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1\. Section B.2, ESTIMATED COST, MAXIMUM AVAILABLE FEE, AND AVAILABLE
FEE, is amended to read as follows:

> **B.2 [ESTIMATED COST, MAXIMUM AVAILABLE FEE, AND AVAILABLE
> FEE]{.underline}**
>
> \(a\) Paragraphs (b) through (c), below, set forth the Estimated Cost,
> Maximum Available Fee, and Available Fee for the Contract term(s). At
> the start of each fiscal year, these paragraphs will be reviewed to
> include the appropriate figures for the upcoming fiscal year.

(b) The Estimated Cost of the specified Contract periods, exclusive of
    the Contractor\'s Basic Fee and Award Fee, if any, is set forth
    below:

> **[Contract Period]{.underline}** **[Estimated Costs]{.underline}**
>
> **January 1, 2001, through September 30, 2001 \$277,000,000**
>
> **October 1, 2001, through September 30, 2002 \$443,448,000**
>
> **October 1, 2002, through September 30, 2003 \$446,439,000**
>
> **October 1, 2003, through September 30, 2004 \$501,619,000**
>
> \(c\) (1) The Maximum Available Fee for the period October 1, 2003
> through September 30, 2004 is \$24,530,000.
>
> \(2\) The Available Fees for the specified Contract periods is set
> forth below:
>
> **[Contract Period]{.underline} [Available Fee]{.underline}**
>
> **January 1, 2001, through September 30, 2001**
>
> **Award Fee \$ 5,108,500**
>
> **Performance-Based Incentive [\$ 9,891,500]{.underline}**
>
> **Total \$15,000,000**
>
> **October 1, 2001, through September 30, 2002**
>
> **Award Fee \$ 9,034,000**
>
> **Performance-Based Incentive [\$14,050,000]{.underline}**
>
> **Total \$23,084,000**
>
> **October 1, 2002, through September 30, 2003**
>
> **Award Fee \$12,186,000**
>
> **Performance-Based Incentive [\$11,174,000]{.underline}**
>
> **Total \$23,360,000**
>
> **October 1, 2003, through September 30, 2004**
>
> **Award Fee \$12,905,000**
>
> **Performance-Based Incentive [\$11,625,000]{.underline}**
>
> **Total \$24,530,000**

2\. The following Section H clauses are amended as set forth below:

# a. Section H.23, RESERVED, is deleted and replaced with the following new clause:

> **H.23 PROVISIONAL PAYMENT OF FEES**
>
> \(a\) Notwithstanding Section I Clauses I.85 and I.117, the
> Contracting Officer may issue quarterly payments on the Comprehensive
> portion of award fee during the year in FY 2004. The amount of fee
> subject to deduction under the Conditional Payment of Fee Clause shall
> be the total fee earned plus Provisional Fee Payments made during the
> year.

(b) If interim payments of fee are paid, before a final determination is
    made, those payments shall be provisional pending the final
    determination.

\(c\) The final determination of fee will be made by the Fee
Determination Official, in accordance with the fee clauses of this
Contract. In the event that overpayment results from the payment of fee
on a provisional basis, the Contractor shall reimburse such overpayment
to the Government upon demand, payable with interest in accordance with
the "Interest" clause of this Contract.

# b. Section H.28, PERFORMANCE IMPROVEMENT AND COLLABORATION, is deleted in its entirety and replaced with the following DEAR clause in Section I.

# 

# **I.9 DEAR 970.5203-2 PERFORMANCE IMPROVEMENT AND COLLABORATION (DEC 2000)**

> \(a\) The contractor agrees that it shall affirmatively identify,
> evaluate, and institute practices, where appropriate, that will
> improve performance in the areas of environmental and health, safety,
> scientific and technical, security, business and administrative, and
> any other areas of performance in the management and operation of the
> contract. This may entail the alteration of existing practices or the
> institution of new procedures to more effectively or efficiently
> perform any aspect of contract performance or reduce overall cost of
> operation under the contract. Such improvements may result from
> changes in organization, simplification of systems while retaining
> necessary controls, or any other approaches consistent with the
> statement of work and performance measures of this contract.
>
> \(b\) The contractor agrees to work collaboratively with the
> Department, all other management and operating, DOE major facilities
> management contractors and affiliated contractors which manage or
> operate DOE sites or facilities for the following purposes: (i) to
> exchange information generally, (ii) to evaluate concepts that may be
> of benefit in resolving common issues, in confronting common problems,
> or in reducing costs of operations, and (iii) to otherwise identify
> and implement DOE-complex-wide management improvements discussed in
> paragraph (a). In doing so, it shall also affirmatively provide
> information relating to its management improvements to such
> contractors, including lessons learned, subject to security
> considerations and the protection of data proprietary to third
> parties.
>
> \(c\) The contractor may consult with the contracting officer in those
> instances in which improvements being considered pursuant to paragraph
> (a) involve the cooperation of the DOE. The contractor may request the
> assistance of the contracting officer in the communication of the
> success of improvements to other management and operating contractors
> in accordance with paragraph (b) of this clause.
>
> \(d\) The contractor shall notify the contracting officer and seek
> approval where necessary to fulfill its obligations under the
> contract. Compliance with this clause in no way alters the obligations
> of the Contractor under any other provision of this contract.

3\. The following Section I clauses are deleted in their entirety and
replaced with the following:

# **I.11 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 form 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 woven 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.
>
> **I.15 FAR 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS
> (OCT 2000)**
>
> \(a\) It is the policy of the United States that small business
> concerns, veteran-owned small business concerns, service-disabled
> veteran-owned small business concerns, HUBZone small business
> concerns, small disadvantaged business concerns, and women-onwed 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 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.

# **I.16 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.
>
> \(iv\) Ensure that its subcontractors agree to submit SF 294 and SF
> 295.
>
> \(11\) A description of the types of records that will be maintained
> concerning procedures that have been adopted to comply with the
> requirements and goals in the plan, including establishing source
> lists; and a description of the offeror\'s efforts to locate small
> business, veteran-owned small business, 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.

# **I.21 FAR 52.222‑4 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ‑ OVERTIME COMPENSATION (SEPT 2000)**

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

# **I.24 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
>
> \(viii\) Selection for training, including apprenticeship.
>
> \(3\) The Contractor shall post in conspicuous places available to
> employees and applicants for employment the notices to be provided by
> the Contracting Officer that explain this clause.

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

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

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

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

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

(9) If the OFCCP determines that the Contractor is not in compliance
    with this clause or any rule, regulation, or order of the Secretary
    of Labor, this contract may be 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.

# **I.25 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.

# **I.27 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.

> **I.31 FAR 52.223-14 TOXIC CHEMICAL RELEASE REPORTING (AUG 2003)**
>
> \(a\) Unless otherwise exempt, the Contractor, as owner or operator of
> a facility used in the performance of this contract, shall file by
> July 1 for the prior calendar year an annual Toxic Chemical Release
> Inventory Form (Form R) as described in sections 313(a) and (g) of the
> Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)
> (42 U.S.C. 11023(a) and (g)), and section 6607 of the Pollution
> Prevention Act of 1990 (PPA) (42 U.S.C. 13106). The Contractor shall
> file, for each facility subject to the Form R filing and reporting
> requirements, the annual Form R throughout the life of the contract.
>
> \(b\) A Contractor-owned or -operated facility used in the performance
> of this contract is exempt from the requirement to file an annual Form
> R if-
>
> \(1\) The facility does not manufacture, process, or otherwise use any
> toxic chemicals listed in 40 CFR 372.65;
>
> \(2\) The facility does not have 10 or more full-time employees as
> specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A);
>
> \(3\) The facility does not meet the reporting thresholds of toxic
> chemicals established under section 313(f) of EPCRA, 42 U.S.C.
> 11023(f) (including the alternate thresholds at 40 CFR 372.27,
> provided an appropriate certification form has been filed with EPA);
>
> \(4\) The facility does not fall within the following Standard
> Industrial Classification (SIC) codes or their corresponding North
> American Industry Classification System sectors:
>
> \(i\) Major group code 10 (except 1011, 1081, and 1094.
>
> \(ii\) Major group code 12 (except 1241).
>
> \(iii\) Major group codes 20 through 39.
>
> \(iv\) Industry code 4911, 4931, or 4939 (limited to facilities that
> combust coal and/or oil for the purpose of generating power for
> distribution in commerce).
>
> \(v\) Industry code 4953 (limited to facilities regulated under the
> Resource Conservation and Recovery Act, Subtitle C (42 U.S.C. 6921,
> *et seq*.)), or 5169, or 5171, or 7389 (limited to facilities
> primarily engaged in solvent recovery services on a contract or fee
> basis); or
>
> \(5\) The facility is not located in the United States or its outlying
> areas.
>
> \(c\) If the Contractor has certified to an exemption in accordance
> with one or more of the criteria in paragraph (b) of this clause, and
> after award of the contract circumstances change so that any of its
> owned or operated facilities used in the performance of this contract
> is no longer exempt-
>
> \(1\) The Contractor shall notify the Contracting Officer; and
>
> \(2\) The Contractor, as owner or operator of a facility used in the
> performance of this contract that is no longer exempt, shall-
>
> \(i\) Submit a Toxic Chemical Release Inventory Form (Form R) on or
> before July 1 for the prior calendar year during which the facility
> becomes eligible; and
>
> \(ii\) Continue to file the annual Form R for the life of the contract
> for such facility.
>
> \(d\) The Contracting Officer may terminate this contract or take
> other action as appropriate, if the Contractor fails to comply
> accurately and fully with the EPCRA and PPA toxic chemical release
> filing and reporting requirements.
>
> \(e\) Except for acquisitions of commercial items as defined in FAR
> Part 2, the Contractor shall-
>
> \(1\) For competitive subcontracts expected to exceed \$100,000
> (including all options), include a solicitation provision
> substantially the same as the provision at FAR 52.223-13,
> Certification of Toxic Chemical Release Reporting; and
>
> \(2\) Include in any resultant subcontract exceeding \$100,000
> (including all options), the substance of this clause, except this
> paragraph (e).
>
> **I.34 FAR 52.225-1 BUY AMERICAN ACT -- SUPPLIES (JUN 2003)**
>
> \(a\) *Definitions*. As used in this clause-
>
> \"Component\" means an article, material, or supply incorporated
> directly into an end product.
>
> \"Cost of components\" means-
>
> \(1\) For components purchased by the Contractor, the acquisition
> cost, including transportation costs to the place of incorporation
> into the end product (whether or not such costs are paid to a domestic
> firm), and any applicable duty (whether or not a duty-free entry
> certificate is issued); or
>
> \(2\) For components manufactured by the Contractor, all costs
> associated with the manufacture of the component, including
> transportation costs as described in paragraph (1) of this definition,
> plus allocable overhead costs, but excluding profit. Cost of
> components does not include any costs associated with the manufacture
> of the end product.
>
> \"Domestic end product\" means-
>
> \(1\) An unmanufactured end product mined or produced in the United
> States; or
>
> \(2\) An end product manufactured in the United States, if the cost of
> its components mined, produced, or manufactured in the United States
> exceeds 50 percent of the cost of all its components. Components of
> foreign origin of the same class or kind as those that the agency
> determines are not mined, produced, or manufactured in sufficient and
> reasonably available commercial quantities of a satisfactory quality
> are treated as domestic. Scrap generated, collected, and prepared for
> processing in the United States is considered domestic.
>
> \"End product\" means 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 deliver only domestic end products except
> to the extent that it specified delivery of foreign end products in
> the provision of the solicitation entitled \"Buy American Act
> Certificate.\"

# **I.36 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.
>
> **I.46 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.

# **I.53 FAR 52.244‑6 SUBCONTRACTS FOR COMMERCIAL ITEMS (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) (flow
> down required in accordance with paragraph (d) of FAR clause
> 52.247-64).

(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.
>
> **I.54 FAR 52.223-11 OZONE-DEPLETING SUBSTANCES (MAY 2001)**
>
> \(a\) Definition. \"Ozone-depleting substance,\" as used in this
> clause, means any substance the Environmental Protection Agency
> designates in 40 CFR part 82 as-
>
> \(1\) Class I, including, but not limited to, chlorofluorocarbons,
> halons, carbon tetrachloride, and methyl chloroform; or
>
> \(2\) Class II, including, but not limited to,
> hydrochlorofluorocarbons.
>
> \(b\) The Contractor shall label products which contain or are
> manufactured with ozone-depleting substances in the manner and to the
> extent required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR part
> 82, Subpart E, as follows:
>
> Warning
>
> Contains (or manufactured with, if applicable) \*\_\_\_\_\_\_\_, a
> substance(s) which harm(s) public health and environment by destroying
> ozone in the upper atmosphere.
>
> \* The Contractor shall insert the name of the substance(s).
>
> **I.56 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.
>
> **I.57 FAR 52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S.-FLAG
> COMMERCIAL VESSELS (APR 2003)**

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

> \(1\) Acquired for a U.S. Government agency account;
>
> \(2\) Furnished to, or for the account of, any foreign nation without
> provision for reimbursement;
>
> \(3\) Furnished for the account of a foreign nation in connection with
> which the United States advances funds or credits, or guarantees the
> convertibility of foreign currencies; or
>
> \(4\) Acquired with advance of funds, loans, or guaranties made by or
> on behalf of the United States.

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

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

> \(i\) The Contracting Officer, and

(i) The:

> Office of Cargo Preference\
> Maritime Administration (MAR-590)\
> 400 Seventh Street, SW\
> Washington DC 20590.
>
> Subcontractor bills of lading shall be submitted through the Prime
> Contractor.
>
> \(2\) The Contractor shall furnish these bill of lading copies

i.  within 20 working days of the date of loading for shipments
    originating in the United States, or

> \(ii\) within 30 working days for shipments originating outside the
> United States. Each bill of lading copy shall contain the following
> information:
>
> \(A\) Sponsoring U.S. Government agency.
>
> \(B\) Name of vessel.
>
> \(C\) Vessel flag of registry.
>
> \(D\) Date of loading.
>
> \(E\) Port of loading.
>
> \(F\) Port of final discharge.
>
> \(G\) Description of commodity.
>
> \(H\) Gross weight in pounds and cubic feet if available.
>
> \(I\) Total ocean freight revenue in U.S. dollars.

\(d\) The Contractor shall insert the substance of this clause,
including this paragraph (d), in all subcontracts or purchase orders
under this contract, except those described in paragraph (e)(4).

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

> \(1\) Cargoes carried in vessels of the Panama Canal Commission or as
> required or authorized by law or treaty;
>
> \(2\) Ocean transportation between foreign countries of supplies
> purchased with foreign currencies made available, or derived from
> funds that are made available, under the Foreign Assistance Act of
> 1961 (22 U.S.C. 2353);
>
> \(3\) Shipments of classified supplies when the classification
> prohibits the use of non-Government vessels; and
>
> \(4\) Subcontracts or purchase orders for the acquisition of
> commercial items unless-
>
> \(i\) This contract is-
>
> \(A\) A contract or agreement for ocean transportation services; or
>
> \(B\) A construction contract; or
>
> \(ii\) The supplies being transported are-
>
> \(A\) Items the Contractor is reselling or distributing to the
> Government without adding value. (Generally, the Contractor does not
> add value to the items when it subcontracts items for f.o.b.
> destination shipment); or
>
> \(B\) Shipped in direct support of U.S. military-
>
> \(1\) Contingency operations;
>
> \(2\) Exercises; or
>
> \(3\) Forces deployed in connection with United Nations or North
> Atlantic Treaty Organization humanitarian or peacekeeping operations.

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

> Office of Costs and Rates\
> Maritime Administration\
> 400 Seventh Street, SW\
> Washington DC 20590\
> Phone: (202) 366-4610.
>
> **I.58 FAR 52.249-6 TERMINATION (COST REIMBURSEMENT) (SEP 1996)**
>
> \(a\) 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, 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.
>
> **I.63 DEAR 952.204-2 SECURITY (MAY 2002)**
>
> \(a\) *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 requirements of DOE in effect on the date of award.
>
> \(c\) *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 12356
> 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 12356, 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. 12356.)
>
> \(j\) 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.
>
> **I.65 DEAR 952.204-73 FACILITY CLEARANCE (MAY 2002)**
>
> As prescribed in 904.404(d)(5), insert the following provision in all
> solicitations which require the use of Standard Form 328, Certificate
> Pertaining to Foreign Interests for contracts or subcontracts subject
> to the provisions of 904.70.

FACILITY CLEARANCE (MAY 2002)

**NOTICES**

> Section 2536 of title 10, United States Code, prohibits the award of a
> contract under a national security program to an entity controlled by
> a foreign government if it is necessary for that entity to be given
> access to information in a proscribed category of information in order
> to perform the contract unless a waiver is granted by the Secretary of
> Energy. In addition, a Facility Clearance and foreign ownership,
> control and influence (FOCI) information are required when the
> contract or subcontract to be awarded is expected to require employees
> to have access authorizations.
>
> Offerors who have either a Department of Defense or a Department of
> Energy Facility Clearance generally need not resubmit the following
> foreign ownership information unless specifically requested to do so.
> Instead, provide your DOE Facility Clearance code or your DOD assigned
> commercial and government entity (CAGE) code. If uncertain, consult
> the office which issued this solicitation.
>
> \(a\) Use of Certificate Pertaining to Foreign Interests, Standard
> Form 328
>
> \(1\) The contract work anticipated by this solicitation will require
> access to classified information or special nuclear material. Such
> access will require a Facility Clearance for the Contractor
> organization and access authorizations (security clearances) for
> Contractor personnel working with the classified information or
> special nuclear material. To obtain a Facility Clearance the offeror
> must submit a Certificate Pertaining to Foreign Interests, Standard
> Form 328, and all required supporting documents to form a complete
> Foreign Ownership, Control or Influence (FOCI) Package.
>
> \(2\) Information submitted by the offeror in response to the Standard
> Form 328 will be used solely for the purposes of evaluating foreign
> ownership, control or influence and will be treated by DOE, to the
> extent permitted by law, as business or financial information
> submitted in confidence.
>
> \(3\) Following submission of a Standard Form 328 and prior to
> contract award, the Contractor shall immediately submit to the
> Contracting Officer written notification of any changes in the extent
> and nature of FOCI which could affect the offeror\'s answers to the
> questions in Standard Form 328. Following award of a contract, the
> Contractor must immediately submit to the cognizant security office
> written notification of any changes in the extent and nature of FOCI
> which could affect the offeror\'s answers to the questions in Standard
> Form 328. 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 must also be furnished
> concurrently to the cognizant security office.
>
> \(b\) Definitions
>
> \(1\) Foreign Interest means any of the following:
>
> \(i\) A foreign government, foreign government agency, or
> representative of a foreign government;
>
> \(ii\) Any form of business enterprise or legal entity organized,
> chartered or incorporated under the laws of any country other than the
> United States or its possessions and trust territories; and
>
> \(iii\) Any person who is not a citizen or national of the United
> States.
>
> \(2\) *Foreign Ownership, Control, or Influence (FOCI)* means the
> situation where the degree of ownership, control, or influence over a
> Contractor by a foreign interest is such that a reasonable basis
> exists for concluding that compromise of classified information or
> special nuclear material may result.
>
> \(c\) Facility Clearance means an administrative determination that a
> facility is eligible to access, produce, use or store classified
> information, or special nuclear material. A Facility Clearance is
> based upon a determination that satisfactory safeguards and security
> measures are carried out for the activities being performed at the
> facility. It is DOE policy that all Contractors or Subcontractors
> requiring access authorizations be processed for a Facility Clearance
> at the level appropriate to the activities being performed under the
> contract. Approval for a Facility Clearance shall be based upon:
>
> \(1\) A favorable foreign ownership, control, or influence (FOCI)
> determination based upon the Contractor\'s response to the ten
> questions in Standard Form 328 and any required, supporting data
> provided by the Contractor;
>
> \(2\) A contract or proposed contract containing the appropriate
> security clauses;
>
> \(3\) Approved safeguards and security plans which describe protective
> measures appropriate to the activities being performed at the
> facility;
>
> \(4\) An established Reporting Identification Symbol code for the
> Nuclear Materials Management and Safeguards Reporting System if access
> to nuclear materials is involved;
>
> \(5\) A survey conducted no more than 6 months before the Facility
> Clearance date, with a composite facility rating of satisfactory, if
> the facility is to possess classified matter or special nuclear
> material at its location;
>
> \(6\) Appointment of a Facility Security Officer, who must possess or
> be in the process of obtaining an access authorization equivalent to
> the Facility Clearance; and, if applicable, appointment of a Materials
> Control and Accountability Representative; and
>
> \(7\) Access authorizations for key management personnel who will be
> determined on a case-by-case basis, and must possess or be in the
> process of obtaining access authorizations equivalent to the level of
> the Facility Clearance.
>
> \(d\) A Facility Clearance is required prior to the award of a
> contract requiring access to classified information and the granting
> of any access authorizations under a contract. Prior to award of a
> contract, the DOE must determine that award of the contract to the
> offeror will not pose an undue risk to the common defense and security
> as a result of its access to classified information or special nuclear
> material in the performance of the contract. The Contracting Officer
> may require the offeror to submit such additional information as
> deemed pertinent to this determination.
>
> \(e\) A Facility Clearance is required even for contracts that do not
> require the Contractor\'s corporate offices to receive, process,
> reproduce, store, transmit, or handle classified information or
> special nuclear material, but which require DOE access authorizations
> for the Contractor\'s employees to perform work at a DOE location.
> This type facility is identified as a non-possessing facility.
>
> \(f\) Except as otherwise authorized in writing by the Contracting
> Officer, the provisions of any resulting contract must require that
> the contractor insert provisions similar to the foregoing in all
> subcontracts and purchase orders. Any Subcontractors requiring access
> authorizations for access to classified information or special nuclear
> material shall be directed to provide responses to the questions in
> Standard Form 328, Certificate Pertaining to Foreign Interests,
> directly to the prime contractor or the Contracting Officer for the
> prime contract.
>
> **NOTICE TO OFFERORS - CONTENTS REVIEW**
>
> **(PLEASE REVIEW BEFORE SUBMITTING)**
>
> Prior to submitting the Standard Form 328, required by paragraph
> (a)(1) of this clause, the offeror should review the FOCI submission
> to ensure that:
>
> \(1\) The Standard Form 328 has been signed and dated by an authorized
> official of the company;
>
> \(2\) If publicly owned, the Contractor\'s most recent annual report,
> and its most recent proxy statement for its annual meeting of
> stockholders have been attached; or, if privately owned, the audited,
> consolidated financial information for the most recently closed
> accounting year has been attached;
>
> \(3\) A copy of the company\'s articles of incorporation and an
> attested copy of the company\'s by-laws, or similar documents filed
> for the company\'s existence and management, and all amendments to
> those documents;
>
> \(4\) A list identifying the organization\'s owners, officers,
> directors, and executive personnel, including their names, social
> security numbers, citizenship, titles of all positions they hold
> within the organization, and what clearances, if any, they possess or
> are in the process of obtaining, and identification of the government
> agency(ies) that granted or will be granting those clearances; and
>
> \(5\) A summary FOCI data sheet.
>
> NOTE: A FOCI submission must be attached for each tier parent
> organization (i.e., ultimate parent and any intervening levels of
> ownership). If any of these documents are missing, award of the
> contract cannot be completed.

**I.73 DEAR 952.247-70 FOREIGN TRAVEL (DEC 2000)**

Contractor foreign travel shall be conducted pursuant to the
requirements contained in DOE Order 551.1, Official Foreign Travel, or
any subsequent version of the order in effect at the time of award.

**I.75 DEAR 952.251-70 CONTRACTOR EMPLOYEE TRAVEL DISCOUNTS (DEC 2000)**

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

**I.79 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.

**I.80 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.

**I.96 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.
>
> **I.98 DEAR 970.5223-2 AFFIRMATIVE PROCUREMENT PROGRAM (MAR 2003)**

(a) In the performance of this contract, the Contractor shall comply
    with the requirements of Executive Order 13101 and the U.S.
    Department of Energy (DOE) Affirmative Procurement Program Guidance.
    This guidance includes requirements 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.\'\'

> **I.120 DEAR 970.5227-2 RIGHTS IN DATA -- TECHNOLOGY TRANSFER (DEC
> 2000)**
>
> \(a\) Definitions.
>
> \(1\) Computer data bases, as used in this clause, means a collection
> of data in a form capable of, and for the purpose of, being stored in,
> processed, and operated on by a computer. The term does not include
> computer software.
>
> \(2\) Computer software, as used in this clause, means
>
> \(i\) computer programs which are data comprising a series of
> instructions, rules, routines, or statements, regardless of the media
> in which recorded, that allow or cause a computer to perform a
> specific operation or series of operations and
>
> \(ii\) data comprising source code listings, design details,
> algorithms, processes, flow charts, formulae, and related material
> that would enable the computer program to be produced, created, or
> compiled. The term does not include computer data bases.
>
> \(3\) Data, as used in this clause, means recorded information,
> regardless of form or the media on which it may be recorded. The term
> includes technical data and computer software. The term \"data\" does
> not include data incidental to the administration of this contract,
> such as financial, administrative, cost and pricing, or management
> information.
>
> \(4\) Limited rights data, as used in this clause, means data, other
> than computer software, developed at private expense that embody trade
> secrets or are commercial or financial and confidential or privileged.
> The Government\'s rights to use, duplicate, or disclose limited rights
> data are as set forth in the Limited Rights Notice of paragraph (g) of
> this clause.
>
> \(5\) Restricted computer software, as used in this clause, means
> computer software developed at private expense and that is a trade
> secret; is commercial or financial and is confidential or privileged;
> or is published copyrighted computer software, including minor
> modifications of any such computer software. The Government\'s rights
> to use, duplicate, or disclose restricted computer software are as set
> forth in the Restricted Rights Notice of subparagraph (h) of this
> clause.
>
> \(6\) Technical data, as used in this clause, means recorded data,
> regardless of form or characteristic, that are of a scientific or
> technical nature. Technical data does not include computer software,
> but does include manuals and instructional materials and technical
> data formatted as a computer data base.
>
> \(7\) Unlimited rights, as used in this clause, means the rights of
> the Government to use, disclose, reproduce, prepare derivative works,
> distribute copies to the public, including by electronic means, and
> perform publicly and display publicly, in any manner, including by
> electronic means, and for any purpose whatsoever, and to have or
> permit others to do so.
>
> \(b\) Allocation of Rights.
>
> \(1\) The Government shall have:
>
> \(i\) Ownership of all technical data and computer software first
> produced in the performance of this Contract;
>
> \(ii\) Unlimited rights in technical data and computer software
> specifically used in the performance of this Contract, except as
> provided herein regarding copyright, limited rights data, or
> restricted computer software, and except for data subject to the
> withholding provisions for protected Cooperative Research and
> Development Agreement (CRADA) information in accordance with
> Technology Transfer actions under this Contract, or other data
> specifically protected by statute for a period of time or, where,
> approved by DOE, appropriate instances of the DOE Work for Others
> Program;
>
> \(iii\) The right to inspect technical data and computer software
> first produced or specifically used in the performance of this
> Contract at all reasonable times. The Contractor shall make available
> all necessary facilities to allow DOE personnel to perform such
> inspection;
>
> \(iv\) The right to have all technical data and computer software
> first produced or specifically used in the performance of this
> Contract delivered to the Government or otherwise disposed of by the
> Contractor, either as the contracting officer may from time to time
> direct during the progress of the work or in any event as the
> contracting officer shall direct upon completion or termination of
> this Contract. The Contractor agrees to leave a copy of such data at
> the facility or plant to which such data relate, and to make available
> for access or to deliver to the Government such data upon request by
> the contracting officer. If such data are limited rights data or
> restricted computer software. the rights of the Government in such
> data shall be governed solely by the provisions of paragraph (g) of
> this clause (\"Rights in Limited Rights Data\") or paragraph (h) of
> this clause (\"Rights in Restricted Computer Software\"); and
>
> \(v\) The right to remove, cancel, correct, or ignore any markings not
> authorized by the terms of this Contract on any data furnished
> hereunder if, in response to a written inquiry by DOE concerning the
> propriety of the markings, the Contractor fails to respond thereto
> within 60 days or fails to substantiate the propriety of the markings.
> In either case DOE will notify the Contractor of the action taken.
>
> \(2\) The Contractor shall have:
>
> \(i\) The right to withhold limited rights data and restricted
> computer software unless otherwise provided in provisions of this
> clause;
>
> \(ii\) The right to use for its private purposes, subject to patent,
> security or other provisions of this Contract, data it first produces
> in the performance of this Contract, except for data in DOE\'s Uranium
> Enrichment Technology, including diffusion, centrifuge, and atomic
> vapor laser isotope separation, provided the data requirements of this
> Contract have been met as of the date of the private use of such data;
> and
>
> \(iii\) The right to assert copyright subsisting in scientific and
> technical articles as provided in paragraph (d) of this clause and the
> right to request permission to assert copyright subsisting in works
> other than scientific and technical articles as provided in paragraph
> (e) of this clause.
>
> \(3\) The Contractor agrees that for limited rights data or restricted
> computer software or other technical business or financial data in the
> form of recorded information which it receives from, or is given
> access to by DOE or a third party, including a DOE contractor or
> subcontractor, and for technical data or computer software it first
> produces under this Contract which is authorized to be marked by DOE,
> the Contractor shall treat such data in accordance with any
> restrictive legend contained thereon.
>
> \(c\) Copyright (General).
>
> \(1\) The Contractor agrees not to mark, register, or otherwise assert
> copyright in any data in a published or unpublished work, other than
> as set forth in paragraphs (d) and (e) of this clause.
>
> \(2\) Except for material to which the Contractor has obtained the
> right to assert copyright in accordance with either paragraph (d) or
> (e) of this clause, the Contractor agrees not to include in the data
> delivered under this Contract any material copyrighted by the
> Contractor and not to knowingly include any material copyrighted by
> others without first granting or obtaining at no cost a license
> therein for the benefit of the Government of the same scope as set
> forth in paragraph (d) of this clause. If the Contractor believes that
> such copyrighted material for which the license cannot be obtained
> must be included in the data to be delivered, rather than merely
> incorporated therein by reference, the Contractor shall obtain the
> written authorization of the contracting officer to include such
> material in the data prior to its delivery.
>
> \(d\) Copyrighted works (scientific and technical articles).
>
> \(1\) The Contractor shall have the right to assert, without prior
> approval of the contracting officer, copyright subsisting in
> scientific and technical articles composed under this contract or
> based on or containing data first produced in the performance of this
> Contract, and published in academic, technical or professional
> journals, symposia, proceedings, or similar works. When assertion of
> copyright is made, the Contractor shall affix the applicable copyright
> notice of *17 U.S.C. 401* or 402 and 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 DOE Patent Counsel) from (date permission to assert
> copyright was obtained), the Government is granted for itself and
> others acting on its behalf a nonexclusive, paid-up, irrevocable
> worldwide license in this data to reproduce, prepare derivative works,
> and perform publicly and display publicly, by or on behalf of the
> Government. There is provision for the possible extension of the term
> of this license. Subsequent to that period or any extension granted,
> the Government is granted for itself and others acting on its behalf a
> nonexclusive, paid-up, irrevocable worldwide license in this data to
> reproduce, prepare derivative works, distribute copies to the public,
> perform publicly and display publicly, and to permit others to do so.
> The specific term of the license can be identified by inquiry made to
> Contractor or DOE. Neither the United States nor the United States
> Department of Energy, nor any of their employees, makes any warranty,
> express or implied, or assumes any legal liability or responsibility
> for the accuracy, completeness, or usefulness of any data, apparatus,
> product, or process disclosed, or represents that its use would not
> infringe privately owned rights
>
> (End of Notice)
>
> \(vi\) With respect to any data to which the Contractor has received
> permission to assert copyright, the DOE has the right, during the five
> (5) year or specified longer period approved by Patent Counsel as
> provided for in paragraph (e) of this clause, to request the
> Contractor to grant a nonexclusive, partially exclusive or exclusive
> license in any field of use to a responsible applicant(s) upon terms
> that are reasonable under the circumstances, and if the Contractor
> refuses such request, to grant such license itself, if the DOE
> determines that the Contractor has not made a satisfactory
> demonstration that either it or its licensee(s) is actively pursuing
> commercialization of the data as set forth in subparagraph (e)(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 DOE Patent Counsel.
>
> \(f\) Subcontracting.
>
> \(1\) Unless otherwise directed by the contracting officer, the
> Contractor agrees to use in subcontracts in which technical data or
> computer software is expected to be produced or in subcontracts for
> supplies that contain a requirement for production or delivery of data
> in accordance with the policy and procedures of 48 CFR Subpart 27.4 as
> supplemented by 48 CFR 927.401 through 927.409, the clause entitled,
> \"Rights in Data-General\" at 48 CFR 52.227-14 modified in accordance
> with 927.409(a) and including Alternate V. Alternates II through IV of
> that clause may be included as appropriate with the prior approval of
> DOE Patent Counsel, and the Contractor shall not acquire rights in a
> subcontractor\'s limited rights data or restricted computer software,
> except through the use of Alternates II or III, respectively, without
> the prior approval of DOE Patent Counsel. The clause at 48 CFR
> 52.227-16, Additional Data Requirements, shall be included in
> subcontracts in accordance with 48 CFR 927.409(h). The Contractor
> shall use instead the Rights in Data-Facilities clause at 48 CFR
> 970.5227-1 in subcontracts, including subcontracts for related support
> services, involving the design or operation of any plants or
> facilities or specially designed equipment for such plants or
> facilities that are managed or operated under its contract with DOE.
>
> \(2\) It is the responsibility of the Contractor to obtain from its
> subcontractors technical data and computer software and rights
> therein, on behalf of the Government, necessary to fulfill the
> Contractor\'s obligations to the Government with respect to such data.
> In the event of refusal by a subcontractor to accept a clause
> affording the Government such rights, the Contractor shall:
>
> \(i\) Promptly submit written notice to the contracting officer
> setting forth reasons 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.

# **I.121 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.

# **I.122 DEAR 970.5232-8 INTEGRATED ACCOUNTING (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.

# **I.123 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.

# **I.124 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.

4\. The following new Section I clauses are hereby added:

# **I.130 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-

> \(1\) 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.
>
> \(ii\) A request based on unreasonable cost shall include a reasonable
> survey of the market and a completed price comparison table in the
> format in paragraph (d) of this clause.
>
> \(iii\) The price of construction material shall include all delivery
> costs to the construction site and any applicable duty (whether or not
> a duty-free certificate may be issued).
>
> \(iv\) Any Contractor request for a determination submitted after
> contract award shall explain why the Contractor could not reasonably
> foresee the need for such determination and could not have requested
> the determination before contract award. If the Contractor does not
> submit a satisfactory explanation, the Contracting Officer need not
> make a determination.
>
> \(2\) If the Government determines after contract award that an
> exception to the Buy American Act 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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+---+--------------------------+-------------+---------+--------------+---+

> **I.131 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).

5\. The following correction is made regarding Section I clause I.90 -
DEAR 970.5244-1, Contractor Purchasing System (DEC 2000):

> Currently I.90 (g) Buy American, states "The Contractor shall comply
> with the provisions of the Buy American Act as reflected in 48 CFR
> 52.225-3 and 48 CFR 52.225-5. 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."
>
> The DEAR has not been updated to reflect the revisions made by
> Acquisition Letter 2002-06 (MAY 2002). However, the parties agree in
> the subparagraph above, the correct reference for "48 CFR 52.225-3" is
> "48 CFR 52.225-1 as amended by AL 2002-06" and the reference for "48
> CFR 52.225-5" is "48 CFR 52.225-9 as amended by AL 2002-06."

6\. There are no other changes to terms and conditions.