Part II - Contract Clauses

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

**I.1 FAR 52.252‑2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)**

> This contract incorporates one or more clauses by reference, with the
> same force and effect as if they were given in full text. Upon
> request, the Contracting Officer will make their full text available.
> Also, the full text of a clause may be accessed electronically at
> these address(es):

+----------------------------------+-----------------------------------+
| *[Federal Acquisition            | [*http://www.arnet.gov/           |
| Regulations]{.underline}*        | far/*](http://www.arnet.gov/far/) |
+----------------------------------+-----------------------------------+
| *[Federal Acquisition            | [*http://www.g                    |
| Forms]{.underline}*              | sa.gov/forms/farnumer.htm*](http: |
|                                  | //www.gsa.gov/forms/farnumer.htm) |
+----------------------------------+-----------------------------------+
| *[Department of Energy           | [*h                               |
| Acquisition                      | ttp://professionals.pr.doe.gov/ma |
| Regulations]{.underline}*        | 5/MA-5Web.nsf/*](http://professio |
|                                  | nals.pr.doe.gov/ma5/MA-5Web.nsf/) |
|                                  |                                   |
|                                  | *[or]{.underline}*                |
|                                  |                                   |
|                                  | [*http://farsi                    |
|                                  | te.hill.af.mil/vfdoe1.htm*](http: |
|                                  | //farsite.hill.af.mil/vfdoe1.htm) |
+----------------------------------+-----------------------------------+

###### I.2 NOTICE -- SECTION I CLAUSES INCORPORATED BY REFERENCE

> The references cited herein are from the Federal Acquisition
> Regulation (FAR) (48 CFR Chapter 1) and the U.S. Department of Energy
> Acquisition Regulation (DEAR) (48 CFR Chapter 9). The following FAR
> and DEAR clauses are hereby incorporated by reference:
>
> **FAR 52.203‑3 GRATUITIES (APR 1984)**
>
> **FAR 52.203-5 COVENANT AGAINST CONTINGENT FEES (APR 1984)**
>
> **FAR 52.203‑6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
> GOVERNMENT (JUL 1995)**
>
> **FAR 52.203‑7 ANTI‑KICKBACK PROCEDURES (JUL 1995)**
>
> **FAR 52.203-8 CANCELLATION, RESCISSION, AND RECOVERY OF FUNDS FOR
> ILLEGAL OR IMPROPER ACTIVITY (JAN 1997)**
>
> **FAR 52.203‑10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER
> ACTIVITY (JAN 1997)**
>
> **FAR 52.203‑12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL
> TRANSACTIONS (SEP 2005)**
>
> **FAR 52.204-4 PRINTED OR COPIED DOUBLE-SIDED ON RECYCLED PAPER
> (AUG 2000)**
>
> **FAR 52.204-7 CENTRAL CONTRACTOR REGISTRATION (OCT 2003)**
>
> **FAR 52.209‑6 PROTECTING THE GOVERNMENT\'S INTEREST WHEN
> SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR
> DEBARMENT (JAN 2005)**
>
> **FAR 52.211‑5 MATERIAL REQUIREMENTS (AUG 2000)**
>
> **FAR 52.215‑8 ORDER OF PRECEDENCE - UNIFORM CONTRACT FORMAT (OCT
> 1997)**
>
> **FAR 52.215-10 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA
> (OCT 1997)**
>
> **FAR 52.215-12 SUBCONTRACTOR COST OR PRICING DATA (OCT 1997)**
>
> **FAR 52.215-15 PENSION ADJUSTMENTS AND ASSET REVERSIONS (OCT 2004)**
>
> **FAR 52.215‑17 WAIVER OF FACILITIES CAPITAL COST OF MONEY (OCT
> 1997)**
>
> **FAR 52.219‑8 UTILIZATION OF SMALL BUSINESS CONCERNS (MAY 2004)**
>
> **FAR 52.219‑9 SMALL BUSINESS SUBCONTRACTING PLAN (JUL 2005)**
>
> **FAR 52.219‑16 LIQUIDATED DAMAGES ‑ SUBCONTRACTING PLAN (JAN 1999)**
>
> **FAR 52.219-25 SMALL DISADVANTAGED BUSINESS PARTICIPATION
> PROGRAM-DISADVANTAGED STATUS AND REPORTING (OCT 1999)**
>
> **FAR 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (FEB 1997)**
>
> **FAR 52.222‑3 CONVICT LABOR (JUN 2003)**
>
> **FAR 52.222‑4 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT --
> OVERTIME COMPENSATION (JUL 2005)**
>
> **FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES (FEB 1999)**
>
> **FAR 52.222‑26 EQUAL OPPORTUNITY (APR 2002)**
>
> **FAR 52.222-29 NOTIFICATION OF VISA DENIAL (JUN 2003)**
>
> **FAR 52.222‑35 EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS,
> VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)**
>
> **FAR 52.222‑36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN
> 1998)**
>
> **FAR 52.222‑37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS,
> VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS (DEC 2001)**
>
> **FAR 52.222-39 NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING PAYMENT OF
> UNION DUES OR FEES (DEC 2004)**
>
> **FAR 52.223-5 POLLUTION PREVENTION AND RIGHT-TO-KNOW INFORMATION (AUG
> 2003) ALTERNATE I (AUG 2003)**
>
> **FAR 52.223-10 WASTE REDUCTION PROGRAM (AUG 2000)**
>
> **FAR 52.223-12 REFRIGERATION EQUIPMENT AND AIR CONDITIONERS (MAY
> 1995)**
>
> **FAR 52.223-14 TOXIC CHEMICAL RELEASE REPORTING (AUG 2003)**
>
> **FAR 52.224‑1 PRIVACY ACT NOTIFICATION (APR 1984)**
>
> **FAR 52.224‑2 PRIVACY ACT (APR 1984)**
>
> **FAR 52.225‑13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (FEB 2006)**
>
> **FAR 52.230‑2 COST ACCOUNTING STANDARDS (APR 1998)**
>
> **FAR 52.230‑6 ADMINISTRATION OF COST ACCOUNTING STANDARDS
> (APR 2005)**
>
> **FAR 52.232‑18 AVAILABILITY OF FUNDS (APR 1984)**
>
> **FAR 52.232‑24 PROHIBITION OF ASSIGNMENT OF CLAIMS (JAN 1986)**
>
> **FAR 52.233‑1 DISPUTES (JUL 2002) (ALTERNATE I) (DEC 1991)**
>
> **FAR 52.233‑3 PROTEST AFTER AWARD (AUG 1996) ALTERNATE I (JUN 1985)**
>
> **FAR 52.233-4 APPLICABLE LAW FOR BREACH OF CONTRACT CLAIM (OCT
> 2004)**
>
> **FAR 52.236‑8 OTHER CONTRACTS (APR 1984)**
>
> **FAR 52.237‑3 CONTINUITY OF SERVICES (JAN 1991)**
>
> **FAR 52.242‑1 NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)**
>
> **FAR 52.242‑13 BANKRUPTCY (JUL 1995)**
>
> **FAR 52.244‑5 COMPETITION IN SUBCONTRACTING (DEC 1996)**
>
> **FAR 52.244‑6 SUBCONTRACTS FOR COMMERCIAL ITEMS (FEB 2006)**
>
> **FAR 52.247‑63 PREFERENCE FOR U.S. FLAG AIR CARRIERS (JUN 2003)**
>
> **FAR 52.247‑64 PREFERENCE FOR PRIVATELY OWNED U.S.-FLAG COMMERCIAL
> VESSELS (FEB 2006)**
>
> **FAR 52.249-14 EXCUSABLE DELAYS (APR 1984)**
>
> **FAR 52.251‑1 GOVERNMENT SUPPLY SOURCES (APR 1984)**
>
> **FAR 52.251‑2 INTERAGENCY FLEET MANAGEMENT SYSTEM (IFMS) VEHICLES AND
> RELATED SERVICES (JAN 1991)**
>
> **FAR 52.253‑1 COMPUTER‑GENERATED FORMS (JAN 1991)**
>
> **DEAR 952.203-70 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES
> (DEC 2000)**
>
> **DEAR 952.204‑70 CLASSIFICATION/DECLASSIFICATION (SEP 1997)**
>
> **DEAR 952.204-75 PUBLIC AFFAIRS (DEC 2000)**
>
> **DEAR 952.208‑7 TAGGING OF LEASED VEHICLES (APR 1984)**
>
> **DEAR 952.209‑72 ORGANIZATIONAL CONFLICTS OF INTEREST (JUN 1997) --
> ATERNATE I**
>
> **DEAR 952.211-71 PRIORITIES AND ALLOCATIONS (ATOMIC ENERGY)
> (JUN 1996)**
>
> **DEAR 952.211-71 PRIORITIES AND ALLOCATIONS (DOMESTIC ENERGY
> SUPPLIES) (JUN 1996) -- ALTERNATE I**
>
> **DEAR 952.223-75 PRESERVATION OF INDIVIDUAL OCCUPATIONAL RADIATION
> EXPOSURE RECORDS (APR 1984)**
>
> **DEAR 952.224‑70 PAPERWORK REDUCTION ACT (APR 1994)**
>
> **DEAR 952.226-74 DISPLACED EMPLOYEE HIRING PREFERENCE (JUN 1997)**
>
> **DEAR 952.251-70 CONTRACTOR EMPLOYEE TRAVEL DISCOUNTS (DEC 2000)**
>
> **DEAR 970.5204-1 COUNTERINTELLIGENCE (DEC 2000)**

**DEAR 970.5208-1 PRINTING (DEC 2000)**

> **DEAR 970.5217-1 WORK FOR OTHERS PROGRAM (NON-DOE FUNDED WORK) (JAN
> 2005)**
>
> **DEAR 970.5222-1 COLLECTIVE BARGAINING AGREEMENTS - MANAGEMENT AND
> OPERATING CONTRACTS (DEC 2000)**
>
> **DEAR 970.5222-2 OVERTIME MANAGEMENT (DEC 2000)**
>
> **DEAR 970.5223‑1 INTEGRATION OF ENVIRONMENT, SAFETY, AND HEALTH INTO
> WORK PLANNING AND EXECUTION (DEC 2000)**
>
> **DEAR 970.5223-2 AFFIRMATIVE PROCUREMENT PROGRAM (MARCH 2003)**
>
> **DEAR 970.5223-4 WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE
> SITES (DEC 2000)**
>
> **DEAR 970.5223-5 DOE MOTOR VEHICLE FLEET FUEL EFFICIENCY (OCT 2003)**
>
> **DEAR 970.5226-2 WORKFORCE RESTRUCTURING UNDER SECTION 3161 OF THE
> NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1993 (DEC 2000)**
>
> **DEAR 970.5226-3 COMMUNITY COMMITMENT (DEC 2000)**
>
> **DEAR 970.5227-4 AUTHORIZATION AND CONSENT (AUG 2002)**
>
> **DEAR 970.5227-5 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT
> INFRINGEMENT (AUG 2002)**
>
> **DEAR 970.5227-6 PATENT INDEMNITY -- SUBCONTRACTS (DEC 2000)**
>
> **DEAR 970.5227-8 REFUND OF ROYALTIES (AUG 2002)**
>
> **DEAR 970.5228-1 INSURANCE \-- LITIGATION AND CLAIMS (MAR 2002)**
>
> **DEAR 970-5229-1 STATE AND LOCAL TAXES (DEC 2000)**
>
> **DEAR 970.5232-1 REDUCTION OR SUSPENSION OF ADVANCE, PARTIAL, OR
> PROGRESS PAYMENTS (DEC 2000)**
>
> **DEAR 970.5232-5 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS
> (DEC 2000)**
>
> **DEAR 970.5232-6 WORK FOR OTHERS FUNDING AUTHORIZATION (DEC 2000)**
>
> **DEAR 970.5232-7 FINANCIAL MANAGEMENT SYSTEM (DEC 2000)**
>
> **DEAR 970.5232-8 INTEGRATED ACCOUNTING (DEC 2000)**
>
> **DEAR 970.5235-1 FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER
> SPONSORING AGREEMENT (DEC 2000)**
>
> **DEAR 970.5236-1 GOVERNMENT FACILITY SUBCONTRACT APPROVAL
> (DEC 2000)**
>
> **DEAR 970.5242-1 PENALTIES FOR UNALLOWABLE COSTS (DEC 2000)**
>
> **DEAR 970.5243-1 CHANGES (DEC 2000)**

**I-3 NOTICE -- SECTION I CLAUSES INCORPORATED BY FULL TEXT**

> The references cited herein are from the Federal Acquisition
> Regulation (FAR) (48 CFR Chapter 1) and the Department of Energy
> Acquisition Regulation (DEAR) (48 CFR Chapter 9). Note: The titles and
> page locations of the **[clauses incorporated by full
> text]{.underline}** are as follows:
>
> **[CLAUSE TITLE]{.underline}** **[PAGE]{.underline}**

[FAR 52.202-1 DEFINITIONS (JUL 2004) (DEVIATION)
65](#far-52.202-1-definitions-jul-2004-deviation)

[FAR 52.222-39 NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING PAYMENT OF
UNION DUES OR FEES (DEC 2004) 65](#__RefHeading___Toc134930540)

[FAR 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA
(JAN 1997) ALTERNATE I (JUL 1995)
68](#far-52.223-3-hazardous-material-identification-and-material-safety-data-jan-1997-alternate-i-jul-1995)

[FAR 52.223-7 NOTICE OF RADIOACTIVE MATERIALS (JAN 1997)
70](#far-52.223-7-notice-of-radioactive-materials-jan-1997)

[FAR 52.223-9 ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR
EPA-DESIGNATED PRODUCTS (AUG 2000)
71](#far-52.223-9-estimate-of-percentage-of-recovered-material-content-for-epa-designated-products-aug-2000)

[FAR 52.223-11 OZONE-DEPLETING SUBSTANCES (MAY 2001)
71](#far-52.223-11-ozone-depleting-substances-may-2001)

[FAR 52.225-1 BUY AMERICAN ACT --SUPPLIES (JUN 2003)
72](#far-52.225-1-buy-american-act-supplies-jun-2003)

[FAR 52.225-9 BUY AMERICAN ACT -- CONSTRUCTION MATERIALS (JAN 2005)
73](#far-52.225-9-buy-american-act-construction-materials-jan-2005)

[FAR 52.227-23 RIGHTS TO PROPOSAL DATA (TECHNICAL) (JUNE 1987)
76](#far-52.227-23-rights-to-proposal-data-technical-june-1987)

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

[FAR 52.247-67 SUBMISSION OF TRANSPORTATION DOCUMENTS FOR AUDIT (FEB
2006)
77](#far-52.247-67-submission-of-transportation-documents-for-audit-feb-2006)

[FAR 52.249-6 TERMINATION (COST REIMBURSEMENT) (MAY 2004) (ALTERATION)
77](#far-52.249-6-termination-cost-reimbursement-may-2004-alteration)

[FAR 52.250-1 INDEMNIFICATION UNDER PUBLIC LAW 85-804 (APR 1984)\*\*
ALTERNATE I (APR 1984)
82](#far-52.250-1-indemnification-under-public-law-85-804-apr-1984-alternate-i-apr-1984)

[FAR 52.252‑4 ALTERATIONS IN CONTRACT (APR 1984)
85](#far-52.2524-alterations-in-contract-apr-1984)

[FAR 52.252-6 AUTHORIZED DEVIATIONS IN CLAUSES (APR 1984)
85](#far-52.252-6-authorized-deviations-in-clauses-apr-1984)

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

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

[DEAR 952.250‑70 NUCLEAR HAZARDS INDEMNITY AGREEMENT (OCT 2005)
92](#dear-952.25070-nuclear-hazards-indemnity-agreement-oct-2005)

[DEAR 970.5203-1 MANAGEMENT CONTROLS (MAY 2006) (DEVIATION)
96](#dear-970.5203-1-management-controls-may-2006-deviation)

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

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

[DEAR 970.5215-3 CONDITIONAL PAYMENT OF FEE, PROFIT, AND INCENTIVES --
FACILITY MANAGEMENT CONTRACTS (JAN 2004) (DEVIATION)
101](#dear-970.5215-3-conditional-payment-of-fee-profit-and-incentives-facility-management-contracts-jan-2004-deviation)

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

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

[DEAR 970.5227-3 TECHNOLOGY TRANSFER MISSION (AUG 2002)
120](#dear-970.5227-3-technology-transfer-mission-aug-2002)

[DEAR 970.5227-10 PATENT RIGHTS - MANAGEMENT AND OPERATING CONTRACTS,
NONPROFIT ORGANIZATION OR SMALL BUSINESS FIRM CONTRACTOR (AUG 2002)
ALTERNATE 1 (ALTERATION)
132](#dear-970.5227-10-patent-rights---management-and-operating-contracts-nonprofit-organization-or-small-business-firm-contractor-aug-2002-alternate-1-alteration)

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

[DEAR 970.5231-4 PREEXISTING CONDITIONS (DEC 2000) ALTERNATE II
(DEC 2000)
162](#dear-970.5231-4-preexisting-conditions-dec-2000-alternate-ii-dec-2000)

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

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

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

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

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

[DEAR 970.5245-1 PROPERTY (DEC 2000) ALTERNATE I (DEC 2000) (ALTERATION)
181](#dear-970.5245-1-property-dec-2000-alternate-i-dec-2000-alteration)

# FAR 52.202-1 DEFINITIONS (JUL 2004) (DEVIATION)

(a) When a solicitation provision or contract clause uses a word or term
    that is defined in the Federal Acquisition Regulation (FAR), the
    word or term has the same meaning as the definition in FAR 2.101 in
    effect at the time the solicitation was issued, unless-

    1.  The solicitation, or amended solicitation, provides a different
        definition;

    2.  The contracting parties agree to a different definition;

    3.  The part, subpart, or section of the FAR where the provision or
        clause is prescribed provides a different meaning; or

    4.  The word or term is defined in FAR Part 31, for use in the cost
        principles and procedures.

\(b\) The FAR Index is a guide to words and terms the FAR defines and
shows where each definition is located. The FAR Index is available via
the Internet at http://www.acqnet.gov at the end of the FAR, after the
FAR Appendix.

*(c) "Agency head" or "head of agency" means the Secretary, Deputy
Secretary, or the Under Secretary and Administrator for National Nuclear
Security Administration of the Department of Energy. "Senior Procurement
Executive" means, the individuals who are responsible for management
direction of the acquisition system of NNSA, including implementation of
the unique acquisition policies, regulations, and standards of NNSA. For
NNSA, it is the Administrator for Nuclear Security and the Director,
Acquisition and Supply Management.*

# FAR 52.222-39 NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES (DEC 2004)

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

> "United States" 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) Except as provided in paragraph (e) of this clause, during the term
    of this contract, the Contractor shall post a notice, in the form of
    a poster, informing employees of their rights concerning union
    membership and payment of union dues and fees, in conspicuous places
    in and about all its plants and offices, including all places where
    notices to employees are customarily posted. The notice shall
    include the following information (except that the information
    pertaining to National Labor Relations Board shall not be included
    in notices posted in the plants or offices of carriers subject to
    the Railway Labor Act, as amended (45 U.S.C. 151-188)).

> Notice to Employees
>
> Under Federal law, employees cannot be required to join a union or
> maintain membership in a union in order to retain their jobs. Under
> certain conditions, the law permits a union and an employer to enter
> into a union-security agreement requiring employees to pay uniform
> periodic dues and initiation fees. However, employees who are not
> union members can object to the use of their payments for certain
> purposes and can only be required to pay their share of union costs
> relating to collective bargaining, contract administration, and
> grievance adjustment.
>
> If you do not want to pay that portion of dues or fees used to support
> activities not related to collective bargaining, contract
> administration, or grievance adjustment, you are entitled to an
> appropriate reduction in your payment. If you believe that you have
> been required to pay dues or fees used in part to support activities
> not related to collective bargaining, contract administration, or
> grievance adjustment, you may be entitled to a refund and to an
> appropriate reduction in future payments.
>
> For further information concerning your rights, you may wish to
> contact the National Labor Relations Board (NLRB) either at one of its
> Regional offices or at the following address or toll free number:
>
> National Labor Relations Board\
> Division of Information\
> 1099 14th Street, N.W.\
> Washington, DC 20570\
> 1-866-667-6572\
> 1-866-316-6572 (TTY)
>
> To locate the nearest NLRB office, see NLRB\'s website at
> [http://www.nlrb.gov](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nlrb.gov)

\(c\) The Contractor shall comply with all provisions of Executive Order
13201 of February 17, 2001, and related implementing regulations at 29
CFR Part 470, and orders of the Secretary of Labor.

\(d\) In the event that the Contractor does not comply with any of the
requirements set forth in paragraphs (b), (c), or (g), the Secretary may
direct that this contract be cancelled, terminated, or suspended in
whole or in part, and declare the Contractor ineligible for further
Government contracts in accordance with procedures at 29 CFR part 470,
Subpart B\--Compliance Evaluations, Complaint Investigations and
Enforcement Procedures. Such other sanctions or remedies may be imposed
as are provided by 29 CFR Part 470, which implements Executive Order
13201, or as are otherwise provided by law.

\(e\) The requirement to post the employee notice in paragraph (b) does
not apply to\--

(1) Contractors and subcontractors that employ fewer than 15 persons;

(2) Contractor establishments or construction work sites where no union
    has been formally recognized by the Contractor or certified as the
    exclusive bargaining representative of the Contractor\'s employees;

(3) Contractor establishments or construction work sites located in a
    jurisdiction named in the definition of the United States in which
    the law of that jurisdiction forbids enforcement of union-security
    agreements;

(4) Contractor facilities where upon the written request of the
    Contractor, the Department of Labor Deputy Assistant Secretary for
    Labor-Management Programs has waived the posting requirements with
    respect to any of the Contractor\'s facilities if the Deputy
    Assistant Secretary finds that the Contractor has demonstrated
    that---

    i.  The facility is in all respects separate and distinct from
        activities of the Contractor related to the performance of a
        contract; and

    ii. Such a waiver will not interfere with or impede the effectuation
        of the Executive order; or

(5) Work outside the United States that does not involve the recruitment
    or employment of workers within the United States.

```{=html}
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```
(f) The Department of Labor publishes the official employee notice in
    two variations; one for contractors covered by the Railway Labor Act
    and a second for all other contractors. The Contractor shall---

```{=html}
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```
(1) Obtain the required employee notice poster from the Division of
    Interpretations and Standards, Office of Labor-Management Standards,
    U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5605,
    Washington, DC 20210, or from any field office of the Department\'s
    Office of Labor-Management Standards or Office of Federal Contract
    Compliance Programs;

(2) Download a copy of the poster from the Office of Labor-Management
    Standards website at
    [http://www.olms.dol.gov](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.olms.dol.gov);
    or

(3) Reproduce and use exact duplicate copies of the Department of
    Labor\'s official poster.

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```
(g) The Contractor shall include the substance of this clause in every
    subcontract or purchase order that exceeds the simplified
    acquisition threshold, entered into in connection with this
    contract, unless exempted by the Department of Labor Deputy
    Assistant Secretary for Labor-Management Programs on account of
    special circumstances in the national interest under authority of 29
    CFR 470.3(c). For indefinite quantity subcontracts, the Contractor
    shall include the substance of this clause if the value of orders in
    any calendar year of the subcontract is expected to exceed the
    simplified acquisition threshold. Pursuant to 29 CFR Part 470,
    Subpart B\--Compliance Evaluations, Complaint Investigations and
    Enforcement Procedures, the Secretary of Labor may direct the
    Contractor to take such action in the enforcement of these
    regulations, including the imposition of sanctions for noncompliance
    with respect to any such subcontract or purchase order. If the
    Contractor becomes involved in litigation with a subcontractor or
    vendor, or is threatened with such involvement, as a result of such
    direction, the Contractor may request the United States, through the
    Secretary of Labor, to enter into such litigation to protect the
    interests of the United States.

# FAR 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997) ALTERNATE I (JUL 1995)

\(a\) \"Hazardous material,\" as used in this clause, includes any
material defined as hazardous under the latest version of Federal
Standard No. 313 (including revisions adopted during the term of the
contract).

(b) The offeror must list any hazardous material, as defined in
    paragraph (a) of this clause, to be delivered under this contract.
    The hazardous material shall be properly identified and include any
    applicable identification number, such as National Stock Number or
    Special Item Number. This information shall also be included on the
    Material Safety Data Sheet submitted under this contract.

  ------------------------------------------------------ --------------------------------------
  Material\                                              Identification No.
  (If none, insert \"None\")                             

  \_\_*[None]{.underline}*\_\_\_\_\_\_\_\_\_\_\_\_\_\_   \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_               \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

  \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_               \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
  ------------------------------------------------------ --------------------------------------

\(c\) This list must be updated during performance of the contract
whenever the Contractor determines that any other material to be
delivered under this contract is hazardous.

\(d\) The apparently successful offeror agrees to submit, for each item
as required prior to award, a Material Safety Data Sheet, meeting the
requirements of 29 CFR 1910.1200(g) and the latest version of Federal
Standard No. 313, for all hazardous material identified in paragraph (b)
of this clause. Data shall be submitted in accordance with Federal
Standard No. 313, whether or not the apparently successful offeror is
the actual manufacturer of these items. Failure to submit the Material
Safety Data Sheet prior to award may result in the apparently successful
offeror being considered nonresponsible and ineligible for award.

\(e\) If, after award, there is a change in the composition of the
item(s) or a revision to Federal Standard No. 313, which renders
incomplete or inaccurate the data submitted under paragraph (d) of this
clause, the Contractor shall promptly notify the Contracting Officer and
resubmit the data.

\(f\) Neither the requirements of this clause nor any act or failure to
act by the Government shall relieve the Contractor of any responsibility
or liability for the safety of Government, Contractor, or subcontractor
personnel or property.

\(g\) Nothing contained in this clause shall relieve the Contractor from
complying with applicable Federal, State, and local laws, codes,
ordinances, and regulations (including the obtaining of licenses and
permits) in connection with hazardous material.

\(h\) The Government\'s rights in data furnished under this contract
with respect to hazardous material are as follows:

> \(1\) To use, duplicate and disclose any data to which this clause is
> applicable. The purposes of this right are to-
>
> \(i\) Apprise personnel of the hazards to which they may be exposed in
> using, handling, packaging, transporting, or disposing of hazardous
> materials;
>
> \(ii\) Obtain medical treatment for those affected by the material;
> and
>
> \(iii\) Have others use, duplicate, and disclose the data for the
> Government for these purposes.
>
> \(2\) To use, duplicate, and disclose data furnished under this
> clause, in accordance with paragraph (h)(1) of this clause, in
> precedence over any other clause of this contract providing for rights
> in data.
>
> \(3\) The Government is not precluded from using similar or identical
> data acquired from other sources.

\(i\) Except as provided in paragraph (i)(2), the Contractor shall
prepare and submit a sufficient number of Material Safety Data Sheets
(MSDS\'s), meeting the requirements of 29 CFR 1910.1200(g) and the
latest version of Federal Standard No. 313, for all hazardous materials
identified in paragraph (b) of this clause.

> \(1\) For items shipped to consignees, the Contractor shall include a
> copy of the MSDS\'s with the packing list or other suitable shipping
> document which accompanies each shipment. Alternatively, the
> Contractor is permitted to transmit MSDS\'s to consignees in advance
> of receipt of shipments by consignees, if authorized in writing by the
> Contracting Officer.
>
> \(2\) For items shipped to consignees identified by mailing address as
> agency depots, distribution centers or customer supply centers, the
> Contractor shall provide one copy of the MSDS\'s in or on each
> shipping container. If affixed to the outside of each container, the
> MSDS\'s must be placed in a weather resistant envelope.

# FAR 52.223-7 NOTICE OF RADIOACTIVE MATERIALS (JAN 1997)

\(a\) The Contractor shall notify the Contracting Officer or designee,
in writing, **[30]{.underline}** days prior to the delivery of, or prior
to completion of any servicing required by this contract of, items
containing either

> \(1\) radioactive material requiring specific licensing under the
> regulations issued pursuant to the Atomic Energy Act of 1954, as
> amended, as set forth in Title 10 of the Code of Federal Regulations,
> in effect on the date of this contract, or
>
> \(2\) other radioactive material not requiring specific licensing in
> which the specific activity is greater than 0.002 microcuries per gram
> or the activity per item equals or exceeds 0.01 microcuries.
>
> Such notice shall specify the part or parts of the items which contain
> radioactive materials, a description of the materials, the name and
> activity of the isotope, the manufacturer of the materials, and any
> other information known to the Contractor which will put users of the
> items on notice as to the hazards involved (OMB No. 9000-0107).

\(b\) If there has been no change affecting the quantity of activity, or
the characteristics and composition of the radioactive material from
deliveries under this contract or prior contracts, the Contractor may
request that the Contracting Officer or designee waive the notice
requirement in paragraph (a) of this clause. Any such request shall \--

> \(1\) Be submitted in writing;
>
> \(2\) State that the quantity of activity, characteristics, and
> composition of the radioactive material have not changed; and
>
> \(3\) Cite the contract number on which the prior notification was
> submitted and the contracting office to which it was submitted.

\(c\) All items, parts, or subassemblies which contain radioactive
materials in which the specific activity is greater than 0.002
microcuries per gram or activity per item equals or exceeds 0.01
microcuries, and all containers in which such items, parts or
subassemblies are delivered to the Government shall be clearly marked
and labeled as required by the latest revision of MIL-STD 129 in effect
on the date of the contract.

\(d\) This clause, including this paragraph (d), shall be inserted in
all subcontracts for radioactive materials meeting the criteria in
paragraph (a) of this clause.

# FAR 52.223-9 ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR EPA-DESIGNATED PRODUCTS (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.\"

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

\(b\) The Contractor, on completion of this contract, shall-

> \(1\) Estimate the percentage of the total recovered material used in
> contract performance, including, if applicable, the percentage of
> postconsumer material content; and

> \(2\) Submit this estimate to the **[U.S. Department of Energy,
> National Nuclear Security Administration, Lawrence Livermore Site
> Office Contracting Officer, at 7000 East Avenue, Livermore, CA 94551
> or via telephone at (925)-423-8050]{.underline}**.

# 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).

# 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 use only domestic end products except to the
extent that it specified delivery of foreign end products in the
provision of the solicitation entitled \"Buy American Act Certificate.\"

# FAR 52.225-9 BUY AMERICAN ACT -- CONSTRUCTION MATERIALS (JAN 2005)

\(a\) 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 construction material.
>
> \"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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| n |                          |             |         |              |   |
| d |                          |             |         |              |   |
| a |                          |             |         |              |   |
| n |                          |             |         |              |   |
| y |                          |             |         |              |   |
| a |                          |             |         |              |   |
| p |                          |             |         |              |   |
| p |                          |             |         |              |   |
| l |                          |             |         |              |   |
| i |                          |             |         |              |   |
| c |                          |             |         |              |   |
| a |                          |             |         |              |   |
| b |                          |             |         |              |   |
| l |                          |             |         |              |   |
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| d |                          |             |         |              |   |
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| t |                          |             |         |              |   |
| y |                          |             |         |              |   |
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| w |                          |             |         |              |   |
| h |                          |             |         |              |   |
| e |                          |             |         |              |   |
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| r |                          |             |         |              |   |
| o |                          |             |         |              |   |
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| t |                          |             |         |              |   |
| a |                          |             |         |              |   |
| d |                          |             |         |              |   |
| u |                          |             |         |              |   |
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| - |                          |             |         |              |   |
| f |                          |             |         |              |   |
| r |                          |             |         |              |   |
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| s |                          |             |         |              |   |
| i |                          |             |         |              |   |
| s |                          |             |         |              |   |
| s |                          |             |         |              |   |
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| d |                          |             |         |              |   |
| ) |                          |             |         |              |   |
| . |                          |             |         |              |   |
| \ |                          |             |         |              |   |
| ] |                          |             |         |              |   |
+---+--------------------------+-------------+---------+--------------+---+

# FAR 52.227-23 RIGHTS TO PROPOSAL DATA (TECHNICAL) (JUNE 1987)

Except for data contained on pages *\_\_\_\_\_ \[to be completed prior
to award\]*, it is agreed that as a condition of award of this contract,
and notwithstanding the conditions of any notice appearing thereon, the
Government shall have unlimited rights (as defined in the \"Rights in
Data-General\" clause contained in this contract) in and to the
technical data contained in the proposal dated
*\_\_\_\_\_\_\_\_\_\_\_\_,\[to be completed prior to award\]* upon which
this contract is based.

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

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

\(a\) If the Government is shown as the consignor or the consignees, the
annotation shall be: \"Transportation is for the **[U.S. Department of
Energy, National Nuclear Security Administration]{.underline}** and the
actual total transportation charges paid to the carrier(s) by the
consignor or consignee are assignable to, and shall be reimbursed by,
the Government.\"

b.  If the Government is not shown as the consignor or the consignee,
    the annotation shall be: \"Transportation is for the **[U.S.
    Department of Energy, National Nuclear Security
    Administration]{.underline}** and the actual total transportation
    charges paid to the carrier(s) by the consignor or consignee shall
    be reimbursed by the Government, pursuant to cost‑reimbursement
    Contract No. **[DE-AC52-07NA27344]{.underline}**. This may be
    confirmed by contacting **[the U.S. Department of Energy, National
    Nuclear Security Administration, Lawrence Livermore Site Office
    Contracting Officer, at 7000 East Avenue, Livermore, CA 94551 or via
    telephone at (925)-423-8050]{.underline}**.\"

# FAR 52.247-67 SUBMISSION OF TRANSPORTATION DOCUMENTS FOR AUDIT (FEB 2006)

\(a\) The Contractor shall submit to the address identified below, for
prepayment audit, transportation documents on which the United States
will assume freight charges that were paid --

> \(1\) By the Contractor under a cost-reimbursement contract; and
>
> \(2\) By a first-tier subcontractor under a cost-reimbursement
> subcontract thereunder.

\(b\) Cost-reimbursement Contractors shall only submit for audit those
bills of lading with freight shipment charges exceeding \$100. Bills
under \$100 shall be retained on-site by the Contractor and made
available for on-site audits. This exception only applies to freight
shipment bills and is not intended to apply to bills and invoices for
any other transportation services.

\(c\) Contractors shall submit the above referenced transportation
documents to---

> **[U.S. Department of Energy]{.underline}**
>
> **[National Nuclear Security Administration]{.underline}**
>
> **[Livermore Site Office Contracting Officer]{.underline}**
>
> **[7000 East Avenue, Mail Stop L293]{.underline}**
>
> **[Livermore CA 94551]{.underline}**

# FAR 52.249-6 TERMINATION (COST REIMBURSEMENT) (MAY 2004) (ALTERATION)

\(a\) 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.
>
> 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.
>
> 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.
>
> \(4\) 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.
>
> \(5\) Complete performance of the work not terminated.
>
> \(6\) 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.
>
> \(7\) 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 49.001 of the Federal Acquisition Regulation, the Contractor may
submit to the Contracting Officer a list, certified as to quantity and
quality, of termination inventory not previously disposed of, excluding
items authorized for disposition by the Contracting Officer. The
Contractor may request the Government to remove those items or enter
into an agreement for their storage. Within 15 days, the Government will
accept the items and remove them or enter into a storage agreement. The
Contracting Officer may verify the list upon removal of the items, or if
stored, within 45 days from submission of the list, and shall correct
the list, as necessary, before final settlement.

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

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

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

> \(1\) All costs reimbursable under this contract, not previously paid,
> for the performance of this contract before the effective date of the
> termination, and those costs that may continue for a reasonable time
> with the approval of or as directed by the Contracting Officer;
> however, the Contractor shall discontinue those costs as rapidly as
> practicable.
>
> \(2\) The cost of settling and paying termination settlement proposals
> under terminated subcontracts that are properly chargeable to the
> terminated portion of the contract if not included in paragraph (h)(1)
> of this clause.
>
> \(3\) The reasonable costs of settlement of the work terminated,
> including-
>
> \(i\) Accounting, legal, clerical, and other expenses reasonably
> necessary for the preparation of termination settlement proposals and
> supporting data;
>
> \(ii\) The termination and settlement of subcontracts (excluding the
> amounts of such settlements); and
>
> \(iii\) Storage, transportation, and other costs incurred, reasonably
> necessary for the preservation, protection, or disposition of the
> termination inventory. If the termination is for default, no amounts
> for the preparation of the Contractor\'s termination settlement
> proposal may be included.
>
> \(4\) A portion of the fee payable under the contract, determined as
> follows:

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

> \(ii\) If the contract is terminated for default, the total fee
> payable shall be such proportionate part of the fee as the total
> number of articles (or amount of services) delivered to and accepted
> by the Government is to the total number of articles (or amount of
> services) of a like kind required by the contract.
>
> \(5\) If the settlement includes only fee, it will be determined under
> paragraph (h)(4) of this clause.

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

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

> \(1\) The amount determined by the Contracting Officer if there is no
> right of appeal or if no timely appeal has been taken; or
>
> \(2\) The amount finally determined on an appeal.

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

> \(1\) All unliquidated advance or other payments to the Contractor,
> under the terminated portion of this contract;
>
> \(2\) Any claim which the Government has against the Contractor under
> this contract; and
>
> \(3\) The agreed price for, or the proceeds of sale of materials,
> supplies, or other things acquired by the Contractor or sold under
> this clause and not recovered by or credited to the Government.

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

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

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

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

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

*[**\*\*Note: This clause becomes applicable when the Offeror/Contractor
submits an acceptable request for indemnification and receives approval
from the Secretary of Energy**.]{.underline}*

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

# 

# 

# FAR 52.252‑4 ALTERATIONS IN CONTRACT (APR 1984)

> Portions of this contract are altered as follows: *[[See Clauses with
> the word "(ALTERATION)" at the end of the clause title. Each
> alteration is formatted in italics and underscored for ease of
> review.]{.underline}]{.mark}*

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

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

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

# 

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

\(a\) Responsibility. It is the contractor\'s duty to safeguard all
classified information, special nuclear material, and other DOE
property. The contractor shall, in accordance with DOE security
regulations and requirements, be responsible for safeguarding all
classified information and protecting against sabotage, espionage, loss
or theft of the classified documents and material in the contractor\'s
possession in connection with the performance of work under this
contract. Except as otherwise expressly provided in this contract, the
contractor shall, upon completion or termination of this contract,
transmit to DOE any classified matter in the possession of the
contractor or any person under the contractor\'s control in connection
with performance of this contract. If retention by the contractor of any
classified matter is required after the completion or termination of the
contract, the contractor shall identify the items and types or
categories of matter proposed for retention, the reasons for the
retention of the matter, and the proposed period of retention. If the
retention is approved by the contracting officer, the security
provisions of the contract shall continue to be applicable to the matter
retained. Special nuclear material shall not be retained after the
completion or termination of the contract.

\(b\) Regulations. The contractor agrees to comply with all security
regulations and requirements of DOE *as incorporated into the contract*.

\(c\) Definition of classified information. The term \"classified
information\" means Restricted Data, Formerly Restricted Data, or
National Security Information.

\(d\) Definition of restricted data. The term \"Restricted Data\" means
all data concerning

> \(1\) design, manufacture, or utilization of atomic weapons;
>
> \(2\) the production of special nuclear material; or
>
> \(3\) the use of special nuclear material in the production of energy,
> but shall not include data declassified or removed from the Restricted
> Data category pursuant to Section 142 of the Atomic Energy Act of
> 1954, as amended.

\(e\) Definition of formerly restricted data. The term \"Formerly
Restricted Data\" means all data removed from the Restricted Data
category under section 142 d. of the Atomic Energy Act of 1954, as
amended.

\(f\) Definition of National Security Information. The term \"National
Security Information\" means any information or material, regardless of
its physical form or characteristics, that is owned by, produced for or
by, or is under the control of the United States Government, that has
been determined pursuant to Executive Order *12958* or prior Orders to
require protection against unauthorized disclosure, and which is so
designated.

\(g\) Definition of Special Nuclear Material (SNM). SNM means:

> \(1\) plutonium, uranium enriched in the isotope 233 or in the isotope
> 235, and any other material which pursuant to the provisions of
> Section 51 of the Atomic Energy Act of 1954, as amended, has been
> determined to be special nuclear material, but does not include source
> material; or
>
> \(2\) any material artificially enriched by any of the foregoing, but
> does not include source material.

\(h\) Security clearance of personnel. The contractor shall not permit
any individual to have access to any classified information, except in
accordance with the Atomic Energy Act of 1954, as amended, Executive
Order *12958*, and the DOE\'s regulations or requirements applicable to
the particular level and category of classified information to which
access is required.

\(i\) Criminal liability. It is understood that disclosure of any
classified information relating to the work or services ordered
hereunder to any person not entitled to receive it, or failure to
safeguard any classified information that may come to the contractor or
any person under the contractor\'s control in connection with work under
this contract, may subject the contractor, its agents, employees, or
subcontractors to criminal liability under the laws of the United
States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011
et seq.; 18 U.S.C. 793 and 794; and E.O. *12958*.)

\(j\) Foreign Ownership, Control or Influence.

> \(1\) The Contractor shall immediately provide the cognizant security
> office written notice of any change in the extent and nature of
> foreign ownership, control or influence over the Contractor which
> would affect any answer to the questions presented in the Certificate
> Pertaining to Foreign Interests, Standard Form 328 or the Foreign
> Ownership, Control or Influence questionnaire executed by the
> Contractor prior to the award of this contract. In addition, any
> notice of changes in ownership or control which are required to be
> reported to the Securities and Exchange Commission, the Federal Trade
> Commission, or the Department of Justice shall also be furnished
> concurrently to the Contracting Officer.
>
> \(2\) If a Contractor has changes involving foreign ownership, control
> or influence, DOE must determine whether the changes will pose an
> undue risk to the common defense and security. In making this
> determination, DOE will consider proposals made by the Contractor to
> avoid or mitigate foreign influences.
>
> \(3\) If the cognizant security office at any time determines that the
> Contractor is, or is potentially, subject to foreign ownership,
> control or influence, the Contractor shall comply with such
> instructions as the Contracting Officer shall provide in writing to
> safeguard any classified information or special nuclear material.
>
> \(4\) The Contractor agrees to insert terms that conform substantially
> to the language of this clause, including this paragraph, in all
> subcontracts under this contract that will require subcontractor
> employees to possess access authorizations. Additionally, the
> Contractor must require subcontractors to have an existing DOD or DOE
> Facility Clearance or submit a completed Certificate Pertaining to
> Foreign Interests, Standard Form 328, required in DEAR 952.204-73
> prior to award of a subcontract. Information to be provided by a
> subcontractor pursuant to this clause may be submitted directly to the
> Contracting Officer. For purposes of this clause, subcontractor means
> any subcontractor at any tier and the term \"Contracting Officer\"
> means the DOE Contracting Officer. When this clause is included in a
> subcontract, the term \"Contractor\" shall mean Subcontractor and the
> term \"contract\" shall mean subcontract.
>
> \(5\) The Contracting Officer may terminate this contract for default
> either if the Contractor fails to meet obligations imposed by this
> clause or if the Contractor creates a FOCI situation in order to avoid
> performance or a termination for default. The Contracting Officer may
> terminate this contract for convenience if the Contractor becomes
> subject to FOCI and for reasons other than avoidance of performance of
> the contract, cannot, or chooses not to, avoid or mitigate the FOCI
> problem.

# DEAR 952.215-70 KEY PERSONNEL (DEC 2000)

\(a\) The personnel listed below or elsewhere in this contract *[(see
Contract Section J Appendix entitled "Key Personnel")]{.underline}* are
considered essential to the work being performed under this contract.
Before removing, replacing, or diverting any of the listed or specified
personnel, the Contractor must: (1) Notify the Contracting Officer
reasonably in advance; (2) submit justification (including proposed
substitutions) in sufficient detail to permit evaluation of the impact
on this contract; and (3) obtain the Contracting Officer\'s written
approval. Notwithstanding the foregoing, if the Contractor deems
immediate removal or suspension of any member of its management team is
necessary to fulfill its obligation to maintain satisfactory standards
of employee competency, conduct, and integrity, the Contractor may
remove or suspend such person at once, although the Contractor must
notify Contracting Officer prior to or concurrently with such action.

\(b\) The list of personnel may, with the consent of the contracting
parties, be amended from time to time during the course of the contract
to add or delete personnel.

# 

**DEAR 952.235-71 RESEARCH MISCONDUCT (JUL 2005)**

\(a\) The contractor is responsible for maintaining the integrity of
research performed pursuant to this contract award including the
prevention, detection, and remediation of research misconduct as defined
by this clause, and the conduct of inquiries, investigations, and
adjudication of allegations of research misconduct in accordance with
the requirements of this clause.

\(b\) Unless otherwise instructed by the contracting officer, the
contractor must conduct an initial inquiry into any allegation of
research misconduct. If the contractor determines that there is
sufficient evidence to proceed to an investigation, it must notify the
contracting officer and, unless otherwise instructed, the contractor
must:

\(1\) Conduct an investigation to develop a complete factual record and
an examination of such record leading to either a finding of research
misconduct and an identification of appropriate remedies or a
determination that no further action is warranted;

\(2\) If the investigation leads to a finding of research misconduct,
conduct an adjudication by a responsible official who was not involved
in the inquiry or investigation and is separated organizationally from
the element which conducted the investigation. The adjudication must
include a review of the investigative record and, as warranted, a
determination of appropriate corrective actions and sanctions.

\(3\) Inform the contracting officer if an initial inquiry supports a
formal investigation and, if requested by the contracting officer
thereafter, keep the contracting officer informed of the results of the
investigation and any subsequent adjudication. When an investigation is
complete, the contractor will forward to the contracting officer a copy
of the evidentiary record, the investigative report, any recommendations
made to the contractor\'s adjudicating official, and the adjudicating
official\'s decision and notification of any corrective action taken or
planned, and the subject\'s written response (if any).

\(c\) The Department may elect to act in lieu of the contractor in
conducting an inquiry or investigation into an allegation of research
misconduct if the contracting officer finds that:

\(1\) The research organization is not prepared to handle the allegation
in a manner consistent with this clause;

\(2\) The allegation involves an entity of sufficiently small size that
it cannot reasonably conduct the inquiry;

\(3\) DOE involvement is necessary to ensure the public heath, safety,
and security, or to prevent harm to the public interest; or,

\(4\) The allegation involves possible criminal misconduct.

\(d\) In conducting the activities under paragraphs (b) and (c)of this
clause, the contractor and the Department, if it elects to conduct the
inquiry or investigation, shall adhere to the following guidelines:

\(1\) [Safeguards for information and subjects of
allegations.]{.underline} The contractor shall provide safeguards to
ensure that individuals may bring allegations of research misconduct
made in good faith to the attention of the contractor without suffering
retribution. Safeguards include: protection against retaliation; fair
and objective procedures for examining and resolving allegations; and
diligence in protecting positions and reputations. The contractor shall
also provide the subjects of allegations confidence that their rights
are protected and that the mere filing of an allegation of research
misconduct will not result in an adverse action. Safeguards include
timely written notice regarding substantive allegations against them, a
description of the allegation and reasonable access to any evidence
submitted to support the allegation or developed in response to an
allegation and notice of any findings of research misconduct.

\(2\) [Objectivity and Expertise.]{.underline} The contractor shall
select individual(s) to inquire, investigate, and adjudicate allegations
of research misconduct who have appropriate expertise and have no
unresolved conflict of interest. The individual(s) who conducts an
adjudication must not be the same individual(s) who conducted the
inquiry or investigation, and must be separate organizationally from the
element that conducted the inquiry or investigation.

\(3\) [Timeliness.]{.underline} The contractor shall coordinate,
inquire, investigate and adjudicate allegations of research misconduct
promptly, but thoroughly. Generally, an investigation should be
completed within 120 days of initiation, and adjudication should be
complete within 60 days of receipt of the record of investigation.

\(4\) [Confidentiality.]{.underline} To the extent possible, consistent
with fair and thorough processing of allegations of research misconduct
and applicable law and regulation, knowledge about the identity of the
subjects of allegations and informants should be limited to those with a
need to know.

\(5\) [Remediation and Sanction.]{.underline} If the contractor finds
that research misconduct has occurred, it shall assess the seriousness
of the misconduct and its impact on the research completed or in
process. The contractor must take all necessary corrective actions. Such
action may include but are not limited to, correcting the research
record and as appropriate imposing restrictions, controls, or other
parameters on research in process or to be conducted in the future. The
contractor must coordinate remedial actions with the contracting
officer. The contractor must also consider whether personnel sanctions
are appropriate. Any such sanction must be considered and effected
consistent with any applicable personnel laws, policies, and procedures,
and shall take into account the seriousness of the misconduct and its
impact, whether it was done knowingly or intentionally, and whether it
was an isolated event or pattern of conduct.

\(e\) DOE reserves the right to pursue such remedies and other actions
as it deems appropriate, consistent with the terms and conditions of the
award instrument and applicable laws and regulations. However, the
contractor\'s good faith administration of this clause and the
effectiveness of its remedial actions and sanctions shall be positive
considerations and shall be taken into account as mitigating factors in
assessing the need for such actions. If DOE pursues any such action, it
will inform the subject of the action of the outcome and any applicable
appeal procedures.

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

*[Adjudication]{.underline}* means a formal review of a record of
investigation of alleged research misconduct to determine whether and
what corrective actions and sanctions should be taken.

*[Fabrication]{.underline}* means making up data or results and
recording or reporting them.

*[Falsification]{.underline}* means manipulating research materials,
equipment, or processes, or changing or omitting data or results such
that the research is not accurately represented in the research record.

*[Finding of Research Misconduct]{.underline}* means a determination,
based on a preponderance of the evidence, that research misconduct has
occurred. Such a finding requires a conclusion that there has been a
significant departure from accepted practices of the relevant research
community and that it be knowingly, intentionally, or recklessly
committed.

*[Inquiry]{.underline}* means information gathering and initial
fact-finding to determine whether an allegation or apparent instance of
misconduct warrants an investigation.

*[Investigation]{.underline}* means the formal examination and
evaluation of the relevant facts.

*[Plagiarism]{.underline}* means the appropriation of another person\'s
ideas, processes, results, or words without giving appropriate credit.

*[Research]{.underline}* means all basic, applied, and demonstration
research in all fields of science, medicine, engineering, and
mathematics, including, but not limited to, research in economics,
education, linguistics, medicine, psychology, social sciences
statistics, and research involving human subjects or animals.

*[Research Misconduct]{.underline}* means fabrication, falsification, or
plagiarism in proposing, performing, or reviewing research, or in
reporting research results, but does not include honest error or
differences of opinion.

*[Research record]{.underline}* means the record of all data or results
that embody the facts resulting from scientists\' inquiries, including,
but not limited to, research proposals, laboratory records, both
physical and electronic, progress reports, abstracts, theses, oral
presentations, internal reports, and journal articles.

\(g\) By executing this contract, the contractor provides its assurance
that it has established an administrative process for performing an
inquiry, mediating if possible, or investigating, and reporting
allegations of research misconduct; and that it will comply with its own
administrative process and the requirements of 10 CFR part 733 for
performing an inquiry, possible mediation, investigation and reporting
of research misconduct.

\(h\) The contractor must insert or have inserted the substance of this
clause, including paragraph (g), in subcontracts at all tiers that
involve research. (End of Clause)

# 

# 

# 

# DEAR 952.250‑70 NUCLEAR HAZARDS INDEMNITY AGREEMENT (OCT 2005)

\(a\) Authority. This clause is incorporated into this Contract pursuant
to the authority contained in subsection 170d. of the Atomic Energy Act
of 1954, as amended (hereinafter called the Act.)

\(b\) Definitions. The definitions set out in the Act shall apply to
this clause.

\(c\) Financial Protection. Except as hereafter permitted or required in
writing by DOE, the Contractor will not be required to provide or
maintain, and will not provide or maintain at Government expense, any
form of financial protection to cover public liability, as described in
paragraph (d)(2) below. DOE may, however, at any time require in writing
that the Contractor provide and maintain financial protection of such a
type and in such amount as DOE shall determine to be appropriate to
cover such public liability, provided that the costs of such financial
protection are reimbursed to the Contractor by DOE.

\(d\) Indemnification.

> \(1\) To the extent that the Contractor and other persons indemnified
> are not compensated by any financial protection permitted or required
> by DOE, DOE will indemnify the Contractor and other persons
> indemnified against (i) claims for public liability as described in
> subparagraph (d)(2) of this clause; and (ii) such legal costs of the
> Contractor and other persons indemnified as are approved by DOE,
> provided that DOE\'s liability, including such legal costs, shall not
> exceed the amount set forth in section 170e.(1)(B) of the Act in the
> aggregate for each nuclear incident or precautionary evacuation
> occurring within the United States or \$100 million in the aggregate
> for each nuclear incident occurring outside the United States,
> irrespective of the number of persons indemnified in connection with
> this contract.
>
> \(2\) The public liability referred to in subparagraph (d)(1) of this
> clause is public liability as defined in the Act which (i) arises out
> of or in connection with the activities under this contract, including
> transportation; and (ii) arises out of or results from a nuclear
> incident or precautionary evacuation, as those terms are defined in
> the Act.

\(e\) Waiver of Defenses.

> \(1\) In the event of a nuclear incident, as defined in the Act,
> arising out of nuclear waste activities, as defined in the Act, the
> Contractor, on behalf of itself and other persons indemnified, agrees
> to waive any issue or defense as to charitable or governmental
> immunity.
>
> \(2\) In the event of an extraordinary nuclear occurrence which:
>
> \(i\) Arises out of, results from, or occurs in the course of the
> construction, possession, or operation of a production or utilization
> facility; or
>
> \(ii\) Arises out of, results from, or occurs in the course of
> transportation of source material, by‑product material, or special
> nuclear material to or from a production or utilization facility; or
>
> \(iii\) Arises out of or results from the possession, operation, or
> use by the Contractor or a subcontractor of a device utilizing special
> nuclear material or by‑product material, during the course of the
> Contract activity; or
>
> \(iv\) Arises out of, results from, or occurs in the course of nuclear
> waste activities, the Contractor, on behalf of itself and other
> persons indemnified, agrees to waive:
>
> \(A\) Any issue or defense as to the conduct of the claimant
> (including the conduct of persons through whom the claimant derives
> its cause of action) or fault or persons indemnified, including, but
> not limited to:
>
> \(1\) Negligence;
>
> \(2\) Contributory negligence;
>
> \(3\) Assumption of risk; or
>
> \(4\) Unforeseeable intervening causes, whether involving the conduct
> of a third person or an act of God;
>
> \(B\) Any issue or defense as to charitable or governmental immunity;
> and
>
> \(C\) Any issue or defense based on any statute of limitations, if
> suit is instituted within 3 years from the date on which the claimant
> first knew, or reasonably could have known, of his injury or change
> and the cause thereof. The waiver of any such issue or defense shall
> be effective regardless of whether such issue or defense may otherwise
> be deemed jurisdictional or relating to an element in the cause of
> action. The waiver shall be judicially enforceable in accordance with
> its terms by the claimant against the person indemnified.
>
> \(v\) The term extraordinary nuclear occurrence means an event which
> DOE has determined to be an extraordinary nuclear occurrence as
> defined in the Act. A determination of whether or not there has been
> an extraordinary nuclear occurrence will be made in accordance with
> the procedures in 10 CFR Part 840.
>
> \(vi\) For the purposes of that determination, \"offsite\" as that
> term is used in 10 CFR part 840 means away from \"the contract
> location\" which phrase means any DOE facility, installation, or site
> at which contractual activity under this Contract is being carried on,
> and any Contractor‑owned or controlled facility, installation, or site
> at which the Contractor is engaged in the performance of contractual
> activity under this contract.
>
> \(3\) The waivers set forth above:
>
> \(i\) Shall be effective regardless of whether such issue or defense
> may otherwise be deemed jurisdictional or relating to an element in
> the cause of action;
>
> \(ii\) Shall be judicially enforceable in accordance with its terms by
> the claimant against the person indemnified;
>
> \(iii\) Shall not preclude a defense based upon a failure to take
> reasonable steps to mitigate damages;
>
> \(iv\) Shall not apply injury or damage to a claimant or to a
> claimant\'s property which is intentionally sustained by the claimant
> or which results from a nuclear incident intentionally and wrongfully
> caused by the claimant;
>
> \(v\) Shall not apply to injury to a claimant who is employed at the
> site of and in connection with the activity where the extraordinary
> nuclear occurrence takes place, if benefits therefore are either
> payable or required to be provided under any workmen\'s compensation
> or occupational disease law;
>
> \(vi\) Shall not apply to any claim resulting from a nuclear incident
> occurring outside the United States;
>
> \(vii\) Shall be effective only with respect to those obligations set
> forth in this clause and in insurance policies, contracts or other
> proof of financial protection; and
>
> \(viii\) Shall not apply to, or prejudice the prosecution or defense
> of, any claim or portion of claim which is not within the protection
> afforded under (A) the limit of liability provisions under subsection
> 170e. of the Act, and (B) the terms of this agreement and the terms of
> insurance policies, contracts, or other proof of financial protection.

\(f\) Notification and litigation of claims. The Contractor shall give
immediate written notice to DOE of any known action or claim filed or
made against the Contractor or other person indemnified for public
liability as defined in paragraph (d)(2). Except as otherwise directed
by DOE, the Contractor shall furnish promptly to DOE, copies of all
pertinent papers received by the Contractor or filed with respect to
such actions of claims. DOE shall have the right to, and may collaborate
with, the Contractor and any other person indemnified in the settlement
or defense of any action or claim and shall have the right to (1)
require the prior approval of DOE for the payment of any claim that DOE
may be required to indemnify hereunder; and (2) appear through the
Attorney General on behalf of the Contractor or other person indemnified
in any action brought upon any claim that DOE may be required to
indemnify hereunder, take charge of such action, and settle or defend
any such action. If the settlement or defense of any such action or
claim is undertaken by DOE, the Contractor or other person indemnified
shall furnish all reasonable assistance in effecting a settlement or
asserting a defense.

\(g\) Continuity of DOE obligations. The obligations of DOE under this
clause shall not be affected by any failure on the part of the
Contractor to fulfill its obligation under this Contract and shall be
unaffected by the death, disability, or termination of existence of the
contractor, or by the completion, termination or expiration of this
contract.

\(h\) Effect of other clauses. The provisions of this clause shall not
be limited in any way by, and shall be interpreted without reference to,
any other clause of this contract, including the clause entitled
"Contract Disputes," provided, however, that this clause shall be
subject to the clauses entitled "Covenant Against Contingent Fees," to
the portion of a clause of this Contract providing specifically for
examination of records relating to this Contract by the Comptroller
General, and to any provisions that are later added to this Contract as
required by applicable Federal law, including statutes, executive orders
and regulations, to be included in Nuclear Hazards Indemnity Agreements.

\(i\) Civil penalties. The Contractor and its subcontractors and
suppliers who are indemnified under the provisions of this clause are
subject to civil penalties, pursuant to 234A of the Act, for violations
of applicable DOE nuclear-safety related rules, regulations, or orders.

\(j\) Criminal penalties. Any individual director, officer, or employee
of the Contractor or of its subcontractors and suppliers who are
indemnified under the provisions of this clause are subject to criminal
penalties, pursuant to 223c. of the Act, for knowing and willful
violation of the Atomic Energy Act of 1954, as amended, and applicable
DOE nuclear safety‑related rules, regulations or orders which violation
results in, or, if undetected, would have resulted in a nuclear
incident.

\(k\) Inclusion in subcontracts. The Contractor shall insert this clause
in any subcontract which may involve the risk of public liability, as
that term is defined in the Act and further described in paragraph
(d)(2) above. However, this clause shall not be included in subcontracts
in which the subcontractor is subject to Nuclear Regulatory Commission
(NRC) financial protection requirements under section 170b. of the Act
or NRC agreements of indemnification under section 170c. or k. of the
Act for the activities under the subcontract.

# DEAR 970.5203-1 MANAGEMENT CONTROLS (MAY 2006) (DEVIATION)

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

> \(2\) The systems of controls employed by the contractor shall be
> documented and satisfactory to DOE.
>
> \(3\) Such systems shall be an integral part of the contractor\'s
> management functions, including defining specific roles and
> responsibilities for each level of management, and holding employees
> accountable for the adequacy of the management systems and controls in
> their areas of assigned responsibility.
>
> \(4\) The contractor shall, as part of the internal audit program
> required elsewhere in this contract, periodically review the
> management systems and controls employed in programs and
> administrative areas to ensure that they are adequate to provide
> reasonable assurance that the objectives of the systems are being
> accomplished and that these systems and controls are working
> effectively. *Annually, or at other intervals directed by the
> contracting officer, the contractor shall supply to the contracting
> officer copies of the reports reflecting the status of recommendations
> that result from audits of business, financial, or management controls
> performed by its internal audit activity and any other audit
> activity.*
>
> \(b\) The contractor shall be responsible for maintaining, as a part
> of its operational responsibilities, a baseline quality assurance
> program that implements documented performance, quality standards, and
> control and assessment techniques.

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

\(a\) [Organization chart]{.underline}. As promptly as possible after
the execution of this Contract, the contractor shall furnish to the
contracting officer *(1)* a chart showing the names, duties, and
organization of key personnel (see 48 CFR 952.215-70) to be employed in
connection with the work, and shall furnish supplemental information to
reflect any changes as they occur*; and, (2) a chart showing the name
and organization of the Contractor's Parent Organization's responsible
official for administering the Contractor's Parent Organization's
Oversight Plan, and shall furnish supplemental information to reflect
any changes as they occur.*

\(b\) [Supervisory representative of contractor]{.underline}. Unless
otherwise directed by the contracting officer, a competent full-time
resident supervisory representative of the contractor satisfactory to
the contracting officer shall be in charge of the work at the site, and
any work off-site, at all times. *For purposes of this Contract, the
Lawrence Livermore National Laboratory Director is the resident
supervisory representative of the contractor.*

\(c\) [Control of employees]{.underline}. The contractor shall be
responsible for maintaining satisfactory standards of employee
competency, conduct, and integrity and shall be responsible for taking
such disciplinary action with respect to its employees as may be
necessary. In the event the contractor fails to remove any employee from
the contract work whom DOE deems incompetent, careless, or
insubordinate, or whose continued employment on the work is deemed by
DOE to be inimical to the Department\'s mission, the contracting officer
may require, with the approval of *the Administrator of the NNSA or* the
Secretary of Energy, the contractor to remove the employee from work
under the contract. This includes the right to direct the contractor to
remove its most senior key person from work under the contract for
serious contract performance deficiencies. *Furthermore, nothing
contained in this paragraph (c) shall in any way impair the statutory or
contractual collective bargaining rights of union-represented LLNL
employees.*

\(d\) [Standards and procedures]{.underline}. The contractor shall
establish such standards and procedures as are necessary to implement
the requirements set forth in 48 CFR 970.0371. Such standards and
procedures shall be subject to the approval of the contracting officer.

*(e) Nothing in this clause or its implementation is intended to
conflict with 42 U.S.C. §7274p, or to otherwise affect the scientific
integrity of persons required to provide independent technical judgments
to provide the President or the Congress assurances on the safety,
security, reliability, or effectiveness of the US nuclear weapons
stockpile.*

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

\(a\) In performing work under this contract, the contractor shall
comply with the requirements of applicable Federal, State, and local
laws and regulations (including DOE regulations), unless relief has been
granted in writing by the appropriate regulatory *agency.*

\(b\) In performing work under this contract, the contractor shall
comply with the requirements of those Department of Energy directives,
or parts thereof, *and National Nuclear Security Administration Policy
Letters* identified in the Contract's Section J Appendix entitled "List
of Applicable Directives" *(the List)*. Except as otherwise provided for
in paragraph (d) of this clause, the contracting officer may, from time
to time and at any time, revise *the* *List* by unilateral modification
to the contract to add, modify, or delete specific requirements. Prior
to revising *the List*, the contracting officer shall notify the
contractor in writing of the Department\'s intent to revise *the List*
and provide the contractor with the opportunity to assess the effect of
the contractor\'s compliance with the revised list on contract cost and
funding, technical performance, and schedule; and identify any potential
inconsistencies between the revised list and the other terms and
conditions of the contract. Within 30 days after receipt of the
contracting officer\'s notice, the contractor shall advise the
contracting officer in writing of the potential impact of the
contractor\'s compliance with the revised list. Based on the information
provided by the contractor and any other information available, the
contracting officer shall decide whether to revise *the List* and so
advise the contractor not later than 30 days prior to the effective date
of the revision of *the List*. The contractor and the contracting
officer shall identify and, if appropriate, agree to any changes to
other contract terms and conditions, including cost and schedule,
associated with the revision of *the List* *and fee may be adjusted*
pursuant to the clause of this contract entitled, \"Changes.\"

\(c\) Environmental, safety, and health (ES&H) requirements appropriate
for work conducted under this contract may be determined by a DOE
approved process to evaluate the work and the associated hazards and
identify an appropriately tailored set of standards, practices, and
controls, such as a tailoring process included in a DOE approved Safety
Management System implemented under the clause entitled \"Integration of
Environmental, Safety, and Health into Work Planning and Execution.\"
When such a process is used, the set of tailored (ES&H) requirements, as
approved by DOE pursuant to the process, shall be incorporated into *the
List* as contract requirements with full force and effect. These
requirements shall supersede, in whole or in part, the contractual
environmental, safety, and health requirements previously made
applicable to the contract by *the List*. If the tailored set of
requirements identifies an alternative requirement varying from an ES&H
requirement of an applicable law or regulation, the contractor shall
request an exemption or other appropriate regulatory relief specified in
the regulation.

\(d\) Except as otherwise directed by the contracting officer, the
contractor shall procure all necessary permits or licenses required for
the performance of work under this contract.

\(e\) Regardless of the performer of the work, the contractor is
responsible for compliance with the requirements of this clause. The
contractor is responsible for flowing down the requirements of this
clause to subcontracts at any tier to the extent necessary to ensure the
contractor\'s compliance with the requirements.

**DEAR 970.5204-3 ACCESS TO AND OWNDERSHIP OF RECORDS (JUL 2005)**\
\
(a) Government-owned records. Except as provided in paragraph (b) of
this clause, all records acquired or generated by the contractor in its
performance of this contract shall be the property of the Government and
shall be delivered to the Government or otherwise disposed of by the
contractor either as the contracting officer may from time to time
direct during the progress of the work or, in any event, as the
contracting officer shall direct upon completion or termination of the
contract.\
\
(b) Contractor-owned records. The following records are considered the
property of the contractor and are not within the scope of paragraph (a)
of this clause.\
\
(1) Employment-related records (such as worker\'s compensation files;
employee relations records, records on salary and employee benefits;
drug testing records, labor negotiation records; records on ethics,
employee concerns; records generated during the course of responding to
allegations of research misconduct; records generated during other
employee related investigations conducted under an expectation of
confidentiality; employee assistance program records; and personnel and
medical/health-related records and similar files), and non-employee
patient medical/health-related records, except for those records
described by the contract as being maintained in Privacy Act systems of
records.\
\
(2) Confidential contractor financial information, and correspondence
between the contractor and other segments of the contractor located away
from the DOE facility (i.e., the contractor\'s corporate headquarters);\
\
(3) Records relating to any procurement action by the contractor, except
for records that under 48 CFR 970.5232-3, Accounts, Records, and
Inspection, are described as the property of the Government; and\
\
(4) Legal records, including legal opinions, litigation files, and
documents covered by the attorney-client and attorney work product
privileges; and\
\
(5) The following categories of records maintained pursuant to the
technology transfer clause of this contract:\
\
(i) Executed license agreements, including exhibits or appendices
containing information on royalties, royalty rates, other financial
information, or commercialization plans, and all related documents,
notes and correspondence.\
\
(ii) The contractor\'s protected Cooperative Research and Development
Agreement (CRADA) information and appendices to a CRADA that contain
licensing terms and conditions, or royalty or royalty rate information.\
\
(iii) Patent, copyright, mask work, and trademark application files and
related contractor invention disclosures, documents and correspondence,
where the contractor has elected rights or has permission to assert
rights and has not relinquished such rights or turned such rights over
to the Government.\
\
(c) Contract completion or termination. In the event of completion or
termination of this contract, copies of any of the contractor-owned
records identified in paragraph (b) of this clause, upon the request of
the Government, shall be delivered to DOE or its designees, including
successor contractors. Upon delivery, title to such records shall vest
in DOE or its designees, and such records shall be protected in
accordance with applicable federal laws (including the Privacy Act), as
appropriate.\
\
(d) Inspection, copying, and audit of records. All records acquired or
generated by the contractor under this contract in the possession of the
contractor, including those described at paragraph (b) of this clause,
shall be subject to inspection, copying, and audit by the Government or
its designees at all reasonable times, and the contractor shall afford
the Government or its designees reasonable facilities for such
inspection, copying, and audit; provided, however, that upon request by
the contracting officer, the contractor shall deliver such records to a
location specified by the contracting officer for inspection, copying,
and audit. The Government or its designees shall use such records in
accordance with applicable federal laws (including the Privacy Act), as
appropriate.\
\
(e) Applicability. Paragraphs (b), (c), and (d) of this clause apply to
all records without regard to the date or origination of such records.\
\
(f) Records retention standards. Special records retention standards,
described at DOE Order 200.1, Information Management Program (version in
effect on effective date of contract), are applicable for the classes of
records described therein, whether or not the records are owned by the
Government or the contractor. In addition, the contractor shall retain
individual radiation exposure records generated in the performance of
work under this contract until DOE authorizes disposal. The Government
may waive application of these record retention schedules, if, upon
termination or completion of the contract, the Government exercises its
right under paragraph (c) of this clause to obtain copies and delivery
of records described in paragraphs (a) and (b) of this clause.\
\
(g) Subcontracts. The contractor shall include the requirements of this
clause in all subcontracts that are of a cost-reimbursement type if any
of the following factors is present:\
\
(1) The value of the subcontract is greater than \$2 million (unless
specifically waived by the contracting officer);\
\
(2) The contracting officer determines that the subcontract is, or
involves, a critical task related to the contract; or\
\
(3) The subcontract includes 48 CFR 970.5223-1, Integration of
Environment, Safety, and Health into Work Planning and Execution, or
similar clause. (End of Clause)

# 

# 

# DEAR 970.5215-3 CONDITIONAL PAYMENT OF FEE, PROFIT, AND INCENTIVES -- FACILITY MANAGEMENT CONTRACTS (JAN 2004) (DEVIATION)

\(a\) General.

> \(1\) The payment of earned fee, fixed fee, profit, or share of cost
> savings under this contract is dependent upon:
>
> \(i\) The contractor\'s or contractor employees' compliance with the
> terms and conditions of this contract relating to environment, safety
> and health (ES&H), which includes worker safety and health (WS&H),
> including performance under an approved Integrated Safety Management
> System (ISMS); and
>
> \(ii\) The contractor\'s or contractor employees' compliance with the
> terms and conditions of this contract relating to the safeguarding of
> Restricted Data and other classified information.
>
> \(2\) The ES&H performance requirements of this contract are set forth
> in its ES&H terms and conditions, including the DOE approved
> contractor ISMS or similar document. Financial incentives for timely
> mission accomplishment or cost effectiveness shall never compromise or
> impede full and effective implementation of the ISMS and full ES&H
> compliance.
>
> \(3\) The performance requirements of this contract relating to the
> safeguarding of Restricted Data and other classified information are
> set forth in the clauses of this contract entitled, "Security" and
> "Laws, Regulations, and DOE Directives," as well as in other terms and
> conditions.
>
> \(4\) If the contractor does not meet the performance requirements of
> this contract relating to ES&H or to the safeguarding of Restricted
> Data and other classified information during any performance
> evaluation period established under the *contract, otherwise* earned
> fee, fixed fee, profit or share of cost savings may be unilaterally
> reduced by the contracting officer.

\(b\) Reduction Amount.

> \(1\) The amount of earned fee, fixed fee, profit, or share of cost
> savings that may be unilaterally reduced will be determined by the
> severity of the performance failure pursuant to the degrees specified
> in paragraphs (c) and (d) of this clause.
>
> \(2\) If a reduction of earned fee, fixed fee, profit, or share of
> cost savings is warranted, unless mitigating factors apply, such
> reduction shall not be less than 26% nor greater than 100% of the
> amount of earned fee, fixed fee, profit, or the contractor\'s share of
> cost savings for a first degree performance failure, not less than 11%
> nor greater than 25% for a second degree performance failure, and up
> to 10% for a third degree performance failure.
>
> \(3\) In determining the amount of the reduction and the applicability
> of mitigating factors, the contracting officer must consider the
> contractor's overall performance in meeting the ES&H or security
> requirements of the contract. Such consideration must include
> performance against any site specific performance
> criteria/requirements that provide additional definition, guidance for
> the amount of reduction, or guidance for the applicability of
> mitigating factors. In all cases, the contracting officer must
> consider mitigating factors that may warrant a reduction below the
> applicable range (see 48 CFR 970.1504-1-2). The mitigating factors
> include, but are not limited to, the following ((v), (vi), (vii) and
> (viii) apply to ES&H only).
>
> \(i\) Degree of control the contractor had over the event or incident.
>
> \(ii\) Efforts the contractor had made to anticipate and mitigate the
> possibility of the event in advance.
>
> \(iii\) Contractor self-identification and response to the event to
> mitigate impacts and recurrence.
>
> \(iv\) General status (trend and absolute performance) of: ES&H and
> compliance in related areas; or of safeguarding Restricted Data and
> other classified information and compliance in related areas.
>
> \(v\) Contractor demonstration to the contracting officer's
> satisfaction that the principles of industrial ES&H standards are
> routinely practiced (e.g., Voluntary Protection Program, ISO 14000).
>
> \(vi\) Event caused by \"Good Samaritan\" act by the contractor (e.g.,
> offsite emergency response).
>
> \(vii\) Contractor demonstration that a performance measurement system
> is routinely used to improve and maintain ES&H performance (including
> effective resource allocation) and to support DOE corporate
> decision-making (e.g., policy, ES&H programs).
>
> \(viii\) Contractor demonstration that an Operating Experience and
> Feedback Program is functioning that demonstrably affects continuous
> improvement in ES&H by use of lessons-learned and best practices
> inter- and intra-DOE sites.
>
> \(4\) (i) The amount of fee, fixed fee, profit, or share of cost
> savings that is otherwise earned by a contractor during an evaluation
> period may be reduced in accordance with this clause if it is
> determined that a performance failure warranting a reduction under
> this clause occurs within the evaluation period.
>
> \(ii\) The amount of reduction under this clause, in combination with
> any reduction made under any other clause in the contract, shall not
> exceed the amount of fee, fixed fee, profit, or the contractor\'s
> share of cost savings that is otherwise earned during the evaluation
> period.
>
> \(iii\) For the purposes of this clause, earned fee, fixed fee,
> profit, or share of cost savings for the evaluation period shall mean
> the amount determined by the contracting officer or fee determination
> official as otherwise payable based on the contractor\'s performance
> during the evaluation period. Where the contract provides for
> financial incentives that extend beyond a single evaluation period,
> this amount shall also include: any provisional amounts determined
> otherwise payable in the evaluation period; and, if provisional
> payments are not provided for, the allocable amount of any incentive
> determined otherwise payable at the conclusion of a subsequent
> evaluation period. The allocable amount shall be the total amount of
> the earned incentive divided by the number of evaluation periods over
> which it was earned.
>
> \(iv\) The Government will effect the reduction as soon as practicable
> after the end of the evaluation period in which the performance
> failure occurs. If the Government is not aware of the failure, it will
> effect the reduction as soon as practical after becoming aware. For
> any portion of the reduction requiring an allocation the Government
> will effect the reduction at the end of the evaluation period in which
> it determines the total amount earned under the incentive. If at any
> time a reduction causes the sum of the payments the contractor has
> received for fee, fixed fee, profit, or share of cost savings to
> exceed the sum of fee, fixed fee, profit, or share of cost savings the
> contractor has earned (provisionally or otherwise), the contractor
> shall immediately return the excess to the Government. (What the
> contractor "has earned" reflects any reduction made under this or any
> other clause of the contract.)
>
> \(v\) At the end of the contract:
>
> \(A\) The Government will pay the contractor the amount by which the
> sum of fee, fixed fee, profit, or share of cost savings the contractor
> has earned exceeds the sum of the payments the contractor has
> received; or
>
> \(B\) The contractor shall return to the Government the amount by
> which the sum of the payments the contractor has received exceeds the
> sum of fee, fixed fee, profit, or share of cost savings the contractor
> has earned. (What the contractor "has earned\'\' reflects any
> reduction made under this or any other clause of the contract.)

\(c\) Environment, Safety and Health (ES&H). Performance failures occur
if the contractor does not comply with the contract's ES&H terms and
conditions, including the DOE approved contractor ISMS. The degrees of
performance failure under which reductions of earned or fixed fee,
profit, or share of cost savings will be determined are:

> \(1\) First Degree: Performance failures that are most adverse to
> ES&H. Failure to develop and obtain required DOE approval of an ISMS
> is considered first degree. The Government will perform necessary
> review of the ISMS in a timely manner and will not unreasonably
> withhold approval of the contractor's ISMS. The following performance
> failures or performance failures of similar import will be considered
> first degree.
>
> \(i\) Type A accident (defined in DOE Order 225.1A).
>
> \(ii\) Two Second Degree performance failures during an evaluation
> period.
>
> \(2\) Second Degree: Performance failures that are significantly
> adverse to ES&H. They include failures to comply with an approved ISMS
> that result in an actual injury, exposure, or exceedence that occurred
> or nearly occurred but had minor practical long-term health
> consequences. They also include breakdowns of the Safety Management
> System. The following performance failures or performance failures of
> similar import will be considered second degree:
>
> \(i\) Type B accident (defined in DOE Order 225.1A).
>
> \(ii\) Non-compliance with an approved ISMS that results in a near
> miss of a Type A or B accident. A near miss is a situation in which an
> inappropriate action occurs, or a necessary action is omitted, but
> does not result in an adverse effect.
>
> \(iii\) Failure to mitigate or notify DOE of an imminent danger
> situation after discovery, where such notification is a requirement of
> the contract.
>
> \(3\) Third Degree: Performance failures that reflect a lack of focus
> on improving ES&H. They include failures to comply with an approved
> ISMS that result in potential breakdown of the System. The following
> performance failures or performance failures of similar import will be
> considered third degree:
>
> \(i\) Failure to implement effective corrective actions to address
> deficiencies/non-compliances documented through: external (e.g.,
> Federal) oversight and/or reported per DOE *Manual 231.1-2*
> requirements; or internal oversight of DOE Order 440.1A requirements.
>
> \(ii\) Multiple similar non-compliances identified by external (e.g.,
> Federal) oversight that in aggregate indicate a significant
> programmatic breakdown.
>
> \(iii\) Non-compliances that either have, or may have, significant
> negative impacts to the worker, the public, or the environment or that
> indicate a significant programmatic breakdown.
>
> \(iv\) Failure to notify DOE upon discovery of events or conditions
> where notification is required by the terms and conditions of the
> contract.

\(d\) Safeguarding Restricted Data and Other Classified Information.
Performance failures occur if the contractor does not comply with the
terms and conditions of this contract relating to the safeguarding of
Restricted Data and other classified information. The degrees of
performance failure under which reductions of fee, profit, or share of
cost savings will be determined are as follows:

> \(1\) [First Degree]{.underline}: Performance failures that have been
> determined, in accordance with applicable law, DOE regulation, or
> directive, to have resulted in, or that can reasonably be expected to
> result in, exceptionally grave damage to the national security. The
> following are examples of performance failures or performance failures
> of similar import that will be considered first degree:
>
> \(i\) Non-compliance with applicable laws, regulations, and DOE
> directives actually resulting in, or creating a risk of, loss,
> compromise, or unauthorized disclosure of Top Secret Restricted Data
> or other information classified as Top Secret, any classification
> level of information in a Special Access Program (SAP), information
> identified as sensitive compartmented information (SCI), or high risk
> nuclear weapons-related data.
>
> \(ii\) Contractor actions that result in a breakdown of the safeguards
> and security management system that can reasonably be expected to
> result in the loss, compromise, or unauthorized disclosure of Top
> Secret Restricted Data, or other information classified as Top Secret,
> any classification level of information in a SAP, information
> identified as SCI, or high risk nuclear weapons-related data.
>
> \(iii\) Failure to promptly report the loss, compromise, or
> unauthorized disclosure of Top Secret Restricted Data, or other
> information classified as Top Secret, any classification level of
> information in a SAP, information identified as SCI, or high risk
> nuclear weapons-related data.
>
> \(iv\) Failure to timely implement corrective actions stemming from
> the loss, compromise, or unauthorized disclosure of Top Secret
> Restricted Data or other information classified as Top Secret, any
> classification level of information in a SAP, information identified
> as SCI, or high risk nuclear weapons-related data.
>
> \(2\) [Second Degree]{.underline}: Performance failures that have been
> determined, in accordance with applicable law, DOE regulation, or
> directive, to have actually resulted in, or that can reasonably be
> expected to result in, serious damage to the national security. The
> following are examples of performance failures or performance failures
> of similar import that will be considered second degree:
>
> \(i\) Non-compliance with applicable laws, regulations, and DOE
> directives actually resulting in, or creating risk of, loss,
> compromise, or unauthorized disclosure of Secret Restricted Data or
> other information classified as Secret.
>
> \(ii\) Contractor actions that result in a breakdown of the safeguards
> and security management system that can reasonably be expected to
> result in the loss, compromise, or unauthorized disclosure of Secret
> Restricted Data, or other information classified as Secret.
>
> \(iii\) Failure to promptly report the loss, compromise, or
> unauthorized disclosure of Restricted Data or other classified
> information regardless of classification (except for information
> covered by paragraph (d)(1)(iii) of this clause).
>
> \(iv\) Failure to timely implement corrective actions stemming from
> the loss, compromise, or unauthorized disclosure of Secret Restricted
> Data or other classified information classified as Secret.
>
> \(3\) [Third Degree]{.underline}: Performance failures that have been
> determined, in accordance with applicable law, regulation, or DOE
> directive, to have actually resulted in, or that can reasonably be
> expected to result in, undue risk to the common defense and security.
> In addition, this category includes performance failures that result
> from a lack of contractor management and/or employee attention to the
> proper safeguarding of Restricted Data and other classified
> information. These performance failures may be indicators of future,
> more severe performance failures and/or conditions, and if identified
> and corrected early would prevent serious incidents. The following are
> examples of performance failures or performance failures of similar
> import that will be considered third degree:
>
> \(i\) Non-compliance with applicable laws, regulations, and DOE
> directives actually resulting in, or creating risk of, loss,
> compromise, or unauthorized disclosure of Restricted Data or other
> information classified as Confidential.
>
> \(ii\) Failure to promptly report alleged or suspected violations of
> laws, regulations, or directives pertaining to the safeguarding of
> Restricted Data or other classified information.
>
> \(iii\) Failure to identify or timely execute corrective actions to
> mitigate or eliminate identified vulnerabilities and reduce residual
> risk relating to the protection of Restricted Data or other classified
> information in accordance with the contractor's Safeguards and
> Security Plan or other security plan, as applicable.
>
> \(iv\) Contractor actions that result in performance failures which
> unto themselves pose minor risk, but when viewed in the aggregate
> indicate degradation in the integrity of the contractor's safeguards
> and security management system relating to the protection of
> Restricted Data and other classified information.

# DEAR 970.5226-1 DIVERSITY PLAN (DEC 2000)

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

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

\(a\) Definitions.

> \(1\) Computer data bases, as used in this clause, means a collection
> of data in a form capable of, and for the purpose of, being stored in,
> processed, and operated on by a computer. The term does not include
> computer software.
>
> \(2\) Computer software, as used in this clause, means
>
> \(i\) computer programs which are data comprising a series of
> instructions, rules, routines, or statements, regardless of the media
> in which recorded, that allow or cause a computer to perform a
> specific operation or series of operations and
>
> \(ii\) data comprising source code listings, design details,
> algorithms, processes, flow charts, formulae, and related material
> that would enable the computer program to be produced, created, or
> compiled. The term does not include computer data bases.
>
> \(3\) Data, as used in this clause, means recorded information,
> regardless of form or the media on which it may be recorded. The term
> includes technical data and computer software. The term \"data\" does
> not include data incidental to the administration of this contract,
> such as financial, administrative, cost and pricing, or management
> information.
>
> \(4\) Limited rights data, as used in this clause, means data, other
> than computer software, developed at private expense that embody trade
> secrets or are commercial or financial and confidential or privileged.
> The Government\'s rights to use, duplicate, or disclose limited rights
> data are as set forth in the Limited Rights Notice of paragraph (g) of
> this clause.
>
> \(5\) Restricted computer software, as used in this clause, means
> computer software developed at private expense and that is a trade
> secret; is commercial or financial and is confidential or privileged;
> or is published copyrighted computer software, including minor
> modifications of any such computer software. The Government\'s rights
> to use, duplicate, or disclose restricted computer software are as set
> forth in the Restricted Rights Notice of subparagraph (h) of this
> clause.
>
> \(6\) Technical data, as used in this clause, means recorded data,
> regardless of form or characteristic, that are of a scientific or
> technical nature. Technical data does not include computer software,
> but does include manuals and instructional materials and technical
> data formatted as a computer data base.
>
> \(7\) Unlimited rights, as used in this clause, means the rights of
> the Government to use, disclose, reproduce, prepare derivative works,
> distribute copies to the public, including by electronic means, and
> perform publicly and display publicly, in any manner, including by
> electronic means, and for any purpose whatsoever, and to have or
> permit others to do so.

\(b\) Allocation of Rights.

> \(1\) The Government shall have:
>
> \(i\) Ownership of all technical data and computer software first
> produced in the performance of this Contract;
>
> \(ii\) Unlimited rights in technical data and computer software
> specifically used in the performance of this Contract, except as
> provided herein regarding copyright, limited rights data, or
> restricted computer software, and except for data subject to the
> withholding provisions for protected Cooperative Research and
> Development Agreement (CRADA) information in accordance with
> Technology Transfer actions under this Contract, or other data
> specifically protected by statute for a period of time or, where,
> approved by DOE, appropriate instances of the DOE Work for Others
> Program;
>
> \(iii\) The right to inspect technical data and computer software
> first produced or specifically used in the performance of this
> Contract at all reasonable times. The Contractor shall make available
> all necessary facilities to allow DOE personnel to perform such
> inspection;
>
> \(iv\) The right to have all technical data and computer software
> first produced or specifically used in the performance of this
> Contract delivered to the Government or otherwise disposed of by the
> Contractor, either as the contracting officer may from time to time
> direct during the progress of the work or in any event as the
> contracting officer shall direct upon completion or termination of
> this Contract. The Contractor agrees to leave a copy of such data at
> the facility or plant to which such data relate, and to make available
> for access or to deliver to the Government such data upon request by
> the contracting officer. If such data are limited rights data or
> restricted computer software, the rights of the Government in such
> data shall be governed solely by the provisions of paragraph (g) of
> this clause ("Rights in Limited Rights Data") or paragraph (h) of this
> clause ("Rights in Restricted Computer Software"); and
>
> \(v\) The right to remove, cancel, correct, or ignore any markings not
> authorized by the terms of this Contract on any data furnished
> hereunder if, in response to a written inquiry by DOE concerning the
> propriety of the markings, the Contractor fails to respond thereto
> within 60 days or fails to substantiate the propriety of the markings.
> In either case DOE will notify the Contractor of the action taken.
>
> \(2\) The Contractor shall have:
>
> \(i\) The right to withhold limited rights data and restricted
> computer software unless otherwise provided in provisions of this
> clause;
>
> \(ii\) The right to use for its private purposes, subject to patent,
> security or other provisions of this Contract, data it first produces
> in the performance of this Contract, except for data in DOE's Uranium
> Enrichment Technology, including diffusion, centrifuge, and atomic
> vapor laser isotope separation and except Restricted Data in category
> C-24, 10 CFR part 725, in which DOE has reserved the right to receive
> reasonable compensation for the use of its inventions and discoveries,
> including related data and technology, provided the data requirements
> of this Contract have been met as of the date of the private use of
> such data; and
>
> \(iii\) The right to assert copyright subsisting in scientific and
> technical articles as provided in paragraph (d) of this clause and the
> right to request permission to assert copyright subsisting in works
> other than scientific and technical articles as provided in paragraph
> (e) of this clause.
>
> \(3\) The Contractor agrees that for limited rights data or restricted
> computer software or other technical business or financial data in the
> form of recorded information which it receives from, or is given
> access to by DOE or a third party, including a DOE contractor or
> subcontractor, and for technical data or computer software it first
> produces under this Contract which is authorized to be marked by DOE,
> the Contractor shall treat such data in accordance with any
> restrictive legend contained thereon.

\(c\) Copyright (General).

> \(1\) The Contractor agrees not to mark, register, or otherwise assert
> copyright in any data in a published or unpublished work, other than
> as set forth in paragraphs (d) and (e) of this clause.
>
> \(2\) Except for material to which the Contractor has obtained the
> right to assert copyright in accordance with either paragraph (d) or
> (e) of this clause, the Contractor agrees not to include in the data
> delivered under this Contract any material copyrighted by the
> Contractor and not to knowingly include any material copyrighted by
> others without first granting or obtaining at no cost a license
> therein for the benefit of the Government of the same scope as set
> forth in paragraph (d) of this clause. If the Contractor believes that
> such copyrighted material for which the license cannot be obtained
> must be included in the data to be delivered, rather than merely
> incorporated therein by reference, the Contractor shall obtain the
> written authorization of the contracting officer to include such
> material in the data prior to its delivery.

\(d\) Copyrighted works (scientific and technical articles).

> \(1\) The Contractor shall have the right to assert, without prior
> approval of the contracting officer, copyright subsisting in
> scientific and technical articles composed under this contract or
> based on or containing data first produced in the performance of this
> Contract, and published in academic, technical or professional
> journals, symposia, proceedings, or similar works. When assertion of
> copyright is made, the Contractor shall affix the applicable copyright
> notice of 17 U.S.C. 401 or 402 and acknowledgment of Government
> sponsorship (including contract number) on the data when such data are
> delivered to the Government as well as when the data are published or
> deposited for registration as a published work in the U.S. Copyright
> Office. The Contractor grants to the Government, and others acting on
> its behalf, a nonexclusive, paid-up, irrevocable, world-wide license
> in such copyrighted data to reproduce, prepare derivative works,
> distribute copies to the public, and perform publicly and display
> publicly, by or on behalf of the Government.
>
> \(2\) The contractor shall mark each scientific or technical article
> first produced or composed under this Contract and submitted for
> journal publication or similar means of dissemination with a notice,
> similar in all material respects to the following, on the front
> reflecting the Government's non-exclusive, paid-up, irrevocable,
> world-wide license in the copyright.
>
> Notice: This manuscript has been authored by \[insert the name of the
> Contractor\] under Contract No. **[DE-AC52-07NA27344]{.underline}**
> 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. **[DE-AC52-07NA27344]{.underline}** with the Department
> of Energy. For (period approved by Patent Counsel) from (date
> permission to assert copyright was obtained), the Government is
> granted for itself and others acting on its behalf a nonexclusive,
> paid-up, irrevocable worldwide license in this data to reproduce,
> prepare derivative works, and perform publicly and display publicly,
> by or on behalf of the Government. There is provision for the possible
> extension of the term of this license. Subsequent to that period or
> any extension granted, the Government is granted for itself and others
> acting on its behalf a nonexclusive, paid-up, irrevocable worldwide
> license in this data to reproduce, prepare derivative works,
> distribute copies to the public, perform publicly and display
> publicly, and to permit others to do so. The specific term of the
> license can be identified by inquiry made to Contractor or DOE.
> Neither the United States nor the United States Department of Energy,
> nor any of their employees, makes any warranty, express or implied, or
> assumes any legal liability or responsibility for the accuracy,
> completeness, or usefulness of any data, apparatus, product, or
> process disclosed, or represents that its use would not infringe
> privately owned rights.
>
> (End of Notice)
>
> \(vi\) With respect to any data to which the Contractor has received
> permission to assert copyright, the DOE has the right, during the five
> (5) year or specified longer period approved by Patent Counsel as
> provided for in paragraph (e) of this clause, to request the
> Contractor to grant a nonexclusive, partially exclusive or exclusive
> license in any field of use to a responsible applicant(s) upon terms
> that are reasonable under the circumstances, and if the Contractor
> refuses such request, to grant such license itself, if the DOE
> determines that the Contractor has not made a satisfactory
> demonstration that either it or its licensee(s) is actively pursuing
> commercialization of the data as set forth in subparagraph (e)(1)(A)
> of this clause. Before licensing under this subparagraph (vi), DOE
> shall furnish the Contractor a written request for the Contractor to
> grant the stated license, and the Contractor shall be allowed thirty
> (30) days (or such longer period as may be authorized by the
> contracting officer for good cause shown in writing by the Contractor)
> after such notice to show cause why the license should not be granted.
> The Contractor shall have the right to appeal the decision of the DOE
> to grant the stated license to the Invention Licensing Appeal Board as
> set forth in 10 CFR 781.65-\"Appeals.\"
>
> \(vii\) No costs shall be allowable for maintenance of copyrighted
> data, primarily for the benefit of the Contractor and/or a licensee
> which exceeds DOE Program needs, except as expressly provided in
> writing by the contracting officer. The Contractor may use its net
> royalty income to effect such maintenance costs.
>
> \(viii\) At any time the Contractor abandons commercialization
> activities for data for which the Contractor has received permission
> to assert copyright in accordance with this clause, it shall advise
> OSTI and Patent Counsel and upon request assign the copyright to the
> Government so that the Government can distribute the data to the
> public.
>
> \(4\) The following notice may be placed on computer software prior to
> any publication and prior to the Contractor\'s obtaining permission
> from the Department of Energy to assert copyright in the computer
> software pursuant to paragraph (c)(3) of this section.
>
> Notice: This computer software was prepared by \[insert the
> Contractor\'s name and the individual author\], hereinafter the
> Contractor, under Contract **[DE-AC52-07NA27344]{.underline}** with
> the Department of Energy (DOE). All rights in the computer software
> are reserved by DOE on behalf of the United States Government and the
> Contractor as provided in the Contract. You are authorized to use this
> computer software for Governmental purposes but it is not to be
> released or distributed to the public. NEITHER THE GOVERNMENT NOR THE
> CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY
> LIABILITY FOR THE USE OF THIS SOFTWARE. This notice including this
> sentence must appear on any copies of this computer software.
>
> (End of Notice)
>
> \(5\) a similar notice can be used for data, other than computer
> software, upon approval of Patent Counsel.

\(f\) Subcontracting.

> \(1\) Unless otherwise directed by the contracting officer, the
> Contractor agrees to use in subcontracts in which technical data or
> computer software is expected to be produced or in subcontracts for
> supplies that contain a requirement for production or delivery of data
> in accordance with the policy and procedures of 48 CFR Subpart 27.4 as
> supplemented by 48 CFR 927.401 through 927.409, the clause entitled,
> \"Rights in Data-General\" at 48 CFR 52.227-14 modified in accordance
> with 927.409(a) and including Alternate V. Alternates II through IV of
> that clause may be included as appropriate with the prior approval of
> 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. **[DE-AC52-07NA27344]{.underline}** with the United States
> Department of Energy which may be duplicated and used by the
> Government with the express limitations that the \"limited rights
> data\" may not be disclosed outside the Government or be used for
> purposes of manufacture without prior permission of the Contractor,
> except that further disclosure or use may be made solely for the
> following purposes:
>
> \(a\) Use (except for manufacture) by support services contractors
> within the scope of their contracts;
>
> \(b\) This \"limited rights data\" may be disclosed for evaluation
> purposes under the restriction that the \"limited rights data\" be
> retained in confidence and not be further disclosed;
>
> \(c\) This \"limited rights data\" may be disclosed to other
> contractors participating in the Government\'s program of which this
> Contract is a part for information or use (except for manufacture) in
> connection with the work performed under their contracts and under the
> restriction that the \"limited rights data\" be retained in confidence
> and not be further disclosed;
>
> \(d\) This \"limited rights data\" may be used by the Government or
> others on its behalf for emergency repair or overhaul work under the
> restriction that the \"limited rights data\" be retained in confidence
> and not be further disclosed; and
>
> \(e\) Release to a foreign government, or instrumentality thereof, as
> the interests of the United States Government may require, for
> information or evaluation, or for emergency repair or overhaul work by
> such government.
>
> This Notice shall be marked on any reproduction of this data in whole
> or in part.
>
> (End of Notice)

\(h\) Rights in Restricted Computer Software.

> \(1\) Except as may be otherwise specified in this Contract as data
> which are not subject to this paragraph, the Contractor agrees to and
> does hereby grant to the Government an irrevocable, nonexclusive,
> paid-up, license by or for the Government, in any restricted computer
> software of the Contractor specifically used in the performance of
> this Contract; provided, however, that to the extent that any
> restricted computer software when furnished or delivered is
> specifically identified by the Contractor at the time of initial
> delivery to the Government or a representative of the Government, such
> data shall not be used within or outside the Government except as
> provided in the \"Restricted Rights Notice\" set forth below. All such
> restricted computer software shall be marked with the following
> \"Restricted Rights Notice:\"
>
> Restricted Rights Notice-Long Form
>
> \(a\) This computer software is submitted with restricted rights under
> Department of Energy Contract No. **[DE-AC52-07NA27344]{.underline}**.
> 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*.*
> **[DE-AC52-07NA27344]{.underline}** with *(New Contractor Name to be
> Inserted Here).*
>
> (End of Notice)
>
> \(3\) If the software is embedded, or if it is commercially
> impractical to mark it with human readable text, then the symbol R and
> the clause date (mo/yr) in brackets or a box, a \[R-mo/yr\], may be
> used. This will be read to mean restricted computer software, subject
> to the rights of the Government as described in the Long Form Notice,
> in effect as of the date indicated next to the symbol. The symbol
> shall not be used to mark human readable material. In the event this
> Contract contains any variation to the rights in the Long Form Notice,
> then the contract number must also be cited.
>
> \(4\) If restricted computer software is delivered with the copyright
> notice of 17 U.S.C. 401, the software will be presumed to be published
> copyrighted computer software licensed to the Government without
> disclosure prohibitions and with unlimited rights, unless the
> Contractor includes the following statement with such copyright notice
> \"Unpublished-rights reserved under the Copyright Laws of the United
> States.\"

\(i\) Relationship to patents. Nothing contained in this clause creates
or is intended to imply a license to the Government in any patent or is
intended to be construed as affecting the scope of any licenses or other
rights otherwise granted to the Government under any patent.

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

# 

This clause has as its purpose implementation of the National
Competitiveness Technology Transfer Act of 1989 (Sections 3131, 3132,
3133, and 3157 of Pub. L. 101-189 and as amended by Pub. L. 103-160,
Sections 3134 and 3160). The Contractor shall conduct technology
transfer activities with a purpose of providing benefit from Federal
research to U.S. industrial competitiveness.

\(a\) Authority.

> \(1\) In order to ensure the full use of the results of research and
> development efforts of, and the capabilities of, the Laboratory,
> technology transfer, including Cooperative Research and Development
> Agreements (CRADAs), is established as a mission of the Laboratory
> consistent with the policy, principles and purposes of Sections
> 11(a)(1) and 12(g) of the Stevenson-Wydler Technology Innovation Act
> of 1980, as amended (15 U.S.C. 3710a); Section 3132(b) of Pub. L.
> 101-189, Sections 3134 and 3160 of Pub. L. 103-160, and of Chapter 38
> of the Patent Laws (35 U.S.C. 200 et seq.); Section 152 of the Atomic
> Energy Act of 1954, as amended (42 U.S.C. 2182); Section 9 of the
> Federal Nonnuclear Energy Research and Development Act of 1974 (42
> U.S.C. 5908); and Executive Order 12591 of April 10, 1987.
>
> \(2\) In pursuing the technology transfer mission, the Contractor is
> authorized to conduct activities including but not limited to:
> identifying and protecting Intellectual Property made, created or
> acquired at or by the Laboratory; negotiating licensing agreements and
> assignments for Intellectual Property made, created or acquired at or
> by the Laboratory that the Contractor controls or owns; bailments;
> negotiating all aspects of and entering into CRADAs; providing
> technical consulting and personnel exchanges; conducting science
> education activities and reimbursable Work for Others (WFO); providing
> information exchanges; and making available laboratory or weapon
> production user facilities. It is fully expected that the Contractor
> shall use all of the mechanisms available to it to accomplish this
> technology transfer mission, including, but not limited to, CRADAs,
> user facilities, WFO, science education activities, consulting,
> personnel, assignments, and licensing in accordance with this clause.

\(b\) Definitions.

> \(1\) Contractor\'s Laboratory Director means the individual who has
> supervision over all or substantially all of the Contractor\'s
> operations at the Laboratory.
>
> \(2\) Intellectual Property means patents, trademarks, copyrights,
> mask works, protected CRADA information, and other forms of comparable
> property rights protected by Federal Law and other foreign
> counterparts.
>
> \(3\) Cooperative Research and Development Agreement (CRADA) means any
> agreement entered into between the Contractor as operator of the
> Laboratory, and one or more parties including at least one non-Federal
> party under which the Government, through its laboratory, provides
> personnel, services, facilities, equipment, intellectual property, or
> other resources with or without reimbursement (but not funds to
> non-Federal parties) and the non-Federal parties provide funds,
> personnel, services, facilities, equipment, intellectual property, or
> other resources toward the conduct of specified research or
> development efforts which are consistent with the missions of the
> Laboratory; except that such term does not include a procurement
> contract, grant, or cooperative agreement as those terms are used in
> sections 6303, 6304, and 6305 of Title 31 of the United States Code.
>
> \(4\) Joint Work Statement (JWS) means a proposal for a CRADA prepared
> by the Contractor, signed by the Contractor\'s Laboratory Director or
> designee which describes the following:
>
> \(i\) Purpose;
>
> \(ii\) Scope of Work which delineates the rights and responsibilities
> of the Government, the Contractor and Third Parties, one of which must
> be a non-Federal party;
>
> \(iii\) Schedule for the work; and
>
> \(iv\) Cost and resource contributions of the parties associated with
> the work and the schedule.
>
> \(5\) Assignment means any agreement by which the Contractor transfers
> ownership of Laboratory Intellectual Property, subject to the
> Government\'s retained rights.
>
> \(6\) Laboratory Biological Materials means biological materials
> capable of replication or reproduction, such as plasmids,
> deoxyribonucleic acid molecules, ribonucleic acid molecules, living
> organisms of any sort and their progeny, including viruses, prokaryote
> and eukaryote cell lines, transgenic plants and animals, and any
> derivatives or modifications thereof or products produced through
> their use or associated biological products, made under this contract
> by Laboratory employees or through the use of Laboratory research
> facilities.
>
> \(7\) Laboratory Tangible Research Product means tangible material
> results of research which
>
> \(i\) are provided to permit replication, reproduction, evaluation or
> confirmation of the research effort, or to evaluate its potential
> commercial utility;
>
> \(ii\) are not materials generally commercially available; and
>
> \(iii\) were made under this contract by Laboratory employees or
> through the use of Laboratory research facilities.
>
> \(8\) Bailment means any agreement in which the Contractor permits the
> commercial or non-commercial transfer of custody, access or use of
> Laboratory Biological Materials or Laboratory Tangible Research
> Product for a specified purpose of technology transfer or research and
> development, including without limitation evaluation, and without
> transferring ownership to the bailee.

\(c\) Allowable Costs.

> \(1\) The Contractor shall establish and carry out its technology
> transfer efforts through appropriate organizational elements
> consistent with the requirements for an Office of Research and
> Technology Applications (ORTA) pursuant to paragraphs (b) and (c) of
> Section 11 of the Stevenson-Wydler Technology Innovation Act of 1980,
> as amended (15 U.S.C. 3710). The costs associated with the conduct of
> technology transfer through the ORTA including activities associated
> with obtaining, maintaining, licensing, and assigning Intellectual
> Property rights, increasing the potential for the transfer of
> technology, and the widespread notice of technology transfer
> opportunities, shall be deemed allowable provided that such costs meet
> the other requirements of the allowable costs provisions of this
> Contract. In addition to any separately designated funds, these costs
> in any fiscal year shall not exceed an amount equal to 0.5 percent of
> the operating funds included in the Federal research and development
> budget (including Work For Others) of the Laboratory for that fiscal
> year without written approval of the contracting officer.
>
> \(2\) The Contractor\'s participation in litigation to enforce or
> defend Intellectual Property claims incurred in its technology
> transfer efforts shall be as provided in the clause entitled
> \"Insurance-Litigation and Claims\" of this contract.

\(d\) Conflicts of Interest-Technology Transfer. The Contractor shall
have implementing procedures that seek to avoid employee and
organizational conflicts of interest, or the appearance of conflicts of
interest, in the conduct of its technology transfer activities. These
procedures shall apply to other persons participating in Laboratory
research or related technology transfer activities. Such implementing
procedures shall be provided to the contracting officer for review and
approval within sixty (60) days after execution of this contract. The
contracting officer shall have thirty (30) days thereafter to approve or
require specific changes to such procedures. Such implementing
procedures shall include procedures to:

> \(1\) Inform employees of and require conformance with standards of
> conduct and integrity in connection with the CRADA activity in
> accordance with the provisions of paragraph (n)(5) of this clause;
>
> \(2\) Review and approve employee activities so as to avoid conflicts
> of interest arising from commercial utilization activities relating to
> Contractor-developed Intellectual Property;
>
> \(3\) Conduct work performed using royalties so as to avoid
> interference with or adverse effects on ongoing DOE projects and
> programs;
>
> \(4\) Conduct activities relating to commercial utilization of
> Contractor-developed Intellectual Property so as to avoid interference
> with or adverse effects on user facility or WFO activities of the
> Contractor;
>
> \(5\) Conduct DOE-funded projects and programs so as to avoid the
> appearance of conflicts of interest or actual conflicts of interest
> with non-Government funded work;
>
> \(6\) Notify the contracting officer with respect to any new work to
> be performed or proposed to be performed under the Contract for DOE or
> other Federal agencies where the new work or proposal involves
> Intellectual Property in which the Contractor has obtained or intends
> to request or elect title;
>
> \(7\) Except as provided elsewhere in this Contract, obtain the
> approval of the contracting officer for any licensing of or assignment
> of title to Intellectual Property rights by the Contractor to any
> business or corporate affiliate of the Contractor;
>
> \(8\) Obtain the approval of the contracting officer, prior to any
> assignment, exclusive licensing, or option for exclusive licensing, of
> Intellectual Property to any individual who has been a Laboratory
> employee within the previous two years or to the company in which the
> individual is a principal;
>
> \(9\) Notify non-Federal sponsors of WFO activities, or non-Federal
> users of user facilities, of any relevant Intellectual Property
> interest of the Contractor prior to execution of WFOs or user
> agreements; *[and]{.underline}*
>
> \(10\) Notify DOE prior to evaluating a proposal by a third party or
> DOE, when the subject matter of the proposal involves an elected or
> waived subject invention under this contract or one in which the
> Contractor intends to elect to retain title under this contract.

\(e\) Fairness of Opportunity. In conducting its technology transfer
activities, the Contractor shall prepare procedures and take all
reasonable measures to ensure widespread notice of availability of
technologies suited for transfer and opportunities for exclusive
licensing and joint research arrangements. The requirement to widely
disseminate the availability of technology transfer opportunities does
not apply to a specific application originated outside of the Laboratory
and by entities other than the Contractor.

\(f\) U.S. Industrial Competitiveness.

> \(1\) In the interest of enhancing U.S. Industrial Competitiveness,
> the Contractor shall*,* in its licensing and assignments of
> Intellectual Property*,* give preference in such a manner as to
> enhance the accrual of economic and technological benefits to the U.S.
> domestic economy. The Contractor shall consider the following factors
> in all of its licensing and assignment decisions involving Laboratory
> intellectual property where the Laboratory obtains rights during the
> course of the Contractor\'s operation of the Laboratory under this
> contract:
>
> \(i\) whether any resulting design and development will be performed
> in the United States and whether resulting products, embodying parts,
> including components thereof, will be substantially manufactured in
> the United States; or
>
> \(ii\) (A) whether the proposed licensee or assignee has a business
> unit located in the United States and whether significant economic and
> technical benefits will flow to the United States as a result of the
> license or assignment agreement; and
>
> \(B\) in licensing any entity subject to the control of a foreign
> company or government, whether such foreign government permits United
> States agencies, organizations or other persons to enter into
> cooperative research and development agreements and licensing
> agreements, and has policies to protect United States Intellectual
> Property rights.
>
> \(2\) If the Contractor determines that neither of the conditions in
> paragraphs (f)(1)(i) or (ii) of this clause are likely to be
> fulfilled, the Contractor, prior to entering into such an agreement,
> must obtain the approval of the contracting officer. The contracting
> officer shall act on any such requests for approval within thirty (30)
> days.
>
> \(3\) The Contractor agrees to be bound by the provisions of 35 U.S.C.
> 204 (Preference for United States industry).

\(g\) Indemnity-Product Liability. In entering into written technology
transfer agreements, including but not limited to, research and
development agreements, licenses, assignments and CRADAs, the Contractor
agrees to include in such agreements a requirement that the U.S.
Government and the Contractor, except for any negligent acts or
omissions of the Contractor, be indemnified for all damages, costs, and
expenses, including attorneys\' fees, arising from personal injury or
property damage occurring as a result of the making, using or selling of
a product, process or service by or on behalf of the Participant, its
assignees or licensees which was derived from the work performed under
the agreement. The Contractor shall identify and obtain the approval of
the contracting officer for any proposed exceptions to this requirement
such as where State or local law expressly prohibit the Participant from
providing indemnification or where the research results will be placed
in the public domain.

\(h\) Disposition of Income.

> \(1\) Royalties or other income earned or retained by the Contractor
> as a result of performance of authorized technology transfer
> activities herein shall be used by the Contractor for scientific
> research, development, technology transfer, and education at the
> Laboratory, consistent with the research and development mission and
> objectives of the Laboratory and subject to Section 12(b)(5) of the
> Stevenson-Wydler Technology Innovation Act of 1980, as amended (15
> U.S.C. 3710a(b)(5)) and Chapter 38 of the Patent Laws (35 U.S.C. 200
> et seq.) as amended through the effective date of this contract award
> or modification. If the net amounts of such royalties and income
> received from patent licensing after payment of patenting costs,
> licensing costs, payments to inventors and other expenses incidental
> to the administration of Subject Inventions during any fiscal year
> exceed 5 percent of the Laboratory\'s budget for that fiscal year, 75
> percent of such excess amounts shall be paid to the Treasury of the
> United States, and the remaining amount of such excess shall be used
> by the Contractor for the purposes as described above in this
> paragraph. Any inventions arising out of such scientific research and
> development activities shall be deemed to be Subject Inventions under
> the Contract.
>
> \(2\) The Contractor shall include as a part of its annual Laboratory
> Institutional Plan or other such annual document a plan setting out
> those uses to which royalties and other income received as a result of
> performance of authorized technology transfer activities herein will
> be applied at the Laboratory, and at the end of the year, provide a
> separate accounting for how the funds were actually used. Under no
> circumstances shall these royalties and income be used for an illegal
> augmentation of funds furnished by the U.S. Government.
>
> \(3\) The Contractor shall establish subject to the approval of the
> contracting officer a policy for making awards or sharing of royalties
> with Contractor employees, other coinventors and coauthors, including
> Federal employee coinventors when deemed appropriate by the
> contracting officer*.*

\(i\) Transfer to Successor Contractor. In the event of termination or
upon the expiration of this Contract, any unexpended balance of income
received for use at the Laboratory shall be transferred, at the
contracting officer\'s request, to a successor contractor, or in the
absence of a successor contractor, to such other entity as designated by
the contracting officer. The Contractor shall transfer title, as one
package, to the extent the Contractor retains title, in all patents and
patent applications, licenses, accounts containing royalty revenues from
such license agreements, including equity positions in third party
entities, and other Intellectual Property rights which arose at the
Laboratory, to the successor contractor or to the Government as directed
by the contracting officer.

\(j\) Technology Transfer Affecting the National Security.

> \(1\) The Contractor shall notify and obtain the approval of the
> contracting officer, prior to entering into any technology transfer
> arrangement, when such technology or any part of such technology is
> classified or sensitive under Section 148 of the Atomic Energy Act (42
> U.S.C. 2168). Such notification shall include sufficient information
> to enable DOE to determine the extent that commercialization of such
> technology would enhance or diminish security interests of the United
> States, or diminish communications within DOE nuclear weapon
> production complex. DOE shall use its best efforts to complete its
> determination within sixty (60) days of the Contractor\'s
> notification, and provision of any supporting information, and DOE
> shall promptly notify the Contractor as to whether the technology is
> transferable.
>
> \(2\) The Contractor shall include in all of its technology transfer
> agreements with third parties, including, but not limited to, CRADAs,
> licensing agreements and assignments, notice to such third parties
> that the export of goods and/or Technical Data from the United States
> may require some form of export control license or other authority
> from the U.S. Government and that failure to obtain such export
> control license may result in criminal liability under U.S. laws.
>
> \(3\) For other than fundamental research as defined in National
> Security Decision Directive 189, the Contractor is responsible to
> conduct internal export control reviews and assure that technology is
> transferred in accordance with applicable law.

\(k\) Records. The Contractor shall maintain records of its technology
transfer activities in a manner and to the extent satisfactory to the
DOE and specifically including, but not limited to, the licensing
agreements, assignments and the records required to implement the
requirements of paragraphs (e), (f), and (h) of this clause and shall
provide reports to the contracting officer, to enable DOE to maintain
the reporting requirements of Section 12(c)(6) of the Stevenson-Wydler
Technology Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(6)).
Such reports shall be made annually in a format to be agreed upon
between the Contractor and DOE and in such a format which will serve to
adequately inform DOE of the Contractor\'s technology transfer
activities while protecting any data not subject to disclosure under the
Rights in Technical Data clause and paragraph (n) of this clause. Such
records shall be made available in accordance with the clauses of this
Contract pertaining to inspection, audit and examination of records.

\(l\) Reports to Congress. To facilitate DOE reporting to Congress, the
Contractor is required to submit annually to DOE a technology transfer
plan for conducting its technology transfer function for the upcoming
year, including plans for securing Intellectual Property rights in
Laboratory innovations with commercial promise and plans for managing
such innovations so as to benefit the competitiveness of United States
industry. This plan shall be provided to the contracting officer on or
before October 1st of each year.

\(m\) Oversight and Appraisal. The Contractor is responsible for
developing and implementing effective internal controls for all
technology transfer activities consistent with the audit and record
requirements of this Contract. Laboratory Contractor performance in
implementing the technology transfer mission and the effectiveness of
the Contractor\'s procedures will be evaluated by the contracting
officer as part of the annual appraisal process, with input from the
cognizant Secretarial Officer or program office.

\(n\) Technology Transfer Through Cooperative Research and Development
Agreements. Upon approval of the contracting officer, and as provided in
a DOE approved Joint Work Statement (JWS), the Laboratory Director, or
designee, may enter into CRADAs on behalf of the DOE subject to the
requirements set forth in this paragraph*.*

> \(1\) Review and Approval of CRADAs.
>
> \(i\) Except as otherwise directed in writing by the contracting
> officer, each JWS shall be submitted to the contracting officer for
> approval. The Contractor\'s Laboratory Director or designee shall
> provide a program mission impact statement and shall include an impact
> statement regarding related Intellectual Property rights known by the
> Contractor to be owned by the Government to assist the contracting
> officer, in the approval determination.
>
> \(ii\) The Contractor shall also include (specific to the proposed
> CRADA), a statement of compliance with the Fairness of Opportunity
> requirements of paragraph (e) of this clause.
>
> \(iii\) Within thirty (30) days after submission of a JWS or proposed
> CRADA, the contracting officer shall approve, disapprove or request
> modification to the JWS or CRADA. The contracting officer shall
> provide a written explanation to the Contractor\'s Laboratory Director
> or designee of any disapproval or requirement for modification of a
> JWS or proposed CRADA.
>
> \(iv\) Except as otherwise directed in writing by the contracting
> officer, the Contractor shall not enter into, or begin work under, a
> CRADA until approval of the CRADA has been granted by the contracting
> officer. The Contractor may submit its proposed CRADA to the
> contracting officer at the time of submitting its proposed JWS or any
> time thereafter.
>
> \(2\) Selection of Participants. The Contractor\'s Laboratory Director
> or designee in deciding what CRADA to enter into shall:
>
> \(i\) Give special consideration to small business firms, and
> consortia involving small business firms;
>
> \(ii\) Give preference to business units located in the United States
> which agree that products or processes embodying Intellectual Property
> will be substantially manufactured or practiced in the United States
> and, in the case of any industrial organization or other person
> subject to the control of a foreign company or government, take into
> consideration whether or not such foreign government permits United
> States agencies, organizations, or other persons to enter into
> cooperative research and development agreements and licensing
> agreements;
>
> \(iii\) Provide Fairness of Opportunity in accordance with the
> requirements of paragraph (e) of this clause; and
>
> \(iv\) Give consideration to the Conflicts of Interest requirements of
> paragraph (d) of this clause.
>
> \(3\) Withholding of Data.
>
> \(i\) Data that is first produced as a result of research and
> development activities conducted under a CRADA and that would be a
> trade secret or commercial or financial data that would be privileged
> or confidential, if such data had been obtained from a non-Federal
> third party, may be protected from disclosure under the Freedom of
> Information Act as provided in the Stevenson-Wydler Technology
> Innovation Act of 1980, as amended (15 U.S.C. 3710a(c)(7)) for a
> period as agreed in the CRADA of up to five (5)years from the time the
> data is first produced. The DOE shall cooperate with the Contractor in
> protecting such data.
>
> \(ii\) Unless otherwise expressly approved by the contracting officer
> in advance for a specific CRADA, the Contractor agrees, at the request
> of the contracting officer, to transmit such data to other DOE
> facilities for use by DOE or its Contractors by or on behalf of the
> Government. When data protected pursuant to paragraph (n)(3)(i) of
> this clause is so transferred, the Contractor shall clearly mark the
> data with a legend setting out the restrictions against private use
> and further dissemination, along with the expiration date of such
> restrictions.
>
> \(iii\) In addition to its authority to license Intellectual Property,
> the Contractor may enter into licensing agreements with third parties
> for data developed by the Contractor under a CRADA subject to other
> provisions of this Contract. However, the Contractor shall neither use
> the protection against dissemination nor the licensing of data as an
> alternative to the submittal of invention disclosures which include
> data protected pursuant to paragraph (n)(3)(i) of this clause.
>
> \(4\) Work For Others and User Facility Programs.
>
> \(i\) WFO and User Facility Agreements (UFAs) are not CRADAs and will
> be available for use by the Contractor in addition to CRADAs for
> achieving utilization of employee expertise and unique facilities for
> maximizing technology transfer. The Contractor agrees form prospective
> CRADA participants, which are intending to substantially pay full cost
> recovery for the effort under a proposed CRADA, of the availability of
> alternative forms of agreements, i.e., WFO and UFA, and of the Class
> Patent Waiver provisions associated therewith.
>
> \(ii\) Where the Contractor believes that the transfer of technology
> to the U.S. domestic economy will benefit from, or other equity
> considerations dictate, an arrangement other than the Class Waiver of
> patent rights to the sponsor in WFO and UFAs, a request may be made to
> the contracting officer for an exception to the Class Waivers.
>
> \(iii\) Rights to inventions made under agreements other than funding
> agreements with third parties shall be governed by the appropriate
> provisions incorporated, with DOE approval, in such agreements, and
> the provisions in such agreements take precedence over any disposition
> of rights contained in this Contract. Disposition of rights under any
> such agreement shall be in accordance with any DOE class waiver
> (including Work for Others and User Class Waivers) or individually
> negotiated waiver which applies to the agreement.
>
> \(5\) Conflicts of Interest.
>
> \(i\) Except as provided in paragraph (n)(5)(iii) of this clause, the
> Contractor shall assure that no employee of the Contractor shall have
> a substantial role (including an advisory role) in the preparation,
> negotiation, or approval of a CRADA, if, to such employee\'s
> knowledge:
>
> \(A\) Such employee, or the spouse, child, parent, sibling, or partner
> of such employee, or an organization (other than the Contractor) in
> which such employee serves as an officer, director, trustee, partner,
> or employee-
>
> \(1\) holds financial interest in any entity, other than the
> Contractor, that has a substantial interest in the preparation,
> negotiation, or approval of the CRADA;
>
> \(2\) receives a gift or gratuity from any entity, other than the
> Contractor, that has a substantial interest in the preparation,
> negotiation, or approval of the CRADA; or
>
> \(B\) A financial interest in any entity, other than the Contractor,
> that has a substantial interest in the preparation, negotiation, or
> approval of the CRADA, is held by any person or organization with whom
> such employee is negotiating or has any arrangement concerning
> prospective employment.
>
> \(ii\) The Contractor shall require that each employee of the
> Contractor who has a substantial role (including an advisory role) in
> the preparation, negotiation, or approval of a CRADA certify through
> the Contractor to the contracting officer that the circumstances
> described in paragraph (n)(5)(i) of this clause do not apply to that
> employee.
>
> \(iii\) The requirements of paragraphs (n)(5)(i) and (n)(5)(ii) of
> this clause shall not apply in a case where the contracting officer is
> advised by the Contractor in advance of the participation of an
> employee described in those paragraphs in the preparation, negotiation
> or approval of a CRADA of the nature of and extent of any financial
> interest described in paragraph (n)(5)(i) of this clause, and the
> contracting officer determines that such financial interest is not so
> substantial as to be considered likely to affect the integrity of the
> Contractor employee\'s participation in the process of preparing,
> negotiating, or approving the CRADA.

\(o\) Technology Transfer in Other Cost-Sharing Agreements. In
conducting research and development activities in cost-shared agreements
not covered by paragraph (n) of this clause, the Contractor, with prior
written permission of the contracting officer, may provide for the
withholding of data produced thereunder in accordance with the
applicable provisions of paragraph (n)(3) of this clause.

\(p\) Technology Partnership Ombudsman.

> \(1\) The Contractor agrees to establish a position to be known as
> \"Technology Partnership Ombudsman,\" to help resolve complaints from
> outside organizations regarding the policies and actions of the
> contractor with respect to technology partnerships (including CRADAs),
> patents owned by the contractor for inventions made at the laboratory,
> and technology licensing.
>
> \(2\) The Ombudsman shall be a senior official of the Contractor\'s
> laboratory staff, who is not involved in day-to-day technology
> partnerships, patents or technology licensing, or, if appointed from
> outside the laboratory or facility, shall function as such senior
> official.
>
> \(3\) The duties of the Technology Partnership Ombudsman shall
> include:
>
> \(i\) Serving as the focal point for assisting the public and industry
> in resolving complaints and disputes with the laboratory or facility
> regarding technology partnerships, patents, and technology licensing;
>
> \(ii\) Promoting the use of collaborative alternative dispute
> resolution techniques such as mediation to facilitate the speedy and
> low cost resolution of complaints and disputes, when appropriate; and
>
> \(iii\) Submitting a quarterly report, in a format provided by DOE, to
> the Secretary of Energy, the Administrator for Nuclear Security, the
> Director of the DOE Office of Dispute Resolution, and the Contracting
> Officer concerning the number and nature of complaints and disputes
> raised, along with the Ombudsman\'s assessment of their resolution,
> consistent with the protection of confidential and sensitive
> information.

# DEAR 970.5227-10 PATENT RIGHTS - MANAGEMENT AND OPERATING CONTRACTS, NONPROFIT ORGANIZATION OR SMALL BUSINESS FIRM CONTRACTOR (AUG 2002) ALTERNATE 1 (ALTERATION)

*[\[This clause is only applicable if the selected offeror (Contractor)
is a NonProfit Organization (See FAR Subpart 31.701) or Small Business
Firm Contractor (see FAR Subpart 19.301). If these conditions are not
met, then this clause 970.5227-10 shall not apply and marked
"Reserved".\]]{.underline}*

> \(a\) [DEFINITIONS]{.underline}.

(1) DOE licensing regulations means the Department of Energy patent
    licensing regulations at 10 CFR Part 781.

> \(2\) Exceptional circumstance subject invention means any subject
> invention in a technical field or related to a task determined by the
> Department of Energy to be subject to an exceptional circumstance
> under 35 U.S.C. 202(a)(ii) and in accordance with 37 CFR Part
> 401.3(e).
>
> \(3\) Invention means any invention or discovery which is or may be
> patentable or otherwise protectable under Title 35 of the United
> States Code, or any novel variety of plant which is or may be
> protected under the Plant Variety Protection Act (7 U.S.C. 2321 et
> seq.).
>
> \(4\) Made when used in relation to any invention means the conception
> or first actual reduction to practice of such invention.
>
> \(5\) Nonprofit organization means a university or other institution
> of higher education or an organization of the type described in
> section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.
> 501(c)) and exempt from taxation under section 501(a) of the Internal
> Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or
> educational organization qualified under a state nonprofit
> organization statute.
>
> \(6\) Patent Counsel means the Department of Energy (DOE) Patent
> Counsel assisting the DOE contracting activity.
>
> \(7\) Practical application means to manufacture, in the case of a
> composition or product; to practice, in the case of a process or
> method; or to operate, in the case of a machine or system; and, in
> each case, under such conditions as to establish that the invention is
> being utilized and that its benefits are, to the extent permitted by
> law or Government regulations, available to the public on reasonable
> terms.
>
> \(8\) Small business firm means a small business concern as defined at
> section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing
> regulations of the Administrator of the Small Business Administration.
> For the purpose of this clause, the size standards for small business
> concerns involved in Government procurement and subcontracting at 13
> CFR 121.3-8 and 13 CFR 121.3-12, respectively, are used.
>
> \(9\) Subject Invention means any invention of the contractor
> conceived or first actually reduced to practice in the performance of
> work under this contract, provided that in the case of a variety of
> plant, the date of determination (as defined in section 41(d) of the
> Plant Variety Protection Act, 7 U.S.C. 2401(d)) shall also occur
> during the period of contract performance.
>
> \(10\) Weapons Related Subject Invention means any subject invention
> conceived or first actually reduced to practice in the course of or
> under work funded by or through defense programs, including Department
> of Defense and intelligence reimbursable work, or the Naval Nuclear
> Propulsion Program of the Department of Energy or the National Nuclear
> Security Administration.
>
> \(b\) [ALLOCATION OF PRINCIPAL RIGHTS]{.underline}.
>
> \(1\) Retention of title by the Contractor. Except for exceptional
> circumstance subject inventions, the contractor may retain the entire
> right, title, and interest throughout the world to each subject
> invention subject to the provisions of this clause and 35 U.S.C. 203.
> With respect to any subject invention in which the Contractor retains
> title, the Federal government shall have a nonexclusive,
> nontransferable, irrevocable, paid-up license to practice or have
> practiced for or on behalf of the United States the subject invention
> throughout the world.
>
> \(2\) Exceptional circumstance subject inventions. Except to the
> extent that rights are retained by the Contractor in a determination
> of exceptional circumstances or granted to a contractor through a
> determination of greater rights in accordance with subparagraph (b)(4)
> of this clause, the Contractor does not have a right to retain title
> to any exceptional circumstance subject inventions and agrees to
> assign to the Government the entire right, title, and interest,
> throughout the world, in and to any exceptional circumstance subject
> inventions.
>
> \(i\) Inventions within or relating to the following fields of
> technology are exceptional circumstance subject inventions:
>
> \(A\) uranium enrichment technology;
>
> \(B\) storage and disposal of civilian high-level nuclear waste and
> spent fuel technology; and
>
> \(C\) national security technologies classified or sensitive under
> Section 148 of the Atomic Energy Act (42 U.S.C. 2168).
>
> \(ii\) Inventions made under any agreement, contract or subcontract
> related to the following are exceptional circumstance subject
> inventions:
>
> \(A\) DOE Steel Initiative and Metals Initiative;
>
> \(B\) U.S. Advanced Battery Consortium; and
>
> \(C\) any funding agreement which is funded in part by the Electric
> Power Research Institute (EPRI) or the Gas Research Institute (GRI).
>
> \(iii\) DOE reserves the right to unilaterally amend this contract to
> modify, by deletion or insertion, technical fields, tasks, or other
> classifications for the purpose of determining DOE exceptional
> circumstance subject inventions.
>
> \(3\) Treaties and international agreements. Any rights acquired by
> the Contractor in subject inventions are subject to any disposition of
> right, title, or interest in or to subject inventions provided for in
> treaties or international agreements identified in *[the Contract
> Section J Appendix entitled "All In Force Bilateral
> Agreements."]{.underline}* DOE reserves the right to unilaterally
> amend this contract to identify specific treaties or international
> agreements entered into or to be entered into by the Government after
> the effective date of this contract and to effectuate those license or
> other rights which are necessary for the Government to meet its
> obligations to foreign governments, their nationals and international
> organizations under such treaties or international agreements with
> respect to subject inventions made after the date of the amendment.
>
> \(4\) Contractor request for greater rights in exceptional
> circumstance subject inventions. The Contractor may request rights
> greater than allowed by the exceptional circumstance determination in
> an exceptional circumstance subject invention by submitting such a
> request in writing to Patent Counsel at the time the exceptional
> circumstance subject invention is disclosed to DOE or within eight (8)
> months after conception or first actual reduction to practice of the
> exceptional circumstance subject invention, whichever occurs first,
> unless a longer period is authorized in writing by the Patent Counsel
> for good cause shown in writing by the Contractor. DOE may, in its
> discretion, grant or refuse to grant such a request by the Contractor.
>
> \(5\) Contractor employee-inventor rights. If the Contractor does not
> elect to retain title to a subject invention or does not request
> greater rights in an exceptional circumstance subject invention, a
> Contractor employee-inventor, after consultation with the Contractor
> and with written authorization from the Contractor in accordance with
> 10 CFR 784.9(b)(4), may request greater rights, including title, in
> the subject invention or the exceptional circumstance invention from
> DOE, and DOE may, in its discretion, grant or refuse to grant such a
> request by the Contractor employee-inventor.
>
> \(6\) Government assignment of rights in Government employees' subject
> inventions. If a Government employee is a joint inventor of a subject
> invention or of an exceptional circumstance subject invention to which
> the Contractor has rights, the Government may assign or refuse to
> assign to the Contractor any rights in the subject invention or
> exceptional circumstance subject invention acquired by the Government
> from the Government employee, in accordance with 48 CFR 27.304-1(d).
> The rights assigned to the Contractor are subject to any provision of
> this clause that is applicable to subject inventions in which the
> Contractor retains title, including reservation by the Government of a
> nonexclusive, nontransferable, irrevocable, paid-up license, except
> that the Contractor shall file its initial patent application claiming
> the subject invention or exceptional circumstance invention within one
> (1) year after the assignment of such rights. The Contractor shall
> share royalties collected for the manufacture, use or sale of the
> subject invention with the Government employee.
>
> \(7\) Weapons related subject inventions. Except to the extent that
> DOE is solely satisfied that the Contractor meets certain procedural
> requirements and DOE grants rights to the Contractor in weapons
> related subject inventions, the Contractor does not have the right to
> retain title to any weapons related subject inventions.
>
> \(c\) [SUBJECT INVENTION DISCLOSURE, ELECTION OF TITLE AND FILING OF
> PATENT APPLICATION BY CONTRACTOR]{.underline}.

(1) Subject invention disclosure. The contractor will disclose each
    subject invention to the Patent Counsel within two months after the
    inventor discloses it in writing to contractor personnel responsible
    for patent matters. The disclosure to the agency shall be in the
    form of a written report and shall identify the contract under which
    the invention was made and the inventor(s) and all sources of
    funding by B&R code for the invention. It shall be sufficiently
    complete in technical detail to convey a clear understanding to the
    extent known at the time of the disclosure, of the nature, purpose,
    operation, and the physical, chemical, biological or electrical
    characteristics of the invention. The disclosure shall also identify
    any publication, on sale or public use of the invention and whether
    a manuscript describing the invention has been submitted for
    publication and, if so, whether it has been accepted for publication
    at the time of disclosure. The disclosure shall include a written
    statement as to whether the invention falls within an exceptional
    circumstance field. DOE will make a determination and advise the
    Contractor within 30 days of receipt of an invention disclosure as
    to whether the invention is an exceptional circumstance subject
    invention. In addition, after disclosure to the Patent Counsel, the
    Contractor will promptly notify the agency of the acceptance of any
    manuscript describing the invention for publication or of any on
    sale or public use planned by the contractor. The Contractor shall
    obtain approval from Patent Counsel prior to any release or
    publication of information concerning any nonelectable subject
    invention such as an exceptional circumstance subject invention or
    any subject invention related to a treaty or international
    agreement.

> \(2\) Election by the Contractor. Except as provided in paragraph
> (b)(2) of this clause, the Contractor will elect in writing whether or
> not to retain title to any such invention by notifying the Federal
> agency within two years of disclosure to the Federal agency. However,
> in any case where publication, on sale or public use has initiated the
> one year statutory period wherein valid patent protection can still be
> obtained in the United States, the period for election of title may be
> shortened by the agency to a date that is no more than 60 days prior
> to the end of the statutory period.
>
> \(3\) Filing of patent applications by the Contractor. The Contractor
> will file its initial patent application on a subject invention to
> which it elects to retain title within one year after election of
> title or, if earlier, or prior to the end of any 1-year statutory
> period wherein valid patent protection can be obtained in the United
> States after a publication, on sale, or public use. The Contractor
> will file patent applications in additional countries or international
> patent offices within either ten months of the corresponding initial
> patent application or six months from the date permission is granted
> by the Commissioner of Patents and Trademarks to file foreign patent
> applications where such filing has been prohibited by a Secrecy Order.
>
> \(4\) Contractor's request for an extension of time. Requests for an
> extension of the time for disclosure, election, and filing under
> subparagraphs (c)(1), (2) and (3) may, at the discretion of Patent
> Counsel, be granted.
>
> \(5\) Publication Approval. During the course of the work under this
> contract, the Contractor or its employees may desire to release or
> publish information regarding scientific or technical developments
> conceived or first actually reduced to practice in the course of or
> under this contract. In order that public disclosure of such
> information will not adversely affect the patent interest of DOE or
> the Contractor, approval for release or publication shall be secured
> from the Contractor personnel responsible for patent matters prior to
> any such release or publication. Where DOE's approval of publication
> is requested, DOE's response to such requests for approval shall
> normally be provided within 90 days except in circumstances in which a
> domestic patent application must be filed in order to protect foreign
> rights. In the case involving foreign patent rights, DOE shall be
> granted an additional 180 days with which to respond to the request
> for approval, unless extended by mutual agreement.
>
> \(d\) [CONDITIONS WHEN THE GOVERNMENT MAY OBTAIN TITLE]{.underline}.
>
> The Contractor will convey to the DOE, upon written request, title to
> any subject invention \--
>
> \(1\) If the Contractor fails to disclose or elect title to the
> subject invention within the times specified in paragraph (c) of this
> clause, or elects not to retain title; provided, that DOE may only
> request title within sixty (60) days after learning of the failure of
> the Contractor to disclose or to elect within the specified times.
>
> \(2\) In those countries in which the Contractor fails to file a
> patent application within the times specified in subparagraph (c) of
> this clause; provided, however, that if the Contractor has filed a
> patent application in a country after the times specified in
> subparagraph (c) above, but prior to its receipt of the written
> request of the DOE, the Contractor shall continue to retain title in
> that country.
>
> \(3\) In any country in which the Contractor decides not to continue
> the prosecution of any application for, to pay the maintenance fees
> on, or defend in a reexamination or opposition proceeding on, a patent
> on a subject invention.
>
> \(4\) If the Contractor requests that DOE acquire title or rights from
> the Contractor in a subject invention to which the Contractor had
> initially retained title or rights, or in an exceptional circumstance
> subject invention to which the Contractor was granted greater rights,
> DOE may acquire such title or rights from the Contractor, or DOE may
> decide against acquiring such title or rights from the Contractor, at
> DOE's sole discretion.
>
> \(e\) [MINIMUM RIGHTS OF THE CONTRACTOR AND PROTECTION OF THE
> CONTRACTOR'S RIGHT TO FILE.]{.underline}
>
> \(1\) Request for a Contractor license. The Contractor may request the
> right to reserve a revocable, nonexclusive, royalty-free license
> throughout the world in each subject invention to which the Government
> obtains title, except if the Contractor fails to disclose the
> invention within the times specified in paragraph (c) of this clause.
> DOE may grant or refuse to grant such a request by the Contractor.
> When DOE approves such reservation, the Contractor's license will
> normally extend to its domestic subsidiaries and affiliates, if any,
> within the corporate structure of which the Contractor is a party and
> includes the right to grant sublicenses of the same scope to the
> extent the Contractor was legally obligated to do so at the time the
> contract was awarded. The license is transferable only with the
> approval of DOE except when transferred to the successor of that part
> of the contractor's business to which the invention pertains.
>
> \(2\) Revocation or modification of a Contractor license. The
> Contractor's domestic license may be revoked or modified by DOE to the
> extent necessary to achieve expeditious practical application of the
> subject invention pursuant to an application for an exclusive license
> submitted in accordance with applicable provisions at 37 CFR Part 404
> and DOE licensing regulations at 10 CFR Part 781. This license will
> not be revoked in the field of use or the geographical areas in which
> the Contractor has achieved practical application and continues to
> make the benefits of the subject invention reasonably accessible to
> the public. The license in any foreign country may be revoked or
> modified at the discretion of DOE to the extent the Contractor, its
> licensees, or the domestic subsidiaries or affiliates have failed to
> achieve practical application of the subject invention in that foreign
> country.
>
> \(3\) Notice of revocation of modification of a Contractor license.
> Before revocation or modification of the license, DOE will furnish the
> Contractor a written notice of its intention to revoke or modify the
> license, and the Contractor will be allowed thirty days (or such other
> time as may be authorized by DOE for good cause shown by the
> Contractor) after the notice to show cause why the license should not
> be revoked or modified. The Contractor has the right to appeal, in
> accordance with applicable regulations in 37 CFR part 404 and DOE
> licensing regulations at 10 CFR part 781 concerning the licensing of
> Government owned inventions, any decision concerning the revocation or
> modification of the license.
>
> \(f\) [CONTRACTOR ACTION TO PROTECT THE GOVERNMENT'S
> INTEREST]{.underline}.
>
> \(1\) Execution of delivery of title or license instruments. The
> Contractor agrees to execute or to have executed, and promptly deliver
> to the Patent Counsel all instruments necessary to accomplish the
> following actions:
>
> \(i\) establish or confirm the rights the Government has throughout
> the world in those subject inventions to which the Contractor elects
> to retain title, and
>
> \(ii\) convey title to DOE when requested under subparagraphs (b) or
> paragraph (d) of this clause and to enable the Government to obtain
> patent protection throughout the world in that subject invention.
>
> \(2\) Contractor employee agreements. The Contractor agrees to
> require, by written agreement, its employees, other than clerical and
> nontechnical employees, to disclose promptly in writing to Contractor
> personnel identified as responsible for the administration of patent
> matters and in a format suggested by the Contractor, each subject
> invention made under this contract in order that the Contractor can
> comply with the disclosure provisions of paragraph (c) of this clause,
> and to execute all papers necessary to file patent applications on
> subject inventions and to establish the Government's rights in the
> subject inventions. This disclosure format should require, as a
> minimum, the information required by subparagraph (c)(1) of this
> clause. The Contractor shall instruct such employees, through employee
> agreements or other suitable educational programs, on the importance
> of reporting inventions in sufficient time to permit the filing of
> patent applications prior to U.S. or foreign statutory bars.
>
> \(3\) Notification of discontinuation of patent protection. The
> contractor will notify the Patent Counsel of any decision not to
> continue the prosecution of a patent application, pay maintenance
> fees, or defend in a reexamination or opposition proceeding on a
> patent, in any country, not less than thirty days before the
> expiration of the response period required by the relevant patent
> office.
>
> \(4\) Notification of Government rights. The contractor agrees to
> include, within the specification of any United States patent
> applications and any patent issuing thereon covering a subject
> invention, the following statement, "This invention was made with
> government support under (identify the contract) awarded by (identify
> the Federal agency). The government has certain rights in the
> invention."
>
> \(5\) Invention Identification Procedures. The Contractor shall
> establish and maintain active and effective procedures to ensure that
> subject inventions are promptly identified and timely disclosed and
> shall submit a written description of such procedures to the
> Contracting Officer so that the Contracting Officer may evaluate and
> determine their effectiveness.
>
> \(6\) Invention Filing Documentation. If the Contractor files a
> domestic or foreign patent application claiming a subject invention,
> the Contractor shall promptly submit to Patent Counsel, upon request,
> the following information and documents:
>
> \(i\) the filing date, serial number, title, and a copy of the patent
> application (including an English-language version if filed in a
> language other than English);
>
> \(ii\) an executed and approved instrument fully confirmatory of all
> Government rights in the subject invention; and
>
> \(iii\) the patent number, issue date, and a copy of any issued patent
> claiming the subject invention.

(7) Duplication and disclosure of documents. The Government may
    duplicate and disclose subject invention disclosures and all other
    reports and papers furnished or required to be furnished pursuant to
    this clause; provided, however, that any such duplication or
    disclosure by the Government is subject to the confidentiality
    provision at 35 U.S.C. 205 and 37 CFR Part 40.

> \(g\) [SUBCONTRACTS]{.underline}.
>
> \(1\) Subcontractor subject inventions. The Contractor shall not
> obtain rights in the subcontractor's subject inventions as part of the
> consideration for awarding a subcontract.
>
> \(2\) Inclusion of patent rights clause - non-profit organization or
> small business firm subcontractors. Unless otherwise authorized or
> directed by the Contracting Officer, the Contractor shall include the
> patent rights clause at 48 CFR 952.227-11, suitably modified to
> identify the parties, in all subcontracts, at any tier, for
> experimental, developmental, demonstration or research work to be
> performed by a small business firm or domestic nonprofit organization,
> except subcontracts which are subject to exceptional circumstances in
> accordance with 35 U.S.C. 202 and subparagraph (b)(2) of this clause.
> The subcontractor retains all rights provided for the contractor in
> the patent rights clause at 48 CFR 952.227-11.
>
> \(3\) Inclusion of patent rights clause - subcontractors other than
> non-profit organizations and small business firms. Except for the
> subcontracts described in subparagraph (g)(2) of this clause, the
> Contractor shall include the patent rights clause at 48 CFR
> 952.227-13, suitably modified to identify the parties, in any contract
> for experimental, developmental, demonstration or research work. For
> subcontracts subject to exceptional circumstances, the contractor must
> consult with DOE patent counsel with respect to the appropriate patent
> clause.
>
> \(4\) DOE and subcontractor contract. With respect to subcontracts at
> any tier, DOE, the subcontractor, and the Contractor agree that the
> mutual obligations of the parties created by this clause constitute a
> contract between the subcontractor and DOE with respect to the matters
> covered by the clause; provided, however, that nothing in this
> paragraph is intended to confer any jurisdiction under the Contract
> Disputes Act in connection with proceedings under paragraph (j) of
> this clause.
>
> \(5\) Subcontractor refusal to accept terms of patent clause. If a
> prospective subcontractor refuses to accept the terms of a patent
> rights clause, the Contractor shall promptly submit a written notice
> to the Contracting Officer stating the subcontractor\'s reasons for
> such a refusal, including any relevant information for expediting
> disposition of the matter, and the Contractor shall not proceed with
> the subcontract without the written authorization of the Contracting
> Officer.
>
> \(6\) Notification of award of subcontract. Upon the award of any
> subcontract at any tier containing a patent rights clause, the
> Contractor shall promptly notify the Contracting Officer in writing
> and identify the subcontractor, the applicable patent rights clause,
> the work to be performed under the subcontract, and the dates of award
> and estimated completion. Upon request of the Contracting Officer, the
> Contractor shall furnish a copy of a subcontract.
>
> \(7\) Identification of subcontractor subject inventions. If the
> Contractor in the performance of this contract becomes aware of a
> subject invention made under a subcontract, the Contractor shall
> promptly notify Patent Counsel and identify the subject invention.
>
> \(h\) [REPORTING ON UTILIZATION OF SUBJECT INVENTIONS]{.underline}.
>
> The Contractor agrees to submit to DOE on request, periodic reports,
> no more frequently than annually, on the utilization of a subject
> invention or on efforts at obtaining such utilization that are being
> made by the Contractor or its licensees or assignees. Such reports
> shall include information regarding the status of development, date of
> first commercial sale or use, gross royalties received by the
> Contractor, and such other data and information as DOE may reasonably
> specify. The Contractor also agrees to provide additional reports as
> may be requested by DOE in connection with any march-in proceeding
> undertaken by DOE in accordance with paragraph (j) of this clause. As
> required by 35 U.S.C. 202(c)(5), DOE agrees it will not disclose such
> information to persons outside the Government without permission of
> the Contractor.
>
> \(i\) [PREFERENCE FOR UNITED STATES INDUSTRY]{.underline}.
>
> Notwithstanding any other provision of this clause, the Contractor
> agrees that neither it nor any assignee will grant to any person the
> exclusive right to use or sell any subject invention in the United
> States unless such person agrees that any product embodying the
> subject invention or produced through the use of the subject invention
> will be manufactured substantially in the United States. However, in
> individual cases, the requirement for such an agreement may be waived
> by DOE upon a showing by the Contractor or its assignee that
> reasonable but unsuccessful efforts have been made to grant licenses
> on similar terms to potential licensees that would be likely to
> manufacture substantially in the United States or that under the
> circumstances domestic manufacture is not commercially feasible.
>
> \(j\) [MARCH-IN RIGHTS.]{.underline}
>
> The Contractor agrees that, with respect to any subject invention in
> which it has acquired title, DOE has the right in accordance with the
> procedures in 37 CFR 401.6 and any DOE supplemental regulations to
> require the Contractor, an assignee or exclusive licensee of a subject
> invention to grant a nonexclusive, partially exclusive, or exclusive
> license in any field of use to a responsible applicant or applicants,
> upon terms that are reasonable under the circumstances, and, if the
> Contractor, assignee or exclusive licensee refuses such a request, DOE
> has the right to grant such a license itself if DOE determines that
> \--
>
> \(1\) Such action is necessary because the Contractor or assignee has
> not taken, or is not expected to take within a reasonable time,
> effective steps to achieve practical application of the subject
> invention in such field of use;
>
> \(2\) Such action is necessary to alleviate health or safety needs
> which are not reasonably satisfied by the Contractor, assignee, or
> their licensees;
>
> \(3\) Such action is necessary to meet requirements for public use
> specified by Federal regulations and such requirements are not
> reasonably satisfied by the Contractor, assignee, or licensees; or
>
> \(4\) Such action is necessary because the agreement required by
> paragraph (i) of this clause has not been obtained or waived, or
> because a licensee of the exclusive right to use or sell any subject
> invention in the United States is in breach of such agreement.
>
> \(k\) [SPECIAL PROVISIONS FOR CONTRACTS WITH NONPROFIT
> ORGANIZATIONS.]{.underline}
>
> If the Contractor is a nonprofit organization, it agrees that \--
>
> \(1\) DOE approval of assignment of rights. Rights to a subject
> invention in the United States may not be assigned by the Contractor
> without the approval of DOE, except where such assignment is made to
> an organization which has as one of its primary functions the
> management of inventions; provided, that such assignee will be subject
> to the same provisions of this clause as the Contractor.
>
> \(2\) Small business firm licensees. It will make efforts that are
> reasonable under the circumstances to attract licensees of subject
> inventions that are small business firms, and that it will give a
> preference to a small business firm when licensing a subject invention
> if the Contractor determines that the small business firm has a plan
> or proposal for marketing the invention which, if executed, is equally
> as likely to bring the invention to practical application as any plans
> or proposals from applicants that are not small business firms;
> provided, that the Contractor is also satisfied that the small
> business firm has the capability and resources to carry out its plan
> or proposal. The decision whether to give a preference in any specific
> case will be at the discretion of the Contractor. However, the
> Contractor agrees that the Secretary of Commerce may review the
> Contractor's licensing program and decisions regarding small business
> firm applicants, and the Contractor will negotiate changes to its
> licensing policies, procedures, or practices with the Secretary of
> Commerce when that Secretary's review discloses that the Contractor
> could take reasonable steps to more effectively implement the
> requirements of this subparagraph (k)(2).
>
> \(3\) Contractor licensing of subject inventions. To the extent that
> it provides the most effective technology transfer, licensing of
> subject inventions shall be administered by Contractor employees on
> location at the facility.
>
> \(l\) [COMMUNICATIONS]{.underline}.
>
> The Contractor shall direct any notification, disclosure or request
> provided for in this clause to the Patent Counsel assisting the DOE
> contracting activity.
>
> \(m\) [REPORTS]{.underline}.
>
> \(1\) Interim reports. Upon DOE's request, the Contractor shall submit
> to DOE, no more frequently than annually, a list of subject inventions
> disclosed to DOE during a specified period, or a statement that no
> subject inventions were made during the specified period; and a list
> of subcontracts containing a patent clause and awarded by the
> Contractor during a specified period, or a statement that no such
> subcontracts were awarded during the specified period.
>
> \(2\) Final reports. Upon DOE's request, the Contractor shall submit
> to DOE, prior to closeout of the contract, a list of all subject
> inventions disclosed during the performance period of the contract, or
> a statement that no subject inventions were made during the contract
> performance period; and a list of all subcontracts containing a patent
> clause and awarded by the Contractor during the contract performance
> period, or a statement that no such subcontracts were awarded during
> the contract performance period.
>
> \(n\) [EXAMINATION OF RECORDS RELATING TO SUBJECT
> INVENTIONS]{.underline}.
>
> \(1\) Contractor compliance. Until the expiration of three (3) years
> after final payment under this contract, the Contracting Officer or
> any authorized representative may examine any books (including
> laboratory notebooks), records, documents, and other supporting data
> of the Contractor, which the Contracting Officer or authorized
> representative deems reasonably pertinent to the discovery or
> identification of subject inventions, including exceptional
> circumstance subject inventions, or to determine Contractor compliance
> with any requirement of this clause.
>
> \(2\) Unreported inventions. If the Contracting Officer is aware of an
> invention that is not disclosed by the Contractor to DOE, and the
> Contracting Officer believes the unreported invention may be a subject
> invention, including exceptional circumstance subject inventions, DOE
> may require the Contractor to submit to DOE a disclosure of the
> invention for a determination of ownership rights.
>
> \(3\) Confidentiality. Any examination of records under this paragraph
> is subject to appropriate conditions to protect the confidentiality of
> the information involved.
>
> \(4\) Power of inspection. With respect to a subject invention for
> which the Contractor has responsibility for patent prosecution, the
> Contractor shall furnish the Government, upon request by DOE, an
> irrevocable power to inspect and make copies of a prosecution file for
> any patent application claiming the subject invention.
>
> \(o\) [FACILITIES LICENSE]{.underline}.
>
> In addition to the rights of the parties with respect to inventions or
> discoveries conceived or first actually reduced to practice in the
> course of or under this contract, the Contractor agrees to and does
> hereby grant to the Government an irrevocable, nonexclusive, paid-up
> license in and to any inventions or discoveries regardless of when
> conceived or actually reduced to practice or acquired by the
> Contractor at any time through completion of this contract and which
> are incorporated or embodied in the construction of the facility or
> which are utilized in the operation of the facility or which cover
> articles, materials, or product manufactured at the facility (1) to
> practice or have practiced by or for the Government at the facility,
> and (2) to transfer such license with the transfer of that facility.
> Notwithstanding the acceptance or exercise by the Government of these
> rights, the Government may contest at any time the enforceability,
> validity or scope of, or title to, any rights or patents herein
> licensed.
>
> \(p\) [ATOMIC ENERGY]{.underline}.
>
> \(1\) Pecuniary awards. No claim for pecuniary award of compensation
> under the provisions of the Atomic Energy Act of 1954, as amended, may
> be asserted with respect to any invention or discovery made or
> conceived in the course of or under this contract.
>
> \(2\) Patent agreements. Except as otherwise authorized in writing by
> the Contracting Officer, the Contractor shall obtain patent agreements
> to effectuate the provisions of subparagraph (p)(1) of this clause
> from all persons who perform any part of the work under this contract,
> except nontechnical personnel, such as clerical employees and manual
> laborers.
>
> \(q\) [CLASSIFIED INVENTIONS]{.underline}.
>
> \(1\) Approval for filing a foreign patent application. The Contractor
> shall not file or cause to be filed an application or registration for
> a patent disclosing a subject invention related to classified subject
> matter in any country other than the United States without first
> obtaining the written approval of the Contracting Officer.
>
> \(2\) Transmission of classified subject matter. If in accordance with
> this clause the Contractor files a patent application in the United
> States disclosing a subject invention that is classified for reasons
> of security, the Contractor shall observe all applicable security
> regulations covering the transmission of classified subject matter. If
> the Contractor transmits a patent application disclosing a classified
> subject invention to the United States Patent and Trademark Office
> (USPTO), the Contractor shall submit a separate letter to the USPTO
> identifying the contract or contracts by agency and agreement number
> that require security classification markings to be placed on the
> patent application.
>
> \(3\) Inclusion of clause in subcontracts. The Contractor agrees to
> include the substance of this clause in subcontracts at any tier that
> cover or are likely to cover subject matter classified for reasons of
> security.
>
> \(r\) [PATENT FUNCTIONS]{.underline}.
>
> Upon the written request of the Contracting Officer or Patent Counsel,
> the Contractor agrees to make reasonable efforts to support DOE in
> accomplishing patent-related functions for work arising out of the
> contract, including, but not limited to, the prosecution of patent
> applications, and the determination of questions of novelty,
> patentability, and inventorship.
>
> \(s\) [EDUCATIONAL AWARDS SUBJECT TO 35 U.S.C. 212.]{.underline}
>
> The Contractor shall notify the Contracting Officer prior to the
> placement of any person subject to 35 U.S.C. 212 in an area of
> technology or task (1) related to exceptional circumstance technology
> or (2) which is subject to treaties or international agreements as set
> forth in paragraph (b)(3) of this clause or agreements other than
> funding agreements. The Contracting Officer may disapprove of any such
> placement.
>
> \(t\) [ANNUAL APPRAISAL BY PATENT COUNSEL]{.underline}.
>
> Patent Counsel may conduct an annual appraisal to evaluate the
> Contractor's effectiveness in identifying and protecting subject
> inventions in accordance with DOE policy.

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

*[\[This clause is only applicable if the selected offeror (Contractor)
is a For-Profit Business entity that may apply for an advance class
waiver. If the selected offeror (Contractor) is not a For-Profit
Business, then this clause 970.5227-12 shall not apply and be marked
"Reserved".\]]{.underline}*

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

# DEAR 970.5231-4 PREEXISTING CONDITIONS (DEC 2000) ALTERNATE II (DEC 2000) 

\(a\) The Department of Energy agrees to reimburse the contractor, and
the contractor shall not be held responsible, for any liability
(including without limitation, a claim involving strict or absolute
liability and any civil fine or penalty), expense, or remediation cost,
but limited to those of a civil nature, which may be incurred by,
imposed on, or asserted against the contractor arising out of any
condition, act, or failure to act which occurred before the contractor
assumed responsibility on *[October 1, 2007]{.underline}*. To the extent
the acts or omissions of the contractor cause or add to any liability,
expense or remediation cost resulting from conditions in existence prior
to *[October 1, 2007]{.underline}*, the contractor shall be responsible
in accordance with the terms and conditions of this contract.

\(b\) The obligations of the Department of Energy under this clause are
subject to the availability of appropriated funds.

\(c\) The contractor has the duty to inspect the facilities and sites
and timely identify to the contracting officer those conditions which it
believes could give rise to a liability, obligation, loss, damage,
penalty, fine, claim, action, suit, cost, expense, or disbursement or
areas of actual or potential noncompliance with the terms and conditions
of this contract or applicable law or regulation. The contractor has the
responsibility to take corrective action, as directed by the contracting
officer and as required elsewhere in this contract.

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

\(a\) [Installments of fixed-fee]{.underline}. The fixed-fee payable
under this contract shall become due and payable in periodic
installments in accordance with a schedule determined by the contracting
officer. Fixed-fee payments shall be made by direct payment or withdrawn
from funds advanced or available under this contract, as determined by
the contracting officer. The contracting officer may offset against any
such fee payment the amounts owed to the Government by the contractor,
including any amounts owed for disallowed costs under this contract. No
fixed-fee payment may be withdrawn against the payments cleared
financing arrangement without prior written approval of the contracting
officer.

\(b\) [Payments on Account of Allowable Costs]{.underline}. The
contracting officer and the contractor shall agree as to the extent to
which payment for allowable costs or payments for other items
specifically approved in writing by the contracting officer (for
example, negotiated fixed amounts) shall be made from advances of
Government funds. When pension contributions are paid by the contractor
to the retirement fund less frequently than quarterly, accrued costs
therefor shall be excluded from costs for payment purposes until such
costs are paid. If pension contributions are paid on a quarterly or more
frequent basis, accrual therefor may be included in costs for payment
purposes, provided that they are paid to the fund within 30 days after
the close of the period covered. If payments are not made to the fund
within such 30-day period, pension contribution costs shall be excluded
from cost for payment purposes until payment has been made.

\(c\) [Special financial institution account\--use]{.underline}. All
advances of Government funds shall be withdrawn pursuant to a payments
cleared financing arrangement prescribed by DOE in favor of the
financial institution or, at the option of the Government, shall be made
by direct payment or other payment mechanism to the contractor, and
shall be deposited only in the special financial institution account
referred to in the Special Financial Institution Account Agreement,
which is incorporated into the Contract Section J Appendix entitled
"*[Special Financial Institution Agreement For Use With The
Payments-Cleared Financing Arrangement]{.underline}*." No part of the
funds in the special financial institution account shall be commingled
with any funds of the contractor or used for a purpose other than that
of making payments for costs allowable and, if applicable, fees earned
under this contract, negotiated fixed amounts, or payments for other
items specifically approved in writing by the contracting officer. If
the contracting officer determines that the balance of such special
financial institution account exceeds the contractor\'s current needs,
the contractor shall promptly make such disposition of the excess as the
contracting officer may direct.

\(d\) [Title to funds advanced]{.underline}. Title to the unexpended
balance of any funds advanced and of any special financial institution
account established pursuant to this clause shall remain in the
Government and be superior to any claim or lien of the financial
institution of deposit or others. It is understood that an advance to
the contractor hereunder is not a loan to the contractor, and will not
require the payment of interest by the contractor, and that the
contractor acquires no right, title or interest in or to such advance
other than the right to make expenditures there from, as provided in
this clause.

\(e\) [Financial settlement]{.underline}. The Government shall promptly
pay to the contractor the unpaid balance of allowable costs and fee upon
termination of the work, expiration of the term of the contract, or
completion of the work and its acceptance by the Government after:

> \(1\) Compliance by the contractor with DOE\'s patent clearance
> requirements, and
>
> \(2\) The furnishing by the contractor of:
>
> \(i\) An assignment of the contractor\'s rights to any refunds,
> rebates, allowances, accounts receivable, collections accruing to the
> contractor in connection with the work under this contract, or other
> credits applicable to allowable costs under the contract;
>
> \(ii\) A closing financial statement;
>
> \(iii\) The accounting for Government-owned property required by the
> clause entitled \"Property\"; and
>
> \(iv\) A release discharging the Government, its officers, agents, and
> employees from all liabilities, obligations, and claims arising out of
> or under this contract subject only to the following exceptions:
>
> \(A\) Specified claims in stated amounts or in estimated amounts where
> the amounts are not susceptible to exact statement by the contractor;
>
> \(B\) Claims, together with reasonable expenses incidental thereto,
> based upon liabilities of the contractor to third parties arising out
> of the performance of this contract; provided that such claims are not
> known to the contractor on the date of the execution of the release;
> and provided further that the contractor gives notice of such claims
> in writing to the contracting officer promptly, but not more than one
> (1) year after the contractor\'s right of action first accrues. In
> addition, the contractor shall provide prompt notice to the
> contracting officer of all potential claims under this clause, whether
> in litigation or not (see also Contract Clause entitled
> \"Insurance\--Litigation and Claims\");
>
> \(C\) Claims for reimbursement of costs (other than expenses of the
> contractor by reason of any indemnification of the Government against
> patent liability), including reasonable expenses incidental thereto,
> incurred by the contractor under the provisions of this contract
> relating to patents; and
>
> \(D\) Claims recognizable under the clause entitled, Nuclear Hazards
> Indemnity Agreement.
>
> \(3\) In arriving at the amount due the contractor under this clause,
> there shall be deducted,
>
> \(i\) any claim which the Government may have against the contractor
> in connection with this contract, and
>
> \(ii\) deductions due under the terms of this contract, and not
> otherwise recovered by or credited to the Government. The unliquidated
> balance of the special financial institution account may be applied to
> the amount due and any balance shall be returned to the Government
> forthwith.

\(f\) [Claims]{.underline}. Claims for credit against funds advanced for
payment shall be accompanied by such supporting documents and
justification as the contracting officer shall prescribe.

\(g\) [Discounts]{.underline}. The contractor shall take and afford the
Government the advantage of all known and available cash and trade
discounts, rebates, allowances, credits, salvage, and commissions unless
the contracting officer finds that action is not in the best interest of
the Government.

\(h\) [Collections]{.underline}. All collections accruing to the
contractor in connection with the work under this contract, except for
the contractor\'s fee and royalties or other income accruing to the
contractor from technology transfer activities in accordance with this
contract, shall be Government property and shall be processed and
accounted for in accordance with applicable requirements imposed by the
contracting officer pursuant to the Laws, regulations, and DOE
directives clause of this contract and, to the extent consistent with
those requirements, shall be deposited in the special financial
institution account or otherwise made available for payment of allowable
costs under this contract, unless otherwise directed by the contracting
officer.

\(i\) [Direct payment of charges]{.underline}. The Government reserves
the right, upon ten days written notice from the contracting officer to
the contractor, to pay directly to the persons concerned, all amounts
due which otherwise would be allowable under this contract. Any payment
so made shall discharge the Government of all liability to the
contractor therefor.

\(j\) [Determining Allowable Costs]{.underline}. The contracting officer
shall determine allowable costs in accordance with the Federal
Acquisition Regulation subpart 31.2 and the Department of Energy
Acquisition Regulation subpart 48 CFR 970.31 in effect on the date of
this contract and other provisions of this contract.

\(k\) Review and approval of costs incurred. The contractor shall
prepare and submit annually as of September 30, a \"Statement of Costs
Incurred and Claimed\" (Cost Statement) for the total of net
expenditures accrued (i.e., net costs incurred) for the period covered
by the Cost Statement. The contractor shall certify the Cost Statement
subject to the penalty provisions for unallowable costs as stated in
sections 306(b) and (i) of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 256), as amended. DOE, after audit and
appropriate adjustment, will approve such Cost Statement. This approval
by DOE will constitute an acknowledgment by DOE that the net costs
incurred are allowable under the contract and that they have been
recorded in the accounts maintained by the contractor in accordance with
DOE accounting policies, but will not relieve the contractor of
responsibility for DOE\'s assets in its care, for appropriate subsequent
adjustments, or for errors later becoming known to DOE.

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

\(a\) 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 the
*[Contract Section I clause entitled "Access To and Ownership of
Records]{.underline}"*, 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
Section I Clause entitled "Access To and Ownership of
Records"*,]{.underline} 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 establish and maintain an
internal audit activity and provide the following reports:*

> *(1) Internal Audit Implementation Design. Within thirty (30) days of
> contract award and each 5th year of contract performance or upon the
> exercise of any contract option or the extension of the contract, the
> contractor shall submit to the contracting officer an Internal Audit
> Implementation Design to include the overall strategy for the audit
> activity. The Implementation Design ,will describe (i) the audit
> activity\'s placement within the contractor\'s organization including
> reporting requirements; (ii) its size and the experience and
> educational standards of the audit staff; (iii) its relationship to
> the corporate parent(s) of the contractor; (iv) the standards used to
> audit; (v) an overall audit strategy for relevant performance period
> of this contract, considering particularly the method of auditing
> costs incurred in the performance of the contract; (vi) the intended
> use of external audit resources; (vii) the plan for audit, both
> pre-award and post- award of subcontracts; and (viii) the schedule of
> peer review of the internal audit activity by other DOE contractor
> internal audit activities.*
>
> *(2) Annual Audit Report. By each January 31 of the contract
> performance period, the contractor shall submit an annual audit
> report, providing a summary of the audit activities undertaken during
> the previous fiscal year and their results.*
>
> *(3) Annual Audit Plan. By each June 30 of the contract performance
> period, the contractor shall submit to the contracting officer an
> annual audit plan that reflects the activities to be undertaken during
> the next fiscal year. The contractor shall design the Annual Audit
> Plan to test the costs incurred and contractor management systems
> described in the internal audit design.*
>
> *(4) Contracting officer\'s satisfaction. The design of the internal
> audit activity submitted under subparagraph (1), the annual report
> submitted under subparagraph (2), and the annual audit plan submitted
> under subparagraph (3) shall be satisfactory to the contracting
> officer.*

*(j) Statement of Costs Incurred and Claimed. At any time during
contract performance, should the contracting officer determine that the
costs incurred are unallowable to an extent to cause him or her to lose
confidence in the contractor\'s management controls or the contractor\'s
management systems that validate the costs incurred and claimed, the
contracting officer may, in his or her sole discretion, impose
conditions upon the contractor\'s use of the special financial
institution account or use of the Statement of Costs Incurred and
Claimed in whole or in part, including direction that specific types of
costs be claimed by periodic vouchering. This action shall not relieve
the contractor from any obligation to perform its obligations under this
contract. In addition, the contracting officer may direct the contractor
to pay the Government an amount equal to the unallowable costs or
payments improperly made and take any other action or combination of
actions provided in this contract, at law, or in equity.*

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

\(a\) Obligation of funds. The amount presently obligated by the
Government with respect to this contract is *[identified in the Contract
Section B Clause entitled "Contract Type And Value]{.underline}."* Such
amount may be increased unilaterally by DOE by written notice to the
contractor and may be increased or decreased by written agreement of the
parties (whether or not by formal modification of this contract).
Estimated collections from others for work and services to be performed
under this contract are not included in the amount presently obligated.
Such collections, to the extent actually received by the contractor,
shall be processed and accounted for in accordance with applicable
requirements imposed by the contracting officer pursuant to the Laws,
Regulations, and DOE Directives clause of this contract. Nothing in this
paragraph is to be construed as authorizing the contractor to exceed
limitations stated in financial plans established by DOE and furnished
to the contractor from time to time under this contract.

\(b\) Limitation on payment by the Government. Except as otherwise
provided in this contract and except for costs which may be incurred by
the contractor pursuant to the Termination clause of this contract or
costs of claims allowable under the contract occurring after completion
or termination and not released by the contractor at the time of
financial settlement of the contract in accordance with the clause
entitled \"Payments and Advances,\" payment by the Government under this
contract on account of allowable costs shall not, in the aggregate,
exceed the amount obligated with respect to this contract, less the
contractor\'s fee and any negotiated fixed amount. Unless expressly
negated in this contract, payment on account of those costs excepted in
the preceding sentence which are in excess of the amount obligated with
respect to this contract shall be subject to the availability of:

> \(1\) collections accruing to the contractor in connection with the
> work under this contract and processed and accounted for in accordance
> with applicable requirements imposed by the contracting officer
> pursuant to the Laws, Regulations, and DOE Directives clause of this
> contract, and
>
> \(2\) other funds which DOE may legally use for such purpose, provided
> DOE will use its best efforts to obtain the appropriation of funds for
> this purpose if not otherwise available.

\(c\) Notices-Contractor excused from further performance. The
contractor shall notify DOE in writing whenever the unexpended balance
of available funds (including collections available under paragraph (a)
of this clause), plus the contractor\'s best estimate of collections to
be received and available during the 90 day period hereinafter
specified, is in the contractor\'s best judgment sufficient to continue
contract operations at the programmed rate for only 90 days and to cover
the contractor\'s unpaid fee and any negotiated fixed amounts, and
outstanding encumbrances and liabilities on account of costs allowable
under the contract at the end of such period. Whenever the unexpended
balance of available funds (including collections available under
paragraph (a) of this clause), less the amount of the contractor\'s fee
then earned but not paid and any negotiated fixed amounts, is in the
contractor\'s best judgment sufficient only to liquidate outstanding
encumbrances and liabilities on account of costs allowable under this
contract, the contractor shall immediately notify DOE and shall make no
further encumbrances or expenditures (except to liquidate existing
encumbrances and liabilities), and, unless the parties otherwise agree,
the contractor shall be excused from further performance (except such
performance as may become necessary in connection with termination by
the Government) and the performance of all work hereunder will be deemed
to have been terminated for the convenience of the Government in
accordance with the provisions of the Termination clause of this
contract.

\(d\) Financial plans; cost and encumbrance limitations. In addition to
the limitations provided for elsewhere in this contract, DOE may,
through financial plans, such as Approved Funding Programs, or other
directives issued to the contractor, establish controls on the costs to
be incurred and encumbrances to be made in the performance of the
contract work. Such plans and directives may be amended or supplemented
from time to time by DOE. The contractor agrees

> \(1\) to comply with the specific limitations (ceilings) on costs and
> encumbrances set forth in such plans and directives,
>
> \(2\) to comply with other requirements of such plans and directives,
> and
>
> \(3\) to notify DOE promptly, in writing, whenever it has reason to
> believe that any limitation on costs and encumbrances will be exceeded
> or substantially underrun.

\(e\) Government\'s right to terminate not affected. The giving of any
notice under this clause shall not be construed to waive or impair any
right of the Government to terminate the contract under the provisions
of the Termination clause of this contract.

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

\(a\) [General]{.underline}. The contractor shall develop, implement,
and maintain formal policies, practices, and procedures to be used in
the award of subcontracts consistent with this clause and 48 CFR 970.44.
The contractor\'s purchasing system and methods shall be fully
documented, consistently applied, and acceptable to DOE in accordance
with 48 CFR 970.4401-1. The contractor shall maintain file documentation
which is appropriate to the value of the purchase and is adequate to
establish the propriety of the transaction and the price paid. The
contractor\'s purchasing performance will be evaluated against such
performance criteria and measures as may be set forth elsewhere in this
contract. DOE reserves the right at any time to require that the
contractor submit for approval any or all purchases under this contract.
The contractor shall not purchase any item or service the purchase of
which is expressly prohibited by the written direction of DOE and shall
use such special and directed sources as may be expressly required by
the DOE contracting officer. DOE will conduct periodic appraisals of the
contractor\'s management of all facets of the purchasing function,
including the contractor\'s compliance with its approved system and
methods. Such appraisals will be performed through the conduct of
Contractor Purchasing System Reviews in accordance with 48 CFR subpart
44.3, or, when approved by the contracting officer, through the
contractor\'s participation in the conduct of the Balanced Scorecard
performance measurement and performance management system. The
contractor\'s approved purchasing system and methods shall include the
requirements set forth in paragraphs (b) through (y) of this clause.

\(b\) [Acquisition of Utility Services]{.underline}. Utility services
shall be acquired in accordance with the requirements of 48 CFR 970.41.

\(c\) [Acquisition of Real Property]{.underline}. Real property shall be
acquired in accordance with 48 CFR Subpart 917.74.

\(d\) [Advance Notice of Proposed Subcontract Awards]{.underline}.
Advance notice shall be provided in accordance with 48 CFR 970.4401-3.

\(e\) [Audit of Subcontractors]{.underline}.

> \(1\) The contractor shall provide for:
>
> \(i\) periodic post-award audit of cost-reimbursement subcontractors
> at all tiers, and
>
> \(ii\) audits, where necessary, to provide a valid basis for pre-award
> or cost or price analysis.
>
> \(2\) Responsibility for determining the costs allowable under each
> cost-reimbursement subcontract remains with the contractor or next
> higher-tier subcontractor. The contractor shall provide, in
> appropriate cases, for the timely involvement of the contractor and
> the DOE contracting officer in resolution of subcontract cost
> allowability.
>
> \(3\) Where audits of subcontractors at any tier are required,
> arrangements may be made to have the cognizant Federal agency perform
> the audit of the subcontract. These arrangements shall be made
> administratively between DOE and the other agency involved and shall
> provide for the cognizant agency to audit in an appropriate manner in
> light of the magnitude and nature of the subcontract. In no case,
> however, shall these arrangements preclude determination by the DOE
> contracting officer of the allowability or unallowability of
> subcontractor costs claimed for reimbursement by the contractor.
>
> \(4\) Allowable costs for cost reimbursable subcontracts are to be
> determined in accordance with the cost principles of 48 CFR Part 31,
> appropriate for the type of organization to which the subcontract is
> to be awarded, as supplemented by 48 CFR Part 931. Allowable costs in
> the purchase or transfer from contractor-affiliated sources shall be
> determined in accordance with 48 CFR 970.4402-2 and 48 CFR
> 970.3102-21(b).

\(f\) [Bonds and Insurance]{.underline}.

> \(1\) The contractor shall require performance bonds in penal amounts
> as set forth in 48 CFR 28.102-2(a) for all fixed priced and
> unit-priced construction subcontracts in excess of \$100,000. The
> contractor shall consider the use of performance bonds in fixed price
> nonconstruction subcontracts, where appropriate.
>
> \(2\) For fixed price, unit-priced and cost-reimbursement construction
> subcontractors in excess of \$100,000 a payment bond shall be obtained
> on Standard Form 25A modified to name the contractor as well as the
> United States of America as obligees. The penal amounts shall be
> determined in accordance with 48 CFR 28.102-2(b).
>
> \(3\) For fixed-price, unit-priced and cost-reimbursement construction
> subcontracts, greater than \$25,000, but not greater than \$100,000,
> the contractor shall select two or more of the payment protections at
> 48 CFR 28.102-1(b), giving particular consideration to the inclusion
> of an irrevocable letter of credit as one of the selected
> alternatives.
>
> \(4\) A subcontractor may have more than one acceptable surety in both
> construction and other subcontracts, provided that in no case will the
> liability of any one surety exceed the maximum penal sum for which it
> is qualified for any one obligation. For subcontracts other than
> construction, a co-surety (two or more sureties together) may reinsure
> amounts in excess of their individual capacity, with each surety
> having the required underwriting capacity that appears on the list of
> acceptable corporate sureties.

\(g\) [Buy American]{.underline}. The contractor shall comply with the
provisions of the Buy American Act as reflected in 48 CFR 52.225-*1 (May
2002), as amended by AL 2002-06* and 48 CFR 52.225-*9 (May 2002), as
amended by AL 2002-06*. The contractor shall forward determinations of
nonavailability of individual items to the DOE contracting officer for
approval. Items in excess of \$100,000 require the prior concurrence of
the Head of Contracting Activity. If, however, the contractor has an
approved purchasing system, the Head of the Contracting Activity may
authorize the contractor to make determinations of nonavailability for
individual items valued at \$100,000 or less.

\(h\) [Construction and Architect-Engineer Subcontracts]{.underline}.

> \(1\) [Independent Estimates]{.underline}. A detailed, independent
> estimate of costs shall be prepared for all construction work to be
> subcontracted.
>
> \(2\) [Specifications]{.underline}. Specifications for construction
> shall be prepared in accordance with the DOE publication entitled
> \"General Design Criteria Manual.\"
>
> \(3\) [Prevention of Conflict of Interest]{.underline}.
>
> \(i\) The contractor shall not award a subcontract for construction to
> the architect-engineer firm or an affiliate that prepared the design.
> This prohibition does not preclude the award of a \"turnkey\"
> subcontract so long as the subcontractor assumes all liability for
> defects in design and construction and consequential damages.
>
> \(ii\) The contractor shall not award both a cost-reimbursement
> subcontract and a fixed-price subcontract for construction or
> architect-engineer services or any combination thereof to the same
> firm where those subcontracts will be performed at the same site.
>
> \(iii\) The contractor shall not employ the construction subcontractor
> or an affiliate to inspect the firm\'s work. The contractor shall
> assure that the working relationships of the construction
> subcontractor and the subcontractor inspecting its work and the
> authority of the inspector are clearly defined.

\(i\) [Contractor-Affiliated Sources]{.underline}. Equipment, materials,
supplies, or services from a contractor-affiliated source shall be
purchased or transferred in accordance with 48 CFR 970.4402-3.

\(j\) [Contractor-Subcontractor Relationship]{.underline}. The
obligations of the contractor under paragraph (a) of this clause,
including the development of the purchasing system and methods, and
purchases made pursuant thereto, shall not relieve the contractor of any
obligation under this contract (including, among other things, the
obligation to properly supervise, administer, and coordinate the work of
subcontractors). Subcontracts shall be in the name of the contractor,
and shall not bind or purport to bind the Government.

\(k\) [Government Property]{.underline}. Identification, inspection,
maintenance, protection, and disposition of Government property shall
conform with the policies and principles of 48 CFR Part 45, 48 CFR 945,
the Federal Property Management Regulations 41 CFR Chapter 101, the DOE
Property Management Regulations 41 CFR Chapter 109, and their contracts.

\(l\) [Indemnification]{.underline}. Except for Price-Anderson Nuclear
Hazards Indemnity, no subcontractor may be indemnified except with the
prior approval of the Senior Procurement Executive.

\(m\) [Leasing of Motor Vehicles]{.underline}. Contractors shall comply
with 48 CFR 8.11 and 48 CFR 908.11.

\(n\) *\[Removed and Reserved\]*

\(o\) [Management, Acquisition and Use of Information
Resources]{.underline}. Requirements for automatic data processing
resources and telecommunications facilities, services, and equipment,
shall be reviewed and approved in accordance with applicable DOE Orders
and regulations regarding information resources.

\(p\) [Priorities, Allocations and Allotments]{.underline}. Priorities,
allocations and allotments shall be extended to appropriate subcontracts
in accordance with the clause or clauses of this contract dealing with
priorities and allocations.

\(q\) [Purchase of Special Items]{.underline}. Purchase of the following
items shall be in accordance with the following provisions of 48 CFR
908.71 and the Federal Property Management Regulations, 41 CFR Chapter
101:

> \(1\) Motor vehicles\--48 CFR 908.7101
>
> \(2\) Aircraft\--48 CFR 908.7102
>
> \(3\) Security Cabinets\--48 CFR 908.7106
>
> \(4\) Alcohol\--48 CFR 908.7107
>
> \(5\) Helium\--48 CFR 908.7108
>
> \(6\) Fuels and packaged petroleum products\--48 CFR 908.7109
>
> \(7\) Coal\--48 CFR 908.7110
>
> \(8\) Arms and Ammunition\--48 CFR 908.7111
>
> \(9\) Heavy Water\--48 CFR 908.7121(a)
>
> \(10\) Precious Metals\--48 CFR 908.7121(b)
>
> \(11\) Lithium\--48 CFR 908.7121(c)
>
> \(12\) Products and services of the blind and severely
> handicapped\--41 CFR 101-26.701
>
> \(13\) Products made in Federal penal and correctional
> institutions\--41 CFR 101-26.702

\(r\) [Purchase vs. Lease Determinations]{.underline}. Contractors shall
determine whether required equipment and property should be purchased or
leased, and establish appropriate thresholds for application of lease
vs. purchase determinations. Such determinations shall be made:

> \(1\) at time of original acquisition;
>
> \(2\) when lease renewals are being considered; and
>
> \(3\) at other times as circumstances warrant.

\(s\) [Quality Assurance]{.underline}. Contractors shall provide no less
protection for the Government in its subcontracts than is provided in
the prime contract.

\(t\) [Setoff of Assigned Subcontractor Proceeds]{.underline}. Where a
subcontractor has been permitted to assign payments to a financial
institution, the assignment shall treat any right of setoff in
accordance with 48 CFR 932.803.

\(u\) [Strategic and Critical Materials]{.underline}. The contractor may
use strategic and critical materials in the National Defense Stockpile.

\(v\) [Termination]{.underline}. When subcontracts are terminated as a
result of the termination of all or a portion of this contract, the
contractor shall settle with subcontractors in conformity with the
policies and principles relating to settlement of prime contracts in 48
CFR Subparts 49.1, 49.2, and 49.3. When subcontracts are terminated for
reasons other than termination of this contract, the contractor shall
settle such subcontracts in general conformity with the policies and
principles in FAR subparts 49.1, 49.2, 49.3 and 49.4. Each such
termination shall be documented and consistent with the terms of this
contract. Terminations which require approval by the Government shall be
supported by accounting data and other information as may be directed by
the contracting officer.

\(w\) [Unclassified Controlled Nuclear Information]{.underline}.
Subcontracts involving unclassified uncontrolled nuclear information
shall be treated in accordance with 10 CFR 1017.

\(x\) [Subcontract Flowdown requirements]{.underline}. In addition to
terms and conditions that are included in the prime contract which
direct application of such terms and conditions in appropriate
subcontracts, the contractor shall include the following clauses in
subcontracts, as applicable:

> \(1\) Davis-Bacon clauses prescribed in 48 CFR 22.407.

(2) Foreign Travel clause prescribed 48 CFR 952.247-70.

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

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

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

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

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

# 

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

> []{.mark}

*[\[This clause is only applicable if the selected offeror (Contractor)
is other than a NonProfit Business entity that also has been granted an
advance class waiver. If these conditions are not met, then the clause
shall be "Reserved".\]]{.underline}*

> \(a\) [Furnishing of Government property]{.underline}. The Government
> reserves the right to furnish any property or services required for
> the performance of the work under this contract.
>
> \(b\) [Title to property]{.underline}. Except as otherwise provided by
> the contracting officer, title to all materials, equipment, supplies,
> and tangible personal property of every kind and description purchased
> by the contractor, for the cost of which the contractor is entitled to
> be reimbursed as a direct item of cost under this contract, shall pass
> directly from the vendor to the Government. The Government reserves
> the right to inspect, and to accept or reject, any item of such
> property. The contractor shall make such disposition of rejected items
> as the contracting officer shall direct. Title to other property, the
> cost of which is reimbursable to the contractor under this contract,
> shall pass to and vest in the Government upon (1) issuance for use of
> such property in the performance of this contract, or (2) commencement
> of processing or use of such property in the performance of this
> contract, or (3) reimbursement of the cost thereof by the Government,
> whichever first occurs. Property furnished by the Government and
> property purchased or furnished by the contractor, title to which
> vests in the Government, under this paragraph are hereinafter referred
> to as Government property. Title to Government property shall not be
> affected by the incorporation of the property into or the attachment
> of it to any property not owned by the Government, nor shall such
> Government property or any part thereof, be or become a fixture or
> lose its identity as personality by reason of affixation to any
> realty.
>
> \(c\) [Identification]{.underline}. To the extent directed by the
> contracting officer, the contractor shall identify Government property
> coming into the contractor\'s possession or custody, by marking and
> segregating in such a way, satisfactory to the contracting officer, as
> shall indicate its ownership by the Government.
>
> \(d\) [Disposition]{.underline}. The contractor shall make such
> disposition of Government property which has come into the possession
> or custody of the contractor under this contract as the contracting
> officer may direct during the progress of the work or upon completion
> or termination of this contract. The contractor may, upon such terms
> and conditions as the contracting officer may approve, sell, or
> exchange such property, or acquire such property at a price agreed
> upon by the contracting officer and the contractor as the fair value
> thereof. The amount received by the contractor as the result of any
> disposition, or the agreed fair value of any such property acquired by
> the contractor, shall be applied in reduction of costs allowable under
> this contract or shall be otherwise credited to account to the
> Government, as the contracting officer may direct. Upon completion of
> the work or the termination of this contract, the contractor shall
> render an accounting, as prescribed by the contracting officer, of all
> government property which had come into the possession or custody of
> the contractor under this contract.
>
> \(e\) [Protection of government property\--management of high-risk
> property and classified materials]{.underline}.
>
> \(1\) The contractor shall take all reasonable precautions, and such
> other actions as may be directed by the contracting officer, or in the
> absence of such direction, in accordance with sound business practice,
> to safeguard and protect government property in the contractor\'s
> possession or custody.
>
> \(2\) In addition, the contractor shall ensure that adequate
> safeguards are in place, and adhered to, for the handling, control and
> disposition of high-risk property and classified materials throughout
> the life cycle of the property and materials consistent with the
> policies, practices and procedures for property management contained
> in the Federal Property Management regulations (41 CFR chapter 101),
> the Department of Energy Property Management regulations (41 CFR
> chapter 109), and other applicable regulations.
>
> \(3\) High-risk property is property, the loss, destruction, damage
> to, or the unintended or premature transfer of which could pose risks
> to the public, the environment, or the national security interests of
> the United States. High-risk property includes proliferation
> sensitive, nuclear related dual use, export controlled, chemically or
> radioactively contaminated, hazardous, and specially designed and
> prepared property, including property on the militarily critical
> technologies list.
>
> \(f\) [Risk of loss of Government property]{.underline}.
>
> \(1\) (i) The contractor shall not be liable for the loss or
> destruction of, or damage to, Government property unless such loss,
> destruction, or damage was caused by any of the following:
>
> \(A\) Willful misconduct or lack of good faith on the part of the
> contractor\'s managerial personnel;
>
> \(B\) Failure of the contractor\'s managerial personnel to take all
> reasonable steps to comply with any appropriate written direction of
> the contracting officer to safeguard such property under paragraph (e)
> of this clause; or
>
> \(C\) Failure of contractor managerial personnel to establish,
> administer, or properly maintain an approved property management
> system in accordance with paragraph (i)(1)of this clause.
>
> \(ii\) If, after an initial review of the facts, the contracting
> officer informs the contractor that there is reason to believe that
> the loss, destruction of, or damage to the government property results
> from conduct falling within one of the categories set forth above, the
> burden of proof shall be upon the contractor to show that the
> contractor should not be required to compensate the government for the
> loss, destruction, or damage.
>
> \(2\) In the event that the contractor is determined liable for the
> loss, destruction or damage to Government property in accordance with
> (f)(1) of this clause, the contractor\'s compensation to the
> Government shall be determined as follows:
>
> \(i\) For damaged property, the compensation shall be the cost of
> repairing such damaged property, plus any costs incurred for temporary
> replacement of the damaged property. However, the value of repair
> costs shall not exceed the fair market value of the damaged property.
> If a fair market value of the property does not exist, the contracting
> officer shall determine the value of such property, consistent with
> all relevant facts and circumstances.
>
> \(ii\) For destroyed or lost property, the compensation shall be the
> fair market value of such property at the time of such loss or
> destruction, plus any costs incurred for temporary replacement and
> costs associated with the disposition of destroyed property. If a fair
> market value of the property does not exist, the contracting officer
> shall determine the value of such property, consistent with all
> relevant facts and circumstances.
>
> \(3\) The portion of the cost of insurance obtained by the contractor
> that is allocable to coverage of risks of loss referred to in
> paragraph (f)(1) of this clause is not allowable.
>
> \(g\) [Steps to be taken in event of loss]{.underline}. In the event
> of any damage, destruction, or loss to Government property in the
> possession or custody of the contractor with a value above the
> threshold set out in the contractor\'s approved property management
> system, the contractor:
>
> \(1\) Shall immediately inform the contracting officer of the occasion
> and extent thereof,
>
> \(2\) Shall take all reasonable steps to protect the property
> remaining, and
>
> \(3\) Shall repair or replace the damaged, destroyed, or lost property
> in accordance with the written direction of the contracting officer.
> The contractor shall take no action prejudicial to the right of the
> Government to recover therefore, and shall furnish to the Government,
> on request, all reasonable assistance in obtaining recovery.
>
> \(h\) [Government property for Government use only]{.underline}.
> Government property shall be used only for the performance of this
> contract.
>
> \(i\) [Property Management]{.underline}.
>
> \(1\) [Property Management System]{.underline}.
>
> \(i\) The contractor shall establish, administer, and properly
> maintain an approved property management system of accounting for and
> control, utilization, maintenance, repair, protection, preservation,
> and disposition of Government property in its possession under the
> contract. The contractor\'s property management system shall be
> submitted to the contracting officer for approval and shall be
> maintained and administered in accordance with sound business
> practice, applicable Federal Property Management regulations and
> Department of Energy Property Management regulations, and such
> directives or instructions which the contracting officer may from time
> to time prescribe.
>
> \(ii\) In order for a property management system to be approved, it
> must provide for:
>
> \(A\) Comprehensive coverage of property from the requirement
> identification, through its life cycle, to final disposition;
>
> \(B\) Employee personal responsibility and accountability for
> Government-owned property;
>
> \(C\) Full integration with the contractor\'s other administrative and
> financial systems; and
>
> \(D\) A method for continuously improving property management
> practices through the identification of best practices established by
> \"best in class\" performers.
>
> \(iii\) Approval of the contractor\'s property management system shall
> be contingent upon the completion of the baseline inventory as
> provided in subparagraph (i)(2) of this clause.
>
> \(2\) [Property Inventory]{.underline}.
>
> \(i\) Unless otherwise directed by the contracting officer, the
> contractor shall within six months after execution of the contract
> provide a baseline inventory covering all items of Government
> property.
>
> \(ii\) If the contractor is succeeding another contractor in the
> performance of this contract, the contractor shall conduct a joint
> reconciliation of the property inventory with the predecessor
> contractor. The contractor agrees to participate in a joint
> reconciliation of the property inventory at the completion of this
> contract. This information will be used to provide a baseline for the
> succeeding contract as well as information for closeout of the
> predecessor contract.
>
> \(j\) The term \"contractor\'s managerial personnel\" as used in this
> clause means the contractor\'s directors, officers and any of its
> managers, superintendents, or other equivalent representatives who
> have supervision or direction of:
>
> \(1\) All or substantially all of the contractor\'s business; or
>
> \(2\) All or substantially all of the contractor\'s operations at any
> one facility or separate location to which this contract is being
> performed; or
>
> \(3\) A separate and complete major industrial operation in connection
> with the performance of this contract; or
>
> \(4\) A separate and complete major construction, alteration, or
> repair operation in connection with performance of this contract; or
>
> \(5\) A separate and discrete major task or operation in connection
> with the performance of this contract.
>
> \(k\) The contractor shall include this clause in all cost
> reimbursable subcontracts.

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

> []{.mark}

*[\[This clause is only applicable if the selected offeror (Contractor)
is a NonProfit Business entity. If this condition is not met, then this
clause shall be "Reserved".\]]{.underline}*

> \(a\) [Furnishing of Government property]{.underline}. The Government
> reserves the right to furnish any property or services required for
> the performance of the work under this contract.
>
> \(b\) [Title to property]{.underline}. Except as otherwise provided by
> the contracting officer, title to all materials, equipment, supplies,
> and tangible personal property of every kind and description purchased
> by the contractor, for the cost of which the contractor is entitled to
> be reimbursed as a direct item of cost under this contract, shall pass
> directly from the vendor to the Government. The Government reserves
> the right to inspect, and to accept or reject, any item of such
> property. The contractor shall make such disposition of rejected items
> as the contracting officer shall direct. Title to other property, the
> cost of which is reimbursable to the contractor under this contract,
> shall pass to and vest in the Government upon (1) issuance for use of
> such property in the performance of this contract, or (2) commencement
> of processing or use of such property in the performance of this
> contract, or (3) reimbursement of the cost thereof by the Government,
> whichever first occurs. Property furnished by the Government and
> property purchased or furnished by the contractor, title to which
> vests in the Government, under this paragraph are hereinafter referred
> to as Government property. Title to Government property shall not be
> affected by the incorporation of the property into or the attachment
> of it to any property not owned by the Government, nor shall such
> Government property or any part thereof, be or become a fixture or
> lose its identity as personality by reason of affixation to any
> realty.
>
> \(c\) [Identification]{.underline}. To the extent directed by the
> contracting officer, the contractor shall identify Government property
> coming into the contractor\'s possession or custody, by marking and
> segregating in such a way, satisfactory to the contracting officer, as
> shall indicate its ownership by the Government.
>
> \(d\) [Disposition]{.underline}. The contractor shall make such
> disposition of Government property which has come into the possession
> or custody of the contractor under this contract as the contracting
> officer may direct during the progress of the work or upon completion
> or termination of this contract. The contractor may, upon such terms
> and conditions as the contracting officer may approve, sell, or
> exchange such property, or acquire such property at a price agreed
> upon by the contracting officer and the contractor as the fair value
> thereof. The amount received by the contractor as the result of any
> disposition, or the agreed fair value of any such property acquired by
> the contractor, shall be applied in reduction of costs allowable under
> this contract or shall be otherwise credited to account to the
> Government, as the contracting officer may direct. Upon completion of
> the work or the termination of this contract, the contractor shall
> render an accounting, as prescribed by the contracting officer, of all
> government property which had come into the possession or custody of
> the contractor under this contract.
>
> \(e\) [Protection of government property\--management of high-risk
> property and classified materials]{.underline}.
>
> \(1\) The contractor shall take all reasonable precautions, and such
> other actions as may be directed by the contracting officer, or in the
> absence of such direction, in accordance with sound business practice,
> to safeguard and protect government property in the contractor\'s
> possession or custody.
>
> \(2\) In addition, the contractor shall ensure that adequate
> safeguards are in place, and adhered to, for the handling, control and
> disposition of high-risk property and classified materials throughout
> the life cycle of the property and materials consistent with the
> policies, practices and procedures for property management contained
> in the Federal Property Management regulations (41 CFR chapter 101),
> the Department of Energy Property Management regulations (41 CFR
> chapter 109), and other applicable regulations.
>
> \(3\) High-risk property is property, the loss, destruction, damage
> to, or the unintended or premature transfer of which could pose risks
> to the public, the environment, or the national security interests of
> the United States. High-risk property includes proliferation
> sensitive, nuclear related dual use, export controlled, chemically or
> radioactively contaminated, hazardous, and specially designed and
> prepared property, including property on the militarily critical
> technologies list.
>
> \(f\) [Risk of loss of Government property]{.underline}.
>
> \(1\) (i) The contractor shall not be liable for the loss or
> destruction of, or damage to, Government property unless such loss,
> destruction, or damage was caused by any of the following:
>
> \(A\) Willful misconduct or lack of good faith on the part of the
> contractor\'s managerial personnel;
>
> \(B\) Failure of the contractor\'s managerial personnel to take all
> reasonable steps to comply with any appropriate written direction of
> the contracting officer to safeguard such property under paragraph (e)
> of this clause; or
>
> \(C\) Failure of contractor managerial personnel to establish,
> administer, or properly maintain an approved property management
> system in accordance with paragraph (i)(1)of this clause.
>
> \(ii\) If, after an initial review of the facts, the contracting
> officer informs the contractor that there is reason to believe that
> the loss, destruction of, or damage to the government property results
> from conduct falling within one of the categories set forth above, the
> burden of proof shall be upon the contractor to show that the
> contractor should not be required to compensate the government for the
> loss, destruction, or damage.
>
> \(2\) In the event that the contractor is determined liable for the
> loss, destruction or damage to Government property in accordance with
> (f)(1) of this clause, the contractor\'s compensation to the
> Government shall be determined as follows:
>
> \(i\) For damaged property, the compensation shall be the cost of
> repairing such damaged property, plus any costs incurred for temporary
> replacement of the damaged property. However, the value of repair
> costs shall not exceed the fair market value of the damaged property.
> If a fair market value of the property does not exist, the contracting
> officer shall determine the value of such property, consistent with
> all relevant facts and circumstances.
>
> \(ii\) For destroyed or lost property, the compensation shall be the
> fair market value of such property at the time of such loss or
> destruction, plus any costs incurred for temporary replacement and
> costs associated with the disposition of destroyed property. If a fair
> market value of the property does not exist, the contracting officer
> shall determine the value of such property, consistent with all
> relevant facts and circumstances.
>
> \(3\) The portion of the cost of insurance obtained by the contractor
> that is allocable to coverage of risks of loss referred to in
> paragraph (f)(1) of this clause is not allowable.
>
> \(g\) [Steps to be taken in event of loss]{.underline}. In the event
> of any damage, destruction, or loss to Government property in the
> possession or custody of the contractor with a value above the
> threshold set out in the contractor\'s approved property management
> system, the contractor:
>
> \(1\) Shall immediately inform the contracting officer of the occasion
> and extent thereof,
>
> \(2\) Shall take all reasonable steps to protect the property
> remaining, and
>
> \(3\) Shall repair or replace the damaged, destroyed, or lost property
> in accordance with the written direction of the contracting officer.
> The contractor shall take no action prejudicial to the right of the
> Government to recover therefore, and shall furnish to the Government,
> on request, all reasonable assistance in obtaining recovery.
>
> \(h\) [Government property for Government use only]{.underline}.
> Government property shall be used only for the performance of this
> contract.
>
> \(i\) [Property Management]{.underline}.
>
> \(1\) [Property Management System]{.underline}.
>
> \(i\) The contractor shall establish, administer, and properly
> maintain an approved property management system of accounting for and
> control, utilization, maintenance, repair, protection, preservation,
> and disposition of Government property in its possession under the
> contract. The contractor\'s property management system shall be
> submitted to the contracting officer for approval and shall be
> maintained and administered in accordance with sound business
> practice, applicable Federal Property Management regulations and
> Department of Energy Property Management regulations, and such
> directives or instructions which the contracting officer may from time
> to time prescribe.
>
> \(ii\) In order for a property management system to be approved, it
> must provide for:
>
> \(A\) Comprehensive coverage of property from the requirement
> identification, through its life cycle, to final disposition;
>
> \(B\) Employee personal responsibility and accountability for
> Government-owned property;
>
> \(C\) Full integration with the contractor\'s other administrative and
> financial systems; and
>
> \(D\) A method for continuously improving property management
> practices through the identification of best practices established by
> \"best in class\" performers.
>
> \(iii\) Approval of the contractor\'s property management system shall
> be contingent upon the completion of the baseline inventory as
> provided in subparagraph (i)(2) of this clause.
>
> \(2\) [Property Inventory]{.underline}.
>
> \(i\) Unless otherwise directed by the contracting officer, the
> contractor shall within six months after execution of the contract
> provide a baseline inventory covering all items of Government
> property.
>
> \(ii\) If the contractor is succeeding another contractor in the
> performance of this contract, the contractor shall conduct a joint
> reconciliation of the property inventory with the predecessor
> contractor. The contractor agrees to participate in a joint
> reconciliation of the property inventory at the completion of this
> contract. This information will be used to provide a baseline for the
> succeeding contract as well as information for closeout of the
> predecessor contract.
>
> \(j\) The term \"contractor\'s managerial personnel\" as used in this
> clause means the contractor\'s directors, officers and any of its
> managers, superintendents, or other equivalent representatives who
> have supervision or direction of all or substantially all of:
>
> \(1\) The contractor\'s business; or
>
> \(2\) The contractor\'s operations at any one facility or separate
> location at which this contract is being performed; or
>
> \(3\) The contractor\'s Government property system and/or a Major
> System Acquisition or Major Project as defined in DOE Order 4700.1
> (Version in effect on effective date of contract).
>
> \(k\) The contractor shall include this clause in all cost
> reimbursable subcontracts.

# 

#