```

[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Rules and Regulations]
[Pages 7685-7694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1320]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / 
Rules and Regulations

[[Page 7685]]

DEPARTMENT OF ENERGY

10 CFR Part 1023

48 CFR Parts 901, 902, 903, 904, 906, 907, 908, 909, 911, 914, 915, 
916, 917, and 952

RIN 1991-AB81

(General Provisions) Contract Appeals and the Acquisition 
Regulation: General, Acquisition Planning, and Contracting Methods and 
Contract Types

AGENCY: Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) regulations on Acquisition 
Planning, and Contracting Methods and Contract Types to make changes to 
conform to the Federal Acquisition Regulation (FAR), remove out-of-date 
coverage, and update references. Today's rule does not alter 
substantive rights or obligations under current law.

DATES: Effective Date: March 14, 2011.

FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by 
e-mail, barbara.binney@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    L. Approval by the Office of the Secretary of Energy

I. Background

    This final rule amends the Department of Energy Acquisition 
Regulation (DEAR) and the DOE regulation at 10 CFR part 1023 which 
implements DOE's contract appeals procedures. DEAR subchapters A, B, 
and C have outdated sections that need to be updated for consistency 
with the Civilian Board of Contract Appeals (CBCA) provisions of 
Section 847 of the National Defense Authorization Act for Fiscal Year 
2006, Public Law 109-163, and provisions of the FAR and the Title 41, 
chapter 102--Federal Management Regulation. DOE is implementing these 
provisions but they are not yet reflected in the DEAR.
    DOE is also removing regulations in 10 CFR part 1023 that have been 
made obsolete by the establishment of the CBCA within the General 
Services Administration. DOE has already adjusted its internal 
procedures to address the CBCA jurisdiction.
    With the amended changes to Subchapters A, B, and C, the DEAR would 
conform to the FAR, the Title 41, chapter 101--Federal Property 
Management Regulation, and the Federal Management Regulation. The 
purpose of this rule is to update the existing DEAR to conform it to 
the FAR. Changes are to DEAR parts 901, 902, 903, 904, 906, 907, 908, 
909, 911, 914, 915, 916, 917, and 952. No changes are being made to 
DEAR parts 905, 910, and 912 at this time. None of today's conforming 
changes are substantive or of a nature to cause any significant expense 
for DOE or its contractors.

II. Discussion

    DOE published a notice of proposed rulemaking on July 1, 2010 (75 
FR 38042), with a public comment period ending on August 2, 2010. DOE 
received no comments.
    DOE amends the 10 CFR part 1023 as follows:
    1. DOE removes from the regulation 10 CFR part 1023 made obsolete 
by the termination of the Energy Board of Contract Appeals and the 
establishment of the Civilian Board of Contract Appeals. Section 847 of 
the National Defense Authorization Act for Fiscal Year 2006, Public Law 
109-163 established within the General Services Administration the 
Civilian Board of Contract Appeals and terminates authority for the 
Energy Board of Contract Appeals.
    DOE amends the DEAR as follows:
    2. Section 901.101 is revised to add ``(Chapter 1 of Title 48 of 
the Code of Federal Regulations (CFR))'' to provide the citation to the 
FAR's CFR chapter.
    3. Section 901.102 is removed and redesignated as 901.103 to 
conform to the FAR. It also is revised to add ``Senior'' before 
``Procurement Executive'' and to clarify that there are two Senior 
Procurement Executives, one for the National Nuclear Security 
Administration (NNSA) and the other for the rest of the Department of 
Energy (DOE). The section is further revised to add a reference to the 
more recent and separate delegation for the NNSA Senior Procurement 
Executive from the Administrator of the NNSA, and update citation 
references to the United States Code.
    4. Section 901.103 is redesignated as 901.104. That section is also 
revised to clarify that the DEAR applies to NNSA acquisitions.
    5. Section 901.104-1 is redesignated as 901.105-1. That section is 
revised to add the CFR citation and the Web site reference for the 
electronic CFR.
    6. Section 901.104-2 is redesignated as 901.105-2. In addition, it 
is moved to update the cite in paragraph (b) from 1.104-2(b) to 1.105-
2(b) to conform to the FAR.
    7. Section 901.104-3 is redesignated as 901.105-3 which is revised 
to add the Web site reference to view the electronic DEAR.
    8. Section 901.105 is redesignated as 901.106. The title of the 
redesignated 901.106 is revised to read ``OMB approval under the 
Paperwork Reduction Act'' to conform to the FAR. In addition, the 
Office of Management and Budget (OMB) acronym is spelled out. The 
paragraph is further revised to remove the redundant FAR text and the 
reference to canceled OMB control number 1910-5103.
    9. Section 901.301-70 paragraph (a) is revised to add a reference 
to the Federal Management Regulation to conform to the FMR. The 
paragraph is also revised to state that the Department of Energy

[[Page 7686]]

Acquisition Guide provides procedural guidance for the acquisition 
community and provides the Web link to the guide.
    10. Subpart 901.6 is revised to add ``Career Development,'' to the 
title of this subpart.
    11. Section 901.601 paragraph (a) is revised to add the contracting 
authority for NNSA. This paragraph explains the authorities for the 
Senior Procurement Executives for DOE and NNSA. Paragraph (b) is 
revised to clarify that both of the Senior Procurement Executives have 
been authorized to perform functions set forth at FAR 1.601(b).
    12. Section 901.602-3 is revised to clarify that the Senior 
Procurement Executives are authorized to ratify unauthorized 
commitments.
    13. Section 901.603 is revised by adding references to DOE Order 
361.1B, Acquisition Career Management Program and DOE Order 541.1B, 
Appointment of Contracting Officers and Contracting Officer 
Representatives, or their respective successor orders.
    14. Part 902 is revised by adding subpart 902.1 consisting of 
902.101, Definitions, to define the ``Agency Head or Head of the 
Agency'', the ``Department of Energy'', and the ``Senior Procurement 
Executive'' and by removing 902.200 in its entirety and adding the 
clause instruction at 902.201 to conform to the FAR.
    15. Section 903.303 is amended in paragraph (a) to add ``Senior'' 
before ``Procurement Executive''.
    16. Subpart 903.4 Contingent Fees is amended at 903.405 to revise 
the section heading.
    17. Section 903.405 is revised to delete the reference to use 
Standard Form 119, which is outdated, but retains the direction that 
the chief of the contracting office seek review by counsel before 
initiating appropriate action.
    18. Section 903.603 in paragraph (a) removes the first occurrence 
of ``FAR''.
    19. Subpart 903.7--Voiding and Rescinding Contracts is added to 
state only the Head of the Contracting Activity can determine whether a 
contract is voided or rescinded.
    20. Subpart 903.10--Contractor Code of Business Ethics and Conduct 
is added to conform with the FAR.
    21. Section 903.1004 Contract clauses, paragraph (b)(2)(ii) is 
added to instruct the contracting officer to insert the DOE Web site 
address http://ig.energy.gov/hotline.htm in paragraph (b)(3) of the 48 
CFR 52.203-14 clause, Display of Hotline Poster(s).
    22. Section 904.7001 is amended by removing the last sentence which 
contained the definitions of ``contractor,'' ``contract,'' and 
``special nuclear material.''
    23. Section 904.7002 is amended by adding three definitions of 
terms that were previously described in the last sentence of section 
904.7001.
    24. Section 906.102 paragraph (d)(4) is rewritten to clarify the 
use of competitive selection procedures for the award of research 
proposals in accordance with Subpart 917.73 and FAR Part 35.
    25. Section 906.102 paragraph (d)(5) is rewritten to clarify the 
use of competitive selection procedures for award of program 
opportunity notices for commercial demonstrations in accordance with 
Subpart 917.72.
    26. Section 906.501 is revised to add the NNSA role in delegating 
authority for appointment of the agency and contracting activity 
competition advocates, and removing the last sentence referencing 
procedural guidance in internal directives.
    27. Part 907 is removed and reserved, pursuant to Federal 
Acquisition Circular 2005-09 which revised FAR Subpart 7.3 to be 
consistent with OMB Circular A-76 (Revised), Performance of Commercial 
Activities, dated May 29, 2003.
    28. Section 908.7107 on the procurement of industrial alcohol is 
amended by revising this section to reflect current Alcohol and Tobacco 
Tax and Trade Bureau, Department of Treasury regulations.
    29. Sections 909.400(a), 909.400(b), and 909.401 are amended by 
adding ``National Nuclear Security Administration (NNSA)'' after 
``DOE''.
    30. Section 909.401 is amended by removing ``10 CFR part 1036.'' 
and adding in its place ``2 CFR part 901.'' to update the citation.
    31. Part 909 is amended by adding to section 909.405 Effect of 
listing, by identifying the debarment exception authority for NNSA in 
paragraph (e) and by adding references to NNSA and the Excluded Parties 
List System (EPLS) in paragraphs (f) through (h), which supplement FAR 
9.405.
    32. Section 909.406-2 is amended in paragraph (c) by adding ``DOE 
and NNSA'' and revising punctuation in paragraphs (c)(1) and (d)(1).
    33. Section 909.406-3(a)(1) is amended in the first sentence, by 
removing ``both the Deputy Assistant Secretary for Procurement and 
Assistance Management'' and adding in its place ``the appropriate 
Senior Procurement Executive'' to correct the title of the official and 
by removing ``1010.217(b), Cooperation with the Inspector General.'' 
and adding in its place ``1010.103, Reporting Wrongdoing.''
    34. Consistent with FAR 9.404, section 909.406-3(a)(2) is amended 
in paragraph (2) by revising punctuation; in subparagraph (iv) by 
adding ``or other identifying number for an individual'' as identifying 
information to be provided in a debarment referral; in subparagraphs 
(v) and (vii) adding ``and NNSA's''; and in subparagraph (vi) removing 
``Board of Contract Appeals; and'' and adding in its place ``Civilian 
Board of Contract Appeals or other fact-finding body; and''.
    35. Section 909.406-3(b)(2) is amended in the third sentence by 
removing ``refer the matter to the Energy Board of Contract Appeals'' 
and adding in its place ``appoint, and refer the matter to, a Fact-
Finding Official''.
    36. Section 909.406-3(b)(3) is amended in the first sentence by 
removing ``therefor''.
    37. Section 909.406-3(b)(4) is amended in the second through the 
fourth sentences by removing reference to the Energy Board of Contract 
Appeals and by adding in its place a reference to the Fact-Finding 
Official.
    38. Section 909.406-3(d)(4) is amended in the third through fifth 
sentences by removing reference to the Energy Board of Contract Appeals 
and adding in its place a reference to the Fact-Finding Official.
    39. Section 909.406-70(b) is amended in the third sentence, after 
``respondent'' by removing the rest of the sentence.
    40. Section 909.407 adds a new section heading.
    41. Consistent with FAR 9.404, section 909.407-3 is amended in 
paragraph (e)(1)(vii) by removing mention of GSA and by adding EPLS to 
update the name of the listing.
    42. Section 915.201 is amended by revising the section heading.
    43. Section 915.305(d) is amended to remove ``48 CFR (DEAR)'' in 
the second sentence.
    44. Sections 915.404-2 paragraph (a)(1) in two places; 915.404-2-70 
paragraphs (a)(1) and (a)(2); 915.404-4-70-4 paragraph (a); and 
915.404-4-70-7 paragraph (b) are amended by removing the dollar values 
and adding the reference to 48 CFR 15.403-4(a)(1).
    45. Section 915.404-4(c)(4)(i) is amended by removing ``profit and 
fees'' and adding ``price and fee''.
    46. Section 915.404-4-70-2 is amended by renumbering the table in 
paragraph (d) to conform to the DOE Form 42.20.23, Weighted Guidelines.
    47. Section 915.404-4-72 is amended by removing ``916.404-2'' and 
adding ``916.405-2'' to update the reference to conform to FAR 16.405-
2.

[[Page 7687]]

    48. Section 916.203-4(d)(2) is amended by removing ``(FAR)''.
    49. Section 916.307 is amended by adding a paragraph (a) which 
provides direction to the contracting officer to modify paragraph (a) 
of clause 48 CFR 52.216-7 by adding the phrase ``as supplemented by 
subpart 931.2 of the DEAR'' after ``FAR subpart 31.2''.
    50. Section 917.602 is amended to remove ``that'' in the second 
sentence of paragraph (c) and adding in its place ``than''.
    51. Section 917.7301-1 is amended by removing paragraphs (c) and 
(d). This information is internal guidance and has been moved to DOE's 
Acquisition Guide.
    52. Section 917.7401 is amended by adding in the first paragraph 
before the first sentence, ``The acquisition of real estate requires 
the involvement of a DOE Certified Realty Specialist, as specified at 
917.7402.'' This amendment adds clarity to the processes of the DEAR 
and conforms to DOE Order 430.1B.
    53. Section 917.7401(b) is amended by removing paragraph (b) in its 
entirety and adding in its place, ``(b) Lease for which DOE will 
reimburse the contractor for the pre-approved costs incurred under the 
lease.'' This adds clarity to the DEAR and conforms to DOE Order 
430.1B.
    54. Section 917.7402 is amended in the first sentence by changing 
the punctuation; and in paragraph (b) adding ``acquisition option 
considerations with the best'' between the words ``cost,'' and 
``acquisition method'' and removing ``and property appraisal reports; 
and'' and adding in its place ``property appraisal reports, and include 
the review and approval by the applicable DOE Certified Realty 
Specialist in accordance with DOE Order 430.1B, or its successor 
version; and''. This adds clarity to the DEAR and conforms to the DOE 
Order 430.1B.
    55. Section 917.7402(c)(2) and (4) is amended in paragraph (c)(2) 
by adding ``approved by a DOE Certified Realty Specialist'' and in 
paragraph (c)(4) by removing ``and regulations applicable to real 
estate management.'' and adding in its place ``, regulations, and the 
DOE Order 430.1B, or its successor version, applicable to real estate 
acquisition.'' This adds clarity to the DEAR and conforms to the DOE 
Order 430.1B.
    56. Section 917.7402(d) is amended by adding that any real property 
actions require the involvement of the applicable DOE Certified Realty 
Specialist.
    57. Section 917.7403 is amended in the title by removing 
``Application.'' and adding in its place ``Contract clause.''; by 
removing ``48 CFR'' before the clause number; by adding ``, Acquisition 
of Real Property,'' after ``952.217-70''; by removing ``or'' and adding 
in its place ``including''; and by adding ``of real property'' after 
``contractor acquisitions''.
    58. Section 952.202-1 is amended to remove the included definitions 
and to direct contracting officers to supplement clause 48 CFR 52.202-1 
by inserting paragraph (c). These changes are made to conform to 
revised part 902.
    59. Clause 952.204-2 and provision 952.204-73 are amended to 
encourage contractors to submit information through the use of the 
online tool and to send a copy of standard form 328 to the contracting 
officer.
    60. Clause 952.204-71 is amended in paragraph (b) by adding ``which 
may involve making unclassified information about nuclear technology 
available to sensitive foreign nations'' after ``subcontracts''. This 
phrase is added to provide clarity for subcontractor flow down pursuant 
to DEAR 904.404(d)(3).
    61. Clause 952.217-70 is amended in subparagraph (a)(2) by removing 
this subparagraph in its entirety and adding in its place ``(2) Lease 
for which the Department of Energy will reimburse the incurred costs of 
the lease as a reimbursable contract cost''. This change is made to add 
clarity on reimbursements for leases.
    62. Throughout, sections are amended by removing ``FAR'' and adding 
``48 CFR'', by removing ``DEAR'' and adding ``48 CFR'', and by updating 
other CFR citations or changing punctuation.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this rule is not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the United 
States Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or if it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
an agency prepare an initial regulatory flexibility analysis for any 
regulation for which a general notice or rulemaking is required, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities 
(5 U.S.C. 605(b)). This rule updates references in the DEAR that apply 
to public contracts and does not impose any additional requirements on 
small businesses. Today's rule does not alter any substantive rights or 
obligations and, consequently, today's rule will not have a significant 
cost or administrative impact on contractors, including small entities. 
On the basis of the foregoing, DOE certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking. DOE's certification and supporting 
statement of factual basis will be provided to the Chief Counsel for 
Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b).

D. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Existing burdens

[[Page 7688]]

associated with the collection of certain contractor data under the 
DEAR have been cleared under OMB control number 1910-4100.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR are strictly procedural (categorical 
exclusion A6). Therefore, today's rule does not require an 
environmental impact statement or environmental assessment pursuant to 
NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined today's rule and has determined that it does 
not preempt State law and does not have a substantial direct effect on 
the States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. No further action is required by 
Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a written assessment of costs and 
benefits of any rule imposing a Federal mandate with costs to State, 
local or Tribal governments, or to the private sector, of $100 million 
or more. This rule does not impose any Federal mandate on State, local 
or Tribal governments or on the private sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rulemaking or policy that may 
affect family well-being. This rule will have no impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's rule is not a significant energy action. Accordingly, DOE has 
not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

K. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    As required by 5 U.S.C. 801, the Department will report to Congress 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(3).

L. Approval by the Office of the Secretary of Energy

    Issuance of today's rule has been approved by the Office of the 
Secretary.

List of Subjects

10 CFR Part 1023

    Administrative practice and procedure, Claims, Equal access to 
justice, Government contracts, Government procurement, Lawyers.

48 CFR Parts 901, 902, 903, 904, 906, 907, 908, 909, 911, 914, 915, 
916, 917, and 952

    Government procurement.

    Issued in Washington, DC, on January 13, 2011.
Patrick M. Ferraro,
Acting Director, Office of Procurement and Assistance Management, 
Department of Energy.
Joseph F. Waddell,
Director, Office of Acquisition and Supply Management, National Nuclear 
Security Administration.
    For the reasons set out in the preamble, the Department of Energy 
amends Chapter X of Title 10 and Chapter 9 of Title 48 of the Code of 
Federal Regulations as set forth below.

TITLE 10--ENERGY

PART 1023--[REMOVED]

0
1. Under the authority of Section 847 of the National Defense 
Authorization Act for Fiscal Year 2006, Public Law 109-163, 10 CFR 
chapter X is amended by removing part 1023.

TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. Authority citations continue to read as follows:
0
a. For parts 901, 903, 904, 906, 908, 909, 914, 915, 916, and 917, the 
authority citation continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

[[Page 7689]]

0
b. For parts 911 and 952 the authority citations continue to read as 
follows:

    Authority:  42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.

PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 901.1--Purpose, Authority, Issuance

901.101  [Amended]

0
3. Section 901.101 is amended by adding ``(Chapter 1 of Title 48 of the 
Code of Federal Regulations (CFR))'' at the end of the sentence.

901.102, 901.103, 901.104, 901.104-1, 901.104-2, 901.104-3, and 
901.105  [Redesignated as 901.103, 901.104, 901.105, 901.105-1, 
901.105-2, 901.105-3, and 901.106]

0
4. Redesignate sections 901.102, 901.103, 901.104, 901.104-1, 901.104-
2, 901.104-3, and 901.105 as sections 901.103, 901.104, 901.105, 
901.105-1, 901.105-2, 901.105-3, and 901.106, respectively.

0
5. Newly redesignated section 901.103 is revised to read as follows:

901.103  Authority.

    The DEAR and amendments thereto are issued by the Senior 
Procurement Executives of the Department of Energy (DOE) and the 
National Nuclear Security Administration (NNSA). The DOE Senior 
Procurement Executive delegation is pursuant to a delegation from the 
Secretary of Energy in accordance with the authority of section 644 of 
the Department of Energy Organization Act (42 U.S.C. 7254), section 
205(c) of the Federal Property and Administrative Services Act of 1949, 
as amended, (40 U.S.C. 121(c)(2)), and other applicable laws. The NNSA 
Senior Procurement Executive delegation is pursuant to a delegation 
from the Administrator of the NNSA, in accordance with section 3212 of 
the National Nuclear Security Administration Act (50 U.S.C. 2402), 
section 205(c) of the Federal Property and Administrative Services Act 
of 1949, as amended, (40 U.S.C. 121(c)(2)), and other applicable laws.

901.104  [Amended]

0
6. Newly redesignated 901.104 is amended by adding ``and NNSA'' after 
the acronym ``DOE.''

0
7. Revise newly redesignated 901.105-1 to read as follows:

901.105-1  Publication and code arrangement.

    (a) The DEAR and its subsequent changes are published in the 
Federal Register, cumulative form in the Code of Federal Regulations 
(CFR), and Government Printing Office's Electronic CFR at http://ecfr.gpoaccess.gov.
    (b) The DEAR is issued as Chapter 9 of Title 48 of the CFR.

901.105-2  [Amended]

0
8. Amend newly redesignated 901.105-2(b) by removing ``(FAR)'' before 
``48'' and removing ``1.104-2(b)'' and adding in its place ``1.105-
2(b)''.

901.105-3  [Amended]

0
9. Amend newly redesignated 901.105-3 by adding ``or viewed on line at 
http://ecfr.gpoaccess.gov or at http://management.energy.gov/DEAR.htm'' 
at the end of the sentence.

0
10. Revise newly redesignated 901.106 to read as follows:

901.106  OMB approval under the Paperwork Reduction Act.

    The Office of Management and Budget (OMB) control number for the 
collection of information under 48 CFR chapter 9 is 1910-4100.

Subpart 901.3--Agency Acquisition Regulations

0
11. Section 901.301-70 is revised to read as follows:

901.301.70  Other issuances related to acquisition.

    (a) In addition to the FAR and DEAR, there are other issuances 
which deal with acquisition. Among these are the Federal Property 
Management Regulation, the Federal Management Regulation, the DOE 
Property Management Regulation, and DOE Directives. The Department also 
maintains the DOE Acquisition Guide (``the Guide''), which has 
procedural guidance for the acquisition community. The DOE Acquisition 
Guide serves this purpose by identifying relevant internal standard 
operating procedures to be followed by both procurement and program 
personnel who are involved in various aspects of the acquisition 
process. The Guide also is intended to be a repository of best 
practices found throughout the agency that reflect specific 
illustrations of techniques which might be helpful to all readers. The 
Guide is at http://management.energy.gov/policy_guidance/Acquisition_Guide.htm.

Subpart 901.6--Career Development, Contracting Authority, and 
Responsibilities

0
12. The heading of subpart 901.6 is revised to read as set forth above.

0
13. Section 901.601 is revised to read as follows:

901.601  General.

    (a) Contracting authority for DOE vests in the Secretary of Energy, 
and for NNSA in the Administrator.
    (1) The Secretary has delegated this authority to the DOE Senior 
Procurement Executive. The DOE Senior Procurement Executive has 
redelegated this authority to the DOE Heads of Contracting Activities 
(HCA). These delegations are formal written delegations containing 
specific dollar limitations and conditions. Each DOE HCA, in turn, 
makes formal contracting officer appointments for its contracting 
activity.
    (2) Contracting authority for NNSA vests in the Under Secretary for 
Nuclear Security, also known as the NNSA Administrator. The NNSA 
Administrator has delegated this authority, with specific dollar 
limitations and conditions to the NNSA Senior Procurement Executive. 
The NNSA Senior Procurement Executive has redelegated this authority to 
the NNSA Head of the Contracting Activities (HCA). Each NNSA HCA in 
turn makes formal contracting officer appointments for its contracting 
activity.
    (b) The Senior Procurement Executives have been authorized, without 
power of redelegation, to perform the functions set forth at 48 CFR 
1.601(b) regarding the assignment of contracting functions and 
responsibilities to another agency, and the creation of joint or 
combined offices with another agency to exercise acquisition functions 
and responsibilities.

0
14. Section 901.602-3 is amended by revising paragraph (b)(2), and 
removing from paragraph (b)(3), the term ``Procurement Executive'' and 
adding in its place ``DOE and NNSA Senior Procurement Executives''.
    The revision reads as follows:

901.602-3  Ratification of unauthorized commitments.

    (b)(2) The Senior Procurement Executives are authorized to ratify 
unauthorized commitments.
* * * * *
0
15. Sections 901.603, 901.603-1, and 901.603-70 are added to subpart 
901.6 to read as follows:

901.603  Selection, appointment, and termination of appointment.

901.603-1  General.

    The DOE Order 361.1B, Acquisition Career Management Program, or its

[[Page 7690]]

successor order, sets forth the requirements and responsibilities for 
the DOE and NNSA Acquisition Career Development Program.

901.603-70  Appointment of contracting officers and contracting 
officer's representatives.

    See the DOE Order 541.1B, Appointment of Contracting Officers and 
Contracting Officer Representatives, or its successor order, for 
procedures on the appointment of contracting officers and contracting 
officer's representatives.

0
16. Part 902 is revised to read as follows:

PART 902--DEFINITIONS OF WORDS AND TERMS

Sec.
Subpart 902.1--Definitions
902.101 Definitions.
Subpart 902.2--Definitions Clause
902.201 Contract clause.

    Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

Subpart 902.1--Definitions

902.101  Definitions.

    Agency Head or Head of the Agency means--
    (1) For the Department of Energy (DOE)--
    (i) The Secretary;
    (ii) The Deputy Secretary; or
    (iii) Under Secretaries of the Department of Energy.
    (2) For the National Nuclear Security Administration (NNSA) the 
Administrator, also known as the Under Secretary of Nuclear Security.
    Department of Energy (DOE) means, as used in the DEAR, the 
Department of Energy and includes the National Nuclear Security 
Administration (NNSA), unless otherwise specified.
    Senior Procurement Executive means for the Department of Energy, 
the Director, Office of Procurement and Assistance Management and for 
the National Nuclear Security Administration, the Director, Office of 
Acquisition and Supply Management.

Subpart 902.2--Definitions Clause

902.201  Contract clause.

    Insert the clause at 952.202-1, Definitions, in solicitation and 
contracts that exceed the simplified acquisition threshold.

PART 903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

903.303  [Amended]

0
17. Section 903.303 is amended by:
0
a. Adding ``Senior'' before ``Procurement Executive'' in the first 
sentence of paragraph (a); and
0
b. Removing ``FAR'' from the first sentence, both occurrences, and 
adding in its place ``48 CFR''.

0
18. Section 903.405 is revised to read as follows:

903.405  Misrepresentations or violations of the Covenant Against 
Contingent Fees.

    (b) Before the Chief of the Contracting Office initiates 
appropriate action, the action shall be reviewed by Legal Counsel.

903.603  [Amended]

0
19. Section 903.603 is amended by:
0
a. Removing the first occurrence of ``FAR'' in paragraph (a); and
0
b. Removing ``FAR'' at its second occurrence in the first sentence and 
adding in its place ``48 CFR''.

0
20. Add a new subpart 903.7 consisting of 903.700 to read as follows:

Subpart 903.7--Voiding and Rescinding Contracts

903.700  Scope of subpart.

    The HCA is the designee for determining whether to void or rescind 
a contract. This authority is nondelegable.
0
21. Add a new subpart 903.10 consisting of 903.1004 to read as follows:

Subpart 903.10--Contractor Code of Business Ethics and Conduct

903.1004  Contract clauses.

    (b)(2)(ii) Insert the DOE Web site address http://ig.energy.gov/hotline.htm in paragraph (b)(3) of the 48 CFR 52.203-14 clause, Display 
of Hotline Poster(s).

PART 904--ADMINISTRATIVE MATTERS

904.404  [Amended]

0
22. Section 904.404 is amended by removing ``FAR'' in paragraph (d)(1) 
in the last sentence and adding in its place ``48 CFR''.

904.804  [Amended]

0
23. Section 904.804-1 is amended by removing ``FAR'' in paragraph (a) 
and adding in its place ``48 CFR''.

904.7001  [Amended]

0
24. Section 904.7001 is amended by removing ``as defined in 10 CFR part 
710'' from the first sentence and removing the last sentence in its 
entirety.

0
25. Section 904.7002 is amended by adding in alphabetical order new 
definitions for ``contract'', ``contractor'', and ``special nuclear 
material'' to read as follows:

904.7002  Definitions.

    Contract means the prime contract and the subcontract at any tier.
* * * * *
    Contractor means the contractor and the subcontractor at any tier.
* * * * *
    Special nuclear material means special nuclear material as defined 
in 10 CFR 710.5(a).

PART 906--COMPETITION REQUIREMENTS

0
26. Section 906.102 is amended in paragraph (d)(1) by removing ``FAR 
Subpart'' and adding in its place ``48 CFR subpart'', and revising 
paragraphs (d)(4) and (d)(5) to read as follows:

906.102  Use of competitive procedures.

    (d) * * *
    (4) Program research and development announcements shall follow the 
competitive selection procedures for the award of research proposals in 
accordance with subpart 917.73 and 48 CFR part 35.
    (5) Program opportunity notices for commercial demonstrations shall 
follow the competitive selection procedures for award of these 
proposals in accordance with subpart 917.72.

906.202  [Amended]

0
27. Section 906.202 is amended by removing ``FAR'' in paragraph (b)(1) 
and adding in its place ``48 CFR''.

906.304  [Amended]

0
28. Section 906.304 is amended by removing ``FAR'' in paragraph (c)(2) 
and adding in its place ``48 CFR''.

0
29. Section 906.501 is revised to read as follows:

906.501  Requirement.

    The Secretary of Energy and NNSA Administrator have delegated the 
authority for appointment of the agency and contracting activity 
competition advocates to the respective DOE and NNSA Senior Procurement 
Executives. The Senior Procurement Executives have redelegated 
authority to the Head of the Contracting Activity to appoint 
contracting activity competition advocates.

PART 907--[REMOVED AND RESERVED]

0
30. Under the authority of 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et 
seq., Part 907 is removed and reserved.

[[Page 7691]]

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

908.7106  [Amended]

0
31. Section 908.7106 is amended by removing ``FAR'' in paragraph (b) 
and adding in its place ``48 CFR part''.

0
32. Section 908.7107 is revised to read as follows:

908.7107  Procurement and use of industrial alcohol.

    (a) This section covers the procurement of industrial alcohol by 
DOE or authorized contractors and the applicable policies and 
delegations of authority to submit industrial alcohol user application 
to procure and use tax-free alcohol or specially denatured spirits. To 
the fullest extent practicable, industrial alcohol for use by DOE or 
its contractors shall be procured on a tax-free basis.
    (b) The procurement of tax-free alcohol or specially denatured 
spirits shall be conducted in accordance with the regulations, policy, 
and procedures of the Alcohol and Tobacco Tax and Trade Bureau (TTB), 
of the Department of Treasury. The applicable TTB regulations and forms 
may be accessed at the following Web site: http://www.ttb.gov/foia/err.shtml#regulations. For further information, contact the Alcohol and 
Tobacco Tax and Trade Bureau, Director, National Revenue Center, 550 
Main St., Suite 8002, Cincinnati, OH 45202-5215 or toll free at 1-877-
882-3277.
    (c) The applying office should coordinate, as necessary, with the 
local State Alcohol Control Board, or its equivalent, to obtain the 
appropriate State license.
    (1) Tax-free alcohol. TTB regulations relating to the procurement 
and use of alcohol free of tax, by Government agencies, are set forth 
in 27 CFR Part 22, subpart N, Sec. Sec.  22.171 to 22.176.
    (2) Specially denatured spirits. TTB regulations relating to the 
acquisition and use of alcohol free of tax, by Government agencies, are 
set forth in 27 CFR Part 20, subpart N, Sec. Sec.  20.241 to 20.245.
    (d) For the user permits to procure and use tax-free alcohol and 
specially denatured spirits submit the application on the TTB Form 
5150.22, ``Application for Industrial Alcohol User Permit,'' (or the 
current TTB form). When permits are no longer required, they should be 
forwarded to the Alcohol and Tobacco Tax and Trade Bureau for 
cancellation. Industrial alcohol procured by use of the TTB form 
referred to in this subsection shall be used exclusively on DOE work.
    (e) The Senior Procurement Executive (SPE) has the authority to 
sign the TTB application, Form 5150.22. The SPE may delegate this 
authority to sign the application to specifically named DOE personnel. 
Requests for new authorizations or changes to existing authorizations 
shall be submitted by letter to the SPE. A copy of the TTB approved 
permit shall be sent to the SPE.
    (f) Abandoned and forfeited alcohol which has come into the custody 
or control of a Federal agency may be obtained by following the 
procedure set forth in the FMR at 41 CFR part 102-41.

PART 909--CONTRACTOR QUALIFICATIONS

909.400  [Amended]

0
33. Section 909.400 is amended:
0
a. In paragraph (a), by adding ``and National Nuclear Security 
Administration (NNSA)''; after ``(DOE)'';
0
b. In paragraph (a), by adding ``and, NNSA'', after ``DOE''; and
0
c. In paragraph (b), by adding ``and NNSA'' after ``DOE''.

909.401  [Amended]

0
34. Section 909.401 is amended by:
0
a. Adding ``and NNSA''; after ``DOE''; and
0
b. Removing ``10 CFR part 1036.'' and adding in its place ``2 CFR part 
901.''

0
35. Section 909.405 is revised to read as follows:

909.405  Effect of listing.

    (e) The Department of Energy may not solicit offers from, award 
contracts to or consent to subcontracts with contractors debarred, 
suspended, or proposed for debarment unless the Senior Procurement 
Executive makes a written determination justifying that there is a 
compelling reason for such action in accordance with 48 CFR 9.405(a). 
For NNSA, the Head of the Contracting Activity (HCA) makes the written 
determination justifying the compelling reason.
    (f) DOE or NNSA may disapprove or not consent to the selection (by 
a contractor) of an individual to serve as a principal investigator, as 
a project manager, in a position of responsibility for the 
administration of Federal funds, or in another key personnel position, 
if the individual is listed in the Excluded Parties List System (EPLS).
    (g) DOE or NNSA shall not conduct business with an agent or 
representative of a contractor if the agent's or representative's name 
is listed in the EPLS.
    (h) DOE or NNSA shall review the EPLS before conducting a pre-award 
survey or soliciting proposals, awarding contracts, renewing or 
otherwise extending the duration of existing contracts, or approving or 
consenting to the award, extension, or renewal of subcontracts.

909.406-2  [Amended]

0
36. Section 909.406-2 is amended by adding ``DOE and NNSA'' in 
paragraph (c) introductory text, first sentence, after ``The''.

0
37. Section 909.406-3 is amended by:
0
a. Removing from the first sentence in paragraph (a)(1), ``both the 
Deputy Assistant Secretary for Procurement and Assistance Management'' 
and adding in its place ``the appropriate Senior Procurement 
Executive''; and removing, ``Sec.  1010.217(b), Cooperation with the 
Inspector General.'' and adding in its place ``Sec.  1010.103, 
Reporting Wrongdoing.'';
0
b. Removing the colon at the end of the introductory text of paragraph 
(a)(2) and adding in its place ``--'';
0
c. Adding ``or other identifying number for an individual'' in 
paragraph (a)(2)(iv) after ``Number'';
0
d. Adding ``and NNSA's'' in paragraph (a)(2)(v) after ``DOE's'';
0
e. Removing ``Board of Contract Appeals; and'' in paragraph (a) (2)(vi) 
and adding in its place ``Civilian Board of Contract Appeals or other 
fact-finding body; and;'';
0
f. Adding ``and NNSA'' in paragraph (a)(2) (vii) after ``DOE'';
0
g. Removing ``refer the matter to the Energy Board of Contract 
Appeals'' in paragraph (b)(2) third sentence and adding in its place 
``appoint, and refer the matter to, a Fact-Finding Official'';
0
h. Removing ``therefor'' in paragraph (b)(3) first sentence; and
0
i. Revising paragraphs (b)(4) and (d)(4) to read as follows:

909.406-3  Procedures.

* * * * *
    (b) * * *
    (4) Fact-finding conference. The purpose of a fact-finding 
conference under this section is to provide the respondent an 
opportunity to dispute material facts through the submission of oral 
and written evidence; resolve facts in dispute; and provide the 
Debarring Official with findings of fact based, as applicable, on 
adequate evidence or on a preponderance of the evidence. The fact-
finding conference shall be conducted in accordance with rules 
consistent with 48 CFR 9.406-3(b). The Fact-Finding Official will 
notify the affected parties of the schedule for the hearing. The Fact-
Finding Official shall deliver written findings of fact to the 
Debarring Official (together with a

[[Page 7692]]

transcription of the proceeding, if made) within a certain time period 
after the hearing record closes as specified by the Fact-Finding 
Official. The findings shall resolve any disputes over material facts 
based upon a preponderance of the evidence, if the case involves a 
proposal to debar, or on adequate evidence, if the case involves a 
suspension. Since convictions or civil judgments generally establish 
the cause for debarment by a preponderance of the evidence, there 
usually is no genuine dispute over a material fact that would warrant a 
fact-finding conference for those proposed debarments based on 
convictions or civil judgments.
    (d) Debarring Official's decision. (4) The Debarring Official's 
final decision shall be based on the administrative record. In those 
actions where additional proceedings are necessary as to disputed 
material facts, written findings of fact shall be prepared and included 
in the final decision. In those cases where the contractor has 
requested and received a fact-finding conference, the written findings 
of fact shall be those findings prepared by the Fact-Finding Official. 
Findings of fact shall be final and conclusive unless, within 15 days 
of receipt of the findings, the Department or the respondent requests 
reconsideration, or unless set aside by a court of competent 
jurisdiction. The Fact-Finding Official shall be provided a copy of the 
Debarring Official's final decision.

909.406-70  [Amended]

0
38. Section 909.406-70 is amended by removing the words ``and, if a 
fact-finding conference under 909.406-3(b)(4) is pending (as in the 
case of a request for reconsideration of a suspension, where the 
proposed debarment is the subject of a fact-finding conference), a copy 
of the disposition shall be transmitted to the Energy Board of Contract 
Appeals'' in paragraph (b), third sentence.

909.407-3  [Amended]

0
39. Section 909.407-3 is amended by revising paragraph (e)(1)(vii) to 
read as follows:

909.407-3  Procedures.

* * * * *
    (e) * * *
    (1) * * *
    (vii) A statement that the respondent's name and address will be 
added to the EPLS; and
* * * * *

909.400, 909.403, 909.406, 909.407  [Amended]

0
40. In the table below, for each section indicated in the left column, 
remove the word indicated in the middle column from where it appears in 
the section, and add the word in the right column:

------------------------------------------------------------------------
             Section                    Remove                Add
------------------------------------------------------------------------
909.400(c)......................  ``FAR''...........  ``48 CFR''
909.403.........................  ``FAR''...........  ``48 CFR''
909.406-2(d)(1).................  ``FAR''...........  ``48 CFR''
909.406-70(a)...................  ``FAR''...........  ``48 CFR''
909.407-3(b)(2).................  ``FAR''...........  ``48 CFR''
909.407-3(e)(1)(v)..............  ``FAR''...........  ``48 CFR''
------------------------------------------------------------------------

PART 911--DESCRIBING AGENCY NEEDS

911.600  [Amended]

0
41. Section 911.600 is amended by removing ``FAR'' and adding in its 
place ``48 CFR part''.

PART 914--SEALED BIDDING

914.404, 914.407, 914.502  [Amended]

0
42. In the table below, for each section indicated in the left column, 
remove the word indicated in the middle column from where it appears in 
the section, and add the word in the right column:

------------------------------------------------------------------------
             Section                    Remove                Add
------------------------------------------------------------------------
914.404-1.......................  ``FAR''...........  ``48 CFR''
914.407-3(e) in 3 places........  ``FAR''...........  ``48 CFR''
914.407-4 in 2 places...........  ``FAR''...........  ``48 CFR''
914.502(c)......................  ``FAR''...........  ``48 CFR''
------------------------------------------------------------------------

PART 915--CONTRACTING BY NEGOTIATION

0
43. Section 915.201 is amended by revising the section heading to read 
as follows:

915.201  Exchanges with industry before receipt of proposals.

* * * * *

915.305  [Amended]

0
44. Section 915.305(d) is amended by removing ``48 CFR (DEAR)'' in the 
second sentence.

915.404-2  [Amended]

0
45. Section 915.404-2 is amended by removing ``$500,000'' in paragraph 
(a)(1), in two places, and adding in its place ``the threshold stated 
at 48 CFR 15.403-4(a)(1).''

915.404-2-70  [Amended]

0
46. Section 915.404-2-70 is amended by:
    (a) Removing ``$500,000'' in paragraph (a)(1), and adding in its 
place ``The threshold stated at 48 CFR 15.403-4(a)(1)''; and
    (b) Removing ``$1,000,000'' in paragraph (a)(2), and adding in its 
place ``Twice the threshold at 48 CFR 15.403-4(a)(1) for requiring cost 
or pricing data''.

915.404-4  [Amended]

0
47. Section 915.404-4(c)(4)(i) is amended in the first sentence by 
removing ``profit and fees'' and adding in its place ``price and fee''.

0
48. Section 915.404-4-70-2 paragraph (d) is revised to read as follows:

915.404-4-70-2  Weighted guidelines system.

* * * * *
    (d) The factors set forth in the following table are to be used in 
determining DOE profit objectives. The factors and weight ranges for 
each factor shall be used in all instances where the weighted 
guidelines are applied.

------------------------------------------------------------------------
               Profit factors                   Weight ranges (percent)
------------------------------------------------------------------------
I. Contractor Effort (Weights applied to
 cost):
  a. Material acquisitions:
    (1) Purchased parts.....................  1 to 3.
    (2) Subcontracted items.................  1 to 4.
    (3) Other materials.....................  1 to 3.
  b. Labor skills:
    (1) Technical and managerial:
        (a) Scientific......................  10 to 20.
        (b) Project management/               8 to 20.
         administration.
        (c) Engineering.....................  8 to 14.
    (2) Manufacturing.......................  4 to 8.
    (3) Support services....................  4 to 14.
  c. Overhead:
    (1) Technical and managerial............  5 to 8.
    (2) Manufacturing.......................  3 to 6.
    (3) Support services....................  3 to 7.
  d. Other direct costs.....................  3 to 8.
  e. G&A (General Management) expenses......  5 to 7.
II. Contract Risk (type of contract-weights   0 to 8.
 applied to total cost of items 4.a. thru
 4.e.).
III. Capital Investment (Weights applied to   5 to 20.
 the net book value of allocable facilities).
IV. Independent Research and Development:
  a. Investment in IR&D program (Weights      5 to 7.
   applied to allocable IR&D costs).
  b. Developed items employed (Weights        0 to 20.
   applied to total of profit $ for items
   4.a. thru 4.e.).
V. Special Program Participation (Weights     -5 to +5.
 applied to total of Profit $ for items 4.a.
 thru 4.e.).
VI. Other Considerations (Weights applied to  -5 to +5.
 total of Profits $ for items 4.a. thru
 4.e.).

[[Page 7693]]

 
VII. Productivity/Performance (special        (N/A).
 computation).
------------------------------------------------------------------------

915.404-4-70-4  [Amended]

0
49. Section 915.404-4-70-4 is amended by removing ``$500,000'' in 
paragraph (a), and adding in its place ``the threshold stated at 48 CFR 
15.403-4(a)(1)''.

915.404-4-70-7  [Amended]

0
50. Section 915.404-4-70-7 is amended by removing ``$500,000'' in 
paragraph (b), and adding in its place ``the threshold stated at 48 CFR 
15.403-4(a)(1)''.

915.404-4-72  [Amended]

0
51. Section 915.404-4-72 is amended by removing ``916.404-2'' in 
paragraph (a), and adding in its place ``916.405-2''.

915.207, 915.404  [Amended]

0
52. In the table below, for each section indicated in the left column, 
remove the word indicated in the middle column from where it appears in 
the section, and add the word in the right column:

----------------------------------------------------------------------------------------------------------------
                 Section                                Remove                                Add
----------------------------------------------------------------------------------------------------------------
915.207-70(e)(2)........................  ``FAR''...........................  ``48 CFR''
915.207-70(f)(2)(i).....................  ``FAR''...........................  ``48 CFR''
915.207-70(f)(5)........................  ``FAR''...........................  ``48 CFR''
915.404-2(a)(1) in the first sentence...  ``FAR''...........................  ``48 CFR''
915.404-4(c)(4)(i)......................  ``FAR''...........................  ``48 CFR''
915.404-4(d)............................  ``FAR''...........................  ``48 CFR''
915.404-4-70............................  ``FAR''...........................  ``48 CFR''
915.404-4-70-2(a).......................  ``FAR''...........................  ``48 CFR''
915.404-4-70-3, in the last sentence....  ``FAR''...........................  ``48 CFR''
915.404-4-71-1(a) in the introductory     ``DOE to''........................  ``DOE to''
 text.
----------------------------------------------------------------------------------------------------------------

PART 916--TYPES OF CONTRACTS

916.203  [Amended]

0
53. Section 916.203-4(d)(2) is amended by removing ``(FAR)''.

916.307  [Amended]

0
54. Section 916.307 is amended by:
0
a. Adding a new paragraph (a) to read set forth below; and
0
b. By removing ``FAR'' in paragraph (g) and adding in its place ``48 
CFR''.

916.307  Contract clauses.

    (a) When contracting with a commercial organization, modify 
paragraph (a) of the clause at 48 CFR 52.216-7 by adding the phrase 
``as supplemented by subpart 931.2 of the DEAR'' after ``FAR subpart 
31.2.''
* * * * *

PART 917--SPECIAL CONTRACTING METHODS

917.602  [Amended]

0
55. Section 917.602 is amended by removing ``that'' in the second 
sentence of paragraph (c) and adding in its place ``than''.

917.7200  [Amended]

0
56. Section 917.7200 is amended by removing ``non nuclear'' in 
paragraph (a) and adding in its place ``nonnuclear''.

917.7301  [Amended]

0
57. Section 917.7301-1 is amended by removing paragraphs (c) and (d).

0
58. Section 917.7401 is amended by adding a new sentence at the 
beginning of the introductory text and by revising paragraph (b) to 
read as follows:

917.7401  General.

    The acquisition of real estate requires the involvement of a DOE 
Certified Realty Specialist, as specified at 917.7402. * * *
* * * * *
    (b) Lease for which DOE will reimburse the contractor for the pre-
approved costs incurred under the lease.
* * * * *

0
59. Section 917.7402 is amended by:
0
a. Removing the colon from the end of the introductory text and adding 
in its place ``--'';
0
b. Revising paragraphs (b), (c)(2) and (4); and
0
c. Adding a new paragraph (d).
    The revisions and addition read as follows:

917.7402  Policy.

* * * * *
    (b) Acquisitions shall be justified, with documentation which 
describes the need for the acquisitions, general requirements, cost, 
acquisition option considerations with the best acquisition method to 
be used, site investigation reports, site recommended for selection, 
property appraisal reports, and include the review and approval by the 
applicable DOE Certified Realty Specialist in accordance with DOE Order 
430.1B, or its successor version; and
    (c) * * *
    (2) May exceed a one-year term, when the lease is for special 
purpose space funded by no-year appropriations and approved by a DOE 
Certified Realty Specialist. * * *
    (4) Shall be consistent with Government laws, regulations, and the 
DOE Order 430.1B, or its successor version, applicable to real estate 
acquisition.
    (d) Any real property actions require the involvement of the 
applicable DOE Certified Realty Specialist.

0
60. Section 917.7403 is revised to read as follows:

917.7403  Contract clause.

    The clause at 952.217-70, Acquisition of Real Property, shall be 
included in contracts including modifications where contractor 
acquisitions of real property are expected to be made.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
61. Section 952.202-1 is revised to read as follows:

952.202-1  Definitions.

    As prescribed in 902.201, insert the clause at 48 CFR 52.202-1, 
Definitions, in all contracts. The following shall be added to the 
clause as paragraph (c):
    (c) When a solicitation provision or contract clause uses a word or 
term that is defined in the Department of Energy Acquisition Regulation 
(DEAR) (48 CFR chapter 9), the word or term has the same meaning as the 
definition in 48 CFR 902.101 or the definition in the part, subpart, or 
section of 48 CFR chapter 9 where the provision or clause is prescribed 
in effect at the time the solicitation was issued, unless an exception 
in (a) applies.

0
62. Section 952.204-2 is amended by:
0
a. Revising the date of the clause; and

[[Page 7694]]

0
b. Adding in paragraph (j)(1) after the first sentence, two new 
sentences to read as follows:

952.204-2  Security.

* * * * *

SECURITY MAR 2011

* * * * *
    (j) * * *
    (1) * * * Contractors are encouraged to submit this information 
through the use of the online tool at https://foci.td.anl.gov. When 
completed the Contractor must print and sign one copy of the SF 328 and 
submit it to the Contracting Officer. * * *
* * * * *

0
63. Section 952.204-71 is amended by revising the clause date and 
paragraph (b) to read as follows:

952.204-71  Sensitive foreign nations controls.

* * * * *

SENSITIVE FOREIGN NATIONS CONTROLS MAR 2011

* * * * *
    (b) The provisions of this clause shall be included in any 
subcontracts which may involve making unclassified information about 
nuclear technology available to sensitive foreign nations.
* * * * *

0
64. Section 952.204-73 is amended by:
0
a. Revising the date of the provision; and
0
b. Adding two new sentences at the end of paragraph (a)(1).
    The revision and addition reads as follows:

952.204-73  Facility clearance.

* * * * *

FACILITY CLEARANCE MAR 2011

    (a) * * *
    (1) * * * Contractors are encouraged to submit this information 
through the use of the online tool at https://foci.td.anl.gov. When 
completed the Contractor must print and sign one copy of the SF 328 and 
submit it to the Contracting Officer.
* * * * *

952.209-72  [Amended]

0
65. Section 952.209-72 is amended by removing ``48 CFR'' in the 
introductory text.

952.217-70  [Amended]

0
66. Section 952.217-70 is amended by revising the date of the clause 
and paragraph (a)(2) to read as follows:

952.217-70  Acquisition of real property.

* * * * *

ACQUISITION OF REAL PROPERTY MAR 2011

* * * * *
    (a) * * *
    (2) Lease for which the Department of Energy will reimburse the 
incurred costs as a reimbursable contract cost.
* * * * *

952.204, 952.215, 952.216  [Amended]

0
67. In the table below, for each section indicated in the left column, 
remove the word indicated in the middle column from where it appears in 
the section, and add the word in the right column:

----------------------------------------------------------------------------------------------------------------
              Section                                Remove                                  Add
----------------------------------------------------------------------------------------------------------------
952.204-2(e) in the first sentence.  ``the information:''.................  ``the information--''
952.204-2(g) in the first sentence.  ``means:''...........................  ``means--''
952.204-2(h)(2)(i) in the first      ``A review must:''...................  ``a review must--''
 sentence.
952.204-2(h)(2)(iii) in the first    ``including those: (a)''.............  ``including those--(A)''
 sentence.
952.204-2(h)(2)(iv)................  ``10 CFR Part 707.4''................  ``10 CFR 707.4''
952.204-2(h)(2)(iv)................  ``10 CFR Part 707''..................  ``10 CFR part 707''
952.204-2(h)(2)(vi) in the           ``authorization:''...................  ``authorization--''
 introductory text.
952.204-2(l) in five places........  ``Subcontractor''....................  ``subcontractor''
952.204-2(l) in the second sentence  ``Subcontractors''...................  ``subcontractors''
952.204-2(l) in the second sentence  ``DEAR 952.204-73''..................  ``48 CFR 952.204-73''
952.215-70(a) in the second          ``DEAR 970.5203-3''..................  ``48 CFR 970.5203-3''
 sentence.
952.216-7..........................  ``FAR''..............................  ``48 CFR''
952.216-15 Alternate...............  ``FAR''..............................  ``48 CFR''
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-1320 Filed 2-10-11; 8:45 am]
BILLING CODE 6450-01-P
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