Department of Energy and the New Mexico Taxation and Revenue
> Department.
>
> \(d\) The Contractor shall provide Type 15 Nontaxable Transaction
> Certificates to each vendor in New Mexico selling tangible personal
> property to the Contractor for use in the performance of this
> contract. Failure to provide a Type 15 Nontaxable Transaction
> Certificate to vendors will result in the vendor\'s liability for the
> gross receipt taxes and those taxes, which are then passed on to the
> Contractor, shall not be reimbursable as an allowable cost by the
> Government.
>
> \(e\) The Contractor shall pay the New Mexico compensating user tax
> for any tangible personal property which is purchased pursuant to a
> Nontaxable Transaction Certificate if such property is not used for
> Federal purposes.
>
> \(f\) Out-of-state purchase of tangible personal property by the
> Contractor which would be otherwise subject to compensation tax shall
> be governed by the principles of this clause. Accordingly,
> compensating tax shall be due from the contractor only if such
> property is not used for Federal purposes.
>
> \(g\) The Department of Energy may receive information regarding the
> Contractor from the Revenue Division of the New Mexico Taxation and
> Revenue Department and, at the discretion of the Department of Energy,
> may participate in any matters or proceedings pertaining to this
> clause or the above-mentioned Agreement. This shall not preclude the
> Contractor from having its own representative nor does it obligate the
> Department of Energy to represent its Contractor.
>
> \(h\) The Contractor agrees to insert the substance of this clause,
> including this paragraph (h), in each subcontract which meets the
> criteria in 29.401-4(b)(1) through (3) of the Federal Acquisition
> Regulation, 48 CFR part 29.
>
> \(i\) Paragraphs (a) through (h) of this clause shall be null and void
> should the Agreement referred to in paragraph (c) of this clause be
> terminated; provided, however, that such termination shall not nullify
> obligations already incurred prior to the date of termination.

# FAR 52.230‑2 COST ACCOUNTING STANDARDS (APR 1998)

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

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

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

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

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

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

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

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

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

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

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

# FAR 52.230‑6 ADMINISTRATION OF COST ACCOUNTING STANDARDS (NOV 1999)

> For the purpose of administering the Cost Accounting Standards (CAS)
> requirements under this contract, the Contractor shall take the steps
> outlined in paragraphs (a) through (g) of this clause:
>
> \(a\) Submit to the Contracting Officer a description of any cost
> accounting practice change, the total potential impact of the change
> on contracts containing a CAS clause, and a general dollar magnitude
> of the change which identifies the potential shift of costs between
> CAS-covered contracts by contract type (i.e., firm fixed-price,
> incentive, cost-plus-fixed fee, etc.) and other Contractor business
> activity. As related to CAS-covered contracts, the analysis should
> identify the potential impact on funds of the various
> Agencies/Departments (i.e., Department of Energy, National Aeronautics
> and Space Administration, Army, Navy, Air Force, other Department of
> Defense, other Government) as follows:
>
> \(1\) For any change in cost accounting practices required in
> accordance with subparagraph (a)(3) and subdivision (a)(4)(i) of the
> clause at FAR 52.230-2, Cost Accounting Standards; or subparagraph
> (a)(3) and subdivisions (a)(4)(i) or (a)(4)(iv) of the clause at FAR
> 52.203-5, Cost Accounting Standards---Educational Institution; within
> 60 days (or such other date as may be mutually agreed to) after award
> of a contract requiring this change.
>
> \(2\) For any change in cost accounting practices proposed in
> accordance with subdivision (a)(4)(ii) or (iii) of the clauses at FAR
> 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting
> Standards-Educational Institution; or with subparagraph (a)(3) of the
> clause at FAR 52.230-3, Disclosure and Consistency of Cost Accounting
> Practices, not less than 60 days (or such other date as may be
> mutually agreed to) before the effective date of the proposed change.
>
> \(3\) For any failure to comply with an applicable CAS or to follow a
> disclosed practice (as contemplated by subparagraph (a)(5) at FAR
> 52.230-2, Cost Accounting Standards, and FAR 52.230-5, Cost Accounting
> Standards-Educational Institution; or by subparagraph (a)(4) at FAR
> 52.230-3, Disclosure and Consistency of Cost Accounting Practices):
>
> \(i\) Within 60 days (or such other date as may be mutually agreed to)
> after the date of agreement with the initial finding of noncompliance,
> or
>
> \(ii\) In the event of Contractor disagreement with the initial
> finding of noncompliance, within 60 days of the date the Contractor is
> notified by the Contracting Officer of the determination of
> noncompliance.
>
> \(b\) After an ACO, or cognizant Federal agency official,
> determination of materiality, submit a cost impact proposal in the
> form and manner specified by the Contracting Officer within 60 days
> (or such other date as may be mutually agreed to) after the date of
> determination of the adequacy and compliance of a change submitted
> pursuant to paragraph (a) of this clause. The cost impact proposal
> shall be in sufficient detail to permit evaluation, determination, and
> negotiation of the cost impact upon each separate CAS-covered contract
> and subcontract.
>
> \(1\) Cost impact proposals submitted for changes in cost accounting
> practices required in accordance with subparagraph (a)(3) and
> subdivision (a)(4)(i) of the clause at FAR 52.230‑2, Cost Accounting
> Standards, or subparagraph (a)(3) and subdivisions (a)(4)(i) or
> (a)(4)(iv) of the clause at FAR 52.230-5, Cost Accounting Standards -
> Educational Institution; shall identify the applicable standard or
> cost principle and all contracts and subcontracts containing the
> clauses entitled "Cost Accounting Standards or Cost Accounting
> Standards - Educational Institution," which have an award date before
> the effective date of that standard or cost principle.
>
> \(2\) Cost impact proposals submitted for any change in cost
> accounting practices proposed in accordance with subdivisions
> (a)(4)(ii) or (iii) of the clauses at FAR 52.230-2, Cost Accounting
> Standards, and FAR 52.203-5, Cost Accounting Standards - Educational
> Institutions, or with subparagraph (a)(3) of the clause at FAR
> 52.230-3, Disclosure and Consistency of Cost Accounting Practices;
> shall identify all contracts and subcontracts containing the clause at
> FAR 52.230-2, Cost Accounting Standards, FAR 52.230-5, Cost Accounting
> Standards - Educational Institutions and FAR 52-230-3, Disclosure and
> Consistency of Cost Accounting Practices.
>
> \(3\) Cost impact proposals submitted for failure to comply with an
> applicable CAS or to follow a disclosed practice as contemplated by
> subparagraph (a)(5) of the clauses at FAR 52.230-2, Cost Accounting
> Standards, and FAR 52.230-5, Cost Accounting Standards-Educational
> Institution; or by subparagraph (a)(4) of the clause at FAR 52.230-3,
> Disclosure and Consistency of Cost Accounting Practices, shall
> identify the cost impact on each separate CAS covered contract from
> the date of failure to comply until the noncompliance is corrected.
>
> \(c\) If the submissions required by paragraphs (a) and (b) of this
> clause are not submitted within the specified time, or any extension
> granted by the Contracting Officer, an amount not to exceed 10 percent
> of each subsequent amount determined payable related to the
> Contractor\'s CAS‑covered prime contracts, up to the estimated general
> dollar magnitude of the cost impact, may be withheld until such time
> as the required submission has been provided in the form and manner
> specified by the Contracting Officer.
>
> \(d\) Agree to appropriate contract and subcontract amendments to
> reflect adjustments established in accordance with subparagraphs
> (a)(4) and (a)(5) of the clauses at FAR 52.230-2 and 52.230-5; or with
> subparagraphs (a)(3) or (a)(4) of the Disclosure and Consistency of
> Cost Accounting Practices clause at FAR 52.230-3.
>
> \(e\) For all subcontracts subject to the clauses at FAR 52.230-2,
> 52.230-3 or 52.230-5---
>
> \(1\) So state in the body of the subcontract, in the letter of award,
> or in both (self-deleting clauses shall not be used);
>
> \(2\) Include the substance of this clause in all negotiated
> subcontracts; and
>
> \(3\) Within 30 days after award of the subcontract, submit the
> following information to the Contractor\'s cognizant contract
> administration office for transmittal to the contract administration
> office cognizant of the subcontractor\'s facility:
>
> \(i\) Subcontractor\'s name and subcontract number.
>
> \(ii\) Dollar amount and date of award.
>
> \(iii\) Name of Contractor making the award.
>
> \(f\) Notify the Contracting Officer in writing of any adjustments
> required to subcontracts under this contract and agree to an
> adjustment, based on them, to this contract price or estimated cost
> and fee. This notice is due within 30 days after proposed subcontract
> adjustments are received and shall include a proposal for adjusting
> the higher tier subcontract or prime contract appropriately.
>
> \(g\) For subcontracts containing the clauses at FAR 52.230-2 or
> 52.230-5, require the subcontractor to comply with all Standards in
> effect on the date of award or of final agreement on price, as shown
> on the subcontract signed Certificate of Current Cost or Pricing Data,
> whichever is earlier.

# FAR 52.232‑17 INTEREST (JUN 1996)

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

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

\(1\) The date fixed under this contract.

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

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

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

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

# FAR 52.232‑23 ASSIGNMENT OF CLAIMS (JAN 1986)

> \(a\) The Contractor, under the Assignment of Claims Act, as amended,
> 31 U.S.C. 3727, 41 U.S.C. 15 (hereafter referred to as \"the Act\"),
> may assign its rights to be paid amounts due or to become due as a
> result of the performance of this contract to a bank, trust company,
> or other financing institution, including any Federal lending agency.
> The assignee under such an assignment may thereafter further assign or
> reassign its right under the original assignment to any type of
> financing institution described in the preceding sentence.
>
> \(b\) Any assignment or reassignment authorized under the Act and this
> clause shall cover all unpaid amounts payable under this contract, and
> shall not be made to more than one party, except that an assignment or
> reassignment may be made to one party as agent or trustee for two or
> more parties participating in the financing of this contract.
>
> \(c\) The Contractor shall not furnish or disclose to any assignee
> under this contract any classified document (including this contract)
> or information related to work under this contract until the
> Contracting Officer authorizes such action in writing.

# FAR 52.233‑1 DISPUTES (JUL 2002) (ALTERNATE I) (DEC 1991)

> \(a\) This contract is subject to the Contract Disputes Act of 1978,
> as amended (41 U.S.C. 601-613).
>
> \(b\) Except as provided in the Act, all disputes arising under or
> relating to this contract shall be resolved under this clause.
>
> \(c\) \"Claim,\" as used in this clause, means a written demand or
> written assertion by one of the contracting parties seeking, as a
> matter of right, the payment of money in a sum certain, the adjustment
> or interpretation of contract terms, or other relief arising under or
> relating to this contract. However, a written demand or written
> assertion by the Contractor seeking the payment of money exceeding
> \$100,000 is not a claim under the Act until certified. A voucher,
> invoice, or other routine request for payment that is not in dispute
> when submitted is not a claim under the Act. The submission may be
> converted to a claim under the Act, by complying with the submission
> and certification requirements of this clause, if it is disputed
> either as to liability or amount or is not acted upon in a reasonable
> time.
>
> \(d\) (1) A claim by the Contractor shall be made in writing and,
> unless otherwise stated in this contract, submitted within 6 years
> after accrual of the claim to the Contracting Officer for a written
> decision. A claim by the Government against the Contractor shall be
> subject to a written decision by the Contracting Officer.
>
> \(2\) (i) The Contractor shall provide the certification specified in
> paragraph (d)(2)(iii) of this clause when submitting any claim
> exceeding \$100,000.
>
> \(ii\) The certification requirement does not apply to issues in
> controversy that have not been submitted as all or part of a claim.
>
> \(iii\) The certification shall state as follows: \"I certify that the
> claim is made in good faith; that the supporting data are accurate and
> complete to the best of my knowledge and belief; that the amount
> requested accurately reflects the contract adjustment for which the
> Contractor believes the Government is liable; and that I am duly
> authorized to certify the claim on behalf of the Contractor.\"
>
> \(3\) The certification may be executed by any person duly authorized
> to bind the Contractor with respect to the claim.
>
> \(e\) For Contractor claims of \$100,000 or less, the Contracting
> Officer must, if requested in writing by the Contractor, render a
> decision within 60 days of the request. For Contractor-certified
> claims over \$100,000, the Contracting Officer must, within 60 days,
> decide the claim or notify the Contractor of the date by which the
> decision will be made.
>
> \(f\) The Contracting Officer\'s decision shall be final unless the
> Contractor appeals or files a suit as provided in the Act.
>
> \(g\) If the claim by the Contractor is submitted to the Contracting
> Officer or a claim by the Government is presented to the Contractor,
> the parties, by mutual consent, may agree to use alternative dispute
> resolution (ADR). If the Contractor refuses an offer for ADR, the
> Contractor shall inform the Contracting Officer, in writing, of the
> Contractor\'s specific reasons for rejecting the offer.
>
> \(h\) The Government shall pay interest on the amount found due and
> unpaid from (1) the date that the Contracting Officer receives the
> claim (certified, if required); or (2) the date that payment otherwise
> would be due, if that date is later, until the date of payment. With
> regard to claims having defective certifications, as defined in FAR
> 33.201, interest shall be paid from the date that the Contracting
> Officer initially receives the claim. Simple interest on claims shall
> be paid at the rate, fixed by the Secretary of the Treasury as
> provided in the Act, which is applicable to the period during which
> the Contracting Officer receives the claim and then at the rate
> applicable for each 6-month period as fixed by the Treasury Secretary
> during the pendency of the claim.
>
> \(i\) The Contractor shall proceed diligently with performance of this
> contract, pending final resolution of any request for relief, claim,
> appeal, or action arising under or relating to the contract, and
> comply with any decision of the Contracting Officer.

# FAR 52.237‑3 CONTINUITY OF SERVICES (JAN 1991)

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

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

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

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

# FAR 52.242‑1 NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)

\(a\) Notwithstanding any other clause of this contract‑‑

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

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

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

# FAR 52.242‑13 BANKRUPTCY (JUL 1995)

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

# FAR 52.242‑15 STOP‑WORK ORDER (AUG 1989)(ALTERNATE I) (APR 1984)

\(a\) The Contracting Officer may, at any time, by written order to the
Contractor, require the Contractor to stop all, or any part, of the work
called for by this Contract for a period of 90 days after the order is
delivered to the Contractor, and for any further period to which the
parties may agree. The order shall be specifically identified as a
stop‑work order issued under this clause. Upon receipt of the order, the
Contractor shall immediately comply with its terms and take all
reasonable steps to minimize the incurrence of costs allocable to the
work covered by the order during the period of work stoppage. Within a
period for 90 days after a stop‑work order is delivered to the
Contractor, or within any extension of that period to which the parties
shall have agreed, the Contracting Offi­cer shall either‑‑

\(1\) Cancel the stop‑work order; or

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

\(b\) If a stop‑work order issued under this clause is canceled or the
period of the order or any extension thereof expires, the Contractor
shall resume work. The Contracting Officer shall make an equitable
adjustment in the delivery schedule, the estimated cost, the fee, or a
combination thereof and in any other terms of the contract that may be
affected, and the contract shall be modified, in writing, accordingly,
if‑‑

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

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

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

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

# FAR 52.244‑5 COMPETITION IN SUBCONTRACTING (DEC 1996)

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

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

# FAR 52.244‑6 SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (APR 2003)

> \(a\) *Definitions.* As used in this clause-
>
> \"Commercial item\" has the meaning contained in the clause at
> 52.202-1, Definitions.
>
> \"Subcontract\" includes a transfer of commercial items between
> divisions, subsidiaries, or affiliates of the Contractor or
> subcontractor at any tier.
>
> \(b\) To the maximum extent practicable, the Contractor shall
> incorporate, and require its subcontractors at all tiers to
> incorporate, commercial items or nondevelopmental items as components
> of items to be supplied under this contract.
>
> \(c\) (1) The Contractor shall insert the following clauses in
> subcontracts for commercial items:
>
> \(i\) 52.219-8, Utilization of Small Business Concerns (Oct 2000)
> (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further
> subcontracting opportunities. If the subcontract (except subcontracts
> to small business concerns) exceeds \$500,000 (\$1,000,000 for
> construction of any public facility), the subcontractor must include
> 52.219-8 in lower tier subcontracts that offer subcontracting
> opportunities.
>
> \(ii\) 52.222-26, Equal Opportunity (Apr 2002) (E.O. 11246).
>
> \(iii\) 52.222-35, Equal Opportunity for Special Disabled Veterans,
> Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001)
> (38 U.S.C. 4212(a));
>
> \(iv\) 52.222-36, Affirmative Action for Workers with Disabilities
> (June 1998) (29 U.S.C. 793).
>
> \(v\) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
> Vessels (APR 2003) (46 U.S.C. Appx 1241 and 10 U.S.C. 2631) (flowdown
> required in accordance with paragraph (d) of FAR Clause 52.247-46).
>
> \(2\) While not required, the Contractor may flow down to subcontracts
> for commercial items a minimal number of additional clauses necessary
> to satisfy its contractual obligations.
>
> \(d\) The Contractor shall include the terms of this clause, including
> this paragraph (d), in subcontracts awarded under this contract.

# FAR 52.247‑1 COMMERCIAL BILL OF LADING NOTATIONS (APR 1984)

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

\(a\) If the Government is shown as the consignor or the consignees, the
annotation shall be: \"Transportation is for the
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(name the specific agency) and the actual total transportation charges
paid to the carrier(s) by the consignor or consignee are assignable to,
and shall be reimbursed by, the Government.\"

\(b\) If the Government is not shown as the consignor or the consignee,
the annotation shall be: \"Transportation is for the
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(name the specific agency) and the actual total transportation charges
paid to the carrier(s) by the consignor or consignee shall be reimbursed
by the Government, pursuant to cost‑reimbursement Contract No.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_. This may be confirmed by
contacting
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(name and address of the contract administration office listed in the
contract).\"

# FAR 52.247‑63 PREFERENCE FOR U.S. FLAG AIR CARRIERS (JUN 2003)

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

> \"International air transportation\" means transportation by air
> between a place in the United States and a place outside the
> United States or between two places both of which are outside the
> United States.

\"United States\" means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and possessions of the United States.

\"U.S.-flag air carrier\" means an air carrier holding a certificate
under 49 U.S.C., Chapter 411.

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

\(c\) If available, the Contractor agrees, in performing work under this
contract, to use U.S.-flag air carriers for international air
transportation of personnel (and their personal effects) or property.

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

STATEMENT OF UNAVAILABILITY OF

U.S.-FLAG AIR CARRIERS

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

\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...

(End of Statement)

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

# FAR 52.249-6 TERMINATION (COST REIMBURSEMENT) (SEP 1996) as modified by DEAR 970.4905-1(b)

> \(a\) The Government may terminate performance of work under this
> contract in whole or, from time to time, in part, if-
>
> \(1\) The Contracting Officer determines that a termination is in the
> Government\'s interest; or
>
> \(2\) The Contractor defaults in performing this contract and fails to
> cure the default within 10 days (unless extended by the Contracting
> Officer) after receiving a notice specifying the default. \"Default\"
> includes failure to make progress in the work so as to endanger
> performance.
>
> \(b\) The Contracting Officer shall terminate by delivering to the
> Contractor a Notice of Termination specifying whether termination is
> for default of the Contractor or for convenience of the Government,
> the extent of termination, and the effective date. If, after
> termination for default, it is determined that the Contractor was not
> in default or that the Contractor\'s failure to perform or to make
> progress in performance is due to causes beyond the control and
> without the fault or negligence of the Contractor as set forth in the
> Excusable Delays clause, the rights and obligations of the parties
> will be the same as if the termination was for the convenience of the
> Government.
>
> \(c\) After receipt of a Notice of Termination, and except as directed
> by the Contracting Officer, the Contractor shall immediately proceed
> with the following obligations, regardless of any delay in determining
> or adjusting any amounts due under this clause:
>
> \(1\) Stop work as specified in the notice.
>
> \(2\) Place no further subcontracts or orders (referred to as
> subcontracts in this clause), except as necessary to complete the
> continued portion of the contract.
>
> \(3\) Terminate all subcontracts to the extent they relate to the work
> terminated.

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

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

> \(6\) Transfer title (if not already transferred) and, as directed by
> the Contracting Officer, deliver to the Government-
>
> \(i\) The fabricated or unfabricated parts, work in process, completed
> work, supplies, and other material produced or acquired for the work
> terminated;
>
> \(ii\) The completed or partially completed plans, drawings,
> information, and other property that, if the contract had been
> completed, would be required to be furnished to the Government; and
>
> \(iii\) The jigs, dies, fixtures, and other special tools and tooling
> acquired or manufactured for this contract, the cost of which the
> Contractor has been or will be reimbursed under this contract.
>
> \(7\) Complete performance of the work not terminated.
>
> \(8\) Take any action that may be necessary, or that the Contracting
> Officer may direct, for the protection and preservation of the
> property related to this contract that is in the possession of the
> Contractor and in which the Government has or may acquire an interest.
>
> \(9\) Use its best efforts to sell, as directed or authorized by the
> Contracting Officer, any property of the types referred to in
> paragraph (c)(6) of this clause; *provided, however*, that the
> Contractor (i) is not required to extend credit to any purchaser and
> (ii) may acquire the property under the conditions prescribed by, and
> at prices approved by, the Contracting Officer. The proceeds of any
> transfer or disposition will be applied to reduce any payments to be
> made by the Government under this contract, credited to the price or
> cost of the work, or paid in any other manner directed by the
> Contracting Officer.
>
> \(d\) The Contractor shall submit complete termination inventory
> schedules no later than 120 days from the effective date of
> termination, unless extended in writing by the Contracting Officer
> upon written request of the Contractor within this 120-day period.
>
> \(e\) After expiration of the plant clearance period as defined in
> Subpart 45.6 of the Federal Acquisition Regulation, the Contractor may
> submit to the Contracting Officer a list, certified as to quantity and
> quality, of termination inventory not previously disposed of,
> excluding items authorized for disposition by the Contracting Officer.
> The Contractor may request the Government to remove those items or
> enter into an agreement for their storage. Within 15 days, the
> Government will accept the items and remove them or enter into a
> storage agreement. The Contracting Officer may verify the list upon
> removal of the items, or if stored, within 45 days from submission of
> the list, and shall correct the list, as necessary, before final
> settlement.
>
> \(f\) After termination, the Contractor shall submit a final
> termination settlement proposal to the Contracting Officer in the form
> and with the certification prescribed by the Contracting Officer. The
> Contractor shall submit the proposal promptly, but no later than 1
> year from the effective date of termination, unless extended in
> writing by the Contracting Officer upon written request of the
> Contractor within this 1-year period. However, if the Contracting
> Officer determines that the facts justify it, a termination settlement
> proposal may be received and acted on after 1 year or any extension.
> If the Contractor fails to submit the proposal within the time
> allowed, the Contracting Officer may determine, on the basis of
> information available, the amount, if any, due the Contractor because
> of the termination and shall pay the amount determined.
>
> \(g\) Subject to paragraph (f) of this clause, the Contractor and the
> Contracting Officer may agree on the whole or any part of the amount
> to be paid (including an allowance for fee) because of the
> termination. The contract shall be amended, and the Contractor paid
> the agreed amount.
>
> \(h\) If the Contractor and the Contracting Officer fail to agree in
> whole or in part on the amount of costs and/or fee to be paid because
> of the termination of work, the Contracting Officer shall determine,
> on the basis of information available, the amount, if any, due the
> Contractor, and shall pay that amount, which shall include the
> following:
>
> \(1\) All costs reimbursable under this contract, not previously paid,
> for the performance of this contract before the effective date of the
> termination, and those costs that may continue for a reasonable time
> with the approval of or as directed by the Contracting Officer;
> however, the Contractor shall discontinue those costs as rapidly as
> practicable.
>
> \(2\) The cost of settling and paying termination settlement proposals
> under terminated subcontracts that are properly chargeable to the
> terminated portion of the contract if not included in paragraph (h)(1)
> of this clause.
>
> \(3\) The reasonable costs of settlement of the work terminated,
> including-
>
> \(i\) Accounting, legal, clerical, and other expenses reasonably
> necessary for the preparation of termination settlement proposals and
> supporting data;
>
> \(ii\) The termination and settlement of subcontracts (excluding the
> amounts of such settlements); and
>
> \(iii\) Storage, transportation, and other costs incurred, reasonably
> necessary for the preservation, protection, or disposition of the
> termination inventory. If the termination is for default, no amounts
> for the preparation of the Contractor\'s termination settlement
> proposal may be included.
>
> \(4\) A portion of the fee payable under the contract, determined as
> follows:
>
> \(i\) If the contract is terminated for the convenience of the
> Government, the settlement shall include a percentage of the fee equal
> to the percentage of completion of work contemplated under the
> contract, but excluding subcontract effort included in
> subcontractors\' termination proposals, less previous payments for
> fee.
>
> \(ii\) If the contract is terminated for default, the total fee
> payable shall be such proportionate part of the fee as the total
> number of articles (or amount of services) delivered to and accepted
> by the Government is to the total number of articles (or amount of
> services) of a like kind required by the contract.
>
> \(5\) If the settlement includes only fee, it will be determined under
> paragraph (h)(4) of this clause.
>
> \(i\) The cost principles and procedures in Part 31 of the Federal
> Acquisition Regulation, as supplemented in subpart 970.31 of the
> Department of Energy Acquisition Regulation, in effect on the date of
> this contract, shall govern all costs claimed, agreed to, or
> determined under this clause.
>
> \(j\) The Contractor shall have the right of appeal, under the
> Disputes clause, from any determination made by the Contracting
> Officer under paragraph (f), (h), or (l) of this clause, except that
> if the Contractor failed to submit the termination settlement proposal
> within the time provided in paragraph (f) and failed to request a time
> extension, there is no right of appeal. If the Contracting Officer has
> made a determination of the amount due under paragraph (f), (h) or (l)
> of this clause, the Government shall pay the Contractor-
>
> \(1\) The amount determined by the Contracting Officer if there is no
> right of appeal or if no timely appeal has been taken; or
>
> \(2\) The amount finally determined on an appeal.
>
> \(k\) In arriving at the amount due the Contractor under this clause,
> there shall be deducted-
>
> \(1\) All unliquidated advance or other payments to the Contractor,
> under the terminated portion of this contract;
>
> \(2\) Any claim which the Government has against the Contractor under
> this contract; and
>
> \(3\) The agreed price for, or the proceeds of sale of materials,
> supplies, or other things acquired by the Contractor or sold under
> this clause and not recovered by or credited to the Government.
>
> \(l\) The Contractor and Contracting Officer must agree to any
> equitable adjustment in fee for the continued portion of the contract
> when there is a partial termination. The Contracting Officer shall
> amend the contract to reflect the agreement.
>
> \(m\) (1) The Government may, under the terms and conditions it
> prescribes, make partial payments and payments against costs incurred
> by the Contractor for the terminated portion of the contract, if the
> Contracting Officer believes the total of these payments will not
> exceed the amount to which the Contractor will be entitled.
>
> \(2\) If the total payments exceed the amount finally determined to be
> due, the Contractor shall repay the excess to the Government upon
> demand, together with interest computed at the rate established by the
> Secretary of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest
> shall be computed for the period from the date the excess payment is
> received by the Contractor to the date the excess is repaid. Interest
> shall not be charged on any excess payment due to a reduction in the
> Contractor\'s termination settlement proposal because of retention or
> other disposition of termination inventory until 10 days after the
> date of the retention or disposition, or a later date determined by
> the Contracting Officer because of the circumstances.
>
> \(n\) The provisions of this clause relating to fee are inapplicable
> if this contract does not include a fee.

# FAR 52.250-1 INDEMNIFICATION UNDER PUBLIC LAW 85-804 (APR 1984) (ALTERNATE I) (APR 1984) (DEVIATION)

> \(a\) "Contractor's principal officials," as used in this clause,
> means directors, officers, managers, superintendents, or other
> representatives supervising or directing\--
>
> \(1\) All or substantially all of the Contractor's business;
>
> \(2\) All or substantially all of the Contractor's operations at any
> one plant or separate location at which this contract is being
> performed; or
>
> \(3\) A separate and complete major industrial operation in connection
> with the
>
> performance of this contract.
>
> \(b\) Under Public Law 85-804 (50 U.S.C. 1431-1435) and Executive
> Order 10789, as amended, and regardless of any other provisions of
> this contract, the Government shall, subject to the limitations
> contained in the other paragraphs of this clause, indemnify the
> Contractor against\--
>
> \(1\) Claims (including reasonable expenses of litigation or
> settlement) by third persons (including employees of the Contract) for
> death; personal injury; or loss of, damage to, or loss of use of
> property;
>
> \(2\) Loss of, damage to, or loss of use of Contractor property,
> excluding loss of profit; and
>
> \(3\) Loss of, damage to, or loss of use of Government property,
> excluding loss of profit.
>
> \(c\) This indemnification applies only to the extent that the claim,
> loss, or damage
>
> \(1\) arises out of or results from a risk defined in this contract as
> unusually hazardous or nuclear and
>
> \(2\) is not compensated for by insurance or otherwise. Any such
> claim, loss, or damage, to the extent that it is within the deductible
> amounts of the Contractor's insurance, is not covered under this
> clause. If insurance coverage or other financial protection in effect
> on the date the approving official authorizes use of this clause is
> reduced, the Government's liability under this clause shall not
> increase as a result.
>
> \(d\) When the claim, loss, or damage is caused by willful misconduct
> or lack of good faith on the part of any of the Contractor's principal
> officials, the Contractor shall not be indemnified for -
>
> \(1\) Government claims against the Contractor (other than those
> arising through subrogation); or
>
> \(2\) Loss or damage affecting the Contractor's property.
>
> \(e\) With the Contracting Officer's prior written approval, the
> Contractor may, in any subcontract under the contract, indemnify the
> subcontractor against any risk defined in this contract as unusually
> hazardous or nuclear. This indemnification shall provide, between the
> Contractor and the subcontractor, the same rights and duties, and the
> same provisions for notice, furnishing of evidence or proof, and
> Government settlement or defense of claims as this clause provides.
> The Contracting Officer may also approve indemnification of
> subcontractors at any lower tier, under the same terms and conditions.
> The Government shall indemnify the Contractor against liability to
> subcontractors incurred under subcontract provisions approved by the
> Contracting Officer.
>
> \(f\) The rights and obligations of the parties under this clause
> shall survive this contract's termination, expiration, or completion.
> The Government shall make no payment under this clause unless the
> agency head determines that the amount is just and reasonable. The
> Government may pay the Contractor or subcontractors, or may directly
> pay parties to whom the Contractor or subcontractors may be liable.
>
> \(g\) The Contractor shall -
>
> \(1\) Promptly notify the Contracting Officer of any claim or action
> against, or any loss by, the Contractor or any subcontractors that may
> reasonably be expected to involve indemnification under this clause;
>
> \(2\) Immediately furnish to the Government copies of all pertinent
> papers the Contractor receives;
>
> \(3\) Furnish evidence or proof of any claim, loss, or damage covered
> by this clause in the manner and form the Government requires; and
>
> \(4\) Comply with the Government's directions and execute any
> authorizations required in connection with settlement or defense of
> claims or actions.
>
> \(h\) The Government may direct, control, or assist in settling or
> defending any claim or action that may involve indemnification under
> this clause.
>
> \(i\) The cost of insurance (including self-insurance programs)
> covering a risk defined in this contract as unusually hazardous or
> nuclear shall not be reimbursed expect to the extent that the
> Contracting Officer has required or approved this insurance.
>
> The Government's obligations under this clause are -
>
> \(1\) Excepted from the release required under this contract's clause
> relating to allowable cost; and
>
> \(2\) Not affected by this contract's Availability of Appropriated
> Funds or Obligation of Funds clause.
>
> \(j\) The term "a risk defined in this contract as unusually hazardous
> or nuclear" as used in this clause means the risk of legal liability
> to third parties (including legal costs as defined in paragraph (jj)
> of section 11 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
> *§*2014(jj), notwithstanding the fact that the claim or suit may not
> arise under section 170 of said Act, 42 U.S.C. *§*2210) arising from
> the performance by the Contractor under this contract of
> non-proliferation, emergency response, anti-terrorism activities, or
> critical national security activities that involve the use, detection,
> identification, assessment, control, containment, dismantlement,
> characterization, packaging, transportation, movement, storage, or
> disposal of nuclear, radiological, chemical, biological, or explosive
> materials, facilities or devices, provided such activities are
> specifically requested or approved, in writing, by the President of
> the United States, the Secretary of Energy, the Deputy Secretary of
> Energy, or the Under Secretary of Energy for Nuclear Security, and
> further provided that the request or approval specifically identifies
> the particular requested or approved activity and makes the indemnity
> provided by this clause applicable to that particular activity because
> it involves extraordinary risks.
>
> \(k\) Additional Definitions of Terms
>
> As used in this clause,
>
> \(1\) the term "Contractor" except as used in paragraphs (a) and (e)
> of this clause means
>
> \(A\) Sandia Corporation,
>
> \(B\) Sandia Corporation's parent organization, Lockheed Martin
> Corporation, corporate successors of Lockheed Martin Corporation, and
> corporate affiliates of Lockheed Martin Corporation, and
>
> \(C\) Employees, officers, and directors of any of the foregoing named
> or threatened to be named as defendants in lawsuits or litigation
> threatened or initiated by third parties which seek to impose or
> establish, or which could result in, a risk which is defined in this
> contract as unusually hazardous or nuclear, on account of actions or
> inactions of Sandia Corporation, or on account of actions or inactions
> undertaken by the corporations or individuals identified in
> subparagraph (A), (B), (C) above for, on behalf of, or with respect
> to, Sandia Corporation under this contract; and
>
> \(2\) the term "Contractor" as used in paragraphs (a) and (e) of this
> clause means Sandia Corporation;
>
> \(3\) the term "Contractor's business" means the management and
> operation of Sandia National Laboratories for DOE under this contract;
>
> \(4\) the terms "Contractor's operations at any one plant or separate
> location in which this contract is being performed" and "a separate
> and complete major industrial operation in connection with the
> performance of this contract" mean the Sandia National Laboratories
> facilities located at Kirtland Air Force Base in Albuquerque, New
> Mexico and Livermore, California;
>
> \(5\) the term "nuclear materials" means source, special nuclear, or
> byproduct materials as those terms are defined in section 11 of the
> Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2014;
>
> \(6\) the term "agency head" means the Secretary of Energy; and
>
> \(7\) the term "corporate affiliates of Lockheed Martin Corporation"
> means
>
> \(A\) any company that, directly or indirectly, owns 50 percent or
> more of Lockheed Martin Corporation (including its corporate
> successors), or which otherwise controls Lockheed Martin Corporation,
> and
>
> \(B\) companies, other than Sandia Corporation, that directly or
> indirectly, are 50 percent or more owned by Lockheed Martin
> Corporation or by any company referred to in paragraph (A) above, or
> which are otherwise controlled by Lockheed Martin Corporation, or by
> any such company.
>
> \(l\) This clause provides indemnification for the unusually hazardous
> or nuclear risks defined herein which are not covered by the Price
> Anderson Act (section 170d of the Atomic Energy Act of 1954, as
> amended 42 U.S.C. § 2210(d) or where the indemnification provided by
> the Price Anderson Act is limited by the restriction on public
> liability imposed by section 170e of the Atomic Energy Act of 1954, as
> amended, (42 U.S.C. § 2210(e)) to an amount which is not sufficient to
> provide complete indemnification for the legal liability to which the
> Contractor is exposed.

# FAR 52.251‑2 INTERAGENCY FLEET MANAGEMENT SYSTEM (IFMS) VEHICLES AND RELATED SERVICES (JAN 1991)

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

# FAR 52.252‑6 AUTHORIZED DEVIATIONS IN CLAUSES (APR 1984)

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

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

# FAR 52.253‑1 COMPUTER‑GENERATED FORMS (JAN 1991)

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

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

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

# DEAR 952.203-70 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES (DEC 2000)

> \(a\) The contractor shall comply with the requirements of the \"DOE
> Contractor Employee Protection Program\" at 10 CFR part 708 for work
> performed on behalf of DOE directly related to activities at DOE-owned
> or -leased sites.
>
> \(b\) The contractor shall insert or have inserted the substance of
> this clause, including this paragraph (b), in subcontracts at all
> tiers, for subcontracts involving work performed on behalf of DOE
> directly related to activities at DOE-owned or leased sites.

# DEAR 952.204‑2 SECURITY (MAY 2002) (DEVIATION)

> \(a\) *Responsibility*. It is the contractor\'s duty to safeguard all
> classified information, special nuclear material, and other DOE
> property. The contractor shall, in accordance with DOE security
> regulations and requirements, be responsible for safeguarding all
> classified information and protecting against sabotage, espionage,
> loss or theft of 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 DOE 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, the contractor shall identify the
> items and types or categories of matter proposed for retention, the
> reasons for the retention of the matter, and the proposed period of
> retention. If the retention is approved by the contracting officer,
> the security provisions of the contract shall continue to be
> applicable to the matter retained. Special nuclear material shall not
> be retained after the completion or termination of the contract.
>
> \(b\) *Regulations*. The contractor agrees to comply with all security
> regulations, and with all security requirements of DOE.
>
> \(c\) *Definition of classified information*. The term \"classified
> information\" means Restricted Data, Formerly Restricted Data, or
> National Security Information.
>
> \(d\) *Definition of restricted data*. The term \"Restricted Data\"
> 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 shall not include data declassified or removed from the Restricted
> Data category pursuant to Section 142 of the Atomic Energy Act of
> 1954, as amended.
>
> \(e\) *Definition of formerly restricted data*. The term *\"Formerly
> Restricted Data\"* means all data removed from the Restricted Data
> category under section 142 d. of the Atomic Energy Act of 1954, as
> amended.
>
> \(f\) *Definition of National Security Information*. The term
> \"National Security Information\" means any information or material,
> regardless of its physical form or characteristics, that is owned by,
> produced for or by, or is under the control of the United States
> Government, that has been determined pursuant to Executive Order 12958
> or prior Orders to require protection against unauthorized disclosure,
> and which is so designated.
>
> \(g\) *Definition of Special Nuclear Material (SNM)*. *SNM* means:
>
> \(1\) plutonium, uranium enriched in the isotope 233 or in the isotope
> 235, and any other material which pursuant to the provisions of
> Section 51 of the Atomic Energy Act of 1954, as amended, has been
> determined to be special nuclear material, but does not include source
> material; or
>
> \(2\) any material artificially enriched by any of the foregoing, but
> does not include source material.
>
> \(h\) *Security clearance of personnel*. The contractor shall not
> permit any individual to have access to any classified information,
> except in accordance with the Atomic Energy Act of 1954, as amended,
> Executive Order 12958, and the DOE\'s regulations or requirements
> applicable to the particular level and category of classified
> information to which access is required.
>
> \(i\) *Criminal liability*. It is understood that disclosure of any
> classified information relating to the work or services ordered
> hereunder to any person not entitled to receive it, or failure to
> safeguard any classified information 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 E.O. 12958.)
>
> \(j\) Foreign Ownership, Control or Influence.
>
> \(1\) The Contractor shall immediately provide the cognizant security
> office written notice of any change in the extent and nature of
> foreign ownership, control or influence over the Contractor which
> would affect any answer to the questions presented in the Certificate
> Pertaining to Foreign Interests, Standard Form 328 or the Foreign
> Ownership, Control or Influence questionnaire executed by the
> Contractor prior to the award of this contract. In addition, any
> notice of changes in ownership or control which are required to be
> reported to the Securities and Exchange Commission, the Federal Trade
> Commission, or the Department of Justice shall also be furnished
> concurrently to the Contracting Officer.
>
> \(2\) If a Contractor has changes involving foreign ownership, control
> or influence, DOE must determine whether the changes will pose an
> undue risk to the common defense and security. In making this
> determination, DOE will consider proposals made by the Contractor to
> avoid or mitigate foreign influences.
>
> \(3\) If the cognizant security office at any time determines that the
> Contractor is, or is potentially, subject to foreign ownership,
> control or influence, the Contractor shall comply with such
> instructions as the Contracting Officer shall provide in writing to
> safeguard any classified information or special nuclear material.
>
> \(4\) The Contractor agrees to insert terms that conform substantially
> to the language of this clause, including this paragraph, in all
> subcontracts under this contract that will require subcontractor
> employees to possess access authorizations. Additionally, the
> Contractor must require subcontractors to have an existing DOD or DOE
> Facility Clearance or submit a completed Certificate Pertaining to
> Foreign Interests, Standard Form 328, required in DEAR 952.204-73
> prior to award of a subcontract. Information to be provided by a
> subcontractor pursuant to this clause may be submitted directly to the
> Contracting Officer. For purposes of this clause, subcontractor means
> any subcontractor at any tier and the term \"Contracting Officer\"
> means the DOE Contracting Officer. When this clause is included in a
> subcontract, the term \"Contractor\" shall mean Subcontractor and the
> term \"contract\" shall mean subcontract.
>
> \(5\) The Contracting Officer may terminate this contract for default
> either if the Contractor fails to meet obligations imposed by this
> clause or if the Contractor creates a FOCI situation in order to avoid
> performance or a termination for default. The Contracting Officer may
> terminate this contract for convenience if the Contractor becomes
> subject to FOCI and for reasons other than avoidance of performance of
> the contract, cannot, or chooses not to, avoid or mitigate the FOCI
> problem.

# DEAR 952.204‑70 CLASSIFICATION/DECLASSIFICATION (SEP 1997)

> In the performance of work under this contract, the contractor or
> subcontractor shall comply with all provisions of the Department of
> Energy\'s regulations and mandatory DOE directives which apply to work
> involving the classification and declassification of information,
> documents, or material. In this section, "information" means facts,
> data, or knowledge itself; "document" means the physical medium on or
> in which information is recorded; and "material" means a product or
> substance which contains or reveals information, regardless of its
> physical form or characteristics. Classified information is
> "Restricted Data" and "Formerly Restricted Data" (classified under the
> Atomic Energy Act of 1954, as amended) and "National Security
> Information" (classified under Executive Order 12958 or prior
> Executive Orders).
>
> The original decision to classify or declassify information is
> considered an inherently Governmental function. For this reason, only
> Government personnel may serve as original classifiers, i.e., Federal
> Government Original Classifiers. Other personnel (Government or
> contractor) may serve as derivative classifiers which involves making
> classification decisions based upon classification guidance which
> reflect decisions made by Federal Government Original Classifiers.
>
> The contractor or subcontractor shall ensure that any document or
> material that may contain classified information is reviewed by either
> a Federal Government or a Contractor Derivative Classifier in
> accordance with classification regulations including mandatory DOE
> directives and classification/declassification guidance furnished to
> the contractor by the Department of Energy to determine whether it
> contains classified information prior to dissemination. For
> information which is not addressed in classification/declassification
> guidance, but whose sensitivity appears to warrant classification, the
> contractor or subcontractor shall ensure that such information is
> reviewed by a Federal Government Original Classifier.
>
> In addition, the contractor or subcontractor shall ensure that
> existing classified documents (containing either Restricted Data or
> Formerly Restricted Data or National Security Information) which are
> in its possession or under its control are periodically reviewed by a
> Federal Government or Contractor Derivative Declassifier in accordance
> with classification regulations, mandatory DOE directives and
> classification/declassification guidance furnished to the contractor
> by the Department of Energy to determine if the documents are no
> longer appropriately classified. Priorities for declassification
> review of classified documents shall be based on the degree of public
> and researcher interest and the likelihood of declassification upon
> review. Documents which no longer contain classified information are
> to be declassified. Declassified documents then shall be reviewed to
> determine if they are publicly releasable. Documents which are
> declassified and determined to be publicly releasable are to be made
> available to the public in order to maximize the public\'s access to
> as much Government information as possible while minimizing security
> costs.
>
> The contractor or subcontractor shall insert this clause in any
> subcontract which involves or may involve access to classified
> information.

# DEAR 952.204-71 SENSITIVE FOREIGN NATIONS CONTROLS (APR 1994)

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

# DEAR 952.204-75 PUBLIC AFFAIRS (DEC 2000)

> \(a\) The Contractor must cooperate with the Department in releasing
> unclassified information to the public and news media regarding DOE
> policies, programs, and activities relating to its effort under the
> contract. The responsibilities under this clause must be accomplished
> through coordination with the Contracting Officer and appropriate DOE
> public affairs personnel in accordance with procedures defined by the
> Contracting Officer.
>
> \(b\) The Contractor is responsible for the development, planning, and
> coordination of proactive approaches for the timely dissemination of
> unclassified information regarding DOE activities onsite and offsite,
> including, but not limited to, operations and programs. Proactive
> public affairs programs may utilize a variety of communication media,
> including public workshops, meetings or hearings, open houses,
> newsletters, press releases, conferences, audio/visual presentations,
> speeches, forums, tours, and other appropriate stakeholder
> interactions.
>
> \(c\) The Contractor\'s internal procedures must ensure that all
> releases of information to the public and news media are coordinated
> through, and approved by, a management official at an appropriate
> level within the Contractor\'s organization.
>
> \(d\) The Contractor must comply with DOE procedures for obtaining
> advance clearances on oral, written, and audio/visual informational
> material prepared for public dissemination or use.
>
> \(e\) Unless prohibited by law, and in accordance with procedures
> defined by the Contracting Officer, the Contractor must notify the
> Contracting Officer and appropriate DOE public affairs personnel of
> communications or contacts with Members of Congress relating to the
> effort performed under the contract.
>
> \(f\) In accordance with procedures defined by the Contracting
> Officer, the Contractor must notify the Contracting Officer and
> appropriate DOE public affairs personnel of activities or situations
> that may attract regional or national news media attention and of
> non-routine inquiries from national news media relating to the effort
> performed under the contract.
>
> \(g\) In releases of information to the public and news media, the
> Contractor must fully and accurately identify the Contractor\'s
> relationship to the Department and fully and accurately credit the
> Department for its role in funding programs and projects resulting in
> scientific, technical, and other achievements.

# DEAR 952.208‑7 TAGGING OF LEASED VEHICLES (APR 1984)

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

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

# DEAR 952.209‑72 ORGANIZATIONAL CONFLICTS OF INTEREST (JUN 1997) - ALTERNATE I

> \(a\) Purpose. The purpose of this clause is to ensure that the
> Contractor (1) is not biased because of its financial, contractual,
> organizational, or other interests which relate to the work under this
> contract, and (2) does not obtain any unfair competitive advantage
> over other parties by virtue of its performance of this contract.
>
> \(b\) Scope. The restrictions described herein shall apply to
> performance or participation by the Contractor and any of its
> affiliates or their successors in interest (hereinafter collectively
> referred to as "contractor") in the activities covered by this clause
> as a prime contractor, subcontractor, cosponsor, joint venture,
> consultant, or in any similar capacity. For the purpose of this
> clause, affiliation occurs when a business concern is controlled by or
> has the power to control another or when a third party has the power
> to control both.
>
> \(1\) Use of Contractor's Work Product.
>
> \(i\) The Contractor shall be ineligible to participate in any
> capacity in Department contracts, subcontracts, or proposals therefor
> (solicited and unsolicited) which stem directly from the Contractor's
> performance of work under this Contract for a period of five years
> after the completion of this contract. Furthermore, unless so directed
> in writing by the Contracting Officer, the Contractor shall not
> perform any advisory and assistance services work under this Contract
> on any of its products or services or the products or services of
> another firm if the Contractor is or has been substantially involved
> in their development or marketing. Nothing in this subparagraph shall
> preclude the Contractor from competing for follow-on contracts for
> advisory and assistance services.
>
> \(ii\) If, under this contract, the Contractor prepares a complete or
> essentially complete statement of work or specifications to be used in
> competitive acquisitions, the Contractor shall be ineligible to
> perform or participate in any capacity in any contractual effort which
> is based on such statement of work or specifications. The Contractor
> shall not incorporate its products or services in such statement of
> work or specifications unless so directed in writing by the
> Contracting Officer, in which case, the restriction in this
> subparagraph shall not apply.
>
> \(iii\) Nothing in this paragraph shall preclude the Contractor from
> offering or selling its standard and commercial items to the
> Government.
>
> \(2\) Access to and use of information.
>
> \(i\) If the Contractor, in the performance of this contract, obtains
> access to information, such as Department plans, policies, reports,
> studies, financial plans, internal data protected by the Privacy Act
> of 1974 (5 U.S.C. 552a), or data which has not been released or
> otherwise made available to the public, the Contractor agrees that
> without prior written approval of the Contracting Officer, it shall
> not:
>
> \(A\) use such information for any private purpose unless the
> information has been released or otherwise made available to the
> public;
>
> \(B\) compete for the work for the Department based on such
> information for a period of six (6) months after either the completion
> of this Contract or until such information is released or otherwise
> made available to the public, whichever is first;
>
> \(C\) submit an unsolicited proposal to the Government which is based
> on such information until one year after such information is released
> or otherwise made available to the public; and
>
> \(D\) release such information unless such information has previously
> been released or otherwise made available to the public by the
> Department.
>
> \(ii\) In addition, the Contractor agrees that to the extent it
> receives or is given access to proprietary data, data protected by the
> Privacy Act of 1974 (5 U.S.C. 552a), or other confidential or
> privileged technical, business or financial information under this
> contract, it shall treat such information in accordance with any
> restrictions imposed on such information.
>
> \(iii\) The Contractor may use technical data it first produces under
> this Contract for its private purposes consistent with paragraphs
> (B)(2)(I) (A) and (D) of this clause and the patent, rights in data,
> and security provisions of this contract.
>
> \(c\) Disclosure after award.
>
> \(1\) The Contractor agrees that, if changes, including additions, to
> the facts disclosed by it prior to award of this contract, occur
> during the performance of this contract, it shall make an immediate
> and full disclosure of such changes in writing to the Contracting
> Officer. Such disclosure may include a description of any action which
> the Contractor has taken or proposes to take to avoid, neutralize, or
> mitigate any resulting conflict of interest. The Department may,
> however, terminate the Contract for convenience if it deems such
> termination to be in the best interest of the Government.
>
> \(2\) In the event that the Contractor was aware of facts required to
> be disclosed or the existence of an actual or potential organizational
> conflict of interest and did not disclose such facts or such conflict
> of interest to the Contracting Officer, DOE may terminate this
> Contract for default.
>
> \(d\) Remedies. For breach of any of the above restrictions or for
> nondisclosure or misrepresentation of any facts required to be
> disclosed concerning this contract, including the existence of an
> actual or potential organizational conflict of interest at the time of
> or after award, the Government may terminate the Contract for default,
> disqualify the Contractor from subsequent related contractual efforts,
> and pursue such other remedies as may be permitted by law or this
> contract.
>
> \(e\) Waiver. Requests for waiver under this clause shall be directed
> in writing to the Contracting Officer and shall include a full
> description of the requested waiver and the reasons in support
> thereof. If it is determined to be in the best interests of the
> Government, the Contracting Officer may grant such a waiver in
> writing.
>
> \(f\) Subcontracts.
>
> \(1\) The contractor shall include a clause, substantially similar to
> this clause, including this paragraph (f), in subcontracts expected to
> exceed the simplified acquisition threshold determined in accordance
> with FAR Part 13 and involving the performance of advisory and
> assistance services as that term is defined at FAR 37.201. The terms
> "contract," "contractor," and "Contracting Officer" shall be
> appropriately modified to preserve the Government's rights.
>
> \(2\) Prior to the award under this Contract of any such subcontracts
> for advisory and assistance services, the contractor shall obtain from
> the proposed subcontractor or consultant the disclosure required by
> DEAR 909.507-1, and shall determine in writing whether the interests
> disclosed present an actual or significant potential for an
> organizational conflict of interest. Where an actual or significant
> potential organizational conflict of interest is identified, the
> contractor shall take actions to avoid, neutralize, or mitigate the
> organizational conflict to the satisfaction of the contractor. If the
> conflict cannot be avoided or neutralized, the contractor must obtain
> the approval of the DOE Contracting Officer prior to entering into the
> subcontract.

# DEAR 952.211-71 PRIORITIES AND ALLOCATIONS (ATOMIC ENERGY) (JUN 1996)

> The Contractor shall follow the provisions of Defense Priorities and
> Allocations System (DPAS) regulation (15 CFR Part 700) in obtaining
> controlled materials and other products and materials needed to fill
> this contract.

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

> \(a\) This contract may be eligible for priorities and allocations
> support, as provided for by section 101(c) of the Defense Production
> Act of 1950, as amended by the Energy Policy and Conservation Act
> (Pub. L. 94-163, 42 U.S.C. 6201 *et seq*.) if its purpose is
> determined to be to maximize domestic energy supplies. Eligibility is
> dependent on an executive decision on a case-by-case basis with the
> decision being jointly made by the Departments of Energy and Commerce.
>
> \(b\) DOE regulations regarding material allocations and priority
> performance under contracts or orders to maximize domestic energy
> supplies can be found at Part 216 of Title 10 of the Code of Federal
> Regulations (10 CFR Part 216).
>
> \(c\) Additional guidance is provided by DOE Publication MA-0192,
> \"Priorities and Allocations Support for Energy: Keeping Energy
> Programs on Schedule,\" dated August 1985, as it may from time to time
> be revised. Copies may be obtained by written request to: Department
> of Energy, Office of Scientific and Technical Information (OSTI), Post
> Office Box 62, Oak Ridge, Tennessee 37830.

# DEAR 952.215-70 KEY PERSONNEL (DEC 2000)

> \(a\) The personnel listed below or elsewhere in this contract
> (Appendix D) are considered essential to the work being performed
> under this contract. Before removing, replacing, or diverting any of
> the listed or specified personnel, the Contractor must: (1) Notify the
> Contracting Officer reasonably in advance; (2) submit justification
> (including proposed substitutions) in sufficient detail to permit
> evaluation of the impact on this contract; and (3) obtain the
> Contracting Officer\'s written approval. Notwithstanding the
> foregoing, if the Contractor deems immediate removal or suspension of
> any member of its management team is necessary to fulfill its
> obligation to maintain satisfactory standards of employee competency,
> conduct, and integrity, the Contractor may remove or suspend such
> person at once, although the Contractor must notify Contracting
> Officer prior to or concurrently with such action.
>
> \(b\) The list of personnel may, with the consent of the contracting
> parties, be amended from time to time during the course of the
> contract to add or delete personnel.

# DEAR 952.217-70 ACQUISITION OF REAL PROPERTY (APR 1984) (See H-30)

> \(a\) Notwithstanding any other provisions of the Contract, the prior
> approval of the Contracting Officer shall be obtained when, in
> performance of this Contract, the Contractor acquires or proposes to
> acquire use of real property by:
>
> \(1\) Purchase, on the Government's behalf or in the Contractor's own
> name, with title eventually vesting in the Government.
>
> \(2\) Lease, and the Government assumes liability for, or will
> otherwise pay for the obligation under the lease as a reimbursable
> contract cost.
>
> \(3\) Acquisition of temporary interest through easement, license or
> permit, and the Government funds the entire cost of the temporary
> interest.
>
> \(b\) Justification of and execution of any real property acquisitions
> shall be in accordance and compliance with directions provided by the
> Contracting Officer.
>
> \(c\) The substance of this clause, including this paragraph (c),
> shall be included in any subcontract occasioned by this contract under
> which property described in paragraph (a) of this clause shall
> acquired.

# DEAR 952.223-75 PRESERVATION OF INDIVIDUAL OCCUPATIONAL RADIATION EXPOSURE RECORDS (APR 1984)

> Individual occupational radiation exposure records generated in the
> performance of work under this Contract shall be subject to inspection
> by DOE and shall be preserved by the contractor until disposal is
> authorized by DOE or at the option of the contractor delivered to DOE
> upon completion or termination of the contract. If the contractor
> exercises the foregoing option, title to such records shall vest in
> DOE upon delivery.

# DEAR 952.224‑70 PAPERWORK REDUCTION ACT (APR 1994)

> \(a\) In the event that it subsequently becomes a contractual
> requirement to collect or record information calling either for answer
> to identical questions from 10 or more persons other than Federal
> employ­ees, or information from Federal employees which is to be used
> for statis­tical compilations of general public interest, the Paperwork
> Reduction Act will apply to this contract. No plan, ques­tionnaire,
> interview guide, or other similar device for collecting information
> (whether repetitive or single‑time) may be used without first
> obtaining clear­ance from the Office of Management and Budget (OMB).
>
> \(b\) The Contractor shall request the required OMB clearance from the
> Contracting Officer before expending any funds or making public
> contacts for the collection of data. The authority to expend funds and
> to proceed with the collection of data shall be in writing by the
> Con­tracting Officer. The Contractor must plan at least 90 days for OMB
> clearance. Excessive delay caused by the Government which arises out
> of causes beyond the control and without the fault or negligence of
> the Contractor will be considered in accordance with the clause
> entitled \"Excusable Delays,\" if such clause is applicable. If not,
> the period of performance may be extended pursuant to this clause if
> approved by the Contracting Officer.

# DEAR 952.226-74 DISPLACED EMPLOYEE HIRING PREFERENCE (JUN 1997)

> \(a\) Definition.
>
> Eligible employee means a current or former employee of a contractor
> or subcontractor employed at a Department of Energy Defense Nuclear
> Facility (1) whose position of employment has been, or will be,
> involuntarily terminated (except if terminated for cause), (2) who has
> also met the eligibility criteria contained in the Department of
> Energy guidance for contractor work force restructuring, as may be
> amended or supplemented from time to time, and (3) who is qualified
> for a particular job vacancy with the Department or one of its
> contractors with respect to work under its Contract with the
> Department at the time the particular position is available.
>
> \(b\) Consistent with Department of Energy guidance for contractor
> work force restructuring, as may be amended or supplemented from time
> to time, the contractor agrees that it will provide a preference in
> hiring to an eligible employee to the extent practicable for work
> performed under this contract.
>
> \(c\) The requirements of this clause shall be included in
> subcontracts at any tier (except for subcontracts for commercial items
> pursuant to the Contract clause entitled "Definitions," expected to
> exceed \$500,000.

# DEAR 952.250‑70 NUCLEAR HAZARDS INDEMNITY AGREEMENT (JUN 1996)

> \(a\) *Authority*. This clause is incorporated into this Contract
> pursuant to the authority contained in subsection 170d. of the Atomic
> Energy Act of 1954, as amended (hereinafter called the Act.)
>
> \(b\) *Definitions*. The definitions set out in the Act shall apply to
> this clause.
>
> \(c\) *Financial Protection*. Except as hereafter permitted or
> required in writing by DOE, the Contractor will not be required to
> provide or maintain, and will not provide or maintain at Government
> expense, any form of financial protection to cover public liability,
> as described in paragraph (d)(2) below. DOE may, however, at any time
> require in writing that the Contractor provide and maintain financial
> protection of such a type and in such amount as DOE shall determine to
> be appropriate to cover such public liability, provided that the costs
> of such financial protection are reimbursed to the Contractor by DOE.
>
> \(d\) *Indemnification*.
>
> \(1\) To the extent that the Contractor and other persons indemnified
> are not compensated by any financial protection permitted or required
> by DOE, DOE will indemnify the Contractor and other persons
> indemnified against (i) claims for public liability as described in
> subparagraph (d)(2) of this clause; and (ii) such legal costs of the
> Contractor and other persons indemnified as are approved by DOE,
> provided that DOE\'s liability, including such legal costs, shall not
> exceed the amount set forth in section 170e.(1)(B) of the Act in the
> aggregate for each nuclear incident or precautionary evacuation
> occurring within the United States or \$100 million in the aggregate
> for each nuclear incident occurring outside the United States,
> irrespective of the number of persons indemnified in connection with
> this contract.
>
> \(2\) The public liability referred to in subparagraph (d)(1) of this
> clause is public liability as defined in the Act which (i) arises out
> of or in connection with the activities under this contract, including
> transportation; and (ii) arises out of or results from a nuclear
> incident or precautionary evacuation, as those terms are defined in
> the Act.
>
> \(e\) Waiver of Defenses.
>
> \(1\) In the event of a nuclear incident, as defined in the Act,
> arising out of nuclear waste activities, as defined in the Act, the
> Contractor, on behalf of itself and other persons indemnified, agrees
> to waive any issue or defense as to charitable or governmental
> immunity.
>
> \(2\) In the event of an extraordinary nuclear occurrence which:
>
> \(i\) Arises out of, results from, or occurs in the course of the
> construction, possession, or operation of a production or utilization
> facility; or
>
> \(ii\) Arises out of, results from, or occurs in the course of
> transportation of source material, by‑product material, or special
> nuclear material to or from a production or utilization facility; or
>
> \(iii\) Arises out of or results from the possession, operation, or
> use by the Contractor or a subcontractor of a device utilizing special
> nuclear material or by‑product material, during the course of the
> Contract activity; or
>
> \(iv\) Arises out of, results from, or occurs in the course of nuclear
> waste activities, the Contractor, on behalf of itself and other
> persons indemnified, agrees to waive:
>
> \(A\) Any issue or defense as to the conduct of the claimant
> (including the conduct of persons through whom the claimant derives
> its cause of action) or fault or persons indemnified, including, but
> not limited to:
>
> *(1)* Negligence;
>
> *(2)* Contributory negligence;
>
> *(3)* Assumption of risk; or
>
> *(4)* Unforeseeable intervening causes, whether involving the conduct
> of a third person or an act of God;
>
> \(B\) Any issue or defense as to charitable or governmental immunity;
> and

\(C\) Any issue or defense based on any statute of limitations, if suit
is instituted within 3 years from the date on which the claimant first
knew, or reasonably could have known, of his injury or change and the
cause thereof. The waiver of any such issue or defense shall be
effective regardless of whether such issue or defense may otherwise be
deemed jurisdictional or relating to an element in the cause of action.
The waiver shall be judicially enforceable in accordance with its terms
by the claimant against the person indemnified.

\(v\) The term extraordinary nuclear occurrence means an event which DOE
has determined to be an extraordinary nuclear occurrence as defined in
the Act. A determination of whether or not there has been an
extraordinary nuclear occurrence will be made in accordance with the
procedures in 10 CFR part 840.

\(vi\) For the purposes of that determination, \"offsite\" as that term
is used in 10 CFR part 840 means away from \"the contract location\"
which phrase means any DOE facility, installation, or site at which
contractual activity under this Contract is being carried on, and any
Contractor‑owned or controlled facility, installation, or site at which
the Contractor is engaged in the performance of contractual activity
under this contract.

\(3\) The waivers set forth above:

\(i\) Shall be effective regardless of whether such issue or defense may
otherwise be deemed jurisdictional or relating to an element in the
cause of action;

\(ii\) Shall be judicially enforceable in accordance with its terms by
the claimant against the person indemnified;

\(iii\) Shall not preclude a defense based upon a failure to take
reasonable steps to mitigate damages;

\(iv\) Shall not apply injury or damage to a claimant or to a
claimant\'s property which is intentionally sustained by the claimant or
which results from a nuclear incident intentionally and wrongfully
caused by the claimant;

\(v\) Shall not apply to injury to a claimant who is employed at the
site of and in connection with the activity where the extraordinary
nuclear occurrence takes place, if benefits therefor are either payable
or required to be provided under any workmen\'s compensation or
occupational disease law;

\(vi\) Shall not apply to any claim resulting from a nuclear incident
occurring outside the United States;

\(vii\) Shall be effective only with respect to those obligations set
forth in this clause and in insurance policies, contracts or other proof
of financial protection; and

\(viii\) Shall not apply to, or prejudice the prosecution or defense of,
any claim or portion of claim which is not within the protection
afforded under (A) the limit of liability provisions under subsection
170e. of the Act, and (B) the terms of this agreement and the terms of
insurance policies, contracts, or other proof of financial protection.

> \(f\) *Notification and litigation of claims*. The Contractor shall
> give immediate written notice to DOE of any known action or claim
> filed or made against the Contractor or other person indemnified for
> public liability as defined in paragraph (d)(2). Except as otherwise
> directed by DOE, the Contractor shall furnish promptly to DOE, copies
> of all pertinent papers received by the Contractor or filed with
> respect to such actions of claims. DOE shall have the right to, and
> may collaborate with, the Contractor and any other person indemnified
> in the settlement or defense of any action or claim and shall have the
> right to (1) require the prior approval of DOE for the payment of any
> claim that DOE may be required to indemnify hereunder; and (2) appear
> through the Attorney General on behalf of the Contractor or other
> person indemnified in any action brought upon any claim that DOE may
> be required to indemnify hereunder, take charge of such action, and
> settle or defend any such action. If the settlement or defense of any
> such action or claim is undertaken by DOE, the Contractor or other
> person indemnified shall furnish all reasonable assistance in
> effecting a settlement or asserting a defense.
>
> \(g\) *Continuity of DOE obligations*. The obligations of DOE under
> this clause shall not be affected by any failure on the part of the
> Contractor to fulfill its obligation under this Contract and shall be
> unaffected by the death, disability, or termination of existence of
> the contractor, or by the completion, termination or expiration of
> this contract.
>
> \(h\) *Effect of other clauses*. The provisions of this clause shall
> not be limited in any way by, and shall be interpreted without
> reference to, any other clause of this contract, including the clause
> entitled "Contract Disputes," provided, however, that this clause
> shall be subject to the clauses entitled "Covenant Against Contingent
> Fees," to the portion of a clause of this Contract providing
> specifically for examination of records relating to this Contract by
> the Comptroller General, and to any provisions that are later added to
> this Contract as required by applicable Federal law, including
> statutes, executive orders and regulations, to be included in Nuclear
> Hazards Indemnity Agreements.
>
> \(i\) *Civil penalties*. The Contractor and its subcontractors and
> suppliers who are indemnified under the provisions of this clause are
> subject to civil penalties, pursuant to 234A of the Act, for
> violations of applicable DOE nuclear‑safety related rules,
> regulations, or orders.
>
> \(j\) *Criminal penalties*. Any individual director, officer, or
> employee of the Contractor or of its subcontractors and suppliers who
> are indemnified under the provisions of this clause are subject to
> criminal penalties, pursuant to 223c. of the Act, for knowing and
> willful violation of the Atomic Energy Act of 1954, as amended, and
> applicable DOE nuclear safety‑related rules, regulations or orders
> which violation results in, or, if undetected, would have resulted in
> a nuclear incident.
>
> \(k\) *Inclusion in subcontracts*. The Contractor shall insert this
> clause in any subcontract which may involve the risk of public
> liability, as that term is defined in the Act and further described in
> paragraph (d)(2) above. However, this clause shall not be included in
> subcontracts in which the subcontractor is subject to Nuclear
> Regulatory Commission (NRC) financial protection requirements under
> section 170b. of the Act or NRC agreements of indemnification under
> section 170c. or k. of the Act for the activities under the
> subcontract.
>
> \(l\) *Effective Date*. This indemnity agreement shall be applicable
> with respect to nuclear incidents occurring on or after October 1,
> 1990.
>
> \(m\) To the extent that the Contractor is compensated by any
> financial protection, or is indemnified pursuant to this clause, or is
> effectively relieved of public liability by an order or orders
> limiting same, pursuant to 170e of the Act, the provisions of the
> clause providing general authority indemnity shall not apply.

# DEAR 952.251-70 CONTRACTOR EMPLOYEE TRAVEL DISCOUNTS (DEC 2000)

> \(a\) The contractor shall take advantage of the travel discounts
> offered to Federal contractor employee travelers by AMTRAK, hotels,
> motels, or car rental companies, when use of such discounts would
> result in lower overall trip costs and the discounted services are
> reasonably available. Vendors providing these services may require the
> contractor employee to furnish them a letter of identification signed
> by the authorized contracting officer.
>
> \(b\) Contracted airlines. Contractors are not eligible for GSA
> contract city pair fares.
>
> \(c\) Discount rail service. AMTRAK voluntarily offers discounts to
> Federal travelers on official business and sometimes extends those
> discounts to Federal contractor employees.
>
> \(d\) Hotels/motels. Many lodging providers extend their discount
> rates for Federal employees to Federal contractor employees.
>
> \(e\) Car rentals. The Military Traffic Management Command (MTMC) of
> the Department of Defense negotiates rate agreements with car rental
> companies that are available to Federal travelers on official
> business. Some car rental companies extend those discounts to Federal
> contractor employees.
>
> \(f\) Obtaining travel discounts.
>
> \(1\) To determine which vendors offer discounts to Government
> contractors, the contractor may review commercial publications such as
> the Official Airline guides Official Traveler, Innovata, or National
> Telecommunications. The contractor may also obtain this information
> from GSA contract Travel Management Centers or the Department of
> Defense\'s Commercial Travel Offices.
>
> \(2\) The vendor providing the service may require the Government
> contractor to furnish a letter signed by the contracting officer. The
> following illustrates a standard letter of identification.
>
> **(OFFICIAL AGENCY LETTERHEAD)**
>
> TO: Participating Vendor
>
> SUBJECT: OFFICIAL TRAVEL OF GOVERNMENT CONTRACTOR
>
> **(FULL NAME OF TRAVELER)**, the bearer of this letter is an employee
> of **(COMPANY NAME)** which has a contract with this agency under
> Government contract **(CONTRACT NUMBER)**. During the period of the
> contract **(GIVE DATES)**, AND WITH THE APPROVAL OF THE CONTRACT
> VENDOR, the employee is eligible and authorized to use available
> travel discount rates in accordance with Government contracts and/or
> agreements. Government Contract City Pair fares are not available to
> Contractors.
>
> **SIGNATURE**, Title and telephone number of Contracting Officer

# DEAR 970.5203-1 MANAGEMENT CONTROLS (DEC 2000)

> \(a\) (1) The contractor shall be responsible for maintaining, as an
> integral part of its organization, effective systems of management
> controls for both administrative and programmatic functions.
> Management controls comprise the plan of organization, methods and
> procedures adopted by management to reasonably ensure that: the
> mission and functions assigned to the contractor are properly
> executed; efficient and effective operations are promoted; resources
> are safeguarded against waste, loss, mismanagement, unauthorized use,
> or misappropriation; all encumbrances and costs that are incurred
> under the contract and fees that are earned in compliance with
> applicable clauses and other current terms, conditions, and intended
> purposes; all collections accruing to the contractor in connection
> with the work under this contract, expenditures, and all other
> transactions and assets are properly recorded, managed, and reported;
> and financial, statistical, and other reports necessary to maintain
> accountability and managerial control are accurate, reliable, and
> timely.
>
> \(2\) The systems of controls employed by the contractor shall be
> documented and satisfactory to DOE.

(3) Such systems shall be an integral part of the contractor\'s
    management functions, including defining specific roles and
    responsibilities for each level of management, and holding employees
    accountable for the adequacy of the management systems and controls
    in their areas of assigned responsibility.

(4) The contractor shall, as part of the internal audit program required
    elsewhere in this contract, periodically review the management
    systems and controls employed in programs and administrative areas
    to ensure that they are adequate to provide reasonable assurance
    that the objectives of the systems are being accomplished and that
    these systems and controls are working effectively.

> \(b\) The contractor shall be responsible for maintaining, as part of
> its operational responsibilities, a baseline quality assurance program
> that implements documented performance, quality standards, and control
> and assessment techniques.

# DEAR 970.5203-3 CONTRACTOR\'S ORGANIZATION (DEC 2000) (DEVIATION)

> \(a\) [Organization chart]{.underline}. As promptly as possible after
> the execution of this Contract, the contractor shall furnish to the
> contracting officer a chart showing the names, duties, and
> organization of personnel at the Executive Management, Division and
> Center Director level to be employed in connection with the work, and
> shall furnish supplemental information to reflect any changes as they
> occur.
>
> \(b\) [Supervisory representative of contractor]{.underline}. Unless
> otherwise directed by the contracting officer, a competent full-time
> resident supervisory representative of the contractor satisfactory to
> the contracting officer shall be in charge of the work at the site,
> and any work off-site, at all times. For purposes of this Contract,
> the President, Laboratories Director of Sandia National Laboratories
> is the resident supervisory representative of the contractor.
>
> \(c\) [Control of employees]{.underline}. The contractor shall be
> responsible for maintaining satisfactory standards of employee
> competency, conduct, and integrity and shall be responsible for taking
> such disciplinary action with respect to its employees as may be
> necessary. In the event the contractor fails to remove any Division
> Vice President or Center Director from the contract work whom DOE
> deems incompetent, careless, or insubordinate, or whose continued
> employment on the work is deemed by DOE to be inimical to the
> Department\'s mission, the contracting officer may require, with the
> approval of the Administrator of the NNSA or the Secretary of Energy,
> the contractor to remove the employee from work under the contract.
> This includes the right to direct the contractor to remove its most
> senior key person from work under the contract for serious contract
> performance deficiencies. Furthermore, nothing contained in this
> paragraph (c) shall in any way impair the statutory or contractual
> collective bargaining rights of union-represented Sandia employees.
>
> \(d\) [Standards and procedures]{.underline}. The contractor shall
> establish such standards and procedures as are necessary to implement
> the requirements set forth in 48 CFR 970.0371. Such standards and
> procedures shall be subject to the approval of the contracting
> officer.
>
> \(e\) Nothing in this clause or its implementation is intended to
> conflict with 42 U.S.C. §7274p, or to otherwise affect the scientific
> integrity of persons required to provide independent technical
> judgments to provide the President or the Congress assurances on the
> safety, security, reliability, or effectiveness of the US nuclear
> weapons stockpile.

# DEAR 970.5204-1 COUNTERINTELLIGENCE (DEC 2000)

> \(a\) The contractor shall take all reasonable precautions in the work
> under this contract to protect DOE programs, facilities, technology,
> personnel, unclassified sensitive information and classified matter
> from foreign intelligence threats and activities conducted for
> governmental or industrial purposes, in accordance with DOE Order
> 5670.3, Counterintelligence Program; Executive Order 12333, U.S.
> Intelligence Activities; and other pertinent national and Departmental
> Counterintelligence requirements.
>
> \(b\) The contractor shall appoint a qualified employee(s) to function
> as the Contractor Counterintelligence Officer. The Contractor
> Counterintelligence Officer will be responsible for conducting
> defensive Counterintelligence briefings and debriefings of employees
> traveling to foreign countries or interacting with foreign nationals;
> providing thoroughly documented written reports relative to targeting,
> suspicious activity and other matters of Counterintelligence interest;
> immediately reporting targeting, suspicious activity and other
> Counterintelligence concerns to the DOE Headquarters
> Counterintelligence Division; and providing assistance to other
> elements of the U.S. Intelligence Community as stated in the
> aforementioned Executive Order, the DOE Counterintelligence Order, and
> other pertinent national and Departmental Counterintelligence
> requirements.

# DEAR 970.5204-2 LAWS, REGULATIONS, AND DOE DIRECTIVES (DEC 2000) (DEVIATION)

> \(a\) In performing work under this contract, the contractor shall
> comply with the requirements of applicable Federal, State, and local
> laws and regulations (including DOE regulations), unless relief has
> been granted in writing by the appropriate regulatory agency.
>
> \(b\) In performing work under this contract, the contractor shall
> comply with the requirements of those Department of Energy directives,
> or parts thereof, identified in the List of Applicable Directives (the
> List) appended to this contract. Except as otherwise provided for in
> paragraph (d) of this clause, the contracting officer may, from time
> to time and at any time, revise the List by unilateral modification to
> the contract to add, modify, or delete specific requirements. Prior to
> revising the List, the contracting officer shall notify the contractor
> in writing of the Department\'s intent to revise the List and provide
> the contractor with the opportunity to assess the effect of the
> contractor\'s compliance with the revised list on contract cost and
> funding, technical performance, and schedule; and identify any
> potential inconsistencies between the revised list and the other terms
> and conditions of the contract. Within 30 days after receipt of the
> contracting officer\'s notice, the contractor shall advise the
> contracting officer in writing of the potential impact of the
> contractor\'s compliance with the revised list. Based on the
> information provided by the contractor and any other information
> available, the contracting officer shall decide whether to revise the
> List and so advise the contractor not later than 30 days prior to the
> effective date of the revision of the List. The contractor and the
> contracting officer shall identify and, if appropriate, agree to any
> changes to other contract terms and conditions, including cost and
> schedule, associated with the revision of the List and fee may be
> adjusted pursuant to the clause of this contract entitled,
> \"Changes.\"
>
> \(c\) Environmental, safety, and health (ES&H) requirements
> appropriate for work conducted under this contract may be determined
> by a DOE approved process to evaluate the work and the associated
> hazards and identify an appropriately tailored set of standards,
> practices, and controls, such as a tailoring process included in a DOE
> approved Safety Management System implemented under the clause
> entitled \"Integration of Environmental, Safety, and Health into Work
> Planning and Execution.\" When such a process is used, the set of
> tailored (ES&H) requirements, as approved by DOE pursuant to the
> process, shall be incorporated into the List as contract requirements
> with full force and effect. These requirements shall supersede, in
> whole or in part, the contractual environmental, safety, and health
> requirements previously made applicable to the contract by the List.
> If the tailored set of requirements identifies an alternative
> requirement varying from an ES&H requirement of an applicable law or
> regulation, the contractor shall request an exemption or other
> appropriate regulatory relief specified in the regulation.
>
> \(d\) Except as otherwise directed by the contracting officer, the
> contractor shall procure all necessary permits or licenses required
> for the performance of work under this contract.
>
> \(e\) Regardless of the performer of the work, the contractor is
> responsible for compliance with the requirements of this clause. The
> contractor is responsible for flowing down the requirements of this
> clause to subcontracts at any tier to the extent necessary to ensure
> the contractor\'s compliance with the requirements.

# DEAR 970.5204-3 ACCESS TO AND OWNERSHIP OF RECORDS (DEC 2000)

> \(a\) Government-owned records. Except as provided in paragraph (b) of
> this clause, all records acquired or generated by the contractor in
> its performance of this contract shall be the property of the
> Government and shall be delivered to the Government or otherwise
> disposed of by the contractor either as the contracting officer may
> from time to time direct during the progress of the work or, in any
> event, as the contracting officer shall direct upon completion or
> termination of the contract.
>
> \(b\) Contractor-owned records. The following records are considered
> the property of the contractor and are not within the scope of
> paragraph (a) of this clause.
>
> \(1\) Employment-related records (such as workers\' compensation
> files; employee relations records, records on salary and employee
> benefits; drug testing records, labor negotiation records; records on
> ethics, employee concerns, and other employee related investigations
> conducted under an expectation of confidentiality; employee assistance
> program records; and personnel and medical/ health-related records and
> similar files), and non-employee patient medical/health related
> records, except for those records described by the contract as being
> maintained in Privacy Act systems of records
>
> \(2\) Confidential contractor financial information, and
> correspondence between the contractor and other segments of the
> contractor located away from the DOE facility (i.e., the contractor\'s
> corporate headquarters);
>
> \(3\) Records relating to any procurement action by the contractor,
> except for records that under 48 CFR 970.5232-3, Accounts, Records,
> and Inspection, are described as the property of the Government; and
>
> \(4\) Legal records, including legal opinions, litigation files, and
> documents covered by the attorney-client and attorney work product
> privileges; and
>
> \(5\) The following categories of records maintained pursuant to the
> technology transfer clause of this contract:
>
> \(i\) Executed license agreements, including exhibits or appendices
> containing information on royalties, royalty rates, other financial
> information, or commercialization plans, and all related documents,
> notes and correspondence.
>
> \(ii\) The contractor\'s protected Cooperative Research and
> Development Agreement (CRADA) information and appendices to a CRADA
> that contain licensing terms and conditions, or royalty or royalty
> rate information.
>
> \(iii\) Patent, copyright, mask work, and trademark application files
> and related contractor invention disclosures, documents and
> correspondence, where the contractor has elected rights or has
> permission to assert rights and has not relinquished such rights or
> turned such rights over to the Government.
>
> \(c\) Contract completion or termination. In the event of completion
> or termination of this contract, copies of any of the contractor-owned
> records identified in paragraph (b) of this clause, upon the request
> of the Government, shall be delivered to DOE or its designees,
> including successor contractors. Upon delivery, title to such records
> shall vest in DOE or its designees, and such records shall be
> protected in accordance with applicable federal laws (including the
> Privacy Act), as appropriate.
>
> \(d\) Inspection, copying, and audit of records. All records acquired
> or generated by the contractor under this contract in the possession
> of the contractor, including those described at paragraph (b) of this
> clause, shall be subject to inspection, copying, and audit by the
> Government or its designees at all reasonable times, and the
> contractor shall afford the Government or its designees reasonable
> facilities for such inspection, copying, and audit; provided, however,
> that upon request by the contracting officer, the contractor shall
> deliver such records to a location specified by the contracting
> officer for inspection, copying, and audit. The Government or its
> designees shall use such records in accordance with applicable federal
> laws (including the Privacy Act), as appropriate.
>
> \(e\) Applicability. Paragraphs (b), (c), and (d) of this clause apply
> to all records without regard to the date or origination of such
> records.
>
> \(f\) Records retention standards. Special records retention
> standards, described at DOE Order 200.1, Information Management
> Program (version in effect on effective date of contract), are
> applicable for the classes of records described therein, whether or
> not the records are owned by the Government or the contractor. In
> addition, the contractor shall retain individual radiation exposure
> records generated in the performance of work under this contract until
> DOE authorizes disposal. The Government may waive application of these
> record retention schedules, if, upon termination or completion of the
> contract, the Government exercises its right under paragraph (c) of
> this clause to obtain copies and delivery of records described in
> paragraphs (a) and (b) of this clause.
>
> \(g\) Subcontracts. The contractor shall include the requirements of
> this clause in all subcontracts that are of a cost-reimbursement type
> if any of the following factors is present:
>
> \(1\) The value of the subcontract is greater than \$2 million (unless
> specifically waived by the contracting officer)
>
> \(2\) The contracting officer determines that the subcontract is, or
> involves, a critical task related to the contract; or
>
> \(3\) The subcontract includes 48 CFR 970.5223-1, Integration of
> Environment, Safety, and Health into Work Planning and Execution, or
> similar clause.

# DEAR 970.5208-1 PRINTING (DEC 2000)

> \(a\) To the extent that duplicating or printing services may be
> required in the performance of this contract, the Contractor shall
> provide or secure such services in accordance with the Government
> Printing and Binding Regulations, Title 44 of the U.S. Code, and DOE
> Directives relative thereto.
>
> \(b\) The term \"Printing\" includes the following processes:
> Composition, platemaking, presswork, binding, microform publishing, or
> the end items produced by such processes. Provided, however, that
> performance of a requirement under this contract involving the
> duplication of less than 5,000 copies of a single page, or no more
> than 25,000 units in the aggregate of multiple pages, will not be
> deemed to be printing.
>
> \(c\) Printing services not obtained in compliance with this guidance
> shall result in the cost of such printing being disallowed.
>
> \(d\) The Contractor shall include the substance of this clause in all
> subcontracts hereunder which require printing (as that term is defined
> in Title I of the U.S. Government Printing and Binding Regulations).

# DEAR 970.5215-3 CONDITIONAL PAYMENT OF FEE, PROFIT, OR INCENTIVES (DEC 2000) - ALTERNATE I (DEC 2000) (DEVIATION)

> In order for the Contractor to receive all otherwise earned fee, fixed
> fee, profit, or share of cost savings under the contract in an
> evaluation period, the Contractor must meet the minimum requirements
> in paragraphs (a) and (b) of this clause and if Alternate I is
> applicable (a) through (d) of this clause. If the Contractor does not
> meet the minimum requirements, the NNSA Fee Determination Official
> (FDO) may make a unilateral determination to reduce the evaluation
> period\'s otherwise earned fee, fixed fee, profit or share of cost
> savings as described in the following paragraphs of this clause.
>
> \(a\) *Minimum requirements for Environment, Safety & Health (ES&H)
> Program*. The Contractor shall develop, obtain DOE approval of, and
> implement a Safety Management System in accordance with the provisions
> of the clause entitled, \"Integration of Environment, Safety and
> Health into Work Planning and Execution,\" if included in the
> contract, or as otherwise agreed to with the contracting officer. The
> minimum performance requirements of the system will be set forth in
> the approved Safety Management System, or similar document. If the
> Contractor fails to obtain approval of the Safety Management System or
> fails to achieve the minimum performance requirements of the system
> during the evaluation period, the FDO, at his/her sole discretion, may
> reduce any otherwise earned fees, fixed fee, profit or share of cost
> savings for the evaluation period by an amount up to the amount
> earned.
>
> \(b\) *Minimum requirements for catastrophic event*. If, in the
> performance of this contract, there is a catastrophic event (such as a
> fatality, or a serious workplace-related injury or illness to one or
> more Federal, contractor, or subcontractor employees or the general
> public, loss of control over classified or special nuclear material,
> or significant damage to the environment), the FDO may reduce any
> otherwise earned fee for the evaluation period by an amount up to the
> amount earned. In determining any diminution of fee, fixed fee,
> profit, or share of cost savings resulting from a catastrophic event,
> the FDO will consider whether willful misconduct and/or negligence
> contributed to the occurrence and will take into consideration any
> mitigating circumstances presented by the contractor or other sources.
>
> \(c\) *Minimum requirements for specified level of performance*.
>
> \(1\) At a minimum the Contractor must perform the following:
>
> \(i\) the requirements with specific incentives at the level of
> performance set forth in the Statement of Work, Work Authorization
> Directive, or similar document unless an otherwise minimal level of
> performance has been established in the specific incentive;
>
> \(ii\) all of the performance requirements directly related to
> requirements specifically incentivized at a level of performance such
> that the overall performance of these related requirements is at an
> acceptable level; and
>
> \(iii\) all other requirements at a level of performance such that the
> total performance of the contract is not jeopardized.
>
> \(2\) The evaluation of the Contractor\'s achievement of the level of
> performance shall be unilaterally determined by the contracting
> officer. To the extent that the Contractor fails to achieve the
> minimum performance levels specified in the Statement of Work, Work
> Authorization Directive, or similar document, during the evaluation
> period, the FDO may reduce any otherwise earned fee, fixed fee,
> profit, or shared net savings for the evaluation period. Such
> reduction shall not result in the total of earned fee, fixed fee,
> profit, or shared net savings being less than 25% of the total
> available fee amount. Such 25% shall include base fee, if any.
>
> \(d\) *Minimum requirements for cost performance*.
>
> \(1\) Requirements incentivized by other than cost incentives must be
> performed within their specified cost constraint and must not
> adversely impact the costs of performing unrelated activities.
>
> \(2\) The performance of requirements with a specific cost incentive
> must not adversely impact the costs of performing unrelated
> requirements.
>
> \(3\) The Contractor\'s performance within the stipulated cost
> performance levels for the evaluation period shall be determined by
> the contracting officer. To the extent the Contractor fails to achieve
> the stipulated cost performance levels, the FDO, at his/her sole
> discretion, may reduce in whole or in part any otherwise earned fee,
> fixed fee, profit, or shared net savings for the evaluation period.
> Such reduction shall not result in the total of earned fee, fixed fee,
> profit or shared net savings being less than 25% of the total
> available fee amount. Such 25% shall include base fee, if any.

# DEAR 970.5222-1 COLLECTIVE BARGAINING AGREEMENTS - MANAGEMENT AND OPERATING CONTRACTS (DEC 2000)

> When negotiating collective bargaining agreements applicable to the
> work force under this contract, the Contractor shall use its best
> efforts to ensure such agreements contain provisions designed to
> assure continuity of services. All such agreements entered into during
> the contract period of performance should provide that grievances and
> disputes involving the interpretation or application of the agreement
> will be settled without resorting to strike, lockout, or other
> interruption of normal operations. For this purpose, each collective
> bargaining agreement should provide an effective grievance procedure
> with arbitration as its final step, unless the parties mutually agree
> upon some other method of assuring continuity of operations. As part
> of such agreements, management and labor should agree to cooperate
> fully with the Federal Mediation and Conciliation Service. The
> contractor shall include the substance of this clause in any
> subcontracts for protective services or other services performed on
> the DOE-owned site which will affect the continuity of operation of
> the facility.

#  DEAR 970.5222-2 OVERTIME MANAGEMENT (DEC 2000)

> \(a\) The contractor shall maintain adequate internal controls to
> ensure that employee overtime is authorized only if cost effective and
> necessary to ensure performance of work under this contract.
>
> \(b\) The contractor shall notify the contracting officer when in any
> given year it islikely that overtime usage as a percentage of payroll
> may exceed 4 percent.
>
> \(c\) The contracting officer may require the submission, for
> approval, of a formal annual overtime control plan whenever contractor
> overtime usage as a percentage of payroll has exceeded, or is likely
> to exceed, 4 percent, or if the contracting officer otherwise deems
> overtime expenditures excessive. The plan shall include, at a minimum:
>
> \(1\) An overtime premium fund (maximum dollar amount);
>
> \(2\) Specific controls for casual overtime for non-exempt employees;
>
> \(3\) Specific parameters for allowability of exempt overtime;
>
> \(4\) An evaluation of alternatives to the use of overtime; and
>
> \(5\) Submission of a semi-annual report that includes for exempt and
> non-exempt employees:
>
> \(i\) Total cost of overtime;
>
> \(ii\) Total cost of straight time;
>
> \(iii\) Overtime cost as a percentage of straight-time cost;
>
> \(iv\) Total overtime hours;
>
> \(v\) Total straight-time hours; and
>
> \(vi\) Overtime hours as a percentage of straight-time hours.

# DEAR 970.5223‑1 INTEGRATION OF ENVIRONMENT, SAFETY, AND HEALTH INTO WORK PLANNING AND EXECUTION (DEC 2000)

\(a\) For the purposes of this clause,

> \(1\) Safety encompasses environment, safety and health, including
> pollution prevention and waste minimization; and
>
> \(2\) Employees include subcontractor employees.
>
> \(b\) In performing work under this contract, the contractor shall
> perform work safely, in a manner that ensures adequate protection for
> employees, the public, and the environment, and shall be accountable
> for the safe performance of work. The contractor shall exercise a
> degree of care commensurate with the work and the associated hazards.
> The contractor shall ensure that management of environment, safety and
> health (ES&H) functions and activities becomes an integral but visible
> part of the contractor\'s work planning and execution processes. The
> contractor shall, in the performance of work, ensure that:
>
> \(1\) Line management is responsible for the protection of employees,
> the public, and the environment. Line management includes those
> contractor and subcontractor employees managing or supervising
> employees performing work.
>
> \(2\) Clear and unambiguous lines of authority and responsibility for
> ensuring (ES&H) are established and maintained at all organizational
> levels.
>
> \(3\) Personnel possess the experience, knowledge, skills, and
> abilities that are necessary to discharge their responsibilities.
>
> \(4\) Resources are effectively allocated to address ES&H,
> programmatic, and operational considerations. Protecting employees,
> the public, and the environment is a priority whenever activities are
> planned and performed.
>
> \(5\) Before work is performed, the associated hazards are evaluated
> and an agreed-upon set of ES&H standards and requirements are
> established which, if properly implemented, provide adequate assurance
> that employees, the public, and the environment are protected from
> adverse consequences.
>
> \(6\) Administrative and engineering controls to prevent and mitigate
> hazards are tailored to the work being performed and associated
> hazards. Emphasis should be on designing the work and/or controls to
> reduce or eliminate the hazards and to prevent accidents and unplanned
> releases and exposures.
>
> \(7\) The conditions and requirements to be satisfied for operations
> to be initiated and conducted are established and agreed-upon by DOE
> and the contractor. These agreed-upon conditions and requirements are
> requirements of the contract and binding upon the contractor. The
> extent of documentation and level of authority for agreement shall be
> tailored to the complexity and hazards associated with the work and
> shall be established in a Safety Management System.
>
> \(c\) The contractor shall manage and perform work in accordance with
> a documented Safety Management System (System) that fulfills all
> conditions in paragraph (b) of this clause at a minimum. Documentation
> of the System shall describe how the contractor will:
>
> \(1\) Define the scope of work;
>
> \(2\) Identify and analyze hazards associated with the work;
>
> \(3\) Develop and implement hazard controls;
>
> \(4\) Perform work within controls; and
>
> \(5\) Provide feedback on adequacy of controls and continue to improve
> safety management.
>
> \(d\) The System shall describe how the contractor will establish,
> document, and implement safety performance objectives, performance
> measures, and commitments in response to DOE program and budget
> execution guidance while maintaining the integrity of the System. The
> System shall also describe how the contractor will measure system
> effectiveness.
>
> \(e\) The contractor shall submit to the contracting officer
> documentation of its System for review and approval. Dates for
> submittal, discussions, and revisions to the System will be
> established by the contracting officer. Guidance on the preparation,
> content, review, and approval of the System will be provided by the
> contracting officer. On an annual basis, the contractor shall review
> and update, for DOE approval, its safety performance objectives,
> performance measures, and commitments consistent with and in response
> to DOE\'s program and budget execution guidance and direction.
> Resources shall be identified and allocated to meet the safety
> objectives and performance commitments as well as maintain the
> integrity of the entire System. Accordingly, the System shall be
> integrated with the contractor\'s business processes for work
> planning, budgeting, authorization, execution, and change control.
>
> \(f\) The contractor shall comply with, and assist the Department of
> Energy in complying with, ES&H requirements of all applicable laws and
> regulations, and applicable directives identified in the clause of
> this contract entitled \"Laws, Regulations, and DOE Directives.\" The
> contractor shall cooperate with Federal and non-Federal agencies
> having jurisdiction over ES&H matters under this contract.
>
> \(g\) The contractor shall promptly evaluate and resolve any
> noncompliance with applicable ES&H requirements and the System. If the
> contractor fails to provide resolution or if, at any time, the
> contractor\'s acts or failure to act causes substantial harm or an
> imminent danger to the environment or health and safety of employees
> or the public, the contracting officer may issue an order stopping
> work in whole or in part. Any stop work order issued by a contracting
> officer under this clause (or issued by the contractor to a
> subcontractor in accordance with paragraph (i) of this clause) shall
> be without prejudice to any other legal or contractual rights of the
> Government. In the event that the contracting officer issues a stop
> work order, an order authorizing the resumption of the work may be
> issued at the discretion of the contracting officer. The contractor
> shall not be entitled to an extension of time or additional fee or
> damages by reason of, or in connection with, any work stoppage ordered
> in accordance with this clause.
>
> \(h\) Regardless of the performer of the work, the contractor is
> responsible for compliance with the ES&H requirements applicable to
> this contract. The contractor is responsible for flowing down the ES&H
> requirements applicable to this contract to subcontracts at any tier
> to the extent necessary to ensure the contractor\'s compliance with
> the requirements.
>
> \(i\) The contractor shall include a clause substantially the same as
> this clause in subcontracts involving complex or hazardous work on
> site at a DOE-owned or-leased facility. Such subcontracts shall
> provide for the right to stop work under the conditions described in
> paragraph (g) of this clause. Depending on the complexity and hazards
> associated with the work, the contractor may choose not to require the
> subcontractor to submit a Safety Management System for the
> contractor\'s review and approval.

# DEAR 970.5223-2 AFFIRMATIVE PROCUREMENT PROGRAM (MARCH 2003) (DEVIATION)

(a) In the performance of this contract, the Contractor shall comply
    with the requirements of Executive Order 13101 and use as a
    reference the U.S. Department of Energy (DOE) Affirmative
    Procurement Program Guidance. This guidance includes information and
    DOE preferences concerning environmentally preferable products and
    services, recycled content products and biobased products. This
    guidance is available on the Internet.

(b) In complying with the requirements of paragraph (a) of this clause,
    the Contractor shall coordinate its activities with the DOE
    Recycling Coordinator. Reports required by paragraph (c) of this
    clause shall be submitted through the DOE Recycling Coordinator.

(c) The Contractor shall prepare and submit reports, at the end of the
    Federal fiscal year, on matters related to the acquisition of items
    designated in EPA\'s Comprehensive Procurement Guidelines that
    Federal agencies and their Contractors are to procure with
    recovered/recycled content.

(d) If the Contractor subcontracts a significant portion of the
    operation of the Government facility which includes the acquisition
    of items designated in EPA\'s Comprehensive Procurement Guidelines,
    the subcontract shall contain a clause substantially the same as
    this clause. The EPA Comprehensive Procurement Guidelines identify
    products which Federal agencies and their Contractors are to procure
    with recycled content pursuant to 40 CFR 247. Examples of such a
    subcontract would be operation of the facility supply function,
    construction or remodeling at the facility, or maintenance of the
    facility motor vehicle fleet. In situations in which the facility
    management contractor can reasonably determine the amount of
    products with recovered/recycled content to be acquired under the
    subcontract, the facility management contractor is not required to
    flow down the reporting requirement of this clause. Instead, the
    facility management contractor may include such quantities in its
    own report and include an agreement in the subcontract that such
    products will be acquired with recovered/recycled content and that
    the subcontractor will advise if it is unable to procure such
    products with recovered/recycled content because the product is not
    available: (i) Competitively within a reasonable time; (ii) At a
    reasonable price; or, (iii) Within the performance requirements. If
    reports are required of the subcontractor, such reports shall be
    submitted to the facility management contractor. The reports may be
    submitted at the conclusion of the subcontract term provided that
    the subcontract delivery term is not multi-year in nature. If the
    delivery term is multi-year, the subcontractor shall report its
    accomplishments for each Federal fiscal year in a manner and at a
    time or times acceptable to both parties.

(e) When this clause is used in a subcontract, the word \"Contractor\'\'
    will be understood to mean \"subcontractor\'\' and the term \"DOE
    Recycling Coordinator\'\' will be understood to mean \"Contractor
    Recycling Coordinator.\'\'

# DEAR 970.5223-4 WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES (DEC 2000)

> \(a\) [Program Implementation]{.underline}. The contractor shall,
> consistent with 10 CFR part 707, Workplace Substance Abuse Programs at
> DOE Sites, incorporated herein by reference with full force and
> effect, develop, implement, and maintain a workplace substance abuse
> program.
>
> \(b\) [Remedies]{.underline}. In addition to any other remedies
> available to the Government, the contractor\'s failure to comply with
> the requirements of 10 CFR part 707 or to perform in a manner
> consistent with its approved program may render the contractor subject
> to: the suspension of contract payments, or, where applicable, a
> reduction in award fee; termination for default; and suspension or
> debarment.
>
> \(c\) [Subcontracts]{.underline}.
>
> \(1\) The contractor agrees to notify the contracting officer
> reasonably in advance of, but not later than 30 days prior to, the
> award of any subcontract the contractor believes may be subject to the
> requirements of 10 CFR part 707.
>
> \(2\) The DOE prime contractor shall require all subcontracts subject
> to the provisions of 10 CFR part 707 to agree to develop and implement
> a workplace substance abuse program that complies with the
> requirements of 10 CFR part 707, Workplace Substance Abuse Programs at
> DOE sites, as a condition for award of the subcontract. The DOE prime
> contractor shall review and approve each subcontractor\'s program, and
> shall periodically monitor each subcontractor\'s implementation of the
> program for effectiveness and compliance with 10 CFR part 707.
>
> \(3\) The contractor agrees to include, and require the inclusion of,
> the requirements of this clause in all subcontracts, at any tier, that
> are subject to the provisions of 10 CFR part 707.

# DEAR 970.5226-1 DIVERSITY PLAN (DEC 2000)

> The Contractor shall submit a Diversity Plan to the contracting
> officer for approval within 90 days after the effective date of this
> contract (or contract modification, if appropriate). The contractor
> shall submit an update to its Plan with its annual fee proposal.
> Guidance for preparation of a Diversity Plan is provided in Appendix
> I. The Plan shall include innovative strategies for increasing
> opportunities to fully use the talents and capabilities of a diverse
> work force. The Plan shall address, at a minimum, the Contractor\'s
> approach for promoting diversity through (1) the Contractor\'s work
> force, (2) educational outreach, (3) community involvement and
> outreach, (4) subcontracting, (5) economic development (including
> technology transfer), and (6) the prevention of profiling based on
> race or national origin.

# DEAR 970.5226-2 WORKFORCE RESTRUCTURING UNDER SECTION 3161 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1993 (DEC 2000)

> \(a\) Consistent with the objectives of Section 3161 of the National
> Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. 7274h, in
> instances where the Department of Energy has determined that a change
> in workforce at a Department of Energy Defense Nuclear Facility is
> necessary, the contractor agrees to (1) comply with the Department of
> Energy Workforce Restructuring Plan for the facility, if applicable,
> and (2) use its best efforts to accomplish workforce restructuring or
> displacement so as to mitigate social and economic impacts.
>
> \(b\) The requirements of this clause shall be included in
> subcontracts at any tier (except subcontracts for commercial items
> pursuant to 41 U.S.C. 403) expected to exceed \$500,000.

# DEAR 970.5226-3 COMMUNITY COMMITMENT (DEC 2000)

> It is the policy of the DOE to be a constructive partner in the
> geographic region in which DOE conducts its business. The basic
> elements of this policy include: (1) Recognizing the diverse interests
> of the region and its stakeholders, (2) engaging regional stakeholders
> in issues and concerns of mutual interest, and (3) recognizing that
> giving back to the community is a worthwhile business practice.
> Accordingly, the Contractor agrees that its business operations and
> performance under the Contract will be consistent with the intent of
> the policy and elements set forth above.

# DEAR 970.5227-2 RIGHTS IN DATA-TECHNOLOGY TRANSFER (DEC 2000) (ALTERNATE I) (DEC 2000)

> \(a\) Definitions.
>
> \(1\) Computer data bases, as used in this clause, means a collection
> of data in a form capable of, and for the purpose of, being stored in,
> processed, and operated on by a computer. The term does not include
> computer software.
>
> \(2\) Computer software, as used in this clause, means
>
> \(i\) computer programs which are data comprising a series of
> instructions, rules, routines, or statements, regardless of the media
> in which recorded, that allow or cause a computer to perform a
> specific operation or series of operations and
>
> \(ii\) data comprising source code listings, design details,
> algorithms, processes, flow charts, formulae, and related material
> that would enable the computer program to be produced, created, or
> compiled. The term does not include computer data bases.
>
> \(3\) Data, as used in this clause, means recorded information,
> regardless of form or the media on which it may be recorded. The term
> includes technical data and computer software. The term \"data\" does
> not include data incidental to the administration of this contract,
> such as financial, administrative, cost and pricing, or management
> information.
>
> \(4\) Limited rights data, as used in this clause, means data, other
> than computer software, developed at private expense that embody trade
> secrets or are commercial or financial and confidential or privileged.
> The Government\'s rights to use, duplicate, or disclose limited rights
> data are as set forth in the Limited Rights Notice of paragraph (g) of
> this clause.
>
> \(5\) Restricted computer software, as used in this clause, means
> computer software developed at private expense and that is a trade
> secret; is commercial or financial and is confidential or privileged;
> or is published copyrighted computer software, including minor
> modifications of any such computer software. The Government\'s rights
> to use, duplicate, or disclose restricted computer software are as set
> forth in the Restricted Rights Notice of subparagraph (h) of this
> clause.
>
> \(6\) Technical data, as used in this clause, means recorded data,
> regardless of form or characteristic, that are of a scientific or
> technical nature. Technical data does not include computer software,
> but does include manuals and instructional materials and technical
> data formatted as a computer data base.
>
> \(7\) Unlimited rights, as used in this clause, means the rights of
> the Government to use, disclose, reproduce, prepare derivative works,
> distribute copies to the public, including by electronic means, and
> perform publicly and display publicly, in any manner, including by
> electronic means, and for any purpose whatsoever, and to have or
> permit others to do so.
>
> \(b\) Allocation of Rights.
>
> \(1\) The Government shall have:
>
> \(i\) Ownership of all technical data and computer software first
> produced in the performance of this Contract;
>
> \(ii\) Unlimited rights in technical data and computer software
> specifically used in the performance of this Contract, except as
> provided herein regarding copyright, limited rights data, or
> restricted computer software, and except for data subject to the
> withholding provisions for protected Cooperative Research and
> Development Agreement (CRADA) information in accordance with
> Technology Transfer actions under this Contract, or other data
> specifically protected by statute for a period of time or, where,
> approved by DOE, appropriate instances of the DOE Work for Others
> Program;
>
> \(iii\) The right to inspect technical data and computer software
> first produced or specifically used in the performance of this
> Contract at all reasonable times. The Contractor shall make available
> all necessary facilities to allow DOE personnel to perform such
> inspection;
>
> \(iv\) The right to have all technical data and computer software
> first produced or specifically used in the performance of this
> Contract delivered to the Government or otherwise disposed of by the
> Contractor, either as the contracting officer may from time to time
> direct during the progress of the work or in any event as the
> contracting officer shall direct upon completion or termination of
> this Contract. The Contractor agrees to leave a copy of such data at
> the facility or plant to which such data relate, and to make available
> for access or to deliver to the Government such data upon request by
> the contracting officer. If such data are limited rights data or
> restricted computer software, the rights of the Government in such
> data shall be governed solely by the provisions of paragraph (g) of
> this clause ("Rights in Limited Rights Data") or paragraph (h) of this
> clause ("Rights in Restricted Computer Software"); and
>
> \(v\) The right to remove, cancel, correct, or ignore any markings not
> authorized by the terms of this Contract on any data furnished
> hereunder if, in response to a written inquiry by DOE concerning the
> propriety of the markings, the Contractor fails to respond thereto
> within 60 days or fails to substantiate the propriety of the markings.
> In either case DOE will notify the Contractor of the action taken.
>
> \(2\) The Contractor shall have:
>
> \(i\) The right to withhold limited rights data and restricted
> computer software unless otherwise provided in provisions of this
> clause;
>
> \(ii\) The right to use for its private purposes, subject to patent,
> security or other provisions of this Contract, data it first produces
> in the performance of this Contract, except for data in DOE's Uranium
> Enrichment Technology, including diffusion, centrifuge, and atomic
> vapor laser isotope separation and except Restricted Data in category
> C-24, 10 CFR part 725, in which DOE has reserved the right to receive
> reasonable compensation for the use of its inventions and discoveries,
> including related data and technology, provided the data requirements
> of this Contract have been met as of the date of the private use of
> such data; and
>
> \(iii\) The right to assert copyright subsisting in scientific and
> technical articles as provided in paragraph (d) of this clause and the
> right to request permission to assert copyright subsisting in works
> other than scientific and technical articles as provided in paragraph
> (e) of this clause.
>
> \(3\) The Contractor agrees that for limited rights data or restricted
> computer software or other technical business or financial data in the
> form of recorded information which it receives from, or is given
> access to by DOE or a third party, including a DOE contractor or
> subcontractor, and for technical data or computer software it first
> produces under this Contract which is authorized to be marked by DOE,
> the Contractor shall treat such data in accordance with any
> restrictive legend contained thereon.
>
> \(c\) Copyright (General).
>
> \(1\) The Contractor agrees not to mark, register, or otherwise assert
> copyright in any data in a published or unpublished work, other than
> as set forth in paragraphs (d) and (e) of this clause.
>
> \(2\) Except for material to which the Contractor has obtained the
> right to assert copyright in accordance with either paragraph (d) or
> (e) of this clause, the Contractor agrees not to include in the data
> delivered under this Contract any material copyrighted by the
> Contractor and not to knowingly include any material copyrighted by
> others without first granting or obtaining at no cost a license
> therein for the benefit of the Government of the same scope as set
> forth in paragraph (d) of this clause. If the Contractor believes that
> such copyrighted material for which the license cannot be obtained
> must be included in the data to be delivered, rather than merely
> incorporated therein by reference, the Contractor shall obtain the
> written authorization of the contracting officer to include such
> material in the data prior to its delivery.
>
> \(d\) Copyrighted works (scientific and technical articles).
>
> \(1\) The Contractor shall have the right to assert, without prior
> approval of the contracting officer, copyright subsisting in
> scientific and technical articles composed under this contract or
> based on or containing data first produced in the performance of this
> Contract, and published in academic, technical or professional
> journals, symposia, proceedings, or similar works. When assertion of
> copyright is made, the Contractor shall affix the applicable copyright
> notice of *17 U.S.C. 401* or 402 and acknowledgment of Government
> sponsorship (including contract number) on the data when such data are
> delivered to the Government as well as when the data are published or
> deposited for registration as a published work in the U.S. Copyright
> Office. The Contractor grants to the Government, and others acting on
> its behalf, a nonexclusive, paid-up, irrevocable, world-wide license
> in such copyrighted data to reproduce, prepare derivative works,
> distribute copies to the public, and perform publicly and display
> publicly, by or on behalf of the Government.
>
> \(2\) The contractor shall mark each scientific or technical article
> first produced or composed under this Contract and submitted for
> journal publication or similar means of dissemination with a notice,
> similar in all material respects to the following, on the front
> reflecting the Government's non-exclusive, paid-up, irrevocable,
> world-wide license in the copyright.
>
> Notice: This manuscript has been authored by \[insert the name of the
> Contractor\] under Contract No. \[insert the contract number\] with
> the U.S. Department of Energy. The United States Government retains
> and the publisher, by accepting the article for publication,
> acknowledges that the United States Government retains a
> non-exclusive, paid-up, irrevocable, world-wide license to publish or
> reproduce the published form of this manuscript, or allow others to do
> so, for United States Government purposes.
>
> (End of Notice)
>
> \(3\) The title to the copyright of the original of unclassified
> graduate theses and the original of related unclassified scientific
> papers shall vest in the author thereof, subject to the right of DOE
> to retain duplicates of such documents and to use such documents for
> any purpose whatsoever without any claim on the part of the author or
> the contractor for additional compensation.
>
> \(e\) Copyrighted works (other than scientific and technical articles
> and data produced under a CRADA). The Contractor may obtain permission
> to assert copyright subsisting in technical data and computer software
> first produced by the Contractor in performance of this Contract,
> where the Contractor can show that commercialization would be enhanced
> by such copyright protection, subject to the following
>
> \(1\) Contractor Request to Assert Copyright.
>
> \(i\) For data other than scientific and technical articles and data
> produced under a CRADA, the Contractor shall submit in writing to
> Patent Counsel its request to assert copyright in data first produced
> in the performance of this Contract pursuant to this clause. The right
> of the Contractor to copyright data first produced under a CRADA is as
> described in the individual CRADA. Each request by the Contractor must
> include:
>
> \(A\) The identity of the data (including any computer program) for
> which the Contractor requests permission to assert copyright, as well
> as an abstract which is descriptive of the data and is suitable for
> dissemination purposes,
>
> \(B\) The program under which it was funded,
>
> \(C\) Whether, to the best knowledge of the Contractor, the data is
> subject to an international treaty or agreement,
>
> \(D\) Whether the data is subject to export control,
>
> \(E\) A statement that the Contractor plans to commercialize the data
> in compliance with the clause of this contract entitled, "Technology
> Transfer Mission," within five (5) years after obtaining permission to
> assert copyright or, on a case-by-case basis, a specified longer
> period where the Contractor can demonstrate that the ability to
> commercialize effectively is dependent upon such longer period, and
>
> \(F\) For data other than computer software, a statement explaining
> why the assertion of copyright is necessary to enhance
> commercialization and is consistent with DOE's dissemination
> responsibilities.
>
> \(ii\) For data that is developed using other funding sources in
> addition to DOE funding, the permission to assert copyright in
> accordance with this clause must also be obtained by the Contractor
> from all other funding sources prior to the Contractor's request to
> Patent Counsel. The request shall include the Contractor's
> certification or other documentation acceptable to Patent Counsel
> demonstrating such permission has been obtained.
>
> \(iii\) Permission for the Contractor to assert copyright in excepted
> categories of data as determined by DOE will be expressly withheld.
> Such excepted categories include data whose release
>
> \(A\) would be detrimental to national security, i.e., involve
> classified information or data or sensitive information under Section
> 148 of the Atomic Energy Act of 1954, as amended, or are subject to
> export control for nonproliferation and other nuclear-related national
> security purposes,
>
> \(B\) would not enhance the appropriate transfer or dissemination and
> commercialization of such data,
>
> \(C\) would have a negative impact on U.S. industrial competitiveness,
>
> \(D\) would prevent DOE from meeting its obligations under treaties
> and international agreements, or
>
> \(E\) would be detrimental to one or more of DOE's programs.
> Additional excepted categories may be added by the Assistant General
> Counsel for Technology Transfer and Intellectual Property. Where data
> are determined to be under export control restriction, the Contractor
> may obtain permission to assert copyright subject to the provisions of
> this clause for purposes of limited commercialization in a manner that
> complies with export control statutes and applicable regulations. In
> addition, notwithstanding any other provision of this Contract, all
> data developed with Naval Reactors' funding and those data that are
> classified fall within excepted categories. The rights of the
> Contractor in data are subject to the disposition of data rights in
> the treaties and international agreements identified under this
> Contract as well as those additional treaties and international
> agreements which DOE may from time to time identify by unilateral
> amendment to the Contract; such amendment listing added treaties and
> international agreements is effective only for data which is developed
> after the date such treaty or international agreement is added to this
> Contract. Also, the Contractor will not be permitted to assert
> copyright in data in the form of various technical reports generated
> by the Contractor under the Contract without first obtaining the
> advanced written permission of the contracting officer.
>
> \(2\) DOE Review and Response to Contractor\'s Request. The Patent
> Counsel shall use its best efforts to respond in writing within 90
> days of receipt of a complete request by the Contractor to assert
> copyright in technical data and computer software pursuant to this
> clause. Such response shall either give or withhold DOE\'s permission
> for the Contractor to assert copyright or advise the Contractor that
> DOE needs additional time to respond, and the reasons therefor.
>
> \(3\) Permission for Contractor to Assert Copyright.
>
> \(i\) For computer software, the Contractor shall furnish to the DOE
> designated, centralized software distribution and control point, the
> Energy Science and Technology Software Center, at the time permission
> to assert copyright is given under paragraph (e)(2) of this clause:
>
> \(A\) An abstract describing the software suitable for publication,
>
> \(B\) the source code for each software program, and
>
> \(C\) the object code and at least the minimum support documentation
> needed by a technically competent user to understand and use the
> software. The Patent Counsel, for good cause shown by the Contractor,
> may allow the minimum support documentation to be delivered within 60
> days after permission to assert copyright is given or at such time the
> minimum support documentation becomes available. The Contractor
> acknowledges that the DOE designated software distribution and control
> point may provide a technical description of the software in an
> announcement identifying its availability from the copyright holder.
>
> \(ii\) Unless otherwise directed by the contracting officer, for data
> other than computer software to which the Contractor has received
> permission to assert copyright under paragraph (e)(2) of this clause
> above, the Contractor shall within sixty (60) days of obtaining such
> permission furnish to DOE\'s Office of Scientific and Technical
> Information (OSTI) a copy of such data as well as an abstract of the
> data suitable for dissemination purposes. The Contractor acknowledges
> that OSTI may provide an abstract of the data in an announcement to
> DOE, its contractors and to the public identifying its availability
> from the copyright holder.
>
> \(iii\) For a five year period or such other specified period as
> specifically approved by Patent Counsel beginning on the date the
> Contractor is given permission to assert copyright in data, the
> Contractor grants to the Government, and others acting on its behalf,
> a paid-up, nonexclusive, irrevocable worldwide license in such
> copyrighted data to reproduce, prepare derivative works and perform
> publicly and display publicly, by or on behalf of the Government. Upon
> request, the initial period may be extended after DOE approval. The
> DOE approval will be based on the standard that the work is still
> commercially available and the market demand is being met.
>
> \(iv\) After the period approved by Patent Counsel for application of
> the limited Government license described in paragraph (e)(3)(iii) of
> this clause, or if, prior to the end of such period(s), the Contractor
> abandons commercialization activities pertaining to the data to which
> the Contractor has been given permission to assert copyright, the
> Contractor grants to the Government, and others acting on its behalf,
> a paid-up, nonexclusive, irrevocable worldwide license in such
> copyrighted data to reproduce, distribute copies to the public,
> prepare derivative works, perform publicly and display publicly, and
> to permit others to do so.
>
> \(v\) Whenever the Contractor asserts copyright in data pursuant to
> this paragraph (e), the Contractor shall affix the applicable
> copyright notice of *17 U.S.C. 401* or 402 on the copyrighted data and
> also an acknowledgment of the Government sponsorship and license
> rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such action
> shall be taken when the data are delivered to the Government,
> published, licensed or deposited for registration as a published work
> in the U.S. Copyright Office. The acknowledgment of Government
> sponsorship and license rights shall be as follows:
>
> Notice: These data were produced by (insert name of Contractor) under
> Contract No.\-\-\-\-\-\-- with the Department of Energy. For (period
> approved by Patent Counsel) from (date permission to assert copyright
> was obtained), the Government is granted for itself and others acting
> on its behalf a nonexclusive, paid-up, irrevocable worldwide license
> in this data to reproduce, prepare derivative works, and perform
> publicly and display publicly, by or on behalf of the Government.
> There is provision for the possible extension of the term of this
> license. Subsequent to that period or any extension granted, the
> Government is granted for itself and others acting on its behalf a
> nonexclusive, paid-up, irrevocable worldwide license in this data to
> reproduce, prepare derivative works, distribute copies to the public,
> perform publicly and display publicly, and to permit others to do so.
> The specific term of the license can be identified by inquiry made to
> Contractor or DOE. Neither the United States nor the United States
> Department of Energy, nor any of their employees, makes any warranty,
> express or implied, or assumes any legal liability or responsibility
> for the accuracy, completeness, or usefulness of any data, apparatus,
> product, or process disclosed, or represents that its use would not
> infringe privately owned rights.
>
> (End of Notice)
>
> \(vi\) With respect to any data to which the Contractor has received
> permission to assert copyright, the DOE has the right, during the five
> (5) year or specified longer period approved by Patent Counsel as
> provided for in paragraph (e) of this clause, to request the
> Contractor to grant a nonexclusive, partially exclusive or exclusive
> license in any field of use to a responsible applicant(s) upon terms
> that are reasonable under the circumstances, and if the Contractor
> refuses such request, to grant such license itself, if the DOE
> determines that the Contractor has not made a satisfactory
> demonstration that either it or its licensee(s) is actively pursuing
> commercialization of the data as set forth in subparagraph (e)(1)(A)
> of this clause. Before licensing under this subparagraph (vi), DOE
> shall furnish the Contractor a written request for the Contractor to
> grant the stated license, and the Contractor shall be allowed thirty
> (30) days (or such longer period as may be authorized by the
> contracting officer for good cause shown in writing by the Contractor)
> after such notice to show cause why the license should not be granted.
> The Contractor shall have the right to appeal the decision of the DOE
> to grant the stated license to the Invention Licensing Appeal Board as
> set forth in 10 CFR 781.65-\"Appeals.\"
>
> \(vii\) No costs shall be allowable for maintenance of copyrighted
> data, primarily for the benefit of the Contractor and/or a licensee
> which exceeds DOE Program needs, except as expressly provided in
> writing by the contracting officer. The Contractor may use its net
> royalty income to effect such maintenance costs.
>
> \(viii\) At any time the Contractor abandons commercialization
> activities for data for which the Contractor has received permission
> to assert copyright in accordance with this clause, it shall advise
> OSTI and Patent Counsel and upon request assign the copyright to the
> Government so that the Government can distribute the data to the
> public.
>
> \(4\) The following notice may be placed on computer software prior to
> any publication and prior to the Contractor\'s obtaining permission
> from the Department of Energy to assert copyright in the computer
> software pursuant to paragraph (c)(3) of this section.
>
> Notice: This computer software was prepared by \[insert the
> Contractor\'s name and the individual author\], hereinafter the
> Contractor, under Contract \[insert the Contract Number\] with the
> Department of Energy (DOE). All rights in the computer software are
> reserved by DOE on behalf of the United States Government and the
> Contractor as provided in the Contract. You are authorized to use this
> computer software for Governmental purposes but it is not to be
> released or distributed to the public. NEITHER THE GOVERNMENT NOR THE
> CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY
> LIABILITY FOR THE USE OF THIS SOFTWARE. This notice including this
> sentence must appear on any copies of this computer software.
>
> (End of Notice)
>
> \(5\) a similar notice can be used for data, other than computer
> software, upon approval of Patent Counsel.
>
> \(f\) Subcontracting.
>
> \(1\) Unless otherwise directed by the contracting officer, the
> Contractor agrees to use in subcontracts in which technical data or
> computer software is expected to be produced or in subcontracts for
> supplies that contain a requirement for production or delivery of data
> in accordance with the policy and procedures of 48 CFR Subpart 27.4 as
> supplemented by 48 CFR 927.401 through 927.409, the clause entitled,
> \"Rights in Data-General\" at 48 CFR 52.227-14 modified in accordance
> with 927.409(a) and including Alternate V. Alternates II through IV of
> that clause may be included as appropriate with the prior approval of
> Patent Counsel, and the Contractor shall not acquire rights in a
> subcontractor\'s limited rights data or restricted computer software,
> except through the use of Alternates II or III, respectively, without
> the prior approval of Patent Counsel. The clause at 48 CFR 52.227-16,
> Additional Data Requirements, shall be included in subcontracts in
> accordance with 48 CFR 927.409(h). The Contractor shall use instead
> the Rights in Data-Facilities clause at 48 CFR 970.5227-1 in
> subcontracts, including subcontracts for related support services,
> involving the design or operation of any plants or facilities or
> specially designed equipment for such plants or facilities that are
> managed or operated under its contract with DOE.
>
> \(2\) It is the responsibility of the Contractor to obtain from its
> subcontractors technical data and computer software and rights
> therein, on behalf of the Government, necessary to fulfill the
> Contractor\'s obligations to the Government with respect to such data.
> In the event of refusal by a subcontractor to accept a clause
> affording the Government such rights, the Contractor shall:
>
> \(i\) Promptly submit written notice to the contracting officer
> setting forth reasons or the subcontractor\'s refusal and other
> pertinent information which may expedite disposition of the matter,
> and
>
> \(ii\) Not proceed with the subcontract without the written
> authorization of the contracting officer.
>
> \(3\) Neither the Contractor nor higher-tier subcontractors shall use
> their power to award subcontracts as economic leverage to acquire
> rights in a subcontractor\'s limited rights data and restricted
> computer software for their private use.
>
> \(g\) Rights in Limited Rights Data. Except as may be otherwise
> specified in this Contract as data which are not subject to this
> paragraph, the Contractor agrees to and does hereby grant to the
> Government an irrevocable nonexclusive, paid-up license by or for the
> Government, in any limited rights data of the Contractor specifically
> used in the performance of this Contract, provided, however, that to
> the extent that any limited rights data when furnished or delivered is
> specifically identified by the Contractor at the time of initial
> delivery to the Government or a representative of the Government, such
> data shall not be used within or outside the Government except as
> provided in the \"Limited Rights Notice\" set forth below. All such
> limited rights data shall be marked with the following \"Limited
> Rights Notice:\"
>
> Limited Rights Notice
>
> These data contain \"limited rights data,\" furnished under Contract
> No.\-\-\-\-\-\-- with the United States Department of Energy which may
> be duplicated and used by the Government with the express limitations
> that the \"limited rights data\" may not be disclosed outside the
> Government or be used for purposes of manufacture without prior
> permission of the Contractor, except that further disclosure or use
> may be made solely for the following purposes:
>
> \(a\) Use (except for manufacture) by support services contractors
> within the scope of their contracts;
>
> \(b\) This \"limited rights data\" may be disclosed for evaluation
> purposes under the restriction that the \"limited rights data\" be
> retained in confidence and not be further disclosed;
>
> \(c\) This \"limited rights data\" may be disclosed to other
> contractors participating in the Government\'s program of which this
> Contract is a part for information or use (except for manufacture) in
> connection with the work performed under their contracts and under the
> restriction that the \"limited rights data\" be retained in confidence
> and not be further disclosed;
>
> \(d\) This \"limited rights data\" may be used by the Government or
> others on its behalf for emergency repair or overhaul work under the
> restriction that the \"limited rights data\" be retained in confidence
> and not be further disclosed; and
>
> \(e\) Release to a foreign government, or instrumentality thereof, as
> the interests of the United States Government may require, for
> information or evaluation, or for emergency repair or overhaul work by
> such government.
>
> This Notice shall be marked on any reproduction of this data in whole
> or in part.
>
> (End of Notice)
>
> \(h\) Rights in Restricted Computer Software.
>
> \(1\) Except as may be otherwise specified in this Contract as data
> which are not subject to this paragraph, the Contractor agrees to and
> does hereby grant to the Government an irrevocable, nonexclusive,
> paid-up, license by or for the Government, in any restricted computer
> software of the Contractor specifically used in the performance of
> this Contract; provided, however, that to the extent that any
> restricted computer software when furnished or delivered is
> specifically identified by the Contractor at the time of initial
> delivery to the Government or a representative of the Government, such
> data shall not be used within or outside the Government except as
> provided in the \"Restricted Rights Notice\" set forth below. All such
> restricted computer software shall be marked with the following
> \"Restricted Rights Notice:\"
>
> Restricted Rights Notice-Long Form
>
> \(a\) This computer software is submitted with restricted rights under
> Department of Energy Contract No.\-\--. It may not be used,
> reproduced, or disclosed by the Government except as provided in
> paragraph (b) of this notice.
>
> \(b\) This computer software may be:
>
> \(1\) Used or copied for use in or with the computer or computers for
> which it was acquired, including use at any Government installation to
> which such computer or computers may be transferred;
>
> \(2\) Used, copied for use, in a backup or replacement computer if any
> computer for which it was acquired is inoperative or is replaced;
>
> \(3\) Reproduced for safekeeping (archives) or backup purposes;
>
> \(4\) Modified, adapted, or combined with other computer software,
> provided that only the portions of the derivative software consisting
> of the restricted computer software are to be made subject to the same
> restricted rights; and
>
> \(5\) Disclosed to and reproduced for use by contractors under a
> service contract (of the type defined in 48 CFR 37.101) in accordance
> with subparagraphs (b)(1) through (4) of this Notice, provided the
> Government makes such disclosure or reproduction subject to these
> restricted rights.
>
> \(c\) Notwithstanding the foregoing, if this computer software has
> been published under copyright, it is licensed to the Government,
> without disclosure prohibitions, with the rights set forth in the
> restricted rights notice above.
>
> \(d\) This Notice shall be marked on any reproduction of this computer
> software, in whole or in part.
>
> (End of Notice)
>
> \(2\) Where it is impractical to include the Restricted Rights Notice
> on restricted computer software, the following short-form Notice may
> be used in lieu thereof:
>
> Restricted Rights Notice-Short Form
>
> Use, reproduction, or disclosure is subject to restrictions set forth
> in the Long Form Notice of DOE Contract No.\-\-- with (name of
> Contractor).
>
> (End of Notice)
>
> \(3\) If the software is embedded, or if it is commercially
> impractical to mark it with human readable text, then the symbol R and
> the clause date (mo/yr) in brackets or a box, a \[R-mo/yr\], may be
> used. This will be read to mean restricted computer software, subject
> to the rights of the Government as described in the Long Form Notice,
> in effect as of the date indicated next to the symbol. The symbol
> shall not be used to mark human readable material. In the event this
> Contract contains any variation to the rights in the Long Form Notice,
> then the contract number must also be cited.
>
> \(4\) If restricted computer software is delivered with the copyright
> notice of *17 U.S.C. 401,* the software will be presumed to be
> published copyrighted computer software licensed to the Government
> without disclosure prohibitions and with unlimited rights, unless the
> Contractor includes the following statement with such copyright notice
> \"Unpublished-rights reserved under the Copyright Laws of the United
> States.\"
>
> \(i\) Relationship to patents. Nothing contained in this clause
> creates or is intended to imply a license to the Government in any
> patent or is intended to be construed as affecting the scope of any
> licenses or other rights otherwise granted to the Government under any
> patent.

# DEAR 970.5227-3 TECHNOLOGY TRANSFER MISSION (AUG 2002) (DEVIATION)

> This clause has as its purpose implementation of the National
> Competitiveness Technology Transfer Act of 1989 (Sections 3131, 3132,
> 3133, and 3157 of Pub. L. 101-189 and as amended by Pub. L. 103-160,
> Sections 3134 and 3160). The Contractor shall conduct technology
> transfer activities with a purpose of providing benefit from Federal
> research to U.S. industrial competitiveness.
>
> \(a\) Authority.
>
> \(1\) In order to ensure the full use of the results of research and
> development efforts of, and the capabilities of, the Laboratory,
> technology transfer, including Cooperative Research and Development
> Agreements (CRADAs), is established as a mission of the Laboratory
> consistent with the policy, principles and purposes of Sections
> 11(a)(1) and 12(g) of the Stevenson-Wydler Technology Innovation Act
> of 1980, as amended *(15 U.S.C. 3710a);* Section 3132(b) of Pub. L.
> 101-189, Sections 3134 and 3160 of Pub. L. 103-160, and of Chapter 38
> of the Patent Laws *(35 U.S.C. 200* et seq.); Section 152 of the
> Atomic Energy Act of 1954, as amended *(42 U.S.C. 2182);* Section 9 of
> the Federal Nonnuclear Energy Research and Development Act of 1974
> *(42 U.S.C. 5908);* and Executive Order 12591 of April 10, 1987.
>
> \(2\) In pursuing the technology transfer mission, the Contractor is
> authorized to conduct activities including but not limited to:
> identifying and protecting Intellectual Property made, created or
> acquired at or by the Laboratory; negotiating licensing agreements and
> assignments for Intellectual Property made, created or acquired at or
> by the Laboratory that the Contractor controls or owns; bailments;
> negotiating all aspects of and entering into CRADAs; providing
> technical consulting and personnel exchanges; conducting science
> education activities and reimbursable Work for Others (WFO); providing
> information exchanges; and making available laboratory or weapon
> production user facilities. It is fully expected that the Contractor
> shall use all of the mechanisms available to it to accomplish this
> technology transfer mission, including, but not limited to, CRADAs,
> user facilities, WFO, science education activities, consulting,
> personnel, assignments, and licensing in accordance with this clause.
>
> \(3\) Nothing in this, or any other section of this contract provides
> the Contractor with any property right, including the right to
> license, in data first produced in the performance of this contract,
> except as expressly provided in the contract or approved in writing by
> the Contracting Officer.
>
> \(b\) Definitions.
>
> \(1\) Contractor\'s Laboratory Director means the individual who has
> supervision over all or substantially all of the Contractor\'s
> operations at the Laboratory.
>
> \(2\) Intellectual Property means patents, trademarks, copyrights,
> mask works, protected CRADA information, and other forms of comparable
> property rights protected by Federal Law and other foreign
> counterparts.
>
> \(3\) Cooperative Research and Development Agreement (CRADA) means any
> agreement entered into between the Contractor as operator of the
> Laboratory, and one or more parties including at least one non-Federal
> party under which the Government, through its laboratory, provides
> personnel, services, facilities, equipment, intellectual property, or
> other resources with or without reimbursement (but not funds to
> non-Federal parties) and the non-Federal parties provide funds,
> personnel, services, facilities, equipment, intellectual property, or
> other resources toward the conduct of specified research or
> development efforts which are consistent with the missions of the
> Laboratory; except that such term does not include a procurement
> contract, grant, or cooperative agreement as those terms are used in
> sections 6303, 6304, and 6305 of Title 31 of the United States Code.
>
> \(4\) Joint Work Statement (JWS) means a proposal for a CRADA prepared
> by the Contractor, signed by the Contractor\'s Laboratory Director or
> designee which describes the following:
>
> \(i\) Purpose;
>
> \(ii\) Scope of Work which delineates the rights and responsibilities
> of the Government, the Contractor and Third Parties, one of which must
> be a non-Federal party;
>
> \(iii\) Schedule for the work; and
>
> \(iv\) Cost and resource contributions of the parties associated with
> the work and the schedule.
>
> \(5\) Assignment means any agreement by which the Contractor transfers
> ownership of Laboratory Intellectual Property, subject to the
> Government\'s retained rights.
>
> \(6\) Laboratory Biological Materials means biological materials
> capable of replication or reproduction, such as plasmids,
> deoxyribonucleic acid molecules, ribonucleic acid molecules, living
> organisms of any sort and their progeny, including viruses, prokaryote
> and eukaryote cell lines, transgenic plants and animals, and any
> derivatives or modifications thereof or products produced through
> their use or associated biological products, made under this contract
> by Laboratory employees or through the use of Laboratory research
> facilities.
>
> \(7\) Laboratory Tangible Research Product means tangible material
> results of research which
>
> \(i\) are provided to permit replication, reproduction, evaluation or
> confirmation of the research effort, or to evaluate its potential
> commercial utility;
>
> \(ii\) are not materials generally commercially available; and
>
> \(iii\) were made under this contract by Laboratory employees or
> through the use of Laboratory research facilities.
>
> \(8\) Bailment means any agreement in which the Contractor permits the
> commercial or non-commercial transfer of custody, access or use of
> Laboratory Biological Materials or Laboratory Tangible Research
> Product for a specified purpose of technology transfer or research and
> development, including without limitation evaluation, and without
> transferring ownership to the bailee.
>
> \(c\) Allowable Costs.
>
> \(1\) The Contractor shall establish and carry out its technology
> transfer efforts through appropriate organizational elements
> consistent with the requirements for an Office of Research and
> Technology Applications (ORTA) pursuant to paragraphs (b) and (c) of
> Section 11 of the Stevenson-Wydler Technology Innovation Act of 1980,
> as amended *(15 U.S.C. 3710).* The costs associated with the conduct
> of technology transfer through the ORTA including activities
> associated with obtaining, maintaining, licensing, and assigning
> Intellectual Property rights, increasing the potential for the
> transfer of technology, and the widespread notice of technology
> transfer opportunities, shall be deemed allowable provided that such
> costs meet the other requirements of the allowable costs provisions of
> this Contract. In addition to any separately designated funds, these
> costs in any fiscal year shall not exceed an amount equal to 1.0
> percent of the operating funds included in the Federal research and
> development budget (including Work For Others) of the Laboratory for
> that fiscal year without written approval of the contracting officer.
>
> \(2\) The Contractor\'s participation in litigation to enforce or
> defend Intellectual Property claims incurred in its technology
> transfer efforts shall be as provided in the clause entitled
> \"Insurance-Litigation and Claims\" of this contract.
>
> \(d\) Conflicts of Interest-Technology Transfer. The Contractor shall
> have implementing procedures that seek to avoid employee and
> organizational conflicts of interest, or the appearance of conflicts
> of interest, in the conduct of its technology transfer activities.
> These procedures shall apply to all persons participating in
> Laboratory research or related technology transfer activities. Such
> implementing procedures shall be provided to the contracting officer
> for review and approval within sixty (60) days after execution of this
> contract. The contracting officer shall have thirty (30) days
> thereafter to approve or require specific changes to such procedures.
> Such implementing procedures shall include procedures to:
>
> \(1\) Inform employees of and require conformance with standards of
> conduct and integrity in connection with research involving
> non-federal sponsors and, for CRADA activity in accordance with the
> provisions of paragraph (n)(5) of this clause;
>
> \(2\) Review and approve employee activities so as to avoid conflicts
> of interest arising from commercial utilization activities relating to
> Contractor-developed Intellectual Property;
>
> \(3\) Conduct work performed using royalties so as to avoid
> interference with or adverse effects on ongoing DOE projects and
> programs;
>
> \(4\) Conduct activities relating to commercial utilization of
> Contractor-developed Intellectual Property so as to avoid interference
> with or adverse effects on user facility or WFO activities of the
> Contractor;
>
> \(5\) Conduct DOE-funded projects and programs so as to avoid the
> appearance of conflicts of interest or actual conflicts of interest
> with non-Government funded work;
>
> \(6\) Notify the contracting officer with respect to any new work to
> be performed or proposed to be performed under the Contract for DOE or
> other Federal agencies where the new work or proposal involves
> Intellectual Property in which the Contractor has obtained or intends
> to request or elect title;
>
> \(7\) Except as provided elsewhere in this Contract, obtain the
> approval of the contracting officer for any licensing of or assignment
> of title to Intellectual Property rights by the Contractor to any
> business or corporate affiliate of the Contractor;
>
> \(8\) Obtain the approval of the contracting officer, prior to any
> assignment, exclusive licensing, or option for exclusive licensing, of
> Intellectual Property to any individual who has been a Laboratory
> employee within the previous two years or to the company in which the
> individual is a principal;
>
> \(9\) Notify non-Federal sponsors of WFO activities, or non-Federal
> users of user facilities, of any relevant Intellectual Property
> interest of the Contractor prior to execution of WFOs or user
> agreements; and
>
> \(10\) Notify DOE prior to Contractor's acting in an advisory role for
> evaluation of a technical proposal for funding by a third party or DOE
> program, when the subject matter of the proposal involves an elected
> or waived subject invention under this contract or one in which the
> Contractor intends to elect to retain title under this contract.
>
> \(e\) Fairness of Opportunity. In conducting its technology transfer
> activities, the Contractor shall prepare procedures and take all
> reasonable measures to ensure widespread notice of availability of
> technologies suited for transfer and opportunities for exclusive
> licensing and joint research arrangements. The requirement to widely
> disseminate the availability of technology transfer opportunities does
> not apply to a specific application originated outside of the
> Laboratory and by entities other than the Contractor.
>
> \(f\) U.S. Industrial Competitiveness for Licensing and Assignments of
> Intellectual Property.
>
> \(1\) In the interest of enhancing U.S. Industrial Competitiveness in
> its licensing and assignments of Intellectual Property, the Contractor
> shall give preference in such a manner as to enhance the accrual of
> economic and technological benefits to the U.S. domestic economy. The
> Contractor shall consider the following factors in all of its
> licensing and assignment decisions involving Laboratory intellectual
> property where the Laboratory obtains rights during the course of the
> Contractor\'s operation of the Laboratory under this contract:
>
> \(i\) whether any resulting design and development will be performed
> in the United States and whether resulting products, embodying parts,
> including components thereof, will be substantially manufactured in
> the United States; or
>
> \(ii\) (A) whether the proposed licensee or assignee has a business
> unit located in the United States and whether significant economic and
> technical benefits will flow to the United States as a result of the
> license or assignment agreement; and
>
> \(B\) in licensing any entity subject to the control of a foreign
> company or government, whether such foreign government permits United
> States agencies, organizations or other persons to enter into
> cooperative research and development agreements and licensing
> agreements, and has policies to protect United States Intellectual
> Property rights.
>
> \(2\) If the Contractor determines that neither of the conditions in
> paragraphs (f)(1)(i) or (ii) of this clause are likely to be
> fulfilled, the Contractor, prior to entering into such an agreement,
> must obtain the approval of the contracting officer. The contracting
> officer shall act on any such requests for approval within thirty (30)
> days.
>
> \(3\) The Contractor agrees to be bound by the provisions of *35
> U.S.C. 204* (Preference for United States industry).
>
> \(g\) Indemnity-Product Liability. In entering into written technology
> transfer agreements, including but not limited to, research and
> development agreements, licenses, assignments and CRADAs, the
> Contractor agrees to include in such agreements a requirement that the
> U.S. Government and the Contractor, except for any negligent acts or
> omissions of the Contractor, be indemnified for all damages, costs,
> and expenses, including attorneys\' fees, arising from personal injury
> or property damage occurring as a result of the making, using or
> selling of a product, process or service by or on behalf of the
> Participant, its assignees or licensees which was derived from the
> work performed under the agreement. The Contractor shall identify and
> obtain the approval of the contracting officer for any proposed
> exceptions to this requirement such as where State or local law
> expressly prohibit the Participant from providing indemnification or
> where the research results will be placed in the public domain.
>
> \(h\) Disposition of Income.
>
> \(1\) Royalties or other income earned or retained by the Contractor
> as a result of performance of authorized technology transfer
> activities herein shall be used by the Contractor for scientific
> research, development, technology transfer, and education at the
> Laboratory, consistent with the research and development mission and
> objectives of the Laboratory and subject to Section 12(b)(5) of the
> Stevenson-Wydler Technology Innovation Act of 1980, as amended *(15
> U.S.C. 3710a*(b)(5)) and Chapter 38 of the Patent Laws *(35 U.S.C.
> 200* et seq.) as amended through the effective date of this contract
> award or modification. If the net amounts of such royalties and income
> received from patent licensing after payment of patenting costs,
> licensing costs, payments to inventors and other expenses incidental
> to the administration of Subject Inventions during any fiscal year
> exceed 5 percent of the Laboratory\'s budget for that fiscal year, 75
> percent of such excess amounts shall be paid to the Treasury of the
> United States, and the remaining amount of such excess shall be used
> by the Contractor for the purposes as described above in this
> paragraph. Any inventions arising out of such scientific research and
> development activities shall be deemed to be Subject Inventions under
> the Contract.
>
> \(2\) The Contractor shall include as a part of its annual Laboratory
> Institutional Plan or other such annual document a plan setting out
> those uses to which royalties and other income received as a result of
> performance of authorized technology transfer activities herein will
> be applied at the Laboratory, and at the end of the year, provide a
> separate accounting for how the funds were actually used. Under no
> circumstances shall these royalties and income be used for an illegal
> augmentation of funds furnished by the U.S. Government.
>
> \(3\) The Contractor shall notify the contracting officer of any
> changes to its policy for making awards or sharing of royalties with
> Contractor employees, other coinventors and coauthors, including
> Federal employee coinventors when deemed appropriate by the
> contracting officer, which changes shall be subject to the approval of
> the contracting officer.
>
> \(i\) Transfer to Successor Contractor. In the event of termination or
> upon the expiration of this Contract, any unexpended balance of income
> received for use at the Laboratory shall be transferred, at the
> contracting officer\'s request, to a successor contractor, or in the
> absence of a successor contractor, to such other entity as designated
> by the contracting officer. The Contractor shall transfer title, as
> one package, to the extent the Contractor retains title, in all
> patents and patent applications, licenses, accounts containing royalty
> revenues from such license agreements, including equity positions in
> third party entities, and other Intellectual Property rights which
> arose at the Laboratory, to the successor contractor or to the
> Government as directed by the contracting officer.
>
> \(j\) Technology Transfer Affecting the National Security.
>
> \(1\) The Contractor shall notify and obtain the approval of the
> contracting officer, prior to entering into any technology transfer
> arrangement, when such technology or any part of such technology is
> classified or sensitive under Section 148 of the Atomic Energy Act
> *(42 U.S.C. 2168).* Such notification shall include sufficient
> information to enable DOE to determine the extent that
> commercialization of such technology would enhance or diminish
> security interests of the United States, or diminish communications
> within DOE\'s nuclear weapon production complex. DOE shall use its
> best efforts to complete its determination within sixty (60) days of
> the Contractor\'s notification, and provision of any supporting
> information, and DOE shall promptly notify the Contractor as to
> whether the technology is transferable.
>
> \(2\) The Contractor shall include in all of its technology transfer
> agreements with third parties, including, but not limited to, CRADAs,
> licensing agreements and assignments, notice to such third parties
> that the export of goods and/or Technical Data from the United States
> may require some form of export control license or other authority
> from the U.S. Government and that failure to obtain such export
> control license may result in criminal liability under U.S. laws.
>
> \(3\) For other than fundamental research as defined in National
> Security Decision Directive 189, the Contractor is responsible to
> conduct internal export control reviews and assure that technology is
> transferred in accordance with applicable law.
>
> \(k\) Records. The Contractor shall maintain records of its technology
> transfer activities in a manner and to the extent satisfactory to the
> DOE and specifically including, but not limited to, the licensing
> agreements, assignments and the records required to implement the
> requirements of paragraphs (e), (f), and (h) of this clause and shall
> provide reports to the contracting officer, to enable DOE to maintain
> the reporting requirements of Section 12(c)(6) of the Stevenson-Wydler
> Technology Innovation Act of 1980, as amended *(15 U.S.C.
> 3710a*(c)(6)). Such reports shall be made annually in a format to be
> agreed upon between the Contractor and DOE and in such a format which
> will serve to adequately inform DOE of the Contractor\'s technology
> transfer activities while protecting any data not subject to
> disclosure under the Rights in Technical Data clause and paragraph (n)
> of this clause. Such records shall be made available in accordance
> with the clauses of this Contract pertaining to inspection, audit and
> examination of records.
>
> \(l\) Reports to Congress. To facilitate DOE\'s reporting to Congress,
> the Contractor is required to submit annually to DOE a technology
> transfer plan for conducting its technology transfer function for the
> upcoming year, including plans for securing Intellectual Property
> rights in Laboratory innovations with commercial promise and plans for
> managing such innovations so as to benefit the competitiveness of
> United States industry. This plan shall be provided to the contracting
> officer on or before October 1st of each year.
>
> \(m\) Oversight and Appraisal. The Contractor is responsible for
> developing and implementing effective internal controls for all
> technology transfer activities consistent with the audit and record
> requirements of this Contract. Laboratory Contractor performance in
> implementing the technology transfer mission and the effectiveness of
> the Contractor\'s procedures will be evaluated by the contracting
> officer as part of the annual appraisal process, with input from the
> cognizant Secretarial Officer or program office.
>
> \(n\) Technology Transfer Through Cooperative Research and Development
> Agreements. Upon approval of the contracting officer, and as provided
> in a DOE approved Joint Work Statement (JWS), the Laboratory Director,
> or designee, may enter into CRADAs on behalf of the DOE subject to the
> requirements set forth in this paragraph. Also, under such
> circumstances as the DOE considers appropriate, the DOE may waive the
> following requirements associated with the submission and approval of
> JWS and CRADA agreements, as legislated by the 2001 National Defense
> Authorization Act.
>
> \(1\) Review and Approval of CRADAs.
>
> \(i\) Except as otherwise directed in writing by the contracting
> officer, each JWS shall be submitted to the contracting officer for
> approval. The Contractor\'s Laboratory Director or designee shall
> provide a program mission impact statement and shall include an impact
> statement regarding related Intellectual Property rights known by the
> Contractor to be owned by the Government to assist the contracting
> officer, in the approval determination.
>
> \(ii\) The Contractor shall also include (specific to the proposed
> CRADA), a statement of compliance with the Fairness of Opportunity
> requirements of paragraph (e) of this clause.
>
> \(iii\) Within thirty (30) days after submission of a JWS or proposed
> CRADA, the contracting officer shall approve, disapprove or request
> modification to the JWS or CRADA. The contracting officer shall
> provide a written explanation to the Contractor\'s Laboratory Director
> or designee of any disapproval or requirement for modification of a
> JWS or proposed CRADA.
>
> \(iv\) Except as otherwise directed in writing by the contracting
> officer, the Contractor shall not enter into, or begin work under, a
> CRADA until approval of the CRADA has been granted by the contracting
> officer. The Contractor may submit its proposed CRADA to the
> contracting officer at the time of submitting its proposed JWS or any
> time thereafter.
>
> \(2\) Selection of Participants. The Contractor\'s Laboratory Director
> or designee in deciding what CRADA to enter into shall:
>
> \(i\) Give special consideration to small business firms, and
> consortia involving small business firms;
>
> \(ii\) Give preference to business units located in the United States
> which agree that products or processes embodying Intellectual Property
> will be substantially manufactured or practiced in the United States
> and, in the case of any industrial organization or other person
> subject to the control of a foreign company or government, take into
> consideration whether or not such foreign government permits United
> States agencies, organizations, or other persons to enter into
> cooperative research and development agreements and licensing
> agreements;
>
> \(iii\) Provide Fairness of Opportunity in accordance with the
> requirements of paragraph (e) of this clause; and
>
> \(iv\) Give consideration to the Conflicts of Interest requirements of
> paragraph (d) of this clause.
>
> \(3\) Withholding of Data.
>
> \(i\) Data that is first produced as a result of research and
> development activities conducted under a CRADA and that would be a
> trade secret or commercial or financial data that would be privileged
> or confidential, if such data had been obtained from a non-Federal
> third party, may be protected from disclosure under the Freedom of
> Information Act as provided in the Stevenson-Wydler Technology
> Innovation Act of 1980, as amended *(15 U.S.C. 3710a*(c)(7)) for a
> period as agreed in the CRADA of up to five (5)years from the time the
> data is first produced. The DOE shall cooperate with the Contractor in
> protecting such data.
>
> \(ii\) Unless otherwise expressly approved by the contracting officer
> in advance for a specific CRADA, the Contractor agrees, at the request
> of the contracting officer, to transmit such data to other DOE
> facilities for use by DOE or its Contractors by or on behalf of the
> Government. When data protected pursuant to paragraph (n)(3)(i) of
> this clause is so transferred, the Contractor shall clearly mark the
> data with a legend setting out the restrictions against private use
> and further dissemination, along with the expiration date of such
> restrictions.
>
> \(iii\) In addition to its authority to license Intellectual Property,
> the Contractor may enter into licensing agreements with third parties
> for data developed by the Contractor under a CRADA subject to other
> provisions of this Contract. However, the Contractor shall neither use
> the protection against dissemination nor the licensing of data as an
> alternative to the submittal of invention disclosures which include
> data protected pursuant to paragraph (n)(3)(i) of this clause.
>
> \(4\) Work For Others and User Facility Programs.
>
> \(i\) WFO and User Facility Agreements (UFAs) are available for use by
> the Contractor in addition to CRADAs for achieving utilization of
> employee expertise and unique facilities for maximizing technology
> transfer. The Contractor agrees to inform prospective CRADA
> participants, which are intending to substantially pay full cost
> recovery for the effort under a proposed CRADA, of the availability of
> alternative forms of agreements, i.e., WFO and UFA, and of the Class
> Patent Waiver provisions associated therewith, when conditions
> associated with the activity under the agreement can appropriately be
> performed under such an alternative form.
>
> \(ii\) Where the Contractor believes that the transfer of technology
> to the U.S. domestic economy will benefit from, or other equity
> considerations dictate, an arrangement other than the Class Waiver of
> patent rights to the sponsor in WFO and UFAs, a request may be made to
> the contracting officer for an exception to the Class Waivers.
>
> \(iii\) Rights to inventions made under agreements other than funding
> agreements with third parties shall be governed by the appropriate
> provisions incorporated, with DOE approval, in such agreements, and
> the provisions in such agreements take precedence over any disposition
> of rights contained in this Contract. Disposition of rights under any
> such agreement shall be in accordance with any DOE class waiver
> (including Work for Others and User Class Waivers) or individually
> negotiated waiver which applies to the agreement.
>
> \(5\) Conflicts of Interest.
>
> \(i\) Except as provided in paragraph (n)(5)(iii) of this clause, the
> Contractor shall assure that no employee of the Contractor shall have
> a substantial role (including an advisory role) in the preparation,
> negotiation, or approval of a CRADA, if, to such employee\'s
> knowledge:
>
> \(A\) Such employee, or the spouse, child, parent, sibling, or partner
> of such employee, or an organization (other than the Contractor) in
> which such employee serves as an officer, director, trustee, partner,
> or employee-
>
> \(1\) holds financial interest in any entity, other than the
> Contractor, that has a substantial interest in the preparation,
> negotiation, or approval of the CRADA;
>
> \(2\) receives a gift or gratuity from any entity, other than the
> Contractor, that has a substantial interest in the preparation,
> negotiation, or approval of the CRADA; or
>
> \(B\) A financial interest in any entity, other than the Contractor,
> that has a substantial interest in the preparation, negotiation, or
> approval of the CRADA, is held by any person or organization with whom
> such employee is negotiating or has any arrangement concerning
> prospective employment.
>
> \(ii\) The Contractor shall require that each employee of the
> Contractor who has a substantial role (including an advisory role) in
> the preparation, negotiation, or approval of a CRADA certify through
> the Contractor to the contracting officer that the circumstances
> described in paragraph (n)(5)(i) of this clause do not apply to that
> employee.
>
> \(iii\) The requirements of paragraphs (n)(5)(i) and (n)(5)(ii) of
> this clause shall not apply in a case where the contracting officer is
> advised by the Contractor in advance of the participation of an
> employee described in those paragraphs in the preparation, negotiation
> or approval of a CRADA of the nature of and extent of any financial
> interest described in paragraph (n)(5)(i) of this clause, and the
> contracting officer determines that such financial interest is not so
> substantial as to be considered likely to affect the integrity of the
> Contractor employee\'s participation in the process of preparing,
> negotiating, or approving the CRADA.
>
> \(o\) Technology Transfer in Other Cost-Sharing Agreements. In
> conducting research and development activities in cost-shared
> agreements not covered by paragraph (n) of this clause, the
> Contractor, with prior written permission of the contracting officer,
> may provide for the withholding of data produced thereunder in
> accordance with the applicable provisions of paragraph (n)(3) of this
> clause.
>
> \(p\) Technology Partnership Ombudsman.
>
> \(1\) The Contractor agrees to establish a position to be known as
> \"Technology Partnership Ombudsman,\" to help resolve complaints from
> outside organizations regarding the policies and actions of the
> contractor with respect to technology partnerships (including CRADAs),
> patents owned by the contractor for inventions made at the laboratory,
> and technology licensing.
>
> \(2\) The Ombudsman shall be a senior official of the Contractor\'s
> laboratory staff, who is not involved in day-to-day technology
> partnerships, patents or technology licensing, or, if appointed from
> outside the laboratory or facility, shall function as such senior
> official.
>
> \(3\) The duties of the Technology Partnership Ombudsman shall
> include:
>
> \(i\) Serving as the focal point for assisting the public and industry
> in resolving complaints and disputes with the laboratory or facility
> regarding technology partnerships, patents, and technology licensing;
>
> \(ii\) Promoting the use of collaborative alternative dispute
> resolution techniques such as mediation to facilitate the speedy and
> low cost resolution of complaints and disputes, when appropriate; and
>
> \(iii\) Submitting a quarterly report, in a format provided by DOE, to
> the Secretary of Energy, the Administrator for Nuclear Security, the
> Director of the DOE Office of Dispute Resolution, and the Contracting
> Officer concerning the number and nature of complaints and disputes
> raised, along with the Ombudsman\'s assessment of their resolution,
> consistent with the protection of confidential and sensitive
> information.

# DEAR 970.5227-4 AUTHORIZATION AND CONSENT (AUG 2002)

> \(a\) The Government authorizes and consents to all use and
> manufacture of any invention described in and covered by a United
> States patent in the performance of this contract or any subcontract
> at any tier.
>
> \(b\) If the Contractor is sued for copyright infringement or
> anticipates the filing of such a lawsuit, the Contractor may request
> authorization and consent to copy a copyrighted work from the
> contracting officer. Programmatic necessity is a major consideration
> for DOE in determining whether to grant such request.
>
> \(c\) (1) The Contractor agrees to include, and require inclusion of,
> the Authorization and Consent clause at 52.227-1, without Alternate 1,
> but suitably modified to identify the parties, in all subcontracts
> expected to exceed \$100,000 at any tier for supplies or services,
> including construction, architect-engineer services, and materials,
> supplies, models, samples, and design or testing services.
>
> \(2\) The Contractor agrees to include, and require inclusion of,
> paragraph (a) of this Authorization and Consent clause, suitably
> modified to identify the parties, in all subcontracts at any tier for
> research and development activities expected to exceed \$100,000.
>
> \(3\) Omission of an authorization and consent clause from any
> subcontract, including those valued less than \$100,000 does not
> affect this authorization and consent.

# DEAR 970.5227-5 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT (AUG 2002)

> \(a\) The Contractor shall report to the Contracting Officer promptly
> and in reasonable written detail, each notice or claim of patent or
> copyright infringement based on the performance of this contract of
> which the Contractor has knowledge.
>
> \(b\) If any person files a claim or suit against the Government on
> account of any alleged patent or copyright infringement arising out of
> the performance of this contract or out of the use of any supplies
> furnished or work or services performed hereunder, the Contractor
> shall furnish to the Government, when requested by the Contracting
> Officer, all evidence and information in possession of the Contractor
> pertaining to such suit or claim. Except where the Contractor has
> agreed to indemnify the Government, the Contractor shall furnish such
> evidence and information at the expense of the Government.
>
> \(c\) The Contractor agrees to include, and require inclusion of, this
> clause suitably modified to identify the parties, in all subcontracts
> at any tier expected to exceed \$100,000.

# DEAR 970.5227-6 PATENT INDEMNITY -- SUBCONTRACTS (DEC 2000)

> Except as otherwise authorized by the Contracting Officer, the
> Contractor shall obtain indemnification of the Government and its
> officers, agents, and employees against liability, including costs,
> for infringement of any United States patent (except a patent issued
> upon an application that is now or may hereafter be withheld from
> issue pursuant to a secrecy order by the Government) from
> Contractor\'s subcontractors for any contract work subcontracted in
> accordance with FAR 48 CFR 52.227-3.

# DEAR 970.5227-8 REFUND OF ROYALTIES (AUG 2002)

[]{.mark}

> \(a\) During performance of this Contract, if any royalties are
> proposed to be charged to the Government as costs under this Contract,
> the Contractor agrees to submit for approval of the Contracting
> Officer, prior to the execution of any license, the following
> information relating to each separate item of royalty:
>
> \(1\) Name and address of licensor;
>
> \(2\) Patent numbers, patent application serial numbers, or other
> basis on which the royalty is payable;
>
> \(3\) Brief description, including any part or model numbers of each
> contract item or component on which the royalty is payable;
>
> \(4\) Percentage or dollar rate of royalty per unit;
>
> \(5\) Unit price of contract item;
>
> \(6\) Number of units;
>
> \(7\) Total dollar amount of royalties; and
>
> \(8\) A copy of the proposed license agreement.
>
> \(b\) If specifically requested by the Contracting Officer, the
> Contractor shall furnish a copy of any license agreement entered into
> prior to the effective date of this clause and an identification of
> applicable claims of specific patents or other basis upon which
> royalties are payable.
>
> \(c\) The term \"royalties\" as used in this clause refers to any
> costs or charges in the nature of royalties, license fees, patent or
> license amortization costs, or the like, for the use of or for rights
> in patents and patent applications that are used in the performance of
> this contract or any subcontract hereunder.
>
> \(d\) The Contractor shall furnish to the Contracting Officer,
> annually upon request, a statement of royalties paid or required to be
> paid in connection with performing this Contract and subcontracts
> hereunder.
>
> \(e\) For royalty payments under licenses entered into after the
> effective date of this Contract, costs incurred for royalties proposed
> under this paragraph shall be allowable only to the extent that such
> royalties are approved by the Contracting Officer. If the Contracting
> Officer determines that existing or proposed royalty payments are
> inappropriate, any payments subsequent to such determination shall be
> allowable only to the extent approved by the Contracting Officer.
>
> \(f\) Regardless of prior DOE approval of any individual payments or
> royalties, DOE may contest at any time the enforceability, validity,
> scope of, or title to a patent for which the Contractor makes a
> royalty or other payment.
>
> \(g\) If at any time within 3 years after final payment under this
> contract, the Contractor for any reason is relieved in whole or in
> part from the payment of any royalties to which this clause applies,
> the Contractor shall promptly notify the Contracting Officer of that
> fact and shall promptly reimburse the Government for any refunds
> received or royalties paid after having received notice of such
> relief.
>
> \(h\) The Contractor agrees to include, and require inclusion of, this
> clause, including this paragraph (h), suitably modified to identify
> the parties in any subcontract at any tier in which the amount of
> royalties reported during negotiation of the subcontract exceeds
> \$250.

# DEAR 970.5227-12 PATENT RIGHTS MANAGEMENT AND OPERATING CONTRACTS, FOR-PROFIT CONTRACTOR, ADVANCE CLASS WAIVER (AUG 2002) ALTERNATE 1 (DEVIATION)

> \(a\) Definitions.
>
> \(1\) DOE licensing regulations means the Department of Energy patent
> licensing regulations at 10 CFR Part 781.
>
> \(2\) DOE patent waiver regulations means the Department of Energy
> patent waiver regulations at 10 CFR Part 784.
>
> \(3\) Exceptional Circumstance Subject Invention means any subject
> invention in a technical field or related to a task determined by the
> Department of Energy to be subject to an exceptional circumstance
> under *35 U.S.C. 202*(a)(ii), and in accordance with 37 CFR 401.3(e).
>
> \(4\) Invention means any invention or discovery which is or may be
> patentable or otherwise protectable under title 35 of the United
> States Code, or any novel variety of plant which is or may be
> protected under the Plant Variety Protection Act *(7 U.S.C. 2321,* et
> seq.).
>
> \(5\) Made when used in relation to any invention means the conception
> or first actual reduction to practice of such invention.
>
> \(6\) Patent Counsel means DOE Patent Counsel assisting the
> contracting activity.
>
> \(7\) Practical application means to manufacture, in the case of a
> composition or product; to practice, in the case of a process or
> method; or to operate, in the case of a machine or system; and, in
> each case, under such conditions as to establish that the invention is
> being utilized and that its benefits are, to the extent permitted by
> law or Government regulations, available to the public on reasonable
> terms.
>
> \(8\) Subject Invention means any invention of the contractor
> conceived or first actually reduced to practice in the course of or
> under this contract, provided that in the case of a variety of plant,
> the date of determination (as defined in section 41(d) of the Plant
> Variety Protection Act, *7 U.S.C. 2401*(d)) shall also occur during
> the period of contract performance.
>
> \(9\) Weapons Related Subject Invention means any subject invention
> conceived or first actually reduced to practice in the course of or
> under work funded by or through defense programs, including Department
> of Defense and intelligence reimbursable work, or the Naval Nuclear
> Propulsion Program of the Department of Energy or the National Nuclear
> Security Administration.
>
> \(b\) Allocation of Principal Rights.
>
> \(1\) Assignment to the Government. Except to the extent that rights
> are retained by the Contractor by the granting of an advance class
> waiver pursuant to subparagraph (b)(2) of this clause or a
> determination of greater rights pursuant to subparagraph (b)(7) of
> this clause, the Contractor agrees to assign to the Government the
> entire right, title, and interest throughout the world in and to each
> subject invention.
>
> \(2\) Advance class waiver of Government rights to the Contractor. DOE
> may grant to the Contractor an advance class waiver of Government
> rights in any or all subject inventions, including weapons related
> subject inventions, at the time of execution of the contract, such
> that the Contractor may elect to retain the entire right, title and
> interest throughout the world to such waived subject inventions, in
> accordance with the terms and conditions of the advance class waiver.
> The Contractor does not have a right to retain title to any weapons
> related subject inventions prior to being granted title by NNSA under
> the Class Waiver. In its elections of weapons related subject
> inventions, the NNSA alone will make the determination that the
> subject invention is in fact a weapons related subject invention, and
> that rights to the Contractor may be granted, based on specific
> procedural requirements that the Contractor must meet as enumerated in
> the Class Waiver. Unless otherwise provided by the terms of the
> advance class waiver, any rights in a subject invention retained by
> the Contractor under an advance class waiver are subject to *35 U.S.C.
> 203* and the provisions of this clause, including the Government
> license provided for in subparagraph (b)(3) of this clause, and any
> reservations and conditions deemed appropriate by the Secretary of
> Energy or designee.
>
> \(3\) Government license. With respect to any subject invention to
> which the Contractor retains title, either under an advance class
> waiver pursuant to subparagraph (b)(2) or a determination of greater
> rights pursuant to subparagraph (b)(7) of this clause, the Government
> has a nonexclusive, nontransferable, irrevocable, paid-up license to
> practice or have practiced for or on behalf of the United States the
> subject invention throughout the world.
>
> \(4\) Foreign patent rights. If the Government has title to a subject
> invention and the Government decides against securing patent rights in
> a foreign country for the subject invention, the Contractor may
> request such foreign patent rights from DOE, and DOE may grant the
> Contractor\'s request, subject to *35 U.S.C. 203* and the provisions
> of this clause, including the Government license provided for in
> subparagraph (b)(3) of this clause, and any reservations and
> conditions deemed appropriate by the Secretary of Energy or designee.
>
> \(5\) Exceptional circumstance subject inventions. Except to the
> extent that rights are retained by the Contractor by a determination
> of greater rights in accordance with subparagraph (b)(7) of this
> clause, the Contractor does not have the right to retain title to any
> exceptional circumstance subject inventions and agrees to assign to
> the Government the entire right, title, and interest, throughout the
> world, in and to any exceptional circumstance subject inventions.
>
> \(i\) Inventions within or relating to the following fields of
> technology are exceptional circumstance subject inventions:
>
> \(A\) uranium enrichment technology;
>
> \(B\) storage and disposal of civilian high-level nuclear waste and
> spent fuel technology; and
>
> \(C\) national security technologies classified or sensitive under
> Section 148 of the Atomic Energy Act *(42 U.S.C. 2168).*
>
> \(ii\) Inventions made under any agreement, contract or subcontract
> related to the following initiatives or programs are exceptional
> circumstance subject inventions:
>
> \(A\) DOE Steel Initiative and Metals Initiative;
>
> \(B\) U.S. Advanced Battery Consortium; and
>
> \(C\) any funding agreement which is funded in part by the Electric
> Power Research Institute (EPRI) or the Gas Research Institute (GRI).
>
> \(iii\) DOE reserves the right to unilaterally amend this contract to
> modify, by deletion or insertion, technical fields, programs,
> initiatives, and/or other classifications for the purpose of defining
> DOE exceptional circumstance subject inventions.
>
> \(6\) Treaties and international agreements. Any rights acquired by
> the Contractor in subject inventions are subject to any disposition of
> right, title, or interest in or to subject inventions provided for in
> treaties or international agreements identified at Appendix J entitled
> "Office of Policy and International Affairs All In Force Bilateral
> Agreements dated July 17, 2003", to this contract. DOE reserves the
> right to unilaterally amend this contract to identify specific
> treaties or international agreements entered into or to be entered
> into by the Government after the effective date of this contract and
> to effectuate those license or other rights which are necessary for
> the Government to meet its obligations to foreign governments, their
> nationals and international organizations under such treaties or
> international agreements with respect to subject inventions made after
> the date of the amendment.
>
> \(7\) Contractor request for greater rights. The Contractor may
> request greater rights in an identified subject invention, including
> an exceptional circumstance subject invention, to which the Contractor
> does not have the right to elect to retain title, in accordance with
> the DOE patent waiver regulations, by submitting such a request in
> writing to Patent Counsel with a copy to the Contracting Officer at
> the time the subject invention is first disclosed to DOE pursuant to
> subparagraph (c)(1) of this clause, or not later than eight (8) months
> after such disclosure, unless a longer period is authorized in writing
> by the Contracting Officer for good cause shown in writing by the
> Contractor. DOE may grant or refuse to grant such a request by the
> Contractor. Unless otherwise provided in the greater rights
> determination, any rights in a subject invention obtained by the
> Contractor under a determination of greater rights is subject to *35
> U.S.C. 203* and the provisions of this clause, including the
> Government license provided for in subparagraph (b)(3) of this clause,
> and to any reservations and conditions deemed appropriate by the
> Secretary of Energy or designee.
>
> \(8\) Contractor employee-inventor rights. If the Contractor does not
> elect to retain title to a subject invention or does not request
> greater rights in a subject invention, including an exceptional
> circumstance subject invention, to which the Contractor does not have
> the right to elect to retain title, a Contractor employee-inventor,
> after consultation with the Contractor and with written authorization
> from the Contractor in accordance with 10 CFR 784.9(b)(4), may request
> greater rights, including title, in the subject invention or the
> exceptional circumstance invention from DOE, and DOE may grant or
> refuse to grant such a request by the Contractor employee-inventor.
>
> \(9\) Government assignment of rights in Government employees\'
> subject inventions. If a DOE employee is a joint inventor of a subject
> invention to which the Contractor has rights, DOE may assign or refuse
> to assign any rights in the subject invention acquired by the
> Government from the DOE employee to the Contractor, consistent with 48
> CFR 27.304-1(d). Unless otherwise provided in the assignment, the
> rights assigned to the Contractor are subject to the Government
> license provided for in subparagraph (b)(3) of this clause, and to any
> provision of this clause applicable to subject inventions in which
> rights are retained by the Contractor, and to any reservations and
> conditions deemed appropriate by the Secretary of Energy or designee.
> The Contractor shall share royalties collected for the manufacture,
> use or sale of the subject invention with the DOE employee.
>
> \(c\) Subject Invention Disclosure, Election of Title, and Filing of
> Patent Application by Contractor.
>
> \(1\) Subject invention disclosure. The Contractor shall disclose each
> subject invention to Patent Counsel with a copy to the Contracting
> Officer within two (2) months after an inventor discloses it in
> writing to Contractor personnel responsible for patent matters or, if
> earlier, within six (6) months after the Contractor has knowledge of
> the subject invention, but in any event before any on sale, public
> use, or publication of the subject invention. The disclosure to DOE
> shall be in the form of a written report and shall include:
>
> \(i\) the contract number under which the subject invention was made;
>
> \(ii\) the inventor(s) of the subject invention;
>
> \(iii\) a description of the subject invention in sufficient technical
> detail to convey a clear understanding of the nature, purpose and
> operation of the subject invention, and of the physical, chemical,
> biological or electrical characteristics of the subject invention, to
> the extent known by the Contractor at the time of the disclosure;
>
> \(iv\) the date and identification of any publication, on sale or
> public use of the invention;
>
> \(v\) the date and identification of any submissions for publication
> of any manuscripts describing the invention, and a statement of
> whether the manuscript is accepted for publication, to the extent
> known by the Contractor at the time of the disclosure;
>
> \(vi\) a statement indicating whether the subject invention is an
> exceptional circumstance subject invention, related to national
> security, or subject to a treaty or an international agreement, to the
> extent known or believed by Contractor at the time of the disclosure;
>
> \(vii\) all sources of funding by Budget and Resources (B&R) code; and
>
> \(viii\) the identification of any agreement relating to the subject
> invention, including Cooperative Research and Development Agreements
> and Work-for-Others agreements.
>
> Unless the Contractor contends otherwise in writing at the time the
> invention is disclosed, inventions disclosed to DOE under this
> paragraph are deemed made in the manner specified in Sections (a)(1)
> and (a)(2) of *42 U.S.C. 5908.*
>
> \(2\) Publication after disclosure. After disclosure of the subject
> invention to the DOE, the Contractor shall promptly notify Patent
> Counsel of the acceptance for publication of any manuscript describing
> the subject invention or of any expected or on sale or public use of
> the subject invention, known by the Contractor. The Contractor shall
> obtain approval from Patent Counsel prior to any release or
> publication of information concerning an exceptional circumstance
> subject invention or any subject invention related to a treaty or
> international agreement.
>
> \(3\) Election by the Contractor under an advance class waiver. If the
> Contractor has the right to elect to retain title to subject
> inventions under an advance class waiver granted in accordance with
> subparagraph (b)(2) of this clause, and unless otherwise provided for
> by the terms of the advance class waiver, the Contractor shall elect
> in writing whether or not to retain title to any subject invention by
> notifying DOE within two (2) years of the date of the disclosure of
> the subject invention to DOE, in accordance with subparagraph (c)(1)
> of this clause. The notification shall identify the advance class
> waiver, state the countries, including the United States, in which
> rights are retained, and certify that the subject invention is not an
> exceptional circumstance subject invention or subject to a treaty or
> international agreement. If a publication, on sale or public use of
> the subject invention has initiated the 1-year statutory period under
> *35 U.S.C. 102*(b), the period for election may be shortened by DOE to
> a date that is no more than sixty (60) days prior to the end of the
> 1-year statutory period.
>
> \(4\) Filing of patent applications by the Contractor under an advance
> class waiver. If the Contractor has the right to retain title to a
> subject invention in accordance with an advance class waiver pursuant
> to subparagraph (b)(2) of this clause or a determination of greater
> rights pursuant to paragraph (b)(7) of this clause, and unless
> otherwise provided for by the terms of the advance class waiver or
> greater rights determination, the Contractor shall file an initial
> patent application claiming the subject invention to which it retains
> title either within one (1) year after the Contractor\'s election to
> retain or grant of title to the subject invention or prior to the end
> of any 1-year statutory period under *35 U.S.C. 102*(b), whichever
> occurs first. Any patent applications filed by the Contractor in
> foreign countries or international patent offices shall be filed
> within either ten (10) months of the corresponding initial patent
> application or, if such filing has been prohibited by a Secrecy Order,
> within six (6) months from the date permission is granted by the
> Commissioner of Patents and Trademarks to file foreign patent
> applications.
>
> \(5\) Submission of patent information and documents. If the
> Contractor files a domestic or foreign patent application claiming a
> subject invention, the Contractor shall promptly submit to Patent
> Counsel the following information and documents:
>
> \(i\) The filing date, serial number, title, and a copy of the patent
> application (including an English-language version if filed in a
> language other than English);
>
> \(ii\) An executed and approved instrument fully confirmatory of all
> Government rights in the subject invention; and
>
> \(iii\) The patent number, issue date, and a copy of any issued patent
> claiming the subject invention.
>
> \(6\) Contractor\'s request for an extension of time. Requests for an
> extension of the time to disclose a subject invention, to elect to
> retain title to a subject invention, or to file a patent application
> under subparagraphs (c)(1), (3), and (4) of this clause may be granted
> at the discretion of Patent Counsel or DOE.
>
> \(7\) Duplication and disclosure of documents. The Government may
> duplicate and disclose subject invention disclosures and all other
> reports and papers furnished or required to be furnished pursuant to
> this clause; provided, however, that any such duplication or
> disclosure by the Government is subject to *35 U.S.C. 205* and 37 CFR
> Part 40.
>
> \(d\) Conditions When the Government May Obtain Title Notwithstanding
> an Advance Class Waiver.
>
> \(1\) Return of title to a subject invention. If the Contractor
> requests that DOE acquire title or rights from the Contractor in a
> subject invention, including an exceptional circumstance subject
> invention, to which the Contractor retained title or rights under
> subparagraph (b)(2) or subparagraph (b)(7) of this clause, DOE may
> acquire such title or rights from the Contractor, or DOE may decide
> against acquiring such title or rights from the Contractor, at DOE\'s
> sole discretion.
>
> \(2\) Failure to disclose or elect to retain title. Title vests in DOE
> and DOE may request, in writing, a formal assignment of title to a
> subject invention from the Contractor, and the Contractor shall convey
> title to the subject invention to DOE, if the Contractor elects not to
> retain title to the subject invention under an advance class waiver,
> or the Contractor fails to disclose or fails to elect to retain title
> to the subject invention within the times specified in subparagraphs
> (c)(1) and (c)(3) of this clause.
>
> \(3\) Failure to file domestic or foreign patent applications. In
> those countries in which the Contractor fails to file a patent
> application within the times specified in subparagraph (c)(4) of this
> clause, DOE may request, in writing, title to the subject invention
> from the Contractor, and the Contractor shall convey title to the
> subject invention to DOE; provided, however, that if the Contractor
> has filed a patent application in any country after the times
> specified in subparagraph (c)(4) of this clause, but prior to its
> receipt of DOE\'s written request for title, the Contractor continues
> to retain title in that country.
>
> \(4\) Discontinuation of patent protection by the Contractor. If the
> Contractor decides to discontinue the prosecution of a patent
> application, the payment of maintenance fees, or the defense of a
> subject invention in a reexamination or opposition proceeding, in any
> country, DOE may request, in writing, title to the subject invention
> from the Contractor, and the Contractor shall convey title to the
> subject invention to DOE.
>
> \(5\) Termination of advance class waiver. DOE may request, in
> writing, title to any subject inventions from the Contractor, and the
> Contractor shall convey title to the subject inventions to DOE, if the
> advance class waiver granted under subparagraph (b)(2) of this clause
> is terminated under paragraph (u) of this clause.
>
> \(e\) Minimum Rights of the Contractor.
>
> \(1\) Request for a Contractor license. Except for subject inventions
> that the Contractor fails to disclose within the time periods
> specified at subparagraph (c)(1) of this clause, the Contractor may
> request a revocable, nonexclusive, royalty-free license in each patent
> application filed in any country claiming a subject invention and any
> resulting patent in which the Government obtains title, and DOE may
> grant or refuse to grant such a request by the Contractor. If DOE
> grants the Contractor\'s request for a license, the Contractor\'s
> license extends to its domestic subsidiaries and affiliates, if any,
> within the corporate structure of which the Contractor is a party and
> includes the right to grant sublicenses of the same scope to the
> extent the Contractor was legally obligated to do so at the time the
> contract was awarded.
>
> \(2\) Transfer of a Contractor license. DOE shall approve any transfer
> of the Contractor\'s license in a subject invention, and DOE may
> determine that the Contractor\'s license is non-transferrable, on a
> case-by-case basis.
>
> \(3\) Revocation or modification of a Contractor license. DOE may
> revoke or modify the Contractor\'s domestic license to the extent
> necessary to achieve expeditious practical application of the subject
> invention pursuant to an application for an exclusive license
> submitted in accordance with applicable provisions in 37 CFR Part 404
> and DOE licensing regulations. DOE may not revoke the Contractor\'s
> domestic license in that field of use or the geographical areas in
> which the Contractor, its licensees or its domestic subsidiaries or
> affiliates have achieved practical applications and continues to make
> the benefits of the invention reasonably accessible to the public. DOE
> may revoke or modify the Contractor\'s license in any foreign country
> to the extent the Contractor, its licensees, or its domestic
> subsidiaries or affiliates failed to achieve practical application in
> that foreign country.
>
> \(4\) Notice of revocation or modification of a Contractor license.
> Before revocation or modification of the license, DOE shall furnish
> the Contractor a written notice of its intention to revoke or modify
> the license, and the Contractor shall be allowed thirty (30) days from
> the date of the notice (or such other time as may be authorized by DOE
> for good cause shown by the Contractor) to show cause why the license
> should not be revoked or modified. The Contractor has the right to
> appeal any decision concerning the revocation or modification of its
> license, in accordance with applicable regulations in 37 CFR Part 404
> and DOE licensing regulations.
>
> \(f\) Contractor Action to Protect the Government\'s Interest.
>
> \(1\) Execution and delivery of title or license instruments. The
> Contractor agrees to execute or have executed, and to deliver promptly
> to DOE all instruments necessary to accomplish the following actions:
>
> \(i\) establish or confirm the Government\'s rights throughout the
> world in subject inventions to which the Contractor elects to retain
> title;
>
> \(ii\) convey title in a subject invention to DOE pursuant to
> subparagraph (b)(5) and paragraph (d) of this clause; or
>
> \(iii\) enable the Government to obtain patent protection throughout
> the world in a subject invention to which the Government has title.
>
> \(2\) Contractor employee agreements. The Contractor agrees to
> require, by written agreement, its employees, other than clerical and
> nontechnical employees, to disclose promptly in writing to Contractor
> personnel identified as responsible for the administration of patent
> matters and in a format suggested by the Contractor, each subject
> invention made under this contract, and to execute all papers
> necessary to file patent applications claiming subject inventions or
> to establish the Government\'s rights in the subject inventions. This
> disclosure format shall at a minimum include the information required
> by subparagraph (c)(1) of this clause. The Contractor shall instruct
> such employees, through employee agreements or other suitable
> educational programs, on the importance of reporting inventions in
> sufficient time to permit the filing of patent applications prior to
> U.S. or foreign statutory bars.
>
> \(3\) Contractor procedures for reporting subject inventions to DOE.
> The Contractor agrees to establish and maintain effective procedures
> for ensuring the prompt identification and timely disclosure of
> subject inventions to DOE. The Contractor shall submit a written
> description of such procedures to the Contracting Officer, upon
> request, for evaluation and approval of the effectiveness of such
> procedures by the Contracting Officer.
>
> \(4\) Notification of discontinuation of patent protection. With
> respect to any subject invention for which the Contractor has
> responsibility for patent prosecution, the Contractor shall notify
> Patent Counsel of any decision to discontinue the prosecution of a
> patent application, payment of maintenance fees, or defense of a
> subject invention in a reexamination or opposition proceeding, in any
> country, not less than thirty (30) days before the expiration of the
> response period for any action required by the corresponding patent
> office.
>
> \(5\) Notification of Government rights. With respect to any subject
> invention to which the Contractor has title, the Contractor agrees to
> include, within the specification of any United States patent
> application and within any patent issuing thereon claiming a subject
> invention, the following statement, \"This invention was made with
> Government support under (identify the contract) awarded by the United
> States Department of Energy. The Government has certain rights in the
> invention.\"
>
> \(6\) Avoidance of Royalty Charges. If the Contractor licenses a
> subject invention, the Contractor agrees to avoid royalty charges on
> acquisitions involving Government funds, including funds derived
> through a Military Assistance Program of the Government or otherwise
> derived through the Government, to refund any amounts received as
> royalty charges on a subject invention in acquisitions for, or on
> behalf of, the Government, and to provide for such refund in any
> instrument transferring rights in the subject invention to any party.
>
> \(7\) DOE approval of assignment of rights. Rights in a subject
> invention in the United States may not be assigned by the Contractor
> without the approval of DOE.
>
> \(8\) Small business firm licensees. The Contractor shall make efforts
> that are reasonable under the circumstances to attract licensees of
> subject inventions that are small business firms, and may give a
> preference to a small business firm when licensing a subject invention
> if the Contractor determines that the small business firm has a plan
> or proposal for marketing the invention which, if executed, is equally
> as likely to bring the invention to practical application as any plans
> or proposals from applicants that are not small business firms;
> provided, the Contractor is also satisfied that the small business
> firm has the capability and resources to carry out its plan or
> proposal. The decision as to whether to give a preference in any
> specific case is at the discretion of the Contractor.
>
> \(9\) Contractor licensing of subject inventions. To the extent that
> it provides the most effective technology transfer, licensing of
> subject inventions shall be administered by Contractor employees on
> location at the facility.
>
> \(g\) Subcontracts.
>
> \(1\) Subcontractor subject inventions. The Contractor shall not
> obtain rights in the subcontractor\'s subject inventions as part of
> the consideration for awarding a subcontract.
>
> \(2\) Inclusion of patent rights clause-non-profit organization or
> small business firm subcontractors. Unless otherwise authorized or
> directed by the Contracting Officer, the Contractor shall include the
> patent rights clause at 48 CFR 952.227-11, suitably modified to
> identify the parties, in all subcontracts, at any tier, for
> experimental, developmental, demonstration or research work to be
> performed by a small business firm or domestic nonprofit organization,
> except subcontracts which are subject to exceptional circumstances in
> accordance with *35 U.S.C. 202* and subparagraph (b)(5) of this
> clause.
>
> \(3\) Inclusion of patent rights clause-subcontractors other than
> non-profit organizations or small business firms. Except for the
> subcontracts described in subparagraph (g)(2) of this clause, the
> Contractor shall include the patent rights clause at 48 CFR
> 952.227-13, suitably modified to identify the parties and any
> applicable exceptional circumstance, in any contract for experimental,
> developmental, demonstration or research work.
>
> \(4\) DOE and subcontractor contract. With respect to subcontracts at
> any tier, DOE, the subcontractor and Contractor agree that the mutual
> obligations of the parties created by this clause constitute a
> contract between the subcontractor and DOE with respect to those
> matters covered by this clause; provided, however, that nothing in
> this paragraph is intended to confer any jurisdiction under the
> Contract Disputes Act in connection with proceedings under paragraph
> (j) of this clause.
>
> \(5\) Subcontractor refusal to accept terms of patent rights clause.
> If a prospective subcontractor refuses to accept the terms of a patent
> rights clause, the Contractor shall promptly submit a written notice
> to the Contracting Officer stating the subcontractor\'s reasons for
> such refusal and including relevant information for expediting
> disposition of the matter; and the Contractor shall not proceed with
> the subcontract without the written authorization of the Contracting
> Officer.
>
> \(6\) Notification of award of subcontract. Upon the award of any
> subcontract at any tier containing a patent rights clause, the
> Contractor shall promptly notify the Contracting Officer in writing
> and identify the subcontractor, the applicable patent rights clause,
> the work to be performed under the subcontract, and the dates of award
> and estimated completion. Upon request of the Contracting Officer, the
> Contractor shall furnish a copy of a subcontract.
>
> \(7\) Identification of subcontractor subject inventions. If the
> Contractor in the performance of this contract becomes aware of a
> subject invention made under a subcontract, the Contractor shall
> promptly notify Patent Counsel and identify the subject invention,
> with a copy of the notification and identification to the Contracting
> Officer.
>
> \(h\) Reporting on Utilization of Subject Inventions. Upon request by
> DOE, the Contractor agrees to submit periodic reports, no more
> frequently than annually, describing the utilization of a subject
> invention or efforts made by the Contractor or its licensees or
> assignees to obtain utilization of the subject invention. The reports
> shall include information regarding the status of development, date of
> first commercial sale or use, gross royalties received by the
> Contractor, and other data and information reasonably specified by
> DOE. Upon request by DOE, the Contractor also agrees to provide
> reports in connection with any march-in proceedings undertaken by DOE,
> in accordance with paragraph (j) of this clause. If any data or
> information reported by the Contractor in accordance with this
> provision is considered privileged and confidential by the Contractor,
> its licensee, or assignee and the Contractor properly marks the data
> or information privileged or confidential, DOE agrees not to disclose
> such information to persons outside the Government, to the extent
> permitted by law.
>
> \(i\) Preference for United States Industry. Notwithstanding any other
> provision of this clause the Contractor agrees that with respect to
> any subject invention in which it retains title, neither it nor any
> assignee may grant to any person the exclusive right to use or sell
> any subject invention in the United States unless such person agrees
> that any products embodying the subject invention or produced through
> the use of the subject invention will be manufactured substantially in
> the United States. However, in individual cases, DOE may waive the
> requirement for such an agreement upon a showing by the Contractor or
> its assignee that reasonable but unsuccessful efforts have been made
> to grant licenses on similar terms to potential licensees that would
> be likely to manufacture substantially in the United States or that
> under the circumstances domestic manufacture is not commercially
> feasible.
>
> \(j\) March-In Rights. With respect to any subject invention to which
> the Contractor has elected to retain or is granted title, DOE may, in
> accordance with the procedures in the DOE patent waiver regulations,
> require the Contractor, an assignee or exclusive licensee of a subject
> invention to grant a nonexclusive, partially exclusive or exclusive
> license in any field of use to a responsible applicant or applicants,
> upon terms that are reasonable under the circumstances. If the
> Contractor, assignee or exclusive licensee refuses such a request, DOE
> has the right to grant such a license itself if DOE determines that-
>
> \(1\) Such action is necessary because the Contractor or assignee has
> not taken, or is not expected to take within a reasonable time,
> effective steps to achieve practical application of the subject
> invention in such field of use;
>
> \(2\) Such action is necessary to alleviate health or safety needs
> that are not reasonably satisfied by the Contractor, assignee, or
> their licensees;
>
> \(3\) Such action is necessary to meet requirements for public use
> specified by government regulations and such requirements are not
> reasonably satisfied by the Contractor, assignee, or licensees; or
>
> \(4\) Such action is necessary because the agreement to substantially
> manufacture in the United States and required by paragraph (i) of this
> clause has neither been obtained nor waived or because a licensee of
> the exclusive right to use or sell any subject invention in the United
> States is in breach of such agreement.
>
> \(k\) Communications. The Contractor shall direct any notification,
> disclosure, or request provided for in this clause to the Patent
> Counsel identified in the contract.
>
> \(l\) Reports.
>
> \(1\) Interim reports. Upon DOE\'s request, the Contractor shall
> submit to DOE, no more frequently than annually, a list of subject
> inventions disclosed to DOE during a specified period, or a statement
> that no subject inventions were made during the specified period;
> and/or a list of subcontracts containing a patent clause and awarded
> by the Contractor during a specified period, or a statement that no
> such subcontracts were awarded during the specified period. The
> interim report shall state whether the Contractor\'s invention
> disclosures were submitted to DOE in accordance with the requirements
> of subparagraphs (f)(3) and (f)(4) of this clause.
>
> \(2\) Final reports. Upon DOE\'s request, the Contractor shall submit
> to DOE, prior to closeout of the contract or within three (3) months
> of the date of completion of the contracted work, a list of all
> subject inventions disclosed during the performance period of the
> contract, or a statement that no subject inventions were made during
> the contract performance period; and/or a list of all subcontracts
> containing a patent clause and awarded by the Contractor during the
> contract performance period, or a statement that no such subcontracts
> were awarded during the contract performance period.
>
> \(m\) Facilities License. In addition to the rights of the parties
> with respect to inventions or discoveries conceived or first actually
> reduced to practice in the course of or under this contract, the
> Contractor agrees to and does hereby grant to the Government an
> irrevocable, nonexclusive, paid-up license in and to any inventions or
> discoveries regardless of when conceived or actually reduced to
> practice or acquired by the contractor at any time through completion
> of this contract and which are incorporated or embodied in the
> construction of the facility or which are utilized in the operation of
> the facility or which cover articles, materials, or products
> manufactured at the facility
>
> \(1\) to practice or have practiced by or for the Government at the
> facility, and
>
> \(2\) to transfer such license with the transfer of that facility.
> Notwithstanding the acceptance or exercise by the Government of these
> rights, the Government may contest at any time the enforceability,
> validity or scope of, or title to, any rights or patents herein
> licensed.
>
> \(n\) Atomic Energy.
>
> \(1\) Pecuniary awards. No claim for pecuniary award of compensation
> under the provisions of the Atomic Energy Act of 1954, as amended, may
> be asserted with respect to any invention or discovery made or
> conceived in the course of or under this contract.
>
> \(2\) Patent Agreements. Except as otherwise authorized in writing by
> the Contracting Officer, the Contractor shall obtain patent agreements
> to effectuate the provisions of subparagraph (o)(1) of this clause
> from all persons who perform any part of the work under this contract,
> except nontechnical personnel, such as clerical employees and manual
> laborers.
>
> \(o\) Classified Inventions.
>
> \(1\) Approval for filing a foreign patent application. The Contractor
> shall not file or cause to be filed an application or registration for
> a patent disclosing a subject invention related to classified subject
> matter in any country other than the United States without first
> obtaining the written approval of the Contracting Officer.
>
> \(2\) Transmission of classified subject matter. If in accordance with
> this clause the Contractor files a patent application in the United
> States disclosing a subject invention that is classified for reasons
> of security, the Contractor shall observe all applicable security
> regulations covering the transmission of classified subject matter. If
> the Contractor transmits a patent application disclosing a classified
> subject invention to the United States Patent and Trademark Office
> (USPTO), the Contractor shall submit a separate letter to the USPTO
> identifying the contract or contracts by agency and agreement number
> that require security classification markings to be placed on the
> patent application.
>
> \(3\) Inclusion of clause in subcontracts. The Contractor agrees to
> include the substance of this clause in subcontracts at any tier that
> cover or are likely to cover subject matter classified for reasons of
> security.
>
> \(p\) Examination of Records Relating to Inventions.
>
> \(1\) Contractor compliance. Until the expiration of three (3) years
> after final payment under this contract, the Contracting Officer or
> any authorized representative may examine any books (including
> laboratory notebooks), records, and documents and other supporting
> data of the Contractor, which the Contracting Officer or authorized
> representative deems reasonably pertinent to the discovery or
> identification of subject inventions, including exceptional
> circumstance subject inventions, or to determine Contractor (and
> inventor) compliance with the requirements of this clause, including
> proper identification and disclosure of subject inventions, and
> establishment and maintenance of invention disclosure procedures.
>
> \(2\) Unreported inventions. If the Contracting Officer is aware of an
> invention that is not disclosed by the Contractor to DOE, and the
> Contracting Officer believes the unreported invention may be a subject
> invention, DOE may require the Contractor to submit to DOE a
> disclosure of the invention for a determination of ownership rights.
>
> \(3\) Confidentiality. Any examination of records under this paragraph
> is subject to appropriate conditions to protect the confidentiality of
> the information involved.
>
> \(4\) Power of inspection. With respect to a subject invention for
> which the Contractor has responsibility for patent prosecution, the
> Contractor shall furnish the Government, upon request by DOE, an
> irrevocable power to inspect and make copies of a prosecution file for
> any patent application claiming the subject invention.
>
> \(q\) Patent Functions. Upon the written request of the Contracting
> Officer or Patent Counsel, the Contractor agrees to make reasonable
> efforts to support DOE in accomplishing patent-related functions for
> work arising out of the contract, including, but not limited to, the
> prosecution of patent applications, and the determination of questions
> of novelty, patentability, and inventorship.
>
> \(r\) Educational Awards Subject to *35 U.S.C. 212.* The Contractor
> shall notify the Contracting Officer prior to the placement of any
> person subject to *35 U.S.C. 212* in an area of technology or task (1)
> related to exceptional circumstance technology or (2) any person who
> is subject to treaties or international agreements as set forth in
> paragraph (b)(6) of this clause or to agreements other than funding
> agreements. The Contracting Officer may disapprove of any such
> placement.
>
> \(s\) Annual Appraisal by Patent Counsel. Patent Counsel may conduct
> an annual appraisal to evaluate the Contractor\'s effectiveness in
> identifying and protecting subject inventions in accordance with DOE
> policy.
>
> \(t\) Publication. It is recognized that during the course of the work
> under this contract, the Contractor or its employees may from time to
> time desire to release or publish information regarding scientific or
> technical developments conceived or first actually reduced to practice
> in the course of or under this contract. In order that public
> disclosure of such information will not adversely affect the patent
> interest of DOE or the Contractor, timely notification of the release
> of scientific and technical publications shall be provided to the
> Contractor personnel responsible for patent matters. Contractor
> delivery of this data and information to the NNSA Patent Counsel shall
> be considered met if the required data and information is entered into
> an appropriate database of listed publications and the NNSA Patent
> Counsel has read only access to the database. A copy of this data and
> information must be made available to the Contracting Officer upon
> request.
>
> \(u\) Termination of Contractor\'s Advance Class Waiver. If a request
> by the Contractor for an advance class waiver pursuant to subparagraph
> (b)(2) of this clause or a determination of greater rights pursuant to
> paragraph (c) of this clause contains false material statements or
> fails to disclose material facts, and DOE relies on the false
> statements or omissions in granting the Contractor\'s request, the
> waiver or grant of any Government rights (in whole or in part) to the
> subject invention(s) may be terminated at the discretion of the
> Secretary of Energy or designee. Prior to termination, DOE shall
> provide the Contractor with written notification of the termination,
> including a statement of facts in support of the termination, and the
> Contractor shall be allowed thirty (30) days, or a longer period
> authorized by the Secretary of Energy or designee for good cause shown
> in writing by the Contractor, to show cause for not terminating the
> waiver or grant. Any termination of an advance class waiver or a
> determination of greater rights is subject to the Contractor\'s
> license as provided for in paragraph (f) of this clause.

# DEAR 970.5228-1 INSURANCE \-- LITIGATION AND CLAIMS (MAR 2002) (DEVIATION)

> \(a\) The contractor may, with the prior written authorization of the
> contracting officer, and shall, upon the request of the Government,
> initiate litigation against third parties, including proceedings
> before administrative agencies, in connection with this contract. The
> contractor shall proceed with such litigation in good faith and as
> directed from time to time by the contracting officer.
>
> \(b\) The contractor shall give the contracting officer immediate
> notice in writing of any legal proceeding, including any proceeding
> before an administrative agency, filed against the contractor arising
> out of the performance of this contract. Except as otherwise directed
> by the contracting officer, in writing, the contractor shall furnish
> immediately to the contracting officer copies of all pertinent papers
> received by the contractor with respect to such action. The
> contractor, with the prior written authorization of the contracting
> officer, shall proceed with such litigation in good faith and as
> directed from time to time by the contracting officer.
>
> \(c\) (1) Except as provided in paragraph (c)(2) of this clause, the
> contractor shall procure and maintain such bonds and insurance as
> required by law or approved in writing by the contracting officer.
>
> \(2\) The contractor may, with the approval of the contracting
> officer, maintain a self-insurance program; provided that, with
> respect to workers\' compensation, the contractor is qualified
> pursuant to statutory authority.
>
> \(3\) All bonds and insurance required by this clause shall be in a
> form and amount and for those periods as the contracting officer may
> require or approve and with sureties and insurers approved by the
> contracting officer.
>
> \(d\) The contractor agrees to submit for the contracting officer\'s
> approval, to the extent and in the manner required by the contracting
> officer, any other bonds and insurance that are maintained by the
> contractor in connection with the performance of this contract and for
> which the contractor seeks reimbursement. If an insurance cost
> (whether a premium for commercial insurance or related to
> self-insurance) includes a portion covering costs made unallowable
> elsewhere in the contract, and the share of the cost for coverage for
> the unallowable cost is determinable, the portion of the cost that is
> otherwise an allowable cost under this contract is reimbursable to the
> extent determined by the contracting officer.
>
> \(e\) Except as provided in subparagraphs (g) and (h) of this clause,
> or specifically disallowed elsewhere in this contract, the contractor
> shall be reimbursed\--
>
> \(1\) For that portion of the reasonable cost of bonds and insurance
> allocable to this contract required in accordance with contract terms
> or approved under this clause, and
>
> \(2\) For liabilities (and reasonable expenses incidental to such
> liabilities, including litigation costs) to third persons not
> compensated by insurance or otherwise without regard to and as an
> exception to the clause of this contract entitled "Obligation of
> Funds."
>
> \(f\) The Government\'s liability under paragraph (e) of this clause
> is subject to the availability of appropriated funds. Nothing in this
> contract shall be construed as implying that the Congress will, at a
> later date, appropriate funds sufficient to meet deficiencies.
>
> \(g\) Notwithstanding any other provision of this contract, the
> contractor shall not be reimbursed for liabilities (and expenses
> incidental to such liabilities, including litigation costs, counsel
> fees, judgment and settlements)\--
>
> \(1\) Which are otherwise unallowable by law or the provisions of this
> contract; or
>
> \(2\) For which the contractor has failed to insure or to maintain
> insurance as required by law, this contract, or by the written
> direction of the contracting officer.
>
> \(h\) In addition to the cost reimbursement limitations contained in
> 48 CFR Part 31, as supplemented by 48 CFR 970.31, and notwithstanding
> any other provision of this contract, the contractor\'s liabilities to
> third persons, including employees but excluding costs incidental to
> workers\' compensation actions, (and any expenses incidental to such
> liabilities, including litigation costs, counsel fees, judgments and
> settlements) shall not be reimbursed if such liabilities were caused
> by contractor managerial personnel\'s\--
>
> \(1\) Willful misconduct,
>
> \(2\) Lack of good faith, or
>
> \(3\) Failure to exercise prudent business judgment, which means
> failure to act in the same manner as a prudent person in the conduct
> of competitive business; or, in the case of a non-profit educational
> institution, failure to act in the manner that a prudent person would
> under the circumstances prevailing at the time the decision to incur
> the cost is made.
>
> \(i\) The burden of proof shall be upon the contractor to establish
> that costs covered by paragraph (h) of this clause are allowable and
> reasonable if, after an initial review of the facts, the contracting
> officer challenges a specific cost or informs the contractor that
> there is reason to believe that the cost results from willful
> misconduct, lack of good faith, or failure to exercise prudent
> business judgment by contractor managerial personnel.
>
> \(j\) (1) All litigation costs, including counsel fees, judgments and
> settlements shall be differentiated and accounted for by the
> contractor so as to be separately identifiable. If the contracting
> officer provisionally disallows such costs, then the contractor may
> not use funds advanced by DOE under the contract to finance the
> litigation.
>
> \(2\) Punitive damages are not allowable unless the act or failure to
> act which gave rise to the liability resulted from compliance with
> specific terms and conditions of the contract or written instructions
> from the contracting officer.
>
> \(3\) The portion of the cost of insurance obtained by the contractor
> that is allocable to coverage of liabilities referred to in paragraph
> (g)(1) of this clause is not allowable.
>
> \(4\) The term \"contractor\'s managerial personnel\" is defined in
> clause paragraph (j) of 48 CFR 970.5245-1 of this contract.
>
> \(k\) The contractor may at its own expense and not as an allowable
> cost procure for its own protection insurance to compensate the
> contractor for any unallowable or unreimbursable costs incurred in
> connection with contract performance.
>
> \(l\) If any suit or action is filed or any claim is made against the
> contractor, the cost and expense of which may be reimbursable to the
> contractor under this contract, and the risk of which is then
> uninsured or is insured for less than the amount claimed, the
> contractor shall\--
>
> \(1\) Immediately notify the contracting officer and promptly furnish
> copies of all pertinent papers received;
>
> \(2\) Authorize Department representatives to collaborate with:
> in-house or DOE-approved outside counsel in settling or defending the
> claim; or counsel for the insurance carrier in settling or defending
> the claim if the amount of the liability claimed exceeds the amount of
> coverage, unless precluded by the terms of the insurance contract; and
>
> \(3\) Authorize Department representatives to settle the claim or to
> defend or represent the contractor in and/or to take charge of any
> litigation, if required by the Department, if the liability is not
> insured or covered by bond. In any action against more than one
> Department contractor, the Department may require the contractor to be
> represented by common counsel. Counsel for the contractor may, at the
> contractor\'s own expense, be associated with the Department
> representatives in any such claim or litigation.
>
> \(m\) Reasonable litigation and other legal expenses are allowable
> when incurred in accordance with the DOE approved contractor legal
> management procedures (including cost guidelines) as such procedures
> may be revised from time to time, and if not otherwise made
> unallowable by law or the provisions of this contract.

# DEAR 970.5229-1 STATE AND LOCAL TAXES (DEC 2000)

> \(a\) The contractor agrees to notify the contracting officer of any
> State or local tax, fee, or charge levied or purported to be levied on
> or collected from the contractor with respect to the contract work,
> any transaction thereunder, or property in the custody or control of
> the contractor and constituting an allowable item of cost if due and
> payable, but which the contractor has reason to believe, or the
> Contracting Officer has advised the contractor, is or may be
> inapplicable or invalid; and the contractor further agrees to refrain
> from paying any such tax, fee, or charge unless authorized in writing
> by the Contracting Officer. Any State or local tax, fee, or charge
> paid with the approval of the Contracting Officer or on the basis of
> advice from the contracting officer that such tax, fee, or charge is
> applicable and valid, and which would otherwise be an allowable item
> of cost, shall not be disallowed as an item of cost by reason of any
> subsequent ruling or determination that such tax, fee, or charge was
> in fact inapplicable or invalid.
>
> \(b\) The contractor agrees to take such action as may be required or
> approved by the contracting officer to cause any State or local tax,
> fee or charge which would be an allowable cost to be paid under
> protest; and to take such action as may be required or approved by the
> contracting officer to seek recovery of any payments made, including
> assignment to the Government or its designee of all rights to an
> abatement or refund thereof, and granting permission for the
> Government to join with the contractor in any proceedings for the
> recovery thereof or to sue for recovery in the name of the contractor.
> If the contracting officer directs the contractor to institute
> litigation to enjoin the collection of or to recover payment of any
> such tax, fee, or charge referred to above, or if a claim or suit is
> filed against the contractor for a tax, fee, or charge it has
> refrained from paying in accordance with this article, the procedures
> and requirements of the clause entitled \"Insurance \-- Litigation and
> Claims\" shall apply and the costs and expenses incurred by the
> contractor shall be allowable items of costs, as provided in this
> contract, together with the amount of any judgment rendered against
> the contractor.
>
> \(c\) The Government shall hold the contractor harmless from penalties
> and interest incurred through compliance with this clause. All
> recoveries or credits in respect of the foregoing taxes, fees, and
> charges (including interest) shall inure to and be for the sole
> benefit of the Government.

# DEAR 970.5232-1 REDUCTION OR SUSPENSION OF ADVANCE, PARTIAL, OR PROGRESS PAYMENTS (DEC 2000)

> \(a\) The contracting officer may reduce or suspend further advance,
> partial, or progress payments to the contractor upon a written
> determination by the Senior Procurement Executive that substantial
> evidence exists that the contractor\'s request for advance, partial,
> or progress payment is based on fraud.
>
> \(b\) The contractor shall be afforded a reasonable opportunity to
> respond in writing.

# DEAR 970.5232-2 PAYMENTS AND ADVANCES (DEC 2000) - ALTERNATE III (DEC 2000)

> \(a\) [Installments of fixed-fee]{.underline}. The fixed-fee payable
> under this contract shall become due and payable in periodic
> installments in accordance with a schedule determined by the
> contracting officer. Fixed-fee payments shall be made by direct
> payment or withdrawn from funds advanced or available under this
> contract, as determined by the contracting officer. The contracting
> officer may offset against any such fee payment the amounts owed to
> the Government by the contractor, including any amounts owed for
> disallowed costs under this contract. No fixed-fee payment may be
> withdrawn against the payments cleared financing arrangement without
> prior written approval of the contracting officer.
>
> \(b\) [Payments on Account of Allowable Costs]{.underline}. The
> contracting officer and the contractor shall agree as to the extent to
> which payment for allowable costs or payments for other items
> specifically approved in writing by the contracting officer (for
> example, negotiated fixed amounts) shall be made from advances of
> Government funds. When pension contributions are paid by the
> contractor to the retirement fund less frequently than quarterly,
> accrued costs therefor shall be excluded from costs for payment
> purposes until such costs are paid. If pension contributions are paid
> on a quarterly or more frequent basis, accrual therefor may be
> included in costs for payment purposes, provided that they are paid to
> the fund within 30 days after the close of the period covered. If
> payments are not made to the fund within such 30-day period, pension
> contribution costs shall be excluded from cost for payment purposes
> until payment has been made.
>
> \(c\) [Special financial institution account\--use]{.underline}. All
> advances of Government funds shall be withdrawn pursuant to a payments
> cleared financing arrangement prescribed by DOE in favor of the
> financial institution or, at the option of the Government, shall be
> made by direct payment or other payment mechanism to the contractor,
> and shall be deposited only in the special financial institution
> account referred to in the Special Financial Institution Account
> Agreement, which is incorporated into this contract as Appendix C**.**
> No part of the funds in the special financial institution account
> shall be commingled with any funds of the contractor or used for a
> purpose other than that of making payments for costs allowable and, if
> applicable, fees earned under this contract, negotiated fixed amounts,
> or payments for other items specifically approved in writing by the
> contracting officer. If the contracting officer determines that the
> balance of such special financial institution account exceeds the
> contractor\'s current needs, the contractor shall promptly make such
> disposition of the excess as the contracting officer may direct.
>
> \(d\) [Title to funds advanced]{.underline}. Title to the unexpended
> balance of any funds advanced and of any special financial institution
> account established pursuant to this clause shall remain in the
> Government and be superior to any claim or lien of the financial
> institution of deposit or others. It is understood that an advance to
> the contractor hereunder is not a loan to the contractor, and will not
> require the payment of interest by the contractor, and that the
> contractor acquires no right, title or interest in or to such advance
> other than the right to make expenditures therefrom, as provided in
> this clause.
>
> \(e\) [Financial settlement]{.underline}. The Government shall
> promptly pay to the contractor the unpaid balance of allowable costs
> and fee upon termination of the work, expiration of the term of the
> contract, or completion of the work and its acceptance by the
> Government after:
>
> \(1\) Compliance by the contractor with DOE\'s patent clearance
> requirements, and
>
> \(2\) The furnishing by the contractor of:
>
> \(i\) An assignment of the contractor\'s rights to any refunds,
> rebates, allowances, accounts receivable, collections accruing to the
> contractor in connection with the work under this contract, or other
> credits applicable to allowable costs under the contract;
>
> \(ii\) A closing financial statement;
>
> \(iii\) The accounting for Government-owned property required by the
> clause entitled \"Property\"; and
>
> \(iv\) A release discharging the Government, its officers, agents, and
> employees from all liabilities, obligations, and claims arising out of
> or under this contract subject only to the following exceptions:
>
> \(A\) Specified claims in stated amounts or in estimated amounts where
> the amounts are not susceptible to exact statement by the contractor;
>
> \(B\) Claims, together with reasonable expenses incidental thereto,
> based upon liabilities of the contractor to third parties arising out
> of the performance of this contract; provided that such claims are not
> known to the contractor on the date of the execution of the release;
> and provided further that the contractor gives notice of such claims
> in writing to the contracting officer promptly, but not more than one
> (1) year after the contractor\'s right of action first accrues. In
> addition, the contractor shall provide prompt notice to the
> contracting officer of all potential claims under this clause, whether
> in litigation or not (see also Contract Clause entitled
> \"Insurance\--Litigation and Claims\");
>
> \(C\) Claims for reimbursement of costs (other than expenses of the
> contractor by reason of any indemnification of the Government against
> patent liability), including reasonable expenses incidental thereto,
> incurred by the contractor under the provisions of this contract
> relating to patents; and
>
> \(D\) Claims recognizable under the clause entitled, Nuclear Hazards
> Indemnity Agreement.
>
> \(3\) In arriving at the amount due the contractor under this clause,
> there shall be deducted,
>
> \(i\) any claim which the Government may have against the contractor
> in connection with this contract, and
>
> \(ii\) deductions due under the terms of this contract, and not
> otherwise recovered by or credited to the Government. The unliquidated
> balance of the special financial institution account may be applied to
> the amount due and any balance shall be returned to the Government
> forthwith.
>
> \(f\) [Claims]{.underline}. Claims for credit against funds advanced
> for payment shall be accompanied by such supporting documents and
> justification as the contracting officer shall prescribe.
>
> \(g\) [Discounts]{.underline}. The contractor shall take and afford
> the Government the advantage of all known and available cash and trade
> discounts, rebates, allowances, credits, salvage, and commissions
> unless the contracting officer finds that action is not in the best
> interest of the Government.
>
> \(h\) [Collections]{.underline}. All collections accruing to the
> contractor in connection with the work under this contract, except for
> the contractor\'s fee and royalties or other income accruing to the
> contractor from technology transfer activities in accordance with this
> contract, shall be Government property and shall be processed and
> accounted for in accordance with applicable requirements imposed by
> the contracting officer pursuant to the Laws, regulations, and DOE
> directives clause of this contract and, to the extent consistent with
> those requirements, shall be deposited in the special financial
> institution account or otherwise made available for payment of
> allowable costs under this contract, unless otherwise directed by the
> contracting officer.
>
> \(i\) [Direct payment of charges]{.underline}. The Government reserves
> the right, upon ten days written notice from the contracting officer
> to the contractor, to pay directly to the persons concerned, all
> amounts due which otherwise would be allowable under this contract.
> Any payment so made shall discharge the Government of all liability to
> the contractor therefor.
>
> \(j\) [Determining Allowable Costs]{.underline}. The contracting
> officer shall determine allowable costs in accordance with the Federal
> Acquisition Regulation subpart 31.2 and the Department of Energy
> Acquisition Regulation subpart 48 CFR 970.31 in effect on the date of
> this contract and other provisions of this contract.
>
> \(k\) Review and approval of costs incurred. The contractor shall
> prepare and submit annually as of September 30, a \"Statement of Costs
> Incurred and Claimed\" (Cost Statement) for the total of net
> expenditures accrued (i.e., net costs incurred) for the period covered
> by the Cost Statement. The contractor shall certify the Cost Statement
> subject to the penalty provisions for unallowable costs as stated in
> sections 306(b) and (i) of the Federal Property and Administrative
> Services Act of 1949 *(41 U.S.C. 256),* as amended. DOE, after audit
> and appropriate adjustment, will approve such Cost Statement. This
> approval by DOE will constitute an acknowledgment by DOE that the net
> costs incurred are allowable under the contract and that they have
> been recorded in the accounts maintained by the contractor in
> accordance with DOE accounting policies, but will not relieve the
> contractor of responsibility for DOE\'s assets in its care, for
> appropriate subsequent adjustments, or for errors later becoming known
> to DOE.

# DEAR 970.5232-3 ACCOUNTS, RECORDS, AND INSPECTION (DEC 2000) - ALTERNATE II (DEC 2000)

> \(a\) Accounts. The contractor shall maintain a separate and distinct
> set of accounts, records, documents, and other evidence showing and
> supporting: all allowable costs incurred; collections accruing to the
> contractor in connection with the work under this contract, other
> applicable credits, and fee accruals under this contract; and the
> receipt, use, and disposition of all Government property coming into
> the possession of the contractor under this contract. The system of
> accounts employed by the contractor shall be satisfactory to DOE and
> in accordance with generally accepted accounting principles
> consistently applied.
>
> \(b\) Inspection and audit of accounts and records. All books of
> account and records relating to this contract shall be subject to
> inspection and audit by DOE or its designees in accordance with the
> provisions of Clause I.126, Access To and Ownership of Records, at all
> reasonable times, before and during the period of retention provided
> for in paragraph (d) of this clause, and the contractor shall afford
> DOE proper facilities for such inspection and audit.
>
> \(c\) Audit of subcontractors\' records. The contractor also agrees,
> with respect to any subcontracts (including fixed-price or unit-price
> subcontracts or purchase orders) where, under the terms of the
> subcontract, costs incurred are a factor in determining the amount
> payable to the subcontractor of any tier, to either conduct an audit
> of the subcontractor\'s costs or arrange for such an audit to be
> performed by the cognizant government audit agency through the
> contracting officer.
>
> \(d\) Disposition of records. Except as agreed upon by the Government
> and the contractor, all financial and cost reports, books of account
> and supporting documents, system files, data bases, and other data
> evidencing costs allowable, collections accruing to the contractor in
> connection with the work under this contract, other applicable
> credits, and fee accruals under this contract, shall be the property
> of the Government, and shall be delivered to the Government or
> otherwise disposed of by the contractor either as the contracting
> officer may from time to time direct during the progress of the work
> or, in any event, as the contracting officer shall direct upon
> completion or termination of this contract and final audit of accounts
> hereunder. Except as otherwise provided in this contract, including
> provisions of the Contract Clause entitled "Access To and Ownership of
> Records", all other records in the possession of the contractor
> relating to this contract shall be preserved by the contractor for a
> period of three years after final payment under this contract or
> otherwise disposed of in such manner as may be agreed upon by the
> Government and the contractor.
>
> \(e\) Reports. The contractor shall furnish such progress reports and
> schedules, financial and cost reports, and other reports concerning
> the work under this contract as the contracting officer may from time
> to time require.
>
> \(f\) Inspections. The DOE shall have the right to inspect the work
> and activities of the contractor under this contract at such time and
> in such manner as it shall deem appropriate.
>
> \(g\) Subcontracts. The contractor further agrees to require the
> inclusion of provisions similar to those in paragraphs (a) through (g)
> and paragraph (i) of this clause in all subcontracts (including
> fixed-price or unit-price subcontracts or purchase orders) of any tier
> entered into hereunder where, under the terms of the subcontract,
> costs incurred are a factor in determining the amount payable to the
> subcontractor.
>
> \(h\) Comptroller General.
>
> \(1\) The Comptroller General of the United States, or an authorized
> representative, shall have access to and the right to examine any of
> the contractor\'s directly pertinent records involving transactions
> related to this contract or a subcontract hereunder.
>
> \(2\) This paragraph may not be construed to require the contractor or
> subcontractor to create or maintain any record that the contractor or
> subcontractor does not maintain in the ordinary course of business or
> pursuant to a provision of law.
>
> \(3\) Nothing in this contract shall be deemed to preclude an audit by
> the General Accounting Office of any transaction under this contract.
>
> \(i\) Internal Audit The contractor agrees to conduct an internal
> audit and examination satisfactory to DOE of the records, operations,
> expenses, and the transactions with respect to costs claimed to be
> allowable under this contract annually and at such other times as may
> be mutually agreed upon. The results of such audit, including the
> working papers shall be submitted or made available to the contracting
> officer. The contractor shall include this paragraph (i) in all
> cost-reimbursement subcontracts with an estimated cost exceeding \$5
> million and expected to run for more than 2 years, and any other
> cost-reimbursement subcontract determined by the Head of the
> Contracting Activity.

# DEAR 970.5232-4 OBLIGATION OF FUNDS (DEC 2000) 

> \(a\) Obligation of funds. The amount presently obligated by the
> Government with respect to this contract is identified in the Contract
> Section B Clause entitled "Contract Type And Value." Such amount may
> be increased unilaterally by DOE by written notice to the contractor
> and may be increased or decreased by written agreement of the parties
> (whether or not by formal modification of this contract). Estimated
> collections from others for work and services to be performed under
> this contract are not included in the amount presently obligated. Such
> collections, to the extent actually received by the contractor, shall
> be processed and accounted for in accordance with applicable
> requirements imposed by the contracting officer pursuant to the Laws,
> regulations, and DOE directives clause of this contract. Nothing in
> this paragraph is to be construed as authorizing the contractor to
> exceed limitations stated in financial plans established by DOE and
> furnished to the contractor from time to time under this contract.
>
> \(b\) Limitation on payment by the Government. Except as otherwise
> provided in this contract and except for costs which may be incurred
> by the contractor pursuant to the Termination clause of this contract
> or costs of claims allowable under the contract occurring after
> completion or termination and not released by the contractor at the
> time of financial settlement of the contract in accordance with the
> clause entitled \"Payments and Advances,\" payment by the Government
> under this contract on account of allowable costs shall not, in the
> aggregate, exceed the amount obligated with respect to this contract,
> less the contractor\'s fee and any negotiated fixed amount. Unless
> expressly negated in this contract, payment on account of those costs
> excepted in the preceding sentence which are in excess of the amount
> obligated with respect to this contract shall be subject to the
> availability of:
>
> \(1\) collections accruing to the contractor in connection with the
> work under this contract and processed and accounted for in accordance
> with applicable requirements imposed by the contracting officer
> pursuant to the Laws, regulations, and DOE directives clause of this
> contract, and
>
> \(2\) other funds which DOE may legally use for such purpose, provided
> DOE will use its best efforts to obtain the appropriation of funds for
> this purpose if not otherwise available.
>
> \(c\) Notices-Contractor excused from further performance. The
> contractor shall notify DOE in writing whenever the unexpended balance
> of available funds (including collections available under paragraph
> (a) of this clause), plus the contractor\'s best estimate of
> collections to be received and available during the 90 day period
> hereinafter specified, is in the contractor\'s best judgment
> sufficient to continue contract operations at the programmed rate for
> only 90 days and to cover the contractor\'s unpaid fee and any
> negotiated fixed amounts, and outstanding encumbrances and liabilities
> on account of costs allowable under the contract at the end of such
> period. Whenever the unexpended balance of available funds (including
> collections available under paragraph (a) of this clause), less the
> amount of the contractor\'s fee then earned but not paid and any
> negotiated fixed amounts, is in the contractor\'s best judgment
> sufficient only to liquidate outstanding encumbrances and liabilities
> on account of costs allowable under this contract, the contractor
> shall immediately notify DOE and shall make no further encumbrances or
> expenditures (except to liquidate existing encumbrances and
> liabilities), and, unless the parties otherwise agree, the contractor
> shall be excused from further performance (except such performance as
> may become necessary in connection with termination by the Government)
> and the performance of all work hereunder will be deemed to have been
> terminated for the convenience of the Government in accordance with
> the provisions of the Termination clause of this contract.
>
> \(d\) Financial plans; cost and encumbrance limitations. In addition
> to the limitations provided for elsewhere in this contract, DOE may,
> through financial plans, such as Approved Funding Programs, or other
> directives issued to the contractor, establish controls on the costs
> to be incurred and encumbrances to be made in the performance of the
> contract work. Such plans and directives may be amended or
> supplemented from time to time by DOE. The contractor agrees
>
> \(1\) to comply with the specific limitations (ceilings) on costs and
> encumbrances set forth in such plans and directives,
>
> \(2\) to comply with other requirements of such plans and directives,
> and
>
> \(3\) to notify DOE promptly, in writing, whenever it has reason to
> believe that any limitation on costs and encumbrances will be exceeded
> or substantially underrun.
>
> \(e\) Government\'s right to terminate not affected. The giving of any
> notice under this clause shall not be construed to waive or impair any
> right of the Government to terminate the contract under the provisions
> of the Termination clause of this contract.

# DEAR 970.5232-5 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS (DEC 2000)

> \(a\) The contractor is not liable to the Government for increased
> costs or interest resulting from its failure to comply with the
> clauses of this contract entitled, \"Cost Accounting Standards,\" and
> \"Administration of Cost Accounting Standards,\" if its failure to
> comply with the clauses is caused by the contractor\'s compliance with
> published DOE financial management policies and procedures or other
> requirements established by the Department\'s Chief Financial Officer
> or Procurement Executive.
>
> \(b\) The contractor is not liable to the Government for increased
> costs or interest resulting from its subcontractors\' failure to
> comply with the clauses at FAR 52.230-2, \"Cost Accounting
> Standards,\" and FAR 52.230-6, Administration of Cost Accounting
> Standards,\" if the contractor includes in each covered subcontract a
> clause making the subcontractor liable to the Government for increased
> costs or interest resulting from the subcontractor\'s failure to
> comply with the clauses; and the contractor seeks the subcontract
> price adjustment and cooperates with the Government in the
> Government\'s attempts to recover from the subcontractor.

# DEAR 970.5232-6 WORK FOR OTHERS FUNDING AUTHORIZATION (DEC 2000) 

> Any uncollectible receivables resulting from the contractor utilizing
> contractor corporate funding for reimbursable work shall be the
> responsibility of the contractor, and the United States Government
> shall have no liability to the contractor for the contractor\'s
> uncollected receivables. The contractor is permitted to provide
> advance payment utilizing contractor corporate funds for reimbursable
> work to be performed by the contractor for a non-Federal entity in
> instances where advance payment from that entity is required under the
> Laws, regulations, and DOE directives clause of this contract and such
> advance cannot be obtained. The contractor is also permitted to
> provide advance payment utilizing contractor corporate funds to
> continue reimbursable work to be performed by the contractor for a
> Federal entity when the term or the funds on a Federal interagency
> agreement required under the Laws, regulations, and DOE directives
> clause of this contract have elapsed. The contractor\'s utilization of
> contractor corporate funds does not relieve the contractor of its
> responsibility to comply with all requirements for Work for Others
> applicable to this contract.

# DEAR 970.5232-7 FINANCIAL MANAGEMENT SYSTEM (DEC 2000) 

> The contractor shall maintain and administer a financial management
> system that is suitable to provide proper accounting in accordance
> with DOE requirements for assets, liabilities, collections accruing to
> the contractor in connection with the work under this contract,
> expenditures, costs, and encumbrances; permits the preparation of
> accounts and accurate, reliable financial and statistical reports; and
> assures that accountability for the assets can be maintained. The
> contractor shall submit to DOE for written approval an annual plan for
> new financial management systems and/or subsystems and major
> enhancements and/or upgrades to the currently existing financial
> systems and/or subsystems. The contractor shall notify DOE thirty (30)
> days in advance of any planned implementation of any substantial
> deviation from this plan and, as requested by the contracting officer,
> shall submit any such deviation to DOE for written approval before
> implementation.

# DEAR 970.5232-8 INTEGRATED ACCOUNTING SYSTEM (DEC 2000) 

> Integrated accounting procedures are required for use under this
> contract. The contractor\'s financial management system shall include
> an integrated accounting system that is linked to DOE\'s accounts
> through the use of reciprocal accounts and that has electronic
> capability to transmit monthly and year-end self-balancing trial
> balances to the Department\'s Primary Accounting System for reporting
> financial activity under this contract in accordance with requirements
> imposed by the contracting officer pursuant to the Laws, regulations,
> and DOE directives clause of this contract.

# DEAR 970.5235-1 FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER SPONSORING AGREEMENT (DEC 2000) (See Clause H-17)

> \(a\) Pursuant to 48 CFR 35.017-1, this contract constitutes the
> sponsoring agreement between the Department of Energy and the
> contractor, which establishes the relationship for the operation of a
> Department of Energy sponsored Federally Funded Research and
> Development Center (FFRDC).
>
> \(b\) In the operation of this FFRDC, the contractor may be provided
> access beyond that which is common to the normal contractual
> relationship, to Government and supplier data, including sensitive and
> proprietary data, and to Government employees and facilities needed to
> discharge its responsibilities efficiently and effectively.Because of
> this special relationship, it is essential that the FFRDC be operated
> in the public interest with objectivity and independence, be free from
> organizational conflicts of interest, and have full disclosure of its
> affairs to the Department of Energy.
>
> \(c\) Unless otherwise provided by the contract, the contractor may
> accept work from a nonsponsor (as defined in 48 CFR 35.017) in
> accordance with the requirements and limitations of DOE Order 481.1,
> Work for Others (Non-Department of Energy Funded Work) (see current
> version).
>
> \(d\) As an FFRDC, the contractor shall not use its privileged
> information or access to government facilities to compete with the
> private sector. Specific guidance on restricted activities is
> contained in DOE Order 481.1.

# DEAR 970.5236-1 GOVERNMENT FACILITY SUBCONTRACT APPROVAL (DEC 2000)

> Upon request of the contracting officer and acceptance thereof by the
> contractor, the contractor shall procure, by subcontract, the
> construction of new facilities or the alteration or repair of
> Government-owned facilities at the plant. Any subcontract entered into
> under this paragraph shall be subject to the written approval of the
> contracting officer and shall contain the provisions relative to labor
> and wages required by law to be included in contracts for the
> construction, alteration, and/or repair, including painting and
> decorating, of a public building or public work.

# DEAR 970.5242-1 PENALTIES FOR UNALLOWABLE COSTS (DEC 2000)

> \(a\) Contractors which include unallowable cost in a submission for
> settlement for cost incurred, may be subject to penalties.
>
> \(b\) If, during the review of a submission for settlement of cost
> incurred, the contracting officer determines that the submission
> contains an expressly unallowable cost or a cost determined to be
> unallowable prior to the submission, the contracting officer shall
> assess a penalty.
>
> \(c\) Unallowable costs are either expressly unallowable or determined
> unallowable.
>
> \(1\) An expressly unallowable cost is a particular item or type of
> cost which, under the express provisions of an applicable law,
> regulation, or this contract, is specifically named and stated to be
> unallowable.
>
> \(2\) A cost determined unallowable is one which, for that contractor,
>
> \(i\) was subject to a contracting officer\'s final decision and not
> appealed;
>
> \(ii\) the Department\'s Board of Contract Appeals or a court has
> previously ruled as unallowable; or
>
> \(iii\) was mutually agreed to be unallowable.
>
> \(d\) If the contracting officer determines that a cost submitted by
> the contractor in its submission for settlement of cost incurred is:
>
> \(1\) expressly unallowable, then the contracting officer shall assess
> a penalty in an amount equal to the disallowed cost allocated to this
> contract plus interest on the paid portion of the disallowed cost.
> Interest shall be computed from the date of overpayment to the date of
> repayment using the interest rate specified by the Secretary of the
> Treasury pursuant to Pub. L. 92-41 (85 Stat. 97); or
>
> \(2\) determined unallowable, then the contracting officer shall
> assess a penalty in an amount equal to two times the amount of the
> disallowed cost allocated to this contract.
>
> \(e\) The contracting officer may waive the penalty provisions when
>
> \(1\) the contractor withdraws the submission before the formal
> initiation of an audit of the submission and submits a revised
> submission;
>
> \(2\) the amount of the unallowable costs allocated to covered
> contracts is \$10,000 or less; or
>
> \(3\) the contractor demonstrates to the contracting officer\'s
> satisfaction that:
>
> \(i\) it has established appropriate policies, personnel training, and
> an internal control and review system that provides assurances that
> unallowable costs subject to penalties are precluded from the
> contractor\'s submission for settlement of costs; and
>
> \(ii\) the unallowable costs subject to the penalty were inadvertently
> incorporated into the submission.

# DEAR 970.5243-1 CHANGES (DEC 2000)

> \(a\) [Changes and adjustment of fee]{.underline}. The contracting
> officer may at any time and without notice to the sureties, if any,
> issue written directions within the general scope of this contract
> requiring additional work or directing the omission of, or variation
> in, work covered by this contract. If any such direction results in a
> material change in the amount or character of the work described in
> the \"Statement of Work,\" an equitable adjustment of the fee, if any,
> shall be made in accordance with the agreement of the parties and the
> contract shall be modified in writing accordingly. Any claim by the
> contractor for an adjustment under this clause must be asserted in
> writing within 30 days from the date of receipt by the contractor of
> the notification of change; provided, however, that the contracting
> officer, if it is determined that the facts justify such action, may
> receive and act upon any such claim asserted at any time prior to
> final payment under this contract. A failure to agree on an equitable
> adjustment under this clause shall be deemed to be a dispute within
> the meaning of the clause entitled \"Disputes.\"
>
> \(b\) [Work to continue]{.underline}. Nothing contained in this clause
> shall excuse the contractor from proceeding with the prosecution of
> the work in accordance with the requirements of any direction
> hereunder.

# DEAR 970.5244‑1 CONTRACTOR PURCHASING SYSTEM (DEC 2000) (DEVIATION)

> \(a\) [General]{.underline}. The contractor shall develop, implement,
> and maintain formal policies, practices, and procedures to be used in
> the award of subcontracts consistent with this clause and 48 CFR
> 970.44. The contractor\'s purchasing system and methods shall be fully
> documented, consistently applied, and acceptable to DOE in accordance
> with 48 CFR 970.4401-1. The contractor shall maintain file
> documentation which is appropriate to the value of the purchase and is
> adequate to establish the propriety of the transaction and the price
> paid. The contractor\'s purchasing performance will be evaluated
> against such performance criteria and measures as may be 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. DOE will
> conduct periodic appraisals of the contractor\'s management of all
> facets of the purchasing function, including the contractor\'s
> compliance with its approved system and methods. Such appraisals will
> be performed through the conduct of Contractor Purchasing System
> Reviews in accordance with 48 CFR subpart 44.3, or, when approved by
> the contracting officer, through the contractor\'s participation in
> the conduct of the Balanced Scorecard performance measurement and
> performance management system. The contractor\'s approved purchasing
> system and methods shall include the requirements set forth in
> paragraphs (b) through (y) of this clause.
>
> \(b\) [Acquisition of Utility Services]{.underline}. Utility services
> shall be acquired in accordance with the requirements of 48 CFR
> 970.41.
>
> \(c\) [Acquisition of Real Property]{.underline}. Real property shall
> be acquired in accordance with 48 CFR Subpart 917.74.
>
> \(d\) [Advance Notice of Proposed Subcontract Awards]{.underline}.
> Advance notice shall be provided in accordance with 48 CFR 970.4401-3.
>
> \(e\) [Audit of Subcontractors]{.underline}.
>
> \(1\) The contractor shall 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. The contractor 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 at 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. 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.
>
> \(4\) Allowable costs for cost reimbursable subcontracts are to be
> determined in accordance with the cost principles of 48 CFR Part 31,
> appropriate for the type of organization to which the subcontract is
> to be awarded, as supplemented by 48 CFR Part 931. Allowable costs in
> the purchase or transfer from contractor-affiliated sources shall be
> determined in accordance with 48 CFR 970.4402-2 and 48 CFR
> 970.3102-21(b).
>
> \(f\) [Bonds and Insurance]{.underline}.
>
> \(1\) The contractor shall require performance bonds in penal amounts
> as set forth in 48 CFR 28.102-2(a) for all fixed priced and
> unit-priced construction subcontracts in excess of \$100,000. The
> contractor shall consider the use of performance bonds in fixed price
> nonconstruction subcontracts, where appropriate.
>
> \(2\) For fixed price, unit-priced and cost-reimbursement construction
> subcontractors in excess of \$100,000 a payment bond shall be obtained
> on Standard Form 25A modified to name the contractor as well as the
> United States of America as obligees. The penal amounts shall be
> determined in accordance with 48 CFR 28.102-2(b).
>
> \(3\) For fixed-price, unit-priced and cost-reimbursement construction
> subcontracts, greater than \$25,000, but not greater than \$100,000,
> the contractor shall select two or more of the payment protections at
> 48 CFR 28.102-1(b), giving particular consideration to the inclusion
> of an irrevocable letter of credit as one of the selected
> alternatives.
>
> \(4\) A subcontractor may have more than one acceptable surety in both
> construction and other subcontracts, provided that in no case will the
> liability of any one surety exceed the maximum penal sum for which it
> is qualified for any one obligation. For subcontracts other than
> construction, a co-surety (two or more sureties together) may reinsure
> amounts in excess of their individual capacity, with each surety
> having the required underwriting capacity that appears on the list of
> acceptable corporate sureties.
>
> \(g\) [Buy American]{.underline}. The contractor shall comply with the
> provisions of the Buy American Act as reflected in 48 CFR 52.225-1
> (May 2002), as amended by AL 2002-06 and 48 CFR 52.225-9 (May 2002),
> as amended by AL 2002-06. The contractor shall forward determinations
> of nonavailability of individual items to the DOE contracting officer
> for approval. Items in excess of \$100,000 require the prior
> concurrence of the Head of Contracting Activity. If, however, the
> contractor has an approved purchasing system, the Head of the
> Contracting Activity may authorize the contractor to make
> determinations of nonavailability for individual items valued at
> \$100,000 or less.
>
> \(h\) [Construction and Architect-Engineer Subcontracts]{.underline}.
>
> \(1\) [Independent Estimates]{.underline}. A detailed, independent
> estimate of costs shall be prepared for all construction work to be
> subcontracted.
>
> \(2\) [Specifications]{.underline}. Specifications for construction
> shall be prepared in accordance with the DOE publication entitled
> \"General Design Criteria Manual.\"
>
> \(3\) [Prevention of Conflict of Interest]{.underline}.
>
> \(i\) The contractor shall not award a subcontract for construction to
> the architect-engineer firm or an affiliate that prepared the design.
> This prohibition does not preclude the award of a \"turnkey\"
> subcontract 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
> subcontract and a fixed-price subcontract for construction or
> architect-engineer services or any combination thereof to the same
> firm where those subcontracts 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]{.underline}. Equipment,
> materials, supplies, or services from a contractor-affiliated source
> shall be purchased or transferred in accordance with 48 CFR
> 970.4402-3.
>
> \(j\) [Contractor-Subcontractor Relationship]{.underline}. 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]{.underline}. Identification, inspection,
> maintenance, protection, and disposition of Government property shall
> conform with the policies and principles of 48 CFR Part 45, 48 CFR
> 945, the Federal Property Management Regulations 41 CFR Chapter 101,
> the DOE Property Management Regulations 41 CFR Chapter 109, and their
> contracts.
>
> \(l\) [Indemnification]{.underline}. Except for Price-Anderson Nuclear
> Hazards Indemnity, no subcontractor may be indemnified except with the
> prior approval of the Senior Procurement Executive.
>
> \(m\) [Leasing of Motor Vehicles]{.underline}. Contractors shall
> comply with 48 CFR 8.11 and 48 CFR 908.11.
>
> \(n\) [Acquisition of Major System (MS) Projects and Other Projects
> (As defined in DOE O 413.3, Program and Project Management for the
> Acquisition of Capital Assets)]{.underline}. As part of the
> Acquisition Planning process, contractors shall conduct a make-or-buy
> analysis in determining whether requirements will be self-performed or
> subcontracted to ensure the selection of the most cost effective
> method.
>
> \(o\) [Management, Acquisition and Use of Information
> Resources]{.underline}. Requirements for automatic data processing
> resources and telecommunications facilities, services, and equipment,
> shall be reviewed and approved in accordance with applicable DOE
> Orders and regulations regarding information resources.
>
> \(p\) [Priorities, Allocations and Allotments]{.underline}.
> Priorities, allocations and allotments shall be extended to
> appropriate subcontracts in accordance with the clause or clauses of
> this contract dealing with priorities and allocations.
>
> \(q\) [Purchase of Special Items]{.underline}. Purchase of the
> following items shall be in accordance with the following provisions
> of 48 CFR 908.71 and the Federal Property Management Regulations, 41
> CFR Chapter 101:
>
> \(1\) Motor vehicles\--48 CFR 908.7101
>
> \(2\) Aircraft\--48 CFR 908.7102
>
> \(3\) Security Cabinets\--48 CFR 908.7106
>
> \(4\) Alcohol\--48 CFR 908.7107
>
> \(5\) Helium\--48 CFR 908.7108
>
> \(6\) Fuels and packaged petroleum products\--48 CFR 908.7109
>
> \(7\) Coal\--48 CFR 908.7110
>
> \(8\) Arms and Ammunition\--48 CFR 908.7111
>
> \(9\) Heavy Water\--48 CFR 908.7121(a)
>
> \(10\) Precious Metals\--48 CFR 908.7121(b)
>
> \(11\) Lithium\--48 CFR 908.7121(c)
>
> \(12\) Products and services of the blind and severely
> handicapped\--41 CFR 101-26.701
>
> \(13\) Products made in Federal penal and correctional
> institutions\--41 CFR 101-26.702
>
> \(r\) [Purchase vs. Lease Determinations]{.underline}. Contractors
> shall determine whether required equipment and property should be
> purchased or leased, and establish appropriate thresholds for
> application of lease vs. purchase determinations. Such determinations
> shall be made:
>
> \(1\) at time of original acquisition;
>
> \(2\) when lease renewals are being considered; and
>
> \(3\) at other times as circumstances warrant.
>
> \(s\) [Quality Assurance]{.underline}. Contractors shall provide no
> less protection for the Government in its subcontracts than is
> provided in the prime contract.
>
> \(t\) [Setoff of Assigned Subcontractor Proceeds]{.underline}. Where 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 932.803.
>
> \(u\) [Strategic and Critical Materials]{.underline}. The contractor
> may use strategic and critical materials in the National Defense
> Stockpile.
>
> \(v\) [Termination]{.underline}. 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 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 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]{.underline}.
> Subcontracts involving unclassified uncontrolled nuclear information
> shall be treated in accordance with 10 CFR 1017.
>
> \(x\) [Subcontract Flowdown requirements]{.underline}. In addition to
> terms and conditions that are included in the prime contract which
> direct application of such terms and conditions in appropriate
> subcontracts, the contractor shall include the following clauses in
> subcontracts, as applicable:
>
> \(1\) Davis-Bacon clauses prescribed in 48 CFR 22.407.
>
> \(2\) Foreign Travel clause prescribed 48 CFR 952.247-70.

(3) Counterintelligence clause prescribed in 48 CFR 970.0404-4(a).

(4) Service Contract Act clauses prescribed in 48 CFR 22.1006.

(5) State and local taxes clause prescribed in 48 CFR 970.2904-1.

(6) Cost or pricing data clauses prescribed in 48 CFR 970.1504-3-1(b).

> \(y\) [Legal Services]{.underline}. Contractor purchases of litigation
> and other legal services are subject to the requirements in 10 CFR
> part 719 and the requirements of this clause.

# DEAR 970.5245-1 PROPERTY (DEC 2000) (ALTERATION)

> \(a\) [Furnishing of Government property]{.underline}. The Government
> reserves the right to furnish any property or services required for
> the performance of the work under this contract.
>
> \(b\) [Title to property]{.underline}. Except as otherwise provided by
> the contracting officer, title to all materials, equipment, supplies,
> and tangible personal property of every kind and description purchased
> by the contractor, for the cost of which the contractor is entitled to
> be reimbursed as a direct item of cost under this contract, shall pass
> directly from the vendor to the Government. The Government reserves
> the right to inspect, and to accept or reject, any item of such
> property. The contractor shall make such disposition of rejected items
> as the contracting officer shall direct. Title to other property, the
> cost of which is reimbursable to the contractor under this contract,
> shall pass to and vest in the Government upon (1) issuance for use of
> such property in the performance of this contract, or (2) commencement
> of processing or use of such property in the performance of this
> contract, or (3) reimbursement of the cost thereof by the Government,
> whichever first occurs. Property furnished by the Government and
> property purchased or furnished by the contractor, title to which
> vests in the Government, under this paragraph are hereinafter referred
> to as Government property. Title to Government property shall not be
> affected by the incorporation of the property into or the attachment
> of it to any property not owned by the Government, nor shall such
> Government property or any part thereof, be or become a fixture or
> lose its identity as personality by reason of affixation to any
> realty.
>
> \(c\) [Identification]{.underline}. To the extent directed by the
> contracting officer, the contractor shall identify Government property
> coming into the contractor\'s possession or custody, by marking and
> segregating in such a way, satisfactory to the contracting officer, as
> shall indicate its ownership by the Government.
>
> \(d\) [Disposition]{.underline}. The contractor shall make such
> disposition of Government property which has come into the possession
> or custody of the contractor under this contract as the contracting
> officer may direct during the progress of the work or upon completion
> or termination of this contract. The contractor may, upon such terms
> and conditions as the contracting officer may approve, sell, or
> exchange such property, or acquire such property at a price agreed
> upon by the contracting officer and the contractor as the fair value
> thereof. The amount received by the contractor as the result of any
> disposition, or the agreed fair value of any such property acquired by
> the contractor, shall be applied in reduction of costs allowable under
> this contract or shall be otherwise credited to account to the
> Government, as the contracting officer may direct. Upon completion of
> the work or the termination of this contract, the contractor shall
> render an accounting, as prescribed by the contracting officer, of all
> government property which had come into the possession or custody of
> the contractor under this contract.
>
> \(e\) [Protection of government property\--management of high-risk
> property and classified materials]{.underline}.
>
> \(1\) The contractor shall take all reasonable precautions, and such
> other actions as may be directed by the contracting officer, or in the
> absence of such direction, in accordance with sound business practice,
> to safeguard and protect government property in the contractor\'s
> possession or custody.
>
> \(2\) In addition, the contractor shall ensure that adequate
> safeguards are in place, and adhered to, for the handling, control and
> disposition of high-risk property and classified materials throughout
> the life cycle of the property and materials consistent with the
> policies, practices and procedures for property management contained
> in the Federal Property Management regulations (41 CFR chapter 101),
> the Department of Energy Property Management regulations (41 CFR
> chapter 109), and other applicable regulations.
>
> \(3\) High-risk property is property, the loss, destruction, damage
> to, or the unintended or premature transfer of which could pose risks
> to the public, the environment, or the national security interests of
> the United States. High-risk property includes proliferation
> sensitive, nuclear related dual use, export controlled, chemically or
> radioactively contaminated, hazardous, and specially designed and
> prepared property, including property on the militarily critical
> technologies list.
>
> \(f\) [Risk of loss of Government property]{.underline}.
>
> \(1\) (i) The contractor shall not be liable for the loss or
> destruction of, or damage to, Government property unless such loss,
> destruction, or damage was caused by any of the following:
>
> \(A\) Willful misconduct or lack of good faith on the part of the
> contractor\'s managerial personnel;
>
> \(B\) Failure of the contractor\'s managerial personnel to take all
> reasonable steps to comply with any appropriate written direction of
> the contracting officer to safeguard such property under paragraph (e)
> of this clause; or
>
> \(C\) Failure of contractor managerial personnel to establish,
> administer, or properly maintain an approved property management
> system in accordance with paragraph (i)(1)of this clause.
>
> \(ii\) If, after an initial review of the facts, the contracting
> officer informs the contractor that there is reason to believe that
> the loss, destruction of, or damage to the government property results
> from conduct falling within one of the categories set forth above, the
> burden of proof shall be upon the contractor to show that the
> contractor should not be required to compensate the government for the
> loss, destruction, or damage.
>
> \(2\) In the event that the contractor is determined liable for the
> loss, destruction or damage to Government property in accordance with
> (f)(1) of this clause, the contractor\'s compensation to the
> Government shall be determined as follows:
>
> \(i\) For damaged property, the compensation shall be the cost of
> repairing such damaged property, plus any costs incurred for temporary
> replacement of the damaged property. However, the value of repair
> costs shall not exceed the fair market value of the damaged property.
> If a fair market value of the property does not exist, the contracting
> officer shall determine the value of such property, consistent with
> all relevant facts and circumstances.
>
> \(ii\) For destroyed or lost property, the compensation shall be the
> fair market value of such property at the time of such loss or
> destruction, plus any costs incurred for temporary replacement and
> costs associated with the disposition of destroyed property. If a fair
> market value of the property does not exist, the contracting officer
> shall determine the value of such property, consistent with all
> relevant facts and circumstances.
>
> \(3\) The portion of the cost of insurance obtained by the contractor
> that is allocable to coverage of risks of loss referred to in
> paragraph (f)(1) of this clause is not allowable.
>
> \(g\) [Steps to be taken in event of loss]{.underline}. In the event
> of any damage, destruction, or loss to Government property in the
> possession or custody of the contractor with a value above the
> threshold set out in the contractor\'s approved property management
> system, the contractor:
>
> \(1\) Shall immediately inform the contracting officer of the occasion
> and extent thereof,
>
> \(2\) Shall take all reasonable steps to protect the property
> remaining, and
>
> \(3\) Shall repair or replace the damaged, destroyed, or lost property
> in accordance with the written direction of the contracting officer.
> The contractor shall take no action prejudicial to the right of the
> Government to recover therefore, and shall furnish to the Government,
> on request, all reasonable assistance in obtaining recovery.
>
> \(h\) [Government property for Government use only]{.underline}.
> Government property shall be used only for the performance of this
> contract.
>
> \(i\) [Property Management]{.underline}.
>
> \(1\) [Property Management System]{.underline}.
>
> \(i\) The contractor shall establish, administer, and properly
> maintain an approved property management system of accounting for and
> control, utilization, maintenance, repair, protection, preservation,
> and disposition of Government property in its possession under the
> contract. The contractor\'s property management system shall be
> submitted to the contracting officer for approval and shall be
> maintained and administered in accordance with sound business
> practice, applicable Federal Property Management regulations and
> Department of Energy Property Management regulations, and such
> directives or instructions which the contracting officer may from time
> to time prescribe.
>
> \(ii\) In order for a property management system to be approved, it
> must provide for:
>
> \(A\) Comprehensive coverage of property from the requirement
> identification, through its life cycle, to final disposition;
>
> \(B\) Employee personal responsibility and accountability for
> Government-owned property;
>
> \(C\) Full integration with the contractor\'s other administrative and
> financial systems; and
>
> \(D\) A method for continuously improving property management
> practices through the identification of best practices established by
> \"best in class\" performers.
>
> \(iii\) Approval of the contractor\'s property management system shall
> be contingent upon the completion of the baseline inventory as
> provided in subparagraph (i)(2) of this clause.
>
> \(2\) [Property Inventory]{.underline}.
>
> \(i\) Unless otherwise directed by the contracting officer, the
> contractor shall within six months after execution of the contract
> provide a baseline inventory covering all items of Government
> property.
>
> \(ii\) If the contractor is succeeding another contractor in the
> performance of this contract, the contractor shall conduct a joint
> reconciliation of the property inventory with the predecessor
> contractor. The contractor agrees to participate in a joint
> reconciliation of the property inventory at the completion of this
> contract. This information will be used to provide a baseline for the
> succeeding contract as well as information for closeout of the
> predecessor contract.
>
> \(j\) The term \"contractor\'s managerial personnel\" as used in this
> clause means the Contractor's President, Laboratories Director;
> Executive Vice-President, Deputy Laboratories Director; Senior Vice
> President; and, other Vice Presidents identified in the Contract
> Appendix D "Key Personnel".
>
> \(k\) The contractor shall include this clause in all cost
> reimbursable subcontracts.