89720 Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Rules and Regulations 

DEPARTMENT OF ENERGY 

48 CFR Chapter 9 

RIN 1991–AC17 

Department of Energy Acquisition 

Regulation (DEAR) 

AGENCY: Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE or the Department) is publishing 

a final rule comprehensively revising its 

Acquisition Regulation in order to 

update and streamline the policies, 

procedures, provisions and clauses that 

are applicable to the Department’s 

contracts. This rulemaking updates or 

eliminates coverage that is obsolete or 

that unnecessarily duplicates the 

Federal Acquisition Regulation (FAR) 

and retains only that coverage which 

either implements or supplements the 

FAR for the award and administration of 

the DOE’s contracts. The rule adds 

several new clauses and amends several 

existing clauses in order to promote 

more uniform application of the DOE’s 

contract award and administration 

policies. 

DATES: This rule is effective December 

13, 2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jason Taylor, U.S. Department of 

Energy, Office of Management, Office of 

Acquisition Management at (301) 518– 

2257 or by email at jason.taylor@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Renumbering 

III. Discussion of Comments and Changes 

From the Proposed Rule 

IV. Section-by-Section Analysis 

V. Regulatory Review 

A. Review Under Executive Orders 12866, 

13563 and 14094 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act 

D. Review Under the National 

Environmental Policy Act 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

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 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Congressional Notification 

VI. Approval of the Office of the Secretary 

I. Background 

The Federal Acquisition Regulation 

(FAR), 48 CFR chapter 1, is the primary 

regulation for use by all executive 

agencies in their acquisition of supplies 

and services with appropriated funds. 

The Office of Federal Procurement 

Policy Act (OFPP Act), 41 U.S.C. 1702, 

authorizes the issuance of agencyspecific acquisition regulations that 

implement or supplement the FAR. 

Pursuant to this authority, DOE and the 

National Nuclear Security 

Administration (NNSA) promulgated 

the Department of Energy Acquisition 

Regulation (DEAR), set forth at 48 CFR 

chapter 9, to provide uniform 

acquisition policies and procedures for 

DOE and NNSA. This final rule to 

update the DEAR is issued under that 

same authority. 

Over the past decade, DOE has 

worked to improve the way it conducts 

business with its contractors by 

strengthening contract management 

policies and practices and 

implementing new processes 

throughout the Department complex. In 

the spirit of alleviating unnecessary 

regulatory burdens while remaining 

prudent stewards of taxpayer resources, 

DOE undertook a review of its 

acquisition framework, including the 

DEAR. 

As a result of that process, DOE 

issued a notice of proposed rulemaking 

(NOPR) on October 26, 2023, proposing 

amendments to the DEAR to update or 

remove obsolete provisions, incorporate 

class deviations, streamline policies and 

procedures where appropriate, and 

implement ten new clauses which 

would standardize clause language and 

eliminate the need for various local 

clauses in current use (88 FR 73644). In 

response to comments received on the 

NOPR, DOE has made several changes 

to the proposed language, as discussed 

in more detail in section III of this 

document but left the majority of the 

proposed language unchanged. This 

final rule amends the DEAR to correct 

inconsistencies, remove provisions 

which unnecessarily duplicate coverage 

contained in the FAR, delete outdated 

information, and renumber DEAR 

provisions where required, in order to 

comport with the FAR numbering. The 

final rule includes revisions to 48 CFR 

parts 901, 902, 903, 904, 908, 909, 912, 

915, 916, 917, 922, 923, 925, 926, 927, 

931, 932, 933, 935, 936, 941, 942, 945, 

951, 952, and 970. 

II. Renumbering 

As discussed in the proposed rule, 

DOE is renumbering existing and 

proposed DEAR sections that have 

section numbers containing two dashes 

(e.g., section 915.404–4–70), in order to 

conform with the FAR numbering 

system as outlined at 48 CFR 1.105–2. 

DOE is also making conforming changes 

to other sections of the DEAR as 

necessary to implement the new 

numbering. Finally, DOE is also 

renumbering existing DEAR sections in 

subparts 923 and 970.23 as necessary to 

conform with the recent restructuring of 

FAR Part 23 accomplished under FAR 

Case 2022–006. Conforming changes 

have been made in other sections of the 

DEAR as necessary to implement the 

new numbering. The following table 

provides an overview of the 

redesignations: 

Previous section New section 

Subpart 901.3: 

901.301.70 ......... 901.301–70 

Subpart 915.4: 

915.404–2 .......... 915.404–2000 

915.404–2–70 .... 915.404–2700 

915.404–4 .......... 915.404–4000 

915.404–4–70 .... 915.404–4700 

915.404–4–70–1 915.404–4710 

915.404–4–70–2 915.404–4720 

915.404–4–70–3 915.404–4730 

915.404–4–70–4 915.404–4740 

915.404–4–70–5 915.404–4750 

915.404–4–70–6 915.404–4760 

915.404–4–70–7 915.404–4770 

915.404–4–70–8 915.404–4780 

915.404–4–71 .... 915.404–4800 

915.404–4–71–1 915.404–4810 

915.404–4–71–2 915.404–4820 

915.404–4–71–3 915.404–4830 

915.404–4–71–4 915.404–4840 

915.404–4–71–5 915.404–4850 

915.404–4–71–6 915.404–4860 

915.404–4–72 .... 915.404–4900 

Subpart 923.1: 

923.101 .............. 923.170 

923.102 .............. 923.171 

923.103 .............. 923.172 

Subpart 923.5: Subpart 926.5: 

923.500 .............. 926.500 

923.570 .............. 926.570 

923.570–1 .......... 926.570–1 

923.570–2 .......... 926.570–2 

923.570–3 .......... 926.570–3 

Subpart 923.9: Subpart 923.4: 

923.903 .............. 923.404 

Subpart 927.2: 

927.206–1 .......... 927.202 

927.206–2 .......... 927.202–5 

927.207 .............. 927.203 

927.207–1 .......... 927.203–1 

Subpart 927.3: 

927.300 .............. 927.302 

927.302 .............. 927.302–70 

Subpart 927.4: 

927.402–2 .......... 927.402 

927.404 .............. 927.404–70 

927.404–70 ........ 927.404–71 

Subpart 970.04: 

970.0407–1 ........ 970.0407–100 

970.0407–1–1 .... 970.0407–110 

970.0407–1–2 .... 970.0407–120 

970.0407–1–3 .... 970.0407–130 

Subpart 970.15: 


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Previous section New section 

970.1504–1 ........ 915.1504–100 

970.1504–1–1 .... 970.1504–101 

970.1504–1–2 .... 970.1504–102 

970.1504–1–3 .... 970.1504–103 

970.1504–1–4 .... 970.1504–104 

970.1504–1–5 .... 970.1504–105 

970.1504–1–6 .... 970.1504–106 

970.1504–1–7 .... 970.1504–107 

970.1504–1–8 .... 970.1504–108 

970.1504–1–9 .... 970.1504–109 

970.1504–1–10 .. 970.1504–110 

970.1504–1–11 .. 970.1504–111 

970.1504–2 ........ 970.1504–200 

970.1504–2–1 .... 970.1504–201 

970.1504–3 ........ 970.1504–300 

970.1504–4 ........ 970.1504–400 

Subpart 970.22: 

970.2201–1 ........ 970.2201–100 

970.2201–1–1 .... 970.2201–110 

970.2201–1–2 .... 970.2201–120 

970.2201–1–3 .... 970.2201–130 

970.2201–2 ........ 970.2201–200 

970.2201–2–1 .... 970.2201–210 

970.2201–2–2 .... 970.2201–220 

Subpart 970.23: 

970.2303–2–70 .. 970.2303–2 

970.2305 ............ 970.2605 

970.2305–1 ........ 970.2605–1 

970.2305–2 ........ 970.2605–2 

970.2305–3 ........ 970.2605–3 

970.2305–4 ........ 970.2605–4 

970.2306 ............ 970.2606 

Subpart 970.31: 

970.3101–00–70 970.3101–1 

970.3102–3–70 .. 970.3102–370 

970.3102–05 ...... 970.3102–500 

970.3102–05–4 .. 970.3102–504 

970.3102–05–6 .. 970.3102–506 

970.3102–05–18 970.3102–518 

970.3102–05–19 970.3102–519 

970.3102–05–22 970.3102–522 

970.3102–05–28 970.3102–528 

970.3102–05–30 970.3102–530 

970.3102–05– 

30–70.

970.3102–531 

970.3102–05–33 970.3102–533 

970.3102–05–46 970.3102–546 

970.3102–05–47 970.3102–547 

970.3102–05–70 970.3102–570 

Subpart 970.32: 

970.3200–1–1 .... 970.3200–11 

Subpart 970.42: 

970.4207–03–02 970.4207–302 

970.4207–03–70 970.4207–370 

970.4207–05–01 970.4207–501 

Subpart 970.52: 

970.5223–3 ........ 970.5226–4 

970.5223–4 ........ 970.5226–5 

III. Discussion of Comments and 

Changes From the Proposed Rule 

In response to the NOPR, DOE 

received twelve comments from the 

following individuals/entities: 

(1) Ames National Laboratory (Ames) 

(2) Argonne National Laboratory 

(Argonne) 

(3) Battelle Memorial Institute, Pacific 

Northwest Division (Battelle) 

(4) Beta Analytic, Inc. (Beta Analytic) 

(5) Fermi Research Alliance, LLC 

(Fermi) 

(6) Lawrence Berkeley National 

Laboratory (LBNL) 

(7) Michael Ravnitzky 

(8) National Technology & Engineering 

Solutions of Sandia, LLC (NTESS) 

(9) Princeton Plasma Physics Laboratory 

(PPPL) 

(10) Stanford University/SLAC National 

Accelerator Facility (Stanford) 

(11) Thomas Jefferson National 

Accelerator Facility (TJNAF) 

(12) Triad National Security, LLC 

(Triad) 

DOE carefully reviewed the proposed 

regulation in light of the comments 

received during the public comment 

period and has attempted to address 

those requesting clarification or further 

detail through either revision to the text 

of the final rule or through clarification 

in this preamble discussion. 

Every comment has been analyzed 

and the following discussion provides 

responses organized by issue. 

General Support 

Comment: Michael Ravnitzky offered 

general support for the proposed rule, 

particularly the efforts to streamline the 

DEAR and to use plain language. LBNL 

supported the inclusion of many of 

LBNL’s Revolutionary Working Group 

(RWG) model contract provisions in the 

proposed rule. Likewise, SLAC 

appreciated the inclusion of SLAC’s 

RWG model contract provisions in the 

proposed rule. 

Response: DOE appreciates the 

support for this rulemaking. 

Extension of Comment Period 

Comment: LBNL, Stanford, and 

Argonne requested an extension to the 

time period for submitting comments. 

Response: While DOE recognizes that 

the proposed rule was lengthy, DOE 

declines to reopen the comment period, 

given that DOE provided 60 days for 

comments on the NOPR. 

Existing Deviations 

Comment: LBNL and Stanford 

requested that applicable field elements’ 

and contracting officers’ discretion to 

maintain previously approved 

deviations be explicitly preserved in 

guidance implementing clauses revised 

by this rule. 

Response: This final rule does not 

affect existing contractual language. Any 

modifications to individual contracts to 

incorporate the changes in clauses 

revised by this rule will require 

negotiation and agreement of the 

parties. 

Contract Cost Principles and Procedures 

Comment: In the NOPR, DOE 

proposed to add a new applicability 

section in subpart 970.31 (section 

970.3101–00–71, renumbered section 

970.3101–2 in this final rule) to clarify 

that the cost principles of FAR 31.2 and 

DEAR 970.31 apply regardless of entity 

type for an M&O contract. SLAC 

objected to the proposed addition 

because it would apply FAR subpart 

31.2 cost principles applicable to 

‘‘commercial organizations’’ to all M&O 

contracts regardless of entity type. The 

commenter suggests that DOE retain the 

discretion to enter into advance 

understandings and other contractual 

provisions on allowability that may 

deviate from the principles in FAR 31.2 

if permitted by other parts of the FAR, 

such as when the contractor is 

otherwise subject to FAR 31.3. The 

commenter also asserts that there is no 

policy reason or justification for this 

addition to the DEAR, which may serve 

to significantly restrict DOE’s pool of 

available contractors as well as limit 

DOE national laboratories’ ability to 

attract talent through joint appointments 

with universities and nonprofits that 

provide benefits that are compliant with 

FAR 31.3. 

Response: DOE makes no changes in 

response to this comment. The addition 

of the new section does not change any 

existing requirements for M&O 

contractors, but rather it clarifies the 

existing requirement that the cost 

principles of FAR 31.2 (and DEAR 

subpart 970.31) apply to M&O contracts, 

regardless of entity type. The DEAR 

currently requires DOE contracting 

officers to include (see DEAR 

970.3270(a)(1)) DOE’s M&O contract 

Payments and Advances clause (found 

at DEAR 970.5232–2) in all M&O 

contracts. Paragraph (j) of that clause 

requires contracting officers to 

determine allowable costs in accordance 

with FAR subpart 31.2 and DEAR 

subpart 970.31. The new section simply 

makes the existing requirement more 

apparent. DOE hopes that the placement 

of the section will help prevent 

confusion over the requirement in the 

future. 

Conditional Payment of Fee 

Comment: DOE’s conditional payment 

of fee policy allows for a reduction in 

payment to a contractor if the contractor 

fails to meet a performance requirement 

relating to environment, safety and 

health or security or safeguarding of 

restricted data and other classified 

information. In the NOPR, DOE 

proposed to expand this to also allow a 

reduction in payment if the contractor 

fails to meet a performance requirement 

related to business and financial 

systems. 


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LBNL, Triad, Battelle, Fermi, and 

TJNAF objected to the proposed 

expansion of the conditional payment of 

fee evaluation criteria to include 

‘‘business and financial systems.’’ The 

commenters’ primary concern is that 

these systems are undefined and 

therefore not yet fully developed 

enough to provide DOE or any M&O 

contractor with certainty on what 

elements of a business and financial 

system will be reviewed and 

considered. The commenters also note 

that other existing contract mechanisms 

already exist to appropriately deal with 

contractor issues in these two areas. 

Response: DOE agrees with both of 

these concerns and has removed the 

additional business and financial 

systems evaluation criteria from the 

final rule. Sections 942.7100, 952.242– 

71, 970.1504–1–3 (renumbered 

970.1504–103), and 970.5215–3 have 

been updated to reflect this change. 

Key Personnel Clause (952.215–70) 

Comment: The ‘‘Key Personnel’’ 

clause requires contractors to notify the 

Contracting Officer reasonably in 

advance of removing, replacing or 

diverting any of the listed or specified 

personnel under the clause. In the 

NOPR, DOE proposed changing the 

‘‘reasonably in advance’’ language to a 

Contracting Officer fill-in which would 

specify a minimum number of calendar 

days. Battelle objected to the proposed 

change in notice requirements from 

‘‘reasonably in advance’’ to a defined 

minimum number of days, asserting that 

it has the potential to be 

administratively restrictive and may not 

give consideration for proper pacing and 

needed flexibility for recruitment/ 

replacement of key personnel. 

Response: DOE agrees that the change 

is unnecessarily restrictive and has 

retained the existing ‘‘reasonably in 

advance’’ language in this final rule. 

Nuclear Hazards Indemnity Clause 

(952.250–70) 

Comment: In the NOPR, DOE 

proposed various changes to the 

‘‘Nuclear Hazards Indemnity’’ clause. 

Battelle commented that the level of 

indemnity in paragraph (d)(ii) for work 

outside the United States was not 

consistent with the Atomic Energy Act 

threshold stated at Section 170(d) of that 

Act and should be $500 million instead 

of $100 million. 

Response: DOE agrees that the amount 

was incorrectly stated in the NOPR. 

However, under Public Law 118–47 

(Further Consolidated Appropriations 

Act), the amount of such 

indemnification for nuclear incidents 

outside the United States was raised 

from $500 million to $2 billion (42 

U.S.C. 2210(d)(5)). Accordingly, DOE 

will update the figure in the Nuclear 

Hazards Indemnity clause to $2 billion, 

rather than retain the previous figure of 

$500 million. 

M&O Conflict of Interest Clause 

(970.5209–70) 

Comments: DOE’s conflict of interest 

policy resides in subpart 909.5 and 

section 970.0905 and is implemented in 

contracts (including M&O contracts) via 

a contract clause at section 952.209–72. 

In the NOPR, DOE proposed the 

addition of a new conflict of interest 

clause in Part 970 specific to M&O 

contracts. NTESS expressed concern 

that the proposed conflicts of interest 

(COI) nomenclature would be confusing 

to the workforce, and there was a risk 

of additional confusion about 

implementation of the clause in relation 

to the other organizational conflicts of 

interest (OCI) clauses found in M&O 

contracts and section 952.209–72. The 

commenter also noted that 

incorporation of the proposed clause 

would ‘‘require unfunded substantive 

changes to existing OCI policies, 

training, systems and tools and 

additional workload on the OCI team 

and Legal.’’ Stanford expressed overall 

support for the addition of the new 

clause but was concerned that portions 

of the clause could be overly 

prescriptive. Stanford and PPPL 

suggested clarifying in proposed 

paragraph (b) that the contractor’s 

responsibility for potential conflicts of 

interest of affiliates and other entities 

under this clause is limited to conflicts 

of interest relating to activities under 

the M&O contract. Fermi, Stanford, and 

PPPL also proposed adding ‘‘unless 

otherwise determined by the 

Contracting Officer’’ to the end of 

paragraph (b)(1)(ii) (similar to paragraph 

(b)(1)(i)) because there may be occasions 

when it would be desirable and for the 

benefit of the government to allow the 

contractor to perform or participate in 

the work. The same three commenters 

proposed that with respect to proposed 

paragraph (c)(6), the Government should 

retain flexibility for situations in which 

partnerships between the parent entity 

and the Department’s facilities are in the 

Government’s interests. They explain 

that since in many cases the work of the 

facility is to perform fundamental 

research, the levels of restraint indicated 

in paragraph (c)(6) would be detrimental 

to the mission of the facility and may 

deter parent contractors from investing 

their own resources in supporting the 

Department’s facilities. Finally, these 

commenters suggested that the proposed 

requirement in paragraph (d) to disclose 

all COIs that cannot be mitigated, 

including those of third parties, within 

10 calendar days of identifying the COI 

should be changed to 30 days. 

Response: While there was some 

support for the overall intent of the 

proposed new clause, DOE agrees with 

NTESS that its addition does pose a real 

risk of confusion regarding 

implementation in relation to the policy 

in subpart 909.5 and the clause at 

section 952.209–72. Resolution of these 

difficulties will require further analysis 

and consultation with stakeholders in a 

future effort. Accordingly, DOE has 

removed from this final rule the 

proposed new clause at section 

970.5209–70, the associated 

prescription at section 970.0906, and 

the proposed revisions to the policy at 

section 909.507–2 and 970.0905. In the 

interest of clarity, DOE has added a 

sentence to the end of section 970.0905 

which refers Contracting Officers to the 

policy in subpart 909.5. 

Strategic Partnership Projects 

(970.5217–1) 

Comment: In the NOPR, DOE 

proposed various changes to its 

‘‘Strategic Partnership Projects’’ clause. 

While there were no comments on the 

specific changes proposed in the NOPR, 

NTESS suggested a change throughout 

the clause from use of the word 

‘‘proposal’’ to agreement ‘‘package’’ as 

those words have meaning at both the 

General Terms & Conditions phase 

versus the funding Order phase for OFA 

SPP. Their context here could mean 

either. 

Response: DOE has revised the clause 

to consistently reference ‘‘SPP projects’’ 

and eliminate the various terms such as 

‘‘proposal package’’ and ‘‘SPP 

proposal’’. DOE believes this 

clarification should eliminate any 

confusion of the term ‘‘proposal’’ in 

other parts of the DEAR and address the 

commenter’s concern. 

Rights in Data—Technology Transfer 

(970.5227–2) 

Comment: LBNL, Stanford, Battelle, 

NTESS, PPPL, TJNAF, and Triad 

objected to added language in paragraph 

(e)(1)(iv) regarding patent applications 

containing export-controlled 

information (ECI) such that a DOE 

funding program manager would need 

to approve adding such exportcontrolled information or require an 

export license. LBNL commented that 

the language may have been added by 

mistake. NTESS commented that the 

language will likely cause confusion 

and may conflict with State Department 

regulations and publications on filing 

patent applications. Stanford expressed 


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concern that obtaining program manager 

approval before filing a patent 

application that could contain ECI 

would protract patenting timelines. 

Triad expressed concern that delays 

caused by the provision would impact 

DOE’s and M&O contractors’ ability to 

provide benefit from Federal research to 

U.S. industrial competitiveness, in 

compliance with the National 

Competitiveness Technology Transfer 

Act of 1989. Similarly, Battelle 

expressed concern that the delay 

associated with the additional approval 

would put U.S. contractors at a 

competitive disadvantage with non-U.S. 

entities. 

Response: Based on the statutory 

requirements governing the filing of 

U.S. patent applications and under the 

rules of the U.S. Patent and Trademark 

Office (USPTO), DOE agrees that patent 

applicants, including our M&O 

contractors, are legally permitted to 

include Export Controlled Information 

(ECI) in their U.S. origin patent 

applications and are not required to 

obtain a separate export license as long 

as they comply with regulations issued 

by the USPTO, unless the applicant 

seeks to export technical data exceeding 

that used to support the patent 

application in a foreign country. 

Accordingly, DOE has removed the 

language in paragraph (e)(1)(iv) 

requiring program manager approval 

from this final rule. 

Comment: The current DEAR in 

paragraph (c)(2) recognizes that a 

contractor may assert copyright in 

accordance with either paragraph (d) or 

(e). In the proposed rule, paragraph (f), 

Open Source Software, was added to 

this list, so that the proposed language 

recognized that the contractor may 

assert copyright in accordance with 

‘‘either paragraph (d), (e), or (f).’’ NTESS 

commented that using ‘‘either 

paragraph’’ implied that copyright 

assertion can only be one of these paths, 

not multiple of these paths. 

Response: DOE agrees to remove the 

word ‘‘either’’ to make it clear that 

copyright assertion may occur under 

multiple paths in paragraphs (d) 

through (f). 

Technology Transfer Mission (970.5227– 

3) 

Comment: Paragraph (n) concerns 

technology transfer through cooperative 

research and development agreements 

(CRADAs), which are agreements 

established between Governmentowned, contractor-operated laboratories 

and partners to perform cooperative 

research on topics of mutual interest. 

Under proposed paragraph (n)(5)(i), 

DOE requires the contractor operating a 

laboratory to assure that no employee of 

the contractor has a conflict of interest 

while the employee has a substantial 

role in negotiation, approval or 

performance of a CRADA. Battelle 

recommended that DOE clarify that 

paragraph (n)(5)(i) applies to ‘‘active’’ 

CRADAs since it would not apply if 

CRADA-derived IP is no longer 

obligated (i.e. option has been 

terminated or expired). 

Response: DOE disagrees that any 

change is needed. As proposed, 

paragraph (n) concerns a conflict of 

interest in the initial preparation, 

negotiation, and approval of a CRADA, 

whereas the comment concerns the 

disposition of subject inventions and 

licensing after the CRADA has ended. 

No change is needed in paragraph (n) 

because the paragraph does not deal 

with the intellectual property derived 

from the performance of the CRADA. 

Any issues with licensing of intellectual 

property from a CRADA are covered 

under paragraph (d) of this clause. 

Comment: Fermi suggested updating 

the definition of CRADA in paragraph 

(b) of this clause to reflect the authority 

for Laboratory contractors to enter into 

CRADAs with Federal entities, as 

permitted by DOE, by removing the 

phrase ‘‘including at least one nonFederal party’’ language. 

Response: DOE agrees and has revised 

the definition to remove references to 

‘‘non-federal parties’’ in this final rule. 

Comment: LBNL noted that proposed 

paragraph (f) would require M&O 

contractors to give preference to U.S. 

businesses for licensing and 

assignments of all intellectual property, 

not just subject inventions, as 

contemplated by the Bayh-Dole Act and 

the ‘‘Department of Energy 

Determination of Exceptional 

Circumstances under the Bayh-Dole Act 

to Further Promote Domestic 

Manufacture of DOE Science and 

Technologies’’ (S&E DEC). LBNL 

recommended narrowing the scope of 

the paragraph to only cover patents and 

copyrights, rather than all intellectual 

property. 

Response: DOE agrees with the 

commenter’s suggestion and has revised 

the clause in this final rule to narrow it 

from ‘‘intellectual property’’ to ‘‘subject 

inventions’’. Other intellectual property 

(copyrights, trademarks, mask works, 

etc.) will not be included in this clause. 

The clause was also rewritten to address 

subject inventions when the S&E DEC 

applies under paragraph (1) while 

retaining much of the original provision 

for addressing U.S. industrial 

competitiveness when the S&E DEC 

doesn’t apply (usually due to the 

funding source) under paragraph (2). 

Patent Rights—M&O Contracts 

(970.5227–10) 

Comment: LBNL, Battelle, PPPL, 

Stanford, Fermi, and TJNAF noted that 

paragraph (t)—U.S. Competitiveness 

appears to retain the pre-S&E DEC 

language that suspends all transactions 

pending DOE approval. That language 

was superseded for Office of Science 

laboratories by an Internal Patent 

Instruction (IPI) dated May 5, 2022, 

which substituted a notice mechanism 

instead of suspension. The commenters 

suggested that the notice mechanism 

from the IPI is preferable. 

Response: DOE agrees to update this 

provision to reflect the guidance in the 

IPI to require a notice to DOE of change 

in foreign ownership rather than require 

suspension of the license until DOE 

approval. Additionally, a new paragraph 

(2) was added to better describe the 

administrative process of seeking a 

waiver of the requirements in paragraph 

(t)(1) (which is the requirement to 

substantially U.S. manufacture in 

compliance with the S&E DEC) with 

DOE approval. There are also provisions 

for transferring title to DOE if there is a 

breach of paragraph (t)(1) requirements 

to substantial U.S. manufacture. 

Patent Rights—M&O for Profit, Patent 

Waiver (970.5227–12) 

Comment: Triad noted that the 

proposed changes would make it more 

difficult to license technology since a 

licensee would not want to have its 

rights suspended when undergoing a 

liquidity event (e.g., acquisition or large 

investment in exchange for equity). This 

could be particularly true in situations 

where the technology is the foundation 

of the company and is the basis for its 

business. 

Response: DOE agrees to update this 

provision to reflect the guidance in the 

Internal Patent Instructions (IPI) issued 

by the Assistant General Counsel for 

Technology Transfer and Intellectual 

Property to require a notice to DOE of 

change in foreign ownership rather than 

require suspension of the license until 

DOE approval. Additionally, a 

paragraph (2) was added to better 

describe the administrative process of 

seeking a waiver of the requirements in 

paragraph (1) for DOE approval. There 

are also provisions for transferring title 

to DOE if there is a breach of paragraph 

(t)(1) requirements to substantial U.S. 

manufacture. 

Comment: Proposed paragraph 

(b)(6)(iv) stated that ‘‘[e]xceptional 

circumstances subject inventions are as 

set forth in the applicable patent 

waiver.’’ NTESS commented that the 

proposed paragraph was inconsistent 


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with its current patent waiver, saying 

that the S&E DEC is specifically for 

Bayh-Dole entities and that NTESS is 

not governed under Bayh-Dole. NTESS’s 

class waiver of patent rights is 

W(C)2017–002. 

Response: DOE declines to make 

changes to paragraph (b)(6)(iv) in 

response to this comment. The S&E DEC 

is broader than only applying to BayhDole entities. It applies to all entities 

receiving program funding under the 

DEC. The second part of paragraph 

(b)(6)(iv) allows DOE to unilaterally 

amend the contract for the purpose of 

defining DOE exceptional circumstance 

subject inventions. It is clear that DOE 

policy is to have the S&E DEC apply to 

for-profit entities by adding new 

paragraph (b)(6)(iii). However, the 

comment raises the issue about 

requiring greater rights determination 

under paragraph (b)(7) before 

publications. DOE is revising paragraph 

(b)(6)(iii) to state that the addition of the 

enhanced U.S. manufacturing 

requirements under the S&E DEC does 

not invoke the greater rights 

determination process in paragraph 

(b)(7) requiring DOE approval for each 

invention or publication on such 

inventions. 

Comment: NTESS commented that 

proposed paragraph (b)(6)(viii) requires 

the contractor to obtain approval from 

DOE 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. The commenter stated that 

this change would be very burdensome 

to patent counsel because almost all 

subject inventions now fall under an 

exceptional circumstance subject 

invention. 

Response: DOE believes that NTESS is 

referring to paragraph (c)(2), which has 

this requirement. DOE agrees with the 

commenter’s concern and has added the 

following sentence ‘‘Notwithstanding 

the above, inventions subject to the S&E 

DEC do not require approval from 

Patent Counsel prior to any release or 

publication of information.’’ The 

purpose of the S&E DEC (US 

Manufacture) is wholly different from 

the other DECs (national security or 

sensitive technology) so there is no need 

for review of purely S&E DEC material. 

Property (970.5245–1) 

Comment: In the NOPR, DOE 

proposed adding an ‘‘application of 

regulations’’ paragraph (a) to the 

‘‘Property’’ clause which required 

compliance with 41 CFR chapters 102 

and 109 as well as various minor 

editorial changes. Battelle, Fermi, and 

Stanford suggested that invoking the 

entirety of 41 CFR chapters 102 and 109 

is too broad, and recommended it be 

narrowed to the ‘‘applicable’’ 

requirements in 41 CFR chapters 102 

and 109. NTESS suggested modifying 

paragraph (a) by adding ‘‘as prescribed 

or approved by OPMO/PA’’ at the end 

to ensure that NNSA OPMO would 

continue to have flexibility to allow 

contractors to meet their programmatic 

needs while complying with 

requirements that are formally 

integrated into their contracts. 

Response: DOE agrees with 

commenters that referencing the entirety 

of 41 CFR chapters 102 and 109 is too 

broad and has revised the language at 

section 970.5245–1(a) to only require 

the contractor to comply with 

‘‘applicable’’ requirements in those 

chapters. DOE disagrees with NTESS’s 

recommended change because the 

clause is applicable beyond NNSA 

contracts but believes that the change 

discussed above addresses NTESS’s 

concern. 

Comment: NTESS sought clarity on 

the regulatory references within the 

clause; specifically, why the general 

regulatory requirements added to the 

clause only reference 41 CFR chapter 

102 (Federal Management Regulations) 

and 41 CFR chapter 109 (Department of 

Energy Property Management 

Regulations), whereas existing 

contractual coverage of the management 

of high risk property and classified 

materials reference 41 CFR chapter 101 

(Federal Property Management 

Regulations) and 41 chapter 109 

(Department of Energy Property 

Management Regulations). 

Response: DOE agrees to also add a 

reference to 41 CFR chapter 101 in the 

new paragraph (a), as it still contains 

relevant requirements for real property 

and motor vehicles. 

Other Comments 

Comment: Michael Ravnitzky 

suggested adding a provision to the final 

rule allowing for prize contests to help 

address technological acquisition needs. 

Response: DOE appreciates the 

suggested addition but considers it to be 

outside the scope of the current rule. 

DOE may consider addressing prize 

contests in a future rulemaking. 

Comment: Michael Ravnitzky 

suggested adding an appendix to the 

DEAR that addresses the use of Other 

Transaction Authority (OTA), a special 

authority that allows DOE to enter into 

agreements with private-sector entities 

that are not subject to the same rules as 

standard government contracts or other 

traditional mechanisms. 

Response: DOE appreciates the 

suggested addition but considers it to be 

outside the scope of the current rule. 

DOE may consider addressing OTAs in 

a future rulemaking. 

Comment: Beta Analytic suggested 

adding direct biobased testing 

requirements and updating the FAR 

definition of ‘‘biobased product’’. 

Response: DOE considers this 

suggestion to be outside the scope of the 

current rule. 

Comment: Argonne suggested 

modifying the Contractor Purchasing 

System clause at 970.5244–1 by 

including language excepting ‘‘shrink 

wrap’’ click through terms for software 

agreements, excluding purchases under 

the micro-purchase threshold, and 

changing the approval level from the 

Head of Contracting Activity to the local 

Contracting Officer in consultation with 

local legal counsel. 

Response: DOE considers this to be 

outside the scope of the current rule but 

will consider these suggestions in a 

future rulemaking. 

Comment: Ames submitted comments 

in response to a DOE System of Records 

Notice (SORN) published on November 

27, 2023. 

Response: As the SORN notice is 

unrelated to this rule updating the 

DEAR, the comments are considered to 

be outside the scope of this rule. 

Department of Energy Mentor-Prote ́ge ́

Program (919.70) 

DOE proposed various changes to 

subpart 919.70 that were intended to 

update and streamline the DEAR 

coverage of the mentor-prote ́ge ́ program. 

DOE is now considering more 

substantive changes to its mentorprote ́ge ́ program and has therefore 

decided to withdraw the changes 

proposed in the NOPR from this final 

rule. Additionally, proposed changes to 

section 952.219–70 that would have 

conformed the DOE Mentor-Prote ́ge ́

program clause with changes to subpart 

919.70, are also not included in this 

final rule. 

IV. Section-by-Section Analysis 

• Section 901.103: Currently this 

section provides that the DEAR is issued 

and amended by the Senior 

Procurement Executive (SPE) and the 

National Nuclear Security 

Administration (NNSA). This final rule 

amends this section to clarify that (1) 

references throughout the DEAR to the 

SPE refers to both the DOE SPE and the 

NNSA SPE, unless otherwise indicated; 

(2) the SPEs may approve deviations to 

the DEAR both together and 

individually; and (3) except for those 

authorities designated as non-delegable, 


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the SPEs are delegated those authorities 

assigned to the Agency Head in the 

FAR. 

• Section 901.301–70: Current section 

901.301.70 states that DOE will 

maintain an Acquisition Guide. This 

final rule redesignates this section as 

901.301–70 and removes the paragraph 

designation to conform to standard CFR 

formatting. The newly redesignated 

section is revised to update the website 

address to access the Acquisition Guide. 

• Subpart 901.4: This final rule adds 

this new subpart to address deviations 

from the DEAR. The new subpart 

consists of section 901.401, which 

provides a definition for what 

constitutes a deviation from the DEAR; 

and sections 901.403 and 901.404, 

which provide instructions to 

acquisition personnel for preparing and 

submitting requests for individual 

deviations and class deviations 

respectively. 

• Section 901.602–3: This final rule 

amends this section to increase the 

threshold for the ratification authority 

delegated to heads of contracting 

activity (HCAs) for unauthorized 

commitments of $250,000 or less. A 

threshold of $25,000 has been in the 

DEAR for decades and needs to be 

updated to account for inflation and 

associated increases in the Simplified 

Acquisition Threshold (SAT), which 

was the original basis for the $25,000 

threshold. 

• Sections 901.603–1 and 901.603–70: 

This final rule revises these sections to 

update references to two DOE orders. 

• Section 902.101: Section 902.101 is 

revised to update the definition of 

Senior Procurement Executive in order 

to reflect a change in the name of the 

office held by the DOE SPE and the 

NNSA SPE. 

• Section 903.104–7: This final rule 

amends this section to allow reviews to 

be conducted by the individual one 

level above the contracting officer. The 

regulations at FAR 3.104–7 provide for 

higher-level review and concurrence 

within DOE by an individual designated 

in accordance with agency procedures. 

For violations or possible violations, the 

Department decided that this review 

and concurrence was better undertaken 

by those with procurement authority 

and not legal counsel whose role is 

better aligned with providing advice to 

those conducting the review and 

concurrence. Nothing in these changes 

prevents access to counsel by those with 

procurement authority. 

• Section 903.1003: Section 903.1003 

is added in order to supplement the 

FAR subpart 3.10 coverage of Contractor 

Code of Business Ethics and Conduct. 

The new language articulates the need 

for contractors to identify themselves, 

particularly when communicating on 

behalf of DOE, to ensure that all parties 

know the status of individuals as 

contractor personnel. 

• Section 903.1004: Section 903.1004 

is revised to prescribe a new clause at 

48 CFR 952.203–1, Identification of 

Contractor Employees, for all 

solicitations and contracts for services 

over the micro-purchase threshold. This 

clause requires contractors to use 

standard measures to ensure that 

contractors and their employees 

properly identify themselves as 

contractors in all DOE internal and 

external communications so that all 

parties are aware of their status as 

contractor personnel. Minor editorial 

changes have been made to the content 

of the section for the purpose of 

improving clarity and readability as 

well as updating the website address. 

• Section 904.401: This final rule 

amends this section to (1) revise the 

definition of ‘‘access authorization’’ by 

including the citation to special nuclear 

material under the Atomic Energy Act, 

Executive Order 12968, and 10 CFR part 

710 for more specificity; (2) add a 

definition of ‘‘Counterintelligence’’ 

previously located in part 970 but 

proposed to be relocated here because 

the term is included in revisions to 

other sections in this part; and (3) 

amend the definition of ‘‘Classified 

Information’’ for clarity to also include 

‘‘Classified National Security 

Information’’ and ‘‘Transclassified 

Foreign Nuclear Information’’, and to 

update the reference to Executive Order 

12958 with Executive Order 13526 

which revoked and replaced Executive 

Order 12958. 

• Section 904.402: This final rule 

amends this section to reorganize 

content to conform to the FAR 

numbering and to add a reference to the 

DOE Organization Act of 1977, as 

amended and update the reference to 

Executive Order 12958 with Executive 

Order 13526 which revoked and 

replaced Executive Order 12958. This 

final rule also relocates text about DOE’s 

counterintelligence program from 

section 970.0404–2(b). Part 970 

primarily concerns management and 

operating (M&O) contracts, but 

counterintelligence issues are equally 

applicable to M&O and non-M&O 

contracts. Additionally, revisions are 

made to the paragraph on conditional 

payment of fee in order to align with 

other changes proposed to the 

conditional payment of fee clauses in 

parts 952 and 970 which are discussed 

in the appropriate places below. Finally, 

this final rule adds a paragraph that 

points to part 927 for policies and 

procedures for safeguarding classified 

information in patent applications and 

patents. 

• Section 904.404: This final rule 

amends section 904.404 to: (1) revise the 

prescription for the ‘‘Security’’ clause at 

section 952.204–2 to clarify that it is 

also required to be included in contracts 

awarded under simplified acquisition 

procedures, as well as National Security 

Program contracts under which access 

to proscribed information is required; 

(2) make minor editorial changes and 

add the title to DOE Order 142.3 to the 

paragraph that discusses the ‘‘Sensitive 

Foreign Nation Controls’’ clause at 

section 952.204–71; (3) delete the 

prescription for the clause at section 

952.204–76, ‘‘Conditional Payment of 

Fee or Profit—Safeguarding Restricted 

Data and Other Classified Information 

and Protection of Worker Safety and 

Health,’’ because that clause, along with 

the clauses at sections 952.223–76 and 

952.223–77, is proposed for removal 

with the content of those three clauses 

consolidated into a single new clause at 

section 952.242–71, which is prescribed 

elsewhere; and (4) add a prescription for 

the counterintelligence clause proposed 

to be located at section 952.204–74 (and 

previously at section 970.5204–1) 

because DOE has determined that 

counterintelligence policy is 

appropriate for both M&O and non-M&O 

contracts. 

• Section 904.7004: Section 904.7004 

is revised in paragraph (a) to update the 

name of the office that the Contracting 

Officer must consult in connection with 

‘‘Foreign Ownership, Control or 

Influence (FOCI)’’ reviews prior to 

determining that award or continued 

performance of a contract by a 

contractor will not pose an undue risk 

to the common defense and security. 

The reference to the DOE Office of 

Safeguards and Security is proposed to 

be changed to the DOE Office of 

Environment, Health, Safety and 

Security. 

• Section 904.7102: This final rule 

makes editorial revisions to streamline 

this section, in paragraph (e), by 

removing the following extraneous text: 

‘‘that has been developed by the 

Safeguards and Security Lead 

Responsible Office at the contracting 

activity.’’ 

• Subpart 904.73: This final rule adds 

a new subpart on DOE Directives. The 

new subpart consists of section 

904.7300, which provides general 

requirements and information, and 

section 904.7301, which prescribes a 

new DOE Directives clause at 48 CFR 

952.204–78, along with background. 

Although contractor requirements 

documents (CRDs) have been integrated 


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into non-M&O contracts for a long time, 

adding the general information section, 

the new clause prescription, and the 

new clause will clarify the process of 

integrating the requirements of DOE 

Directives into non-M&O contracts on a 

bilateral basis. 

• Subpart 908.71: This final rule 

revises subpart 908.71 in order to 

remove some out-of-date procedures for 

handling special items. Specifically, 

sections 908.7103, Office machines; 

908.7115, Forms; 908.7116, Electronic 

data processing tape; and 908.7117, 

Tabulating machine cards, have been 

removed. 

• Section 909.403: Section 909.403 is 

revised to reflect a change in the name 

of the offices held by the individuals 

designated as the DOE and NNSA 

Debarring Official and Suspending 

Official. 

• Section 909.405: Section 909.405 is 

revised to replace references to the now 

defunct Excluded Parties List System 

(EPLS) with the new System for Award 

Management (SAM). 

• Section 909.407–3: This final rule 

amends this section in paragraph 

(e)(1)(vii) to replace a reference to the 

now defunct EPLS with the new SAM. 

• Section 912.301: This final rule 

adds a new section 912.301 to clarify 

those DEAR clauses that are also 

required to be included in solicitations 

and contracts for the acquisition of 

commercial items, in accordance with 

48 CFR 12.301(f). 

• Subpart 915.4: This final rule 

redesignates sections 915.404–2 through 

915.404–4–72 as provided by the table 

in section II of this document to 

conform with the FAR numbering 

system. Cross-reference changes are 

made throughout the subpart to conform 

with the new numbering. 

• Section 915.404–4–70 (915.404– 

4700): This final rule revises the text to 

clarify that DOE’s structured profit and 

fee system for non-management and 

operating contracts comprises two 

approaches. 

• Section 915.404–4–70–2 (915.404– 

4720): This final rule revises this section 

to correct the errors throughout the table 

in paragraph (d) by replacing ‘‘items 4.a. 

thru 4.e.’’ with ‘‘items I.a. thru I.e.’’. 

• Section 915.404–4–72 (915.404– 

4900): This final rule revises paragraph 

(a) of this section to update the 

reference to fee policy for management 

and operating contracts from 

‘‘970.15404–4–8’’ to ‘‘970.1504–101 

through 970.1504–300.’’ 

• Section 915.408–70: Section 

915.408–70 is revised to simplify the 

clause prescription for section 952.215– 

70, ‘‘Key Personnel,’’ and make minor 

editorial changes. 

• Section 915.606: Section 915.606 is 

revised to replace a defunct postal 

address for the receipt of unsolicited 

proposals with a new email address. 

• Section 916.307: Section 916.307 is 

revised to: (1) simplify the prescription 

for the DEAR ‘‘Allowable Cost and 

Payment’’ clause at section 952.216–7 in 

paragraph (a); and (2) remove the 

prescription for section 952.216–15, 

‘‘Predetermined Indirect Cost Rates,’’ 

because the FAR clause at 48 CFR 

52.216–15 is now considered to be 

adequate. 

• Section 916.504: Section 916.504 is 

revised to redesignate paragraph (c) as 

paragraph (a)(1) to conform with the 

FAR coverage at 48 CFR 16.504(a)(1) 

that this language supplements. 

• Section 916.505: Section 916.505 is 

revised to: (1) redesignate paragraph 

(b)(6) as paragraph (b)(8) to conform 

with the FAR coverage at 48 CFR 

16.505(b)(8) that this language 

supplements and update the 

corresponding FAR citation accordingly; 

and (2) update the office name from 

‘‘Office of Procurement and Assistance 

Management’’ to ‘‘Office of Acquisition 

Management’’. 

• Subpart 917.6: This final rule 

makes several changes to this subpart. 

Editorial changes are made in sections 

917.600(b) and 917.602(b) to remove 

obsolete references to ‘‘performancebased management contracts’’. Likewise, 

section 917.601, which defines 

‘‘performance-based management 

contract’’ and ‘‘performance-based 

contracting’’ is also removed. Those 

terms and those references to 

performance-based management 

contracts are considered to be 

unnecessary since all management and 

operating contracts employ, to the 

maximum extent practicable, 

performance-based contracting concepts 

and methodologies. Editorial changes 

are also made in section 917.602(c) to 

streamline the content of that paragraph. 

• Section 917.7402: This final rule 

makes revisions to paragraphs (b) and 

(c)(4) of this section to update the 

referenced DOE order from DOE Order 

430.1B to the current DOE Order 

430.1C. 

• Section 922.101–70: This final rule 

adds a new section 922.101–70 to 

describe situations where labor policies 

applicable to M&O contracts may also 

apply to non-M&O contracts. DOE labor 

policies for M&O contracts are located at 

48 CFR part 970, subpart 970.22. The 

policies therein are applicable to nonM&O contracts where the contract work 

had been previously performed under a 

DOE Management and Operating 

contract; and/or the Contractor is 

required to employ all or part of the 

former Contractor’s workforce; or 

contracts designated by the Senior 

Procurement Executive. The labor 

policies at 48 CFR part 970, subpart 

970.22, are reiterated here to highlight 

their application to certain non-M&O 

contracts. 

• Subpart 922.4: This final rule adds 

new subpart 922.4 with content 

previously located in section 970.2204– 

1–1, but better placed in part 922 since 

it is applicable to both non-M&O and 

M&O contracts. The existing content is 

revised to update references to the 

Davis-Bacon Act with the Construction 

Wage Rate Requirements Statute (40 

U.S.C. chapter 31, subchapter IV, Wage 

Rate Requirements (Construction)) as 

currently referenced in 48 CFR 22.403– 

1 and to remove information that 

unnecessarily duplicates content 

already set forth in 48 CFR 22.404 

through 22.404–12. 

• Section 923.002: Section 923.002 is 

removed. Paragraph (a) is removed 

because it conveys policy from revoked 

Executive Order 13423 and duplicates 

coverage in the FAR. The prescription at 

paragraph (b) is removed because 

revoked Executive Order 13423 was the 

basis for that prescription and for the 

clause at section 970.5223–6. 

• Section 923.101: This final rule 

redesignates this section as section 

923.170 to maintain consistency with 

FAR numbering and revise the content 

to align with current statutory, 

regulatory, and executive order 

requirements and to remove an out-ofdate hyperlink. 

• Section 923.102: This final rule 

redesignates this section as section 

923.171 to maintain consistency with 

FAR numbering. 

• Section 923.103: This final rule 

redesignates this section as section 

923.172 to maintain consistency with 

FAR numbering and revises the content 

to: (1) make minor editorial changes; (2) 

remove the reference to Alternate I to 

section 952.223–78, as that alternate is 

removed as unnecessary as a result of a 

revision to the base clause; and (3) 

remove prescriptions to FAR clauses 

that are already prescribed in 48 CFR 

chapter 1, and are not necessary to be 

prescribed here. 

• Subpart 923.5: This final rule 

redesignates subpart 923.5 consisting of 

sections 923.500, 923.570 and 923.570– 

1 through 923.570–3 as new subpart 

926.5 consisting of sections 926.500, 

926.570 and 926–570–1 through 926– 

570–3 respectively. These changes are 

necessary to align with recent FAR 

restructuring which moved ‘‘Drug Free 

Workplace’’ coverage from FAR 23.5 to 

FAR 26.5. Conforming changes are also 

made as necessary to update references 


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to the associated FAR coverage as well 

as to the referenced DEAR clauses 

which are appropriately redesignated. 

• Subpart 923.9: This final rule 

redesignates subpart 923.9 consisting of 

section 923.903 as new subpart 923.4 

consisting of section 923.404. These 

changes are necessary to align with a 

recent FAR restructuring which moved 

the Contractor Compliance with 

Environmental Management Systems 

coverage from FAR 23.9 to FAR 23.404. 

The newly redesignated section 923.404 

is also revised to correctly state the 

clause number for the FAR 

Environmental Management Systems 

clause as ‘‘52.223–19’’, whereas the 

current text has ‘‘52.223–XX’’. 

• Section 923.7002: Section 923.7002 

is revised to: while retaining the current 

policy, state it more clearly and 

succinctly; update references to reflect 

new locations of clauses; add references 

to clause prescriptions; and update 

office titles. 

• Section 923.7003: This final rule 

amends this section by: (1) in paragraph 

(a), updating the name of the office 

which the Contracting Officer is 

required to consult with in making a 

decision to include or not include 

environmental, safety, and health 

clauses and insert a reference to the 

appropriate coverage for M&O contracts; 

(2) consolidating paragraphs (f) and (g) 

into one paragraph (f) and revising it to 

state the prescription for the 

Conditional payment of fee clause more 

clearly and succinctly and updating the 

reference to the clause; and (3) 

redesignating paragraph (h) as 

paragraph (g). 

• Section 925.1001: Section 925.1001 

is revised to update the name of the 

‘‘Office of Procurement and Assistance 

Management’’ to ‘‘Office of Acquisition 

Management’’ and the office name of the 

NNSA Deputy Associate Administrator 

from ‘‘Acquisition and Project 

Management’’ to ‘‘Office of Partnership 

and Acquisition Services’’. 

• Section 926.7001: Section 926.7001 

is revised to reflect the addition of 

Qualified HUBZone small business 

concerns to the list of Energy Policy Act 

1992 target groups by the Small 

Business Reauthorization Act of 1997 

(Pub. L. 105–135). 

• Section 926.7004: This final rule 

revises this section by removing the 

outdated reference to Standard 

Industrial Classification (SIC) 8711 and 

adding in its place a reference to the 

North American Industry Classification 

System code 541330. 

• Section 926.7005: Section 926.7005 

is revised to reorganize the content to 

remove the separate paragraph on 

subcontracts as this content is 

unnecessarily duplicative of the 

prescriptions for solicitation provisions 

and contract clauses in section 

926.7007. 

• Section 926.7006: This final rule 

revises this section to reorganize and 

streamline content to remove obsolete 

and unnecessary reporting 

requirements. 

• Section 926.7007: This final rule 

revises this section in the prescription 

for the clause at 952.226–72, ‘‘Energy 

Policy Act Subcontracting Goals and 

Reporting Requirements’’ to update the 

dollar threshold from $500,000 ($1M for 

construction) to $750,000 and ($1.5M 

for construction) to conform to the FAR 

threshold for requiring a subcontracting 

plan at 48 CFR 19.702. 

• Subpart 926.71: This final rule 

amends this subpart by: (1) revising 

section 926.7101 to update the citation 

in the first sentence from 42 U.S.C. 

7474h to 50 U.S.C. 2704(c)(2); (2) 

revising section 926.7103 to make the 

same update to the citation in the first 

sentence of paragraph (a); and (3) 

revising section 926.7104 to change the 

clause title to add the words ‘‘Workforce 

Restructuring and’’ before ’’ Displaced 

Employee Hiring Preference’’ (in order 

to distinguish this from hiring 

preferences tied to the Service Contract 

Act) and revising the clause prescription 

to add a parenthetical that makes clear 

that the clause is for both M&O and nonM&O contracts. 

• Sections 927.200 and 927.201–1: 

This final rule removes section 927.200 

and adds the content of that section to 

section 927.201–1 to better conform 

with FAR numbering and section 

headings. Additionally, the proposed 

rule broadens the requirement in section 

927.201–1 to consult with Patent 

Counsel regarding the use of the Patent 

and Copyright Infringement Liability 

clause, which includes the 

Authorization and Consent clause 

referenced currently, to fully address 

indemnity in contracts based on the 

work being performed. but instead 

requires consultation regarding the use 

of the Patent and Copyright 

Infringement Liability clause in certain 

situations. 

• Sections 927.202, 927.202–5, and 

927.206: This final rule removes section 

927.206, ‘‘Refund of Royalties,’’ and 

redesignates sections 927.206–1, 

‘‘General,’’ and 927.206–2, ‘‘Clause for 

refund of royalties,’’ as new sections 

927.202, ‘‘Royalties,’’ and 927.202–5, 

‘‘Solicitation provisions and contract 

clause,’’ respectively. These changes are 

made in order to conform to the FAR 

numbering and section headings which 

this coverage supplements. 

• Sections 927.203 and 927.203–1: 

This final rule redesignates sections 

927.207 and 927.207–1 as new sections 

927.203 and 927.203–1 respectively and 

revises the section heading for section 

927.203 (formerly section 927.207). 

These changes are made in order to 

correspond with the FAR numbering 

and section headings which this 

coverage supplements. 

• Section 927.302: This final rule 

redesignates section 927.300 as section 

927.302 and revises the section heading 

to correspond with the FAR numbering 

and section headings which this 

coverage supplements. The rule also 

makes minor reorganization and 

editorial changes to the content of new 

section 927.302 for the purpose of 

improving clarity and readability. 

• Section 927.302–70: This final rule 

redesignates current section 927.302 as 

section 927.302–70 and revises the 

section heading in order to 

accommodate the changes to current 

section 927.300 previously described. In 

addition, a new paragraph (a) is added 

to include a definition of ‘‘background 

patent’’ similar to the definition found 

in the new Alternate I of section 

952.227–13 for the purpose of 

improving clarity of the regulation. 

Current paragraphs (b) and (c) are 

replaced with a new paragraph (c) to 

reflect DOE’s determination that the 

requirement of licensing background 

patents should only be permitted in 

certain situations approved by DOE 

Patent Counsel with concurrence of a 

DOE program official. This policy is 

implemented in new section 

927.303(d)(5) by moving the paragraph 

regarding background patents from the 

clause at section 952.227–13 to an 

Alternate I so that it only applies to 

certain contracts. 

• Section 927.303: This final rule 

revises section 927.303 to correspond 

with the FAR numbering and to make 

additions to instructions located in 48 

CFR 27.303. The rule also adds 

paragraph (a)(4) to direct the 

Contracting Officer to subpart 970.27 for 

certain decontamination and 

decommissioning activities and the 

building and/or operations of other DOE 

facilities. Additionally, 48 CFR 

27.303(d) provides that DOE will insert 

its specific patent rights clauses 

according to agency procedures. 

Therefore, section 927.303(d) outlines 

the use of the various patent clauses 

such as the clause at 48 CFR 952.227– 

13 or 37 CFR 401.14 depending on 

whether the contractor is a large or 

small business or university. 

Æ DOE provides in paragraph (d)(2) 

that contracts with domestic small 

business firms or nonprofit 


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organizations use the clause at 37 CFR 

401.14 instead of the clause at 48 CFR 

952.227–11 because DOE has not 

modified 48 CFR 48.952.227–11 to keep 

up with changes in the standard patent 

clause for these entities, while 37 CFR 

401.14 is regularly updated. However, 

37 CFR 401.14 has certain provisions 

requiring agency implementing 

regulations, which DOE addresses in a 

prescription for new Alternate I. 

Æ The most significant update is 

necessary to implement DOE’s 

Declaration of Exceptional 

Circumstance that requires contractors, 

at any tier, to substantially manufacture 

any subject inventions in the United 

States. Alternate II for domestic small 

business firms or nonprofit 

organizations adds both the agency 

implementing regulations from 

Alternate I and the U.S. substantial 

manufacturing requirements. For 

952.227–13, an Alternate II is used to 

implement the U.S. manufacturing 

requirement, as addressed in section 

927.303(d)(6). 

• Section 927.304: This final rule 

revises section 927.304 to make minor 

editorial changes and to replace the 

reference to the clause at section 

952.227–11, which is also revised, with 

the clause at 37 CFR 401.14. The clause 

at section 952.227–11 is not regularly 

updated while the clause at 37 CFR 

401.14 does receive regular updates. 

• Subpart 927.4: This final rule 

revises the heading of subpart 927.4 to 

read ‘‘Rights in Data and Copyrights’’ to 

conform to the FAR heading at 48 CFR 

part 27, subpart 27.4, which this subpart 

supplements. 

• Section 927.401: This final rule 

adds section 927.401 to provide a 

definition of ‘‘technical data’’. The 

regulations at 48 CFR 27.401 define 

‘‘data’’ to include ‘‘technical data’’ and 

‘‘computer software.’’ DOE wants to 

have a clear definition of what technical 

data encompasses since it relates 

directly to information sent to DOE’s 

Office of Scientific and Technical 

Information. 

• Sections 927.402, 927.402–1, and 

927.402–2: This final rule removes 

sections 927.402 and 927.402–1, and 

redesignates section 927.402–2 as 

section 927.402 to conform to FAR 

numbering, which these sections 

supplement. The content of section 

927.402–1 is added to new section 

927.406 and revised for clarity. Finally, 

DOE also revises the introductory 

language of the newly redesignated 

section 927.402 to add a reference to 

scientific and technical information 

(STI) because this is the term used at the 

Office of Scientific and Technical 

Information (OSTI) where DOE’s 

publicly available technical data is 

stored. 

• Section 927.403: This final rule 

removes section 927.403, which 

outlines when DOE Contracting Officers 

and Patent Counsel make 

determinations as part of the acquisition 

and use of technical data, and adds its 

content to newly added section 

927.406–4 for organizational purposes. 

• Sections 927.404 and 927.404–70: 

This final rule: 

Æ Redesignates section 927.404–70 as 

section 927.404–71 for organizational 

purposes and revises the newly 

redesignated section to replace the 

reference to 48 CFR 927.409(a) with 48 

CFR 52.227–14 to reflect changes to the 

prescription at 48 CFR 927.409(a); 

Æ Redesignates section 927.404 as 

section 927.404–70 for organizational 

purposes; 

Æ Revises the newly redesignated 

section 927.404–70 to update the 

instructions on when to use 48 CFR 

52.227–14 as supplemented by this 

subpart, as well as the use of 48 CFR 

52.227–16; and 

Æ Relocates paragraphs (g)(4), (l), and 

(m) of section 927.404–70 to portions of 

new section 927.406–4 and revised 

section 927.409. 

• Sections 927.406 and 927.406–4: 

FAR 27.406 is for Acquisition of data 

with sections 27.406–1 through 27.406– 

3. This final rule adds section 927.406, 

Acquisition of data, and section 

927.406–4, Acquisition and use of 

technical data, to conform with the 

numbering and headings of the FAR, 

which these sections supplement. 

Section 927.406–4(a) and (b) address 

several statutory changes that have been 

enacted, such as EPAct 2005 and the 

DOE Energy Research and Innovation 

Act. EPACT mandates that DOE 

maintain publicly available collection of 

Scientific Technical Information funded 

by the agency which is achieved by the 

Office of Scientific and Technical 

Information. DOE Energy Research and 

Innovation Act has a similar mandate 

for DOE to maintain a public database 

populated with information on 

unclassified research and development 

projects as well as relevant literature 

and patents. Additionally, this final rule 

relocates content formerly located at 

section 927.402–1(b) to new section 

927.406–4(c) for organizational 

purposes and revises the text for clarity 

and to update references. Likewise, the 

final rule relocates content formerly 

located at section 927.403 to new 

section 927.406–4(d) for organizational 

purposes. And finally, this final rule 

relocates content formerly located at 

section 927.404(g)(4) and (l) to new 

section 927.406–4(e) and (f), 

respectively, for organizational purposes 

and revises the text for clarity and to 

update references. 

• Section 927.409: This final rule 

revises section 927.409 by removing the 

contract clause at paragraph (a)(1), 

which permitted the DOE Patent 

Counsel to only approve copyright of 

software. In lieu of that clause, new 

paragraph (a) instructs the contracting 

officer to use the definitions at Alternate 

I of 52.227–14 and a new Alternate VIII 

of 48 CFR 952.227–14, Rights in Data— 

General, which allows DOE Patent 

Counsel to approve copyright of all 

technical data (including software) of a 

subcontractor. In addition, this final 

rule reorganizes the section so that 

paragraph (a)(2) is now a new paragraph 

(b) that outlines special treatment of 

certain data. Paragraph (b)(1)(i) requires 

Patent Counsel to insert a new Alternate 

I of 48 CFR 952.227–17 to change 

paragraph (c)(1)(ii) of 48 CFR 52.227–17, 

Rights in Data-Special Works, such that 

DOE Patent Counsel can approve the 

subcontractor to assert copyright in all 

technical data of subcontractor and 

transfer to the Government or other 

entity. Paragraphs (b)(1)(ii) through (vii) 

of the proposed section remain the same 

as current paragraphs (a)(2)(ii) through 

(vii) with some minor changes to 

streamline content and update 

references. However, Paragraph 

(b)(1)(viii) is added to contain an 

instruction located in current 

subcontract paragraph (a)(1) regarding 

the use of Alternate IV of 48 CFR 

52.227–14, Rights in Data—General, to 

be used with educational institutions. 

The prohibition for use of Alternate IV 

for any software has been changed to 

allow for copyright assertion when 

creating open source software. 

Paragraph (b)(1)(ix) describes the use of 

Alternate VI, as provided at 48 CFR 

952.227–14, Rights in Data—General. 

These instructions are being relocated 

from current section 927.404 (l) to 

section 927.409(b)(1)(ix) for 

organizational purposes and revised 

accordingly to give further guidance on 

when to require limited licensing of 

Limited Rights Data and Restricted 

Computer Software of the subcontractor. 

Finally, paragraph (b)(1)(x) contains 

instructions for using Alternate VII as 

provided at 48 CFR 952.227–14, Rights 

in Data—General, which are currently 

located at section 927.404(m) to limit 

the contractor’s use of DOE restricted 

data. Section 927.409(d) is an expansion 

of the instructions located in current 

section 927.409(h) and 48 CFR 

27.409(d). Lastly, the current paragraphs 

(s) and (t) of section 927.409 are 

relocated to paragraphs (m) and (n), 


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respectively, to conform with the 

numbering of 48 CFR 27.409. 

• Section 931.205–18: This final rule 

makes minor editorial revisions to this 

section in order to improve clarity. 

• Section 931.205–47: This final rule 

revises section 931.205–47 to update the 

citation in the definition of ‘‘Employee 

whistleblower action’’ from 42 U.S.C. 

7239 to 50 U.S.C. 2702. 

• Section 932.970: This final rule 

revises section 932.970 in paragraph (b) 

to clarify that: (1) Contracting Officers 

can specify accelerated payment dates 

upon making a written determination 

(on a case-by-case basis) that a shorter 

contract financing payment cycle 

will be beneficial to the Government 

by reducing the contractor’s working 

capital requirements; and (2) Whenever 

a contract specifies payment due dates 

that are sooner than those required 

under the relevant prompt payment 

requirements, the contract will permit 

the Contracting Officer to unilaterally 

authorize additional time for review of 

invoices if needed to perform an 

adequate review prior to payment. 

These changes are necessary to ensure 

that accelerated payments are only 

approved when doing so is determined 

to be beneficial to the Government, and 

adequate time for review of invoices is 

maintained. 

• Section 932.971: This final rule 

adds this section concerning electronic 

submission of invoices/vouchers and 

prescribes a new clause at 48 CFR 

952.232–7. These changes are intended 

to establish DOE’s strong preference for 

electronic submission of vendor 

invoices and to provide standardized 

instructions for such submissions. 

While electronic submission is 

preferred, other methods of submission 

can be approved after consultation with 

the Office of the Chief Financial Officer. 

• Subpart 932.70: This final rule 

removes subpart 932.70 in its entirety, 

as DOE Loan Guarantee Authority is 

regulated at 10 CFR part 609. 

• Section 933.103: Section 933.103 is 

revised to: (1) reorganize and renumber 

the paragraphs to conform to the FAR 

numbering at 48 CFR 33.103 which this 

section supplements; (2) make minor 

editorial revisions for clarity; and (3) 

clarify that DOE does not accept or 

adjudicate protests from prospective 

subcontractors. 

• Section 933.104: Section 933.104 is 

revised to reorganize content to conform 

to the FAR numbering at 48 CFR 33.104 

which this section supplements, 

streamline content, and make minor 

editorial revisions for clarity. 

• Section 933.106: Section 933.106 is 

revised to simplify the prescription for 

the solicitation provision at section 

952.233–2 such that it is required to be 

inserted whenever the provision at 48 

CFR 52.233–2 is included. In addition, 

this final rule removes the prescriptions 

for the provisions at sections 952.233– 

4 and 952.233–5 because the content of 

those provisions is being added to the 

provision at section 952.233–2. 

• Section 935.010: This final rule 

makes minor editorial revisions to 

section 935.010 to improve clarity, and 

to add a sentence at the end of 

paragraph (c) that clarifies that STI 

products identified in DOE Order 

241.1B are reportable to OSTI whether 

publicly releasable, controlled 

unclassified information or classified. 

• Section 935.070: This final rule 

revises section 935.070 by making 

minor editorial revisions and removing 

the definition paragraph, since research 

misconduct is already defined in 10 

CFR part 733. 

• Section 936.202–71: This final rule 

removes section 936.202–71 because its 

basis (Executive Order 13514) has been 

revoked. 

• Section 941.201–70: This final rule 

amends section 941.201–70 by: (1) 

revising the section heading to conform 

to 48 CFR 41.201 which this section 

supplements; (2) revising the text to add 

a reference to the Energy Policy Act of 

2005 (25 U.S.C. 3502) and integrate new 

Office of Federal Energy Management 

Programs (FEMP) policy, given that DOE 

Order 430.2B has been rescinded. 

• Section 942.705–1: Section 

942.705–1 is revised to remove 

paragraph (a)(3) as its content is 

outdated. 

• Sections 942.705–3, 942.705–4, 

942.705–5: This final rule removes 

sections 942.705–3 through 942.705–5 

as they only convey procedures internal 

to the agency that do not need to be 

covered in this regulation. 

• Subpart 942.71: This final rule adds 

new subpart 942.71 to provide an 

explanation of the need for and the use 

of the new clause added at section 

952.242–71, ‘‘Conditional Payment of 

Fee, Profit, and Other Incentives,’’ 

which is also discussed in sections 

904.402, 923.7002, and 923.7003. The 

new clause’s prescription is also added. 

• Section 945.000: This final rule 

revises section 945.000 to account for 

situations where the personal property 

management policies in 41 CFR chapter 

109 may also apply to certain non-M&O 

contracts. 

• Section 945.101: This final rule 

removes section 945.101 as the 

definitions are either unnecessary or are 

already defined in the FAR. 

• Section 945.102–70: This final rule 

removes section 945.102–70 as the FAR 

coverage is considered to be adequate. 

• Section 945.102–71: This final rule 

removes section 945.102–71 as the FAR 

coverage is considered to be adequate. 

• Section 945.570–1: This final rule 

revises section 945.570–1 to update the 

reference to the ‘‘Personal Property 

Policy Division’’ with the ‘‘Office of 

Asset Management.’’ 

• Sections 945.602, 945.602–3, and 

945.602–70: This final rule removes 

these sections as their content is 

adequately addressed in 41 CFR 

chapters 102 and 109. 

• Section 945.603: This final rule 

removes section 945.603 as its content 

is adequately addressed in 41 CFR 

chapters 102 and 109. 

• Section 945.670–1: This final rule 

revises section 945.670–1 to update the 

currently incorrect reference (48 CFR 

45.606–3) to 48 CFR 2.101. 

• Section 945.670–3: This final rule 

removes section 945.670–3 because the 

content is adequately addressed in 41 

CFR chapter 109. 

• Section 945.671: This final rule 

revises section 945.671 to add a 

reference to ‘‘41 CFR chapter 109’’ in 

place of an outdated reference to ‘‘41 

CFR 109–45.50 and 45.51 or its 

successor’’. 

• Section 951.102: This final rule 

revises section 951.102, in paragraph 

(c)(1), to remove the obsolete reference 

to the Federal Standard Requisitioning 

and Issue Procedures (FEDSTRIP) and 

update the reference to the ‘‘Office of 

Resource Management within the 

Headquarters procurement 

organization’’ to the ‘‘Systems Division 

within the Office of Acquisition 

Management.’’ 

• Section 952.203–1: This final rule 

adds a new clause ‘‘Identification of 

Contractor Employees’’ to require 

contractors to use standard measures to 

ensure that contractors and their 

employees properly identify themselves 

as contractors in all DOE internal and 

external communications so that all 

parties are aware of their status as 

contractor personnel. 

• Section 952.204–2: This final rule 

makes several amendments to the 

‘‘Security Requirements’’ clause. 

Specifically, this final rule: (1) 

consolidates definitions previously 

located in separate paragraphs (c) 

through (g) into a single paragraph (a), 

and adds definitions of ‘‘contracting 

officer’’, ‘‘contract’’, ‘‘contractor’’, 

‘‘cyber system’’ and ‘‘special access 

program’’; (2) makes minor editorial 

revisions and update references 

throughout; and (3) adds a reference in 

the last paragraph to clarify that facility 

clearance may be granted prior to award 

or after award of a subcontract in 


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accordance with the clause at 48 CFR 

952.204–73, ‘‘Facility Clearance’’. 

• Section 952.204–70: This final rule 

revises the ‘‘Classification/ 

Declassification’’ clause by reorganizing 

its content, with definitions being 

brought together into a separate 

paragraph (a). Additionally, minor 

editorials changes were made to 

improve clarity. 

• Section 952.204–73: This final rule 

amends the ‘‘Facility Clearance’’ clause 

to make minor editorial revisions 

throughout and, in paragraph (d), to 

include both a pre-award facility 

clearance process and an alternative 

post-award process. The current 48 CFR 

952.204–73 requires a full Facility 

Clearance prior to the award of a 

contract requiring access to classified 

information, and prior to granting any 

Interim Access Authorizations to key 

management personnel. The section is 

revised to provide a process that permits 

contract award prior to granting a full 

Facility Clearance, and to permit 

contract award prior to granting Interim 

Access Authorizations to key 

management personnel. This alternate 

post-award process will enhance 

efficiencies in awarding contracts while 

ensuring security requirements are met. 

• Section 952.204–74: This final rule 

relocates the ‘‘Counterintelligence’’ 

clause from section 970.5204–1 to this 

new section, as it is pertinent to both 

M&O and non-M&O contracts. This final 

rule also makes minor editorial 

revisions. 

• Section 952.204–76: This final rule 

removes this clause, ‘‘Conditional 

Payment of Fee or Profit—Safeguarding 

Restricted Data and Other Classified 

Information,’’ to reflect that section 

952.242–71, Conditional Payment of 

Fee, Profit or Incentives, a new clause, 

is added in its place. The new clause 

replaces three existing clauses (952.204– 

76, Conditional Payment of Fee or 

Profit—Safeguarding Restricted Data 

and Other Classified Information, 

952.223–76, Conditional Payment of Fee 

or Profit—Safeguarding Restricted Data 

and Other Classified Information and 

Protection of Worker Safety and Health, 

and 952.223–77, Conditional Payment 

of Fee or Profit—Protection of Worker 

Safety and Health). 

• Section 952.204–77: This final rule 

revises section 952.204–77, in the 

introductory text, to update the citation 

for the clause prescription and make 

minor editorial changes. 

• Section 952.204–78: This final rule 

adds this new clause, ‘‘DOE Directives’’ 

in order to clarify the policy and 

procedures for integrating directives 

into non-M&O contracts. 

• Section 952.215–70: This final rule 

revises the ‘‘Key Personnel’’ clause to 

make minor editorial changes to 

improve clarity. 

• Section 952.216–15: This final rule 

removes the ‘‘Predetermined Indirect 

Cost Rates’’ clause as the corresponding 

FAR clause at 48 CFR 52.216–15 is 

considered to be adequate. 

• Section 952.223–71: This final rule 

revises this section to add a non-M&O 

version of the ‘‘Integration of 

Environment, Safety, and Health into 

Work Planning and Execution’’ clause 

on the basis that the requirement is 

applicable to both non-M&Os and 

M&Os. The section language previously 

redirected the reader to a clause for 

M&O contracts. 

• Section 952.223–75: This final rule 

revises this section in the introductory 

text to update the location of the clause 

prescription from section 923.7003(h) to 

section 923.7003(g). 

• Sections 952.223–76 and 952.223– 

77: This final rule removes the 

‘‘Conditional Payment of Fee or Profit— 

Safeguarding Restricted Data and Other 

Classified Information and Protection of 

Worker Safety and Health’’ clause and 

the ‘‘Conditional Payment of Fee or 

Profit—Protection of Worker Safety and 

Health’’ clause to reflect that 952.242– 

71, Conditional Payment of Fee, Profit 

or Incentives, a new clause, is added in 

their place. The new clause replaces 

three existing clauses (section 952.204– 

76, Conditional Payment of Fee or 

Profit—Safeguarding Restricted Data 

and Other Classified Information, 

section 952.223–76, Conditional 

Payment of Fee or Profit—Safeguarding 

Restricted Data and Other Classified 

Information and Protection of Worker 

Safety and Health, and section 952.223– 

77, Conditional Payment of Fee or 

Profit—Protection of Worker Safety and 

Health). 

• Section 952.223–78: This final rule 

revises the ‘‘Sustainable Acquisition 

Program’’ clause to streamline 

requirements, to obviate the need for 

Alternate I to the clause, and to 

eliminate outdated references and areas 

of redundancy with FAR coverage. 

• Section 952.226–70: This final rule 

revises the ‘‘Subcontracting Goals Under 

Section 3021(a) of the Energy Policy Act 

of 1992’’ clause to reflect the addition of 

a fourth target group by the Small 

Business Reauthorization Act of 1997 

(Pub. L. 105–135) and to make minor 

editorial revisions. 

• Section 952.226–71: This final rule 

revises the ‘‘Utilization of Energy Policy 

Act target entities’’ clause by updating 

the citation for the clause prescription 

in the introductory text and replacing 

‘‘Energy Policy Act’’ where it appears in 

the clause title and text with ‘‘Energy 

Policy Act 1992’’ or ‘‘EPAct 1992’’ in 

order to more clearly identify the source 

of these requirements. Additionally, 

minor editorial changes are made to 

paragraph (a) of the clause for 

streamlining purposes. 

• Section 952.226–72: This final rule 

amends the ‘‘Energy Policy Act of 1992 

Subcontracting Goals and Reporting 

Requirements’’ clause to reflect the 

addition of a fourth target group by the 

Small Business Reauthorization Act of 

1997 (Pub. L. 105–135) as well as to 

replace references to the outdated 

Standard Form (SF) 294 and SF 295 

with references to the Individual 

Subcontract Report and or Summary 

Subcontract Report in the Electronic 

Subcontracting Reporting System 

(ESRS). 

• Section 952.226–73: This final rule 

revises the ‘‘Energy Policy Act target 

group certification’’ provision to revise 

the section heading and clause title and 

to reflect the addition of a fourth target 

group by the Small Business 

Reauthorization Act of 1997 (Pub. L. 

105–135). 

• Section 952.226–74: This final rule 

amends the ‘‘Displaced employee hiring 

preference’’ clause to revise the section 

heading and clause title by adding the 

words ‘‘Workforce Restructuring and’’ 

before ‘‘Displaced Hiring Preference.’’ 

This revision is intended to clearly tie 

this clause to workforce restructuring 

and distinguish it from other hiring 

preferences related to the Service 

Contract Act. 

• Section 952.227–9: This final rule 

revises the ‘‘Refund of Royalties’’ clause 

to require contractors with contracts 

greater than five years in duration to 

furnish a statement of royalties paid or 

required to be paid in connection with 

performing the contract every five years, 

and to make minor editorial revisions. 

• Section 952.227–11: Since 37 CFR 

401.14, Standard Patent Rights, is 

updated regularly, DOE has decided to 

use that clause in preference to 48 CFR 

52.227–11. However, 37 CFR 401.14 has 

sections requiring agency implementing 

regulations. Therefore, this final rule 

revises section 952.227–11 to replace 

the full clause text with two alternates. 

Alternate I is used to supplement the 

standard patent rights clause to include 

DOE’s implementing regulations. For 

example, paragraph (g)(2) requires the 

Contracting Officer to direct whether to 

include this clause in certain 

subcontracts. Also, paragraph (l) 

requires reports to be uploaded into 

iEdison invention management system. 

DOE has recently issued a Declaration of 

Exceptional Circumstance (DEC) to 

require substantial US manufacture of 


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Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Rules and Regulations 89731 

subject inventions funded by many DOE 

programs. Alternate II addresses the 

modifications and additions to 37 CFR 

401.14 to implement this DEC by adding 

paragraphs (m) and (n). 

• Section 952.227–13: This final rule 

amends the ‘‘Patent Rights—Acquisition 

by the Government’’ clause to update 

references and account for statutory 

changes. Paragraph (k) has been moved 

to a new alternate I to provide for a right 

to require licensing of third parties to 

background inventions only when 

deemed necessary. Also, a new 

Alternate II has been added to 

implement the U.S. Competitiveness 

requirement for DOE funding programs 

that require it. 

• Section 952.227–14: This final rule 

amends the ‘‘Rights in Data—General’’ 

clause to add a new Alternate VIII 

which addresses the approval by DOE 

Patent Counsel of all types of data by 

subcontractors of the M&O Contractor. 

Minor editorial revisions and revisions 

to update references are also made. 

• Section 952.227–17: This final rule 

adds a new ‘‘Rights in Data—Special 

Works’’ clause which supplements the 

FAR clause at 48 CFR 52.227–17 to 

permit Patent Counsel to direct the 

subcontractor to assert copyright and 

transfer to the Government or M&O 

Contractor. 

• Section 952.227–82: This final rule 

removes the ‘‘Rights to proposal data’’ 

clause on the basis that the 

corresponding FAR clause at 48 CFR 

52.227–23 is considered to be adequate. 

• Section 952.227–84: This final rule 

amends the ‘‘Notice of right to request 

patent waiver’’ provision to revise the 

introductory text to correctly specify the 

location of the prescription and to revise 

the text in the third sentence to replace 

the reference to ‘‘DEAR 952.227–11’’ 

which has been removed, with ‘‘37 CFR 

401.14.’’ 

• Section 952.231–71: This final rule 

revises the ‘‘Insurance—Litigation and 

Claims’’ clause, in paragraph (f)(2) to 

explicitly identify the property clause at 

48 CFR 970.5245–1 that defines 

‘‘contractor’s managerial personnel.’’ 

• Section 952.232–7: As detailed in 

the description to section 932.971, DOE 

has added this new ‘‘Electronic 

Submission of Invoices/Vouchers’’ 

clause to ensure clarity on electronic 

invoicing and payment procedures. 

• Sections 952.233–2, 952.233–4, and 

952.233–5: This final rule revises the 

‘‘Service of Protest’’ clause to add the 

provisions previously located at 

sections 952.233–4 and 952.233–5, since 

all three provisions had the same 

prescription and interrelated subject 

matter. Sections 952.233–4 and 

952.233–5 have been removed. 

• Section 952.242–71: This final rule 

adds a new ‘‘Conditional Payment of 

Fee, Profit or Incentives’’ clause to 

replace three existing clauses (section 

952.204–76, Conditional Payment of Fee 

or Profit—Safeguarding Restricted Data 

and Other Classified Information, 

section 952.223–76, Conditional 

Payment of Fee or Profit—Safeguarding 

Restricted Data and Other Classified 

Information and Protection of Worker 

Safety and Health, and section 952.223– 

77, Conditional Payment of Fee or 

Profit—Protection of Worker Safety and 

Health). Like the previous clauses, the 

new clause provides for a reduction in 

payment to a contractor if the contractor 

fails to meet a performance requirement 

relating to environment, safety and 

health or security or safeguarding of 

restricted data and other classified 

information. The new clause also 

includes updated references and reflects 

revisions made for clarity. 

• Section 952.245–2: This final rule 

revises section 952.245–2 to update the 

clause prescription to conform with the 

current FAR. 

• Section 952.245–5: This final rule 

revises section 952.245–5 to update the 

clause prescription to conform with the 

current FAR. 

• Section 952.250–70: This final rule 

revises the ‘‘Nuclear Hazards Indemnity 

Agreement’’ clause to correctly reflect 

the current underlying statute and to 

eliminate ‘‘effective date’’ 

considerations not germane to contracts 

awarded in 2020 and beyond. The 

clause has been updated to delete Note 

1 in accordance with 2005 Pub. L. 109– 

58, sec. 610(b), which amended Atomic 

Energy Act (AEA) section 234A(d) to 

eliminate the exclusion from civil 

penalties for certain identified nonprofit institutions. Prior to amendment, 

AEA section 234A(d) provided that the 

provisions of AEA section 234A on 

imposition of civil penalties would not 

apply to the University of Chicago for 

activities associated with Argonne 

National Laboratory; the University of 

California for activities associated with 

Los Alamos National Laboratory, 

Lawrence Livermore National 

Laboratory, and Lawrence Berkeley 

National Laboratory; American 

Telephone and Telegraph Company and 

its subsidiaries for activities associated 

with Sandia National Laboratories; 

Universities Research Association, Inc. 

for activities associated with FERMI 

National Laboratory; Princeton 

University for activities associated with 

Princeton Plasma Physics Laboratory; 

the Associated Universities, Inc. for 

activities associated with the 

Brookhaven National Laboratory; and 

Battelle Memorial Institute for activities 

associated with Pacific Northwest 

Laboratory 

• Section 970.0100: Section 970.0100 

indicates that part 970 of the DEAR 

provides DOE policies, procedures, 

provisions, and clauses that implement 

and supplement the FAR and other 

parts of the DEAR for the award and 

administration of M&O contracts. This 

final rule revises this section to clarify 

that part 970 does not apply to nonM&O contracts, except as approved by 

the cognizant SPE, or as otherwise 

prescribed in the DEAR. 

• Section 970.0371–8: Section 

970.0371–8 requires that certain 

information be included in a written 

disclosure statement made by an 

employee of an M&O contractor. In this 

final rule, DOE requires each disclosure 

statement to include an 

acknowledgement that the employee has 

read and is familiar with DOE Order 

486.1, Department of Energy Foreign 

Government Sponsored or Affiliated 

Activities. Additionally, section 

970.0371–8 already requires that each 

disclosure statement include an 

acknowledgement that the employee has 

read and is familiar with the DOE 

publication entitled ‘‘Reporting Results 

of Scientific and Technical Work 

Funded by DOE’’. This final rule 

updates the title of that publication to 

reflect the publication’s current title. 

• Section 970.0371–9: Section 

970.0371–9 requires a contracting 

officer to insert the clause at section 

970.5203–3, Contractor’s Organization, 

in all M&O contracts and provides that 

in paragraph (a) of that clause, the 

words ‘‘and managerial personnel (see 

970.5245–1(j))’’ may be inserted after 

‘‘(see 952.215–70)’’. This final rule 

updates the cross reference from 

‘‘970.5245–1(j)’’ to ‘‘970.5245–1(k)’’ to 

reflect the new location of that 

paragraph. 

• Subpart 970.04: This final rule 

redesignates sections 970.0407–1, 

970.0407–1–1, 970.0407–1–2, and 

970.0407–1–3 as provided by the table 

in section II of this document to 

conform with the FAR numbering 

system. A cross reference to section 

970.0407–1–3 in section 970.5204–3 is 

updated to reflect the new numbering. 

• Section 970.0404–1: Section 

970.0404–1 provides definitions of 

several terms. This final rule removes 

that section because the definitions of 

those terms are provided in section 

904.401 and duplication in this subpart 

is unnecessary. 

• Section 970.0404–2 

Æ Paragraph (a) of section 970.0404– 

2 points to several places where the 

reader may find information about the 

National Industrial Security Program, 


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information concerning contractor 

ownership when national security or 

atomic energy information is involved, 

and information regarding contractor 

ownership involving national security 

program contracts. Paragraph (b) of 

section 970.0404–2 provides that all 

DOE elements should undertake the 

necessary precautions to ensure that 

DOE and covered contractor personnel, 

programs and resources are properly 

protected from foreign intelligence 

threats and activities. The regulations in 

48 CFR part 904 contain DOE policies, 

definitions, provisions, and clauses 

associated with the safeguarding and 

security of classified information. In 

order to avoid unnecessary duplication, 

this final rule replaces the content of 

paragraphs (a) and (b) with a new 

paragraph (a) that points the reader to 

that part. 

Æ Paragraph (c) of section 970.0404– 

2 provides that for DOE M&O contracts 

and other contracts designated by the 

Senior Procurement Executive, or 

designee, the clause entitled 

‘‘Conditional Payment of Fee, Profit, 

and Other Incentives—Facility 

Management Contracts’’ implements the 

requirements of section 234B of the 

Atomic Energy Act regarding the use of 

a contract clause that provides for an 

appropriate reduction in the fee or 

amount paid to the contractor in the 

event of a violation by the contractor or 

any contractor employee of any rule, 

regulation, or order relating to the 

safeguarding or security of restricted 

data or other classified information. 

This final rule makes minor editorial 

revisions to this text for streamlining 

purposes and redesignates the content 

as paragraph (b) of section 970.0404–2. 

• Section 970.0404–4: Paragraph (a) 

of section 970.0404–4 requires a 

contracting officer to include the clause 

located at 48 CFR 5204–1 in certain 

contracts. Paragraph (b) of section 

970.0404–4 points the contracting 

officer to sections 904.404 and 904.7103 

for the prescription of solicitation 

provisions and contract clauses relating 

to safeguarding classified information 

and foreign ownership, control, or 

influence over contractors. This final 

rule removes section 970.0404–4 

because (1) the requirement in 

paragraph (a) of that section has been 

relocated to paragraph (d)(7) of section 

904.404 and (2) the references to 

sections 904.404 and 904.7103 are 

unnecessary and duplicative of those 

sections. 

• Section 970.0407–1–3 (970.0407– 

130): This final rule amends this section 

to revise the prescription for the 

‘‘Access to and Ownership of Records’’ 

clause to reflect the addition of a nonM&O version of the ‘‘Integration of 

Environment, Safety, and Health into 

Work Planning and Execution’’ clause 

and to make minor editorial changes. 

• Section 970.0801–2: This final rule 

revises section 970.0801–2 to replace 

the reference to the Federal Property 

Management Regulation at 41 CFR part 

101–43 with a reference to the Federal 

Management Regulation at 41 CFR 

chapter 102. This change is necessary 

because the General Services 

Administration (GSA) is phasing out the 

Federal Property Management 

Regulation and transitioning its sections 

to the Federal Management Regulation. 

• Section 970.0905: This final rule 

revises section 970.0905 to add a 

sentence at the end referring Contracting 

Officers to the policy in subpart 909.5 

which is also applicable to M&O 

contracts. 

• Section 970.1100–1: This final rule 

amends section 970.1100–1 to more 

concisely state DOE policy. 

Accordingly, paragraphs (a) and (b) are 

streamlined and combined into 

paragraph (a). Paragraph (c) is 

redesignated as new paragraph (b). 

Paragraph (d) is removed, as its content 

is limited to internal procedures and 

does not need to be included in the 

regulation. 

• Section 970.1100–2: This final rule 

removes this section as its content is 

limited to internal procedures and does 

not need to be included in the 

regulation. 

• Subpart 970.15: This final rule 

redesignates sections 970.1504–1 

through 970.1504–4 as provided by the 

table in section II of this document to 

conform with the FAR numbering 

system. Cross-reference changes are 

made in sections 970.5215–5, 970.3102– 

3–70, and 970.5244–1 to conform with 

the new numbering. 

DOE’s guidance in subpart 970.15 

covers DOE’s fee policy for its 

Management and Operating contracts. 

This final rule amends DOE’s current 

guidance found in sections 970.1504–1– 

1 through 970.1504–5 by revising and 

reorganizing it (into sections 970.1504– 

100 through 970.1504–400) to simplify 

and state explicitly its construct, 

sequence for calculating, and step-bystep process for determining the total 

available fee for an M&O contract. These 

amendments reflect DOE’s Contracting 

Officers’ several decades of experience 

with the current articulation of the 

policy. They have found the policy 

satisfactory, have demonstrated a 

comprehensive understanding of its 

details, and have reflected their 

understanding in implementing the 

policy. Nonetheless, DOE’s Contracting 

Officers have indicated it would be 

efficacious, for many reasons (training 

new procurement analysts, 

communicating with other offices, such 

as program, reviewing, and legal offices, 

etc.) if DOE’s policy: 

Æ were reorganized and restated in a 

more straightforward, more ‘‘plain 

English’’ format; 

Æ was pruned of what has become 

unnecessary guidance for a number of 

reasons (for example, guidance covered 

adequately in the FAR, or DOE’s 

internal guidance, such as DOE 

Acquisition Guide chapters); 

Æ reflected Contracting Offers’ current 

practices in executing the policy; 

Æ included a detailed example of a 

fee calculation; and 

Æ conformed more tightly to the 

FAR’s articulation of fee policy, fee 

constructs, fee definitions, and fee 

terms, to the extent appropriate. 

The amendments provide a clearer 

articulation of the policy. DOE has: (1) 

deleted or revised entire sections and 

large portions of sections of the policy, 

sometimes without replacement, 

sometimes replacing the deleted or 

revised language with much more 

concise language; (2) reorganized the 

policy; and (3) added a detailed 

example. Often when replacing deleted 

or revised language with more concise 

language, different aspects of the topic 

addressed by the deleted or revised 

language appear more cogently stated in 

several sections of the policy 

(sometimes more than once in several 

sections). 

In its amending of its guidance, DOE 

retained the current fee policy for M&O 

contracts and clarified it. There are no 

changes of any significance to the 

current fee policy, with two exceptions. 

The two exceptions that DOE has made 

are: eliminating the special 

considerations for determining fee for 

laboratory M&O contracts (which now 

appears in the current policy at section 

970.1504–103); and raising the 

Classification Factor of for research and 

development at a laboratory (which now 

appears in the current policy at section 

970.1504–109(e)(4)) from 1.25 to 1.5. 

It is worth noting that one minor 

change to the current fee policy is the 

suggested order of the steps in 

determining the maximum total 

available fee for a one-year period and 

the use of the ‘‘significant factors’’ (in 

one of the steps) in calculating the 

maximum total available fee amount for 

a one-year period. The revisions—which 

reflect the current practice and DOE 

Contracting Officers’ desire to formalize 

it—establish that suggested order and 

use. The new suggested order and use 

and the current suggested order and use 

both consider the fee base, fee 


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schedules, classification factors, and 

significant factors, and both orders and 

uses produce the same result. The 

revised suggested order and use require 

(for each type of effort) calculating an 

appropriate percentage derived from 

considering the significant factors (and 

applying it to the product of the 

maximum fixed fee and the 

classification factor). The current fee 

policy’s suggested order and use— 

implied at sections 970.1504–1–5(c) and 

970.1504–1–9(c)—require (for each type 

of effort) determining an appropriate 

fixed fee amount for each of the 

significant factors, summing those 

appropriate fixed fee amounts, and 

multiplying that sum by the 

classification factor. 

The revised suggested order and 

process comprise considering the: 

magnitude of the effort (reflected by the 

total fee base for the year); type of effort 

(reflected by the allocation of the total 

fee base to the three fee schedules); 

nature, difficulty, complexity, and 

importance of the work (reflected by the 

choice of classification factors); and 

specific circumstances of the 

procurement (reflected by the 

appropriate percentages derived from 

considering significant factors). This 

order entails using (for each type of 

effort) the maximum amount of fixed fee 

from the fee schedule, multiplying it by 

the classification factor, and multiplying 

by the appropriate percentage (derived 

from considering the significant factors). 

The current fee policy’s suggested 

order and process comprise considering 

the: magnitude of the effort (reflected by 

the total fee base for the year); type of 

effort (reflected by the allocation of the 

total fee base to the three fee schedules); 

specific circumstances of the 

procurement (reflected by the 

determining an appropriate fee amounts 

for each of the significant factors and 

summing those amounts); and nature, 

difficulty, complexity, and importance 

of the work (reflected by the choice of 

classification factors). This order entails 

using (for each type of effort) the fixed 

fee that would have been calculated for 

a cost-plus-fixed-fee contract action 

(using the fee schedules and considering 

the significant factors) and multiplying 

that fixed fee by the classification factor. 

A second minor change to the current 

fee policy is deleting cost reduction 

incentives, which are discussed in the 

current policy at sections 970.1504–1– 

4(f), 970.1504–5(c), and 970.5215–4. 

DOE no longer uses cost reduction 

incentives, using instead value 

engineering, which is covered in the 

DOE Acquisition Guide and the FAR. 

A detailed breakdown of the changes 

to subpart 970.15 is provided below. 

• Section 970.1504–1–1 (970.1504– 

101): DOE has revised this section for 

clarity. 

• Section 970.1504–1–2 (970.1504– 

102): DOE has revised this section to 

reorganize and clarify the agency’s fee 

policy for M&O contracts. Additionally, 

in some cases, this final rule revises and 

moves its coverage from other sections 

to this section. In other cases, this final 

rule revises its coverage in this section 

and moves it to other sections. In its 

amendments to this section, among 

other things, the current numbering of 

sections 970.1504–1–2(a) through (h) 

will become sections 970.1504–102(a) 

through (b). 

Æ Paragraph (a)(1): This final rule 

adds this paragraph to clarify DOE 

policy on fee for M&O contracts. DOE’s 

policy on types of contracts and fee 

arrangements suitable to M&O contracts 

that was originally located at 48 CFR 

970.1504–1–4(a)(1) and 970.1504–1– 

2(h) is revised for clarity and moved to 

this paragraph. 

Æ Paragraph (a)(2): This final rule 

adds this paragraph to reorganize and 

clarify DOE M&O contract fee policy to: 

(1) move the policy requiring that a costplus-fixed-fee contract only be used if 

approved in advance by the Senior 

Procurement Executive (SPE) or 

designee from current 48 CFR 970.1504– 

1–4(b) to this paragraph; and (2) add a 

mention of the limitation on the fee for 

a cost-plus-fixed-fee contract found at 

48 CFR 15.404–4(c)(4)(i), which makes 

unnecessary the last sentence of current 

section 970.1504–1–2(d), which is 

deleted. 

Æ Paragraph (a)(3): This final rule 

adds this paragraph to reorganize and 

clarify DOE policy on the approval of 

base fee in a cost-plus-award-fee M&O 

contract. The policy requiring that a 

base fee amount may only be used if 

approved in advance by the SPE or 

designee has been revised and moved 

from 48 CFR 970.1504–1–4(c)(3) to this 

paragraph. 

Æ Paragraph (a)(4): In this final rule, 

DOE adds this paragraph to reorganize 

and clarify DOE policy that incentive 

fees allocated to evaluation periods 

under cost-reimbursement type 

contracts should, to the greatest extent 

appropriate, be tied to a specific portion 

of the maximum total available fee. In 

addition, this final rule revises and 

moves the policy described herein from 

48 CFR 970.1504–1–2(b) to this 

paragraph. 

Æ Paragraph (a)(5): This final rule 

adds paragraph (a)(5) to reorganize and 

clarify DOE policy that: (1) the 

maximum total available fee amount 

may not exceed the fee derived from 

this section unless approved in advance 

by the SPE or designee; and (2) a request 

to allow a higher fee must be in writing 

and must clearly explain why the 

situation merits consideration. In 

addition, this final rule revises and 

moves the policy described herein from, 

in part, both 48 CFR 970.1504–1–2(d) 

and 970.1504–1–10 to this paragraph. 

Æ Paragraph (a)(5)(i): This final rule 

adds paragraph (a)(5)(i) to reorganize 

and clarify DOE policy that typically, 

only a situation where either unusually 

difficult objective performance 

incentives would be used or where 

successful performance would provide 

extraordinary value would merit 

consideration for allowing a higher fee. 

In addition, this final rule revises and 

moves the policy described herein from 

48 CFR 970.1504–1–10 to this 

paragraph. 

Æ Paragraph (a)(5)(ii): This final rule 

adds paragraph (a)(5)(ii) to reorganize 

and clarify DOE policy that when a 

contract requires a contractor to use its 

own facilities, equipment, or other 

resources for contract performance (e.g., 

when there is no letter-of-credit 

financing), consideration may be given, 

subject to approval by the SPE or 

designee, to allowing a maximum total 

available fee amount above the amount 

calculated by this section. In addition, 

this final rule revises and moves the 

policy described herein from 48 CFR 

970.1504–1–2(g) to this paragraph. 

Æ Paragraph (a)(6): This final rule 

adds paragraph (a)(6) to reorganize and 

clarify DOE policy that each M&O 

contract must set forth in the contract 

(or in a Performance Evaluation and 

Measurement Plan (PEMP) or similar 

document) the methods that will be 

used to rate the contractor’s 

performance and to determine the fee 

the contractor’s performance will earn. 

The DOE Contracting Officer must 

ensure all important areas of contract 

performance are specified in the 

contract or in a PEMP (or similar 

document), even if such areas are not 

assigned a specific portion of the 

maximum total available fee the 

contractor might earn. In addition, this 

final rule revises and moves the policy 

described herein from 48 CFR 

970.1504–1–9(h) and (j), in part, to this 

paragraph. 

Æ Paragraph (a)(6)(i): This final rule 

adds paragraph (a)(6)(i) to reorganize 

and clarify that an M&O contract is an 

‘‘incentive contract’’ as that term is used 

in 48 CFR part 16, subpart 16.4, and that 

subpart 16.4 prohibits the use in a 

contract of other than cost incentives 

without also providing a cost incentive 

(or constraint). This paragraph is added 

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fee contract policy in subpart 16.4, 

particularly 48 CFR 16.401(e). 

Æ Paragraph (a)(6)(ii): This final rule 

adds paragraph (a)(6)(ii) to clarify: (1) 

award fee not earned during the award 

fee cycle shall not be carried over to any 

future award fee cycle; (2) when the 

award fee cycle consists of one 

evaluation period, unearned award fee 

amounts may not be carried over from 

one evaluation period to the next; and 

(3) when the award fee cycle consists of 

two or more evaluation periods the 

Contracting Officer may make the 

decision that unearned award fee 

amounts may be carried over from one 

evaluation period to the next, if the 

periods are within the same award fee 

cycle. This paragraph is added to better 

align its cost-plus-award-fee contract 

policy with the cost-plus-award-fee 

contract policy in 48 CFR 16.401(e)(4). 

Æ Paragraphs (b)(1) and (2): This final 

rule reorganizes, revises, and moves the 

policy at section 970.1504–1–2(f) to this 

section to clarify: (1) that before issuing 

a competitive solicitation, the Head of 

the Contracting Activity (HCA) must 

coordinate the maximum total available 

fee amount with the SPE or designee; (2) 

a competitive solicitation must identify 

the greatest maximum total available fee 

amount the Government will accept and 

may invite offerors to propose a lower 

fee amount; and (3) before beginning to 

negotiate an extension to an existing 

contract, the HCA must coordinate the 

greatest maximum total available fee 

amount the HCA will accept and the 

maximum total available fee amount 

targeted for negotiation with the SPE or 

designee. 

• Section 970.1504–1–3 (970.1504– 

103): First, this final rule deletes the 

policy describing special considerations 

for determining fee for laboratory M&O 

contracts in current sections 970.1504– 

1–3(a) through (c)(7). That policy 

required determining whether any fee is 

appropriate for laboratory M&O 

contracts; DOE’s new policy is that a fee 

is appropriate. DOE believes, based 

upon its experience with the current 

policy, the new policy will encourage a 

larger potential group of entities to 

compete for DOE’s laboratory M&O 

contracts, which will result in better 

outcomes for DOE. (This deletion of the 

laboratory M&O contracts fee policy is 

one of the two proposed changes of any 

significance to the current M&O 

contracts fee policy mention earlier, the 

other being the Classification Factor for 

research and development at a 

laboratory was increased.) Second, a 

better articulation of DOE’s general 

policy for fee determination for M&O 

contracts is now added at sections 

970.1504–103(a) through (f). DOE’s 

general policy for fee determination has 

been and remains that: all M&O 

contracts are ‘‘incentive fee’’ contracts 

as described in 48 CFR part 16, subpart 

16.4; and DOE will evaluate (per a 

contract’s performance measures) the 

contractor’s performance to determine 

the fee the contractor’s performance has 

earned it. This is a long-standing policy, 

which, in essence, is strewn across 

several sections of the current fee 

policy, not necessary in ideal sequential 

order, or covered by the Federal 

Acquisition Regulation and not 

reiterated in the DEAR. Stated in more 

detail, the long-standing construct of fee 

policy for M&O contracts has been and 

will remain: 

Objective performance measures are 

preferred to subjective ones and tying 

specific fee to specific outcomes should 

be accomplished whenever feasible. 

Consequently, fixed-price actions would 

be ideal (albeit the unlikelihood of their 

being feasible in M&O contracts) and 

cost-plus-fixed-fee actions (such as base 

fee in a cost-plus-award-fee action) are 

to be avoided whenever practical (and 

their use requires high level approval). 

The formula to determine the maximum 

total available fee is based on annual fee 

determinations using fees bases, fee 

schedules, classification factors, and 

appropriate percentages. More 

specifically, the maximum total 

available fee amount for an M&O 

contract is the sum of the maximum 

total available fee amounts of the 

contract’s one-year periods. The 

maximum total available fee amount in 

a one-year period is based on the fee 

base of the one-year period. Calculating 

the maximum total available fee amount 

for a one-year period requires 

considering the: magnitude of the effort 

(reflected by the total fee base for the 

year); type of effort (reflected by the 

allocation of the total fee base to the 

three fee schedules); nature, difficulty, 

complexity, and importance of the work 

(reflected by the choice of classification 

factors); and specific circumstances of 

the procurement (reflected by the 

appropriate percentages derived from 

considering significant factors). 

This better articulation of DOE’s 

general policy for fee determination for 

M&O contracts reflects the construct of 

(and some pertinent details of) DOE’s 

long-standing general policy for fee 

determination in more concise terms, in 

a more logical sequence, and in more 

congruence with the Federal 

Acquisition Regulation’s articulation of 

the concept of contract types and fee 

arrangements. In essence, DOE is 

pulling and revising (sometimes 

integrating constructs, sometimes 

integrating and revising specific 

language, sometimes deleting 

unnecessary language, sometimes 

revising necessary language) policy 

guidance from the following sections 

and placing it in section 970.1504–103: 

Æ 970.1504–7(a) through (e)—Fee 

base; 

Æ 970.1504–1–6(a) and (b)— 

Calculating fixed fee; 

Æ 970.1504–1–9(a) through (j)— 

Special considerations: Cost-plusaward-fee; 

Æ 970.1504–1–5—General 

considerations and techniques for 

determining fixed fees; 

Æ 970.1504–1–2(i)—which addresses 

conditional payment of fee, profit, and 

other incentives; 

Æ 970.1504–1–4(e)—which addresses 

requirements if using multiple contract 

types; 

Æ 970.1504–1–4(f)—which addresses 

cost reduction incentives; this section is 

deleted without replacement because 

DOE determined its policy for value 

engineering (stated in its Acquisition 

Guide) was more appropriate; 

Æ 970.1504–1–4(g)—which addresses 

the responsibilities of operations and 

field offices in establishing contract 

types and fee arrangements; 

Æ 970.1504–1–2(c) and (d)—which 

discuss annual fee determination, 

maximum amount of annual fee, and the 

role of the Senior Procurement 

Executive; 

Æ 970.1504–1–2(b)(3)—which 

discusses preferences for fixed price 

awards, objective measures, and tying 

fee to specific portions of the fee pool; 

Æ 970.1504–1–4(c)(3) and (4)—which 

discuss risk, base fee, performance fee 

and its two components, and the 

preference for the objective fee 

component; and 

Æ 970.1504–1–4(d)—which addresses 

performance fee, measures and 

objectives, the preference for tying fee to 

outcomes, and the allocation of fee to 

outcomes. 

(It should be noted that some of the 

pulled and revised language listed 

above appears more than once, that is, 

it appears not only in 970.1504–103(a) 

through (f) but also—for the purpose of 

improving readability—in other sections 

of DOE’s revised fee policy.) 

Æ Paragraphs (a) through (b)(6): This 

final rule reorganizes, revises, and 

moves the policy currently located at 

sections 970.1504–7(a) through (e)—Fee 

base, sections 970.1504–1–6(a) and (b)— 

Calculating fixed fee, sections 

970.1504–1–9(a) through (j)—Special 

considerations: Cost-plus-award-fee, 

and section 970.1504–1–5—General 

considerations and techniques for 

determining fixed fees to sections 

970.1504–103(a) through (b)(6) to clarify 


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the construct of DOE’s long-standing 

general policy for fee determination for 

M&O contracts. The guidance in the 

portions of general policy moved to 

section 970.1504–103 includes guidance 

regarding: magnitude of the effort; type 

of the effort; nature, difficulty, 

complexity, and importance of the 

work; specific circumstances of the 

procurement; maximum total available 

fee amount for the contract; annual fee 

bases; allocation of the maximum total 

available fee amount; the fee base in 

each of the one-year periods of the 

contract; allocating that total available 

fee to the evaluation periods of the 

contract based upon what best motivates 

the contractor’s superior performance; 

allocating incentives in a manner that 

will result in reasonable contractor risk 

and provide the contractor with the 

greatest incentive; maximum total 

available fee amount equaling the sum 

of the maximum total available fee 

amounts in the contract’s one-year 

periods; the maximum total available 

fee amount for a one-year period is 

based on the fee base for that one-year 

period; the fee base is an estimate of the 

allowable costs (with some exclusions) 

for that one-year period; the fee base is 

a basic component of the fee schedules, 

which link the fee base to fee; the 

amount of the fee base and the amount 

of fee in the fee schedules are annual 

amounts; calculating the maximum total 

available fee amount for a one-year 

period is based on the contract’s oneyear periods and their fee bases; usually 

the maximum total available fee amount 

for a one-year period is allocated to the 

same one-year period; when a maximum 

total available fee amount is established 

for longer than a year, it is subject to 

adjustment; the SPE’s or designee’s 

approval is required for evaluation 

periods other than one year; the 

Government’s objective is to allocate 

incentives in a manner that will provide 

the contractor with the greatest 

incentive for efficient and economical 

performance; and occasions could occur 

where it would be appropriate to 

allocate the maximum total available fee 

amount for a year to a subsequent oneyear evaluation period, an evaluation 

period of greater than a year, or to 

several evaluation periods. 

Æ Paragraph (b)(7): To clarify the 

construct of DOE’s long-standing 

general policy for fee determination for 

M&O contracts, this final rule: (1) 

reorganizes and revises the policy 

currently located at sections 970.1504– 

1–2(b)(3), (c), and (d), sections 

970.1504–1–4(c)(2) through (d), and 

sections 970.1504–1–9(b) and (h) and 

moves it to paragraph (b)(7); (2) repeats 

some of the M&O contract Total 

Available Fee contract clause’s language 

and adds it to this paragraph, 

specifically the clause’s language 

requiring the negotiations to establish 

the requirements for the year and the 

maximum total available fee that the 

contractor can earn for its performance 

must occur before the contract year 

begins, and the language requiring the 

maximum total available fee allocated to 

an evaluation period be apportioned 

among a base fee amount and a 

performance fee amount; and (3) 

rephrases some of the Federal 

Acquisition Regulation’s discussion at 

48 CFR part 16, subpart 16.4, regarding 

incentives, objective performance 

requirements, and subjective 

performance requirements, and award 

fee and adds it to this paragraph. 

Æ Paragraph (b)(8): This final rule 

reorganizes, revises, and moves the 

policy at currently located at sections 

970.1504–1–2(b)(3) and (e) to this 

paragraph. 

Æ Paragraph (c): This final rule adds 

this paragraph because it repeats and 

emphasizes the fee determining 

sequence mentioned earlier. Paragraph 

(a) addressed the general requirements 

for determining fee, and paragraph (b) 

addressed the maximum total fee 

amount for the contract, which 

necessarily mentioned total available fee 

for each one-year period of the contract. 

Therefore, it adds to the readability of 

DOE’s M&O contract fee policy to 

address determining the maximum total 

available fee for each one-year period of 

the contract at this point. (The next 

paragraph addresses conditional 

payment of fee, profit, and other 

incentives, which applies to paragraphs 

(a), (b), and (c).) Paragraph (c) alludes to 

base fee, fee schedules, classification 

factors, appropriate percentages derived 

from the significant factors, and the 

specific details for calculating the 

maximum total available fee one-year 

period and an example, subjects 

addressed comprehensively at sections 

970.1504–105, 970.1504–106, 970.1504– 

107, 970.1504–108, and 970.1504–104, 

respectively. 

Æ Paragraph (d): This final rule 

reorganizes and revises the policy 

currently located at section 970.1504–1– 

2(i) and moves it to paragraph (d). DOE 

is taking this action to clarify the 

significance to the fee determining 

process of the performance 

requirements of the contract relating to 

environment, safety, and health (ES&H) 

and relating to safeguarding of 

Restricted Data and other classified 

information. 

Æ Paragraph (e): This final rule 

reorganizes and revises the policy on 

multiple contract types and fee 

arrangements at section 970.1504–1–4(e) 

and moves it to paragraph (e). This final 

rule removes the policy on cost 

reduction incentives at section 

970.1504–1–4(f) and the associated 

clause at section 970.5215–4, which is 

prescribed at section 970.1504–5(c). 

DOE no longer uses the types of cost 

reduction incentives at section 

970.1504–1–4(f), using instead value 

engineering, which is covered in the 

DOE Acquisition Guide and the Federal 

Acquisition Regulation. 

Æ Paragraph (f): This final rule 

reorganizes and revises the policy at 

section 970.1504–1–4(g) and moves it to 

paragraph (f). 

• Section 970.1504–1–4 (970.1504– 

104): This final rule reorganizes and 

revises this section to simplify and state 

explicitly the construct underlying, the 

sequence for calculating, and the stepby-step process for determining the total 

available fee for an M&O contract and 

includes a numerical example for 

determining the total available fee for a 

one-year period of an M&O contract. 

While this section articulates the gist of 

the current fee policy, there is neither 

an exact parallel to this section in the 

current fee policy nor a direct link to 

specific language in the current fee 

policy. This section is based in large 

part on the current fee policy’s sections 

on fee base, fee schedules, classification 

factors, and significant factors, which 

are found at sections 970.1504–107, 

970.1504–106, 970.1504–109, 970.1504– 

105, respectively. 

• Section 970.1504–1–5 (970.1504– 

105): This final rule revises and 

reorganizes the section to clarify DOE’s 

policy on the calculation of fee base, 

which is the estimate of necessary 

allowable costs, with some exclusions. 

DOE’s policy on fee base is moved here 

from 48 CFR 970.1504–1–7. In addition, 

the section was revised to align with the 

revised section 48 CFR 970.1504–1–4 

(48 CFR 970.1504–104). 

• Section 970.1504–1–6 (970.1504– 

106): This final rule revises and 

reorganizes the section to clarify DOE 

policy on the calculation of the M&O 

maximum total available fee amount, for 

a one-year period once the total fee base 

for the year is determined, including the 

use of the DOE M&O fee schedules 

(section 970.1504–1–6), which list the 

maximum amount of fixed fee. The DOE 

fee schedules that are based on three 

types of efforts (Production, research 

and development (R&D), environmental 

management (EM)). The section was 

revised to align with the revised section 

970.1504–1–4 (48 CFR 970.1504–104). 

In addition, DOE has revised the section 

to better align the section with DOE 


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policy that an M&O contract is an 

‘‘incentive contract’’ unless otherwise 

approved by the SPE. 

• Section 970.1504–1–7 (970.1504– 

107): This final rule revises and 

reorganizes the section to clarify DOE 

policy on application of the DOE facility 

classification factors in the calculation 

of the maximum total available fee, to 

increase the Classification Factor for 

research and development conducted at 

a laboratory from 1.25 to 1.5, to add a 

Classification Factor (of 1) for efforts 

performed using a fixed fee, and to 

relocate the policy on application of 

facility classification factors from 

current 48 CFR 970.1504–1–9 to this 

section. In addition, the section has 

been revised to align with the revisions 

to 48 CFR 970.1504–1–4 (48 CFR 

970.1504–104). This final rule increases 

the Classification Factor for research 

and development conducted at a 

laboratory because of the increased 

importance DOE places on such efforts. 

This final rule adds the Classification 

Factor for efforts performed using a 

fixed fee because, despite the rare use of 

fixed fee, use of a fixed fee is permitted 

by DOE’s fee policy. 

• Section 970.1504–1–8 (970.1504– 

108): This final rule revises and 

reorganizes the section to clarify DOE 

policy on consideration of the specific 

circumstances of the procurement in the 

calculation of the maximum total 

available fee, the application of DOE 

significant factors for each type of effort, 

and relocates the DOE policy on the 

consideration of significant factors from 

current 48 CFR 970.1504–1–5 to this 

section. 

• Section 970.1504–1–9 (970.1504– 

109): This final rule revises the section 

to clarify the sequence for calculating, 

and the step-by-step process for 

determining, the maximum total 

available fee for an M&O contract. In 

addition, the section is revised to align 

with revisions to section 970.1504–1–4 

(48 CFR 970.1504–104). 

• Section 970.1504–1–10 (970.1504– 

110): This final rule revises the section 

to reorganize and clarify the policy for 

calculating the maximum total available 

fee for an M&O contract, the policy for 

the length of evaluation periods, the 

policy for allocating the maximum total 

available fee amount for a one-year 

period, and the policy for the use of 

evaluation periods greater than one 

year. The policy on the length of 

evaluation periods and the use of 

evaluation periods greater than one year 

is relocated from the current 48 CFR 

970.1504–1–2(c) and (d) to this section. 

• Section 970.1504–1–11 (970.1504– 

111): This final rule revises the section, 

which is simply a repetition of the last 

step in calculating the maximum total 

available fee for a contract. This section 

is aligned with the revisions in section 

970.1504–1–4 (48 CFR 970.1504–104). 

• Section 970.1504–2–1 (970.1504– 

201): This final rule amends this section 

to maintain its current guidance on cost 

or pricing data (relocated from current 

section 970.1504–3–1). This final rule 

also removes its current guidance: on 

the documentation of the fee 

prenegotiation objective (section 

970.1504–1–11); and on the price 

negotiation (section 970.1504–2). The 

language in the deleted sections is 

unnecessary either because it is 

primarily procurement guidance 

adequately covered elsewhere (among 

other places, at 48 CFR 15.406–1 and 

15.406–3 and internal DOE guidance) or 

primary funding guidance that should 

be addressed in the Office of Chief 

Financial Officer’s guidance. 

• Section 970.1504–3 (970.1504–300): 

This final rule moves the policy 

currently located at 48 CFR 970.1504–5 

to this section. The revisions to the text 

of section 970.1504–5 include: 

Æ deleting references to the Total 

Available Fee clause’s Alternates I 

through IV, currently found at 48 CFR 

970.1504–5(a)(1) through (4) because 

elsewhere DOE is revising the Total 

Available Fee clause and eliminating its 

Alternates I through IV; 

Æ deleting the prescription for the 

Cost Reduction clause (currently found 

at 970.1504–5(c)) because DOE no 

longer uses cost reductions incentives 

(DOE is also eliminating the policy and 

clause for cost reductions incentives, 

found at sections 970.1504–1–4(f) and 

970.5215–4, respectively, because DOE 

uses value engineering instead of cost 

reduction incentives); 

Æ deleting the references to the clause 

at 970.5215–3’s Alternates I and II, 

found at 48 CFR 970.1504–5(b)(2) and 

(3) because elsewhere DOE is revising 

the clause to eliminate the need for the 

Alternates; and 

Æ revising for clarity DOE’s policy on 

using the Limitation on Fee solicitation 

provision (found at 970.5215–5). 

• Section 970.1706–1: This final rule 

amends this section to clarify the DOE 

policy on the award, renewal, and 

extension of M&O contracts. 

Æ Paragraph (a): This paragraph is 

revised to clarify the DOE policy that: 

(1) effective performance under an M&O 

contract is facilitated by the use of a 

relatively long contract term; (2) only 

the Secretary can authorize the use of an 

M&O contract; and (3) only the 

Secretary can renew the original 

authorization of an M&O contract. 

Æ Paragraph (a)(1): This paragraph is 

added to reorganize content and clarify 

DOE policy that an M&O contract shall 

provide for a base term not to exceed the 

lesser of five years or the maximum 

term the Secretary authorized. 

Æ Paragraph (a)(2): This paragraph is 

added to reorganize content and clarify 

DOE policy that: (1) the contract may 

include option terms provided no 

option term exceeds the lesser of five 

years or the maximum term the 

Secretary authorized; (2) the sum of base 

term and the option terms does not 

exceed the lesser of 10 years or the 

maximum term the Secretary authorized 

for the contract; (3) in addition to the 

base term and the option terms just 

described, an M&O contract for a 

national laboratory that is competitively 

awarded may provide for award term 

incentives provided none exceed the 

maximum term the Secretary authorized 

for each; and (4) the sum of base term, 

option terms, and award terms shall not 

exceed the lesser of 20 years or the 

maximum term the Secretary authorized 

for the contract. 

Æ Paragraph (a)(3): This paragraph is 

added to reorganize content and clarify 

DOE policy that after the Secretary’s 

original authorization of the use of the 

M&O contract has expired, any 

continuation of work under an M&O 

contract must be preceded by the 

Secretary’s renewal of the authorization 

for use of an M&O contract. 

Æ Paragraph (a)(4): This paragraph is 

added to reorganize content and clarify 

DOE policy that a sole source extension 

of an M&O contract to the incumbent 

must be justified under one of the 

statutory authorities listed in 48 CFR 

6.302 and authorized by the Secretary. 

Æ Paragraph (a)(5): This paragraph is 

added to reorganize content and clarify 

DOE policy that the specific duration of 

the base term, option terms, and award 

terms of an M&O contract must be 

established concurrent with the 

Secretary’s authorization (or renewal of 

his/her authorization) to use an M&O 

contract (for original use, sole source 

award to a new contractor, competitive 

award to a new contractor or to the 

incumbent, or sole source extension of 

the contract to the incumbent). 

Æ Paragraph (b): This paragraph is 

revised to clarify the DOE policy that 

the contracting officer’s decision to 

exercise an option must be approved by 

the Senior Procurement Executive and 

the cognizant Assistant Secretary(s), and 

that in deciding to exercise the option, 

the contracting officer shall make the 

determinations required by 48 CFR 

17.605. 

Æ Paragraph (b)(1): This paragraph is 

added to clarify DOE policy that for the 

exercise of an M&O option period, the 

contracting officer shall consider the 


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extent to which performance-based 

management contract provisions are 

present or can be negotiated into the 

contract. 

Æ Paragraph (b)(2): This paragraph is 

added to reorganize content and clarify 

DOE policy that for the exercise of an 

M&O option period, the contracting 

officer shall make the determinations 

required by 48 CFR 17.605 in the 

manner described therein. The content 

formerly located at paragraph (b) is 

moved here and provides that as part of 

the review required by 48 CFR 

17.605(b), the contracting officer shall 

assess whether competing the contract 

will produce a more advantageous offer 

than exercising the option; the 

incumbent contractor’s past 

performance under the contract; the 

extent to which performance-based 

management contract provisions are 

present, or can be negotiated into, the 

contract; and the impact of a change in 

a contractor on the Department’s 

discharge of its programs. The 

contracting office shall address the 

considerations in 48 CFR 17.605 in the 

decision that the exercise of the option 

is in the Government’s best interest. The 

new paragraph adds that the 

determination described in 48 CFR 

17.207(d) and (e)(2) is not required, and 

because of the way in which the 

evaluation of cost to the Government is 

performed in the award of an M&O 

contract that includes options, the 

contracting officer need only determine 

the option was evaluated as part of the 

initial competition and contains a 

maximum fee. The contracting officer 

need not, for example: issue a new 

solicitation; informally analyze prices; 

or determine the option is the more 

advantageous offer. 

• Sections 970.1707–1, 970.1707–3, 

and 970.1707–4: This final rule amends 

these sections to make minor editorial 

changes to update references and update 

policy to reflect the Department of 

Energy Research and Innovation Act 

(Pub. L. 115–246). In addition to 

referencing the Economy Act (31 U.S.C. 

1535), 42 U.S.C. 7259a has been added 

as the authority for the Secretary to 

allow work to be performed at DOE 

laboratories ‘‘on behalf of other 

departments and agencies of the 

Government, agencies of State and local 

governments, and private persons and 

entities’’. 

• Sections 970.1708, 970.1708–1, 

970.1708–2, and 970.1708–3: This final 

rule adds these sections to integrate a 

new DOE policy on Agreements for 

Commercializing Technology (ACT) and 

prescribe a new clause at 48 CFR 

970.5217–2. The rule adds new 

regulatory coverage that provides 

authorization for M&O contractors to 

conduct third party-sponsored research 

at the M&O contractor’s risk under 

Agreements for Commercializing 

Technology. Whereas the requirements 

and policy for Agreements for 

Commercializing Technology are 

currently contained in DOE guidance 

and in special provisions included in 

contracts, this final rule will establish 

regulatory coverage and incorporate the 

requirements into a new clause at 48 

CFR 970.5217–2. DOE is adding the new 

policy and clause to allow M&O 

contractors to engage with industry 

more flexibly on research and 

technology transfer projects. Through 

ACT, an M&O contractor can negotiate 

and accept financial and performance 

risks and accept terms and conditions 

more consistent with industry practice 

that are not permitted under 

Cooperative Research and Development 

Agreements and SPP agreements to 

advance technology transfer and the 

commercialization of technologies. 

• Section 970.1907–8: This final rule 

adds this section to clarify that 

Contracting Officers should insert the 

clause at 48 CFR 5219–9, Small 

Business Subcontracting Plan, in all 

M&O solicitations and contracts and to 

prescribe a new clause that supplements 

the FAR clause at 48 CFR 970.5219, 

‘‘Small Business Subcontracting Plan’’. 

The new clause incorporates a DOE 

policy concerning ‘‘Management and 

Operating Contractor Subcontract 

Reporting Capability (MOSRC)’’ to 

collect key information about M&O 

contractor first tier subcontracts for 

reporting to the Small Business 

Administration. 

• Subpart 970.22: This final rule 

redesignates sections 970.2201–1 

through 970.2201–2–2 as provided by 

the table in section II of this document 

to conform with the FAR numbering 

system. Cross references in sections 

970.5222–1, 970.5222–2, and 970.5244– 

1 have been updated to reflect the new 

numbering. 

• Section 970.2201–1–1 (970.2201– 

110): This final rule amends this section 

to identify situations with nonmanagement and operating contracts 

where the applicability of management 

and operating contractor basic labor 

policies may apply. 

• Section 970.2201–1–2 (970.2201– 

120): This final rule amends this section 

in several places to identify the basis for 

the policies presented by adding a 

citation to the underlying regulations. 

The amendments also include minor 

textual edits for clarity, including 

applicability to certain non-M&O 

contracts as described in section 

970.2201–1–1 and limit the scope of this 

section to wages, salaries, and employee 

benefits under the collective bargaining 

agreement process. The final rule also 

transfers more general matters from this 

section to section 970.2201–140. 

• Section 970.2201–1–3 (970.2201– 

130): This final rule revises this section 

to add language to expand the 

applicability of section 970.5222–1, 

Collective Bargaining Agreements— 

Management and Operating Contracts to 

certain non-M&O contracts (as described 

in section 970.2201–110) and require 

that it be flowed down to subcontracts 

for protective services or other services 

performed at a DOE-owned site that 

affect continuity of operations. 

• Section 970.2201–140: This final 

rule adds this section to incorporate 

policy on critically skilled employees 

initially established in DOE Acquisition 

Letter 94–19 and to emphasize the 

connection to a contractor’s 

compensation system and policies in 

the recruitment and retention of a 

critically skilled workforce. This section 

also emphasizes that costs in support of 

this policy must be reasonable and meet 

allowability requirements. Lastly, the 

discussion of wages, salaries, and 

employee benefits removed from section 

970.2201–1–2 is relocated to this 

section. 

• Sections 970.2204, 970–2204–1, and 

970–2204–1–1: This final rule revises 

section 970.2204 to clarify that both 

non-management and operating 

contracts and management and 

operating contracts are subject to the 

same subpart 922.4 governing labor 

standards involving construction. 

Accordingly, the reader is pointed to the 

policy in subpart 922.4, and section 

970.2204–1 is removed as duplicative. 

Section 970.2204–1–1 is relocated to 

subpart 922.4 as well. 

• Section 970.2210: This final rule 

revises this section to update the 

reference to the Service Contract Act of 

1965. The section heading is revised to 

read ‘‘Service contract labor standards’’ 

and the section text updates the 

reference to read ‘‘The Service Contract 

Labor Standards, historically referred to 

as the Service Contract Act of 1965’’. 

• Section 970.2270: This final rule 

revises this section regarding 

unemployment compensation to better 

comport with existing federal and state 

unemployment compensation laws and 

eliminate inconsistencies. 

• Section 970.2270–2: This final rule 

adds this prescription to ensure 

Contracting Officers include the clause 

at section 970.5222–4, Unemployment 

Compensation, in applicable 

solicitations and contracts and that fillin data are also identified by the 

Contracting Officer. 


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• Section 970.2301–1: This final rule 

removes this section as its contents 

include an out-of-date hyperlink, 

reference to the requirements of a 

rescinded Executive order, and internal 

procedures that are not necessary to set 

forth in regulation. 

• Section 970.2301–2: This final rule 

revises this section to: (1) add a 

prescription for the inclusion of the 

clause at section 952.223–78, 

‘‘Sustainable Acquisition Program’’; (2) 

remove prescriptions for clauses that are 

proposed for removal (section 

970.5223–6, which is removed because 

the Executive order that is its basis has 

been revoked and section 970.5223–7 

which duplicates the clause at section 

952.223–78); and (3) remove 

prescriptions for various FAR clauses as 

they are already prescribed in 48 CFR 

chapter 1 and it is unnecessary to 

prescribe them here. 

• Section 970.2303–2–70: This final 

rule redesignates this section as section 

970.2303–2 in order to conform with 

FAR numbering and revises the text of 

the section to update the office name in 

paragraph (c)(2)(ii). 

• Section 970.2305: This final rule 

redesignates section 970.2305 consisting 

of sections 970.2305–1 through 

970.2305–4 as 970.2605 consisting of 

sections 970.2605–1 through 970.2605– 

4 respectively. These changes are 

necessary to align with recent FAR 

restructuring which moved ‘‘Drug Free 

Workplace’’ coverage from FAR 23.5 to 

FAR 26.5. Conforming changes are also 

made as necessary to update references 

to the associated FAR coverage as well 

as to the referenced DEAR clauses 

which are appropriately redesignated. 

• Section 970.2306: This final rule 

redesignates section 970.2306 as 

970.2606. These changes are necessary 

to align with recent FAR restructuring 

which moved ‘‘Drug Free Workplace’’ 

coverage from FAR 23.5 to FAR 26.5. 

Conforming changes are also made as 

necessary to update references to the 

associated FAR coverage as well as to 

the referenced DEAR clauses which are 

appropriately redesignated. 

• Section 970.2672–3: This final rule 

revises the section to clarify the 

applicability of 48 CFR 952.226–74 

‘‘Workforce Restructuring and Displaced 

Employee Hiring Preference’’ to both 

non-management and operating 

contracts and management and 

operating contracts pursuant to section 

3161 of the National Defense 

Authorization Act for Fiscal Year 1993. 

• Section 970.2673–2: This final rule 

revises the section to change the 

prescription for the clause at section 

970.5226–3, ‘‘Community 

Commitment’’, making it optional rather 

than mandatory. 

• Section 970.2701–1: This final rule 

revises the section to clarify that subpart 

970.27 applies to contracts for 

decontamination and decommissioning 

activities. 

• Sections 970.2702 and 970.2702– 

70: This final rule makes several 

amendments to sections 970.2702 

through 970.2702–6. Specifically, the 

rule: (1) revises the heading to section 

970.2702 and section numbering to 

conform to the FAR subpart 27.2 which 

this subpart supplements; and (2) 

consolidates clause prescriptions 

formerly located in sections 970.2702–2 

through 970.2702–6 into new section 

970.2702–70. 

• Section 970.2703–1: This final rule 

revises the section to streamline content 

by removing paragraphs (b)(1) through 

(5) as its content is adequately 

addressed elsewhere, and redesignating 

paragraph (c) as paragraph (b). 

• Section 970.2703–2: This final rule 

revises the section to address more 

clearly when each of the patent clauses 

should be used based on the type of 

Contractor and patent waivers granted. 

In addition, paragraph (a)(2) addresses 

‘‘privately funded technology transfer’’ 

activities that are authorized under 

Alternate I of 48 CFR 970.5227–3. 

Although there is no specific language 

prescribed by an Alternate in this 

clause, the instructions allow further 

changes to the patent clause if DOE or 

the Contractor requests to further define 

use of royalty funds, cost restrictions 

and liability related to privately funded 

licensing activities. Since DOE has 

replaced a DEAR clause for subcontracts 

to non-profit organization or small 

business firms with the FAR provision 

at 37 CFR 401.14, a new paragraph (h) 

is added to address the use of 

appropriate Alternates I or II for 48 CFR 

952.227–11 to add agency implementing 

regulations and, if applicable, DOE’s 

Declaration of Exceptional 

Circumstance for substantial U.S. 

manufacture. 

• Section 970.2704–2: This final rule 

revises this section to: (1) add a 

sentence at the end of paragraph (a) that, 

in compliance with Government-wide 

mandates to make research results 

publicly available, references section 

935.010 for R&D results conveyed in 

scientific and technical information and 

DOE Order 241.1B which addresses 

requirements for scientific and technical 

information that are stored in the Office 

of Scientific and Technical Information 

(OSTI); and (2) revises the last sentence 

of paragraph (e) to reflect the new 

standard of not requiring the Contractor 

to renew copyright exclusivity every 

five years, which was administratively 

burdensome and hampered long-term 

licensing activity, but to notify Patent 

Counsel and OSTI when commercial 

activity ceases. 

• Section 970.2704–3: This final rule 

revises the section to add more clarity 

as to when to use either of the Rights in 

Data clauses in M&O Contracts. 

• Section 970.2770–2: This final rule 

revises this section to reflect the 

addition of the new clause at section 

970.5217–2, Agreements for 

Commercializing Technology (ACT), 

and require its inclusion in new awards 

for or extensions of existing DOE 

laboratory or weapon production facility 

M&O contracts. By authorizing the use 

of ACT, the Contractor may engage with 

third parties with more flexibility in 

terms, but the Contractor accepts greater 

risks in advance funding and liability. 

• Section 970.2803–1: This final rule 

revises this section by updating the 

office name in paragraph (b)(1). 

Additionally, in paragraph (b)(3), this 

final rule establishes the Head of 

Contracting Activity as the official 

responsible for approving management 

and operating contractor employees’ 

benefit plans because that individual is 

better situated to make these 

determinations. 

• Section 970.2803–2: This section is 

revised to update the reference in the 

last sentence from ‘‘(f)(3)(C)’’ to 

‘‘(f)(1)(iii)(C)’’. 

• Subpart 970.31: This final rule 

redesignates sections 970.3101–00–70 

through 970.3102–05–70 as provided by 

the table in section II of this document 

to conform with the FAR numbering 

system. 

• Section 970.3101–2: This section is 

added to clarify that the cost principles 

of 48 CFR 31.2 and subpart 970.31 apply 

to M&O contracts, regardless of entity 

type. 

• Section 970.3102–3–70 (970.3102– 

370): This section is revised to remove 

the parenthetical reference in paragraph 

(a)(3)(i) because DOE’s fee policy no 

longer distinguishes between a contract 

for the management and operation of a 

laboratory and a contract for the 

management and operation of a nonlaboratory. 

• Section 970.3102–05–6 (970.3102– 

506): This final rule revises this section 

by removing the last sentence of 

paragraph (a)(6) which states ‘‘For 

purposes of designating the threshold, 

total compensation includes only the 

employee’s salary and cash bonus or 

incentive compensation.’’ Removing 

this sentence increases DOE flexibility 

in this area to account for other things 

which should be included in the 

definition of total compensation, such 


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as deferred compensation. In addition, 

paragraph (p)(1) which references the 

Office of Federal Procurement Policy 

senior executive compensation 

benchmark is removed because that 

information is covered in the FAR. This 

final rule also adds a pointer to that 

coverage at the end of paragraph 

(a)(7)(ii). 

• Section 970.3200–1: This final rule 

revises the section, in paragraph (c), by 

removing the words ‘‘remedy 

coordination official’’ and adding in 

their place ‘‘Head of the Contracting 

Activity’’. This change is intended to 

improve clarity since ‘‘remedy 

coordination official’’ is an undefined 

term that is not widely used whereas 

‘‘Head of the Contracting Activity’’ is 

universally used and understood in the 

acquisition community. 

• Section 970.3200–1–1: This final 

rule redesignates section 970.3200–1–1 

as section 970.3200–11 to conform with 

the FAR numbering system. A cross 

reference in section 970.5232–1 is 

updated to reflect the new numbering. 

• Section 970.3270: This section is 

revised by removing section 970.5203– 

1, ‘‘Management Controls,’’ from the list 

of standard financial management 

clauses at paragraph (a)(4) and 

redesignating paragraphs (a)(5) through 

(8) as paragraphs (a)(4) through (7). The 

management controls clause is 

prescribed elsewhere and does not need 

to be prescribed here as well. 

• Section 970.3501–1: This section is 

revised to remove an obsolete reference. 

• Section 970.3501–2: This final rule 

revises this section to update references 

and clarify that only a federal 

Contracting Officer can obligate the 

Government to place work on the 

contract and obligate the Government to 

reimburse the contractor under the 

contract. 

• Section 970.4102–1: This final rule 

revises this section to update office 

names, remove references to a rescinded 

DOE Order, clarify that Federal Energy 

Management Program (FEMP) 

concurrence is not necessary for NNSA 

programs, and make minor editorial 

changes. 

• Subpart 970.42: This final rule 

redesignates sections 970.4207–03–02, 

970.4207–03–70, and 970.4207–05–01 

as provided by the table in section II of 

this document to conform with the FAR 

numbering system. Cross references in 

sections 970.3101–10 and 970.5242–1 

are updated to reflect the new 

numbering. 

• Section 970.4207–05–01(970.4207– 

501): This section is revised, in 

paragraph (b)(4)(ii) to add the words ‘‘if 

such costs have been the subject of a 

DOE audit’’ to the end of the sentence. 

This change is made in order to clarify 

that the contracting officer cannot 

resolve any questioned costs that have 

been the subject of a DOE audit without 

first obtaining the opinion of the DOE’s 

auditor on the allowability of such 

costs. 

• Section 970.4401–1: This section is 

revised to remove Balanced Scorecard 

metrics as a means of evaluating 

purchasing systems and allow for other 

metrics to be used. This change is made 

because the Balanced Scorecard 

program does not include metrics for 

evaluating M&O contractor purchasing 

systems. 

• Section 970.4402–1: This final rule 

revises this section to add a new 

paragraph (c) which states that the M&O 

contractor’s purchasing performance, 

including compliance with its approved 

system and methods, will be evaluated 

against the performance criteria and 

measures set forth in 48 CFR part 44, 

subpart 44.3, using the procedures 

articulated in DOE policies including 

DOE guidance on oversight of M&O 

Contractor’s Purchasing Systems. 

• Section 970.4501–1: This final rule 

amends this section by revising the 

section heading to read ‘‘Applicability’’ 

and replacing the existing section text 

(moved to new section 970.4501–2) with 

language that clarifies the applicability 

of this subpart to M&O contractors and 

on-site environmental management and 

other major prime contractors as 

designated by the SPE. A reference to 41 

CFR chapter 109 is also added. 

• Section 970.4501–2: This final rule 

adds this section with text taken from 

the former section 970.4501–1. 

Paragraph (a) is modified by adding 

‘‘and environmental management, and 

other major prime contractors located at 

DOE sites’’ to the end of the first 

sentence; removing the second sentence; 

and updating the reference to 

managerial personnel in the third 

sentence from ‘‘paragraph (j)’’ to 

‘‘paragraph (k)’’. 

• Section 970.5203–1: This final rule 

amends the ‘‘Management Controls’’ 

clause, in the introductory text, by 

removing the words ‘‘and 

970.3270(a)(4)’’ before the words ‘‘insert 

the following clause:’’. It is only 

necessary to prescribe this clause in one 

location, and the second prescription 

located at section 970.3270(a)(4) was 

therefore removed (as described above). 

• Section 970.5204–1: This final rule 

removes the ‘‘Counterintelligence’’ 

clause from part 970 and relocates it to 

section 952.204–74, as this requirement 

pertains to both M&O and non-M&O 

contractors. 

• Section 970.5204–3: This final rule 

revises the ‘‘Access to and Ownership of 

Records’’ clause to incorporate a class 

deviation. Paragraph (b) is revised to 

delete the parenthetical instruction to 

Contracting Officers in the second 

sentence as well as the last sentence of 

paragraph (b)(1), which lists examples 

of employee-related systems of record. 

Paragraph (g) is revised to replace the 

automatic flow down requirement based 

on the presence of the ‘‘Integration of 

environment, safety, and health into 

work planning and execution’’ clause 

currently at section 970.5223–1 with 

language that requires the contractor to 

flow down the clause (or maintain the 

applicable records themselves) 

whenever the subcontract scope of work 

could result in potential exposure to 

radioactive or other toxic substances 

that can cause long term health impacts. 

• Section 970.5215–1: This final rule 

revises the ‘‘Total available Fee: Base 

Fee Amount and Performance Fee 

Amount’’ clause to make minor editorial 

revisions throughout to improve clarity. 

• Section 970.5215–3: This final rule 

revises the ‘‘Conditional Payment of 

Fee, Profit, and other Incentives— 

Facility Management Contracts’’ clause 

to: update references; make revisions for 

clarity; remove Alternate I (it addressed 

contracts without security requirements; 

its requirements are now combined with 

the basic clause); and remove Alternate 

II (it addressed contracts awarded on a 

cost plus award fee basis; it is no longer 

necessary). 

• Section 970.5215–4: This final rule 

removes the ‘‘Cost Reduction’’ clause. 

Because the Department has a value 

engineering policy for M&O contracts, a 

cost reduction clause is not necessary. 

• Section 970.5215–5: This final rule 

revises the ‘‘Limitation on Fee’’ clause 

by updating the reference for the clause 

prescription in the introductory text and 

making minor editorial changes for 

clarity in paragraph (b). 

• Section 970.5217–1: This final rule 

revises the ‘‘Strategic Partnership 

Projects Program (Non-DOE Funded 

Work)’’ clause to incorporate the 

Research and Innovation Act and Master 

Scope of Work requirements, which 

reduce the transactional approvals by 

DOE for previously approved groups of 

projects. In paragraph (d)(3), DOE has 

modified its requirements for requiring 

intellectual property indemnity to allow 

the contractor to reserve the provision 

when the sponsor is a federally-funded 

entity (DOE accepting liability to 

promote Government funded research) 

or a state or local government or public 

university, which may be prohibited 

from indemnifying others by state law. 

Minor editorial changes have also been 

made, to include consistently 


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referencing ‘‘SPP projects’’ rather than 

‘‘agreement package’’. 

• Section 970.5217–2: This final rule 

adds a new ‘‘Agreements for 

Commercializing Technology’’ clause in 

order to integrate a new DOE policy that 

was developed to allow M&O 

contractors to engage with industry 

more flexibly on research and 

technology transfer projects. Through 

ACT, an M&O contractor can negotiate 

and accept financial and performance 

risks and accept terms and conditions 

more consistent with industry practice 

that are not permitted under 

Cooperative Research and Development 

Agreements and SPP agreements. 

Whereas the requirements and policy 

for Agreements for Commercializing 

Technology are currently contained in 

DOE guidance and in special provisions 

included in contracts, this final rule will 

establish regulatory coverage and 

incorporate the requirements into this 

new clause. 

• Section 970.5219: This final rule 

adds a new ‘‘Small Business 

Subcontracting Plan’’ clause, in order to 

integrate a new DOE policy concerning 

the ‘‘Management and Operating 

Contractor Subcontract Reporting 

Capability (MOSRC)’’, a DOE system, 

and associated processes to collect key 

information about M&O contractor first 

tier subcontracts for reporting to the 

Small Business Administration. 

• Section 970.5222–4: This final rule 

adds a new ‘‘Unemployment 

Compensation’’ clause to address 

situations where a contractor, under 

federal and state unemployment rules 

are permitted to opt out of paying the 

state unemployment insurance tax and 

permitted to instead reimburse the state 

for actual claims paid out to its former 

employees. This section requires 

notification to the Government of its 

election and asserts governments right 

to review such changes to assess 

budgetary and programmatic risks when 

opting out. 

• Section 970.5223–3: This final rule 

redesignates the provision entitled 

‘‘Agreement regarding Work-place 

Substance Abuse Programs at DOE 

sites’’ as 970.5226–4 and makes 

conforming changes to the prescription 

in the introductory text. These changes 

are necessary to align with recent 

restructuring of FAR Part 23 which 

moved the corresponding ‘‘Drug Free 

Workplace’’ coverage from FAR 23.5 to 

FAR 26.5. 

• Section 970.5223–4: This final rule 

redesignates the ‘‘Workplace Substance 

Abuse Programs at DOE sites’’ clause as 

970.5226–5 and makes conforming 

changes to the prescription in the 

introductory text. These changes are 

necessary to align with recent 

restructuring of FAR Part 23 which 

moved the corresponding ‘‘Drug Free 

Workplace’’ coverage from FAR 23.5 to 

FAR 26.5. 

• Section 970.5223–6: This final rule 

removes the ‘‘Executive Order 13423, 

Strengthening Federal Environmental, 

Energy, and Transportation 

Management’’ clause because Executive 

Order 13423 has been rescinded. 

• Section 970.5223–7: This final rule 

removes the ‘‘Sustainable Acquisition 

Program’’ clause on the basis that it 

duplicates the clause at section 

952.223–78, which is prescribed in 

section 923.172. 

• Section 970.5226–1: This final rule 

revises the ‘‘Diversity Plan’’ clause to 

incorporate the more current 

terminology of ‘‘Diversity, Equity, 

Inclusion, and Accessibility’’ (DEIA) 

and make minor editorial revisions. 

This update will better align the DOE 

clause with current Administration 

initiatives and will clarify the broader 

scope of recent DEIA initiatives. 

• Section 970.5227–1: This final rule 

revises the ‘‘Rights in Data-Facilities’’ 

clause to add new definitions of 

Assistant General Counsel for 

Technology Transfer and Intellectual 

Property, Department of Energy, and 

Patent Counsel for clarity. The revisions 

also add a new paragraph (b)(4) 

requiring the Contractor to deposit 

technical data at the Office of Scientific 

and Technical Information per the DOE 

Order 241.1. Paragraph (c)(3) is added to 

allow the Government to instruct the 

Contractor to assert copyright in 

technical data or software and transfer 

title to the Government for licensing and 

distribution if necessary. Paragraph (d) 

is modified to allow Patent Counsel to 

determine what Alternates are 

appropriate to data rights clauses in 

subcontracts. In order to allow for 

competitive solicitations, Alternate II is 

added to include a provision in the 

Limited Rights Notice to allow for the 

use of contractor’s proprietary data in 

solicitations for government facilities 

being constructed, modified or 

decontaminated and decommissioned. 

• Section 970.5227–2: This final rule 

revises the ‘‘Rights in Data-Technology 

Transfer’’ clause to add several new 

definitions of Assistant General Counsel 

for Technology Transfer and Intellectual 

Property, Department of Energy, Open 

Source Software, and Patent Counsel for 

clarity. Paragraph (b) was broadened to 

allow the lab to assert copyright from 

just articles to ‘‘works’’ such as 

drawings, chapters in books, workshop 

documents, datasets, etc. that are 

released to the public. This allows 

control of the content when the public 

uses or references this copyright work, 

but still satisfies DOE’s duty to 

disseminate the results of its research. 

Also, Office of Scientific and Technical 

Information requirements are updated 

in this section to comply with DOE 

Order 241.1. Added paragraph (c)(3) 

allows the government to direct the 

Contractor to assert copyright and 

transfer title to the Government for 

further control and distribution of 

technical data and software. As part of 

the broadening of copyright assertion 

without DOE Patent Counsel approval, 

paragraph (d) expands the type of data 

that the Contractor can protect for 

control without commercializing and 

adds a shorter notice to the publisher if 

necessary. Since paragraph (d) 

expanded the type of data, paragraph (e) 

is revised to require DOE Patent Counsel 

approval when the Contractor needs to 

control distribution to advance the goals 

of the technology transfer mission 

through commercialization. When the 

Contractor is granted permission to 

assert copyright, the five-year renewal 

periods have been changed to a period 

of commercialization activities since 

software can be useful for decades and 

licensees are reluctant to commercialize 

for only five years if DOE Patent 

Counsel rejected any extensions of time. 

The government may distribute copies 

to the public of the copyrighted work 

after the period of commercialization 

has ended. Paragraph (f) is added to 

address copyright assertion and 

distribution in open source software 

(OSS). The Contractor must notify the 

funding program that the Contractor 

intends to distribute the software as 

OSS and the program has two weeks to 

object. DOE Patent Counsel can supply 

that approval if a funding program 

doesn’t exist. This section also provides 

the requirements that the Contractor to 

retain records, distribute OSS such as 

the type of OSS licenses used and allow 

the public free access to software. 

Paragraph (g), Subcontracting, has been 

revised to allow DOE Patent Counsel to 

approve the use of 48 CFR 52.227–14, 

Rights in Data-General, or 48 CFR 

52.227–17, Rights in Data-Special 

Works. The definitions in section 

927.409(a) have been removed to use 

Alternate I of 48 CFR 52.227–14. The 

paragraph (d)(3) in section 927.409 has 

been replaced with Alternate VIII of 48 

CFR 952.227–14 to allow DOE Patent 

Counsel to approve copyright requests. 

Similarly, Alternate I of 48 CFR 

952.227–17 permits DOE Patent Counsel 

to direct a subcontractor to assert 

copyright in technical data and transfer 

to the Government or a third party such 

as the Contractor. This will allow the 


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Laboratory to consolidate copyright title 

if portions are generated by 

subcontractors. Alternate II of this 

clause is added to include a provision 

for Limited Rights Data in the Notice for 

government facilities being constructed, 

modified or decontaminated and 

decommissioned. 

• Section 970.5227–3: This final rule 

revises the ‘‘Technology Transfer 

Mission’’ clause to address the M&O 

Contractor’s use of Trademark and 

Service marks with regards to the 

Laboratory names and facilities. In 

paragraph (a), statutory updates are 

included to comply with the Laboratory 

Modernization and Technology Transfer 

Act. Paragraph (b) includes, for clarity, 

new definitions for Bailment, 

Assignment, Strategic Partnership 

Projects (SPP), Agreements for 

Commercializing Technology (ACT), 

Master Scope of Work, and Joint Work 

Statement. Paragraph (d), Conflicts of 

Interest—Technology Transfer, has been 

modified in paragraph (d)(8) to include 

more information when the Contractor 

requests for approval of some exclusive 

licenses or assignments of technology to 

third parties. In addition, paragraph 

(d)(10) is revised to better define when 

the DOE is to be notified of potential 

conflicts when evaluating proposals on 

behalf of the program. In paragraph (f), 

U.S. Industrial Competitiveness, DOE 

has narrowed that applicability of this 

clause from intellectual property to only 

subject inventions. The Exceptional 

Circumstance Determination for U.S. 

Competitiveness (substantial U.S. 

manufacturing) when licensing 

contractor technology is added to this 

clause. After many years of experience, 

DOE has determined that a less 

cumbersome procedure, which involves 

relying on information available from 

United States Trade Representative 

(USTR) websites, can be utilized for 

obtaining the relevant information to 

assist in the consideration by the M&O 

contractor in determining whether the 

potential foreign licensee or assignee of 

laboratory inventions has similar 

protections for intellectual property in 

that foreign country. Paragraph (g), 

Indemnity-Product Liability, was 

amended to exclude CRADA 

(Cooperative Research and Development 

Agreements) and SPP requirements for 

product liability indemnity because it is 

covered under guidance for those 

agreements. Paragraph (l) was amended 

to allow the annual technology transfer 

plan to be included in the Annual 

Laboratory Plan. Paragraph (n)(3)(iii) 

was added to require the CRADA Final 

Report required in DOE Order 483.1 to 

be submitted to OSTI. Paragraph (n)(5) 

conflict of interest was changed from 

‘‘preparation, negotiation, or approval’’ 

to ‘‘negotiation, approval or 

performance’’ of CRADAs since 

preparing the agreements would include 

support staff with no control over the 

content and performance is added to 

capture the principal investigator’s role. 

When requirements for providing a 

Technology Partnership Ombudsman 

was added to the Contract, it was 

accidently added to Alternate I. To 

correct this error, paragraph (p) was 

added to move the Technology 

Partnership Ombudsman from Alternate 

I into the contract clause. Alternate I 

was revised to remove the ombudsman 

provision. 

• Section 970.5227–4: This final rule 

revises the ‘‘Authorization and 

Consent’’ clause in paragraphs (c)(1) 

through (3) to replace $100,000 with 

‘‘simplified acquisition threshold’’ so 

that when the simplified acquisition 

threshold limit is increased, this clause 

does not have to update the dollar 

value. 

• Section 970.5227–5: This final rule 

revises the ‘‘Notice and Assistance 

Regarding Patent and Copyright 

Infringement’’ clause, in paragraph (c) to 

replace $100,000 with ‘‘simplified 

acquisition threshold’’ so that when the 

simplified acquisition threshold limit is 

increased, this clause does not have to 

update the dollar value. 

• Sections 970.5227–6 through 

970.5227–9: This final rule revises the 

introductory text of each of these 

sections to reflect a new cross reference 

to 970.2702–70. 

• Sections 970.5227–10 and 

970.5227–12: This final rule revises the 

clauses at section 970.5227–10, ‘‘Patent 

Rights-Management and Operating 

Contracts, Nonprofit Organization or 

Small Business Firm Contractor,’’ and 

section 970.5227–12, ‘‘Patent RightsManagement and Operating Contracts, 

For-Profit Contractor,’’ in order to reflect 

statutory changes and addition of 

approved determinations of exceptional 

circumstance (DEC). Paragraph (a) of 

both clauses adds definitions of Initial 

Patent Application and Statutory Period 

for clarity. Paragraph (b)(3) of the clause 

at section 970.5227–10 (previously 

located at paragraph (b)(2)) and 

paragraph (b)(6) of the clause at section 

970.5227–12 (previously located at 

paragraph (b)(5)) have been modified to 

clarify when the Contractor may elect 

title to inventions that are covered 

under a DEC. Paragraph (c) of both 

clauses has been revised to allow 

electronic reporting using the 

Government’s iEdison or similar system 

along with certain information such as 

award numbers. Both clauses have 

changed the requirement for 

‘‘publication approval’’ to ‘‘publication 

review’’ requiring the Contractor 

Invention Identification Procedures to 

address notification to DOE instead of 

approval. In paragraph (g) of both 

clauses, the reference to 48 CFR 

925.227–11 has been replaced with 37 

CFR401.14 because 48 CFR 952.227–11 

has been revised with Alternates I and 

II for agency implementation of the 

DEC. In paragraph (j), March-in Rights, 

both clauses were modified to remove 

the four reasons where DOE can 

exercise this right by referencing the 

statute (for nonprofit organization or 

small business firm contractors) or 

patent waiver (for For-Profit 

Contractors.) Both clauses have added 

paragraph (t), U.S. Competitiveness, in 

compliance with the Determination of 

Exceptional Circumstance for Domestic 

Manufacture of DOE Science and Energy 

Technologies. Lastly, both clauses 

added a final paragraph on 

Unauthorized Access to require the 

Contractor to adequately protect 

materials related to inventions and 

notify DOE of a breach. 

• Section 970.5227–11: This final rule 

revises the ‘‘Patent Rights-Management 

and Operating Contracts, For-profit 

Contractor Non-Technology Transfer’’ 

clause in a few ways. First, the clause 

title is changed to remove ‘‘NonTechnology Transfer’’ and add ‘‘No 

Patent Waiver’’ in its place. Second the 

final rule adds a definition of 

Department of Energy to paragraph (a) 

for clarity. Additional changes are made 

to reflect statutory changes. 

Furthermore, paragraph (c)(2)(vii) 

requires not only the B&R code but 

related information such as funding 

announcements or SPP/CRADA 

numbers to make it easier to identify 

inventions from other sources and 

paragraph (c)(5) is modified to include 

reporting inventions to Government 

electronic reporting systems instead of 

the contracting officer or patent counsel. 

Finally, this final rule adds an 

‘‘Unauthorized Access’’ paragraph (o) to 

require the Contractor to adequately 

protect materials related to inventions 

and notify DOE of a breach. 

• Section 970.5232–2: This final rule 

revises the ‘‘Payments and Advances’’ 

clause to: (1) re-organize and re-number 

the paragraphs; (2) make editorial 

changes to streamline and simplify 

content to improve clarity and update 

references; and (3) add a paragraph 

concerning ‘‘provisional fee,’’ which 

DOE has never addressed in the DEAR, 

to Alternate II. Although DOE has 

issued internal guidance that defines 

provisional fee, articulates when it 

might be useful, and specifies how to 


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use it, neither the FAR nor the DEAR 

define or addresses it. Consequently, 

DOE has concluded it would be prudent 

to heighten awareness of DOE’s view of 

provisional fee by including some 

discussion of it in DEAR. 

• Section 970.5232–3: This final rule 

revises the ‘‘Accounts, Records, and 

Inspection’’ clause to clarify (in 

paragraph (c)) the contractor’s 

responsibility to either perform a 

sufficient amount of audit work of its 

subcontractors’ incurred costs or arrange 

for an audit of its subcontractors’ 

incurred costs. Minor editorial changes 

for clarity are also made. 

• Section 970.5232–5: This final rule 

revises the ‘‘Liability with Respect to 

Cost Accounting Standards’’ clause, in 

the introductory text, by updating the 

citation for the clause prescription. 

• Section 970.5232–6: This final rule 

revises the ‘‘Strategic Partnership 

Project Funding Authorization’’ clause, 

in the introductory text, by updating the 

citation for the clause prescription. 

• Section 970.5232–7: This final rule 

revises the ‘‘Financial Management 

System’’ clause to: (1) reorganize and 

number the paragraphs; (2) clarify that 

contractors must maintain and 

administer a financial management 

system that is in accordance with 

Generally Accepted Accounting 

Principles (GAAP) for Federal Entities 

as defined by the Federal Accounting 

Standards Advisory Board and 

implemented by the DOE Financial 

Management Handbook and other 

implementing policies; and (3) make 

minor editorial changes for clarity. 

• Section 970.5235–1: This final rule 

revises the ‘‘Federally Funded Research 

and Development Center Sponsoring 

Agreement’’ clause to make minor 

editorial revisions and to clarify that 

only the Contracting Officer can place 

work on the contract and obligate the 

Government to reimburse the Contractor 

for the work. 

• Section 970.5244–1: This final rule 

revises the ‘‘Contractor Purchasing 

System’’ clause to: (1) clarify the 

Contactor’s obligations regarding: 

maintaining documentation; providing 

audit or a sufficient amount of audit 

work; and for which subcontracts the 

Contractor must provide audit or a 

sufficient amount of audit work; (2) 

change the approval level for 

subcontractor indemnification requests 

from the SPE to the HCA in consultation 

with local legal counsel in paragraph (l) 

in order to give flexibility for local level 

approval of routine, low risk indemnity; 

(3) add seven clauses to the list of 

required subcontract flowdown 

requirements in paragraph (x); and (4) 

update references and make minor 

editorial changes for clarity. 

• Section 970.5245–1: This final rule 

revises the ‘‘Property’’ clause to add 

references to 41 CFR chapters 102 and 

109 and make minor editorial changes 

for clarity. 

V. Regulatory Review 

A. Review Under Executive Orders 

12866, 13563, and 14094 

Executive Order (E.O.) 12866, 

‘‘Regulatory Planning and Review,’’ as 

supplemented and reaffirmed by E.O. 

13563, ‘‘Improving Regulation and 

Regulatory Review,’’ 76 FR 3821 (Jan. 

21, 2011), and amended by E.O. 14094, 

‘‘Modernizing Regulatory Review,’’ 88 

FR 21879 (April 11, 2023), requires 

agencies, to the extent permitted by law, 

to (1) propose or adopt a regulation only 

upon a reasoned determination that its 

benefits justify its costs (recognizing 

that some benefits and costs are difficult 

to quantify); (2) tailor regulations to 

impose the least burden on society, 

consistent with obtaining regulatory 

objectives, taking into account, among 

other things, and to the extent 

practicable, the costs of cumulative 

regulations; (3) select, in choosing 

among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. Section 6(a) of E.O. 

12866 also requires agencies to submit 

‘‘significant regulatory actions’’ to the 

Office of Information and Regulatory 

Affairs (OIRA) for review. This final rule 

has been determined to be a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’ (58 FR 51735, October 4, 1993). 

Accordingly, this rule was reviewed 

under that Executive order by OIRA of 

the Office of Management and Budget 

(OMB). 

Consistent with Executive Orders 

12866, 13563 and 14094, DOE issues 

this final rule only on a reasoned 

determination that the benefits of the 

rule justify its costs, and, in choosing 

among alternative regulatory 

approaches, DOE has selected those 

approaches that maximize net benefits. 

DOE is undertaking a broad but largely 

procedural revision of its acquisition 

regulation to update and streamline the 

policies, procedures, provisions, and 

clauses that are currently applicable to 

its contracts. 

This final rule updates, clarifies, and 

eliminates coverage that is unclear, 

obsolete, or unnecessarily duplicates the 

FAR; incorporates class deviations into 

the coverage; streamlines the coverage’s 

policies and procedures where 

appropriate (taking into account DOE’s 

and its contractors’ actual experiences); 

and adds several new minor clauses in 

order to standardize local clause 

language throughout the department by 

eliminating the multiple versions of 

local clauses in current use. While this 

final rule does include several minor 

policy revisions, none of the revisions 

are substantial and in total they will 

have negligible impact on DOE’s 

operations, its contractors, or the 

economy. The revisions do not in any 

specific case, or in total, substantially 

change the existing DEAR or how DOE 

and DOE contractors adhere to the 

DEAR. Most of these proposed changes 

will not generate any additional costs. 

Nonetheless, DOE is highlighting 

several changes to the DEAR that raise 

potential cost burden concerns and 

discuss the expected impacts of these 

changes. 

First, this final rule includes a 

revision of the Facility Clearance clause 

and associated policy coverage to 

incorporate a pre-award Interim Access 

procedure and allow for final Facility 

Clearance post-award. This change is 

not expected to result in any increased 

costs and is intended to benefit the 

Government by leveraging interim 

access authorizations for key contractor 

personnel and improving efficiencies in 

the timeliness of contract awards, and in 

contract management. 

Additionally, DOE is revising the 

M&O fee policy to simplify the 

explanation of fee calculations, delete 

outdated requirements, and raise the 

classification factor for R&D laboratory 

from 1.25 to 1.5. These changes should 

not result in any increased costs. Most 

of the changes are editorial in nature, 

and are internal procedures directed to 

DOE contracting officers who will 

benefit from the simplified explanation 

of fee calculations. The change in 

classification factor is not expected to 

result in any cost increase since DOE 

expects no change to the total available 

fees under these contracts. The revisions 

are intended to reduce the 

administrative burden associated with 

routine requests to the SPE to exceed 


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the total available fees calculated using 

the existing classification factor. 

Furthermore, DOE is adding several 

new contract clauses. Four of these 

(Agreements for Commercializing 

Technology; Small Business 

Subcontracting Plan; Conditional 

Payment of Fee, Profit, and Other 

Incentives; Identification of Contractor 

Employees) are substantially similar to 

clauses already widely used in DOE 

contracts. As a result, these four changes 

will not result in any added burden or 

costs but would benefit the Department 

and its contractors by standardizing 

these clauses across contracts. 

The entirely new clauses are: 

• A clause to address situations 

where a M&O contractor is permitted 

under federal and state unemployment 

rules to opt out of paying the state 

unemployment insurance tax and 

instead reimburse the state for actual 

claims paid out to its former employees. 

The new clause requires notification to 

the government of the contractor’s 

election and asserts the government’s 

right to review such changes to assess 

budgetary and programmatic risks when 

opting out. This clause only applies to 

M&O contracts and the notification 

required poses no significant burden or 

cost. 

• A clause to clarify the policy and 

procedures for integrating DOE 

Directives into non-M&O contracts. 

Contractor requirements documents 

(CRDs), attached to DOE Directives, 

have been integrated into non-M&O 

contracts as needed for a long time. The 

addition of the new clause, along with 

the general information section and 

clause prescription is simply intended 

to codify the existing process of 

integrating the requirements of DOE 

Directives into non-M&O contracts on a 

bilateral basis and imposes no 

additional burden or cost. 

Finally, many of the changes included 

in this final rule will result in benefits 

to the public. Because the DEAR has not 

had a comprehensive update in decades, 

it contains outdated and unused 

content. Additionally, it has citations to 

outdated laws and regulations and 

contains sections that are duplicative of 

the FAR or that are more appropriate for 

internal procedures and policies. The 

new changes will streamline the DEAR, 

make it easier to read, and reflect 

current practice and requirements. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) (RFA) requires 

preparation of an initial regulatory 

flexibility analysis for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. The 

Department has made its procedures 

and policies available on the Office of 

General Counsel’s website: 

www.energy.gov/gc/office-generalcounsel. 

The DEAR governs all DOE 

acquisitions which obligate 

appropriated funds. Using data from its 

Integrated Data Warehouse, DOE 

estimates that it currently has 

approximately 3,200 prime contractors 

whose contracts are governed in part by 

the DEAR and that approximately 2,000 

of those contractors are small entities 

under the RFA. Due to limitations in 

subaward reporting it is difficult to 

accurately estimate the number of small 

entity subcontractors. However, based 

on data from the Federal Subaward 

Reporting System (FSRS) and DOE’s 

M&O Subcontract Reporting Capability 

(MOSRC) system, DOE estimates that it 

has approximately 15,300 

subcontractors. Of those, approximately 

9,000 were designated as small 

businesses. Therefore, DOE has reason 

to believe that this final rule, which is 

a comprehensive update of the DEAR, 

could affect a substantial number of 

small entities. 

However, DOE expects that this rule 

will not have a significant economic 

impact on those small entities. In fact, 

DOE expects that the overall impacts of 

the rule will benefit small entities 

because the rule revises or removes 

outdated information and citations, 

removes extraneous procedural 

information that applies only to DOE’s 

internal procedures, and removes policy 

or procedures duplicative of FAR 

requirements. 

Moreover, the changes that are not 

merely technical or procedural 

primarily apply to DOE’s twenty-three 

M&O contracts. An M&O contract is an 

agreement by which a private sector 

entity operates a DOE facility, such as 

a national laboratory. None of DOE’s 

M&O contracts are held by small 

entities, and therefore changes to those 

contracts do not directly impact small 

entities. 

Furthermore, even if M&O contractors 

could be considered small entities 

under the RFA, the changes in the rule 

that will only pact M&O contracts are 

not economically significant. 

• DOE’s changes to the M&O fee 

policy sections will simplify and state 

explicitly the methodology Contracting 

Officers are to utilize for determining 

the total available fee for an M&O 

contract. The revisions are primarily 

intended to reduce the administrative 

burden for Contracting Officers. For 

instance, this rule clarifies that the 

maximum total available fee amount for 

an M&O contract may not exceed the fee 

derived from calculations included in 

the policy unless approved in advance 

by the SPE or designee. Additionally, 

the rule includes an increase in the 

classification factor for R&D laboratory 

from 1.25 to 1.5. This change will 

impact 16 M&O contractors who 

currently operate national laboratories 

(all of which are managed and operated 

by large entities) but should not have a 

significant economic impact because 

DOE does not anticipate an increase in 

the total available fees approved for 

these contracts. 

• DOE is adding a clause at section 

970.5222–4 to address situations where 

a M&O contractor is permitted under 

Federal and state unemployment rules 

to opt out of paying the state 

unemployment insurance tax and 

instead reimburse the state for actual 

claims paid out to its former employees. 

The clause requires notification to the 

government of the contractor’s election 

and asserts the government’s right to 

review such changes to assess budgetary 

and programmatic risks when opting 

out. DOE does not believe that the 

notification will result in any economic 

impact. 

• DOE is adding two clauses specific 

to M&O contractors: Agreements for 

Commercializing Technology at section 

970.5217–2 and Small Business 

Subcontracting Plan at section 

970.1907–8. These clauses are 

substantially similar to clauses already 

widely used in DOE contracts and will 

therefore not have a significant 

economic impact. 

Finally, the remaining substantive 

revisions in the rule that are applicable 

to non-M&O contracts will not have a 

significant economic impact. 

• The rule includes a revision of the 

Facility Clearance provision at section 

952.204–73, which is required in all 

solicitations for which the contract work 

is anticipated to require access to 

classified information or special nuclear 

material. The current provision requires 

a full Facility Clearance prior to the 

award of a contract requiring access to 

classified information, and prior to 

granting any Interim Access 

Authorizations to key management 


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personnel. The revision provides a 

process that permits contract award 

prior to granting a full Facility 

Clearance, and permit contract award 

prior to granting Interim Access 

Authorizations to key management 

personnel. There is no change to the 

processes themselves, only to the timing 

of the processes. 

• DOE adds a clause to clarify the 

policy and procedures for integrating 

DOE Directives into non-M&O contracts. 

Contractor requirements documents 

(CRDs), attached to DOE Directives, 

have been integrated into non-M&O 

contracts as needed for a long time. The 

addition of the clause, along with the 

general information section and clause 

prescription is intended to codify the 

existing process of integrating the 

requirements of DOE Directives into 

non-M&O contracts on a bilateral basis 

and imposes no additional burden or 

cost to the contractors. 

• The rule includes two new clauses: 

Conditional Payment of Fee, Profit, and 

Other Incentives at section 952.242–71 

and Identification of Contractor 

Employees at section 952.203–1. These 

clauses are substantially similar to 

clauses already widely used in DOE 

contracts and will therefore not have a 

significant economic impact. 

Accordingly, DOE certifies that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities, and, therefore, 

no regulatory flexibility analysis has 

been prepared. DOE’s certification and 

supporting statement of factual basis 

will be provided to the Chief Counsel 

for the Office of Advocacy of the Small 

Business Administration for review 

under 5 U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rulemaking imposes no new 

information or record keeping 

requirements. Accordingly, Office of 

Management and Budget clearance is 

not required under the Paperwork 

Reduction Act. (44 U.S.C. 3501 et seq.) 

Existing information collections 

imposed by the Department of Energy 

Acquisition Regulation are covered by 

OMB Control Number 1910–4100. 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE analyzed this final rule in 

accordance with the National 

Environmental Policy Act (NEPA) of 

1969 (42 U.S.C. 4321 et seq.) and DOE’s 

NEPA implementing regulations (10 

CFR part 1021). DOE has determined 

that the rule fits within the following 

categorical exclusion listed in appendix 

A to subpart D of part 1021: A6 

(Procedural rulemakings, including 

rulemaking under 48 CFR chapter 9 

establishing procedures for technical 

and pricing proposals and establishing 

contract clauses and contracting 

practices for the purchase of goods and 

services). Therefore, this rule does not 

require the preparation of either an 

environmental impact statement or 

environmental assessment pursuant to 

NEPA. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

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. The 

Executive order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive order also requires agencies to 

have an accountable 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 determined that this 

final rule does not limit the 

policymaking discretion of the States. 

No further action is required by 

Executive Order 13132. 

F. 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 Federal 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. 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 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 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. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. (Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531). For a 

proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a), (b)) 

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (This policy is 

also available at: www.energy.gov/gc/ 

guidance-opinions under ‘‘Guidance & 

Opinions’’ (Rulemaking)). DOE 

examined this final rule according to 

UMRA and its statement of policy and 

has determined that the rule contains 

neither an intergovernmental mandate, 

nor a mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any year. Accordingly, no further 

assessment or analysis is required under 

UMRA. 


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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 rule 

that may affect family well-being. This 

final rule would not have any 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 12630 

The Department has determined, 

under Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

that this final rule would not result in 

any takings which might require 

compensation under the Fifth 

Amendment to the United States 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of 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). Pursuant to 

OMB Memorandum M–19–15, 

Improving Implementation of the 

Information Quality Act (April 24, 

2019), DOE published updated 

guidelines which are available at: 

www.energy.gov/sites/prod/files/2019/ 

12/f70/DOE%20Final%20Updated%20

IQA%20Guidelines%20Dec

%202019.pdf. 

DOE has reviewed this rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. 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 the Office of 

Information and Regulatory Affairs 

(OIRA), 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; and (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 proposed 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. 

This final rule, which revises and 

updates DOE’s acquisition regulation, 

would not have a significant adverse 

effect on the supply, distribution, or use 

of energy and, therefore, is not a 

significant energy action. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that the rule does 

not meet the criteria set forth in 5 U.S.C. 

804(2). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects 

48 CFR Parts 901, 902, 909, 912, 915, 

916, 926, and 951 

Government procurement. 

48 CFR Part 903 

Antitrust, Conflict of interest, 

Government procurement. 

48 CFR Part 904 

Classified information, Government 

procurement. 

48 CFR Part 908 

Government procurement, Motor 

vehicles, Printing, Utilities. 

48 CFR Part 917 

Government procurement, Reporting 

and recordkeeping requirements, 

Research. 

48 CFR Part 922 

Equal employment opportunity, 

Government procurement, Labor, 

Reporting and recordkeeping 

requirements. 

48 CFR Part 923 

Drug abuse, Government 

procurement, Radiation protection. 

48 CFR Part 925 

Foreign trade, Government 

procurement. 

48 CFR Part 927 

Copyright, Government procurement, 

Inventions and patents. 

48 CFR Part 931 

Accounting, Government 

procurement. 

48 CFR Part 932 

Accounting, Government 

procurement, Loan programs—energy, 

Loan programs—National defense. 

48 CFR Part 933 

Administrative procedure and 

practice, Government procurement. 

48 CFR Part 935 

Government procurement, Research. 

48 CFR Parts 936 and 952 

Government procurement, Reporting 

and recordkeeping requirements. 

48 CFR Part 941 

Government procurement, Utilities. 

48 CFR Part 942 

Accounting, Government 

procurement. 

48 CFR Part 945 

Government procurement, 

Government property. 

48 CFR Part 970 

Accounting, Classified information, 

Drug abuse, Government procurement, 

Insurance, Labor, Minority businesses, 

Reporting and recordkeeping 

requirements, Small businesses, Surety 

bonds, Taxes, Whistleblowing, Women. 

Signing Authority 

This document of the Department of 

Energy was signed on October 9, 2024, 

by William J. Quigley, Deputy Associate 

Administrator, Partnership and 

Acquisition Services, National Nuclear 

Security Administration, pursuant to 

delegated authority from the 

Administrator, National Nuclear 

Security Administration, and Berta L. 

Schreiber, Director, Office of 

Acquisition Management, Department of 

Energy, pursuant to delegated authority 

from the Secretary of Energy. These 

documents with the original signature 

and date are maintained by DOE/NNSA. 

For administrative purposes only, and 

in compliance with requirements of the 

Office of the Federal Register, the 

undersigned DOE Federal Register 

Liaison Officer has been authorized to 

sign and submit the document in 


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89746 Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Rules and Regulations 

electronic format for publication, as an 

official document of the Department of 

Energy. This administrative process in 

no way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Signed in Washington, DC, on October 10, 

2024. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE amends chapter 9 of title 

48 of the Code of Federal Regulations as 

set forth below: 

PART 901—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

■ 1. The authority citation for part 901 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 2. Section 901.103 is revised to read 

as follows: 

901.103 Authority. 

The DEAR and amendments thereto 

are issued by the Senior Procurement 

Executives (SPEs) of the Department of 

Energy (DOE) and the National Nuclear 

Security Administration (NNSA). The 

SPEs may also approve deviations from 

the DEAR, together and individually. 

The DOE SPE 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 SPE 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. 

Except for the authorities designated as 

non-delegable, the SPEs are delegated 

the authorities assigned to the Agency 

Head in the FAR. A reference to the SPE 

refers to the DOE SPE and the NNSA 

SPE, unless otherwise indicated. 

901.301.70 [Redesignated as 901.301–70] 

■ 3. Section 901.301.70 is redesignated 

as section 901.301–70. 

■ 4. Newly redesignated section 

901.301–70 is revised to read as follows: 

901.301–70 Other issuances related to 

acquisition. 

In addition to the FAR and DEAR, 

there are other issuances which deal 

with acquisition. Among these are the 

Federal Property Management 

Regulation (41 CFR chapter 101), the 

Federal Management Regulation (41 

CFR chapter 102), the DOE Property 

Management Regulation (41 CFR 

chapter 109), 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 https://

www.energy.gov/management/articles/ 

department-energy-acquisition-guide. 

■ 5. Subpart 901.4 is added to read as 

follows: 

Subpart 901.4—Deviations from the DEAR 

Sec. 

901.401 Definition. 

901.403 Individual deviations. 

901.404 Class deviations. 

Subpart 901.4—Deviations From the 

DEAR 

901.401 Definition. 

A deviation from the DEAR is defined 

as the issuance or use of a policy, 

procedure, solicitation provision, 

contract clause, method, or practice of 

conducting acquisition actions of any 

kind at any stage of the acquisition 

process that is inconsistent with the 

DEAR. 

901.403 Individual deviations. 

Requests for individual deviations 

from the FAR or the DEAR shall be 

submitted to the cognizant Senior 

Procurement Executive (SPE), that is 

DOE or NNSA, (or designee) for 

approval. Requests shall cite the specific 

part of the FAR or DEAR from which it 

is desired to deviate, shall set forth the 

nature of the proposed deviation(s), and 

shall give the reasons for the action 

requested. 

901.404 Class deviations. 

Requests for class deviations from the 

FAR or the DEAR shall be submitted to 

the cognizant SPE, that is DOE or 

NNSA, (or designee) for processing in 

accordance with FAR 1.404 and this 

section. Requests shall include the same 

information prescribed in 901.403 for 

individual deviations. 

■ 6. Amend section 901.602–3 by 

revising paragraph (b)(3) to read as 

follows: 

901.602–3 Ratification of unauthorized 

commitments. 

(b) * * * 

(3) The ratification authority of the 

DOE and NNSA Senior Procurement 

Executives in paragraph (b)(2) of this 

section is delegated to the Head of the 

Contracting Activity (HCA) for 

individual unauthorized commitments 

of $250,000 or under. The ratification 

authority of the HCA is nondelegable. 

901.603–1 [Amended] 

■ 7. Amend section 901.603–1 by 

removing the text ‘‘DOE Order 361.1B’’ 

and adding in its place ‘‘DOE Order 

361.1’’. 

901.603–70 [Amended] 

■ 8. Amend section 901.603–70 by 

removing the text ‘‘DOE Order 541.1B’’ 

and adding in its place ‘‘DOE Order 

541.1’’. 

PART 902—DEFINITIONS OF WORDS 

AND TERMS 

■ 9. The authority citation for part 902 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 10. Amend section 902.101 by 

revising the definition of ‘‘Senior 

Procurement Executive’’ to read as 

follows: 

902.101 Definitions. 

* * * * * 

Senior Procurement Executive means 

for the Department of Energy, the 

Director, Office of Acquisition 

Management and for the National 

Nuclear Security Administration, the 

Deputy Associate Administrator for the 

Office of Partnership and Acquisition 

Services. 

PART 903—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 11. The authority citation for part 903 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 12. Section 903.104–7 is revised to 

read as follows: 

903.104–7 Violations or possible 

violations. 

(a) Except for Headquarters activities, 

the individual within DOE responsible 

for fulfilling the requirements of FAR 


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3.104–7(a)(1) and (2), relative to 

contracting officer conclusions on the 

impact of a violation or possible 

violation of subsections 27 (a), (b), (c) or 

(d) of the Office of Federal Procurement 

Policy Act, shall be the individual who 

has procurement authority and is one 

supervisory level above the Contracting 

Officer. The legal counsel is the Chief 

Counsel for the Operations Offices or 

the Federal Energy Technology Center; 

the Counsel, or the Chief Counsel, for 

the Support Offices or the Naval 

Reactors Offices; the General Counsel 

for National Nuclear Security 

Administration (NNSA), and the 

General Counsel for the Power 

Administrations. For Headquarters 

activities, the individual designated to 

perform the responsibilities in FAR 

3.104–7(a)(1) and (2) regarding 

questions of disclosure of proprietary or 

source selection information is the 

Assistant General Counsel for 

Procurement and Financial Assistance. 

The designated individual for other 

questions regarding FAR 3.104–7(a)(1) 

and (2) for Headquarters activities, or for 

any other office that does not have 

authority through procurement 

operations, is the Agency Ethics Official 

(Designated Agency Ethics Official). 

■ 13. Section 903.1003 is added to read 

as follows: 

903.1003 Requirements. 

In accordance with FAR subpart 7.5, 

DOE does not contract for inherently 

governmental functions. However, DOE 

may contract for services that can 

require contractors to perform duties 

that require regular contact with DOE 

and the public related to DOE’s mission. 

To ensure that all parties know the 

status of individuals as contractor 

personnel, contractors and their 

employees must properly identify 

themselves as contractors in all DOE 

internal and external communications 

and meetings. 

■ 14. Section 903.1004 is revised to read 

as follows: 

903.1004 Contract clauses. 

(a) The Contracting Officer shall insert 

the DOE website address https://

www.energy.gov/sites/prod/files/2017/ 

05/f34/HotlinePoster.pdf in paragraph 

(b)(3)(ii) of the clause at FAR 52.203–14, 

Display of Hotline Poster(s). 

(b) The Contracting Officer shall 

insert the clause at 952.203–1, 

Identification of Contractor Employees, 

in all solicitations and contracts for 

services over the micro-purchase 

threshold. 

PART 904—ADMINISTRATIVE 

MATTERS 

■ 15. The authority citation for part 904 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 16. Amend section 904.401 by: 

■ a. Revising the definition of ‘‘Access 

authorization’’; 

■ b. Removing the definition of 

‘‘Classified information’’ and adding the 

definition ‘‘Classified information or 

Classified National Security 

Information’’ in its place; and 

■ c. Adding in alphabetical order a 

definition for ‘‘Counterintelligence’’. 

The revision and additions read as 

follows: 

904.401 Definitions. 

Access authorization means an 

administrative determination that an 

individual is eligible for access to 

classified information or is eligible for 

access to, or control over, special 

nuclear material under the Atomic 

Energy Act of 1954; Executive Order 

12968, Access to Classified Information, 

dated August 2, 1995; or 10 CFR part 

710. 

* * * * * 

Classified information or Classified 

National Security Information mean 

information officially determined to be 

Restricted Data, Formerly Restricted 

Data, or Transclassified Foreign Nuclear 

Information under the Atomic Energy 

Act of 1954, as amended, or information 

determined to require protection under 

Executive Order 13526, Classified 

National Security Information, dated 

December 29, 2009. 

Counterintelligence means 

information gathered and activities 

conducted to protect against espionage, 

other intelligence activities, sabotage, or 

assassinations conducted for or on 

behalf of foreign powers, organizations 

or persons, or international terrorist 

activities, but not including personnel, 

physical, document or communication 

security programs. 

* * * * * 

■ 17. Section 904.402 is revised to read 

as follows: 

904.402 General. 

(b) The basis of Department of 

Energy’s (DOE) industrial security 

requirements is the Atomic Energy Act 

of 1954, as amended, the DOE 

Organization Act of 1977, as amended, 

and Executive Orders 13526 and 12829. 

(3) DOE has established a 

counterintelligence program. All DOE 

elements and contractors managing 

DOE-owned or leased facilities that 

require access authorizations, should 

undertake the necessary precautions to 

ensure that DOE and covered contractor 

personnel, programs and resources are 

properly protected from foreign 

intelligence threats and activities. 

(4) DOE security regulations 

concerning restricted data are codified 

at 10 CFR part 1045. 

(5) Section 234B of the Atomic Energy 

Act (42 U.S.C. 2282b) requires that DOE 

contracts include a clause providing for 

appropriate reductions in fees or 

amounts paid to the contractor under 

the contract in the event of violations of 

any rule, regulation, or order relating to 

the safeguarding or security of 

Restricted Data or other classified 

information. The clause is required for 

all DOE prime contracts that involve 

any possibility of contractor access to 

Restricted Data or other classified 

information. The clause specifies 

various degrees of violations and the 

amount of reduction attributable to each 

degree. The clause at 952.242–71, 

Conditional Payment of Fee, Profit, or 

Other Incentives, shall be used to 

comply with 42 U.S.C. 2282b (unless 

the clause at 970.5215–3, Conditional 

Payment of Fee, Profit, and Other 

Incentives—Facility Management 

Contracts is used). See 942.71(d) for the 

clause’s prescription. 

(e) Part 927 contains policies and 

procedures for safeguarding classified 

information in patent applications and 

patents. 

■ 18. Amend section 904.404 by 

revising paragraphs (d)(1), (3), (6), and 

(7) to read as follows: 

904.404 Solicitation provision and 

contract clause. 

(d) * * * 

(1) Security, 952.204–2. This clause is 

required in contracts and subcontracts, 

the performance of which involves or is 

likely to involve classified information, 

access to special nuclear materials or 

the provision of protective services. 

This includes contracts awarded under 

simplified acquisition procedures, as 

well as National Security Program 

contracts, under which access to 

proscribed information is required. 

Although DOE utilizes the National 

Industrial Security Program, DOE’s 

security authority is derived from the 

Atomic Energy Act which contains 

specific language not found in other 

agencies’ authorities. For this reason, 

DOE contracts must contain the clause 

at 952.204–2 rather than the clause at 

FAR 52.204–2 and Contracting Officers 

must incorporate DOE Form 470.1 or 

equivalent. 

* * * * * 


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(3) Sensitive foreign nation controls, 

952.204–71. This clause is required in 

unclassified research contracts which 

may involve sharing unclassified 

information about nuclear technology 

with certain sensitive foreign nations. 

The contractor shall be provided at the 

time of award the listing of nations 

referenced in DOE Order 142.3, 

Unclassified Foreign Visits and 

Assignments Program, or its successor. 

(The attachment referred to in the clause 

shall set forth the applicable 

requirements of the DOE regulations on 

dissemination of unclassified published 

and unpublished technical information 

to foreign nations.) 

* * * * * 

(6) Computer Security, 952.204–77. 

This clause is required in contracts in 

which the contractor may have access to 

computers owned, leased or operated on 

behalf of the Department of Energy. 

(7) Counterintelligence. The 

Contracting Officer shall include the 

clause at 952.204–74, 

Counterintelligence, in all contracts that 

include the clauses at 952.204–2, 

Security Requirements, and 952.204–70, 

Classification/Declassification. 

■ 19. Amend section 904.7004 by 

revising the first sentence of paragraph 

(a) to read as follows: 

904.7004 Findings, determination, and 

contract award or termination. 

(a) Based on the information disclosed 

by the offeror(s) or contractor, and after 

consulting with the DOE Office of 

Environment, Health, Safety and 

Security, the contracting officer must 

determine that award of a contract to an 

offeror(s) or continued performance of a 

contract by a contractor will not pose an 

undue risk to the common defense and 

security. * * * 

* * * * * 

■ 20. Amend section 904.7102 by 

revising paragraph (e) to read as follows: 

904.7102 Waiver by the Secretary. 

* * * * * 

(e) Any request for a waiver under 

this subpart shall be accompanied by 

the information required by the clause 

at 952.204–73, Facility Clearance. 

■ 21. Subpart 904.73 is added to read as 

follows: 

Subpart 904.73—Department of Energy 

Directives 

Sec. 

904.7300 General. 

904.7301 Contract clause. 

904.7300 General. 

The contractor is required to comply 

with the requirements of applicable 

Federal, State, and local laws and 

regulations, unless relief has been 

granted by the appropriate authority. 

Additionally, the Department of Energy 

(DOE) Directives Program is a system of 

instructions, including orders, notices, 

manuals, guides, and standards, for DOE 

elements. In certain circumstances, DOE 

will apply requirements contained in 

these directives to a contract. In these 

circumstances, program and 

requirements personnel will be 

responsible for identifying the 

requirements that are applicable to the 

contract and for providing a list of 

applicable requirements to the 

Contracting Officer for inclusion in the 

contract. 

904.7301 Contract clause. 

The Contracting Officer shall insert 

the clause at 952.204–78, DOE 

Directives, in non-management and 

operating contracts where the work will 

be performed on a DOE site and the 

contract will be subject to the 

requirements of DOE Directives. This 

includes information technology or 

cybersecurity work, as well as other 

work program officials identify as 

requiring the clause. 

PART 908—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

■ 22. The authority citation for part 908 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

908.7103 and 908.7115 through 908.7117 

[Removed and Reserved] 

■ 23. Sections 908.7103 and 908.7115 

through 908.7117 are removed and 

reserved. 

PART 909—CONTRACTOR 

QUALIFICATIONS 

■ 24. The authority citation for part 909 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

909.104–1 [Amended] 

■ 25. Amend section 909.104–1 in 

paragraph (h) by removing the phrase 

‘‘accordance with 970.5223–3’’ and 

adding the phrase ‘‘accordance with 

970.5226–4’’ in its place. 

■ 26. Amend section 909.403 by 

revising the definition of ‘‘Debarring 

and suspending official’’ to read as 

follows: 

909.403 Definitions. 

* * * * * 

Debarring and suspending official, for 

the DOE, the designees are: 

(1) Debarring Official means the 

Debarring Official for DOE contracts is 

the Director, Office of Acquisition 

Management, DOE, or designee. The 

debarring Official for NNSA contracts is 

the Deputy Associate Administrator for 

the Office of Partnership and 

Acquisition Services, or designee. 

(2) Suspending Official means the 

Suspending Official for DOE contracts is 

the Director, Office of Acquisition 

Management, DOE, or designee. The 

suspending Official for NNSA contracts 

is the Deputy Associate Administrator 

for the Office of Partnership and 

Acquisition Services, or designee. 

■ 27. Amend section 909.405 by 

revising paragraphs (f), (g), and (h) to 

read as follows: 

909.405 Effect of listing. 

* * * * * 

(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 System for 

Award Management (SAM) exclusions. 

(g) DOE or NNSA shall not conduct 

business with an agent or representative 

of a contractor if the agent’s or 

representative’s name has an active 

exclusion in SAM. 

(h) DOE or NNSA shall review SAM 

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. 

909.407–3 [Amended] 

■ 28. Amend section 909.407–3 in 

paragraph (e)(1)(vii) by removing the 

text ‘‘EPLS’’ and adding in its place the 

text ‘‘SAM exclusion’’. 

PART 912—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 29. The authority citation for part 912 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 30. Section 912.301 is added to read 

as follows: 

912.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

(f) The Contracting Officer shall 

supplement the clauses prescribed at 

FAR 12.301— 


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(1) In all cases, with 952.232–7, 

Electronic Submission of Invoices/ 

Vouchers; and 

(2) In appropriate cases, following 

prescriptions elsewhere in this chapter, 

with the following: 

(i) 952.204–74, Counterintelligence. 

(ii) 952.204–77, Computer Security. 

(iii) 952.211–71, Priorities and 

allocations for energy programs (clause). 

PART 915—CONTRACTING BY 

NEGOTIATION 

■ 31. The authority citation for part 915 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

915.404–2 [Redesignated as 915.404–2000] 

■ 32. Section 915.404–2 is redesignated 

as section 915.404–2000. 

915.404–2000 [Amended] 

■ 33. Newly redesignated section 

915.404–2000 is amended in paragraph 

(c)(1) by removing ‘‘915.404–2–70’’ and 

adding in its place ‘‘915.404–2700’’. 

915.404–2–70 [Redesignated as 915.404– 

2700] 

■ 34. Section 915.404–2–70 is 

redesignated as section 915.404–2700. 

915.404–4 [Redesignated as 915.404–4000] 

■ 35. Section 915.404–4 is redesignated 

as section 915.404–4000. 

915.404–4–70 [Redesignated as 915.404– 

4700] 

■ 36. Section 915.404–4–70 is 

redesignated as section 915.404–4700. 

■ 37. Newly redesignated section 

915.404–4700 is revised to read as 

follows: 

915.404–4700 DOE structured profit and 

fee system. 

(a) This section implements FAR 

15.404–4(b) and (d). 

(b) DOE’s structured profit and fee 

system for non-management and 

operating contracts comprises two 

approaches: a weighted guidelines 

system for all but construction 

contracts, construction management 

contracts, and special equipment 

purchases; and a fee schedules-based 

system for construction contracts, 

construction management contracts, and 

special equipment purchases. The 

former is covered at 915.404–4720 

through 915.404–4780; the latter is 

covered at 915.404–4800 through 

915.404–4860. Both approaches use the 

procedures at 915.404–4900 for costplus-award-fee contracts. 

915.404–4–70–1 [Redesignated as 

915.404–4710] 

■ 38. Section 915.404–4–70–1 is 

redesignated as section 915.404–4710. 

915.404–4–70–2 [Redesignated as 

915.404–4720] 

■ 39. Section 915.404–4–70–2 is 

redesignated as section 915.404–4720. 

■ 40. Amend newly redesignated 

section 915.404–4720 as follows: 

■ a. In paragraph (a), remove ‘‘915.404– 

4–70–8’’ and add in its place ‘‘915.404– 

4780’’; 

■ b. In paragraph (b) remove ‘‘915.404– 

4–70–4’’ and add in its place ‘‘915.404– 

4740’’; and 

■ c. In the table in paragraph (d) revise 

entries II, IV.b., V, and VI to read as 

follows: 

915.404–4720 Weighted guidelines 

system. 

* * * * * 

(d) * * * 

Profit factors 

Weight 

ranges 

(percent) 

*******

II. Contract Risk (type of contract-weights applied to total cost of items I.a. thru I.e.) ............................................................................. 0 to 8. 

*******

IV. * * * 

b. Developed items employed (Weights applied to total of profit $ for items I.a. thru I.e.) ............................................................... 0 to 20. 

V. Special Program Participation (Weights applied to total of Profit $ for items I.a. thru I.e.) ................................................................. ¥5 to +5. 

VI. Other Considerations (Weights applied to total of Profits $ for items I.a. thru I.e.) ............................................................................ ¥5 to +5. 

* * * * * * * 

915.404–4–70–3 [Redesignated as 

915.404–4730] 

■ 41. Section 915.404–4–70–3 is 

redesignated as section 915.404–4730. 

915.404–4–70–4 [Redesignated as 

915.404–4740] 

■ 42. Section 915.404–4–70–4 is 

redesignated as section 915.404–4740. 

915.404–4–70–5 [Redesignated as 

915.404–4750] 

■ 43. Section 915.404–4–70–5 is 

redesignated as section 915.404–4750. 

915.404–4–70–6 [Redesignated as 

915.404–4760] 

■ 44. Section 915.404–4–70–6 is 

redesignated as section 915.404–4760. 

915.404–4–70–7 [Redesignated as 

915.404–4770] 

■ 45. Section 915.404–4–70–7 is 

redesignated as section 915.404–4770. 

■ 46. Amend newly redesignated 

section 915.404–4770 as follows: 

■ a. In paragraph (a) remove ‘‘915–404– 

4–71’’ and add in its place ‘‘915.404– 

4800’’; and 

■ b. In paragraph (b) remove ‘‘915–404– 

4–70–2(d)’’ and add in its place 

‘‘915.404–4720(d)’’.T 

915.404–4–70–8 [Redesignated as 

915.404–4780] 

■ 47. Section 915.404–4–70–8 is 

redesignated as section 915.404–4780. 

915.404–4–71 [Redesignated as 915.404– 

4800] 

■ 48. Section 915.404–4–71 is 

redesignated as section 915.404–4800. 

915.404–4–71–1 [Redesignated as 

915.404–4810] 

■ 49. Section 915.404–4–71–1 is 

redesignated as section 915.404–4810. 

915.404–4–71–2 [Redesignated as 

915.404–4820] 

■ 50. Section 915.404–4–71–2 is 

redesignated as section 915.404–4820. 

915.404–4–71–3 [Redesignated as 

915.404–4830] 

■ 51. Section 915.404–4–71–3 is 

redesignated as section 915.404–4830. 


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915.404–4830 [Amended] 

■ 52. Amend newly redesignated 

section 915.404–4830 as follows: 

■ a. In paragraph (a) remove ‘‘915.404– 

4–71–1(a) and add in its place 

‘‘915.404–4810(a)’’; 

■ b. In paragraph (d) remove ‘‘915.404– 

4–71–3(a), (b), and (c)’’ and add in its 

place ‘‘paragraphs (a), (b), and (c) of this 

section’’. 

915.404–4–71–4 [Redesignated as 

915.404–4840] 

■ 53. Section 915.404–4–71–4 is 

redesignated as section 915.404–4840. 

915.404–4840 [Amended] 

■ 54. Amend newly redesignated 

section 915.404–4840 in paragraph (a) 

by removing ‘‘915.404–4–71–3 of this 

section’’ and adding in its place 

‘‘915.404–4840’’. 

915.404–4–71–5 [Redesignated as 

915.404–4850] 

■ 55. Section 915.404–4–71–5 is 

redesignated as section 915.404–4850. 

915.404–4850 [Amended] 

■ 56. Amend newly redesignated 

section 915.404–4850 as follows: 

■ a. In the first sentence of paragraph (a) 

remove ‘‘915.404–4–71–6’’ and add in 

its place ‘‘915.404–4860’’; 

■ b. In the last sentence of paragraph (a) 

remove ‘‘915.404–4–71–6(c) and 

915.404–4–71–6(d)’’ and add in its place 

‘‘915.404–4860(c) and (d)’’; 

■ c. In the last sentence of paragraph 

(e)(1) remove ‘‘915.404–4–71–4(b)’’ and 

add in its place ‘‘915.404–4840(b)’’; 

■ d. In paragraph (e)(3) remove 

‘‘915.404–4–71–4(c)’’ in the first and 

last sentences and add in their place in 

both instances ‘‘915.404–4840(c)’’. 

915.404–4–71–6 [Redesignated as 

915.404–4860] 

■ 57. Section 915.404–4–71–6 is 

redesignated as section 915.404–4860. 

915.404–4860 [Amended] 

■ 58. Amend newly redesignated 

section 915.404–4860 in paragraph (c) 

by removing ‘‘915.404–4–71–5(h)’’ and 

adding in its place ‘‘915.404–4850(h)’’. 

915.404–4–72 [Redesignated as 915.404– 

4900] 

■ 59. Section 915.404–4–72 is 

redesignated as section 915.404–4900. 

915.404–4900 [Amended] 

■ 60. Amend newly redesignated 

section 915.404–4900 as follows: 

■ a. In the second sentence of paragraph 

(a) remove ‘‘915.404–4–71–5’’ and 

‘‘970.15404–4–8’’, and add in their 

place ‘‘915.404–4850’’ and ‘‘970.1504– 

101 through 970.1504–300’’, 

respectively; 

■ b. In the first sentence of paragraph 

(a)(1) remove ‘‘915.404–4–71’’ and add 

in its place ‘‘915.404–4800’’; and 

■ c. In paragraph (b) remove ‘‘915.404– 

4–72(a)(3)’’ and add in its place 

‘‘paragraph (a)(3) of this section’’. 

■ 61. Section 915.408–70 is revised to 

read as follows: 

915.408–70 Key personnel clause. 

The Contracting Officer shall insert 

the clause at 952.215–70, Key 

Personnel, in solicitations and contracts 

under which successful performance is 

largely dependent on the expertise of 

specific key personnel. 

■ 62. Section 915.606 is revised to read 

as follows: 

915.606 Agency procedures. 

(b) Unless otherwise specified in a 

notice of program interest, all 

unsolicited proposals must be submitted 

to the Unsolicited Proposal Manager at 

DOEUSP@netl.doe.gov. If the proposer 

has ascertained the cognizant program 

office through preliminary contacts with 

program staff, the proposal may be 

submitted directly to that office. In such 

instances, the proposer should 

separately send a copy of the proposal 

cover letter to the unsolicited proposal 

coordinator to assure that the proposal 

is logged in the Department’s automated 

tracking system for unsolicited 

proposals. 

PART 916—TYPES OF CONTRACTS 

■ 63. The authority citation for part 916 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 64. Section 916.307 is revised to read 

as follows: 

916.307 Contract clauses. 

When using the clause at FAR 

52.216–7, Allowable Cost and Payment, 

supplement the clause with 952.216–7, 

Allowable Cost and Payment. 

916.504 [Amended] 

■ 65. Amend section 916.504 by 

redesignating paragraph (c) as paragraph 

(a)(1). 

916.505 [Amended] 

■ 66. Amend section 916.505 by: 

■ a. Redesignating paragraph (b)(6) as 

paragraph (b)(8); and 

■ b. In newly redesignated paragraph 

(b)(8)(i): 

■ i. Removing the words ‘‘Office of 

Procurement and Assistance 

Management’’ and adding in their place 

the words ‘‘Office of Acquisition 

Management’’; and 

■ ii. Removing ‘‘48 CFR 16.505(b)(6)’’ 

and adding in its place ‘‘FAR 

16.505(b)(8)’’. 

PART 917—SPECIAL CONTRACTING 

METHODS 

■ 67. The authority citation for part 917 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 68. Amend section 917.600 by 

revising paragraph (b) to read as follows: 

917.600 Scope of subpart. 

* * * * * 

(b) The requirements of this subpart 

apply to any Department of Energy 

management and operating contract. 

917.601 [Removed] 

■ 69. Section 917.601 is removed. 

■ 70. Amend section 917.602 by 

revising paragraphs (b) and (c) to read 

as follows: 

917.602 Policy. 

* * * * * 

(b) It is the policy of the Department 

of Energy to provide for full and open 

competition in the award of 

management and operating contracts. 

(c) A management and operating 

contract may be extended at the 

completion of its term without 

providing for full and open competition 

only when such extension is justified 

under one of the statutory authorities 

identified in FAR 6.302 and only when 

authorized by the Secretary. 

917.7402 [Amended] 

■ 71. Amend section 917.7402 in 

paragraphs (b) and (c)(4) by removing 

‘‘DOE Order 430.1B’’ and adding in its 

place ‘‘DOE Order 430.1C’’. 

PART 922—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITION 

■ 72. The authority citation for part 922 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 73. Section 922.101–70 is added to 

read as follows: 

922.101–70 General (applicability of 

Management and Operating contractor 

basic labor policies to certain nonManagement and Operating contracts). 

(a) The policies and associated 

contract clauses in 970.2201 apply to 

the award and administration of nonManagement and Operating contracts if: 

(1) The contract work had been 

previously performed under a DOE 


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Management and Operating contract; 

and/or 

(2) The Contractor is required to 

employ all or part of the former 

Contractor’s workforce; or 

(3) The contract has been specifically 

designated by the Senior Procurement 

Executive. 

(b) The non-M&O contracts described 

by paragraph (a) of this section may 

include, but are not limited to, contracts 

whose work is for: 

(1) Environmental remediation; 

(2) Decontamination and 

decommissioning; 

(3) Environmental restoration; 

(4) Infrastructure services for the site; 

(5) Site closure at a current or former 

M&O contract site or facility; or 

(6) Protective forces that provide 

physical security of sites at a current or 

former M&O contract site. 

■ 74. Subpart 922.4 is added to read as 

follows: 

Subpart 922.4—Labor Standards for 

Contracts Involving Construction 

Sec. 

922.406 Administration and enforcement. 

922.406–1 Policy. 

922.406 Administration and enforcement. 

922.406–1 Policy. 

This section sets forth additional 

controls and criteria for the application 

of the Construction Wage Rate 

Requirements Statute (40 U.S.C. chapter 

31, subchapter IV, Wage Rate 

Requirements (Construction), formerly 

known as the Davis-Bacon Act) (Statute) 

in the Department of Energy’s 

operational or maintenance activities. 

The policy included in this subpart 

applies to M&O contracts. 

(c) Categorical exemptions. The two 

categories of work discussed in 

paragraphs (c)(1) and (2) of this section 

would normally be covered by the 

Statute. However, in limited 

circumstances, these types of work will 

be classified as non-covered by the 

Statute. These exceptions are to be 

narrowly construed and used only when 

clearly applicable. Any decision on the 

two categorical exemptions from Statute 

coverage shall be made by the Head of 

the Contracting Activity, without power 

of delegation. 

(1) Work for which continuity of 

operations is mission-essential (i.e., 

when life, property, or DOE operating 

requirements are confronted with 

material risks). 

(2) Emergency work to combat the 

effects of fire, flood, earthquake, 

military or terrorist attacks, 

technological emergencies, infectious 

disease/pandemic influenza threats, 

equipment failure, accident, or other 

casualties, and to restart the operational 

activity following the casualty. This 

exemption will generally apply only to 

work directly related to restarting the 

activity or work. 

(d) Particular exemptions. Work items 

meeting one of the following criteria 

normally will be classified as noncovered by the Statute: 

(1) Individual work items estimated to 

cost $2,000 or less. The total dollar 

amount of a contract is not the 

determining factor; rather, consider the 

cost of individual work items classified 

as construction, alteration and/or repair, 

including painting and decorating. 

However, no item of work, the cost of 

which is estimated to be in excess of 

$2,000, shall be artificially divided into 

portions less than $2,000 for the 

purpose of avoiding the application of 

the Statute. 

(2) General operational and 

maintenance activities. Service-type 

work that is a part of general operational 

and maintenance activities, including 

cyclic, routine, and recurring programs, 

or which, being very closely and 

directly involved therewith, are more in 

the nature of operational activities than 

construction, alteration, and or repair 

work. 

(3) Assembly, modification, setup, 

installation, replacement, removal, 

rearrangement, connection, testing, 

adjustment, and calibration of 

machinery and equipment. Note: If 

these activities are a logical part of the 

construction of a facility, or where there 

is more than incidental construction 

work, relative to the overall effort 

involved, they are Statute covered. 

(4) Experimental development of 

equipment, processes, or devices, 

including assembly, fitting, installation, 

testing, reworking, and disassembly. 

This refers to equipment, processes, and 

devices that are assembled and/or set in 

place and interconnected for the 

purpose of conducting a test or 

experiment. The nature of the test or 

experiment may be such that the 

professional personnel who are 

responsible for the test or experiment 

and/or data to be derived therefrom 

must, by necessity, participate in the 

assembly and interconnections. The 

following types of experiments are not 

Statute covered: 

(i) Set-up of devices and processes 

associated with the experiment, within 

established facilities, usually require 

utility connections. Such set-ups are 

generally not covered by the Statute. 

(However, set-up requiring structural 

changes or modifications of basic utility 

services, as distinguished from 

connections thereto, is covered by the 

Statute.) 

(ii) Assembly of piping and 

equipment, including adaptation and 

modification within existing hot cell 

facilities. Assembly of piping and 

equipment, including adaptation and 

modification thereof, within existing hot 

cell facilities to prove out conceptual 

designs of chemical processing units or 

remotely controlled machining 

equipment. 

(iii) Assembly of materials and 

equipment for thermonuclear 

experiments. Assembly of materials and 

equipment for particular aspects of 

thermonuclear experiments to explore 

feasibility and to study other 

ramifications of the concept of high 

energy and to collect data thereon. 

(iv) Assembly, erection, modification, 

and disassembly of a loop set-up. A 

loop facility differs from a loop set-up 

in that it is of a more permanent 

character. (Note that preparatory work 

for a loop set-up or facility requiring 

structural changes or modifications of 

basic utility services, as distinguished 

from connections thereto, is covered by 

the Statute. Similarly, material and 

equipment that are installed for a loop 

set-up that is a permanent part of the 

facility, or used for a succession of 

experimental programs are similarly 

covered by the Statute.) 

(v) Reactor component experiments 

involving the insertion of experimental 

components within reactor systems 

without the use of a loop assembly. 

Such a facility may consist of a reactor 

vessel, pressurizing tank, coolant loops, 

pumps, heat exchangers, and other 

auxiliary equipment as needed. The 

facility also may include sufficient 

shielding to permit work on the reactor 

to proceed following a short period of 

power interruption. (Note: Although the 

erection and on-site assembly of such a 

reactor facility is covered by the Statute, 

the set-up of components whose 

characteristics are under study are 

excluded from Statute coverage.) 

(5) Decontamination. 

Decontamination includes washing, 

scrubbing, and scraping to remove 

contamination; removal of contaminated 

soil or other material (except asbestos); 

and painting or other resurfacing, 

provided that such painting or 

resurfacing is an integral part of the 

decontamination activity. Except to the 

extent section 1804 of the Atomic 

Energy Act of 1954 (as amended by Title 

XI of the Energy Policy Act of 1992), 42 

U.S.C. 2297g–3, applies to the work at 

issue. Section 1804 requires all laborers 

and mechanics performing 

decontamination or decommissioning of 

DOE uranium enrichment facilities are 

paid prevailing wages. 


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(6) Burial of contaminated soil waste 

or contained liquid. Note, however, that 

the initial preparatory work readying 

the burial ground for use (e.g., any 

grading or excavating that is a part of 

initial site preparation, fencing, drilling 

wells for continued monitoring of 

contamination, construction of guard or 

other office space) is covered by the 

Statute. Work performed subsequent to 

burial that involves the placement of 

concrete or other like activity is also 

covered by the Statute. 

(e) Statute-covered experimental 

development work. Notwithstanding the 

exceptions in paragraph (d)(4) of this 

section, the following experimental 

development work is Statute covered: 

building construction, structural 

changes, drilling, tunneling, excavation, 

back-filling, modifications to utility 

services, as distinguished from 

temporary connections thereto, and setup of equipment to be used for 

continuous testing (e.g., a machine to be 

continuously used for testing the tensile 

strength of structural members). 

(f) Different work categories may have 

differing Statute coverage. For instance, 

a contract for operational or 

maintenance activities does not 

necessarily mean that all work and 

activities at the contract location are 

classifiable as not Statute covered, since 

it may be necessary to separate work 

that should be classified as Statute 

covered. Therefore, the Contracting 

Officer shall establish and maintain 

controls for the careful scrutiny of 

proposed work assignments under such 

contracts. 

(1) Contractors whose contracts do not 

contemplate the performance of work 

covered by the Statute with the 

contractor’s employees are not 

authorized to perform such work within 

the scope of the Statute, unless the 

Contracting Officer, in compliance with 

FAR subpart 22.4, modifies the contract. 

(2) Determinations of Statute 

applicability are the responsibility of 

the HCA on a case-by-case basis. 

However, the HCA may delegate to the 

Contracting Officer, if consistent with 

DOE’s responsibilities as described in 

this subsection, the authority to 

prescribe, from time to time, classes of 

work as to which applicability or nonapplicability of the Statute is clear. 

(g) Contracting Officer 

responsibilities. The Contracting Officer 

shall comply with the procedures for 

requesting wage determinations set forth 

in FAR 22.404, as necessary. 

(h) Construction site contiguous to an 

established manufacturing facility. As 

DOE-owned property sometimes 

encompasses several thousand acres of 

real estate, a number of separate 

facilities may be located in areas 

contiguous to each other on the same 

property. These facilities may be built 

over a period of years, and established 

manufacturing activities may be 

regularly carried on at one site at the 

same time that construction of another 

facility is underway at another site. On 

occasion, the regular manufacturing 

activities of the operating contractor at 

the first site may include the 

manufacture, assembly, and 

reconditioning of components and 

equipment that in other industries 

would normally be done in established 

commercial plants. While the 

manufacture of components and 

equipment in the manufacturing plant is 

not covered by the Statute, the 

installation of any such manufactured 

items on a construction job is covered 

by the Statute if the installation 

includes more than incidental 

construction work relative to the overall 

effort involved. 

PART 923—ENVIRONMENT, 

SUSTAINABLE ACQUISITION, AND 

MATERIAL SAFETY 

■ 75. The authority citation for part 923 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 76. Revise the heading for Part 923 to 

read as set forth above. 

923.002 [Removed] 

■ 77. Section 923.002 is removed. 

923.101 [Redesignated as 923.170] 

■ 78. Section 923.101 is redesignated as 

section 923.170. 

■ 79. Newly redesignated section 

923.170 is revised to read as follows: 

923.170 Policy. 

The Department of Energy’s (DOE) 

policy is to promote sustainable 

acquisition by acquiring products and 

services that are energy-efficient, 

contain recycled or biobased content, 

and have other environmentally 

preferable attributes, as specified in 

applicable statutory, regulatory, and 

Executive Order based requirements. 

See FAR 2.101 for applicable 

definitions. More information on 

environmentally preferable products 

and services is available from the DOE 

Sustainable Acquisition Program. 

923.102 [Redesignated as 923.171] 

■ 80. Section 923.102 is redesignated as 

section 923.171. 

923.103 [Redesignated as 923.172] 

■ 81. Section 923.103 is redesignated as 

section 923.172. 

■ 82. Newly redesignated section 

923.172 is revised to read as follows: 

923.172 Contract clauses. 

Insert the clause at 952.223–78, 

Sustainable Acquisition Program, in all 

contracts under which the contractor 

operates Government-owned facilities or 

motor vehicle fleets, or significant 

portions thereof, or performs 

construction at a Government-owned 

facility. 

Subpart 923.5 [Redesignated as 

Subpart 926.5] 

■ 83. Redesignate subpart 923.5, 

consisting of sections 923.500, 923.570, 

923.570–1, 923.570–2, and 923.570–3 as 

Subpart 926.5, consisting of sections 

926.500, 926.570, 926.570–1, 926.570–2, 

and 926.570–3 respectively. 

Subpart 923.9 [Redesignated as 

Subpart 923.4] 

■ 84. Redesignate subpart 923.9, 

consisting of section 923.903, as subpart 

923.4, consisting of section 923.404. 

■ 85. In newly redesignated section 

923.404, remove ‘‘52.223–XX’’ and add 

‘‘52.223–19’’ in its place wherever it 

appears. 

■ 86. Section 923.7002 is revised to read 

as follows: 

923.7002 Worker safety and health. 

(a) The Atomic Energy Act mandates 

that DOE shall either pursue civil 

penalties, as implemented at 10 CFR 

part 851, for a violation under 42 U.S.C. 

2282c, or a contract fee reduction, but 

not both. For a contract fee reduction— 

(1) The clause prescribed at 

§§ 942.71(d) and 923.7003(f), which is 

952.242–71, Conditional Payment of 

Fee, Profit, or Other Incentives, 

addresses contract fee reductions (for 

both non-management and operating 

contracts and management and 

operating contracts; for the latter, 

§§ 942.71(d) and 923.7003(f) refer to 

clause prescribed in 970.1504–3(b)). 

(2) The clause provides, among other 

things, for an appropriate reduction to 

the fee, profit, or other incentives under 

the contract in the event of a violation 

by the contractor or any contractor 

employee of any Departmental 

regulation relating to the enforcement of 

worker safety and health concerns. 

(3) When reviewing performance 

failures that would warrant a reduction 

of otherwise earned fee, the Contracting 

Officer must consider mitigating factors 

that may warrant a reduction below the 

applicable range specified in the clause. 

The mitigating factors are specified in 

the clause. 


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(4) The Contracting Officer must 

obtain the concurrence of the Head of 

the Contracting Activity: prior to 

effecting any reduction of fee, profit or 

other incentives otherwise payable 

under the clause at 952.942–71, 

Conditional Payment of Fee, Profit, or 

Other Incentives; and prior to 

determining that no reduction is 

warranted for performance failure(s) 

that would otherwise warrant a 

reduction. 

(b) In the event of a violation by the 

contractor or any contractor employee of 

any Department regulation relating to 

worker safety and health concerns, 

before deciding to pursue a contract fee 

reduction, the Contracting Officer must 

coordinate with the Office of Nuclear 

Safety within the Office of Enforcement 

in the Office of Enterprise Assessments 

(or designated successor office). 

■ 87. Amend section 923.7003 by: 

■ a. Revising paragraphs (a), (f), and (g); 

and 

■ b. Removing paragraph (h). 

The revisions read as follows: 

923.7003 Contract clauses. 

(a) A decision to include or not 

include environmental, safety and 

health clauses in DOE contracts shall be 

made by the contracting officer in 

consultation with appropriate personnel 

within the Office of Environment, 

Health, Safety and Security (or 

designated successor office). For M&O 

contracts see 970.2303–3 and insert the 

clause at 970.5223–1. 

* * * * * 

(f) Unless the clause for management 

and operating contracts is prescribed 

(see § 970.1504–3(b)), insert the clause 

at 952.242–71, Conditional Payment of 

Fee, Profit, and Other Incentives, in all 

contracts that contain the clause at 

952.204–2, Security Requirements, the 

clause at 952.250–70, Nuclear Hazards 

Indemnity Agreement, or both clauses. 

(g) The contracting officer shall insert 

the clause at 952.223–75, Preservation 

of Individual Occupational Radiation 

Exposure Records, in contracts 

containing 952.223–71, Integration of 

Environment, Safety, and Health into 

Work Planning and Execution, or 

952.223–72, Radiation Protection and 

Nuclear Criticality. 

PART 925—FOREIGN ACQUISITION 

■ 88. The authority citation for part 925 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 89. Amend section 925.1001 by 

revising paragraph (b) to read as follows: 

925.1001 Waiver of right to examination of 

records. 

(b) Determination and findings. A 

determination and findings required by 

FAR 25.1001(b) shall be forwarded to 

either the Director, Office of Contract 

Management, Office of Acquisition 

Management, or for the National 

Nuclear Security Administration 

(NNSA), to the Deputy Associate 

Administrator for the Office of 

Partnership and Acquisition Services, 

for coordination of the Secretary’s 

approval. 

PART 926—OTHER SOCIOECONOMIC 

PROGRAMS 

■ 90. The authority citation for part 926 

continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 91. Newly redesignated section 

926.500 is revised to read as follows: 

926.500 Scope of subpart. 

For contracts performed at DOE sites, 

in lieu of subpart 26.5 of this title, 

contracting activities shall use 926.570, 

Workplace Substance Abuse Programs 

at DOE sites. 

■ 92. Newly redesignated section 

926.570–2 is revised to read as follows: 

926.570–2 Solicitation provision and 

contract clause. 

(a) The contracting officer shall insert 

the provision at 970.5226–4, Agreement 

Regarding Workplace Substance Abuse 

Programs at DOE Sites, in solicitations 

where the work to be performed by the 

contractor will occur on sites owned or 

controlled by DOE and operated under 

the authority of the Atomic Energy Act 

of 1954, as amended, as specified in 

926.570–1, Applicability. 

(b) The contracting officer shall insert 

the clause at 970.5226–5, Workplace 

Substance Abuse Programs at DOE Sites, 

in contracts where the work to be 

performed by the contractor will occur 

on sites owned or controlled by DOE 

and operated under the authority of the 

Atomic Energy Act of 1954, as amended, 

as specified in 926.570–1, Applicability. 

926.570–3 [Amended] 

■ 93. Newly redesignated section 

926.570–3 is amended by: 

■ a. Removing ‘‘FAR 23.506’’ and 

adding ‘‘FAR 26.505’’ in its place 

wherever it appears; 

■ b. Removing ‘‘970.5223–4’’ and 

adding ‘‘970.5226–5’’ in its place 

wherever it appears. 

■ 94. Amend section 926.7001 by 

revising paragraphs (a) and (b) to read 

as follows: 

926.7001 Policy. 

(a) Section 3021(a) of the Energy 

Policy Act of 1992, as amended, 

specifies that the Department of Energy 

(DOE) shall, to the extent practicable, 

provide that not less than 10 percent of 

the total combined amounts obligated 

for competitively awarded contracts and 

subcontracts under the Energy Policy 

Act be expended with— 

(1) Small business concerns 

controlled by socially and economically 

disadvantaged individuals or by 

women; 

(2) Historically Black colleges and 

universities; 

(3) Colleges and universities having a 

student body in which more than 20 

percent of the students are Hispanic 

Americans or Native Americans; or 

(4) Qualified HUBZone small business 

concerns, as defined at FAR 2.101. 

(b) The four groups in paragraph (a) 

of this section are collectively referred 

to in this section as ‘‘Energy Policy Act 

target groups.’’ 

* * * * * 

■ 95. Section 926.7004 is revised to read 

as follows: 

926.7004 Size standard for Energy Policy 

Act procurements. 

The size standard for Energy Policy 

Act engineering services procurements 

shall be Exception 2 under North 

American Industry Classification 

System code 541330, Engineering 

Services. 

■ 96. Section 926.7005 is revised to read 

as follows: 

926.7005 Preferences under the Energy 

Policy Act. 

Solicitations for all competitive 

Energy Policy Act procurements not for 

8(a) firms and in excess of the 

simplified acquisition threshold shall 

provide for an evaluation preference for 

offers received from entities from among 

the Energy Policy Act target groups. The 

evaluation criteria shall provide that in 

instances in which two or more 

proposals being considered for final 

selection are ranked as essentially equal 

after consideration of all technical and 

cost evaluation factors, and if one of 

these proposals is from an offeror from 

among an Energy Policy Act target 

group that offeror will be selected for 

award. 

■ 97. Amend section 926.7006 by 

revising paragraph (a) to read as follows: 

926.7006 Goal measurement and reporting 

requirements. 

(a) General. The following types of 

contract awards for Energy Policy Act 

procurements shall be counted toward 


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achievement by DOE of the 10 percent 

goal— 

(1) Any award set-aside for small, 

disadvantaged business; 

(2) Any competitive section 8(a) 

award; 

(3) Any competitive award to one of 

the four target groups under an 

unrestricted procurement; 

(4) Any award to one of the four target 

groups conducted under simplified 

acquisition procedures in excess of the 

micro-purchase threshold; and 

(5) Any competitively awarded 

subcontract to one of the four target 

groups under a prime award. 

* * * * * 

■ 98. Amend section 926.7007 by 

revising paragraph (c) to read as follows: 

926.7007 Solicitation provisions and 

contract clauses. 

* * * * * 

(c) The contracting officer shall insert 

the clause at 952.226–72, Energy Policy 

Act Subcontracting Goals and Reporting 

Requirements, in contracts for Energy 

Policy Act requirements with an award 

value in excess of $750,000 ($1,500,000 

in the case of construction). 

* * * * * 

926.7101 [Amended] 

■ 99. Amend section 926.7101 by 

removing the word ‘‘Section’’, wherever 

it appears, and the phrase ‘‘42 U.S.C. 

7474h(c)(2)’’ and adding in their places 

the word ‘‘section’’ and the phrase ‘‘50 

U.S.C. 2704(c)(2)’’, respectively. 

926.7103 [Amended] 

■ 100. Amend section 926.7103 in 

paragraph (a) by removing the phrase 

‘‘42 U.S.C. 7474h’’ and adding in its 

place the phrase ‘‘50 U.S.C. 2704(c)(2)’’. 

■ 101. Section 926.7104 is revised to 

read as follows: 

926.7104 Contract clause. 

The contracting officer shall insert the 

clause at 952.226–74, Workforce 

Restructuring and Displaced Employee 

Hiring Preference, in contracts (both 

non-management and operating 

contracts and management and 

operating contracts), except for contracts 

for commercial items, pursuant to 41 

U.S.C. 403, that exceed $500,000. 

PART 927—PATENTS, DATA, AND 

COPYRIGHTS 

■ 102. The authority citation for part 

927 continues to read as follows: 

Authority: Atomic Energy Act of 1954, as 

amended (42 U.S.C. 2168, 2182, 2201); 

Federal Nonnuclear Energy Research and 

Development Act of 1974 (42 U.S.C. 5908); 

Department of Energy National Security and 

Military Applications of Nuclear Energy 

Authorization Act of 1987 (42 U.S.C. 7261a.); 

Department of Energy Organization Act (42 

U.S.C. 7101 et seq.); National Nuclear 

Security Administration Act (50 U.S.C. 4201 

et seq.) 

927.200 [Removed] 

■ 103. Section 927.200 is removed. 

■ 104. Section 927.201–1 is revised to 

read as follows: 

927.201–1 General. 

For the purposes of this subpart, 

‘‘research and development (R&D)’’ 

includes ‘‘research, development, and 

demonstration.’’ In certain contracting 

situations, such as those involving 

research, development, or 

demonstration projects, consideration 

should be given to the impact of third 

party-owned patents covering 

technology that may be incorporated in 

the project if the patents may ultimately 

affect widespread commercial use of the 

project results. In such situations, Patent 

Counsel shall be consulted to determine 

what modifications, if any, are to be 

made to the utilization of the Patent and 

Copyright Infringement Liability and 

Patent Indemnity provisions or clauses 

or what other action might be deemed 

appropriate. 

927.206 [Removed] 

■ 105. Section 927.206 is removed. 

927.206–1 [Redesignated as 927.202] 

■ 106. Section 927.206–1 is 

redesignated as section 927.202. 

927.202 Royalties. 

■ 107. Amend newly redesignated 

section 927.202 by revising the section 

heading to read as above. 

927.206–2 [Redesignated as 927.202–5] 

■ 108. Section 927.206–2 is 

redesignated as section 927.202–5. 

927.202–5 Solicitation provisions and 

contract clause. 

■ 109. Amend newly redesignated 

section 927.202–5 by revising the 

section heading to read as above. 

927.207 [Redesignated as 927.203] 

■ 110. Section 927.207 is redesignated 

as section 927.203. 

927.207–1 [Redesignated as 927.203–1] 

■ 111. Section 927.207–1 is 

redesignated as section 927.203–1. 

■ 112. Newly redesignated section 

927.203 is revised to read as follows: 

927.203 Security requirements for patent 

applications containing classified subject 

matter. 

927.302 [Redesignated as 927.302–70] 

■ 113. Section 927.302 is redesignated 

as section 927.302–70. 

927.300 [Redesignated as 927.302] 

■ 114. Section 927.300 is redesignated 

as section 927.302. 

■ 115. Newly redesignated section 

927.302 is revised to read as follows: 

927.302 Policy. 

(a) Introduction. (1) A primary 

mission of the Department of Energy 

(DOE) is to conduct research, 

development, and demonstration 

leading to the ultimate 

commercialization of efficient sources of 

energy. To accomplish this mission, 

DOE must work in cooperation with 

industry in the development of new 

energy sources and achieve the ultimate 

goal of widespread commercial 

utilization of those energy sources in the 

shortest practicable time. To this end, 

Congress has provided DOE with the 

authority to invoke an array of 

incentives to secure the 

commercialization of new technologies 

developed for DOE. One such important 

incentive is provided by the patent 

system. 

(2) Another primary mission of DOE 

is to manage the Nation’s nuclear 

weapons programs and other classified 

programs, where research and 

development procurements are directed 

toward processes and equipment not 

available to the public. To support DOE 

programs for bringing private industry 

into these and other special programs to 

the maximum extent permitted by 

national security and policy 

considerations, the technology 

developed in these programs should be 

made available for use in the particular 

fields of interest and under controlled 

conditions by properly cleared 

industrial and scientific research 

institutions. To ensure such availability 

and control, the granting of waivers in 

these programs may be more limited, 

either by the imposition of field of use 

restrictions or national security 

measures, than in other DOE programs. 

(b) Government right to receive title. 

Pursuant to 42 U.S.C. 2182 and 5908, 

DOE takes title to all inventions 

conceived or first actually reduced to 

practice in the course of or under 

contracts with large, for-profit 

companies, foreign organizations, and 

other entities that are not beneficiaries 

of 35 U.S.C. 200 et seq. Regulations 

dealing with Department’s authority to 

waive its title to subject inventions, 


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including the relevant statutory 

objectives, exist at 10 CFR part 784. 

Pursuant to that section, DOE may 

waive the Government’s patent rights in 

appropriate situations at the time of 

contracting to encourage industrial 

participation, foster commercial 

utilization and competition, and make 

the benefits of DOE activities widely 

available to the public. In addition to 

considering the waiver of patent rights 

at the time of contracting, DOE will also 

consider the incentive of a waiver of 

patent rights upon the reporting of an 

identified invention when requested by 

such entities or by the employeeinventor with the permission of the 

contractor. These requests can be made 

whether or not a waiver request was 

made at the time of contracting. Waivers 

for identified inventions will be granted 

where it is determined that the patent 

waiver will be a meaningful incentive to 

achieving the development and ultimate 

commercial utilization of inventions. 

Where DOE grants a waiver of the 

Government’s patent rights, either at the 

time of contracting or after an invention 

is made, certain minimum rights and 

obligations will be required by DOE to 

protect the public interest. 

■ 116. Newly redesignated section 

927.302–70 is revised to read as follows: 

927.302–70 Additional policy. 

(a) In this section and 927.303, 

background patent means a U.S. patent 

covering an invention or discovery that 

is not a subject invention (as defined at 

35 U.S.C. 201(e)) and that is owned or 

controlled by the Contractor at any time 

through the completion of the contract: 

(1) Which the Contractor, but not the 

Government, has the right to license to 

others without obligation to pay 

royalties thereon; and 

(2) Infringement of which cannot 

reasonably be avoided upon the practice 

of any specific process, method, 

machine, manufacture, or composition 

of matter (including relatively minor 

modifications thereof) which is a subject 

of the research, development, or 

demonstration work performed under 

this contract. 

(b) Except for contracts with 

organizations that are beneficiaries of 

Public Law 96–517, the United States, 

as represented by DOE, shall normally 

acquire title in and to any invention or 

discovery conceived or first actually 

reduced to practice in the course of or 

under the contract, allowing the 

contractor to retain a nonexclusive, 

revocable, paid-up license in the 

invention and the right to request 

permission to file an application for a 

patent and retain title to any ensuing 

patent in any foreign country in which 

DOE does not elect to secure patent 

rights. DOE may approve the request if 

it determines that such approval would 

be in the national interest. The 

contractor’s nonexclusive license may 

be revoked or modified by DOE only to 

the extent necessary to achieve 

expeditious practical application of the 

invention pursuant to any application 

for and the grant of an exclusive license 

in the invention to another party. 

(c) Normally, contracts will not 

include background patent and 

background data provisions. Under 

special circumstances, however, to 

provide heightened assurance of 

commercialization, a provision 

providing for a right to require licensing 

to third parties of background 

inventions, limited rights data or 

restricted computer software may be 

included (see 927.303(d)(5)). Inclusion 

of such a provision will be done only 

with the written concurrence of the DOE 

program official setting forth the need 

for such assurance. A contract may 

include the right to license the 

Government and third-party contractors 

for special Government purposes when 

future availability of the technology 

would also benefit the Government. The 

scope of any such background patent or 

data licensing is subject to negotiation. 

(d) The Assistant General Counsel for 

Technology Transfer and Intellectual 

Property shall: 

(1) Determine whether reported 

inventions are subject inventions under 

the patent rights clause of the contract; 

(2) Determine whether and where 

patent protection will be obtained on 

inventions; 

(3) Represent DOE before domestic 

and foreign patent offices; 

(4) Accept assignments and 

instruments confirmatory of the 

Government’s rights to inventions; and 

(5) Represent DOE in patent, 

trademark, technical data, copyright, 

and other intellectual property matters 

not specifically reserved to the Head of 

the Agency or designee under this part. 

■ 117. Section 927.303 is revised to read 

as follows: 

927.303 Contract clauses. 

(a)(1) Insert a patent rights clause in 

all solicitations and contracts for 

experimental, research, developmental, 

or demonstration work as prescribed in 

this section. 

(2) [Reserved] 

(3) [Reserved] 

(4) For M&O contracts, certain 

decontamination and decommissioning 

activities and the building and/or 

operation of other DOE facilities, see 

subpart 970.27. 

(d) The Contracting Officer shall use 

the clause at 952.227–13, Patent 

Rights—Ownership by the Government, 

except for— 

(1) Contracts for construction work or 

architect-engineer services. When the 

services can be expected to involve only 

‘‘standard types of construction’’ such 

as involving previously developed 

equipment, methods, and processes as 

described in FAR 27.303(a)(3), the 

Contracting Officer shall not include a 

patent clause; 

(2) Contracts with domestic small 

business firms or nonprofit 

organizations (see FAR 27.301). In such 

cases, the Contracting Officer shall use 

the clause at 37 CFR 401.14, Standard 

Patent Rights, and Alternate I of 

952.227–11 that includes the agency 

implementing regulations specific for 

DOE, suitably modified to identify the 

parties, in all contracts, at any tier, for 

experimental, developmental, 

demonstration or research work to be 

performed by a small business firm or 

domestic nonprofit organization, unless 

the work is subject to an Exceptional 

Circumstances Determination by DOE or 

another exception (see 37 CFR 401.3(a)). 

If the Determination of Exceptional 

Circumstances under the Bayh-Dole Act 

to Further Promote Domestic 

Manufacture of DOE Science and Energy 

Technologies executed by DOE on June 

7, 2021 (S&E DEC) or any other 

Determination of Exceptional 

Circumstances under the Bayh-Dole Act 

(DEC) is applicable, the Contracting 

Officer shall include the clause at 37 

CFR 401.14 and Alternate II of 952.227– 

11; 

(3) Waivers of rights. In cases where 

DOE grants an advance waiver or waives 

its rights in an identified invention 

pursuant to 10 CFR part 784, 

Contracting Officers shall consult with 

patent counsel on appropriate clauses; 

(4) Contracts for the design, 

construction, operation, or management 

(or the integration of a collection of 

contracts for the same purpose) of a 

Government-owned research, 

development, demonstration or 

production facility. In such cases, the 

Government must be accorded certain 

rights, applicable to further use of the 

facility by or on behalf of the 

Government after contract termination 

or completion. For such contracts, the 

Contracting Officer shall include 

Alternate II with the clause at 952.227– 

13; 

(5) Background patent rights. For 

contracts involving DOE background 

patent rights, the Contracting Officer 

shall use Alternate I to the clause at 

952.227–13. Alternate I may be 

modified with the concurrence of Patent 


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Counsel in order to reflect the equities 

of the contracting parties in particular 

situations; or 

(6) U.S. Competitiveness. If the 

funding program is subject to the S&E 

DEC, then the Contracting Officer shall 

use Alternate II to the clause at 952.227– 

13 when Patent Counsel has determined 

that the S&E DEC applies to the 

Contractor’s funding and should be 

included in the contract. 

■ 118. Amend section 927.304 by: 

■ a. In the first sentence, removing 

‘‘952.227–11’’ and adding in its place 

‘‘37 CFR 401.14’’; and 

■ b. Revising the second sentence. 

The revision reads as follows: 

927.304 Procedures. 

* * * This section supplements FAR 

27.304–1(c). 

Subpart 927.4—Rights in Data and 

Copyrights 

■ 119. The heading for subpart 927.4 is 

revised to read as above. 

■ 120. Section 927.401 is added to read 

as follows: 

927.401 Definitions. 

Technical data means data (other than 

computer software) 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 database (see appendix A 

to subpart D of 2 CFR part 910). 

927.402 and 927.402–1 [Removed] 

■ 121. Sections 927.402 and 927.402–1 

are removed. 

927.402–2 [Redesignated as 927.402] 

■ 122. Section 927.402–2 is 

redesignated as section 927.402. 

■ 123. Amend newly redesignated 

section 927.402 by revising the 

introductory text to read as follows: 

927.402 Policy. 

The technical data and scientific and 

technical information (STI) policies are 

directed toward achieving the following 

objectives: 

* * * * * 

927.403 [Removed] 

■ 124. Remove section 927.403. 

927.404 and 927.404–70 [Redesignated as 

927.404–70 and 927.404–71] 

■ 125. Sections 927.404 and 927.404–70 

are redesignated as sections 927.404–70 

and 927.404–71, respectively. 

■ 126. Newly redesignated section 

927.404–70 is revised to read as follows: 

927.404–70 Rights in technical data in 

subcontracts. 

(a) Prime contractors and higher-tier 

subcontractors, in meeting their 

obligations with respect to contract data, 

must obtain from their subcontractors 

the rights in, access to, and delivery of 

such data on behalf of the Government. 

Accordingly, subject to the policy set 

forth in this subpart and subject to the 

approval of the Contracting Officer, 

where required, prime contractors or 

higher-tier subcontractors must select 

appropriate technical data provisions 

for their subcontracts. 

(1) In many, but not all instances, use 

of the clause at FAR 52.227–14, Rights 

in Data—General, as supplemented 

pursuant to this subpart, in a 

subcontract will provide for sufficient 

Government rights in and access to 

technical data. The inspection rights 

afforded in Alternate V to the clause at 

FAR 52.227–14 normally should be 

obtained only in first-tier subcontracts 

for research, development, or 

demonstration work or the furnishing of 

supplies for which there are substantial 

technical data requirements as reflected 

in the prime contract. 

(2) If a subcontractor refuses to accept 

technical data provisions affording 

rights in and access to technical data on 

behalf of the Government, the 

Contractor shall so inform the 

Contracting Officer in writing and not 

proceed with the subcontract award 

without written authorization of the 

Contracting Officer. 

(3) In prime contracts or higher-tier 

subcontracts that contain the clause at 

FAR 52.227–16, Additional Data 

Requirements, the Contractor or highertier subcontractor must determine 

whether inclusion of such clause in a 

subcontract is required to satisfy 

technical data requirements of the prime 

contract or higher-tier subcontract. 

(b) As is the case for DOE in its 

determination of technical data 

requirements, the clause at FAR 52.227– 

16, Additional Data Requirements, 

should not be used at any 

subcontracting tier where the technical 

data requirements are fully known. 

Normally, the clause will be used only 

in subcontracts having as a purpose the 

conduct of research, development, or 

demonstration work. Prime contractors 

and higher-tier subcontractors shall not 

use their power to award subcontracts 

as economic leverage to acquire rights in 

the subcontractor’s limited rights data or 

restricted computer software for their 

private use, and they shall not acquire 

rights to limited rights data or restricted 

computer software on behalf of the 

Government for standard commercial 

items without the prior approval of 

Patent Counsel. 

■ 127. Amend newly redesignated 

section 927.404–71 by revising the 

fourth sentence to read as follows: 

927.404–71 Statutory programs. 

* * * Generally, such clauses will be 

based upon the clause at FAR 52.227– 

14, Rights in Data-General, with 

appropriate modifications to define and 

protect the ‘‘protected data’’ in 

accordance with the applicable statute. 

* * * 

■ 128. Sections 927.406 and 927.406–4 

are added to read as follows: 

927.406 Acquisition of data. 

927.406–4 Acquisition and use of 

technical data. 

To meet the objectives stated in 

927.402, DOE has extensive technical 

data needs. 

(a) Section 982 of the Energy Policy 

Act of 2005 (EPAct 2005, 42 U.S.C. 

16352) mandates that the Secretary of 

Energy, through the Office of Scientific 

and Technical Information, shall 

maintain within the Department 

publicly available collections of STI 

resulting from research, development, 

demonstration, and commercialapplications activities supported by 

DOE. 

(b) Section 105 of the DOE Energy 

Research and Innovation Act (Pub. L. 

115–246) further mandates that DOE 

establish and maintain a public database 

populated with information on 

unclassified research and development 

projects, as well as relevant literature 

and patents. 

(c) The legal rights in technical data 

acquired by the Government through 

DOE contracts, other than management 

and operating (M&O) contracts (see 

970.2704), or contracts involving the 

production of data necessary for DOE 

sites/facilities management or 

operations, are set forth in the clause at 

FAR 52.227–14, Rights in Data— 

General, as supplemented in accordance 

with this subpart. However, those 

clauses do not obtain for the 

Government delivery of any data 

whatsoever. Rather, known technical 

data delivery requirements shall be set 

forth as part of the contract. For 

Research and Development contracting, 

requirements for results (conveyed as 

STI) are addressed in 935.010 and 

should be set forth in the contract. 

(d) Contracting Officers shall contact 

Patent Counsel assisting their 

contracting activity or the Assistant 

General Counsel for Technology 

Transfer and Intellectual Property for 

assistance in selecting, negotiating, or 


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approving appropriate data and 

copyright clauses in accordance with 

the procedures set forth in this subpart 

and FAR subpart 27.4. In particular, 

Contracting Officers shall seek the 

advice of Patent Counsel regarding any 

situation not in conformance with this 

subpart, including the inclusion or 

modification of alternate paragraphs of 

the clause at FAR 52.227–14, as 

supplemented pursuant to this subpart, 

the exclusion of specific items from that 

clause, the exclusion of the clause at 

FAR 52.227–16, Additional Data 

Requirements, and the inclusion of any 

special provisions in a particular 

contract. Deviations shall follow the 

requirements in FAR subpart 1.4 and 

subpart 901.4. 

(e) Contractors are required by 

Alternate VIII of the clause at 952.227– 

14, as supplemented pursuant to this 

subpart, to acquire permission from 

DOE Patent Counsel to assert copyright 

in any data including computer software 

first produced in the performance of the 

contract. This requirement reflects 

DOE’s established software distribution 

program, and DOE’s statutory 

dissemination obligations. When a 

contractor requests permission to assert 

copyright, Patent Counsel shall 

predicate its decision on the 

considerations reflected in paragraph (e) 

of the clause at 970.5227–2, Rights in 

Data—Technology Transfer. 

(f) In many situations the achievement 

of DOE’s objectives would be frustrated 

if the Government, at time of award, did 

not obtain on behalf of responsible third 

parties and itself limited license rights 

in and to limited rights data or restricted 

computer software, or both. Such rights 

are necessary for the practice of subject 

inventions or data first produced or 

delivered under the contract. When the 

contract is for research, development, or 

demonstration, Contracting Officers 

should consult with program officials 

and Patent Counsel to determine 

whether such rights should be acquired. 

No such rights should be obtained from 

a small business or non-profit 

organization, unless similar rights in 

background inventions of such 

organizations have been authorized in 

accordance with 35 U.S.C. 202(f). In all 

cases when the Contractor has agreed to 

include a provision assuring 

commercial availability of background 

patents, consideration should be given 

to securing for the Government and 

responsible third parties at reasonable 

royalties and under appropriate 

restrictions, co-extensive license rights 

for data, which are limited rights data 

and restricted computer software. 

■ 129. Section 927.409 is revised to read 

as follows: 

927.409 Solicitation provisions and 

contract clauses. 

(a) The contracting officer shall insert 

the clause at FAR 52.227–14, Rights in 

Data-General, and supplement it with 

Alternates I and V of FAR 52.227–14 

and Alternate VIII of FAR 952.227–14, 

Rights in Data-General, in solicitations 

and contracts if it is contemplated that 

data will be produced, furnished, or 

acquired under the contract. Generally, 

a contract should contain only one data 

rights clause. However, where more 

than one is needed as prescribed in 

paragraph (b) of this section, the contact 

should distinguish the portion of 

contract performance to which each 

pertains. 

(b)(1) However, the rights in data in 

specific situations will be treated as 

described, where the contract is— 

(i) For the production of special works 

of the type set forth in FAR 27.405–1, 

the Patent Counsel shall insert the 

clause at FAR 52.227–17, Rights in DataSpecial Works, including Alternate I. 

The clause at FAR 52.227–14, Rights in 

Data-General, may be included in the 

contract and made applicable to data 

other than special works, as appropriate 

(see paragraph (e) of FAR 27.409); 

(ii) For the acquisition of existing data 

works, as described in FAR 27.405–2 

(see paragraph (f) of FAR 27.409); 

(iii) To be performed outside the 

United States, its possessions, and 

Puerto Rico, in which case agencies may 

prescribe different clauses (see 

paragraph (i) of FAR 27.409); 

(iv) For architect-engineer services or 

construction work, in which case the 

Patent Counsel shall utilize the clause at 

FAR 52.227–17, Rights in Data-Special 

Works, including Alternate I; 

(v) A Small Business Innovation 

Research contract (see paragraph (h) of 

FAR 27.409); 

(vi) For management and operation of 

a DOE facility (see 970.2704) or other 

contracts involving the production of 

data necessary for the management or 

operation of DOE facilities or a DOE 

site, certain decontamination and 

decommissioning activities, or the 

building and/or operation of other DOE 

facilities, after consultation with Patent 

Counsel (see 927.402–1(b)); 

(vii) Awarded pursuant to a statute 

expressly providing authority for the 

protection of data first produced 

thereunder from disclosure or 

dissemination. (see 927.404–70); 

(viii) For basic or applied research 

with educational institutions (other than 

those in which software is specified for 

delivery unless the software will be 

released as open source software or 

other special circumstances exist), the 

Patent Counsel may use the clause at 

FAR 52.227–14 with its Alternate IV 

instead of Alternate VIII of the clause at 

FAR 952.227–14, Rights in DataGeneral; 

(ix)(A) Requiring license rights that 

are deemed necessary, the Patent 

Counsel should supplement the clause 

at FAR 52.227–14, Rights in Data— 

General, with Alternate VI, as provided 

at 952.227–14, Rights in Data—General, 

which will normally be sufficient to 

cover limited rights data and restricted 

computer software for items and 

processes used in the contract and 

necessary to ensure widespread 

commercial use or practical utilization 

of a subject of the contract. The phrase 

‘‘subject of the contract’’ in Alternate VI 

is intended to limit licensing to the 

fields of technology specifically 

contemplated under the contract; the 

phrase may be replaced by a more 

specific statement of the fields of 

technology intended to be covered in 

the manner described in the clause at 

952.227–13, Patent Rights—Ownership 

by the Government. 

(B) Where limited rights data and 

restricted computer software are the 

main purpose or basic technology of the 

research, development, or 

demonstration effort of the contract 

(rather than subcomponents, products, 

or processes ancillary to the contract 

effort), the limitations in paragraphs 

(k)(1) through (4) of Alternate VI of the 

clause at 952.227–14 should be 

supplemented or deleted. Paragraph (k) 

of Alternate VI further provides that 

limited rights data or restricted 

computer software may be specified in 

the contract as being excluded from or 

not subject to the licensing 

requirements. This exclusion is 

implemented by limiting the 

applicability of the provisions of 

paragraph (k) of Alternate VI to only 

those classes or categories of limited 

rights data and restricted computer 

software determined essential for 

licensing. Although contractor licensing 

may be required under paragraph (k) of 

Alternate VI, the final resolution of 

questions regarding the scope of such 

licenses and the terms thereof, 

including provisions for confidentiality, 

and reasonable royalties, is left to the 

negotiation between the contractor and 

the Contracting Officer; or 

(x) Where the contractor has access to 

certain categories of DOE-owned 

Category C–24 restricted data, as set 

forth in 10 CFR part 725, Alternate VII 

of 952.227–14, Rights in Data-General, 

shall be used. DOE has reserved the 

right to receive reasonable 


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compensation for the use of its 

inventions and discoveries, including 

its related data and technology. In 

addition, in any other types of 

contracting situations in which the 

contractor may be given access to 

restricted data owned by DOE, 

appropriate limitations on the use of 

such data must be specified. 

(d) The contracting officer shall insert 

the clause at FAR 52.227–16, Additional 

Data Requirements, in solicitations and 

contracts involving experimental, 

developmental, research, or 

demonstration work (other than basic or 

applied research to be performed solely 

by a university or college where the 

contract amount will be $500,000 or 

less.) See FAR 27.406–2. Patent Counsel 

may use the clause at FAR 52.227–16, 

Additional Data Requirements, along 

with the clause at FAR 52.227–14, 

Rights in Data—General, to require the 

contractor to furnish additional 

technical data, in instances where 

technical data requirements were not 

known at the time of award. There is, 

however, a built-in limitation on the 

kind of technical data that a contractor 

may be required to deliver under either 

the contract or the Additional Data 

Requirements clause. This limitation is 

in the withholding provision of 

paragraph (g) of FAR 52.227–14, Rights 

in Data—General, which provides that 

the contractor need not furnish limited 

rights data or restricted computer 

software. Unless Alternate II or III to the 

clause at FAR 52.227–14 is used, the 

Additional Data Rights clause is 

specifically intended that the contractor 

may withhold limited rights data or 

restricted computer software even 

though a requirement for technical data 

specified in the contract or called for 

delivery (pursuant to the clause at FAR 

52.227–16) would otherwise require the 

delivery of such data. 

(m) Contracting officers shall 

incorporate the solicitation provision at 

FAR 52.227–23, Rights to Proposal Data 

(Technical), in all requests for 

proposals. 

(n) Contracting officers shall include 

the solicitation provision at 952.227–84 

in all solicitations involving research, 

developmental, or demonstration work. 

PART 931—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

■ 130. The authority citation for part 

931 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 131. Section 931.205–18 is revised to 

read as follows: 

931.205–18 Independent research and 

development and bid and proposal costs. 

(c)(1) Independent research and 

development (IR&D) costs are 

recoverable under DOE contracts to the 

extent they are reasonable, allocable, not 

otherwise unallowable, and they have 

potential benefit or relationship to the 

DOE program. The term ‘‘DOE program’’ 

encompasses the DOE total mission and 

its objectives. Bid and proposal (B&P) 

costs are recoverable under DOE 

contracts to the extent they are 

reasonable, allocable, and not otherwise 

unallowable. 

(2) [Reserved] 

931.205–47 [Amended] 

■ 132. Amend section 931.205–47 in 

paragraph (h)(1), in the definition of 

‘‘Employee whistleblower action’’, by 

removing ‘‘42 U.S.C. 7239’’ and adding 

in its place ‘‘50 U.S.C. 2702’’. 

PART 932—CONTRACT FINANCING 

■ 133. The authority citation for part 

932 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 134. Amend section 932.970 by 

revising paragraph (b) to read as follows: 

932.970 Implementing DOE policies and 

procedures. 

* * * * * 

(b) Accelerated payments to limit 

contractor working capital 

requirements. Contracting Officers may 

specify payment due dates that are less 

than the standard under the Prompt 

Payment Act when a determination is 

made, in writing, on a case-by-case 

basis, that a shorter contract financing 

payment cycle will be beneficial to the 

Government by reducing the 

contractor’s working capital 

requirements. In such cases, the 

Contracting Officer should coordinate 

with the finance and program officials 

that will be involved in the payment 

process to ensure that the contract 

payment terms to be specified in 

solicitations and resulting contract 

awards will provide sufficient time for 

officials to perform an appropriate 

review of the invoices before they are 

paid. Consideration should be given to 

geographical separation, workload, 

contractor ability to submit a proper 

request, and other factors that could 

affect timing of payment. However, 

payment due dates that are less than 7 

days for progress payments or less than 

14 days for interim payments on costtype contracts are not authorized. In all 

cases whereby the contract specifies 

payment due dates that are sooner than 

those required under the relevant 

prompt payment requirements, the 

contract will permit the Contracting 

Officer to unilaterally authorize 

additional time for review of invoices if 

needed to perform an adequate review 

of those invoices prior to payment. 

■ 135. Section 932.971 is added to read 

as follows: 

932.971 Electronic submission of 

invoices/vouchers. 

In general, Contracting Officers 

should insert the clause at 952.232–7, 

Electronic Submission of Invoices/ 

Vouchers, in contracts. However, after 

consultation with the Office of the Chief 

Financial Officer, the Contracting 

Officer may approve alternate methods 

of submission. 

Subpart 932.70 [Removed] 

■ 136. Subpart 932.70, consisting of 

932.7002 through 932.7004–3, is 

removed. 

PART 933—PROTESTS, DISPUTES, 

AND APPEALS 

■ 137. The authority citation for part 

933 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 138. Section 933.103 is revised to read 

as follows: 

933.103 Protests to the agency. 

(a) Reference. The Department of 

Energy (DOE) does not accept or 

adjudicate protests from prospective 

subcontractors. 

(c) The Department of Energy 

encourages direct negotiations between 

an offeror and the contracting officer, 

including alternative dispute resolution 

(ADR) techniques. A protest requesting 

a decision at the Headquarters level 

shall state whether the protester is 

willing to utilize ADR techniques such 

as mediation or nonbinding evaluation 

of the protest by a neutral party. Both 

the protester and the Department must 

agree that the use of such techniques is 

appropriate. If the parties do not 

mutually agree to utilize ADR 

techniques to resolve the protest, the 

protest will be processed in accordance 

with the procedures set forth in 

paragraphs (f) and (g) of this section. 

(f)(5) Upon receipt of a protest filed 

against DOE, the contracting officer 

shall prepare a report similar to that 

discussed in FAR 33.104(a)(3)(iv). 

(6) Protests filed with the contracting 

officer before or after award shall be 

decided by the HCA except for the 

following cases, which shall be decided 

by the Senior Procurement Executive: 


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(i) The protester requests that the 

protest be decided by the Senior 

Procurement Executive; 

(ii) The HCA is the contracting officer 

of record at the time the protest is filed, 

having signed either the solicitation 

where the award has not been made, or 

the contract, where the award or 

nomination of the apparent successful 

offeror has been made; 

(iii) The HCA concludes that one or 

more of the issues raised in the protest 

have the potential for significant impact 

on Department of Energy (DOE) 

acquisition policy; or 

(iv) The SPE elects to decide the 

protest. 

(g) The official identified in paragraph 

(f)(6) of this section will render a 

decision on a protest within 35 calendar 

days, unless a longer period of time is 

deemed necessary. 

■ 139. Section 933.104 is revised to read 

as follows: 

933.104 Protests to GAO. 

The GAO does not have jurisdiction 

over protests from subcontractors. 

(a)(2) The contracting officer shall 

provide the notice of protest. 

(b)(1) The finding required under FAR 

33.104(b)(1) shall be concurred upon by 

the local DOE counsel with cognizance 

over the underlying procurement and 

the Senior Program Official, and 

approved by the SPE before the HCA 

authorizes a contract award. The finding 

shall also address the likelihood that the 

protest will be sustained by the GAO. 

(c)(2) The finding required by FAR 

33.104(c)(2) shall be concurred upon by 

the local DOE counsel with cognizance 

over the underlying procurement and 

the Senior Program Official, and 

approved by the SPE before the HCA 

authorizes contract performance. 

(g) Notice to GAO. DOE’s policy is to 

comply promptly with the 

recommendations in Comptroller 

General decisions unless compelling 

reasons exist. Any decision to not 

comply shall be substantiated by the 

HCA making the award, after approval 

by the SPE. The report to the GAO 

regarding a decision to not comply with 

the GAO’s recommendation shall be 

transmitted to the GAO by the HCA 

making the award or, if a DOE-wide 

policy issue is involved, the report shall 

be provided by the SPE. 

■ 140. Section 933.106 is revised to read 

as follows: 

933.106 Solicitation provisions and 

contract clauses. 

(a) When using the provision at FAR 

52.233–2, Service of Protest, the 

Contracting Officer shall insert the 

provision at 952.233–2, Service of 

Protest. 

PART 935—RESEARCH AND 

DEVELOPMENT CONTRACTING 

■ 141. The authority citation for part 

935 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 142. Section 935.010 is revised to read 

as follows: 

935.010 Scientific and technical reports. 

(c) For purposes of section 982 of the 

Energy Policy Act of 2005 (42 U.S.C. 

16322), the research results, referred to 

as scientific and technical information 

(STI), are derived from management and 

operation (M&O), research and 

development (R&D), facility 

management, and non-major site/facility 

management type contracts. STI must be 

documented, managed, and 

electronically submitted to the 

Department of Energy (DOE), Office of 

Scientific and Technical Information 

(OSTI), using the DOE Energy Link 

System. DOE Order 241.1B, Scientific 

and Technical Information 

Management, or successor, sets forth 

requirements for STI management and 

the types of STI products to be 

announced and submitted to DOE OSTI. 

STI products identified in DOE Order 

241.1B are reportable to OSTI whether 

publicly releasable, controlled 

unclassified information or classified. 

(d) The Contracting Officer shall 

ensure that the requirements for STI 

management, as prescribed in DOE 

Order 241.1B, or its successor version, 

are included in accordance with the 

attendant Contractor Requirements 

Document or in the statement of work. 

■ 143. Section 935.070 is revised to read 

as follows: 

935.070 Research misconduct. 

The policy on research misconduct, 

set forth at 10 CFR part 733, applies to 

individuals who propose, perform or 

review research of any kind for the 

Department of Energy pursuant to a 

contract. The regulations in 10 CFR part 

733 apply regardless of where the 

research or other activity is conducted 

or by whom. 

PART 936—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 144. The authority citation for part 

936 continues to read as follows: 

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

U.S.C. 2401 et seq. 

936.202–71 [Removed] 

■ 145. Section 936.202–71 is removed. 

PART 941—ACQUISITION OF UTILITY 

SERVICES 

■ 146. The authority citation for part 

941 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 147. Section 941.201–70 is revised to 

read as follows: 

941.201–70 Policy. 

Utility services shall be acquired in 

accordance with part 41 of this title and 

the Energy Policy Act of 2005 (EPAct 

2005) (25 U.S.C. 3502). Pursuant to 

EPAct 2005, the requirement must be 

publicized appropriately, and pricing 

may not exceed prevailing market prices 

for energy. For Department of Energy 

(DOE) programs, Acquisition Plans for 

utility services shall be submitted to 

DOE’s Federal Energy Management 

Program (FEMP) for review, technical 

input, and concurrence. For NNSA 

programs, FEMP review and technical 

input may be obtained, but FEMP 

concurrence is not required. 

PART 942—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

■ 148. The authority citation for part 

942 continues to read as follows: 

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

U.S.C. 2401 et seq. 

942.705–1 [Amended] 

■ 149. Amend section 942.705–1 by 

removing paragraph (a)(3). 

942.705–3 through 942.705–5 [Removed] 

■ 150. Sections 942.705–3 through 

942.705–5 are removed. 

■ 151. Subpart 942.71 is added to read 

as follows: 

Subpart 942.71—Conditional Payment 

of Fee, Profit, and Other Incentives 

Sec. 

942.7100 Conditional payment of fee, 

profit, and other incentives. 

942.7100 Conditional payment of fee, 

profit, and other incentives. 

(a) If the contractor does not meet the 

contract’s requirements relating to 

environment, safety and health (ES&H) 

(see subpart 923.70), or security or 

safeguarding of Restricted Data and 

other classified information (see subpart 

904.4), the Contracting Officer may 

unilaterally reduce otherwise earned 

fee, fixed fee, profit, or other incentives 

in accordance with the clause at 

952.242–71, Conditional Payment of 

Fee, Profit, and Other Incentives. 

(b) When reviewing performance 

failures that would warrant a reduction 


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of otherwise earned fee, the Contracting 

Officer must consider mitigating factors 

that may warrant a reduction below the 

applicable range specified in the clause. 

The mitigating factors are specified in 

the clause. The Contracting Officer must 

obtain the concurrence of the Head of 

the Contracting Activity— 

(1) Prior to effecting any reduction of 

fee, profit or other incentives otherwise 

payable under the clause at 952.242–71, 

Conditional Payment of Fee, Profit, or 

Other Incentives; and 

(2) Prior to determining that no 

reduction is warranted for performance 

failure(s) that would otherwise warrant 

a reduction. 

(c) Before pursuing a reduction in the 

event of a violation by the contractor or 

any contractor employee of any 

Department regulation relating to 

worker safety and health concerns, the 

Contracting Officer must coordinate 

with the Office of Enforcement within 

the Office of Enterprise Assessments (or 

designated successor office). 

(d) Unless the clause for management 

and operating contracts is prescribed 

(see 970.1504–3(b)), insert the clause at 

952.242–71, Conditional Payment of 

Fee, Profit, and Other Incentives, in all 

contracts that contain the clause at 

952.204–2, Security Requirements, the 

clause at 952.250–70, Nuclear Hazards 

Indemnity Agreement, or both clauses. 

PART 945—GOVERNMENT PROPERTY 

■ 152. The authority citation for part 

945 continues to read as follows: 

Authority: 42 U.S.C. 7101, et seq.; 50 

U.S.C. 2401, et seq. 

■ 153. Section 945.000 is revised to read 

as follows: 

945.000 Scope of part. 

This part and FAR part 45 are not 

applicable to the management of 

property by management and operating 

contractors or other on-site contractors 

designated in 41 CFR chapter 109, 

unless otherwise stated in the 

applicable contract. 

945.101, 945.102–70, and 945.102–71 

[Removed] 

■ 154. Sections 945.101, 945.102–70, 

and 945.102–71 are removed. 

945.570–1 [Amended] 

■ 155. Amend section 945.570–1 in 

paragraph (g) by removing the words 

‘‘Personal Property Policy Division’’ and 

adding in their place the words ‘‘Office 

of Asset Management’’. 

945.602, 945.602–3, 945.602–70, and 945.603 

[Removed] 

■ 156. Sections 945.602, 945.602–3, 

945.602–70, and 945.603 are removed. 

945.670–1 [Amended] 

■ 157. Amend section 945.670–1 by 

removing ‘‘48 CFR 45.606–3’’ and 

adding in its place ‘‘FAR 2.101’’. 

945.670–3 [Removed] 

■ 158. Section 945.670–3 is removed. 

945.671 [Amended] 

■ 159. Amend section 945.671 by 

removing ‘‘41 CFR 109–43.5 and 45.41, 

or its successor and 48 CFR 45.302’’ and 

adding in its place ‘‘41 CFR chapter 109 

and FAR 45.302’’. 

PART 951—USE OF GOVERNMENT 

SOURCES BY CONTRACTORS 

■ 160. The authority citation for part 

951 continues to read as follows: 

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

U.S.C. 2401 et seq. 

■ 161. Amend section 951.102 by 

revising paragraph (c)(1) to read as 

follows: 

951.102 Authorization to use Government 

supply sources. 

* * * * * 

(c)(1) The DOE central point of 

contact for the assignment, correction, 

or deletion of activity address codes is 

the Systems Division, within the Office 

of Acquisition Management. 

* * * * * 

PART 952—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 162. The authority citation for part 

952 continues 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. 

■ 163. Section 952.203–1 is added to 

read as follows: 

952.203–1 Identification of contractor 

employees. 

As prescribed at 903.1004, insert the 

following clause: 

Identification of Contractor Employees 

[December 2024] 

Contractors and their employees shall 

be properly identified in 

communications (e.g., email 

communications, texts, video and 

teleconference calls, etc.) and in 

meetings so that all participants can 

differentiate between Federal employees 

and contractor employees. 

(End of clause) 

■ 164. Section 952.204–2 is revised to 

read as follows: 

952.204–2 Security requirements. 

As prescribed in 904.404(d)(1), insert 

the following clause: 

Security Requirements [December 2024] 

(a) Definitions. Classified Information 

means information that is classified as 

Restricted Data or Formerly Restricted 

Data or Transclassified Foreign Nuclear 

Information under the Atomic Energy 

Act of 1954, or information identified as 

National Security Information and 

therefore determined to require 

protection against unauthorized 

disclosure under E.O. 13526, Classified 

National Security Information, as 

amended, or prior or successive 

Executive orders. 

Contracting Officer means the DOE 

Contracting Officer. 

Contract, when this clause is used in 

a subcontract, means subcontract. 

Contractor, when this clause is 

included in a subcontract, means 

subcontractor. 

Cyber system means any combination 

of facilities, equipment, personnel, 

procedures, and communications 

integrated to provide cyber services; 

examples include business systems, 

control systems, and access control 

systems (National Infrastructure 

Protection Plan, 2009). 

Restricted Data means all data 

concerning design, manufacture, or 

utilization of atomic weapons; 

production of special nuclear material; 

or use of special nuclear material in the 

production of energy, but excluding 

data declassified or removed from the 

Restricted Data category pursuant to 

section 142 of the Atomic Energy Act of 

1954 (42 U.S.C. 2162). 

Formerly Restricted Data means 

information removed from the 

Restricted Data category based on a joint 

determination by DOE or its predecessor 

agencies and the Department of Defense 

(DoD) that the information— 

(1) Relates primarily to the military 

utilization of atomic weapons; and 

(2) Can be adequately protected as 

National Security Information. 

However, such information is subject to 

the same restrictions on transmission to 

other countries or regional defense 

organizations that apply to Restricted 

Data. 

National Security Information means 

information that has been determined, 

pursuant to E.O. 13526, Classified 

National Security Information, as 

amended, or any predecessor or 

successor order, to require protection 


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against unauthorized disclosure, and 

that is marked to indicate its classified 

status when in documentary form. 

Special Access Program means any 

program that is established to control 

access, distribution, and to provide 

protection for particularly sensitive 

classified information beyond that 

normally required for RESTRICTED 

DATA, TOP SECRET, SECRET, or 

CONFIDENTIAL information. 

Special nuclear material means— 

(1) Plutonium, uranium enriched in 

the isotope 233 or in the isotope 235, 

and any other material that, pursuant to 

section 51 of the Atomic Energy Act of 

1954 (42 U.S.C. 2071) 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. 

(b) Responsibility. The Contractor 

shall, in accordance with DOE security 

regulations and requirements, be 

responsible for protecting all classified 

information and all classified matter 

(including documents, material and 

special nuclear material) which are in 

the Contractor’s possession in 

connection with the performance of 

work under this contract against 

sabotage, espionage, loss or theft. Except 

as otherwise expressly provided in this 

contract, the Contractor shall, upon 

completion or termination of this 

contract, transmit to DOE any classified 

matter or special nuclear material 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 classification levels and 

categories of matter proposed for 

retention, the reasons for the retention, 

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 classified matter 

retained. Special nuclear material shall 

not be retained after the completion or 

termination of the contract. 

(c) Regulations. The Contractor shall 

comply with all security and 

classification regulations and contract 

requirements of DOE. 

(d) Access authorizations of 

personnel. (1) The Contractor shall not 

permit any individual to have access to 

any classified information, special 

nuclear material, or Special Access 

Program (SAP) information, except in 

accordance with the Atomic Energy Act 

of 1954, as amended, and the DOE’s 

regulations and contract requirements 

applicable to the particular level and 

category of classified information or 

particular category of special nuclear 

material. 

(2) The Contractor shall conduct a 

thorough review or background review, 

as defined at 48 CFR 904.401, of any 

uncleared applicants or employees, and 

must test individuals for illegal drugs 

prior to selecting them for positions 

requiring DOE access authorizations. 

(i) The review must—(A) Verify 

applicant’s or employee’s educational 

backgrounds, including any high school 

diplomas obtained within the past five 

years, and degrees or diplomas granted 

by an institution of higher learning; 

(B) Contact listed employers for the 

last three years and listed personal 

references; 

(C) Conduct local law enforcement 

checks when such checks are not 

prohibited by state or local law or 

regulation and when the uncleared 

applicant or uncleared employee resides 

in the jurisdiction where the Contractor 

is located; and 

(D) Conduct a credit check and other 

checks as appropriate. 

(ii) For DOE access authorization, 

contractor reviews are not required for 

applicants who possesses a current 

access authorization from DOE or 

another Federal agency, or whose access 

authorization may be reapproved 

without a federal background 

investigation pursuant to Executive 

Order 12968 of August 2, 1995, as 

amended, Access to Classified 

Information, sections 3.3(c) and (d). 

(iii) In collecting and using this 

information to make a determination as 

to whether it is appropriate to select an 

uncleared applicant or uncleared 

employee to a position requiring an 

access authorization, the Contractor 

must comply with all applicable laws, 

regulations, and Executive orders, 

including those— 

(A) Governing the processing and 

privacy of an individual’s information, 

such as the Fair Credit Reporting Act, 

Americans with Disabilities Act 

Amendments Act of 2008 (ADAAA), 

and Health Insurance Portability and 

Accountability Act; and 

(B) prohibiting discrimination in 

employment, such as under the Genetic 

Information Nondiscrimination Act of 

2008, ADAAA, Title VII and the Older 

Workers Benefit and Protection Act of 

1990, including with respect to pre- and 

post-offer of employment disability 

related questioning. 

(iv) In addition to a review, each 

candidate for a DOE access 

authorization must be tested to 

demonstrate the absence of any illegal 

drug, as defined in 10 CFR 707.4. All 

positions requiring access 

authorizations are deemed testing 

designated positions in accordance with 

10 CFR part 707. All employees 

possessing access authorizations are 

subject to applicant, random or for 

cause testing for use of illegal drugs. 

DOE will not process candidates for a 

DOE access authorization unless their 

tests confirm the absence from their 

system of any illegal drug. 

(v) When an uncleared applicant or 

uncleared employee receives an offer of 

employment for a position that requires 

a DOE access authorization, the 

Contractor shall not place that 

individual in such a position prior to 

the individual’s receipt of a DOE access 

authorization, unless an approval has 

been obtained from the head of the 

cognizant local DOE security office. If 

the individual is hired and placed in the 

position prior to receiving an access 

authorization, the uncleared employee 

may not be afforded access to classified 

information or matter or special nuclear 

material (in categories requiring access 

authorization) until an access 

authorization has been granted. 

(vi) The Contractor must maintain a 

record of information concerning each 

uncleared applicant or uncleared 

employee who is selected for a position 

requiring an access authorization. Upon 

request only, the following information 

will be furnished to the head of the 

cognizant local DOE Security Office: 

(A) The date(s) each Review was 

conducted; 

(B) Each entity that provided 

information concerning the individual; 

(C) A certification that the review was 

conducted in accordance with all 

applicable laws, regulations, and 

Executive orders, including those 

governing the processing and privacy of 

an individual’s information collected 

during the review; 

(D) A certification that all information 

collected during the review was 

reviewed and evaluated in accordance 

with the Contractor’s personnel policies; 

and 

(E) The results of the test for illegal 

drugs. 

(vii) 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 protect any classified 

information, special nuclear material, or 

other Government property 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 


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criminal liability under the laws of the 

United States (see the Atomic Energy 

Act of 1954, 42 U.S.C. 2011 et seq.; 18 

U.S.C. 793 and 794). 

(e) Foreign ownership, control, or 

influence (FOCI). (1) The Contractor 

shall immediately provide the cognizant 

security office written notice of any 

change in the extent and nature of FOCI 

over the Contractor which would affect 

any answer to the questions presented 

in the Standard Form (SF) 328, 

Certificate Pertaining to Foreign 

Interests, executed prior to award of this 

contract. The Contractor will submit the 

FOCI information in the format directed 

by DOE. When completed, the 

Contractor must sign the SF 328 and 

submit it to the Contracting Officer. 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 

and to the cognizant security office. 

(2) If a Contractor has changes 

involving FOCI, 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 FOCI, the 

Contractor shall comply with such 

instructions as the Contracting Officer 

shall provide in writing to protect any 

classified information or special nuclear 

material. 

(4) 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 for reasons other than 

avoidance of performance of the 

contract, cannot, or chooses not to, 

avoid or mitigate the FOCI problem. 

(f) Employment announcements. 

When placing announcements seeking 

applicants for positions requiring access 

authorizations, the Contractor shall 

include in the written vacancy 

announcement, a notification to 

prospective applicants that reviews, and 

tests for the absence of any illegal drug 

as defined in 10 CFR 707.4, will be 

conducted by the employer and a 

background investigation by the Federal 

Government may be required to obtain 

an access authorization prior to 

employment, and that subsequent 

reinvestigations may be required. If the 

position is covered by the 

Counterintelligence Evaluation Program 

regulations at 10 CFR part 709, the 

announcement should also alert 

applicants that successful completion of 

a counterintelligence evaluation may 

include a counterintelligence-scope 

polygraph examination. 

(g) Flow down to subcontracts. The 

Contractor agrees to insert terms that 

conform substantially to the language of 

this clause, including this paragraph 

and related DOE policies, in all 

subcontracts that will require 

subcontractor employees to possess 

access authorizations. 

Additionally, the Contractor must 

require such subcontractors to have an 

existing DOD or DOE facility clearance 

or submit a completed SF 328, 

Certificate Pertaining to Foreign 

Interests, as required in title 48 of the 

CFR consistent with the clause at 48 

CFR 952.204–73, Facility Clearance, and 

obtain a foreign ownership, control and 

influence determination prior to award 

of a subcontract. Facility clearance may 

be granted prior to award or after award 

of a subcontract in accordance with the 

clause at 48 CFR 952.204–73, Facility 

Clearance. Information to be provided 

by a subcontractor pursuant to this 

clause may be submitted directly to the 

Contracting Officer. 

(End of clause) 

■ 165. Section 952.204–70 is revised to 

read as follows: 

952.204–70 Classification/Declassification. 

As prescribed in 904.404(d)(2), the 

following clause shall be included in all 

contracts which involve classified 

information: 

Classification/Declassification 

[December 2024] 

(a) Definitions. Classified information 

means information that is classified as 

Restricted Data, Formerly Restricted 

Data or Transclassified Foreign Nuclear 

Information under the Atomic Energy 

Act of 1954, or information identified as 

National Security Information and 

therefore determined to require 

protection against unauthorized 

disclosure under E.O. 13526, Classified 

National Security Information, as 

amended, or prior or successive 

Executive orders. 

Contractor, as used in this clause, 

includes subcontractors. 

Document means any recorded 

information, regardless of the nature of 

the medium or the method or 

circumstances of recording (e.g., email). 

Information means facts, data, or 

knowledge itself. 

Material means a product or 

substance that contains or reveals 

information, regardless of its physical 

form or characteristics. 

(b) The Contractor shall comply with 

all provisions of DOE’s regulations and 

DOE directives applicable to work 

involving the classification and 

declassification of information, 

documents, or material. (Note: The 

decision to classify or declassify 

information is considered an inherently 

Governmental function. As such, only 

Government personnel may serve as 

Federal Government original classifiers. 

Both Government and Contractor 

personnel may serve as derivative 

classifiers; this involves making 

decisions based upon classification 

guidance and, where authorized by DOE 

directives, portion marked source 

documents that reflects the decisions of 

Federal Government. Both Government 

and Contractor personnel may also serve 

as derivative declassifiers; this involves 

making decisions based only on 

classification guidance). 

(c) The Contractor shall ensure that 

any document or material that may 

contain classified information is 

reviewed by either a derivative 

classifier, or in the case of documents 

intended for public release, a 

classification officer or a specifically 

designated DC, in accordance with 

classification regulations, and DOE 

directives. In accordance with DOE 

directives DCs must use classification/ 

declassification guidance furnished to 

the Contractor by the DOE or a portion 

marked source document, when 

authorized to determine whether it 

contains classified information prior to 

dissemination. For information not 

addressed in classification/ 

declassification guidance, but whose 

sensitivity appears to warrant 

classification, the Contractor shall 

ensure it is reviewed by a Federal 

Government original classifier or the 

Director, Office of Classification in 

accordance with classification directives 

or regulations. 

(d) The Contractor shall ensure that 

existing classified documents 

(containing either Restricted Data, 

Formerly Restricted Data, 

Transclassified Foreign Nuclear 

Information, or National Security 

Information) in its possession or under 

its control are periodically reviewed by 

a Federal Government or Contractor 

derivative declassifier in accordance 

with classification regulations, DOE 

directives and classification/ 

declassification guidance furnished to 

the Contractor by DOE to determine if 


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the documents are no longer 

appropriately classified. Priorities for 

declassification review of classified 

documents shall be based on the degree 

of public and researcher interest and the 

likelihood of declassification upon 

review. Documents that no longer 

contain classified information are to be 

declassified. Declassified documents 

then shall be reviewed to determine if 

they are publicly releasable. Documents 

that are declassified and determined to 

be publicly releasable are to be made 

available to the public in order to 

maximize the public’s access while 

minimizing security costs. 

(e) Subcontracts. The Contractor shall 

insert this clause in any subcontract that 

involves or may involve access to 

classified information. 

(End of clause) 

■ 166. Section 952.204–73 is revised to 

read as follows: 

952.204–73 Facility clearance. 

As prescribed in 904.404(d)(5), insert 

the following provision in all 

solicitations and contracts which 

require the use of Standard Form 328, 

Certificate Pertaining to Foreign 

Interests, for contracts or subcontracts 

subject to the provisions of subpart 

904.70: 

Facility Clearance [December 2024] 

Notices to Offerors and the Contract 

Requirements of the Successful Offeror 

(Contractor) Section 2536 of title 10, 

United States Code, prohibits the award 

of a contract under a national security 

program to an entity controlled by a 

foreign government if it is necessary for 

that entity to be given access to 

information in a proscribed category of 

information in order to perform the 

contract unless a waiver is granted by 

the Secretary of Energy. In addition, a 

Facility Clearance and foreign 

ownership, control and influence 

information are required when the 

contract or subcontract to be awarded is 

expected to require employees to have 

access authorizations. 

An offeror who has either a 

Department of Defense or a Department 

of Energy Facility Clearance generally 

need not resubmit the following foreign 

ownership, control and influence 

information unless specifically 

requested to do so. Instead, provide 

your DOE Facility Clearance code or 

your DOD assigned commercial and 

government entity (CAGE) code. If 

uncertain, consult the office that issued 

this solicitation. 

(a) Use of Certificate Pertaining to 

Foreign Interests, Standard Form 328. 

(1) The contract work to be performed 

by the successful offeror anticipated by 

this solicitation will require access to 

classified information or special nuclear 

material. Such access will require a 

Facility Clearance for the Contractor’s 

(that is, the successful offeror’s) 

organization and access authorizations 

(security clearances) for Contractor 

personnel working with the classified 

information or special nuclear material. 

To obtain a Facility Clearance the 

Contractor must submit the Standard 

Form 328, Certificate Pertaining to 

Foreign Interests, and all required 

supporting documents to form a 

complete Foreign Ownership, Control or 

Influence (FOCI) Package. The 

Contractor must submit the FOCI 

Package in the format directed by DOE. 

After the FOCI Package is completed, 

the Contractor must print and sign one 

copy of the SF 328 and submit it to the 

Contracting Officer. 

(2) Information submitted by the 

offeror in the Standard Form 328 will be 

used solely for the purposes of 

evaluating foreign ownership, control or 

influence and will be treated by DOE, to 

the extent permitted by law, as business 

or financial information submitted in 

confidence. 

(3) Following submission of a 

Standard Form 328 and prior to contract 

award, the successful offeror/Contractor 

shall immediately submit to the 

Contracting Officer written notification 

of any changes in the extent and nature 

of FOCI information it submitted that 

could affect its answers to the questions 

in Standard Form 328. Following award 

of a contract, the Contractor must 

immediately submit to the cognizant 

security office written notification of 

any changes in the extent and nature of 

FOCI information it submitted that 

could affect its answers to the questions 

in Standard Form 328. Notice of 

changes in FOCI information that are 

required to be reported to the Securities 

and Exchange Commission, the Federal 

Trade Commission, or the Department 

of Justice must also be reported 

concurrently to the cognizant security 

office. 

(b) Definitions. (1) Foreign Interest 

means any of the following— 

(i) A foreign government, foreign 

government agency, or representative of 

a foreign government; 

(ii) Any form of business enterprise or 

legal entity organized, chartered or 

incorporated under the laws of any 

country other than the United States or 

its possessions and trust territories; and 

(iii) Any person who is not a citizen 

or national of the United States. 

(2) Foreign Ownership, Control, or 

Influence (FOCI) means the situation 

where the degree of ownership, control, 

or influence over a Contractor by a 

foreign interest is such that a reasonable 

basis exists for concluding that 

compromise of classified information or 

special nuclear material may result. 

(c) Facility Clearance means an 

administrative determination that a 

facility is eligible to access, produce, 

use or store classified information, or 

special nuclear material. A Facility 

Clearance is based upon a determination 

that satisfactory safeguards and security 

measures are carried out for the 

activities being performed at the facility. 

It is DOE policy that all Contractors or 

Subcontractors requiring access 

authorizations be processed for a 

Facility Clearance at the level 

appropriate to the activities being 

performed under the contract. Approval 

for a Facility Clearance shall be based 

upon— 

(1) A favorable foreign ownership, 

control, or influence (FOCI) 

determination based upon the 

Contractor’s response to the ten 

questions in Standard Form 328 and any 

required, supporting data provided by 

the Contractor; 

(2) A contract or proposed contract 

containing the appropriate security 

clauses; 

(3) Approved safeguards and security 

plans which describe protective 

measures appropriate to the activities 

being performed at the facility; 

(4) An established Reporting 

Identification Symbol code for the 

Nuclear Materials Management and 

Safeguards Reporting System if access to 

nuclear materials is involved; 

(5) A survey conducted no more than 

6 months before the Facility Clearance 

date, with a composite facility rating of 

satisfactory, if the facility is to possess 

classified matter or special nuclear 

material at its location; 

(6) Appointment of a Facility Security 

Officer, who must possess or be in the 

process of obtaining an access 

authorization equivalent to the Facility 

Clearance; and, if applicable, 

appointment of a Materials Control and 

Accountability Representative; and 

(7) Access authorizations for key 

management personnel who will be 

determined on a case-by-case basis, and 

who possess or are in the process of 

obtaining access authorizations 

equivalent to the level of the Facility 

Clearance. 

(d) Facility Clearance and Employees 

Requiring Access Authorizations Prior 

to DOE’s Granting Facility Clearance. 

(1) A Facility Clearance is required for 

this contract, although not necessarily 

prior to contract award. A favorable 

FOCI determination for this contract is 

required prior to contract award. It must 


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be rendered by the responsible 

cognizant security office. The 

Contracting Officer may require the 

offeror to submit additional information 

as deemed pertinent to this 

determination. 

(i) The DOE must determine that 

awarding this contract to the offeror will 

not pose an undue risk to the common 

defense and security as a result of its 

access to classified information or 

special nuclear material in the 

performance of the contract. The 

Contracting Officer may require the 

offeror to submit such additional 

information as deemed pertinent to this 

determination. 

(ii) Before contract award, after 

obtaining a favorable FOCI 

determination, the successful offeror/ 

Contractor may be eligible to obtain a 

Facility Clearance. 

(iii) If the successful offeror/ 

Contractor does not obtain a Facility 

Clearance before contract award, after 

contract award the Contractor shall 

submit the necessary information to 

obtain a Facility Clearance and to obtain 

personnel Interim Access 

Authorizations in accordance with 

Departmental policies and procedures. 

(2) The DOE may grant certain of the 

Contractor’s Key Management Personnel 

and the Contractor’s Facility Security 

Officer Interim Access Authorization. If 

granted Interim Access Authorization, 

the Contractor’s Key Management 

Personnel and the Contractor’s Facility 

Security Officer will have access to 

classified information or special nuclear 

material. 

(e) A Facility Clearance is required 

even for contracts that do not require 

the Contractor’s corporate offices to 

receive, process, reproduce, store, 

transmit, or handle classified 

information or special nuclear material, 

but that require DOE access 

authorizations for the Contractor’s 

employees to perform work at a DOE 

location. This type of facility is 

identified as a non-possessing facility. 

(f) Except as otherwise authorized in 

writing by the Contracting Officer, the 

Contractor shall insert provisions 

similar to the foregoing in all 

subcontracts and purchase orders (or 

vendors for purchase orders) requiring 

access authorizations for access to 

classified information or special nuclear 

material. Subcontractors shall be 

directed to provide responses to the 

questions in Standard Form 328, 

Certificate Pertaining to Foreign 

Interests, directly to the prime 

Contractor or the Contracting Officer for 

the prime contract. 

Notice to Offerors—Contents Review 

(Please Review Before Submitting) 

Prior to submitting the Standard Form 

328, required by paragraph (a)(1) of this 

clause, the offeror should review the 

FOCI submission to ensure that: 

(1) The Standard Form 328 has been 

signed and dated by an authorized 

official of the offeror; 

(2) If publicly owned, the Contractor’s 

most recent annual report, and its most 

recent proxy statement for its annual 

meeting of stockholders; or, if privately 

owned, the audited, consolidated 

financial information for the most 

recently closed accounting year has 

been attached; 

(3) A copy of the company’s articles 

of incorporation and an attested copy of 

the company’s by-laws, or similar 

documents filed for the company’s 

existence and management, and all 

amendments to those documents are 

provided; 

(4) A list identifying the 

organization’s owners, officers, 

directors, and executive personnel, 

including their names, social security 

numbers, citizenship, titles of all 

positions they hold within the 

organization, and what clearances, if 

any, they possess or are in the process 

of obtaining, and identification of the 

government agency(ies) that granted or 

will be granting those clearances; and 

(5) A summary FOCI data sheet is 

provided. 

Note: A FOCI submission must be 

attached for each tier parent 

organization (i.e., ultimate parent and 

any intervening levels of ownership). If 

any of these documents are missing, 

award of the contract cannot be 

completed. 

(End of provision) 

■ 167. Section 952.204–74 is added to 

read as follows: 

952.204–74 Counterintelligence. 

As prescribed in 904.404(d)(7), insert 

the following clause: 

Counterintelligence [December 2024] 

(a) The Contractor shall take all 

reasonable precautions in performing 

the work under this contract to protect 

Department of Energy (DOE) programs, 

facilities, technology, personnel, 

unclassified sensitive information and 

classified matter from foreign 

intelligence threats and activities 

conducted for governmental or 

industrial purposes, in accordance with 

the current version of DOE Order 475.1, 

Counterintelligence Program; E.O. 

12333 of December 4, 1981, U.S. 

Intelligence Activities; and other 

applicable national and DOE 

counterintelligence requirements. 

(b) The Contractor shall appoint 

qualified employees to function as 

contractor counterintelligence officers. 

A contractor counterintelligence officer 

is responsible for conducting defensive 

counterintelligence briefings and 

debriefings of employees traveling to 

foreign countries or interacting with 

foreign nationals; providing thoroughly 

documented written reports relative to 

targeting, suspicious activity and other 

matters of counterintelligence interest; 

immediately reporting targeting, 

suspicious activity and other 

counterintelligence concerns to the DOE 

Headquarters Counterintelligence 

Division; and providing assistance to 

other elements of the U.S. Intelligence 

Community as stated in E.O. 12333, 

DOE Order 475.1, and other applicable 

national and DOE counterintelligence 

requirements. 

(End of clause) 

952.204–76 [Removed] 

■ 168. Section 952.204–76 is removed. 

■ 169. Section 952.204–77 is amended 

by revising the introductory text to read 

as follows: 

952.204–77 Computer security. 

As prescribed in 904.404(d)(6), insert 

the following clause: 

* * * * * 

■ 170. Section 952.204–78 is added to 

read as follows: 

952.204–78 DOE Directives. 

As prescribed in 904.7301, insert the 

following clause: 

DOE Directives [December 2024] 

(a) In performing work under this 

contract, the Contractor shall comply 

with the requirements of Department of 

Energy Directives, or parts thereof, 

identified in the List of Applicable 

Directives appended to this contract, 

identified in the Statement of Work or 

identified in a special clause within this 

contract. The Contracting Officer may 

revise the list of applicable Directives by 

bilateral modification to the contract. 

Prior to the modification, the 

Contracting Officer shall notify the 

Contractor in writing of DOE’s intent 

and provide the contractor with the 

opportunity to: assess the impact on 

cost, 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 of being 

notified, the Contractor shall advise the 

Contracting Officer in writing of the 

potential impact of the modification. 


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The Contracting Officer and Contractor 

shall decide whether or not to proceed 

with the modification. Before executing 

the modification, they must agree to any 

appropriate changes to other contract 

terms and conditions, including cost 

and schedule, pursuant to the clause of 

this contract entitled ‘‘Changes.’’ 

(b) 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. 

(End of clause) 

■ 171. Section 952.215–70 is revised to 

read as follows: 

952.215–70 Key personnel. 

As prescribed in 915.408–70, the 

contracting officer shall insert the 

following clause: 

Key Personnel [December 2024] 

(a) The personnel listed below or 

elsewhere in this contract [Insert crossreference, if applicable] 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 and submit 

justification including resumes for any 

proposed substitutions; and 

(2) Obtain the Contracting Officer’s 

written approval. Notwithstanding the 

foregoing, the Contractor may 

immediately remove or suspend any key 

person if necessary to maintain 

satisfactory standards of employee 

competency, conduct, and integrity 

under the clause at 48 CFR 970.5203–3, 

Contractor’s Organization, 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. The Contractor must provide 

written notice to the cognizant security 

office if changes to the list of personnel 

affect key personnel connected to a 

facility clearance. 

[Insert List of Key Personnel by 

position/title, reflecting the actual 

position title of the top-level key 

personnel, such as Program Manager, 

Laboratory Director, Project Manager, 

etc. unless listed elsewhere in the 

contract] 

(End of clause) 

952.216–15 [Removed] 

■ 172. Section 952.216–15 is removed. 

■ 173. Section 952.223–71 is revised to 

read as follows: 

952.223–71 Integration of environment, 

safety, and health into work planning and 

execution. 

As prescribed in 923.7003, insert the 

following clause: 

Integration of Environment, Safety, and 

Health Into Work Planning and 

Execution [December 2024] 

(a) Definitions. ‘‘Employees’’ means 

both contractor and subcontractor 

employees. 

‘‘Safety’’ encompasses environment, 

safety and health, including pollution 

prevention and waste minimization. 

(b) In performing work under this 

contract, the Contractor shall perform 

work safely, in a manner that ensures 

adequate protection for employees, the 

public, and the environment, and shall 

be accountable for the safe performance 

of work. The Contractor shall exercise a 

degree of care commensurate with the 

work and the associated hazards. The 

Contractor shall ensure that 

management of environment, safety and 

health (ES&H) functions and activities 

becomes an integral but visible part of 

the Contractor’s work planning and 

execution processes. The Contractor 

shall, in the performance of work, 

ensure that: 

(1) Line management is responsible 

for the protection of employees, the 

public, and the environment. Line 

management includes those Contractor 

and subcontractor employees who 

manage or supervise employees. 

(2) Clear lines of authority and 

responsibility for ensuring ES&H are 

established and maintained at all 

organizational levels. 

(3) Personnel possess the experience, 

knowledge, skills, and abilities that are 

necessary to discharge their 

responsibilities. 

(4) Resources are effectively allocated 

to address ES&H, programmatic, and 

operational considerations. Protecting 

employees, the public, and the 

environment is a priority whenever 

activities are planned and performed. 

(5) Before work is performed, the 

associated hazards are evaluated and an 

agreed-upon set of ES&H standards and 

requirements are established that, if 

properly implemented, provide 

adequate assurance that employees, the 

public, and the environment are 

protected from adverse consequences. 

(6) Administrative and engineering 

controls to prevent and mitigate hazards 

are tailored to the work being performed 

and associated hazards. Emphasis 

should be on designing the work and/ 

or controls to reduce or eliminate the 

hazards and to prevent accidents and 

unplanned releases and exposures. 

(7) The conditions and requirements 

to be satisfied for operations to be 

initiated and conducted are established 

and agreed-upon by DOE and the 

Contractor. These agreed-upon 

conditions and requirements are 

requirements of the contract and 

binding upon the Contractor. The extent 

of documentation and level of authority 

for agreement shall be tailored to the 

complexity and hazards associated with 

the work and shall be established in a 

Safety Management System. 

(c) The Contractor shall manage and 

perform work in accordance with a 

documented Safety Management System 

that, at a minimum, fulfills all 

conditions in paragraph (b) of this 

clause. Documentation of this system 

shall describe how the Contractor will— 

(1) Define the scope of work; 

(2) Identify and analyze hazards 

associated with the work; 

(3) Develop and implement hazard 

controls; 

(4) Perform work within controls; and 

(5) Provide feedback on adequacy of 

controls and continue to improve safety 

management. 

(d) The system shall describe how the 

Contractor will establish, document, 

and implement safety performance 

objectives, performance measures, and 

commitments in response to DOE 

program and budget execution guidance 

while maintaining the integrity of the 

system. The system shall also describe 

how the Contractor will measure system 

effectiveness. 

(e) The Contractor shall submit to the 

Contracting Officer documentation of its 

system for review and approval. Dates 

for submittal, discussions, and revisions 

to the system will be established by the 

Contracting Officer. Guidance on the 

preparation, content, review, and 

approval of the system will be provided 

by the Contracting Officer. On an annual 

basis, the Contractor shall review and 

update, for DOE approval, its safety 

performance objectives, performance 

measures, and commitments consistent 

with and in response to DOE’s program 

and budget execution guidance and 

direction. Resources shall be identified 

and allocated to meet the safety 

objectives and performance 

commitments as well as maintain the 

integrity of the entire System. 

Accordingly, the system shall be 

integrated with the Contractor’s 

business processes for work planning, 


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budgeting, authorization, execution, and 

change control. 

(f) The Contractor shall comply with, 

and assist the Department of Energy in 

complying with, ES&H requirements of 

all applicable laws and regulations, and 

applicable directives in accordance with 

the DOE Directives clause. The 

Contractor shall cooperate with Federal 

and non-Federal agencies having 

jurisdiction over ES&H matters under 

this contract. 

(g) The Contractor shall promptly 

evaluate and resolve any 

noncompliance with applicable ES&H 

requirements and the System. If the 

Contractor fails to provide resolution or 

if, at any time, the Contractor’s acts or 

failure to act causes substantial harm or 

an imminent danger to the environment 

or health and safety of employees or the 

public, the Contracting Officer may 

issue an order stopping work in whole 

or in part. Any stop work order issued 

by a contracting officer under this 

clause (or issued by the Contractor to a 

subcontractor in accordance with 

paragraph (i) of this clause) shall be 

without prejudice to any other legal or 

contractual rights of the Government. In 

the event that the Contracting Officer 

issues a stop work order, an order 

authorizing the resumption of the work 

may be issued at the discretion of the 

Contracting Officer. The Contractor 

shall not be entitled to an extension of 

time or additional fee or damages by 

reason of, or in connection with, any 

work stoppage ordered in accordance 

with this clause. 

(h) Regardless of the performer of the 

work, the Contractor is responsible for 

compliance with the ES&H 

requirements applicable to this contract. 

The Contractor is responsible for 

flowing down the ES&H requirements 

applicable to this contract to 

subcontracts at any tier to the extent 

necessary to ensure the Contractor’s 

compliance with the requirements. 

(i) Subcontracts. The Contractor shall 

include a clause substantially the same 

as this clause in subcontracts involving 

complex or hazardous work on site at a 

DOE-owned or-leased facility. Such 

subcontracts shall provide for the right 

to stop work under the conditions 

described in paragraph (g) of this clause. 

Depending on the complexity and 

hazards associated with the work, the 

Contractor may choose not to require 

the subcontractor to submit a Safety 

Management System for the Contractor’s 

review and approval. 

(End of clause) 

952.223–75 [Amended] 

■ 174. Amend section 952.223–75 in the 

introductory text by removing 

‘‘923.7003(h)’’ and adding in its place 

‘‘923.7003(g)’’. 

952.223–76 and 952.223–77 [Removed] 

■ 175. Sections 952.223–76 and 

952.223–77 are removed. 

■ 176. Section 952.223–78 is revised to 

read as follows: 

952.223–78 Sustainable acquisition 

program. 

As prescribed in 923.172, insert the 

following clause: 

Sustainable Acquisition Program 

[December 2024] 

(a) Pursuant to DOE policy, as 

specified in 48 CFR 923.170, the 

Contractor shall maintain a sustainable 

acquisition program that ensures 

procurement of environmentally 

preferable products and services as 

required of DOE by statute, regulation 

and Executive order. This program shall 

apply to all products and services 

acquired in performance of this 

contract, including first-tier 

subcontracts, which have reasonable 

opportunities for environmentally 

preferable purchasing, consistent with 

the requirements specified above. 

(b) The Contractor shall coordinate its 

sustainable acquisition activities and 

submit any required annual reports at 

the end of the Government fiscal year, 

through their Sustainability Coordinator 

(or equivalent), or as otherwise directed 

by the Contracting Officer. Reporting 

under this paragraph is only required if 

the contract offers subcontracting 

opportunities exceeding the simplified 

acquisition threshold in any contract 

year. 

(c) Subcontracts. These provisions 

shall be flowed down only to first-tier 

subcontracts exceeding the simplified 

acquisition threshold that support 

operation of the DOE facility and offer 

significant subcontracting opportunities 

for energy-efficient or environmentally 

sustainable products or services. When 

this clause is included in a subcontract, 

the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of clause) 

■ 177. Section 952.226–70 is revised to 

read as follows: 

952.226–70 Subcontracting goals under 

section 3021(a) of the Energy Policy Act of 

1992. 

As prescribed in 926.7008(b)(1), insert 

the following provision: 

Subcontracting Goals Under Section 

3021(A) of the Energy Policy Act of 

1992 (Pub. L. 102–486) [December 2024] 

(a) Definition. Energy Policy Act 

(EPAct 1992) target groups, as used in 

this provision, has the meaning 

conveyed in 48 CFR 926.7002. 

(b) Section 3021 of the EPAct 1992 

establishes a goal of award of 10 percent 

of the contract dollar value for prime 

and subcontract EPAct 1992 awards to 

EPAct 1992 target groups. 

(c) The Offeror, if other than one of 

the three groups specified in paragraph 

(a) of this clause, shall submit, as part 

of its business management proposal or, 

if this solicitation requires the 

submission of a Small Business 

Subcontracting Plan, then as part of that 

plan, unless otherwise stated in the 

proposal preparation instructions, 

individual subcontracting goals for each 

of the EPAct 1992 target groups. 

Individual goals shall be expressed in 

terms of a percentage of the Offeror’s 

proposed contract dollar value. In 

addition, the Offeror shall provide a 

description of the nature of the effort to 

be performed by each of the three 

groups, and, if possible, the identity of 

the contemplated subcontractor(s). 

(d) Unless otherwise stated, such 

goals shall be considered in the 

evaluation of the Business Management 

Proposal as discussed in Section M of 

this solicitation or, if applicable, as part 

of the evaluation of the Small Business 

Subcontracting Plan. 

(End of provision) 

■ 178. Section 952.226–71 is revised to 

read as follows: 

952.226–71 Utilization of Energy Policy 

Act target entities. 

As prescribed in 926.7008(b)(2), insert 

the following clause: 

Utilization of Energy Policy Act 1992 

Target Entities [December 2024] 

(a) Definition. Energy Policy Act 

(EPAct 1992) target groups, as used in 

this clause, has the meaning conveyed 

in 48 CFR 926.7002. 

(b) Obligation. In addition to its 

obligations under the clause of this 

contract entitled Utilization of Small 

Business Concerns (48 CFR 52.219–8), 

the contractor, in performance of this 

contract, agrees to provide its best 

efforts to competitively award 

subcontracts to entities from among the 

EPAct 1992 target groups. 

(End of clause) 

■ 179. Section 952.226–72 is revised to 

read as follows: 


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952.226–72 Energy Policy Act 

subcontracting goals and reporting 

requirements. 

As prescribed in 926.7008(c), insert 

the following clause: 

Energy Policy Act 1992 

Subcontracting Goals and Reporting 

Requirements [December 2024] 

(a) Definition. Energy Policy Act 

(EPAct 1992) target groups, as used in 

this clause, has the meaning conveyed 

in 48 CFR 926.7002. 

(b) Goals. The Contractor, in 

performance of this contract, agrees to 

provide its best efforts to award 

subcontracts to the following classes of 

entities— 

(1) Small business concerns 

controlled by socially and economically 

disadvantaged individuals or by 

women: * * * percent; 

(2) Historically Black colleges and 

universities: * * * percent; 

(3) Colleges or universities having a 

student body in which more than 20 

percent of the students are Hispanic 

Americans or Native Americans: * * * 

percent; 

(4) Qualified HUBZone small business 

concerns: * * * percent. 

[ * * * These goals are stated in a 

percentage reflecting the relationship of 

estimated award value of subcontracts 

to the value of this contract and appear 

elsewhere in this contract.] 

(c) Reporting requirements. (1) The 

Contractor agrees to report, on an 

annual Federal Government fiscal year 

basis, its progress against the goals by 

providing the actual annual dollar value 

of subcontract payments for the 

preceding 12-month period, and the 

relationship of those payments to the 

incurred contract costs for the same 

period. Reports submitted pursuant to 

this clause must be received by the 

Contracting Officer (or designee) not 

later than 45 days after the end of the 

reporting period. 

(2) If the contract includes reporting 

requirements under 48 CFR 52.219–9, 

Small Business Subcontracting Plan, the 

Contractor’s progress against the goals 

stated in paragraph (b) of this clause 

shall be included as an addendum to the 

Individual Subcontract Report and/or 

the Summary Subcontract Report using 

the Electronic Subcontracting Reporting 

System (available at https://

www.esrs.gov/) for the period that 

corresponds to the end of the Federal 

Government fiscal year. 

(End of clause) 

■ 180. Amend section 952.226–73 by 

revising the section heading, 

introductory text, clause heading and 

date, and paragraph (a) to read as 

follows: 

952.226–73 Energy Policy Act target group 

representation. 

As prescribed in 926.7008(a)(1), insert 

the following provision: 

Energy Policy Act of 1992 Target Group 

Representation [December 2024] 

(a) The Offeror is: 

(1) lll An institution of higher 

education that meets the requirements 

of 34 CFR 600.4(a), and has a student 

enrollment that consists of at least 20 

percent— 

(i) Hispanic Americans, i.e., students 

whose origins are in Mexico, Puerto 

Rico, Cuba, or Central or South 

America, or any combination thereof; or 

(ii) Native Americans, i.e., American 

Indians, Eskimos, Aleuts, and Native 

Hawaiians, or any combination thereof; 

(2) lll An institution of higher 

learning determined to be a Historically 

Black College and University by the 

Secretary of Education pursuant to 34 

CFR 608.2; or 

(3) lll A small business concern, 

as defined under section 3 of the Small 

Business Act (15 U.S.C. 632), that is 

owned and controlled by individuals 

who are both socially and economically 

disadvantaged within the meaning of 

section 8(d) of the Small Business Act 

(15 U.S.C. 637(d)) or by a woman or 

women; or 

(4) Qualified HUBZone small business 

concerns, as defined at 48 CFR 2.101. 

* * * * * 

■ 181. Amend section 952.226–74 by 

revising the section heading and clause 

heading and date to read as follows: 

952.226–74 Workforce restructuring and 

displaced employee hiring preference. 

* * * * * 

Workforce Restructuring and Displaced 

Employee Hiring Preference [December 

2024] 

* * * * * 

■ 182. Amend section 952.227–9 by: 

■ a. Revising the introductory text and 

clause date; 

■ b. In paragraph (b), adding a heading 

and revising the first sentence; and 

■ c. Adding a sentence at the end of 

paragraph (c). 

The revisions and addition read as 

follows: 

952.227–9 Refund of royalties. 

As prescribed in 927.202–5, insert the 

following clause: 

Refund of Royalties [December 2024] 

* * * * * 

(b) Definition. ‘‘Royalties’’ means any 

costs or charges in the nature of 

royalties, license fees, patent or license 

amortization costs, or the like, for the 

use of or for rights in patents and patent 

applications in connection with 

performing this contract or any 

subcontract here-under. * * * 

(c) * * * For contracts greater than 

five years in duration, the contractor 

shall furnish the statement to the 

Contracting Officer every five years. 

* * * * * 

■ 183. Section 952.227–11 is revised to 

read as follows: 

952.227–11 Patent rights—retention by the 

contractor. 

Alternate I [December 2024] As 

prescribed at 970.2703–2(a), insert the 

most recent Standard Patent Rights 

clause at 37 CFR 401.14 with the 

following modifications: 

Replace the heading (‘‘Standard 

Patent Rights’’) with ‘‘37 CFR 401.14 

Standard Patent Rights with Alternate I 

of 48 CFR 952.227–11 Patent rights— 

retention by the contractor’’. 

Replace paragraphs (g)(1) and (2) with 

the following: 

(g) Subcontracts 

(1) The contractor will include this 

clause, suitably modified to identify the 

parties, in all subawards, regardless of 

tier, for experimental, developmental or 

research work to be performed by a 

domestic small business firm or 

nonprofit organization. The 

subcontractor will retain all rights 

provided for the contractor in this 

clause, and the contractor will not, as 

part of the consideration for awarding 

the subaward, obtain rights in the 

subcontractor’s subject inventions. 

(2) The contractor will include in all 

other subawards, regardless of tier, for 

experimental developmental or research 

work the patent rights clause directed 

by the Contracting Officer. 

Replace paragraph (l), 

Communications, with the following: 

(l) Communication 

Unless otherwise directed by DOE 

Patent Counsel, all reports and 

notifications required by this clause 

shall be submitted via the iEdison 

invention management system. 

(End of alternate) 

Alternate II [December 2024] As 

prescribed at 970.2703–2(a), insert the 

most recent Standard Patent Rights 

clause at 37 CFR 401.14 with the 

following modifications when the 

Determination of Exceptional 

Circumstances (DEC) under 35 U.S.C. 

202(a) applies: 

Replace the heading (‘‘Standard 

Patent Rights’’) with ‘‘37 CFR 401.14 

Standard Patent Rights with Alternate II 

of 48 CFR 952.227–11 Patent RightsRetention by the Contractor 


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(DETERMINATION OF EXCEPTIONAL 

CIRCUMSTANCES)’’. 

Add the following paragraph: 

(d)(3) Upon breach of paragraph (n) of 

this Patent Rights clause. 

Replace paragraphs (g)(1) and (2) with 

the following: 

(g) Subcontracts 

(1) The contractor will include this 

clause, suitably modified to identify the 

parties, in all subawards, regardless of 

tier, for experimental, developmental or 

research work to be performed by a 

domestic small business firm or 

nonprofit organization. The 

subcontractor will retain all rights 

provided for the contractor in this 

clause, and the contractor will not, as 

part of the consideration for awarding 

the subaward, obtain rights in the 

subcontractor’s subject inventions. 

(2) The contractor will include in all 

other subawards, regardless of tier, for 

experimental developmental or research 

work the patent rights clause directed 

by the Contracting Officer. 

Replace paragraph (l), 

Communications, with the following: 

(l) Communication 

Unless otherwise directed by DOE 

Patent Counsel, all reports and 

notifications required by this clause 

shall be submitted via the iEdison 

invention management system. 

Add the following paragraphs (n) and 

(o): 

(n) The Contractor agrees that any 

products embodying any subject 

invention or produced through the use 

of any subject invention will be 

manufactured substantially in the 

United States unless the Contractor can 

show to the satisfaction of DOE that it 

is not commercially feasible. In the 

event DOE agrees to foreign 

manufacture, there will be a 

requirement that the Government’s 

support of the technology be recognized 

in some appropriate manner, e.g., 

alternative binding commitments to 

provide an overall net benefit to the U.S. 

economy. The Contractor agrees that it 

will not license, assign or otherwise 

transfer any subject invention to any 

entity, at any tier, unless that entity 

agrees to these same requirements. In 

the event that the Contractor or other 

such entity receiving rights in the 

Subject Invention undergoes a change in 

ownership amounting to a controlling 

interest, the Contractor or other such 

entity receiving rights shall ensure 

continual compliance with the 

requirements of this paragraph (n) and 

shall inform DOE, in writing, of the 

change in ownership within six months 

of the change. The Contractor and any 

successor assignee will convey to DOE, 

upon written request from DOE, title to 

any subject invention, upon a breach of 

this paragraph (n). The Contractor will 

include this paragraph (n) in all 

subawards/contracts, regardless of tier, 

for experimental, developmental or 

research work. 

(o) The requirements, rights and 

administration of paragraph (n) are 

further clarified as follows: 

1. Waivers. The Contractor (or any 

entity subject to paragraph (n)) may 

request a waiver or modification of 

paragraph (n). Such waivers or 

modifications may be granted when 

DOE determines that (1) the Contractor 

(or any entity subject to paragraph (n)) 

has demonstrated, with quantifiable 

data, that manufacturing in the United 

States is not commercially feasible and 

(2) a waiver or modification would best 

serve the interests of the United States 

and the general public. 

2. Final determination of breach of 

paragraph (n). If DOE determines the 

Contractor is in breach of paragraph (n), 

the Department may issue a final 

written determination of such breach. If 

such determination includes a demand 

for title to the subject inventions under 

the award, the demand for title will 

cause an immediate conveyance and 

assignment of all rights to all subject 

inventions under the award to the 

United States Government, including all 

pending U.S. and foreign patent 

applications and all U.S. and foreign 

patents that cover any subject invention, 

without compensation. Any such final 

determination shall be signed by the 

cognizant DOE Contracting Officer with 

the concurrence of the Assistant General 

Counsel for Technology Transfer & 

Intellectual Property. Advanced notice 

will be provided for comment to the 

Contractor before any final written 

determination by DOE is issued. 

3. Pursuant to Contractor’s agreement 

in paragraph (n) to not license, assign or 

otherwise transfer rights to subject 

inventions at any tier unless the entity 

agrees to paragraph (n): any such 

license, assignment, or other transfer of 

right to any subject invention developed 

under the award shall contain paragraph 

(n) suitably modified to properly 

identify the parties. If a licensee, 

assignee, or other transferee of rights to 

any subject invention is finally 

determined by DOE in writing to be in 

breach of paragraph (n), the applicable 

license, assignment or other transfer 

shall be deemed null and void. 

Advanced notice will be provided for 

comment to the non-complying party 

before any final written determination 

by DOE is made. 

4. For clarity, if the forfeiture of title 

to any subject invention is due to a 

breach of paragraph (n), the Contractor 

shall not be entitled to any 

compensation, or to a license to the 

subject invention including the reserved 

license in paragraph (e)(1), unless DOE 

grants a license through a separately 

agreed upon licensing agreement. 

5. Authority. The requirements and 

administration of paragraph (n) is in 

accordance with the Determination of 

Exceptional Circumstances (DEC) under 

the Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies executed by 

DOE on June 7, 2021, or any other 

applicable DEC. A copy of the DEC is 

available at https://www.energy.gov/gc/ 

determination-exceptionalcircumstances-decs. By accepting or 

acknowledging the award, the 

Contractor is also acknowledging that it 

has received a copy of the DEC through 

the foregoing link. As set forth in 37 

CFR 401.4, any nonprofit organization 

or small business firm as defined by 35 

U.S.C. 201 affected by any DEC has the 

right to appeal the imposition of the 

DEC within thirty (30) working days 

from the Contractor’s acceptance or 

acknowledgement of this award. 

(End of alternate) 

■ 184. Amend 952.227–13 by: 

■ a. Revising the introductory text, 

clause date, and paragraphs (b)(2)(iii), 

(e)(2), (e)(3)(i), and (h)(1); 

■ b. Removing paragraph (k); 

■ c. Redesignating paragraphs (l) and 

(m) as paragraphs (k) and (l); 

■ d. Revising the introductory text of 

newly redesignated paragraph (l)(2) and 

the last sentence of newly redesignated 

paragraph (l)(3); and 

■ e. Adding Alternates I and II at the 

end of the section following ‘‘(End of 

clause)’’. 

The revisions and additions read as 

follows: 

952.227–13 Patent rights—acquisition by 

the Government. 

As prescribed at 927.303(d), insert the 

following clause: 

Patent Rights—Acquisition by the 

Government [December 2024] 

* * * * * 

(b) * * * 

(2) * * * 

(iii) Not less than sixty (60) days 

before the expiration of the response 

period for any action required by the 

Patent and Trademark Office, notify the 

Patent Counsel of any decision not to 

continue prosecution of the application. 

* * * * * 

(e) * * * 

(2) Unless otherwise directed by DOE 

Patent Counsel, the Contractor shall 

disclose each subject invention to DOE 


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through the iEdison invention 

management system within 2 months 

after the inventor discloses it in writing 

to Contractor personnel responsible for 

patent matters or, if earlier, within 6 

months after the Contractor becomes 

aware that a subject invention has been 

made, but in any event before any on 

sale, public use, or publication of such 

invention known to the Contractor. The 

disclosure to DOE shall be in the form 

of a written report and shall identify the 

contract under which the invention was 

made and the inventor(s). 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 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. In 

addition, after disclosure to DOE, the 

Contractor shall promptly notify Patent 

Counsel of the acceptance of any 

manuscript describing the invention for 

publication or of any on sale or public 

use planned by the Contractor. The 

report should also include any request 

for a greater rights determination in 

accordance with paragraph (b)(2) of this 

clause. When an invention is disclosed 

to DOE under this paragraph, it shall be 

deemed to have been made in the 

manner specified in sections (a)(1) and 

(a)(2) of 42 U.S.C. 5908, unless the 

Contractor contends in writing at the 

time the invention is disclosed that it 

was not so made. 

(3) * * * 

(i) Interim reports every 12 months (or 

such longer period as may be specified 

by the Contracting Officer) from the date 

of the contract, listing all subject 

inventions during that period, and 

including a statement that all subject 

inventions have been disclosed (or that 

there are not such inventions), and that 

such disclosure has been made in 

accordance with the procedures 

required by paragraph (e)(1) of this 

clause. 

* * * * * 

(h) * * * 

(1) The contractor shall include the 

clause at 37 CFR 401.14 (suitably 

modified to identify the parties) in all 

subcontracts, regardless of tier, for 

experimental, developmental, 

demonstration, or research work to be 

performed by a small business firm or 

domestic nonprofit organization, except 

where the work of the subcontract is 

subject to an Exceptional Circumstances 

Determination by DOE or another 

exception in 37 CFR 401.3(a). In all 

other subcontracts, regardless of tier, for 

experimental, developmental, 

demonstration, or research work, the 

contractor shall include this clause 

(suitably modified to identify the 

parties). The contractor shall not, as part 

of the consideration for awarding the 

subcontract, obtain rights in the 

subcontractor’s subject inventions. 

* * * * * 

(l) * * * 

(2) However, the Contractor shall not 

forfeit rights in a subject invention if, 

within the time specified in paragraph 

(l)(1) of this clause, the Contractor: 

* * * * * 

(3) * * * The forfeiture provision of 

this paragraph (l) shall be in addition to 

and shall not supersede other rights and 

remedies which the Government may 

have with respect to subject inventions. 

* * * * * 

Alternate I [December 2024]. As 

prescribed in 927.303(d)(5), insert 

Alternate I under special circumstances 

to provide for a right to require licensing 

of third parties to background 

inventions: 

(m) Background patents. (1) 

Background patent means a domestic 

patent covering an invention or 

discovery which is not a subject 

invention, and which is owned or 

controlled by the Contractor at any time 

through the completion of this contract: 

(i) Which the contractor, but not the 

Government, has the right to license to 

others without obligation to pay 

royalties thereon, and 

(ii) Infringement of which cannot 

reasonably be avoided upon the practice 

of any specific process, method, 

machine, manufacture, or composition 

of matter (including relatively minor 

modifications thereof) which is a subject 

of the research, development, or 

demonstration work performed under 

this contract. 

(2) The Contractor agrees to and does 

hereby grant to the Government a 

royalty-free, nonexclusive license under 

any background patent for purposes of 

practicing a subject of this contract by 

or for the Government in research, 

development, and demonstration work 

only. 

(3) The Contractor also agrees that 

upon written application by DOE, it will 

grant to responsible parties, for 

purposes of practicing a subject of this 

contract, nonexclusive licenses under 

any background patent on terms that are 

reasonable under the circumstances. If, 

however, the Contractor believes that 

exclusive rights are necessary to achieve 

expeditious commercial development or 

utilization, then a request may be made 

to DOE for DOE approval of such 

licensing by the Contractor. 

(4) Notwithstanding paragraph (m)(3) 

of this clause, the contractor shall not be 

obligated to license any background 

patent if the Contractor demonstrates to 

the satisfaction of the Secretary of 

Energy or designee that: 

(i) A competitive alternative to the 

subject matter covered by said 

background patent is commercially 

available or readily introducible from 

one or more other sources; or 

(ii) The Contractor or its licensees are 

supplying the subject matter covered by 

said background patent in sufficient 

quantity and at reasonable prices to 

satisfy market needs or have taken 

effective steps or within a reasonable 

time are expected to take effective steps 

to so supply the subject matter. 

(End of alternate) 

Alternate II [December 2024]. As 

prescribed in 927.303(d), the following 

modifications must be made when the 

‘‘Department of Energy Determination of 

Exceptional Circumstances under the 

Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies’’ applies: 

The Contracting Officer shall insert 

the phrase ‘‘or upon a breach of 

paragraph (n) of this clause’’ after ‘‘fails 

to disclose the subject invention within 

the times specified in paragraph (e)(2) of 

this clause’’ in the first sentence of 

paragraph (d)(1). 

The Contracting Officer shall insert 

the following paragraph (n): 

(n) U.S. Competitiveness. With regard 

to the license granted in paragraph 

(d)(1) of this clause, the Contractor 

agrees that any products embodying any 

subject invention or produced through 

the use of any subject invention will be 

manufactured substantially in the 

United States unless the Contractor can 

show to the satisfaction of DOE that it 

is not commercially feasible. In the 

event DOE agrees to foreign 

manufacture, there will be a 

requirement that the Government’s 

support of the technology be recognized 

in some appropriate manner, e.g., 

alternative binding commitments to 

provide an overall net benefit to the U.S. 

economy. The Contractor agrees that it 

will not license, assign or otherwise 

transfer any subject invention to any 

entity, at any tier, unless that entity 

agrees to these same requirements. 

Should the Contractor or other such 

entity receiving rights in the 

invention(s): 

(1) Undergo a change in ownership 

amounting to a controlling interest, or 


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(2) Sell, assign, or otherwise transfer 

title or exclusive rights in the 

invention(s), then the assignment, 

license, or other transfer of rights in the 

subject invention(s) is/are suspended 

until approved in writing by DOE. The 

Contractor and any successor assignee 

will convey to DOE, upon written 

request from DOE, title to any subject 

invention, upon a breach of this 

paragraph. The Contractor will include 

this paragraph in all subawards/ 

contracts, regardless of tier, for 

experimental, developmental or 

research work. 

(End of alternate) 

■ 185. Section 952.227–14 is revised to 

read as follows: 

952.227–14 Rights in data-general. 

Alternate VI [December 2024] As 

prescribed at 927.409(b)(1)(ix), insert 

Alternate VI to require the contractor to 

license data regarded as limited rights 

data or restricted computer software to 

the Government and third parties at 

reasonable royalties upon request by the 

Department of Energy. 

(k) Contractor licensing. Except as 

may be otherwise specified in this 

contract as data not subject to this 

paragraph, the contractor agrees that 

upon written application by DOE, it will 

grant to the Government and 

responsible third parties, for purposes of 

practicing a subject of this contract, a 

nonexclusive license in any limited 

rights data or restricted computer 

software on terms and conditions 

reasonable under the circumstances 

including appropriate provisions for 

confidentiality; provided, however, the 

contractor shall not be obliged to license 

any such data if the contractor 

demonstrates to the satisfaction of the 

Secretary of Energy or designee that: 

(1) Such data are not essential to the 

manufacture or practice of hardware 

designed or fabricated, or processes 

developed, under this contract; 

(2) Such data, in the form of results 

obtained by their use, have a 

commercially competitive alternate 

available or readily introducible from 

one or more other sources; 

(3) Such data, in the form of results 

obtained by their use, are being 

supplied by the contractor or its 

licensees in sufficient quantity and at 

reasonable prices to satisfy market 

needs, or the contractor or its licensees 

have taken effective steps or within a 

reasonable time are expected to take 

effective steps to so supply such data in 

the form of results obtained by their use; 

or 

(4) Such data, in the form of results 

obtained by their use, can be furnished 

by another firm skilled in the art of 

manufacturing items or performing 

processes of the same general type and 

character necessary to achieve the 

contract results. 

(End of alternate) 

Alternate VII [December 2024] As 

prescribed in 927.409(b)(1), substitute 

the following for paragraph (b)(2)(i) of 

the clause at FAR 52.227–14: 

(b)(2)(i) Assert copyright in data first 

produced in the performance of this 

contract (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) 

to the extent provided in paragraph 

(c)(1) of this clause. 

(End of alternate) 

Alternate VIII [December 2024] As 

prescribed in 927.409(a), substitute the 

following for paragraph (c)(1)(i) of the 

clause at FAR 52.227–14: 

(c) Copyright—(1) Data first produced 

in the performance of this contract. (i) 

Unless provided otherwise in paragraph 

(d) of this clause, the Contractor may, 

without prior approval of the 

Contracting Officer, assert copyright in 

scientific and technical articles 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. The 

prior, express written permission of the 

DOE Patent Counsel is required to assert 

copyright in all other data first 

produced in the performance of this 

contract. When such permission is 

granted, the DOE Patent Counsel shall 

specify appropriate terms, conditions, 

and submission requirements to assure 

utilization, dissemination, and 

commercialization of the data. The 

Contractor, when requested, shall 

promptly deliver to Patent Counsel a 

duly executed and approved instrument 

fully confirmatory of all rights to which 

the Government is entitled. 

(End of alternate) 

■ 186. Section 952.227–17 is added to 

read as follows: 

952.227–17 Rights in data-special works. 

Alternate I [December 2024] As 

prescribed at 927.409(b)(1), substitute 

the following for paragraph (c)(1)(ii) of 

the clause at FAR 52.227–17: 

(c)(1)(ii) If the Government desires to 

obtain copyright in data first produced 

in the performance of this contract and 

permission has not been granted as set 

forth in paragraph (c)(1)(i) of this clause, 

the DOE Patent Counsel may direct the 

Contractor to assign (with or without 

registration), or obtain the assignment 

of, the copyright to the Government or 

its designated assignee. 

(End of alternate) 

952.227–82 [Removed] 

■ 187. Section 952.227–82 is removed. 

■ 188. Amend section 952.227–84 by 

revising the introductory text, clause 

date, and third sentence of the clause to 

read as follows: 

952.227–84 Notice of right to request 

patent waiver. 

As prescribed in 927.409(n), insert 

this provision: 

Right To Request Patent Waiver 

[December 2024] 

* * * Domestic small businesses and 

domestic nonprofit organizations 

normally will receive the patent rights 

clause at 37 CFR 401.14 which permits 

the contractor to retain title to such 

inventions, except under contracts for 

management or operation of a 

Government-owned research and 

development facility or under contracts 

involving exceptional circumstances or 

intelligence activities. * * * 

■ 189. Amend section 952.231–71 by 

revising the introductory text, clause 

date, and paragraph (f)(2) to read as 

follows: 

952.231–71 Insurance-litigation and 

claims. 

As prescribed in 931.205–19(f), insert 

the following clause in applicable nonmanagement and operating contracts: 

Insurance—Litigation and Claims 

[December 2024] 

* * * * * 

(f) * * * 

(2) The term ‘‘contractor’s managerial 

personnel’’ is defined in the Property 

clause in 970.5245–1 in this contract. 

* * * * * 

■ 190. Section 952.232–7 is added to 

read as follows: 

952.232–7 Electronic submission of 

invoices/vouchers. 

As prescribed at 932.971, insert the 

following clause: 

Electronic Submission of Invoices/ 

Vouchers [December 2024] 

Contractors shall submit vouchers 

electronically through the Oak Ridge 

Financial Service Center’s (ORFSC) 

Vendor Inquiry Payment Electronic 

Reporting System (VIPERS). VIPERS 

allows vendors to submit vouchers, 

attach supporting documentation and 

check the payment status of any 


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voucher submitted to the DOE. 

Instructions concerning contractor 

enrollment and use of VIPERS can be 

found at https://vipers.doe.gov. 

(End of clause) 

■ 191. Section 952.233–2 is revised to 

read as follows: 

952.233–2 Service of protest. 

As prescribed in 933.106, insert the 

following provision: 

Service of Protest [December 2024] 

(c) Another copy of a protest filed 

with the Government Accountability 

Office shall be furnished to the 

following address within the time 

periods described in paragraph (b) of 

this clause: U.S. Department of Energy, 

Assistant General Counsel for 

Procurement and Financial Assistance 

(GC–61), 1000 Independence Avenue 

SW, Washington, DC 20585, or email: 

gaobidprotest@hq.doe.gov. 

(d) Notice of Protest File Availability. 

(1) If a protest of this procurement is 

filed with the GAO in accordance with 

4 CFR part 21, any actual or prospective 

offeror may request the Department of 

Energy (DOE) to provide it with 

reasonable access to the protest file 

pursuant to 33.104(a)(3)(ii). Such 

request must be in writing and 

addressed to the Contracting Officer for 

this procurement. 

(2) Any offeror who submits 

information or documents to DOE for 

the purpose of competing in this 

procurement is hereby notified that 

information or documents it submits 

may be included in the protest file that 

will be available to actual or prospective 

offerors in accordance with the 

requirements of 48 CFR 33.104(a)(3)(ii). 

DOE will be required to make such 

documents available unless they are 

exempt from disclosure pursuant to the 

Freedom of Information Act. Therefore, 

offerors should mark any documents as 

to which they would assert that an 

exemption applies (see 10 CFR part 

1004). 

(e) Protests to the Agency. The DOE’s 

agency protest procedures are in 48 CFR 

933.103. Potential protesters should 

discuss their concerns with the 

Contracting Officer prior to filing a 

protest. In the event that an interested 

party believes a protest is necessary, 

efforts should be made to resolve the 

protest at the lowest level possible. 

(End of provision) 

952.233–4 and 952.233–5 [Removed] 

■ 192. Sections 952.233–4 and 952.233– 

5 are removed. 

■ 193. Section 952.242–71 is added to 

read as follows: 

952.242–71 Conditional payment of fee, 

profit, and other incentives. 

As prescribed at 923.7003(f) and 

942.71(d), insert the following clause: 

(Note: If the clause at 952.204–2, 

Security Requirements, is not included 

in the contract, the security or 

safeguarding of Restricted Data and 

other classified information 

requirements of the clause do not apply; 

if the clause at 952.250–70, Nuclear 

Hazards Indemnity Agreement, is not 

included in this contract, the 

environment, safety and health 

requirements of the clause do not 

apply.) 

Conditional Payment of Fee, Profit, and 

Other Incentives [December 2024] 

(a) Definitions. 

(1) Amount of payment for otherwise 

earned fee, fixed fee, profit, or other 

incentives for a period means the 

quantity the Contracting Officer or fee 

determining official determines the 

Contractor is due for its performance 

prior to a separate determination that 

the Contractor did not comply with a 

term or condition of the contract or 

experienced a failure relating to: 

environment, safety, and health or 

security or safeguarding of Restricted 

Data and other classified information. 

(i) If the contract includes incentives 

allocable to more than one period, the 

amount of payment for otherwise earned 

fee, fixed fee, profit, or other incentives 

for a period includes the allocable 

amount of payment for each such 

incentive for otherwise earned fee, fixed 

fee, profit, or other incentives. Unless 

stated otherwise, the allocable amount 

is the total amount divided by the 

number of periods the incentive 

covered. 

(2) Amount actually payable to the 

Contractor for a period means: (the 

amount of payment for otherwise earned 

fee, fixed fee, profit, or other incentives 

for the period) less (the amount of any 

reduction under this clause and the 

amount of any reductions under other 

clauses to the amount of payment for 

otherwise earned fee, fixed fee, profit, or 

other incentives for the period). 

(b) General. 

(1) (Note: If the clause at 952.204–2, 

Security Requirements, is not included 

in this contract, the security or 

safeguarding of Restricted Data and 

other classified information 

requirements of this clause do not 

apply; if the clause at 952.250–70, 

Nuclear Hazards Indemnity Agreement, 

is not included in this contract, the 

environment, safety and health 

requirements of this clause do not 

apply.) 

The amount of payment of otherwise 

earned fee, fixed fee, profit, or other 

incentives for any period under this 

contract is dependent upon the 

Contractor’s and the Contractor’s 

employees’ compliance during the 

period with the performance 

requirements of this contract relating to: 

(i) environment, safety and health 

(ES&H), which includes worker safety 

and health (WS&H); and 

(ii) security or 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 in some cases a DOE 

approved contractor (Integrated Safety 

Management System (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 security or safeguarding of 

Restricted Data and other classified 

information performance requirements 

of this contract are set forth in the 

clause of this contract entitled, 

‘‘Security requirements,’’ the clause (if it 

is included) of this contract entitled 

‘‘Laws, Regulations, and DOE 

Directives,’’ and in other terms and 

conditions. 

(4) If the Contractor does not, in any 

period, meet the performance 

requirements of this contract relating to 

ES&H or security or the safeguarding of 

Restricted Data and other classified 

information, the Contracting Officer 

may, per this clause, reduce the amount 

of payment of otherwise earned fee, 

fixed fee, profit or other incentives. 

(c) Amount of Reduction. 

(1) If in any period (see paragraph 

(c)(5) of this clause) the Contractor does 

not meet the performance requirements 

of this contract relating to ES&H or 

security or the safeguarding of 

Restricted Data and other classified 

information, the Contracting Officer will 

unilaterally determine the amount of 

reduction to the amount of payment for 

otherwise earned fee, fixed fee, profit, or 

other incentives for the period based on 

the severity of the performance failure 

pursuant to the degrees of failure 

specified in paragraphs (e) and (f) of this 

clause. The percent reduction for each 

performance failure will be: not less 

than 26% nor more than 100% for a first 

degree failure; not less than 11% nor 

more than 26% for a second degree 

failure; and no more than 11% for a 

third degree failure. 


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(2) For a reduction allocable to more 

than one period, the Government will 

make the allocation at the end of the 

period in which it determines the total 

amount of the reduction. Unless stated 

otherwise, the allocable amount is the 

total reduction amount divided by the 

number of periods the reduction 

covered. 

(3) The Government will reduce the 

payment of otherwise earned fee, fixed 

fee, profit, or other incentives as soon as 

practicable after the end of the period in 

which the performance failure occurs. If 

the Government is not aware of the 

failure when it occurs, it will make the 

reduction as soon as practical after 

becoming aware. 

(4) In determining the reduction to the 

amount of payment and the 

applicability of mitigating factors, the 

Contracting Officer must consider the 

Contractor’s overall performance in 

meeting the ES&H or security or 

safeguarding of Restricted Data and 

other classified information 

performance requirements of the 

contract. Such consideration must 

include performance against any 

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 reduction 

that would be appropriate absent 

mitigating factors. Mitigating factors 

include, but are not limited to, the 

following (paragraphs (c)(4)(v), (vi), (vii) 

and (viii) of this clause 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’s 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 and safeguarding 

Restricted Data and other classified 

information and compliance in related 

areas. 

(v) Contractor’s demonstration to the 

Contracting Officer’s satisfaction that 

the principles of industrial ES&H 

standards are routinely practiced. 

(vi) Event caused by ‘‘Good 

Samaritan’’ act by the Contractor (e.g., 

offsite emergency response). 

(vii) Contractor’s 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’s demonstration that 

an Operating Experience and Feedback 

Program is functioning that 

demonstrably affects continuous 

improvement in ES&H by use of lessonslearned and best practices inter- and 

intra-DOE sites. 

(5) The Contracting Officer will, for 

purposes of this clause, at the time of 

contract award or as soon as possible 

after contract award, allocate the total 

amount of fee, profit, and other 

incentives that is available under the 

contract to equal periods of [insert 6 or 

12] months to run sequentially for the 

term of the contract, including options. 

The amount to be allocated to each 

period shall equal: (the average monthly 

amount available during the term of the 

contact) multiplied by (the number of 

months for each period). 

(d) Reductions to the amount of 

payments the Contractor has received 

for earned fee, fixed fee, profit, or other 

incentives under this and other clauses. 

(1) The amount of the reduction under 

this clause, in combination with the 

amount of any reduction under any 

other clause, shall not exceed the 

amount of payment for otherwise earned 

fee, fixed fee, profit, or other incentives 

for the period. 

(2) If at any time during the contract 

any reductions under this clause or 

other clauses result in the sum of the 

amount of payments the Contractor has 

received for earned fee, fixed fee, profit, 

or other incentives to exceed the sum of 

the amounts of actually payable to the 

Contractor, the Contractor shall 

immediately return the excess to the 

Government. 

(3) At the end of the contract— 

(i) The Government will pay the 

Contractor the amount by which the 

sum of amounts actually payable to the 

Contractor exceeds the sum of the 

payments the Contractor has received; 

or 

(ii) The Contractor shall return to the 

Government the amount by which the 

sum of the payments the Contractor has 

received exceeds the sum of the 

amounts actually payable to the 

Contractor. 

(e) 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 applicable ES&H laws, 

regulations, DOE directives, and DOE 

approved Contractor ISMS. The degrees 

of performance failure under which 

reductions of earned or fixed fee, profit, 

or other incentives will be determined 

are: 

(1) First Degree: Performance failures 

that are most adverse to ES&H. They 

include: 

(i) Failure to develop and obtain 

required DOE approval of an ISMS, if an 

ISMS is required. 

(The Government will perform 

necessary reviews in a timely manner 

and not unreasonably withhold 

approval.) 

(ii) Performance failures determined, 

per applicable ES&H laws, regulations, 

or DOE directives to have resulted in, or 

that could reasonably be expected to 

result in, serious injury or death to a 

worker. 

(iii) Occurrence of any accident or 

event that meets the criteria of 

Appendix A of DOE Order 225.1B (or 

successor Order) and results in a 

determination to conduct a Federal 

Accident Investigation Board. 

(2) Second Degree: Performance 

failures that are significantly adverse to 

ES&H. They include: 

(i) Failures to comply with an 

approved ISMS, if an ISMS is required. 

(ii) Failures that have been 

determined, per applicable ES&H laws, 

regulations, or DOE directives, to have 

resulted in, or could reasonably be 

expected to result in, an actual injury, 

exposure, or exceedance that occurred 

or nearly occurred but had minor 

practical long-term health 

consequences. 

(iii) A breakdown of the Integrated 

Safety Management System. 

(iv) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives actually resulting in an 

accident that meets the criteria of 

Appendix A of DOE Order 225.1B (or 

successor Order) but not resulting in a 

determination to conduct a Federal 

Accident Investigation Board. 

(v) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives that results in a near miss of 

an accident or event that could have 

resulted in an adverse effect and a 

determination to conduct a Federal 

Accident Investigation Board. (A near 

miss is a situation in which an 

inappropriate action occurs, or a 

necessary action is omitted, that does 

not result in an adverse effect.) 

(3) Third Degree: Performance failures 

that have been determined per 

applicable ES&H laws, regulations, or 

DOE directives to reflect a lack of focus 

on improving ES&H. They include: 

(i) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives actually resulting in potential 

breakdown of the Integrated Safety 

Management System. The following 

performance failures or performance 


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failures of similar import will be 

considered third degree: 

(A) Failure to implement effective 

corrective actions to address 

deficiencies/non-compliances 

documented through external (e.g., 

Federal) oversight and/or reported per 

DOE Order 231.B (or successor Order) 

requirements; internal oversight of 10 

CFR parts 830, 835, 850, and 851; or 

DOE Orders 227.1A and 436.1 (or 

successor Order) requirements. 

(B) Multiple similar non-compliances 

identified by external (e.g., Federal) 

oversight that in aggregate indicate a 

significant programmatic breakdown. 

(C) Non-compliances that: have, or 

that may have, significant negative 

impacts to the worker, the public, or the 

environment; or indicate a significant 

programmatic breakdown. 

(D) Failure to notify DOE upon 

discovery of events or conditions where 

notification is required by the terms and 

conditions of the contract. 

(f) Security or 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 

other incentives occur will be 

determined are as follows: 

(1) First Degree: 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 weaponsrelated 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 an 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 an 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: 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 Secret Restricted Data or 

other classified information regardless 

of classification (except for information 

covered by paragraph (f)(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: 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. 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 that 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 that 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. 

(End of clause) 

■ 194. Section 952.245–2 is revised to 

read as follows: 

952.245–2 Government property (fixedprice contracts). 

Modify FAR 52.245–2 by adding ‘‘and 

the DOE Acquisition Regulation subpart 

945.5,’’ at the end of paragraph (d) of the 

clause. 

■ 195. Section 952.245–5 is revised to 

read as follows: 

952.245–5 Government property (costreimbursement, time-and-materials, or 

labor-hour contracts). 

Modify FAR 52.245–1 by adding ‘‘and 

DOE Acquisition Regulation subpart 

945.5’’ at the end of the first sentence in 

paragraphs (e)(1) and (2) of the clause. 

■ 196. Section 952.250–70 is revised to 

read as follows: 

952.250–70 Nuclear hazards indemnity 

agreement. 

Insert the following clause in 

accordance with 950.7006: 

Nuclear Hazards Indemnity Agreement 

[December 2024] 

(a) Definitions. Except as otherwise 

specified within this clause, all 

definitions set forth in the Atomic 

Energy Act of 1954, as amended 


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(hereinafter called the Act), shall apply 

to this clause. 

‘‘Extraordinary nuclear occurrence’’ 

means an event that DOE has 

determined to be such an 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. 

‘‘Public liability,’’ referred to below, is 

public liability as defined in the Act, 

which (1) arises out of or in connection 

with the activities under this contract, 

including transportation; and (2) arises 

out of or results from a nuclear incident 

or precautionary evacuation. 

(b) Authority. This clause is 

incorporated into this contract pursuant 

to the authority contained in subsection 

170d. of the Act. 

(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 (a) of 

this clause. 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. 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 paragraph (a) 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 

$2,000,000,000 in the aggregate for each 

nuclear incident occurring outside the 

United States, irrespective of the 

number of persons indemnified in 

connection with this contract. 

(e)(1) Waiver of defenses. 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 that— 

(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 byproduct 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 of persons indemnified, including, 

but not limited to negligence, 

contributory negligence, assumption of 

risk, or 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 any issue or defense based on any 

statute of limitations, if suit is instituted 

within three years of 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) For the purposes of making a 

determination of whether or not there 

has been an extraordinary nuclear 

occurrence, ‘‘offsite,’’ as used in 10 CFR 

part 840, means ‘‘away from the contract 

location,’’ a phrase that means any DOE 

facility, installation, or site at which 

contractual activity under this contract 

is being carried out, and any contractorowned 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 in paragraph 

(e) of this clause— 

(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 to any injury or 

damage to a claimant (or claimant’s 

property) that is intentionally sustained 

by the claimant, or that results from a 

nuclear incident intentionally and 

wrongfully caused by the claimant; 

(v) Shall not apply to injury to a 

claimant who is employed at the site of 

and in connection with the activity 

where the extraordinary nuclear 

occurrence takes place, if benefits 

therefor are either payable or required to 

be provided under any workmen’s 

compensation or occupational disease 

law; 

(vi) Shall not apply to any claim 

resulting from a nuclear incident 

occurring outside the United States; 

(vii) Shall be effective only with 

respect to those obligations set forth in 

this clause and in insurance policies, 

contracts or other proof of financial 

protection; and 

(viii) Shall not apply to, or prejudice 

the prosecution or defense of, any claim 

or portion of claim 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 (a) of this clause. 

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 or 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 


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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 Disputes clause, provided, however, 

that this clause is subject to the clauses 

at 48 CFR 52.203–5, Covenant Against 

Contingent Fees, and 970.5232–3, 

Accounts, Records, and Inspection, and 

any provisions 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 section 234A of the Act, for 

violations of applicable DOE nuclearsafety related rules, regulations, or 

orders, and pursuant to section 234C of 

the Act, for violations of applicable DOE 

worker safety and health related rules, 

regulations, and orders. If the Contractor 

is a not-for-profit contractor, as defined 

by section 234Ad.(2), the total amount 

of civil penalties paid shall not exceed 

the total amount of fees paid within any 

one-year period (as determined by the 

Secretary) under this contract. 

(j) Criminal penalties. Any individual 

director, officer, or employee of the 

Contractor or of its subcontractors and 

suppliers indemnified under the 

provisions of this clause are subject to 

criminal penalties, pursuant to section 

223(c) of the Act, for knowingly and 

willfully violating the Act, and 

applicable DOE nuclear safety-related 

rules, regulations or orders for 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 that may involve the risk of 

public liability, as that term is defined 

in the Act and further described in 

paragraph (a) of this clause. 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. 

Effective date: 

( ) See note II below for instructions 

related to this section on Effective Date. 

Relationship to general indemnity 

( ) See note III below for instructions 

related to this section on Relationship to 

General Indemnity. 

(End of clause) 

Note I 

(1) For contracts with an award date 

after August 16, 2012, do not include an 

effective date provision. 

(2) For contracts with an award date 

before August 16, 2012— 

(i) If the contract contains the Nuclear 

Hazards Indemnity Agreement clause 

(June 1996 or prior version), replace the 

clause at 952.250–70 with this clause 

and use the EFFECTIVE DATE title and 

language, as follows: 

‘‘Effective Date. This contract was 

awarded on or after August 8, 2005, and 

at contract award contained the clause 

at 952.250–70 (JUN 1996) or prior 

version. That clause has been deleted 

and replaced with this clause. The 

Price-Anderson Amendments Act of 

2005, described by this clause, controls 

the indemnity for any nuclear incident 

that occurred on or after August 8, 2005. 

The Contractor’s liability for civil 

penalties for violations of the Atomic 

Energy Act of 1954 under this contract 

is described by paragraph (i) of this 

clause. 

(ii) If the contract was awarded prior 

to August 8, 2005, and contains the 

Nuclear Hazards Indemnity Agreement 

clause, dated June 1996 or prior version, 

add this clause in addition to the clause 

at 952.250–70 or prior version and use 

the EFFECTIVE DATE title and 

language, as follows: 

‘‘Effective Date. This contract was in 

effect prior to August 8, 2005, and 

contains the clause at 952.250–70 (JUN 

1996) or prior version. The indemnity of 

paragraph (d)(1) is limited to the 

indemnity provided by the PriceAnderson Amendments Act of 1988 for 

any nuclear incident to which the 

indemnity applies that occurred before 

August 8, 2005. 

The indemnity of paragraph (d)(1) of 

this clause applies to any nuclear 

incident that occurred on or after 

August 8, 2005. The Contractor’s 

liability for violations of the Atomic 

Energy Act of 1954 under this contract 

is that in effect prior to August 8, 2005. 

Note II 

The following alternate will be added 

to the above Nuclear Hazards Indemnity 

Agreement clause for all contracts that 

contain a general authority indemnity 

pursuant to 950.7101. Caution: Be aware 

that for contracts that will have this 

provision added, but that do not contain 

an effective date provision, this 

paragraph shall be marked (1). In the 

event an Effective Date provision has 

been included, it shall be marked (m). 

‘‘() To the extent that the Contractor 

is compensated by any financial 

protection, or is indemnified pursuant 

to this clause, or is effectively relieved 

of public liability by an order or orders 

limiting same, pursuant to 170e of the 

Act, the provisions of the clause 

providing general authority indemnity 

shall not apply.’’ 

(End of note) 

PART 970—DOE MANAGEMENT AND 

OPERATING CONTRACTS 

■ 197. The authority citation for part 

970 continues 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. 

■ 198. Amend section 970.0100 by 

adding a sentence at the end of the 

section to read as follows: 

970.0100 Scope of part. 

* * * This part does not apply to 

contracts not designated as M&O 

contracts by the Secretary of Energy, 

except as approved by the cognizant 

Senior Procurement Executive (SPE) or 

as otherwise prescribed in the DEAR. 

■ 199. Amend section 970.0371–8 by 

revising paragraph (a)(1) to read as 

follows: 

970.0371–8 Employee disclosure 

concerning other employment services. 

(a) * * * 

(1) Acknowledge that the employee 

has read and is familiar with: 

(i) The requirements and restrictions 

prescribed in this section; 

(ii) Current version of DOE Order 

486.1, Department of Energy Foreign 

Government Sponsored or Affiliated 

Activities; 

(iii) Current version of DOE Order 

241.1, Scientific and Technical 

Information Management; and 

(iv) The requirements of the 

contractor’s contract with DOE relating 

to patents. 

* * * * * 

■ 200. Section 970.0371–9 is amended 

by revising the last sentence of the 

section to read as follows: 


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970.0371–9 Contract clause. 

* * * In paragraph (a), the words 

‘‘and managerial personnel (see 

970.5245–1(k))’’ may be inserted after 

‘‘(see 952.215–70)’’. 

970.0404–1 [Removed] 

■ 201. Section 970.0404–1 is removed. 

■ 202. Section 970.0404–2 is revised to 

read as follows: 

970.0404–2 General. 

(a) DOE policies, definitions, 

provisions, and clauses associated with 

safeguarding and security of classified 

information are in part 904. 

(b) For DOE management and 

operating contracts and other contracts 

designated by the Senior Procurement 

Executive or designee, the clause at 

970.5215–3, ‘‘Conditional Payment of 

Fee, Profit, and Other Incentives— 

Facility Management Contracts,’’ 

implements the requirements of section 

234B of the Atomic Energy Act (42 

U.S.C. 2282b) that provide for an 

appropriate reduction in the fee or 

amount paid to the contractor under the 

contract in the event of a violation by 

the contractor or any contractor 

employee of any rule, regulation, or 

order relating to the safeguarding or 

security of classified information, 

including Restricted Data. 

970.0404–4 [Removed] 

■ 203. Section 970.0404–4 is removed. 

970.0407–1 [Redesignated as 970.0407– 

100] 

■ 204. Section 970.0407–1 is 

redesignated as section 970.0407–100. 

970.0407–1–1 [Redesignated as 970.0407– 

110] 

■ 205. Section 970.0407–1–1 is 

redesignated as section 970.0407–110. 

970.0407–1–2 [Redesignated as 970.0407– 

120] 

■ 206. Section 970.0407–1–2 is 

redesignated as section 970.0407–120. 

970.0407–1–3 [Redesignated as 970.0407– 

130] 

■ 207. Section 970.0407–1–3 is 

redesignated as section 970.0407–130. 

■ 208. Newly redesignated section 

970.0407–130 is revised to read as 

follows: 

970.0407–130 Contract clause. 

The contracting officer shall insert the 

clause at 970.5204–3, Access to and 

Ownership of Records, in management 

and operating contracts and other 

contracts that contain: 

(a) The Integration of Environment, 

Safety, and Health into Work Planning 

and Execution clause located at either 

952.223–71 or 970.5223–1; or 

(b) The clause at 952.223–72, 

Radiation Protection and Nuclear 

Criticality. 

■ 209. Section 970.0801–2 is revised to 

read as follows: 

970.0801–2 Policy. 

The provisions of FAR subpart 8.1, 41 

CFR chapter 102, and 41 CFR part 109– 

43 apply to DOE’s management and 

operating contracts. 

■ 210. Amend section 970.0905 by 

adding a sentence at the end of the 

section to read as follows: 

970.0905 Organizational and consultant 

conflicts of interest. 

* * * Contracting Officers should 

refer to Subpart 909.5. 

■ 211. Section 970.1100–1 is revised to 

read as follows: 

970.1100–1 Performance-based 

contracting. 

(a) Each management and operating 

(M&O) contract must contain a 

performance work statement that 

describes, in general terms, work 

planned and/or required to be 

performed and expectations in terms of 

outcome, results, or final work products, 

as opposed to methods, processes, or 

design. 

(b) Contract performance 

requirements and expectations should 

be consistent with the Department’s 

strategic planning goals and objectives, 

as made applicable to the site or facility 

through Departmental programmatic 

and financial planning processes. 

Measurable performance criteria, 

objective measures, and where 

appropriate, performance incentives, 

shall be structured to correspond to the 

performance requirements established 

in the statement of work and other 

documents used to establish work 

requirements. 

970.1100–2 [Removed] 

■ 212. Section 970.1100–2 is removed. 

■ 213. Subpart 970.15 is revised to read 

as follows: 

Subpart 970.15—Contracting by Negotiation 

Sec. 

970.1504 Contract pricing. 

970.1504–100 Price analysis. 

970.1504–101 Fees for management and 

operating contracts. 

970.1504–102 Fee policy. 

970.1504–103 Fee determination. 

970.1504–104 Calculating the maximum 

total available fee amount for a one-year 

period. 

970.1504–105 Fee base. 

970.1504–106 Fee schedules. 

970.1504–107 Classification factors. 

970.1504–108 Determining the appropriate 

percentage by considering the significant 

factors. 

970.1504–109 Adding the fee subtotals for a 

one-year period. 

970.1504–110 Allocating the maximum 

total available fee amount for a one-year 

period to one or more of the contract’s 

evaluation periods. 

970.1504–111 The maximum total available 

fee amount for a contract. 

970.1504–200 Documentation. 

970.1504–201 Cost or pricing data. 

970.1504–300 Solicitation provision and 

contract clauses. 

970.1504–400 Special cost or pricing areas. 

Subpart 970.15—Contracting by 

Negotiation 

970.1504 Contract pricing. 

970.1504–100 Price analysis. 

970.1504–101 Fees for management and 

operating contracts. 

This subsection sets forth the 

Department’s policies on fees for 

management and operating (M&O) 

contracts. 

970.1504–102 Fee policy. 

(a) Basic principles. (1) M&O contracts 

are typically cost-reimbursement type 

contracts with incentive fees. An M&O 

contract, however, may be of any 

contract type or combination of types 

(for example, firm-fixed-price, cost-plusaward-fee, cost-plus-incentive-fee, 

multiple-incentive, etc.). Regardless of 

contract type, an M&O contract may 

contain work elements using different 

incentives. 

(2) A cost-plus-fixed-fee contract shall 

only be used if approved in advance by 

the Senior Procurement Executive (SPE) 

or designee. The fee for a cost-plusfixed-fee contract may not exceed the 

limits at FAR 15.404–4(c)(4)(i). 

(3) A base fee amount may only be 

used if approved in advance by the SPE 

or designee. 

(4) Incentive fees allocated to 

evaluation periods under costreimbursement type contracts should, to 

the greatest extent appropriate, be tied 

to a specific portion of the maximum 

total available fee. 

(5) The maximum total available fee 

amount may not exceed the fee derived 

from this subsection unless approved in 

advance by the SPE or designee. A 

request to allow a higher fee must be in 

writing and must clearly explain why 

the situation merits consideration. 

(i) Typically, only a situation where 

either unusually difficult objective 

performance incentives would be used 

or where successful performance would 

provide extraordinary value would 

merit consideration. 


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(ii) When a contract requires a 

contractor to use its own facilities, 

equipment, or other resources for 

contract performance (e.g., when there 

is no letter-of-credit financing), 

consideration may be given, subject to 

approval by the SPE or designee, to 

allowing a maximum total available fee 

amount above the amount calculated by 

this subsection. 

(6) Each M&O contract must set forth 

in the contract (or in a Performance 

Evaluation and Measurement Plan 

(PEMP) or similar document) the 

methods that will be used to rate the 

contractor’s performance and to 

determine the fee the contractor’s 

performance will earn. The DOE 

Contracting Officer must ensure all 

important areas of contract performance 

are specified in the contract or in a 

PEMP (or similar document), even if 

such areas are not assigned a specific 

portion of the maximum total available 

fee the contractor might earn. 

(i) An M&O contract is an ‘‘incentive 

contract’’ as that term is used in FAR 

subpart 16.4. FAR subpart 16.4 prohibits 

the use in a contract of other than cost 

incentives without also providing a cost 

incentive (or constraint). 

(ii) Award fee not earned during the 

award fee cycle shall not be carried over 

to any future award fee cycle. 

Consequently— 

(A) When the award fee cycle consists 

of one evaluation period, unearned 

award fee amounts may not be carried 

over from one evaluation period to the 

next. 

(B) When the award fee cycle consists 

of two or more evaluation periods, at the 

sole discretion of the Contracting 

Officer, unearned award fee amounts 

may be carried over from one evaluation 

period to the next, so long as the periods 

are within the same award fee cycle. 

(b) Coordination requirements. (1) 

Before issuing a competitive 

solicitation, the Head of the Contracting 

Activity (HCA) must coordinate the 

greatest maximum total available fee 

amount the HCA will accept with the 

SPE or designee. A competitive 

solicitation must identify the greatest 

maximum total available fee amount the 

Government will accept and may invite 

offerors to propose a lower fee amount. 

(2) Before beginning to negotiate an 

extension to an existing contract, the 

HCA must coordinate the greatest 

maximum total available fee amount the 

HCA will accept, and the maximum 

total available fee amount targeted for 

negotiation with the SPE or designee. 

970.1504–103 Fee determination. 

(a) General. Determining the fee of an 

M&O contract requires considering the: 

(1) Magnitude of the effort; 

(2) Type of the effort; 

(3) Nature, difficulty, complexity, and 

importance of the work; and 

(4) Specific circumstances of the 

procurement. 

(b) Maximum total available fee 

amount for the contract, annual fee 

bases, and allocation of the maximum 

total available fee amount. (1) 

Determining the maximum total 

available fee amount of an M&O 

contract, which is based upon the fee 

base (among other things) in each of the 

one-year periods of the M&O contract, is 

a separate action from allocating that 

amount to the evaluation periods of the 

contract, which is based upon what best 

motivates the M&O contractor’s superior 

performance. The Government’s 

objective is to allocate incentives in a 

manner that will result in reasonable 

contractor risk and provide the 

contractor with the greatest incentive for 

efficient and economical performance. 

(2) The maximum total available fee 

amount in an M&O contract is the sum 

of the maximum total available fee 

amounts in the contract’s one-year 

periods. (See 970.1504–104 for a 

complete explanation of the calculation 

of the maximum total available fee 

amount for a one-year period and an 

example.) 

(3) The maximum total available fee 

amount for a one-year period is based 

on the fee base for that one-year period. 

The fee base is an estimate of the 

allowable costs (with some exclusions) 

for that one-year period. 

(4) The fee base is a basic component 

of the fee schedules, which link the fee 

base to fee. A fundamental aspect of fee 

calculations is the amount of the fee 

base and the amount of fee in the fee 

schedules are annual amounts. 

Calculating the maximum total available 

fee amount for a one-year period starts 

with determining the fee base for the 

one-year period. Consequently, a 

contract’s maximum total available fee 

amount is based on the contract’s oneyear periods and their fee bases. 

(5) Usually (but not necessarily) once 

the maximum total available fee amount 

for a one-year period is calculated, it is 

allocated (that is, made available to be 

earned by the M&O contractor) to the 

same one-year period. Additionally, 

when a maximum total available fee 

amount is established for longer than a 

year, it is subject to adjustment in the 

event of a significant change (greater 

than plus or minus ten percent or a 

lesser percent if appropriate) to the 

budget or work scope. 

(6) In summary, while the maximum 

total available fee amount for a one-year 

period is based on the fee base for the 

one-year period, the evaluation period 

in which the contractor may earn all, or 

part of that fee need not be the same 

one-year period or even a single 

evaluation period. Usually, the length of 

an evaluation period is one year, 

mirroring the one-year period used in 

the calculation of the maximum total 

available fee amount for a one-year 

period. In fact, the SPE’s or designee’s 

approval is required to do otherwise. 

Nonetheless, the Government’s objective 

is to allocate incentives in a manner that 

will provide the contractor with the 

greatest incentive for efficient and 

economical performance. Consequently, 

there may be occasions where after 

calculating the maximum total available 

fee amount for a year, part or all of it 

should be allocated to a subsequent oneyear evaluation period, an evaluation 

period of greater than a year, or to 

several evaluation periods. 

(7) Before each year (or other 

appropriate period), at any time before 

the year (or period), including as early 

as the time of contract award, the 

Contracting Officer and M&O contractor 

will enter negotiations to establish the 

requirements for the year (or other 

appropriate period), including 

evaluation areas, individual 

requirements, and the maximum total 

available fee that the contractor can earn 

for its performance. If the parties cannot 

agree, the Contracting Officer will 

unilaterally establish the requirements 

and the maximum total available fee. 

The maximum total available fee 

allocated to an evaluation period must 

be apportioned among a base fee 

amount (which is usually zero) and a 

performance fee amount. The 

performance fee amount may consist of 

an incentive fee component for objective 

performance requirements, an award fee 

component for subjective performance 

requirements, or both. Both performance 

fee components are ‘‘incentives’’ per 

FAR subpart 16.4 and both are 

performance based. The performance fee 

must be tied to objective measures to the 

maximum extent appropriate. 

Performance incentive fee is preferable 

to performance award fee because it 

uses objective performance 

requirements rather than subjective 

performance requirements. Performance 

fee that is award fee may be used when: 

objective measures are not feasible (that 

is, when it is not feasible to devise 

effective predetermined objective 

measures applicable to cost, technical 

performance, or schedule); and the 

likelihood of meeting acquisition 

objectives will be enhanced by using 

incentives that effectively motivate the 

contactor toward exceptional 


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performance and provide the 

Government with the flexibility to 

evaluate both actual performance and 

the conditions under which it was 

achieved. 

(8) Within the maximum total 

available fee, Contracting Officer may 

include a type of incentive fee 

component, often labeled ‘‘performance 

based incentive (PBI),’’ that includes a 

target fee for a target level of 

performance. Each PBI must be tied to 

a specific portion of the total available 

fee pool. PBIs may only be used when— 

(i) A target level of performance can 

be established that the contractor can 

reasonably be expected to reach; 

(ii) Factors likely to impede the target 

performance are clearly within the 

control of the contractor; and 

(iii) The contract indicates clearly a 

level below which performance is not 

acceptable. 

(c) Determining the maximum total 

available fee for each one-year period of 

the contract. (1) Determining the 

maximum total available fee for each 

one-year period of the contract is a 

function of the: 

(i) Magnitude of the effort (reflected 

by the total fee base for the year; see 

970.1504–105); 

(ii) Type of the effort (reflected by the 

allocation of the total fee base to the 

three fee schedules—production, 

research and development, and 

environmental restoration; see 

970.1504–106); 

(iii) Nature, difficulty, complexity, 

and importance of the work (reflected 

by the choice of classification factors; 

see 970.1504–107); and 

(iv) Specific circumstances of the 

procurement (reflected by the 

appropriate percentages derived from 

considering significant factors; see 

970.1504–108). 

(2) Calculating the maximum total 

available fee for a one-year period 

entails determining the total fee base for 

the year, allocating it to the fee 

schedules based on the type of effort, 

using the fee schedules to determine a 

fee subtotal for each type of effort, 

multiplying those fee subtotals by 

classification factors, multiplying the 

resulting products by appropriate 

percentages, and summing those 

products. (See 970.1504–104 for a 

complete explanation and an example.) 

(d) Conditional payment of fee, profit, 

and other incentives. (1) In addition to 

other performance requirements 

specified in their contracts, M&O 

contractors are subject to performance 

requirements relating to: environment, 

safety, and health (ES&H), including 

worker safety and health (WS&H) and 

safeguarding of Restricted Data and 

other classified information. 

Performance requirements relating to 

ES&H will be set forth in the contract’s 

ES&H terms and conditions, including a 

DOE-approved Integrated Safety 

Management System (ISMS), or similar 

document. Performance requirements 

relating to the safeguarding of Restricted 

Data and other classified information 

will be set forth in the clauses of the 

contract at 952.204–2, ‘‘Security 

Requirements,’’ and 970.5204–2, ‘‘Laws, 

Regulations, and DOE Directives,’’ as 

well as in other terms and conditions 

that prescribe requirements for the 

safeguarding of Restricted Data and 

other classified information. (If the 

contract does not include the clause at 

952.204–2, ‘‘Security Requirements,’’ 

the safeguarding of Restricted Data and 

other classified information 

requirements of the clause at 970.5215– 

3, ‘‘Conditional Payment of Fee, Profit, 

and Other Incentives—Facility 

Management Contracts,’’ do not apply.) 

(2) If the contractor does not meet the 

performance requirements of the 

contract relating to ES&H or to the 

safeguarding of Restricted Data and 

other classified information, otherwise 

earned fee, fixed fee, profit, or other 

incentives may be unilaterally reduced 

by the Contracting Officer in accordance 

with the clause at 970.5215–3, 

‘‘Conditional Payment of Fee, Profit, 

and Other Incentives—Facility 

Management Contracts.’’ 

(3) The clause at 970.5215–3, entitled 

‘‘Conditional Payment of Fee, Profit, 

and Other Incentives—Facility 

Management Contracts,’’ provides for 

reductions of earned fee, fixed fee, 

profit, or other incentives under the 

contract depending upon the severity of 

the contractor’s performance failure 

relating to ES&H requirements, and 

relating to the safeguarding of Restricted 

Data and other classified information. 

When reviewing performance failures 

that would otherwise warrant a 

reduction of earned fee, fixed fee, profit, 

or other incentives, the Contracting 

Officer must consider mitigating factors 

that may warrant a reduction below the 

applicable range specified in the clause. 

Some of the mitigating factors that must 

be considered are included in the 

clause. 

(4) The Contracting Officer must 

obtain the concurrence of the cognizant 

Program Secretarial Officer— 

(i) Prior to effecting any reduction; 

and 

(ii) Prior to determining that a 

reduction is not warranted for a 

particular performance failure or a 

group of performance failures. 

(5) The Contracting Officer must 

coordinate with the Office of 

Enforcement within the Office of 

Enterprise Assessments (or with any 

designated successor office) before 

pursuing a contract fee reduction in the 

event of a violation by the contractor or 

any contractor employee of any DOE 

regulation relating to worker safety and 

health concerns. See 970.2303–2. 

(e) Types of contracts and fee 

arrangements. (1) Contracts that are a 

combination of types or include work 

elements with fee arrangements that are 

a combination of contract types must— 

(i) Conform to the requirements of 

parts 915 and 916 and FAR parts 15 and 

16; and 

(ii) Where appropriate to the type, be 

supported by: 

(A) Negotiated costs subject to the 

requirements of the 41 U.S.C. chapter 

35; 

(B) A pre-negotiation memorandum; 

and 

(C) A plan describing how each 

contract type or fee arrangement will be 

administered. 

(2) [Reserved] 

(f) Establishing contract type. 

Operations and field offices shall take 

the lead in establishing the most 

appropriate contract type for their 

requirements. Before establishing 

contract types and fee arrangements, 

operations and field offices must ensure 

the necessary resources exist within the 

contractor’s and the Government’s 

organizations to administer them. 

970.1504–104 Calculating the maximum 

total available fee amount for a one-year 

period. 

(a) The maximum total available fee 

amount for a contract is the sum of the 

maximum total available fee amounts of 

the contract’s one-year periods. The 

maximum total available fee amount in 

a one-year period is based on the fee 

base of the one-year period. Calculating 

the maximum total available fee amount 

for a one-year period requires 

considering the: magnitude of the effort 

(reflected by the total fee base for the 

year); type of effort (reflected by the 

allocation of the total fee base to the 

three fee schedules); nature, difficulty, 

complexity, and importance of the work 

(reflected by the choice of classification 

factors); and specific circumstances of 

the procurement (reflected by the 

appropriate percentages derived from 

considering significant factors). 

(b) To calculate the maximum total 

available fee amount for a year, the 

Contracting Officer takes the following 

steps: 

(1) Step 1. Determines the total fee 

base for the year (see 970.1504–105); 

(2) Step 2. Allocates the total fee base 

for the year as appropriate to the three 


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types of efforts reflected by the three fee 

schedules (if there is only one type of 

effort, all of the total fee base is 

allocated to the fee schedule appropriate 

for the effort); 

(3) Step 3. Using the portion of the 

total fee base allocated to the schedule 

in paragraph (b)(2) of this section (step 

2), determines a fee subtotal for each 

type of effort (see 970.1504–106); 

(4) Step 4. Multiplies each of the fee 

subtotals in paragraph (b)(3) of this 

section (step 3) by the appropriate 

classification factor (see 970.1504–107); 

(5) Step 5. Multiplies each of the 

products produced in paragraph (b)(4) 

of this section (step 4) by the 

appropriate percentage, which is 

determined by considering the 

significant factors (see 970.1504–108); 

and 

(6) Step 6. Adds the products of 

paragraph (b)(5) of this section (step 5). 

(c) An example of calculating the 

maximum total available fee for a oneyear period follows in paragraphs (c)(1) 

through (6) of this section. The 

assumptions are: total fee base is 

50,000,000 (comprising 10,000,000 of 

Production efforts, 15,000,000 of 

Research and Development (R&D) 

efforts, and 25,000,000 of 

Environmental Management (EM) 

efforts), classification factors are 3.0, 

1.5, and 2.0, and appropriate 

percentages are 90%, 85%, and 75%. 

(1) Step 1. Determination of the total 

fee base: 50,000,000. 

(2) Step 2. Allocation of the total fee 

base in paragraph (c)(1) of this section 

(step 1) to the three fee schedules (based 

on the types of effort in the total fee 

base): 

(i) 10,000,000 to Production; 

(ii) 15,000,000 to R&D; and 

(iii) 25,000,000 to EM. 

(3) Step 3. Determination of the fee 

subtotal for each type of effort using the 

applicable fee schedules: 

(i) 578,726 for Production; 

(ii) 957,250 for R&D; and 

(iii) 1,236,340 for EM. 

(4) Step 4. Multiplication of the fee 

subtotal in paragraph (c)(3) of this 

section (step 3) for each type of effort by 

the appropriate classification factor: 

(i) 578,726 × 3.0 = 1,736,178 for 

Production; 

(ii) 957,250 × 1.5 = 1,435,875 for R&D; 

and 

(iii) 1,236,340 × 2.0 = 2,472,680 for 

EM. 

(5) Step 5. Multiplication of each of 

the products of paragraph (c)(4) of this 

section (step 4) by the appropriate 

percentage for the type of work 

(determined by considering the 

significant factors (see 970.1504–108)): 

(i) 1,736,178 × .9 = 1,562,560 for 

Production; 

(ii) 1,435,875 × .85 = 1,220,494 for 

R&D; and 

(iii) 2,472,680 × .75 = 1,854,510 for 

EM. 

(6) Step 6. Addition of the products of 

paragraph (c)(5) of this section (step 5): 

(i) 1,562,560. 

(ii) 1,220,494. 

(iii) 1,854,510. 

(iv) 4,637,564. 

(d) In summary, the maximum total 

available fee amount for a contract is the 

sum of the maximum total available fee 

amounts of the contract’s one-year 

periods. Calculating the maximum total 

available fee amount for a one-year 

period entails determining the total fee 

base, allocating it to the fee schedules, 

using the fee schedules to determine fee 

subtotals, multiplying the fee subtotals 

by classification factors, multiplying the 

resulting products by appropriate 

percentages, and summing those 

products. (Allocating the amount of 

maximum total available fee for a oneyear period to an evaluation period or 

periods is a separate action.) 

970.1504–105 Fee base. 

(a) The total fee base for a one-year 

period (see step 1 located at 970.1504– 

104(b)(1)) is an estimate of the allowable 

costs for the one-year period, with some 

exclusions. (Estimates for Strategic 

Partnership Projects may be included in 

the total fee base, where appropriate.) 

The total fee base excludes estimates of 

allowable costs for: source and special 

nuclear materials; land, buildings, and 

facilities (whether they are to be leased, 

purchased or constructed); depreciation 

of Government facilities; and efforts for 

which a separate fee is to be negotiated. 

(b) In addition to the exclusions in 

paragraph (a) of the section, the total fee 

base excludes: 

(1) Any part of the estimated 

allowable cost of capital equipment that 

the contractor procures by subcontract 

and other similar costs that are of such 

magnitude or nature as to distort the 

technical and management effort 

required of the contractor; 

(2) At least 20% of the estimated 

allowable cost of subcontracts and other 

major contractor procurements, with the 

excluded amount increasing as the 

contractor’s estimated required 

management effort decreases; 

(3) Estimates of allowable home office 

or corporate general and administrative 

expenses that will be reimbursed; 

(4) Any cost of work funded with 

uncosted balances previously included 

in a fee base of this or any other contract 

performed by the contractor; 

(5) Cost of rework attributable to the 

contractor; and 

(6) State taxes. 

(c) The total fee base does not reflect 

any fee or compensation for unusual 

architect-engineer or construction 

services provided by the M&O 

contractor. Architect-engineer and 

construction services are normally 

covered by special agreements based on 

the policies applying to architectengineer or construction contracts. The 

fees for such services shall be calculated 

per 915.404–4800 and added to the fees 

calculated using the production, R&D, 

and EM schedules. The total fee base 

also does not reflect any fee or 

compensation for special equipment 

purchases. The fees for special 

equipment purchases shall be calculated 

per 915.404–4800 and added to the fees 

calculated using the production, R&D, 

and EM schedules. 

(d) No fee schedule may be used more 

than once in calculating the maximum 

total available fee amount for a one-year 

period. 

970.1504–106 Fee schedules. 

(a) In calculating the amount of 

maximum total available fee amount for 

a one-year period (see 970.1504–104), 

once the total fee base for the year is 

determined it is allocated to one or more 

of the three fee schedules based upon 

the type of effort. The three types of 

efforts are: Production; R&D; and EM. 

Each fee schedule provides a fee 

subtotal (see steps 2 and 3 in 970.1504– 

104(b)(2) and (3)). 

(b) The three schedules are: 

TABLE 1 TO PARAGRAPH (b) 

Fee base (dollars) Fee dollars Fee 

(percent) 

Incr. 

(percent) 

PRODUCTION EFFORTS SCHEDULE 

Up to $1 Million ............................................................................................................................ ........................ ........................ 7.66 

1,000,000 ..................................................................................................................................... $76,580 7.66 6.78 


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TABLE 1 TO PARAGRAPH (b)—Continued 

Fee base (dollars) Fee dollars Fee 

(percent) 

Incr. 

(percent) 

3,000,000 ..................................................................................................................................... 212,236 7.07 6.07 

5,000,000 ..................................................................................................................................... 333,670 6.67 4.90 

10,000,000 ................................................................................................................................... 578,726 5.79 4.24 

15,000,000 ................................................................................................................................... 790,962 5.27 3.71 

25,000,000 ................................................................................................................................... 1,161,828 4.65 3.35 

40,000,000 ................................................................................................................................... 1,663,974 4.16 2.92 

60,000,000 ................................................................................................................................... 2,247,076 3.75 2.57 

80,000,000 ................................................................................................................................... 2,761,256 3.45 2.34 

100,000,000 ................................................................................................................................. 3,229,488 3.23 1.45 

150,000,000 ................................................................................................................................. 3,952,622 2.64 1.12 

200,000,000 ................................................................................................................................. 4,510,562 2.26 0.61 

300,000,000 ................................................................................................................................. 5,117,732 1.71 0.53 

400,000,000 ................................................................................................................................. 5,647,228 1.41 0.45 

500,000,000 ................................................................................................................................. 6,097,956 1.22 ........................

Over $500,000,000 ...................................................................................................................... 6,097,956 ........................ 0.45 

TABLE 2 TO PARAGRAPH (b) 

Fee base (dollars) Fee dollars Fee 

(percent) 

Incr. 

(percent) 

RESEARCH AND DEVELOPMENT EFFORTS SCHEDULE 

Up to $1 Million ............................................................................................................................ ........................ ........................ 8.42 

1,000,000 ..................................................................................................................................... $84,238 8.42 7.00 

3,000,000 ..................................................................................................................................... 224,270 7.48 6.84 

5,000,000 ..................................................................................................................................... 361,020 7.22 6.21 

10,000,000 ................................................................................................................................... 671,716 6.72 5.71 

15,000,000 ................................................................................................................................... 957,250 6.38 4.85 

25,000,000 ................................................................................................................................... 1,441,892 5.77 4.22 

40,000,000 ................................................................................................................................... 2,075,318 5.19 3.69 

60,000,000 ................................................................................................................................... 2,813,768 4.69 3.27 

80,000,000 ................................................................................................................................... 3,467,980 4.33 2.69 

100,000,000 ................................................................................................................................. 4,006,228 4.01 1.69 

150,000,000 ................................................................................................................................. 4,850,796 3.23 1.14 

200,000,000 ................................................................................................................................. 5,420,770 2.71 0.66 

300,000,000 ................................................................................................................................. 6,083,734 2.03 0.58 

400,000,000 ................................................................................................................................. 6,667,930 1.67 0.50 

500,000,000 ................................................................................................................................. 7,172,264 1.43 ........................

Over $500,000,000 ...................................................................................................................... 7,172,264 ........................ 0.50 

TABLE 3 TO PARAGRAPH (b) 

Fee base (dollars) Fee dollars Fee 

(percent) 

Incr. 

(percent) 

ENVIRONMENTAL MANAGEMENT EFFORTS SCHEDULE 

Up to $1 Million ............................................................................................................................ ........................ ........................ 7.33 

1,000,000 ..................................................................................................................................... $73,298 7.33 6.49 

3,000,000 ..................................................................................................................................... 203,120 6.77 5.95 

5,000,000 ..................................................................................................................................... 322,118 6.44 5.40 

10,000,000 ................................................................................................................................... 592,348 5.92 4.83 

15,000,000 ................................................................................................................................... 833,654 5.56 4.03 

25,000,000 ................................................................................................................................... 1,236,340 4.95 3.44 

40,000,000 ................................................................................................................................... 1,752,960 4.38 3.29 

60,000,000 ................................................................................................................................... 2,411,890 4.02 3.10 

80,000,000 ................................................................................................................................... 3,032,844 3.79 2.49 

100,000,000 ................................................................................................................................. 3,530,679 3.53 1.90 

150,000,000 ................................................................................................................................. 4,479,366 2.99 1.48 

200,000,000 ................................................................................................................................. 5,2197924 2.61 1.12 

300,000,000 ................................................................................................................................. 6,337,250 2.11 0.88 

400,000,000 ................................................................................................................................. 7,219,046 1.80 0.75 

500,000,000 ................................................................................................................................. 7,972,396 1.59 0.58 

750,000,000 ................................................................................................................................. 9,423,463 1.26 0.55 

1,000,000,000 .............................................................................................................................. 10,786,788 1.08 ........................

Over $1 Billion ............................................................................................................................. 10,786,788 ........................ 0.55 


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970.1504–107 Classification factors. 

(a) There are five classification 

factors. They are tied to facility/task 

categories. Step 4 in calculating the 

maximum total available fee amount for 

the one-year period (see 970.1504– 

104(b)(4)) is to multiply the fee subtotal 

in step 3 for each type of effort by the 

appropriate classification factor. The 

classification factors and their 

corresponding facility/task categories 

are: 

TABLE 1 TO PARAGRAPH (a) 

Facility/task category Classification 

factor 

A ........................................... 3.0 

B ........................................... 2.5 

C ........................................... 2.0 

D ........................................... 1.5 

E ........................................... 1.0 

(b) The Contracting Officer shall 

select the Facility/Task Category after 

considering the following: 

(1) Facility/Task Category A. The 

main focus of effort performed is related 

to— 

(i) The manufacture, assembly, 

retrieval, disassembly, or disposal of 

nuclear weapons with explosive 

potential; 

(ii) The physical cleanup, processing, 

handling, or storage of nuclear 

radioactive or toxic chemicals with 

consideration given to the degree the 

nature of the work advances state-of-theart technologies in cleanup, processing 

or storage operations and/or the 

inherent difficulty or risk of the work is 

significantly demanding when 

compared to similar industrial/DOE 

settings (i.e., nuclear energy processing, 

industrial environmental cleanup); 

(iii) Construction of facilities such as 

nuclear reactors, atomic particle 

accelerators, or complex laboratories or 

industrial units especially designed for 

handling radioactive materials; 

(iv) R&D directly supporting 

paragraph (b)(1)(i), (ii), or (iii) of this 

subsection and not conducted in a DOE 

laboratory; or 

(v) As designated by the SPE, or 

designee. (Classification factor 3.0) 

(2) Facility/Task Category B. The 

main focus of effort performed is related 

to— 

(i) The safeguarding and maintenance 

of nuclear weapons or nuclear material; 

(ii) The manufacture or assembly of 

nuclear components; 

(iii) The physical cleanup, processing, 

handling, or storage of nuclear 

radioactive or toxic chemicals or other 

substances that pose a significant threat 

to the environment or the health and 

safety of workers or the public, if the 

nature of the work uses state-of-the-art 

technologies or applications in such 

operations and/or the inherent difficulty 

or risk of the work is more demanding 

than that found in similar industrial/ 

DOE settings (i.e., nuclear energy, 

chemical or petroleum processing, 

industrial environmental cleanup); 

(iv) The detailed planning necessary 

for the assembly/disassembly of nuclear 

weapons/components; 

(v) Construction of facilities involving 

operations requiring a high degree of 

design layout or process control; 

(vi) R&D directly supporting 

paragraph (b)(2)(i), (ii), (iii), (iv), or (v) 

of this subsection and not conducted in 

a DOE laboratory; or 

(vii) As designated by the SPE or 

designee. (Classification factor 2.5) 

(3) Facility/Task Category C. The 

main focus of effort performed is related 

to— 

(i) The physical cleanup, processing, 

or storage of nuclear radioactive or toxic 

chemicals if the nature of the work uses 

routine technologies in cleanup, 

processing or storage operations and/or 

the inherent difficulty or risk of the 

work is similar to that found in similar 

industrial/DOE settings (i.e., nuclear 

energy, chemical processing, industrial 

environmental cleanup); 

(ii) Plant and facility maintenance; 

(iii) Plant and facility security (other 

than the safeguarding of nuclear 

weapons and material); 

(iv) Construction of facilities 

involving operations requiring normal 

processes and operations; general or 

administrative service buildings; or 

routine infrastructure requirements; 

(v) R&D directly supporting paragraph 

(b)(3)(i), (ii), (iii), or (iv) of this 

subsection and not conducted in a DOE 

laboratory; or 

(vi) As designated by the SPE or 

designee. (Classification factor 2.0) 

(4) Facility/Task Category D. The 

main focus of the effort performed is 

R&D conducted at a DOE laboratory. 

(Classification factor 1.5) 

(5) Facility/Task Category E. Efforts 

performed using a fixed fee. 

(Classification factor 1.0) 

(c) Where the SPE or designee has 

approved a base fee, the Classification 

Factors shall be reduced, as approved by 

the SPE or designee. 

(d) Any risks that are indemnified by 

the Government (for example, risks 

under the Price-Anderson Act) will not 

be considered as risks to the contractor. 

970.1504–108 Determining the appropriate 

percentage by considering the significant 

factors. 

(a) In calculating the maximum total 

available fee for a one-year period (see 

970.1504–104), step 5 (970.1504– 

104(b)(5)) is to consider the specific 

circumstances of the procurement using 

the following significant factors for each 

type of effort, determine the appropriate 

percentage for the type of work, and 

apply it to the subtotals of fee from step 

4 (970.1504–104(b)(4)). An appropriate 

percentage of 100% would be applied to 

work of maximum difficulty and/or 

complexity; lesser percentages would be 

applied to work less difficult or 

complex. The significant factors are: 

(1) The relative difficulty of work, 

including specific performance 

objectives, environment, safety and 

health concerns, and the technical and 

administrative knowledge, and skill 

necessary for work accomplishment and 

experience; 

(2) Management risk relating to 

performance, including— 

(i) Composite risk and complexity of 

principal work tasks required to do the 

job; and 

(ii) Advance planning, forecasting and 

other such requirements; 

(3) Size and operation (number of 

locations, plants, differing operations, 

etc.); 

(4) The nature and relative complexity 

of subcontracted efforts, subcontractor 

management, and complexity of 

integration with other contractors; 

(5) Other special considerations, 

including support of Government 

programs such as those relating to small 

and minority business subcontracting, 

energy conservation, etc.; and 

(6) The presence or absence of 

financial risk, including the type and 

terms of the contract. 

(b) [Reserved] 

970.1504–109 Adding the fee subtotals for 

a one-year period. 

In calculating the maximum total 

available fee amount for a one-year 

period (see 970.1504–104), step 6 

(970.1504–104(b)(6)) is to add the 

products of step 5 (970.1504–104(b)(5). 

970.1504–110 Allocating the maximum 

total available fee amount for a one-year 

period to one or more of the contract’s 

evaluation periods. 

Usually, the length of an evaluation 

period is one year, mirroring the oneyear period used in calculating the 

maximum total available fee amount for 

a one-year period. The SPE’s or 

designee’s approval is required to do 

otherwise. Nonetheless, the 

Government’s objective is to allocate 

incentives in a manner that will result 

in reasonable contractor risk and 

provide the contractor with the greatest 

incentive for efficient and economical 

performance. Consequently, there may 


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be occasions where after calculating the 

maximum total available fee amount for 

a one-year period, part or all of it should 

be allocated to a subsequent one-year 

evaluation period, an evaluation period 

of greater than a year, or to several 

evaluation periods. 

970.1504–111 The maximum total available 

fee amount for a contract. 

The maximum total available fee 

amount for a contract is the sum of the 

maximum total available fee amounts of 

the contract’s one-year periods. 

970.1504–200 Documentation. 

970.1504–201 Cost or pricing data. 

(a) The certification requirements of 

FAR 15.406–2 are not applied to DOE 

cost- reimbursement M&O contracts. 

(b) The Contracting Officer shall 

ensure that M&O contractors and their 

subcontractors obtain certified cost or 

pricing data prior to the award of a 

negotiated subcontract or modification 

of a subcontract in accordance with FAR 

15.406–2, if required by FAR 15.403–4, 

and incorporate appropriate contract 

provisions similar to those set forth at 

FAR 52.215–10 and 52.215–11 that 

provide for the reduction of a negotiated 

subcontract price by any significant 

amount that the subcontract price was 

increased because of the submission of 

defective cost or pricing data by a 

subcontractor at any tier. 

(c) The clauses at FAR 52.215–12 and 

52.215–13 shall be included in M&O 

contracts. 

970.1504–300 Solicitation provision and 

contract clauses. 

(a) The Contracting Officer shall insert 

the clause at 970.5215–1, Total 

Available Fee: Base Fee Amount and 

Performance Fee Amount, in M&O 

contracts. 

(b) The Contracting Officer shall 

insert the clause at 970.5215–3, 

Conditional Payment of Fee, Profit, and 

Other Incentives—Facility Management 

Contracts, in M&O contracts. (Note: The 

clause states if the contract does not 

include the Security Requirements 

clause (952.204–2), the requirements of 

the clause related to security or 

safeguarding of Restricted Data and 

other classified information do not 

apply.) 

(c) The Contracting Officer shall insert 

the provision at 970.5215–5, Limitation 

on Fee, in solicitations for M&O 

contracts. 

970.1504–400 Special cost or pricing 

areas. 

■ 214. Amend section 970.1706–1 by 

revising paragraphs (a) and (b) to read 

as follows: 

970.1706–1 Award, renewal, and 

extension. 

(a) Contract term. Effective 

performance under an M&O contract is 

facilitated by the use of a relatively long 

contract term. Only the Secretary can 

authorize the use of an M&O contract 

and only the Secretary can renew the 

original authorization of an M&O 

contract. 

(1) An M&O contract shall—after the 

Secretary has authorized its original use 

(either by a competitive award or by a 

sole source award), its maximum term, 

and any other limits on its terms 

(options or other terms)—provide for a 

base term not to exceed the lesser of five 

years or the maximum term the 

Secretary authorized. 

(2) The contract may include option 

terms provided no option term exceeds 

the lesser of five years or the maximum 

term the Secretary authorized (for 

options or the contract) and the sum of 

base term and the option terms does not 

exceed the lesser of 10 years or the 

maximum term the Secretary authorized 

for the contract. In addition to the base 

term and the option terms just 

described, an M&O contract for a 

national laboratory that is competitively 

awarded may provide for award term 

incentives provided none exceed the 

maximum term the Secretary authorized 

for each. The sum of base term, option 

terms, and award terms shall not exceed 

the lesser of 20 years or the maximum 

term the Secretary authorized for the 

contract. 

(3) After the Secretary’s original 

authorization of the use of the M&O 

contract has expired, any continuation 

of work under an M&O contract must be 

preceded by the Secretary’s renewal of 

his/her authorization for use of an M&O 

contract. Whether work is to be 

continued by a competitive award to a 

new contractor or to the incumbent, by 

a sole source award to a new contractor, 

or by a sole source extension of the 

contract to the incumbent, the 

Secretary’s renewal of his/her 

authorization for use of an M&O 

contract to perform the work is required 

before work may continue. 

(4) In addition to requiring the 

Secretary’s renewal of his/her 

authorization for use of an M&O 

contract, a sole source extension of an 

M&O contract to the incumbent must be 

justified under one of the statutory 

authorities listed in FAR 6.302 and 

authorized by the Secretary. 

(5) The specific duration of the base 

term, option terms, and award terms of 

an M&O contract must be established 

concurrent with the Secretary’s 

authorization (or renewal of his/her 

authorization) to use an M&O contract 

(for original use, sole source award to a 

new contractor, competitive award to a 

new contractor or to the incumbent, or 

sole source extension of the contract to 

the incumbent). 

(b) Exercise of option. The contracting 

officer’s decision to exercise an option 

(if the Secretary’s authorization to use 

an M&O contract covers the option 

period) must be approved by the Senior 

Procurement Executive and the 

cognizant Assistant Secretary(s). In 

deciding to exercise the option, the 

contracting officer shall: 

(1) Consider the extent to which 

performance-based management 

contract provisions are present or can be 

negotiated into the contract. 

(2) Make the determinations required 

by FAR 17.605 in the manner described 

therein. As part of the review required 

by FAR 17.605(b), the Contracting 

Officer shall assess whether competing 

the contract will produce a more 

advantageous offer than exercising the 

option. The incumbent contractor’s past 

performance under the contract, the 

extent to which performance-based 

management contract provisions are 

present, or can be negotiated into the 

contract, and the impact of a change in 

a contractor on the Department’s 

discharge of its programs are 

considerations that shall be addressed 

in the Contracting Officer’s decision that 

the exercise of the option is in the 

Government’s best interest. The 

Contracting Officer’s decision shall be 

approved by the Senior Procurement 

Executive and the cognizant Assistant 

Secretary(s). The determinations 

described in FAR 17.207(d) and (e)(2) 

are not required, and because of the way 

in which the evaluation of cost to the 

Government is performed in the award 

of an M&O contract that includes 

options, the Contracting Officer need 

only determine the option was 

evaluated as part of the initial 

competition and contains a maximum 

fee. The Contracting Officer need not, 

for example: issue a new solicitation; 

informally analyze prices; or determine 

the option is the more advantageous 

offer. 

* * * * * 

■ 215. Section 970.1707–1 is revised to 

read as follows: 

970.1707–1 Scope. 

Pursuant to 42 U.S.C. 2053 and 7259a, 

DOE is authorized to make its facilities 

available to other Federal and nonFederal entities (sponsors) for the 

conduct of certain research and 

development and training activities. 

Pursuant to 31 U.S.C. 1535 and 42 

U.S.C. 7259a, or other applicable 

authority, other Federal entities may 


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Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Rules and Regulations 89783 

request DOE to conduct work. DOE has 

implemented these and other statutory 

authorities and requirements in its 

Strategic Partnership Projects Program. 

■ 216. Amend section 970.1707–3 by: 

■ a. Revising paragraph (a); 

■ b. Adding the word ‘‘and’’ at the end 

of paragraph (b)(2); 

■ c. Removing paragraph (b)(3) and 

redesignating paragraph (b)(4) as 

paragraph (b)(3); and 

■ d. Revising paragraph (c)(1). 

The revisions read as follows: 

970.1707–3 Terms governing strategic 

partnership projects. 

(a) DOE’s internal review and 

approval procedural requirements for 

strategic partnership projects 

agreements are set forth in the current 

version of DOE Order 481.1, and such 

other guidance as may be issued by 

DOE. 

* * * * * 

(c) * * * 

(1) The interagency agreement with 

DOE complies with the Economy Act of 

1932 (31 U.S.C. 1535) or other 

applicable statutory authorities and FAR 

6.002, which prohibits the use of an 

Interagency Agreement for the purpose 

of avoiding the competition 

requirements of the Federal Acquisition 

Regulation (48 CFR chapter 1); and 

* * * * * 

■ 217. Section 970.1707–4 is revised to 

read as follows: 

970.1707–4 Contract clause. 

Insert the clause at 970.5217–1, 

Strategic Partnership Projects Program 

(Non-DOE Funded Work), in any 

contract that may involve work under 

the Strategic Partnership Projects 

Program. 

■ 218. Sections 970.1708, 970.1708–1, 

970.1708–2, and 970.1708–3 are added 

to read as follows: 

Sec. 

970.1708 Agreements for commercializing 

technology (ACT). 

970.1708–1 Scope. 

970.1708–2 General. 

970.1708–3 Contract clause. 

970.1708 Agreements for commercializing 

technology (ACT). 

970.1708–1 Scope. 

The scope of this subpart is to provide 

authorization for the M&O contractor to 

conduct third party-sponsored research 

at the M&O contractor’s risk. 

970.1708–2 General. 

M&O contractors may elect to enter 

into agreements directly with nonFederal sponsors to conduct research at 

the facility the M&O contractor is 

responsible for managing and operating 

so long as the work does not present, or 

minimizes, any apparent COI, as well as 

avoiding or neutralizing any actual COI 

as a result of the agreement. This 

research is conducted at the M&O 

contractor’s risk and the M&O 

contractor may obtain compensation 

beyond full-cost recovery for accepting 

the risk of performance. 

970.1708–3 Contract clause. 

The Contracting Officer shall insert 

the clause at 970.5217–2, Agreements 

for Commercializing Technology (ACT), 

in any contract that may involve ACT 

pursuant to 970.1708. 

■ 219. Section 970.1907–8 is added to 

read as follows: 

970.1907–8 Contract clauses. 

(a) In accordance with FAR 

19.708(b)(1), the Contracting Officer 

shall insert the clause FAR 52.219–9, 

Small Business Subcontracting Plan, in 

all M&O solicitations and contracts. 

(b) The Contracting Officer shall 

supplement the clause at FAR 52.219– 

9 with the clause at 970.5219, Small 

Business Subcontracting Plan, in M&O 

solicitations and contracts, except for 

those for the Ames Laboratory and 

Princeton Plasma Physics Laboratory. 

The Contracting Officer may tailor the 

clause as needed. 

970.2201–1 [Redesignated as 970.2201– 

100] 

■ 220. Section 970.2201–1 is 

redesignated as section 970.2201–100. 

970.2201–1–1 [Redesignated as 970.2201– 

110] 

■ 221. Section 970.2201–1–1 is 

redesignated as section 970.2201–110. 

■ 222. Newly redesignated section 

970.2201–110 is revised to read as 

follows: 

970.2201–110 General. 

Contracting officers shall, in 

appropriate circumstances, follow the 

requirements in FAR subpart 22.1, as 

supplemented in this section, in the 

award and administration of: 

(a) Management and operating (M&O) 

contracts; 

(b) Contracts the Senior Procurement 

Executive designates; and 

(c) Non-M&O contracts where the 

current contract’s work was previously 

performed under an M&O contract and 

the current Contractor was required to, 

and did, employ the former Contractor’s 

legacy workforce. These non-M&O 

contracts may include, but are not 

limited to, contracts whose work is for: 

(1) Environmental remediation; 

(2) Decontamination and 

decommissioning; 

(3) Environmental restoration; 

(4) Infrastructure services for the site; 

(5) Site closure at a current or former 

M&O contract site or facility; or 

(6) Protective forces that provide 

physical security of sites at a current of 

former M&O contract site or facility. 

970.2201–1–2 [Redesignated as 970.2201– 

120] 

■ 223. Section 970.2201–1–2 is 

redesignated as section 970.2201–120. 

■ 224. Newly redesignated section 

970.2201–120 is revised to read as 

follows: 

970.2201–120 Policies. 

(a) The extent of Government 

ownership of the nation’s energy plant 

and materials, and the overriding 

concerns of national defense and 

security, impose special conditions on 

personnel and labor relations in the 

energy program. Such special 

conditions include the need for 

continuity of vital operations at DOE 

installations; retention by DOE of 

absolute authority on all questions of 

security in accordance with 10 CFR 

706.40; and DOE review of labor 

expenses under management and 

operating (M&O) contracts (and certain 

other contracts) to assure judicious 

expenditure of public funds. It is the 

intent of DOE that personnel and labor 

policies throughout the energy program 

reflect the best experience of American 

industry in aiming to achieve the type 

of stable labor-management relations 

that are essential to the proper 

development of the energy program. The 

following enunciates the principles 

upon which the DOE policy is based: 

(1) Employment standards. (i) M&O 

contractors (and certain other non-M&O 

contractors and subcontractors as 

described in 970.2201–110) are 

expected to bring experienced, proven 

personnel from their private operations 

to staff key positions on the contract and 

to recruit other well-qualified personnel 

as needed. Such personnel should be 

employed and treated during 

employment without discrimination by 

reason of race, color, religion, sex, age, 

disability, or national origin. 

Contractors are required to take 

affirmative action to achieve these 

objectives as required by, among other 

things, the clause at FAR 52.222–26. 

(ii) When the clause at 952.204–2, 

Security Requirements, is applicable 

(see 904.404), the Contracting Officer 

will obtain adequate assurance that the 

Contractor performed the required 

review of an uncleared applicant’s or of 

an uncleared employee’s background in 

its determination to select an individual 


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89784 Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Rules and Regulations 

for a position requiring a DOE access 

authorization. 

(2) Security. In accordance with 10 

CFR 706.40, on all matters of security at 

its facilities, DOE retains absolute 

authority. Neither the regulations or 

policies pertaining to security, nor their 

administration, are matters for collective 

bargaining between the contractor’s 

management and labor. Insofar as DOE 

security regulations affect the collective 

bargaining process, the security policies 

and regulations will be made known to 

both parties. To the fullest extent 

feasible, DOE will consult with 

representatives of the contractor’s 

management and labor when 

formulating security regulations and 

policies that may affect the collective 

bargaining process. 

(3) Wages, salaries, and employee 

benefits. The aspects of wages, hours, 

and working conditions which are the 

substance of collective bargaining in 

normal organized industries will be left 

to the orderly processes of negotiation 

and agreement between contractor 

management and employee 

representatives with maximum possible 

freedom from Government interference 

and consistent with paragraph (a)(5) of 

this section and 970.2201–140. 

(4) Employee relations. The handling 

of employee relations on contract work, 

including such matters as the conduct 

and discipline of the work force and the 

handling of employee grievances, is part 

of the normal management 

responsibility of the contractor. 

(5) Collective bargaining. (i) DOE 

review of collective bargaining practices 

will be premised on the view that 

management’s trusteeship for the 

operation of the Government facilities 

includes the duty to adopt practices 

(which experience has shown) that are 

fundamental to the equitable resolution 

of disputes and promote orderly 

collective bargaining relationships. 

Practices inconsistent with this view 

may be objected to if not found to be 

otherwise clearly warranted. 

(ii) Consistent with the policy of 

assuring continuity of operation of vital 

facilities, all collective bargaining 

agreements at DOE-owned facilities 

should provide that grievances and 

disputes involving the interpretation or 

application of the agreement will be 

settled without resorting to strike, 

lockout, or other interruption of normal 

operations. For purposes of this 

paragraph (a)(5)(ii), each collective 

bargaining agreement entered into 

during the period of performance of this 

contract should provide an effective 

grievance procedure with arbitration as 

its final step, unless the parties 

mutually agree upon some other method 

of assuring continuity of operation for 

the term of the collective bargaining 

agreement. 

(iii) DOE expects its management and 

operating contractors and the unions 

representing the contractor’s employees 

to cooperate fully with the Federal 

Mediation and Conciliation Service. 

(6) Personnel training. DOE 

encourages and supports personnel 

training programs aimed at improving 

work efficiency or developing needed 

skills which are not otherwise 

obtainable. 

(7) Working conditions. Accident, fire, 

health, and occupational hazards 

associated with DOE activities should 

be held to a practical minimum level 

and controlled in the interest of 

maintenance of health and prevention of 

accidents. Subject to DOE control, to the 

extent set forth in the terms and 

conditions of the contract, contractors 

are required to: 

(i) Maintain comprehensive 

continuous preventive and protective 

programs appropriate to the particular 

activities throughout all operations. 

(ii) Provide appropriate financial 

protection in case of occupational 

disability to employees. 

(b) Title to payroll and associated 

records under certain contracts (see 

970.0407–120) for the management and 

operation of DOE facilities, and for 

necessary miscellaneous construction 

incidental to the function of these 

facilities, shall vest in the Government. 

Such records are to be disposed of in 

accordance with the clause at 970.5232– 

3, Accounts, Records, and Inspection, 

and other DOE directions. For such 

contracts, the Solicitor of Labor has 

granted a tolerance from the Department 

of Labor regulations to omit from the 

prescribed labor clauses the requirement 

for the retention of payrolls and 

associated records for a period of three 

years after completion of the contract. 

Under this tolerance, the records 

retention requirements for all labor 

clauses in the contract and the Fair 

Labor Standards Act are satisfied by 

disposal of such records in accordance 

with applicable DOE directives. 

970.2201–1–3 [Redesignated as 970.2201– 

130] 

■ 225. Section 970.2201–1–3 is 

redesignated as section 970.2201–130. 

■ 226. Newly redesignated section 

970.2201–130 is revised to read as 

follows: 

970.2201–130 Contract clause. 

In addition to the clause at FAR 

52.222–1, Notice to the Government of 

Labor Disputes, the contracting officer 

shall insert the clause at 970.5222–1, 

Collective Bargaining Agreements— 

Management and Operating Contracts, 

in all M&O contracts and certain other 

non-M&O contracts as described in 

970.2201–110. The substance of the 

clause at 970.5222–1, Collective 

Bargaining Agreements, shall be 

included in any subcontract for 

protective services or other services 

performed on the DOE-owned site 

which will affect the continuity of 

operations of the facility. 

■ 227. Section 970.2201–140 is added to 

read as follows: 

970.2201–140 Wages, salaries, and 

employee benefits. 

(a) It is DOE policy that contractors 

facilitate the retention of certain 

critically skilled employees for: the 

management and operation of 

laboratories and other national defense 

and security site facilities; contracts 

designated by the Senior Procurement 

Executive; and certain other non-M&O 

contracts as described in 970.2201–100. 

Critically skilled employees are those 

employees whose specific recognized 

technical skills, knowledge, and 

experience in a specific field are critical 

to the operations or strategy of a 

contractor, and whose loss from the 

DOE contractor’s workforce system 

would cause a significant negative 

impact on achieving and supporting 

national research, environmental, 

defense, and security objectives. 

(b) Wages, salaries, and employee 

benefits shall be administered in a 

manner designated to adapt the normal 

practices and conditions of industry or 

institutions of higher education to the 

contract work, and to provide for 

appropriate review by DOE. 

(c) The contractor’s compensation 

systems and supporting policies should 

support the effective recruitment and 

retention of a highly skilled, motivated, 

and experienced workforce at a 

reasonable cost. For a cost to be 

allowable it must comply with each of 

the five requirements for allowability 

stated in FAR 31.201–2. Some of the 

specific details of the allowable costs for 

compensation for personal services are 

discussed at FAR 31.205–6, as 

supplemented by, 970.3102–506, and 

other pertinent parts of the DEAR and 

DOE directives and policies. 

970.2201–2 [Redesignated as 970.2201– 

200] 

■ 228. Section 970.2201–2 is 

redesignated as section 970.2201–200. 

970.2201–2–1 [Redesignated as 970.2201– 

210] 

■ 229. Section 970.2201–2–1 is 

redesignated as section 970.2201–210. 


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970.2201–2–2 [Redesignated as 970.2201– 

220] 

■ 230. Section 970.2201–2–2 is 

redesignated as section 970.2201–220. 

■ 231. Section 970.2204 is revised to 

read as follows: 

970.2204 Labor standards for contracts 

involving construction. 

The policy in 922.406–1 applies to 

M&O contracts. 

970.2204–1 and 970.2204–1–1 [Removed] 

■ 232. Sections 970.2204–1 and 

970.2204–1–1 are removed. 

■ 233. Section 970.2210 is revised to 

read as follows: 

970.2210 Service contract labor standards. 

The Service Contract Labor Standards, 

historically referred to as the Service 

Contract Act of 1965, is not applicable 

to contracts for the management and 

operation of DOE facilities, but it is 

applicable to subcontracts under such 

contracts (see 970.5244–1(x)). 

■ 234. Section 970.2270 is revised to 

read as follows: 

970.2270 Unemployment compensation. 

(a) Each state has its own 

unemployment compensation system to 

provide payments to workers who 

become unemployed involuntarily and 

through no fault of their own. These 

claims are payable by employers 

through the state unemployment 

insurance tax. Some entities such as 

nonprofits may be permitted to either 

pay in or opt out. These claims are 

payable either through the state 

unemployment insurance tax (pay in) or 

by reimbursing the state for actual 

claims paid out to former employees 

(opt out). 

(b) The predictability of paying claims 

through the state unemployment 

insurance tax is preferred and highly 

encouraged. However, an M&O 

contractor may choose to opt out. A 

contractor before deciding to opt out, 

generally performs an analysis of its 

workforce including size and stability of 

the workforce, historical turnover rate 

and historical payout data. This 

information may also be provided to 

state regulators who are interested in 

ensuring that employers who opt out 

establish an adequate reserve fund to 

reimburse the state for the claims that 

are processed for the company’s former 

employees. 

(c) When an M&O contractor opts out 

of paying for claims through the state’s 

unemployment insurance tax, as 

permitted and in accordance with state 

laws, regulations and guidelines, the 

reimbursement by DOE, in any given 

year, should generally be limited to the 

actual incurred cost, but no more than 

what would have been incurred had the 

contractor chosen to pay in. 

■ 235. Section 970.2270–2 is added to 

read as follows: 

970.2270–2 Contract clause. 

The Contracting Officer shall insert 

the clause at 970.5222–4, 

Unemployment Compensation, in all 

solicitations for an M&O contract and in 

all M&O contracts awarded to a 

nonprofit entity. When this is included 

in a contract or solicitation, the 

Contracting Officer shall fill in the 

appropriate number of calendar days. 

■ 236. Revise the heading for subpart 

970.23 to read as follows: 

970.23 Environment, Sustainable 

Acquisition, and Material Safety 

970.2301–1 [Removed and Reserved] 

■ 237. Section 970.2301–1 is removed 

and reserved. 

■ 238. Section 970.2301–2 is revised to 

read as follows: 

970.2301–2 Contract clauses. 

The Contracting Officer shall insert 

the clause at 952.223–78, Sustainable 

Acquisition Requirements, in all 

management and operating (M&O) 

contracts in accordance with 923.172. 

970.2303–2–70 [Redesignated as 

970.2303–2] 

■ 239. Section 970.2303–2–70 is 

redesignated as section 970.2303–2. 

970.2303–2 [Amended] 

■ 240. Amend newly redesignated 

section 970.2303–2 in paragraph 

(c)(2)(ii) by removing the text ‘‘the 

Office of Price Anderson Enforcement 

within the Office of the Assistant 

Secretary for Health, Safety and 

Security’’ and adding in its place ‘‘the 

Office of Enforcement within the Office 

of Enterprise Assessments’’. 

970.2305, 970.2305–1, 970.2305–2, 

970.2305–3, 970.2305–4, and 970.2306 

[Redesignated as 970.2605, 970.2605–1, 

970.2605–2, 970.2605–3, 970.2605–4, and 

970.2606] 

■ 241. Redesignate sections 970.2305, 

970.2305–1, 970.2305–2, 970.2305–3, 

970.2305–4, and 970.2306 as sections 

970.2605, 970.2605–1, 970.2605–2, 

970.2605–3, 970.2605–4, and 970.2606 

respectively. 

970.2605–2 [Amended] 

■ 242. Amend newly redesignated 

section 970.2605–2 in paragraph (b) by 

removing ‘‘48 CFR subpart 23.5’’ and 

adding ‘‘48 CFR subpart 26.5’’ in its 

place. 

970.2605–4 [Amended] 

■ 243. Amend newly redesignated 

section 970.2605–4 as follows: 

■ a. In paragraph (a) remove ‘‘970.5223– 

3’’ and add ‘‘970.5226–4’’ in its place; 

and 

■ b. In paragraph (b) remove ‘‘970.5223– 

4’’ and add ‘‘970.5226–5’’ in its place. 

970.2606 [Amended] 

■ 244. Amend newly redesignated 

section 970.2606 as follows: 

■ a. In paragraph (a) remove ‘‘48 CFR 

23.506’’ and add ‘‘48 CFR 26.505’’ in its 

place; 

■ b. In paragraph (a) remove ‘‘970.5223– 

4’’ and add ‘‘970.5226–5’’ in its place; 

and 

■ c. In paragraph (b) removing 

‘‘970.5223–3’’ and add ‘‘970.5226–4’’ in 

its place wherever it appears. 

■ 245. Section 970.2672–3 is revised to 

read as follows: 

970.2672–3 Contract clause. 

(a) The contracting officer shall insert 

the clause at 970.5226–2, Workforce 

Restructuring under section 3161 of the 

National Defense Authorization Act for 

Fiscal Year 1993, in contracts for the 

management and operation of 

Department of Energy Defense Nuclear 

Facilities and, as appropriate, in other 

contracts that include site management 

responsibilities at a Department of 

Energy Defense Nuclear Facility. 

(b) The contracting officer shall insert 

the clause at 952.226–74, Workforce 

Restructuring and Displaced Employee 

Hiring Preference, in contracts and 

subcontracts at any tier (except for 

contracts for commercial items, 

pursuant to 41 U.S.C. 403) which 

exceed $500,000 in value. 

■ 246. Section 970.2673–2 is revised to 

read as follows: 

970.2673–2 Contract clause. 

The contracting officer may insert the 

clause at 970.5226–3, Community 

Commitment, in management and 

operating contracts where community 

involvement will be required of the 

contractor. 

■ 247. Section 970.2701–1 is revised to 

read as follows: 

970.2701–1 Applicability. 

This subpart applies to negotiation of 

patent rights, rights in technical data 

provisions and other related provisions 

for the Department of Energy contracts 

for the management and operation of 

DOE’s major sites or facilities, including 

the conduct of research and 

development and nuclear weapons 

production, and contracts which 

involve major, long-term or continuing 


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activities conducted at a DOE site, 

including decontamination and 

decommissioning activities. 

■ 248. Section 970.2702 is revised to 

read as follows: 

970.2702 Patent and copyrights. 

970.2702–1 through 970.2702–6 

[Removed] 

■ 249. Sections 970.2702–1 through 

970.2702–6 are removed. 

■ 250. Section 970.2702–70 is added to 

read as follows: 

970.2702–70 Solicitation provision and 

contract clauses. 

(a) Authorization and consent. 

Contracting officers must include the 

clause at 970.5227–4, Authorization and 

Consent, instead of the clause at FAR 

52.227–1. 

(b) Notice and assistance regarding 

patent and copyright infringement. 

Contracting Officers must include the 

clause at 970.5227–5, Notice and 

Assistance Regarding Patent and 

Copyright Infringement, instead of the 

clause at FAR 52.227–2. 

(c) Patent indemnity. (1) Contracting 

Officers must include the clause at 

970.5227–6, Patent IndemnitySubcontracts, to assure that subcontracts 

appropriately address patent indemnity. 

(2) Normally, the clause at FAR 

52.227–3 would not be appropriate for 

an M&O contract; however, if there is a 

question, such as when the mission of 

the contractor involves production, the 

Contracting Officer must consult with 

DOE patent counsel and use the clause 

where appropriate. 

(d) Rights to proposal data. 

Contracting Officers must include the 

clause at FAR 52.227–23, Rights to 

Proposal Data (Technical), in all 

solicitations and contracts for the 

management and operation of DOE sites 

and facilities. 

(e) Notice of right to request patent 

waiver. Contracting Officers must 

include the provision at 970.5227–9 in 

all solicitations for contracts for the 

management and operation of DOE sites 

or facilities. 

(f) Royalties. Contracting Officers 

must include the solicitation provision 

at 970.5227–7, Royalty Information, and 

the clause at 970.5227–8, Refund of 

Royalties, instead of the provision at 

FAR 52.227–6 and the clause at FAR 

52.227–9, respectively. 

970.2703–1 [Amended] 

■ 251. Amend section 970.2703–1 by: 

■ a. Removing paragraph (b); and 

■ b. Redesignating paragraph (c) as 

paragraph (b). 

■ 252. Amend section 970.2703–2 by 

revising paragraphs (a), (b), and (c) and 

adding paragraph (h) to read as follows: 

970.2703–2 Patent rights clause 

provisions for management and operating 

contractors. 

(a) Allocation of principal rights: 

Bayh-Dole provisions. (1) If the M&O 

contractor is a nonprofit organization or 

small business firm as defined by 35 

U.S.C. 201, the clause at 970.5227–10 

must be inserted into the M&O contract, 

except when the M&O contract is for the 

operation of a DOE facility primarily 

dedicated to naval nuclear propulsion 

or weapons related programs. The 

patent rights clause at 970.5227–10 

allows the contractor to elect to retain 

title to inventions conceived or first 

actually reduced to practice in 

performance of work under the contract 

in accordance with 35 U.S.C. 200 et seq. 

(the Bayh-Dole Act). 

(2) If the M&O contractor is 

conducting privately funded technology 

transfer activities, involving the use of 

private funds to conduct licensing and 

marketing activities related to 

inventions made under the contract in 

accordance with the Bayh-Dole Act, 

DOE may modify the clause at 

970.5227–10 to address issues such as 

the disposition of royalties earned under 

the privately funded technology transfer 

program, the transfer of patent rights to 

a successor contractor, allowable cost 

restrictions concerning privately funded 

technology transfer activities, and the 

Government’s freedom from any 

liability related to licensing under the 

contractor’s privately funded technology 

transfer program. 

(b) Allocation of principal rights: 

Government title. (1) The clause at 

970.5227–11 must be incorporated into 

the M&O contract: 

(i) For any the M&O contractor that 

does not qualify as a nonprofit 

organization or small business firm as 

defined by 35 U.S.C. 201 and for which 

DOE has not granted a patent waiver 

pursuant to 10 CFR part 784; or 

(ii) If, without regard to the type of 

contractor, the M&O contract is for the 

operation of a DOE facility primarily 

dedicated to naval nuclear propulsion 

or weapons related programs. 

(2) The clause at 970.5227–11 requires 

the contractor to assign the Government 

title to inventions conceived or first 

actually reduced to practice in the 

course of or under an M&O contract in 

accordance with 42 U.S.C. 2182 and 

5908 (the Atomic Energy of 1954 and 

the Federal Nonnuclear Energy Act of 

1974). 

(c) Allocation of principal rights: 

Contractor right to elect title under a 

patent waiver. DOE may grant a patent 

waiver for an M&O contractor that does 

not qualify as a nonprofit organization 

or a small business firm pursuant to 10 

CFR part 784. The patent waiver would 

allow the contractor to elect to retain 

title to inventions made in the course of 

or under the M&O contract. When a 

patent waiver is granted that covers the 

M&O contractor, the clause at 970.5227– 

12 must be inserted into the M&O 

contract, instead of using the clause at 

970.5227–11. The clause at 970.5227–12 

may be modified by applicable patent. 

If the M&O contractor is conducting 

privately funded technology transfer 

activities, involving the use of private 

funds to conduct licensing and 

marketing activities related to 

inventions made under the contract, 

DOE may modify the patent rights 

clause to address issues such as the 

disposition of royalties earned under the 

privately funded technology transfer 

program, the transfer of patent rights to 

a successor contractor, allowable cost 

restrictions concerning privately funded 

technology transfer activities, and the 

Government’s freedom from any 

liability related to licensing under the 

contractor’s privately funded technology 

transfer program. 

* * * * * 

(h) Allocation of principal rights: 

Subcontractor rights to elect title under 

Bayh-Dole provisions. When the M&O 

contractor is issuing a subcontract to a 

nonprofit organization or small business 

firm as defined by 35 U.S.C. 201, the 

subcontractor retains all rights provided 

in the patent rights clause at 37 CFR 

401.3(a) and 401.14 and adding 

Alternate I of 48 CFR 952.227–11, Patent 

Rights-Retention by the Contractor, that 

includes the agency implementing 

regulations specific for DOE. If the S&E 

DEC, or any other related DEC to 

substantial U.S. manufacturing policy, 

is applicable, the Contractor shall 

include Alternate II of 48 CFR 952.227– 

11, Patent Rights-Retention by the 

Contractor. Alternate II modifies 37 CFR 

401.14 to: 

(1) Reflect DOE required 

subcontracting instructions pursuant to 

37 CFR 401.5(a) as well as the deletion 

of the definition of contractor that does 

not apply based on the subcontracting 

instructions; and 

(2) Include the U.S. competitiveness 

provision pursuant to the Determination 

of Exceptional Circumstances under the 

Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies executed by 

DOE on June 7, 2021. 


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■ 253. Amend section 970.2704–2 by 

revising paragraphs (a), (c)(2), and (e) to 

read as follows: 

970.2704–2 Procedures. 

(a) The clauses at 970.5227–1, Rights 

in Data—Facilities, and 970.5227–2, 

Rights in Data—Technology Transfer, 

both provide generally for Government 

ownership and for unlimited rights in 

the Government for all data first 

produced in the performance of the 

contract and unlimited rights in data 

specifically used in the performance of 

the contract. Both clauses provide that, 

subject to patent, security, and other 

provisions of the contract, the contractor 

may use contract data for its private 

purposes. The contractor, under either 

clause, must treat any data furnished by 

DOE or acquired from other Government 

agencies or private entities in the 

performance of their contracts in 

accordance with any restrictive legends 

contained therein. For Research and 

Development Contracting, requirements 

for R&D results conveyed in scientific 

and technical information are addressed 

in 935.010 and should be set forth as 

part of the contract. These contractual 

requirements are further addressed in 

DOE Order 241.1B, or its successor 

version, which sets forth requirements 

for scientific and technical information. 

* * * * * 

(c) * * * 

(2) Where, however, a subcontract is 

to be awarded by the management and 

operating contractor in connection with 

a program, as discussed at 927.404–71, 

which provides statutory authority to 

protect from public disclosure, data first 

produced under contracts awarded 

pursuant to the program, contracting 

officers shall ensure that the 

management and operating contractor 

includes in that subcontract the rights in 

data clause provided by DOE Patent 

Counsel, consistent with any 

accompanying guidance. 

* * * * * 

(e) The Rights in Data—Technology 

Transfer clause at 970.5227–2 differs 

from the clause at 970.5227–1, Rights in 

Data—Facilities, in the context of its 

more detailed treatment of copyright. In 

management and operating contracts 

that have technology transfer as a 

mission, the right to assert copyright in 

data first produced under the contract 

will be a valuable right, and 

commercialization of such data, 

including computer software, will assist 

the management and operating 

contractor in advancing the technology 

transfer mission of the contract. The 

clause at 970.5227–2, Rights in Data— 

Technology Transfer, provides for DOE 

approval of DOE’s taking a limited 

copyright license during the period in 

which the copyrighted data is being 

commercialized. The contractor must 

notify DOE (Patent Counsel and Office 

of Scientific and Technical Information 

(OSTI)) when commercial activity 

ceases. 

* * * * * 

■ 254. Section 970.2704–3 is revised to 

read as follows: 

970.2704–3 Contract clauses. 

(a) The contracting officer shall insert 

the clause at 970.5227–1, Rights in 

Data—Facilities, in management and 

operating contracts which do not 

contain the clause at 970.5227–2, Rights 

in Data—Technology Transfer. The 

Contracting Officer may insert, with 

concurrence of Patent Counsel, the 

clause at 970.5227–1, Rights in Data— 

Facilities, in other contracts where 

Government facilities are being 

constructed, modified, or in 

decontamination and decommissioning. 

The contracting officer shall include the 

clause with its Alternate I in contracts 

where access to Category C–24 restricted 

data, as set forth in 10 CFR part 725, is 

to be provided to contractors. The 

Contracting Officer shall include the 

clause with its Alternate II in contracts 

where Government facilities are being 

constructed, modified, or in 

decontamination and decommissioning, 

and it is anticipated that further 

solicitation may be required to complete 

the project. 

(b) The contracting officer shall insert 

the clause at 970.5227–2, Rights in 

Data—Technology Transfer, in 

management and operating contracts 

which contain the clause at 970.5227– 

3, Technology Transfer Mission. The 

contracting officer shall include the 

clause with its Alternate I in contracts 

where access to Category C–24 restricted 

data, as set forth in 10 CFR part 725, is 

to be provided to contractors. The 

Contracting Officer shall include the 

clause with its Alternate II in contracts 

where Government facilities are being 

constructed, modified, or in 

decontamination and decommissioning, 

and it is anticipated that further 

solicitation may be required to complete 

the project. 

■ 255. Amend section 970.2770–2 by 

adding a sentence after the first sentence 

to read as follows: 

970.2770–2 Policy. 

* * * All new awards for or 

extensions of existing DOE laboratory or 

weapon production facility M&O 

contracts shall include authorization for 

the M&O contractor to engage directly 

with third parties in Agreements for 

Commercializing Technology, under 

section 107 of the Department of Energy 

Research and Innovation Act, Public 

Law 115–246, by using 970.5217–2, 

Agreements for Commercializing 

Technology. * * * 

■ 256. Amend section 970.2803–1 by 

revising the subject heading and 

paragraph (b) to read as follows: 

970.2803–1 Workers’ compensation 

insurance. 

* * * * * 

(b) Assignment of responsibilities. (1) 

Office of Acquisition Management, 

other officials, and the Heads of 

Contracting Activities, consistent with 

their delegations of responsibility, shall 

assure management and operating 

contracts are consistent with the 

policies and requirements of paragraph 

(a) of this section. 

(2) In discharging assigned 

responsibility, the Heads of Contracting 

Activities shall— 

(i) Periodically review workers’ 

compensation insurance programs of 

management and operating contractors 

in the light of applicable workers’ 

compensation statutes to assure 

conformance with the requirements of 

paragraph (a) of this section; 

(ii) Evaluate the adequacy of coverage 

of ‘‘self-insured’’ workers’’ 

compensation programs; and 

(iii) Provide arrangements for the 

administration of any existing 

‘‘employees’’ benefit plans until such 

plans’’ are terminated. 

(3) Heads of Contracting Activities are 

responsible for approving management 

and operating contractor ‘‘employees’ 

benefit plans.’’ 

■ 257. Amend section 970.2803–2 by 

revising the second sentence to read as 

follows: 

970.2803–2 Contract clause. 

* * * Paragraphs (f)(1)(iii)(C) and 

(g)(2) of that clause apply to a nonprofit 

contractor only to the extent specifically 

provided in the individual contract. 

970.3101–00–70 [Redesignated as 

970.3101–1] 

■ 258. Section 970.3101–00–70 is 

redesignated as section 970.3101–1. 

■ 259. Section 970.3101–2 is added to 

read as follows: 

970.3101–2 Applicability. 

The cost principles of FAR subpart 

31.2 and this subpart apply regardless of 

entity type for the M&O contract. 

970.3101–10 [Amended] 

■ 260. Amend section 970.3101–10 by 

removing ‘‘970.4207–03–02’’ and adding 


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in its place ‘‘970.4207–302’’ wherever it 

appears 

970.3102–3–70 [Redesignated as 

970.3102–370] 

■ 261. Section 970.3102–3–70 is 

redesignated as section 970.3102–370. 

■ 262. In newly redesignated section 

970.3102–370 revise paragraph (a) 

introductory text and paragraph (a)(3)(i) 

to read as follows: 

970.3102–370 Home office expenses. 

(a) For on-site work, DOE’s fee for 

management and operating contracts, 

determined under the policy of and 

calculated per the procedures in 

970.1504–103, generally provides 

adequate compensation for home or 

corporate office general and 

administrative expenses incurred in the 

general management of the contractor’s 

business as a whole. 

* * * * * 

(3) * * * 

(i) Fee in addition to its normal fee; 

or 

* * * * * 

970.3102–05 [Redesignated as 970.3102– 

500] 

■ 263. Section 970.3102–05 is 

redesignated as section 970.3102–0500. 

970.3102–05–4 [Redesignated as 

970.3102–504] 

■ 264. Section 970.3102–05–4 is 

redesignated as section 970.3102–504. 

970.3102–05–6 [Redesignated as 

970.3102–506] 

■ 265. Section 970.3102–05–6 is 

redesignated as section 970.3102–506. 

■ 266. Newly redesignated section 

970.3102–506 is revised to read as 

follows: 

970.3102–506 Compensation for personal 

services. 

(a)(6) In determining the 

reasonableness of compensation, the 

compensation of each individual 

contractor employee normally need not 

be subjected to review and approval. 

Generally, the compensation paid 

individual employees should be left to 

the judgment of contractors subject to 

the limitations of DOE-approved 

compensation policies, programs, 

classification systems, and schedules, 

and amounts of money authorized for 

wage and salary increases for groups of 

employees. However, the contracting 

officer shall designate a compensation 

threshold appropriate for the particular 

situation. The contract shall specifically 

provide that contracting officer approval 

is required for compensating an 

individual contractor employee above 

the threshold if a total of 50 percent or 

more of such compensation is 

reimbursed under DOE cost-type 

contracts. 

(7)(i) Reimbursable costs for 

compensation for personal services are 

to be set forth in the contract. This 

compensation shall be set forth using 

the principles and policies of FAR 

31.205–6, Compensation for personal 

services, as supplemented by this 

section, and other pertinent parts of the 

DEAR. Costs that are unallowable under 

other contract terms shall not be 

allowable as compensation for 

personnel services. 

(ii) The contract sets forth, in detail, 

personnel costs and related expenses 

allowable under the contract and 

documents personnel policies, practices 

and plans which have been found 

acceptable by the contracting officer. 

The contractor will advise DOE of any 

proposed changes in any matters 

covered by these policies, practices, or 

plans which relate to personnel costs. 

Types of personnel costs and related 

expenses addressed in the contract are 

as follows: Salaries and wages; bonuses 

and incentive compensation; overtime, 

shift differential, holiday, and other 

premium pay for time worked; welfare 

benefits and retirement programs; paid 

time off, and salaries and wages to 

employees in their capacity as union 

stewards and committeemen for time 

spent in handling grievances, or serving 

on labor management (contractor) 

committees provided, however, that the 

contracting officer’s approval is required 

in each instance of total compensation 

to an individual employee above an 

annual rate as specified in the contract. 

Allowable costs of employee 

compensation shall be determined 

pursuant to FAR 31.205–6(p). 

970.3102–05–18 [Redesignated as 

970.3102–518] 

■ 267. Section 970.3102–05–18 is 

redesignated as section 970.3102–518 

970.3102–05–19 [Redesignated as 

970.3102–519] 

■ 268. Section 970.3102–05–19 is 

redesignated as section 970.3102–519. 

970.3102–05–22 [Redesignated as 

970.3102–522] 

■ 269. Section 970.3102–05–22 is 

redesignated as section 970.3102–522. 

970.3102–05–28 [Redesignated as 

970.3102–528] 

■ 270. Section 970.3102–05–28 is 

redesignated as section 970.3102–528. 

970.3102–05–30 [Redesignated as 

970.3102–530] 

■ 271. Section 970.3102–05–30 is 

redesignated as section 970.3102–530. 

970.3102–05–30–70 [Redesignated as 

970.3102–531] 

■ 272. Section 970.3102–05–30–70 is 

redesignated as section 970.3102–531. 

970.3102–05–33 [Redesignated as 

970.3102–533] 

■ 273. Section 970.3102–05–33 is 

redesignated as section 970.3102–533. 

970.3102–05–46 [Redesignated as 

970.3102–546] 

■ 274. Section 970.3102–05–46 is 

redesignated as section 970.3102–546. 

970.3102–05–47 [Redesignated as 

970.3102–547] 

■ 275. Section 970.3102–05–47 is 

redesignated as section 970.3102–547. 

970.3102–05–70 [Redesignated as 

970.3102–570] 

■ 276. Section 970.3102–05–70 is 

redesignated as section 970.3102–570. 

970.3200–1 [Amended] 

■ 277. Amend section 970.3200–1 in 

paragraph (c) by removing ‘‘remedy 

coordination official’’ and adding in its 

place ‘‘Head of the Contracting 

Activity’’. 

970.3200–1–1 [Redesignated as 970.3200– 

11] 

■ 278. Section 970.3200–1–1 is 

redesignated as section 970.3200–11. 

970.3270 [Amended] 

■ 279. Amend section 970.3270 by 

removing paragraph (a)(4) and 

redesignating paragraphs (a)(5) through 

(8) as paragraphs (a)(4) through (7), 

respectively. 

■ 280. Amend section 970.3501–1 by: 

■ a. Removing the period at the end of 

paragraph (c)(1) and adding a semicolon 

in its place; and 

■ b. Revising paragraph (c)(2). 

The revision reads as follows: 

970.3501–1 Sponsoring agreements. 

* * * * * 

(c) * * * 

(2) The plan for the identification, 

use, and disposition of retained 

earnings, if applicable; 

* * * * * 

■ 281. Section 970.3501–2 is revised to 

read as follows: 

970.3501–2 Using an FFRDC. 

The contractor may only accept work 

from a non-sponsor (as defined in FAR 

35.017) in accordance with the 


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requirements of the current DOE 

approved mechanisms for engaging with 

a non-sponsor (e.g., Strategic 

Partnership Projects, Cooperative 

Research and Development Agreements, 

and Agreements for Commercializing 

Technology). Only a Federal Contracting 

Officer can obligate the Government to 

place work on the contract and obligate 

the Government to reimburse the 

contractor under the contract. 

■ 282. Amend section 970.4102–1 by 

revising paragraphs (b) and (c) to read 

as follows: 

970.4102–1 Policy. 

* * * * * 

(b) Where it is determined to be in the 

best interest of the Government, a DOE 

contracting activity may authorize a 

management and operating contractor 

for a facility to acquire such utility 

service for the facility, after requesting 

and receiving concurrence to make such 

an authorization from the DOE Federal 

Energy Management Program (FEMP). 

Any request for such concurrence 

should be included in the Utility 

Acquisition Plan. Alternatively, it may 

be made in a separate document 

submitted to the FEMP Utility Program 

Manager early in the acquisition cycle. 

Any request shall set forth why it is in 

the best interest of the DOE to acquire 

utility service(s) by subcontract, i.e., low 

performance risk and cost risk. For 

NNSA programs, FEMP review and 

technical input may be obtained, but 

FEMP concurrence is not necessary. 

(c) The requirements of FAR part 41 

and this section shall be applied to a 

subcontract level acquisition for 

furnishing utility services to a facility 

owned or leased by DOE. 

970.4207–03–02 [Redesignated as 

970.4207–302] 

■ 283. Section 970.4207–03–02 is 

redesignated as section 970.4207–302. 

970.4207–03–70 [Redesignated as 

970.4207–370] 

■ 284. Section 970.4207–03–70 is 

redesignated as section 970.4207–370. 

970.4207–05–01 [Redesignated as 

970.4207–501] 

■ 285. Section 970.4207–05–01 is 

redesignated as section 970.4207–501. 

■ 286. Amend newly redesignated 

section 970.4207–501 by revising 

paragraph (b)(4)(ii) to read as follows: 

970.4207–501 Contracting officer 

determination procedure. 

(b) * * * 

(4) * * * 

(ii) The opinion of the Department of 

Energy’s auditor on the allowability of 

such costs if such costs have been the 

subject of a DOE audit. 

* * * * * 

■ 287. Amend section 970.4401–1 by 

revising paragraph (b)(4) to read as 

follows: 

970.4401–1 General. 

* * * * * 

(b) * * * 

(4) Ensure that periodic appraisals of 

the contractor’s management of all 

facets of the purchasing function, 

including compliance with the 

contractor’s approved system and 

methods, are performed by the 

contracting officer. 

* * * * * 

■ 288. Amend section 970.4402–1 by 

adding paragraph (c) to read as follows: 

970.4402–1 Policy. 

* * * * * 

(c) The M&O contractor’s purchasing 

performance, including compliance 

with the contractor’s approved system 

and methods, will be evaluated against 

the performance criteria and measures 

set forth in FAR subpart 44.3, using the 

procedures articulated in DOE policies 

including DOE guidance on oversight of 

M&O Contractors’ Purchasing Systems. 

■ 289. Section 970.4501–1 is revised to 

read as follows: 

970.4501–1 Applicability. 

This subpart is applicable to 

management and operating (M&O) 

contractors, and on-site environmental 

management and other major prime 

contractors as designated by the Senior 

Procurement Executive, or designee. 

This subpart supplements 41 CFR part 

109. 

■ 290. Section 970.4501–2 is added to 

read as follows: 

970.4501–2 Contract clause. 

(a) The contracting officer shall insert 

the clause at 970.5245–1, Property, in 

management and operating contracts 

and environmental management, and 

other major prime contractors located at 

DOE sites. Specific managerial 

personnel may be listed in paragraph (k) 

of the clause at 970.5245–1, provided 

their listing is consistent with the clause 

and the DEAR. 

(b) The contracting officer shall insert 

the basic clause at 970.5245–1 with its 

Alternate I in contracts with nonprofit 

contractors. 

■ 291. Amend section 970.5203–1 by 

revising the introductory text to read as 

follows: 

970.5203–1 Management controls. 

As prescribed in 970.0370–2(a), insert 

the following clause: 

* * * * * 

970.5204–1 [Removed] 

■ 292. Section 970.5204–1 is removed. 

■ 293. Amend section 970.5204–3 by 

revising the introductory text, clause 

date, and paragraphs (b) and (g) to read 

as follows: 

970.5204–3 Access to and ownership of 

records. 

As prescribed in 970.0407–130, insert 

the following clause: 

Access to and Ownership of Records 

[December 2024] 

* * * * * 

(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 nonemployee patient medical/health-related 

records, except those records described 

by the contract as being operated and 

maintained by the Contractor in Privacy 

Act system of records. 

* * * * * 

(g) Subcontracts. 

(1) The contractor shall include the 

requirements of this clause in all 

subcontracts that contain the Radiation 

Protection and Nuclear Criticality clause 

at 48 CFR 952.223–72, or whenever an 

on-site subcontract scope of work: 

(i) Could result in potential exposure 

to: 

(A) Radioactive materials; 

(B) Beryllium; or 

(C) Asbestos; or 

(ii) Involves a risk associated with 

chronic or acute exposure to toxic 

chemicals or substances or other 

hazardous materials that can cause 

adverse health impacts, in accordance 

with 10 CFR part 851. In determining its 

flow-down responsibilities, the 

Contractor shall include the 

requirements of this clause in all on-site 

subcontracts where the scope of work is 

performed in: 


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(A) Radiological areas and/or 

radioactive materials areas (as defined at 

10 CFR 835.2); 

(B) Areas where beryllium 

concentrations exceed or can reasonably 

be expected to exceed action levels 

specified in 10 CFR part 850; 

(C) An asbestos regulated area (as 

defined at 29 CFR 1926.1101 or 

1910.1001); or 

(D) A workplace where hazard 

prevention and abatement processes are 

implemented in compliance with 10 

CFR 851.21 to specifically control 

potential exposure to toxic chemicals or 

substances or other hazardous materials 

that can cause long term health impacts. 

(2) The Contractor may elect to take 

on the obligations of the provisions of 

this clause in lieu of the subcontractor 

and maintain records that would 

otherwise be maintained by the 

subcontractor. 

(End of clause) 

■ 294. Section 970.5215–1 is revised to 

read as follows: 

970.5215–1 Total available fee: Base fee 

amount and performance fee amount. 

As prescribed in 970.1504–3(a), insert 

the following clause. 

Total Available Fee: Base Fee Amount 

and Performance Fee Amount 

[December 2024] 

(a) Total available fee. Total available 

fee, consisting of a base fee amount 

(which may be zero) and a performance 

fee amount (consisting of an incentive 

fee component for objective 

performance requirements, an award fee 

component for subjective performance 

requirements, or both) determined in 

accordance with the provisions of this 

clause, is available for payment in 

accordance with the clause of this 

contract entitled, ‘‘Payments and 

advances.’’ 

(b) Fee negotiations. For any fee 

negotiations under this contract, at any 

time prior to the beginning of the 

evaluation period the negotiations 

cover, the Contracting Officer and 

Contractor shall attempt to reach 

agreement on: the requirements for the 

evaluation period including, if 

appropriate, the evaluation areas and 

individual requirements subject to 

incentives; the total available fee 

amount of the evaluation period; and 

the allocation of the total available fee 

amount. If agreement is reached prior to 

the beginning of the evaluation period, 

the Contracting Officer shall modify the 

contract to reflect the agreement. If 

agreement is not reached prior to the 

beginning of the evaluation period, the 

Contracting Officer will, prior to the 

beginning of the evaluation period, 

unilaterally determine: the requirements 

of the evaluation period including, if 

appropriate, the evaluation areas and 

individual requirements subject to 

incentives, the total available fee 

amount, and the allocation of the total 

available fee amount. The Contracting 

Officer shall modify the contract to 

reflect the determination. 

(c) Determination of total available fee 

amount earned. (1) The Department of 

Energy (DOE) shall, at the conclusion of 

each specified evaluation period, 

evaluate the Contractor’s performance of 

all requirements, and determine the 

total available fee amount earned. At 

DOE’s discretion, if the contact 

established specific incentivized 

requirements and a schedule for their 

completion and the Contractor 

completes them during the evaluation 

period, DOE may evaluate the 

Contractor’s performance upon the 

requirements’ completion. The 

Contractor agrees the determination of 

the total available fee amount earned is 

a unilateral determination made by the 

Fee Determining Official (FDO). DOE 

will identify the FDO. The FDO will be 

the DOE Operations/Field Office 

Manager, or another DOE official 

designated by the Assistant Secretary or 

equivalent (not delegable). 

(2) If the award fee cycle consists of 

one evaluation period, award fee not 

earned during the evaluation period 

shall not be allocated to future 

evaluation periods. At the sole 

discretion of DOE, if the award fee cycle 

consists of more than one evaluation 

period, award fee not earned during the 

evaluation period may be allocated to 

future evaluation periods within the 

same award fee cycle. 

(3) Following each evaluation period, 

the Contractor [insert may or shall] 

submit a self-assessment within [insert 

number] calendar days after the end of 

the period. This self-assessment shall 

address both the strengths and 

weaknesses of the Contractor’s 

performance during the evaluation 

period. Where deficiencies in 

performance are noted, the Contractor 

shall describe the actions planned or 

taken to correct them and avoid their 

recurrence. The FDO will review the 

Contractor’s self-assessment as part of 

the evaluation of the Contractor’s 

performance during the period. 

(4) The FDO will evaluate the 

Contractor’s performance in accordance 

with the Performance Evaluation and 

Measurement Plan (PEMP) described in 

paragraph (d) of this clause unless 

otherwise set forth in the contract. The 

Contractor shall be promptly advised in 

writing of the total available fee amount 

earned determination and the basis of 

the determination. 

(d) PEMP. To the extent not set forth 

elsewhere in the contract: 

(1) DOE shall establish a PEMP upon 

which the determination of the total 

available fee amount earned shall be 

based. The PEMP will address all of the 

requirements of contract performance 

specified in the contract directly or by 

reference. The Contracting Officer shall 

provide the Contractor with a copy of 

the PEMP before the start of an 

evaluation period. 

(2) The PEMP will set forth the 

criteria upon which the Contractor will 

be evaluated relating to any technical, 

schedule, management, and/or cost 

objectives selected for evaluation. The 

PEMP will include, per 48 CFR 16.402– 

1, a cost incentive (or constraint). The 

criteria in the PEMP should be objective 

but may also include subjective criteria. 

The PEMP will set forth the method by 

which the total available fee amount 

will be allocated, and the total available 

fee amount earned will be determined. 

(3) The PEMP may be revised, either 

unilaterally (by DOE) or bilaterally, 

during the evaluation period. If it is 

revised, the Contracting Officer shall 

notify the contractor— 

(i) Of unilateral revisions (unless they 

are urgent and high priority) at least 

ninety calendar days prior to the end of 

the evaluation period and at least thirty 

calendar days prior to the effective date 

of the revision; 

(ii) Of bilateral revisions (unless they 

are urgent and high priority) at least 

sixty calendar days prior to the end of 

the evaluation period; 

(iii) Of urgent and high priority 

revisions, whether made unilaterally or 

bilaterally, at least thirty calendar days 

prior to the end of the evaluation 

period. 

(e) Schedule for total available fee 

amount earned determinations. The 

FDO shall issue the final total available 

fee amount earned determination in 

accordance with the schedule set forth 

in the PEMP or as otherwise set forth in 

this contract. 

(1) The determination for the 

evaluation period must be made within 

the later of: sixty calendar days after the 

receipt by the Contracting Officer of the 

Contractor’s self-assessment, if one is 

required or permitted; seventy calendar 

days after the end of the evaluation 

period; or a longer period if the 

Contractor and Contracting Officer 

agree. 

(2) If the FDO elects to evaluate the 

Contractor’s performance of any specific 

requirements upon their completion, the 

determination of any fee amount earned 

must be made: within seventy calendar 


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days of the requirements’ completion; or 

a longer period if the Contractor and 

Contracting Officer agree. 

(3) If the determination is not made 

within the periods stated above, the 

Contractor shall be entitled to interest 

on the total available fee amount earned 

at the rate established by the Secretary 

of the Treasury under section 12 of the 

Contract Disputes Act of 1978 (41 U.S.C. 

7109) that is in effect on the payment 

date. This rate is referred to as the 

‘‘Renegotiation Board Interest Rate,’’ 

and is published in the Federal Register 

semiannually on or about January 1 and 

July 1. The interest on any late total 

available fee amount earned 

determination will accrue daily and be 

compounded in 30-day increments 

inclusive from the first day after the 

schedule determination date through 

the actual date the determination is 

made. That is, interest accrued at the 

end of any 30-day period will be added 

to the total available fee amount earned 

and be subject to interest if not paid in 

the succeeding 30-day period. 

(End of clause) 

■ 295. Section 970.5215–3 is revised to 

read as follows: 

970.5215–3 Conditional payment of fee, 

profit, and other incentives—facility 

management contracts 

As prescribed in 970.1504–3(b), insert 

the following clause: 

Conditional Payment of Fee, Profit, and 

Other Incentives—Facility Management 

Contracts [December 2024] 

(a) Definitions. ‘‘Amount of payment 

for otherwise earned fee, fixed fee, 

profit, or other incentives for an 

evaluation period’’ means the quantity 

the Contracting Officer or Fee 

Determining Official determines the 

Contractor is due for its performance in 

consideration of the Performance 

Evaluation and Measurement Plan, 

Award Fee Plan, or similar document 

prior to a separate determination that 

the Contractor did not comply with a 

term or condition of the contract or 

experienced a failure relating to: 

environment, safety, and health or 

security or safeguarding of Restricted 

Data and other classified information. If 

the contract includes incentives 

allocable to more than one evaluation 

period, the amount of payment for 

otherwise earned fee, fixed fee, profit, or 

other incentives for an evaluation 

period includes the allocable amount of 

payment for each such incentive for 

otherwise earned fee, fixed fee, profit, or 

other incentives. The allocable amount 

is the total amount divided by the 

number of evaluation periods the 

incentive covered. ‘‘Amount actually 

payable to the Contractor for an 

evaluation period’’ means: (the amount 

of payment for otherwise earned fee, 

fixed fee, profit, or other incentives for 

the evaluation period) less (the amount 

of any reduction under this clause and 

the amount of any reductions under 

other clauses to the amount of payment 

for otherwise earned fee, fixed fee, 

profit, or other incentives for the 

evaluation period). 

(b) General. (Note: If this contract 

does not include the Security 

Requirements clause (48 CFR 952.204– 

2), the requirements of this clause 

related to security or safeguarding of 

Restricted Data and other classified 

information do not apply.) 

(1) The amount of payment of 

otherwise earned fee, fixed fee, profit, or 

other incentives for any evaluation 

period under this contract is dependent 

upon the Contractor’s and the 

Contractor’s employees’ compliance 

during the evaluation period with the 

performance requirements of this 

contract relating to: 

(i) Environment, safety and health 

(ES&H), which includes worker safety 

and health (WS&H); and 

(ii) Security or 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 

Integrated Safety Management System 

(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 security or safeguarding of 

Restricted Data and other classified 

information performance requirements 

of this contract are set forth in: the 

clause of this contract entitled, 

‘‘Security Requirements’’; the clause of 

this contract entitled ‘‘Laws, 

Regulations, and DOE Directives’’; and 

other terms and conditions of this 

contract. 

(4) If the Contractor does not meet the 

performance requirements of this 

contract relating to ES&H or security or 

safeguarding of Restricted Data and 

other classified information during any 

evaluation period established under the 

contract pursuant to the clause of this 

contract entitled ‘‘Total Available Fee: 

Base Fee Amount and Performance Fee 

Amount,’’ the amount of payment of 

otherwise earned fee, fixed fee, profit or 

other incentives for the evaluation 

period may be unilaterally reduced by 

the Contracting Officer. 

(c) Amount of Reduction. (1) The 

Contracting Officer will unilaterally 

determine the amount of reduction to 

the amount of payment for otherwise 

earned fee, fixed fee, profit, or other 

incentives for an evaluation period 

based on the severity of the performance 

failure pursuant to the degrees of failure 

specified in paragraphs (e) and (f) of this 

clause. The percent reduction for each 

performance failure will be: not less 

than 26% nor more than 100% for a first 

degree failure; not less than 11% or 

more than 26% for a second degree 

failure; and no more than 11% for a 

third degree failure. 

(2) For a reduction allocable to more 

than one evaluation period, the 

Government will effect the allocation at 

the end of the evaluation period in 

which it determines the total amount of 

the reduction. The allocable amount is 

the total reduction amount divided by 

the number of evaluation periods the 

reduction covered. 

(3) The Government will reduce the 

payment of otherwise earned fee, fixed 

fee, profit, or other incentives 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 

practicable after becoming aware. 

(4) In determining the reduction and 

in applying the mitigating factors, the 

Contracting Officer must consider the 

Contractor’s overall performance in 

meeting the ES&H, and security or 

safeguarding of Restricted Data and 

other classified information 

performance requirements of the 

contract. Such consideration must 

include performance against any sitespecific performance criteria/ 

requirements that provide additional 

definition or guidance for the amount of 

reduction or for the applicability of 

mitigating factors. In all cases, the 

Contracting Office must consider 

mitigating factors that may warrant a 

reduction below the reduction that 

would be appropriate absent mitigating 

factors. Mitigating factors include, but 

are not limited to, the following 

(paragraphs (c)(4)(v), (vi), (vii), and (viii) 

of this clause apply to ES&H only): 

(i) Degree of control the Contractor 

had over the event or incident; 

(ii) Efforts the Contractor 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 


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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; 

(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); and 

(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. 

(d) Reductions to the amount of 

payments the Contractor has received 

for earned fee, fixed fee, profit, or other 

incentives under this and other clauses. 

(1) The amount of the reduction under 

this clause for an evaluation period, in 

combination with the amount of any 

reduction under any other clause, shall 

not exceed the amount of payment for 

otherwise earned fee, fixed fee, profit, or 

other incentives for the evaluation 

period. 

(2) If at any time during the contract 

any reductions under this clause or 

other clauses result in the sum of the 

amount of payments the Contractor has 

received for earned fee, fixed fee, profit, 

or other incentives to exceed the sum of 

the amounts of actually payable to the 

Contractor, the Contractor shall 

immediately return the excess to the 

Government. 

(3) At the end of the contract— 

(i) The Government will pay the 

Contractor the amount by which the 

sum of amounts actually payable to the 

Contractor exceeds the sum of the 

payments the Contractor has received; 

or 

(ii) The Contractor shall return to the 

Government the amount by which the 

sum of the payments the Contractor has 

received exceeds the sum of the 

amounts actually payable to the 

Contractor. 

(e) 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 applicable ES&H laws, 

regulations, DOE directives, and 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 

most adverse to ES&H are first degree. 

They include: 

(i) Failure to develop and obtain 

required DOE approval of an ISMS. (The 

Government will perform necessary 

reviews in a timely manner and not 

unreasonably withhold approval.) 

(ii) Performance failures determined, 

per applicable ES&H laws, regulations, 

or DOE directives, to have resulted in, 

or that could reasonably be expected to 

result in, serious injury or death to a 

worker. 

(iii) Occurrence of any accident or 

event that meets the criteria of 

Appendix A of DOE Order 225.1B (or 

successor Order) and results in a 

determination to conduct a Federal 

Accident Investigation Board. 

(2) Second Degree. Performance 

failures significantly adverse to ES&H 

are second degree. They include: 

(i) Failures to comply with an 

approved ISMS. 

(ii) Failures that have been 

determined, per applicable ES&H laws, 

regulations, or DOE directives, to have 

resulted in, or could reasonably be 

expected to result in, an actual injury, 

exposure, or exceedance that occurred 

or nearly occurred but had minor 

practical long-term health 

consequences. 

(iii) A breakdown of the Safety 

Management System. 

(iv) The following performance 

failures or performance failures of 

similar import will be considered 

second degree: 

(A) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives actually resulting in an 

accident that meets the criteria of 

Appendix A of DOE Order 225.1B (or 

successor Order) but not resulting in a 

determination to conduct a Federal 

Accident Investigation Board. 

(B) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives that results in a near miss of 

an accident or event that could have 

resulted in an adverse effect and a 

determination to conduct a Federal 

Accident Investigation Board. (A near 

miss is a situation in which an 

inappropriate action occurs, or a 

necessary action is omitted, that does 

not result in an adverse effect.) 

(3) Third Degree. Performance failures 

determined per applicable ES&H laws, 

regulations, or DOE directives to reflect 

a lack of focus on improving ES&H are 

third degree. They include: 

(i) Non-compliance with applicable 

ES&H laws, regulations, or DOE 

directives actually resulting in potential 

breakdown of the Safety Management 

System. The following performance 

failures or performance failures of 

similar import will be considered third 

degree: 

(A) Failure to implement effective 

corrective actions to address 

deficiencies/non-compliances 

documented through: external (e.g., 

Federal) oversight and/or reported per 

DOE Order 231.B (or successor Order) 

requirements; or internal oversight of 10 

CFR parts 830, 835, 850, and 851, or 

DOE Orders 227.1A and 436.1 (or 

successor Order) requirements. 

(B) Multiple similar non-compliances 

identified by external (e.g., Federal) 

oversight that in aggregate indicate a 

significant programmatic breakdown. 

(C) Non-compliances that have, or 

may have, significant negative impacts 

to the worker, the public, or the 

environment or that indicate a 

significant programmatic breakdown. 

(D) Failure to notify DOE upon 

discovery of events or conditions where 

notification is required by the terms and 

conditions of the contract. 

(f) Security or 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 

other incentives will be determined are 

as follows: 

(1) First Degree. Performance failures 

determined, in accordance with 

applicable law, regulation, or DOE 

directive, to have resulted in, or that can 

reasonably be expected to result in, 

exceptionally grave damage to the 

national security are first degree. The 

following are examples: 

(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 weaponsrelated 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 an SAP, information 

identified as SCI, or high risk nuclear 

weapons-related data. 


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(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 an 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. Performance 

failures 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 are second degree. The 

following are examples: 

(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 Secret Restricted Data or 

other classified information regardless 

of classification (except for information 

covered by paragraph (f)(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. Performance failures 

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 are third degree. This 

category also 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 that if 

identified and corrected early would 

prevent serious incidents. The following 

are examples: 

(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 that by 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. 

(End of clause) 

970.5215–4 [Removed] 

■ 296. Section 970.5215–4 is removed. 

■ 297. Section 970.5215–5 is revised to 

read as follows: 

970.5215–5 Limitation on fee. 

As prescribed in 970.1504–3(c), insert 

the following provision: 

Limitation on Fee [December 2024] 

(a) For the purpose of this solicitation, 

fee amounts shall not exceed the total 

available fee allowed by the fee policy 

at 48 CFR 970.1504–101, or as 

specifically stated elsewhere in the 

solicitation. 

(b) The Government reserves the 

unilateral right, in the event an offeror’s 

proposal is selected for award, to limit 

the total available fee to an amount 

allowed by the fee policy at 48 CFR 

970.1504–101 unless specifically stated 

in this solicitation. 

(End of provision) 

■ 298. Section 970.5217–1 is revised to 

read as follows: 

970.5217–1 Strategic partnership projects 

program. 

As prescribed in 970.1707–4, insert 

the following clause: 

Strategic Partnership Projects Program 

(Non-DOE Funded Work) [December 

2024] 

(a) Authority to perform Strategic 

Partnership Projects. Pursuant to the 

Atomic Energy Act of 1954, as amended 

(42 U.S.C. 2011 et seq.) the Contractor 

may perform work for non-DOE entities 

(sponsors) on a fully reimbursable basis 

in accordance with this clause. For 

instances in which the Atomic Energy 

Act of 1954 does not apply, and no 

other specific authority applies, DOE 

may use the Economy Act of 1932, as 

amended (31 U.S.C. 1535), as authority 

to accept and perform the work. 

(b) Contractor’s implementation. The 

Contractor must draft, implement, and 

maintain formal policies, practices, and 

procedures in accordance with this 

clause, which must be submitted to the 

Contracting Officer for review and 

approval. 

(c) Conditions of participation in 

Strategic Partnership Projects program. 

The Contractor— 

(1) Must not perform Strategic 

Partnership Projects (SPP) activities that 

would place it in direct competition 

with the domestic private sector; 

(2) Must not respond to a request for 

proposals or any other solicitation from 

another Federal agency or non-Federal 

organization that involves direct 

comparative competition, either as an 

offeror, team member, or subcontractor 

to an offeror; however, the Contractor 

may, following notification to the 

Contracting Officer, respond to Broad 

Agency Announcements, Financial 

Assistance solicitations, and similar 

solicitations from another Federal 

Agency or non-Federal organizations 

when the selection is based on merit or 

peer review, the work involves basic or 

applied research to further advance 

scientific knowledge or understanding, 

and a response does not result in direct, 

comparative competition; 

(3) Must not commence work on any 

SPP project until it has been approved 

by the DOE Contracting Officer or 

designated representative or, if it 

includes support for a Special Access 

Program (SAP), receives formal approval 

outlined in DOE Order 471.5 (or its 

successor), or the work falls under an 

approved Master Scope of Work (MSW); 

(4) Must not incur project costs until 

receipt of DOE notification that a 

budgetary resource is available for the 

project, except as provided in 48 CFR 

970.5232–6; 

(5) Must ensure that all costs 

associated with the performance of the 

work under a SPP project are included 

in the project’s cost estimate, as 

provided for in the current version of 


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DOE Order 522.1, Pricing of 

Departmental Materials and Services, 

including specifically all DOE direct 

costs and applicable surcharges; 

(6) Must maintain records for the 

accumulation of costs and the billing of 

such work to ensure that DOE’s 

appropriated funds are not used in 

support of SPP projects and to provide 

an accounting of the expenditures to 

DOE and the sponsor upon request; 

(7) Must perform all SPP projects in 

accordance with the standards, policies, 

and procedures that apply to 

performance under this contract, 

including but not limited to 

environmental, safety and health, 

security, safeguards and classification 

procedures, and human and animal 

research regulations; 

(8) May subcontract portion(s) of a 

SPP project; however, the Contractor 

must select the subcontractor and the 

work to be subcontracted. Any 

subcontracted work must be in direct 

support of the Contractor’s performance 

as defined in the DOE approved SPP 

project; 

(9) Must maintain a summary listing 

of project information for each active 

SPP project, consisting of— 

(i) Sponsoring agency; 

(ii) Total estimated costs; 

(iii) Project title and description; 

(iv) Project point of contact; and 

(v) Estimated start and completion 

dates; and 

(10) May use a Master Scope of Work 

(MSW) as defined in 48 CFR 970.5227– 

3 for a SPP project. 

(d) Negotiation and execution of 

Strategic Partnership Projects 

agreement. (1) When delegated 

authority by the Contracting Officer, the 

Contractor may negotiate the terms and 

conditions that will govern the 

performance of a specific SPP project. 

Such terms and conditions must be 

consistent with the terms, conditions, 

and requirements of the Contractor’s 

contract with DOE. The Contractor may 

use DOE-approved contract terms and 

conditions as delineated in the current 

version of DOE Order 481.1 or terms 

and conditions previously approved by 

the responsible Contracting Officer or 

authorized designee for agreements with 

non-Federal entities. The Contractor 

must not hold itself out as representing 

DOE when negotiating the proposed 

SPP agreement. 

(2) With the exception of a SPP 

project using a Contracting Officer 

approved MSW, the Contractor must 

submit all SPP projects to the DOE 

Contracting Officer for DOE review and 

approval. The Contactor shall also 

include in any request for DOE SPP 

project approval a listing of any 

associated background intellectual 

property having a prior assignment, 

exclusive licensing or option for 

exclusive licensing. The Contractor may 

not start work under a SPP project until 

it has received notice of DOE approval 

except when the work falls under an 

approved MSW. 

(3) The Contractor is authorized to 

reserve the intellectual property 

indemnity clause for Federally-funded 

sponsors, state and local governments 

and public universities. The Contractor 

is further authorized to include in 

subcontracts with other domestic 

sponsors (i.e., private universities and 

small and large businesses) a warranty 

provision in lieu of a patent 

indemnification clause. 

(e) Preparation of Strategic 

Partnership Projects project proposals. 

When the Contractor proposes to 

perform SPP projects pursuant to this 

clause, it may assist the project sponsor 

in the preparation of the proposed SPP 

project including the preparation of cost 

estimates. 

(f) Strategic Partnership Projects 

appraisals. DOE may conduct periodic 

appraisals of the Contractor’s 

compliance with its SPP policies, 

practices and procedures. The 

Contractor must provide facilities and 

other support in conjunction with such 

appraisals as directed by the Contracting 

Officer or authorized designee. 

(g) Annual Strategic Partnership 

Projects report. The Contractor must 

provide assistance as required by the 

Contracting Officer or authorized 

designee in the preparation of a DOE 

Annual Summary Report of Strategic 

Partnership Projects Activities under the 

contract. 

(End of clause) 

■ 299. Section 970.5217–2 is added to 

read as follows: 

970.5217–2 Agreements for 

commercializing technology. 

As prescribed in 970.1708–3, insert 

the following clause: 

Agreements for Commercializing 

Technology (Act) [December 2024] 

(a) This clause authorizes the use of 

the mechanism, Agreements for 

Commercializing Technology (ACT). In 

accordance with the requirements 

specified in this clause, the M&O 

Contractor may conduct third partysponsored research at the M&O 

Contractor’s risk. While the Department 

believes ACT has the potential to greatly 

assist in the commercialization of 

technologies, it also specifically 

recognizes that ACT can be used for 

other engagements with outside entities 

that are not necessary aimed at 

commercialization (e.g., technical 

assistance, training, studies), but that 

facilitate access to DOE facilities. In 

performing ACT work, the M&O 

Contractor may use staff and other 

resources associated with this M&O 

contract for the purposes of conducting 

technical services, training, studies, 

performing research and development, 

and/or furthering the technology 

transfer mission of the Department, only 

when such work does not interfere with 

DOE-funded activities conducted as 

authorized by other parts of this M&O 

contract. Any allocation of resources 

that adversely affects work for DOE due 

to performing ACT work is the 

responsibility of the M&O Contractor. 

The resources that may be used include 

Government-owned or leased facilities, 

equipment, or other property that is 

either in the M&O Contractor’s custody 

or available to the M&O Contractor 

under this M&O contract (unless 

specifically excluded by the Contracting 

Officer). For M&O Contractor activities 

conducted under authority of this 

clause, the M&O Contractor shall 

provide full-cost recovery, assume 

indemnification and liability as 

provided in paragraph (b)(9) below, and 

may assume other risks normally borne 

by private parties sponsoring research at 

the DOE national laboratories and 

production plants. In exchange for 

accepting such risks, or for other private 

consideration provided by the M&O 

Contractor, the M&O Contractor is 

authorized to negotiate separate ACT 

agreements with the sponsoring third 

parties. Under ACT agreements, the 

M&O Contractor may charge those 

parties additional compensation beyond 

the full costs of the work at the facility. 

(b) The following applies to all work 

conducted under the ACT mechanism, 

regardless of the source of funding: 

(1) Authority to Perform work under 

this clause. Pursuant to the Atomic 

Energy Act of 1954, as amended (42 

U.S.C. 2011 et seq.) and other applicable 

authorities, the M&O Contractor may 

perform work for non-Federal entities, 

in accordance with the requirements of 

this clause. 

(2) M&O Contractor’s 

Implementation. For ACT work 

conducted under the contract, the M&O 

Contractor must draft, implement, and 

maintain formal policies, practices, and 

procedures in accordance with this 

clause, which must be approved by the 

Contracting Officer, and such approval 

shall not be unreasonably withheld. 

(3) Conditions for Participation in 

ACT. The M&O Contractor: (i) Must not 

perform ACT activities that would place 


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it in direct competition with the private 

sector; 

(ii) May only conduct work under this 

clause if the work does not interfere 

with or adversely affect projects and 

programs the M&O Contractor conducts 

on behalf of the DOE under this 

contract, and complies with the terms 

and conditions of the prime contract If 

the Government determines that an 

activity conducted under this clause 

interferes with the Department’s work 

under the M&O contract, or that 

termination/stay/suspension of work 

under an ACT agreement is in the best 

interest of the Government, the M&O 

Contractor must stop the interfering 

ACT work immediately to the extent 

necessary to resolve the interference. At 

any time, the Contracting Officer may 

require the use of specified 

Government-owned or leased property 

and facilities for the exclusive use of the 

DOE mission by providing a written 

notice excluding said property from the 

M&O Contractor’s activities under this 

clause. Any cost incurred as a result of 

Contracting Officer decisions identified 

in this paragraph shall be borne by the 

M&O Contractor. The Contracting 

Officer shall provide to the M&O 

Contractor in writing its decision, 

identifying the issues and reasons for 

the decisions. The M&O Contractor shall 

be provided with a reasonable 

opportunity to address and resolve the 

issues identified by the Contracting 

Officer; 

(iii) Except as otherwise excluded in 

this clause, must perform all ACT 

activities in accordance with the 

standards, policies, and procedures that 

apply to performance under this M&O 

contract, including but not limited to 

environmental, safety and health, 

security, safeguards, conflict of interest 

and classification procedures, and 

human and animal research regulations; 

(iv) Must maintain and provide when 

requested by the DOE Contracting 

Officer, a summary of project 

information for each active ACT project, 

consisting of: sponsor name; total 

estimated costs; project title and 

description; project point of contact; 

and estimated start and completion 

dates; 

(v) Is responsible for addressing the 

following items in ACT agreements as 

appropriate: disposition of property 

acquired under the agreement; export 

control; notice of intellectual property 

infringement; and a statement that the 

Government and/or the M&O Contractor 

shall have the right to perform similar 

services in the Statement of Work for 

other Parties as otherwise authorized by 

this M&O contract subject to applicable 

data restrictions; 

(vi) Must include a standard legal 

disclaimer notice on all publications 

generated under ACT activities. Each 

DOE M&O Contractor has its own preapproved publications statement, and 

this should be included; and 

(vii) Must insert the following 

disclaimer in each agreement under 

ACT, which must be conspicuous (e.g., 

bold type, all capital letters, or large 

font) in all Agreements under ACT so as 

to meet the standards of due notice. 

DISCLAIMER 

THIS AGREEMENT IS SOLELY 

BETWEEN [INSERT NAME OF THE 

M&O CONTRACTOR] AND [THE 

OTHER IDENTIFIED PARTY]. THE 

UNITED STATES GOVERNMENT IS 

NOT A PARTY TO THIS AGREEMENT, 

THIS AGREEMENT DOES NOT 

CREATE ANY OBLIGATIONS OR 

LIABILITY ON BEHALF OF THE 

GOVERNMENT AND THE 

GOVERNMENT MAKES NO EXPRESS 

OR IMPLIED WARRANTY AS TO THE 

CONDITIONS OF THE RESEARCH OR 

ANY INTELLECTUAL PROPERTY, 

GENERATED INFORMATION, OR 

PRODUCT MADE OR DEVELOPED 

UNDER THIS AGREEMENT, OR THE 

OWNERSHIP, MERCHANTABILITY, 

OR FITNESS FOR A PARTICULAR 

PURPOSE OF THE RESEARCH OR 

RESULTING PRODUCT; THAT THE 

GOODS, SERVICES, MATERIALS, 

PRODUCTS, PROCESSES, 

INFORMATION, OR DATA TO BE 

FURNISHED HEREUNDER WILL 

ACCOMPLISH INTENDED RESULTS 

OR ARE SAFE FOR ANY PURPOSE 

INCLUDING THE INTENDED 

PURPOSE; OR THAT ANY OF THE 

ABOVE WILL NOT INTERFERE WITH 

PRIVATELY OWNED RIGHTS OF 

OTHERS. THE GOVERNMENT SHALL 

NOT BE LIABLE FOR SPECIAL, 

CONSEQUENTIAL, OR INCIDENTAL 

DAMAGES ATTRIBUTED TO SUCH 

RESEARCH OR RESULTING PRODUCT, 

INTELLECTUAL PROPERTY, 

GENERATED INFORMATION, OR 

PRODUCT MADE OR DELIVERED 

UNDER THIS AGREEMENT. THIS 

DISCLAIMER DOES NOT AFFECT ANY 

RIGHTS THE GOVERNMENT MAY 

HAVE AGAINST THIRD PARTIES 

ARISING FROM WORK CONDUCTED 

IN CONNECTION WITH THIS 

AGREEMENT. 

(4) Contracting Authority. (i) Subject 

to DOE approval as described in this 

paragraph, the M&O Contractor is 

hereby authorized to negotiate terms 

and conditions between the M&O 

Contractor and third parties when 

entering into ACT agreements. The 

M&O Contractor will have no authority 

to bind the Government in any way with 

such terms and conditions. The 

Government will have no obligation to 

the M&O Contractor due to such terms 

and conditions. 

(ii) The M&O Contractor shall submit 

an ACT proposal package (Package) to 

the Contracting Officer for approval 

prior to beginning work under an ACT 

agreement. 

(A) A complete Package will include 

at a minimum: the identity of the parties 

to the ACT agreement; the principal 

place of performance; any foreign 

ownership or control of the ACT 

agreement parties; a Statement of Work; 

an estimate of costs incurred under the 

M&O contract; an anticipated schedule; 

identification of key Government 

equipment and facilities that will be 

used under the ACT agreement; a list of 

expected deliverables; identification of 

the Intellectual Property (IP) lead and 

proposed selection of IP rights, as 

defined in DOE Class Waiver W(C)– 

2011–013; a signed certification by the 

private party(ies) that the M&O 

Contractor offered the option to use 

Cooperative Research and Development 

Agreement (CRADA) and Strategic 

Partnership Project (SPP) alternatives 

(see paragraph (b)(7)(i) of this clause) 

sufficiently such that the private parties 

are aware of the relative costs and other 

differences between the ACT agreement 

and the CRADA and SPP alternatives; 

source of funds, including a statement 

that no Federal funds, including passthrough funds received as a 

subcontractor or partner, are being 

utilized; applicable ES&H and NEPA 

documentation; a statement of 

consideration, summarizing the risk 

and/or consideration offered the ACT 

participants in exchange for charging 

beyond full cost recovery or for other 

compensation provided by the 

participants; and when multiple third 

parties are parties to the ACT 

agreement, or as otherwise requested by 

the Contracting Officer, an IP 

Management Plan that sets forth the 

proposed disposition of IP rights, and 

income and royalty sharing, among the 

parties to an ACT agreement. 

(B) If the M&O Contractor, the M&O 

Contractor’s parent, member, subsidiary, 

or other entity in which the M&O 

Contractor, the M&O Contractor’s 

parent, member or subsidiary has an 

equity interest, is a party to the ACT 

agreement, the M&O Contractor shall 

include as necessary a project-specific 

addendum to the Master OCI Plan in the 

Package to address special 

circumstances not fully anticipated in 

the prior approved Master OCI Plan (see 

paragraph (b)(7) of this clause). 

(C) If the ACT agreement includes a 

foreign entity as a party or the statement 

of work includes the use of human 


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subjects, animal subjects, classified or 

sensitive subject matter or describes a 

work scope involving high risks or 

hazards including environmental issues, 

the M&O Contractor shall include 

additional information as necessary or 

as requested by the Contracting Officer. 

(iii) The Contracting Officer shall use 

reasonable best efforts to review each 

complete Package submitted by the 

M&O Contractor under paragraph 

(b)(4)(ii)(B) of this clause within 10 

business days of receiving the Package 

and provide the M&O Contractor with 

approval or non-approval of the 

Package. The review of the complete 

Package by the Contracting Officer shall 

include a determination that the 

proposed work: is consistent with or 

complementary to DOE missions and 

the contract statement of work; will not 

adversely impact programs under the 

contract scope of work; will not place 

the contractor in direct competition 

with the domestic private sector; and 

will not create a detrimental future 

burden on DOE resources. 

(iv) Except as conditionally allowed 

under paragraph (b)(4)(iv)(A) of this 

clause, the Contracting Officer must 

approve the Package before the M&O 

Contractor may begin work under the 

proposed ACT agreement. If the 

Contracting Officer rejects the Package, 

then the Contracting Officer must 

provide said rejection to the M&O 

Contractor in writing including the 

reasons for the rejection. Upon receipt 

of the Contracting Officer’s written 

rejection, the M&O Contractor agrees to 

not further pursue the work described in 

the package or incur additional costs 

under the M&O contract for the work 

described in the Package. 

(A) The M&O Contractor may request 

a preliminary determination that the 

proposed scope of work is consistent 

with the contract statement of work and 

the Contracting Officer will use his/her 

best efforts to provide such a 

determination within three business 

days. Upon such a determination from 

the Contracting Officer, the M&O 

Contractor may begin work under the 

ACT agreement at the M&O Contractor’s 

risk pending final approval of the 

complete Package. The M&O Contractor 

must submit a complete Package, as 

identified in paragraph (b)(4)(ii) of this 

clause, within 10 business days of the 

preliminary determination. All costs 

associated with the performance of work 

under a preliminary determination are 

the responsibility of the M&O 

Contractor, as no Federal funds will be 

used to fund any work conducted under 

this clause. 

(B) If any source affiliated with the 

M&O Contractor (any division, 

subsidiary, or affiliate of the M&O 

Contractor or its parent company) is a 

party sponsoring work in connection 

with the ACT agreement, work may not 

commence until approval of the 

complete Package by the Contracting 

Officer. 

(5) Advance Payment for ACT 

Projects. The M&O Contractor shall be 

responsible for providing adequate 

advance payment for ACT work 

conducted under this clause consistent 

with procedures defined in the 

Department’s Financial Management 

Handbook. The M&O Contractor shall be 

solely responsible for collecting 

payments from third parties for any 

work conducted under this clause and 

such collections shall be independent of 

providing advance payment. For such 

payments and for any costs, obligations, 

or liabilities arising due to the M&O 

Contractor’s work under this clause, the 

M&O Contractor is entirely at risk and 

the Government shall have no risk. 

(6) Costs and Fee. (i) All direct costs 

associated with the M&O Contractor’s 

work conducted under this clause shall 

be directly charged to separate and 

identifiable accounts in accordance with 

the requirements of the Department’s 

Financial Management Handbook. An 

allocable portion of indirect costs 

normally applied to equivalent work 

under this M&O contract shall also be 

applied to work conducted under this 

clause in accordance with the 

requirements of the Financial 

Management Handbook. As required by 

the Financial Management Handbook, 

changes to the Handbook will be 

incorporated into this clause by a 

unilateral administrative modification 

to the contract. In addition, all work 

must be performed at full costs that 

would include Federal Administrative 

Charge (FAC). 

(ii) Work conducted under this clause 

shall be excluded from the M&O 

contract award fee calculations and 

such fee shall not be allocable to work 

conducted under this clause. 

(7) Organizational Conflict of Interest. 

The M&O Contractor shall conduct work 

under this clause in a manner that 

minimizes the appearance of conflicts of 

interest and avoids or mitigates actual 

conflicts of interest with the M&O 

Contractor’s functions under this M&O 

contract. Accordingly, the M&O 

Contractor shall develop an 

Organizational Conflict of Interest 

Mitigation Plan (OCI Plan). The OCI 

Plan should address OCI issues that 

arise as a result of the M&O Contractor 

taking a financial interest in ACT 

projects, especially in those cases where 

the M&O Contractor retains rights in 

ACT IP. Said OCI Plan shall be provided 

to the Contracting Officer for review and 

approval as soon as practicable after 

execution of the M&O contract 

modification incorporating this clause 

into the M&O contract. Unless provided 

otherwise by the Contracting Officer, no 

work on ACT agreements may 

commence before Contracting Officer 

approval of the OCI Plan. In addition to 

those elements expressly stated in the 

OCI Plan, the Department may 

condition any ACT transaction on such 

other mitigating conditions it 

determines are appropriate. The OCI 

Plan shall, at a minimum, include 

elements that address the following: 

(i) Full Disclosure. Before work can 

begin under an ACT transaction, all 

parties to ACT agreements must sign a 

DOE-approved certification that they 

have been fully informed about the 

availability of SPP agreements and 

CRADAs in addition to ACT. The 

certification at a minimum shall briefly 

describe SPP agreements, CRADAs and 

ACT, and will include the relative 

disposition of IP rights and the costs 

(including identification of any 

additional costs e.g., insurance, and 

other compensation to the M&O 

Contractor under ACT) for each type of 

agreement for the scope of work being 

proposed. 

(ii) Priority of Work. The M&O 

Contractor shall not give work under 

ACT any special attention or priority 

over other work under the DOE M&O 

contract. Work under ACT shall be 

approved by the Contracting Officer and 

assigned the same priority relative to 

other work under the DOE M&O 

contract that it would normally have if 

performed under a non-Federal SPP 

agreement. The Contracting Officer has 

discretion to determine the agency’s 

priority of work, considering the M&O 

Contractor’s input. 

(iii) Participation by Contractoraffiliated sources: If any source 

affiliated with the M&O Contractor (any 

division, subsidiary, or affiliate of the 

M&O Contractor or its parent company) 

is a party to the ACT agreement, the 

M&O Contractor shall include as 

necessary an addendum to the OCI Plan 

to address special circumstances not 

fully anticipated in the OCI Plan. 

(iv) Right of Inquiry for ACT IP 

Designation. The Contracting Officer, 

upon request of DOE Patent Counsel 

may inquire into the M&O Contractor’s 

designation of any invention or data as 

arising under an ACT transaction. The 

M&O Contractor is responsible for 

curing any defect identified in such 

inquiry, and if the M&O Contractor 

cannot adequately justify the 

designation or cure the defect, then the 

parties to the ACT agreement may 


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receive modified rights in the IP to the 

degree necessary to resolve the issues 

identified by the inquiry. 

(8) Intellectual Property. Disposition 

of intellectual property (IP) arising from 

work conducted under this clause shall 

be governed by Class Waiver W(C)– 

2011–013 (ACT Class Waiver), which is 

incorporated herein by reference. 

(i) All Contractor ACT inventions 

shall be reported to DOE pursuant to the 

requirements of the [cite Patent Rights— 

M&O contract, Nonprofit Organization 

or Small Business Firm Contractor] 

clause of this M&O contract. 

(ii) In reporting ACT inventions, the 

M&O Contractor shall identify the ACT 

agreement under which the invention 

was made and specify the rights 

reserved by the Government pursuant to 

the ACT Class Waiver. 

(iii) All technical data identified by 

the ACT client as Protected ACT 

Information shall also be marked to 

identify the ACT agreement under 

which the data was generated. 

(iv) The M&O Contractor shall ensure 

that all rights and obligations 

concerning ACT IP, including the 

appropriate IP provisions authorized in 

the ACT Class Waiver, are clearly 

provided in ACT agreements, and that 

all parties granted any rights in ACT IP 

are informed of the terms of the waived 

rights, including the rights reserved by 

the Government. 

(v) Where the M&O Contractor 

receives ownership or license rights to 

ACT IP, the M&O Contractor may elect 

to commercialize the ACT IP consistent 

with the Technology Transfer Mission 

clause of this M&O contract. 

(vi) As an alternative to paragraph 

(b)(8)(v) of this clause, if the M&O 

Contractor has an authorized Private 

Funded Technology Transfer (PFTT) 

program, the M&O Contractor may elect 

to retain private ownership of the ACT 

IP and commercialize the IP under its 

applicable PFTT clause, using its 

private funds, where no costs for 

developing, patenting, and marketing 

will be allowable under this M&O 

contract. The M&O Contractor will share 

royalties collected on ACT IP with 

inventors in accordance with paragraph 

(h) of the Technology Transfer Mission 

clause of this M&O contract. 

(vii) For ACT projects in which the 

terms of the Agreement provide that the 

Government reserves the right to use 

generated data after the particular 

project expires, the M&O Contractor 

must provide, to the DOE Office of 

Technical Information (OSTI), computer 

software produced under the Agreement 

in both source and executable object 

code format. 

(viii) Where terms and conditions 

governing Data and Subject Inventions 

under this Contract are inconsistent 

with the terms of the ACT Class Waiver, 

the ACT Class Waiver will control. 

(9) Contractor Liability and 

Indemnification. 

(i) General Indemnity. (A) The M&O 

Contractor agrees to indemnify and hold 

harmless the Government, the 

Department, and persons acting on their 

behalf from all liability, including costs 

and expenses incurred, to any person, 

including the ACT participants, for 

injury to or death of persons or other 

living things or injury to or destruction 

of property arising out of the 

performance of an ACT transaction by 

the Government, the Department, the 

M&O Contractor, or persons acting on 

their behalf, or arising out of the use of 

the services performed, materials 

supplied, or information given 

hereunder by any person including the 

M&O Contractor, and not directly 

resulting from the fault or negligence of 

the Government, the Department, or 

persons (other than the M&O 

Contractor) acting on their behalf. 

(B) Subject to Contracting Officer 

approval, the General Indemnity set 

forth in this paragraph (b)(9)(i) may be 

modified or waived where: 

(1) ACT participants are not providing 

material or equipment to the M&O 

Contractor to be used in the 

performance of the Statement of Work 

under the ACT transaction; and (2) ACT 

participants are not sending their 

employees to the M&O facilities as part 

of the Statement of Work; and (3) the 

specific activities performed under the 

ACT transaction are normally performed 

by the DOE M&O Contractor under the 

DOE contract. 

(C) Notwithstanding the provisions in 

paragraphs (b)(9)(i)(A) and (B) of this 

clause, the M&O Contractor shall 

indemnify and hold harmless the 

Government, the Department, and 

persons acting on their behalf for loss, 

damage, or destruction of Government 

property resulting from the fault or 

negligence of the M&O Contractor. Such 

indemnification shall be subject to a 

liability limit of $2,000,000 (two million 

dollars) per year, or such greater 

liability limit approved by the cognizant 

DOE Contracting Officer under the DOE 

contract. Above the applicable liability 

limit, the M&O Contractor’s 

responsibility to the Government for 

such loss, damage or destruction, shall 

be as set forth in the ‘‘Property’’ clause 

of this contract. 

(ii) Intellectual Property Indemnity. 

The M&O Contractor shall indemnify 

the Government, its agents, and 

employees against liability, including 

costs, for infringement of any United 

States patent, copyright, or other 

intellectual property arising out of any 

acts required or directed to be 

performed under the Statement of Work 

under an ACT transaction to the extent 

such acts are not already performed at 

the M&O contract facilities. Such 

indemnity shall not apply to a claimed 

infringement that is settled without the 

consent of the M&O Contractor unless 

required by a court of competent 

jurisdiction. 

(iii) Product Liability Indemnity. (A) 

Except for any liability resulting from 

any negligent acts or omissions of the 

Government, the M&O Contractor agrees 

to indemnify the Government for all 

damages, costs, and expenses, including 

attorney’s 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 ACT participants or the 

M&O Contractor, their assignees, or 

licensees, which was derived from the 

work performed under ACT 

transactions. With respect to this clause, 

neither the Government nor the M&O 

Contractor shall be considered assignees 

or licensees as a result of reserved 

Government rights in ACT IP. The 

indemnity set forth in this paragraph 

shall apply only if the M&O Contractor 

shall have been informed as soon and as 

completely as practical by the 

Government of the action alleging such 

claim and shall have been given an 

opportunity, to the maximum extent 

afforded by applicable laws, rules, or 

regulations, to participate in and control 

its defense, and the Government shall 

have provided all reasonably available 

information and reasonable assistance 

requested by the M&O Contractor. No 

settlement for which the M&O 

Contractor would be responsible shall 

be made without the M&O Contractor’s 

consent, unless required by final decree 

of a court of competent jurisdiction. 

(B) Where the M&O Contractor assigns 

the responsibility for indemnifying the 

Government under paragraph 

(b)(9)(iii)(A) of this clause to other ACT 

participants, the M&O Contractor agrees 

to seek such indemnification from the 

other ACT participants. 

(iv) Claims and Liabilities. Claims and 

liabilities resulting from the M&O 

Contractor’s performance of work under 

an ACT transaction authorized pursuant 

to this clause shall not be subject to the 

M&O contract clause entitled 

‘‘Insurance—Litigation and Claims.’’ In 

no event shall the M&O Contractor be 

reimbursed under the M&O contract for 

liabilities (and expenses incidental to 

such liabilities, including litigation 

costs, counsel fees, and judgment and 


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settlements) incurred as a result of third 

party claims related to the M&O 

Contractor’s performance under this 

clause. 

(v) Government Obligations. The M&O 

Contractor shall not include any 

guarantee or requirement that will 

obligate the Government to pay or incur 

any costs or create any liability on 

behalf of the Government in any ACT 

agreement or commitment the M&O 

Contractor executes under authority of 

this clause. The M&O Contractor agrees 

if the Contractor does include such a 

guarantee or requirement, it will have 

no effect on the Government, such that, 

the M&O Contractor will be responsible 

for any costs or liability due to such a 

guarantee or requirement. 

(vi) Insurance. Any cost of insurance 

to cover risks of the M&O Contractor 

associated with ACT agreements is 

unallowable under this contract. 

(10) ACT Records. All records 

associated with the M&O Contractor’s 

activities conducted under the authority 

of this clause, with the exception of 

information required under paragraphs 

(b)(3)(v), (b)(4)(ii)(A), and (b)(13) of this 

clause shall be treated as M&O 

Contractor-owned records under the 

provisions of the Access to and 

Ownership of Records clause of this 

M&O contract. The Government or its 

designees shall use such records in 

accordance with applicable Federal 

laws (including the Privacy Act), as 

appropriate. 

(11) Termination. The Government or 

the M&O Contractor may terminate ACT 

authority under this contract by 

providing written notification of 

termination to the other party 

(Contracting Officer or the M&O 

Contractor) as appropriate, no less than 

60 days prior to the requested 

termination date. In such cases, the 

M&O Contractor shall provide DOE a 

comprehensive list of active ACT 

projects. DOE anticipates work 

commitments under these agreements 

will be completed regardless of 

termination. All costs associated with 

early termination of any ACT 

agreements prior to the completion shall 

be the responsibility of the M&O 

Contractor. 

(12) Successor M&O Contractor. To 

minimize the potential for negative 

Government programmatic impact and 

to facilitate seamless transition of work 

to a successor M&O Contractor, ACT 

agreement(s) executed under this clause 

and any contractual instruments 

associated therewith may be novated to 

the successor M&O Contractor with the 

mutual consent of the M&O Contractor, 

the successor M&O Contractor, and the 

parties to the affected ACT agreement(s). 

If the ACT agreement(s) cannot be 

novated, then the M&O Contractor as a 

private sponsor shall be permitted to 

enter into a Non-Federal SPP agreement 

with the successor M&O Contractor that 

will enable completion of the statement 

of work. Such agreements shall be 

entered into pursuant to DOE SPP 

policies. DOE shall make good faith 

efforts to incorporate the terms of the 

applicable ACT agreement. 

(13) Minimum Reporting 

requirements. The M&O Contractor shall 

maintain records of its activities related 

to ACT in a manner and to the extent 

satisfactory to DOE and specifically 

including, but not limited to the number 

of ACT agreements, the amount of funds 

reimbursed to DOE for work under ACT 

and aggregate funding received beyond 

costs in the performance of ACT, the 

number of third party entities engaged 

through ACT that had not previously 

sponsored projects under the M&O 

contract and the number that had not 

previously sponsored projects under 

any DOE M&O contract, the amount of 

funds reimbursed to DOE by newly 

engaged entities, the number of parties 

and types of entities engaged in each 

individual ACT agreement, and the 

number of invention disclosures, 

licenses and start-ups arising from ACT. 

The M&O Contractor shall establish 

performance metric(s) to measure the 

time required to negotiate ACT 

agreements in a manner consistent with 

the time required to negotiate CRADAs 

and SPPs. The M&O Contractor shall 

obtain from each entity engaged in ACT 

the entity’s reason(s) for selecting ACT 

for performance of work under the M&O 

contract. Also, the M&O Contractor shall 

report the above identified data 

annually to the DOE Contracting Officer 

and in such a format that will serve to 

adequately inform DOE of the 

Contractor’s activities under ACT while 

protecting any data not subject to 

disclosure under this M&O contract. 

Such records shall be made available in 

accordance with the clauses of this 

M&O contract pertaining to inspection, 

audit and examination of records. 

(End of clause) 

■ 300. Section 970.5219 is added to read 

as follows: 

970.5219 Small business subcontracting 

plan. 

As prescribed in 970.1907–8(b), 

supplement the clause at FAR 52.219– 

9 with the following: 

Small Business Subcontracting Plan 

[December 2024] 

(b) Definitions. ‘‘First-tier 

subcontract’’ means a subcontract 

awarded directly by the Contractor for 

the purpose of acquiring supplies or 

services (including construction) for 

performance of a prime contract. It does 

not include the Contractor’s supplier 

agreements with vendors, such as longterm arrangements for materials or 

supplies that would benefit multiple 

contracts and/or the costs of which are 

normally applied to a Contractor’s 

general and administrative expenses or 

indirect costs. 

‘‘Management and Operating 

Contractor Subcontract Reporting 

Capability (MOSRC)’’ means a DOE 

system and associated processes to 

collect key information about 

Management and Operating Contractor 

first-tier subcontracts for reporting to 

the Small Business Administration. 

‘‘Transaction’’ means any contract, 

order, other agreement or modification 

thereof (other than one involving an 

employer-employee relationship) 

entered into by the Contractor acquiring 

supplies or services (including 

construction) required solely for 

performance of the prime contract. 

(l)(3) MOSRC. The Contractor shall 

collect and report data via MOSRC 

necessary for DOE to meet its agency 

reporting requirements, as determined 

by the Small Business Administration. 

The Contractor shall report first-tier 

subcontract data in MOSRC. Classified 

subcontracts shall not be reported. 

Subcontracts with Controlled 

Unclassified Information marking shall 

not be reported if restricted by its 

category. The Contractor should contact 

its Contracting Officer if uncertain of 

reporting requirements. The MOSRC 

requirement does not replace any other 

reporting requirements under this 

clause. 

(End of clause) 

■ 301. Section 970.5222–1 is amended 

by revising the introductory text to read 

as follows: 

970.5222–1 Collective Bargaining 

Agreements Management and Operating 

Contracts 

As prescribed in 970.2201–130, insert 

the following clause: 

* * * * * 

■ 302. Section 970.5222–2 is amended 

by revising the introductory text to read 

as follows: 

970.5222–2 Overtime Management 

As prescribed in 970.2201–220, insert 

the following clause: 

* * * * * 

■ 303. Section 970.5222–4 is added to 

read as follows: 


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970.5222–4 Unemployment compensation. 

As prescribed in 970.2270–2, insert 

the following clause. 

Unemployment Compensation 

[December 2024] 

(a) When under state law the 

contractor is permitted the option to pay 

unemployment claims either through 

the state unemployment insurance tax 

(pay in) or by reimbursing the state for 

actual claims paid out to former 

employees (opt out), the contractor shall 

provide the following: 

(1) Statement of Coverage. The 

statement of coverage shall identify 

whether the contractor will opt into the 

state unemployment fund through 

payment of the unemployment 

insurance tax or opt out by reimbursing 

the state(s) for actual claims paid. A 

statement of coverage shall be provided 

within (fill in) ll calendar days of 

contract award, contract extension, or 

exercise of an option. 

(2) Change in Election Status. The 

contractor shall notify the contracting 

officer no less than (fill in) ll 

calendar days before state approval is 

sought to change its pay in or opt out 

election. 

(b) The Government reserves the right 

to request additional information to 

assess budgetary and programmatic 

risks and impact when the contractor 

chooses to opt out. 

(End of clause) 

■ 304. Redesignate sections 970.5223–3 

and 970.5223–4 as sections 970.5226–4 

and 970.5226–5, respectively. 

970.5223–6 and 970.5223–7 [Removed] 

■ 305. Sections 970.5223–6 and 

970.5223–7 are removed. 

■ 306. Section 970.5226–1 is revised to 

read as follows: 

970.5226–1 Diversity plan. 

As prescribed in 970.2671–2, insert 

the following clause: 

Diversity Plan [December 2024] 

The Contractor shall submit a 

Diversity, Equity, Inclusion, and 

Accessibility (DEIA) 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 annually or 

with its annual fee proposal. Guidance 

for preparation of a Diversity Plan is 

provided in the Appendix ll. 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, 

harassment, discrimination, and/or 

retaliation based on protected EEO 

categories. 

(End of clause) 

970.5226–4 [Amended] 

■ 307. Amend newly redesignated 

section 970.5226–4, in the introductory 

text, by removing ‘‘970.2305–4(a)’’ and 

adding ‘‘970.2605–4(a)’’ in its place. 

970.5226–5 [Amended] 

■ 308. Amend newly redesignated 

section 970.5226–5, in the introductory 

text, by removing ‘‘970.2305–4(b)’’ and 

adding ‘‘970.2605–4(b)’’ in its place. 

■ 309. Amend section 970.5227–1 by: 

■ a. Revising the clause date and 

paragraphs (a), (b)(1) introductory text, 

and (b)(1)(ii); 

■ b. Adding paragraphs (b)(4) and (c)(3); 

■ c. Revising paragraph (d)(1); 

■ d. Removing ‘‘(End of clause)’’ after 

Alternate I and adding in its place ‘‘(End 

of Alternate)’’; and 

■ e. Adding Alternate II after Alternate 

I. 

The revisions and additions read as 

follows: 

970.5227–1 Rights in data-facilities. 

* * * * * 

Rights In Data—Facilities [December 

2024] 

(a) Definitions—Assistant General 

Counsel for Technology Transfer and 

Intellectual Property is the senior 

intellectual property counsel for the 

Department of Energy, as distinguished 

from the NNSA Patent Counsel, and, 

where used in this clause, indicates that 

the authority for the activity(ies) being 

described belongs to DOE. 

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. 

Computer software, as used in this 

clause, means: 

(1) 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 

(2) 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. 

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. 

Department of Energy (DOE), as used 

in this clause, includes the National 

Nuclear Security Administration 

(NNSA), unless otherwise identified or 

indicated. 

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 (e) of this clause. 

Patent Counsel means the DOE or 

NNSA Patent Counsel assisting the 

contracting activity. 

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 paragraph (f) of this clause. 

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. 

Unlimited rights, as used in this 

clause, means the right 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) * * * 

(1) Except as may be otherwise 

expressly provided or directed in 


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writing by the Patent Counsel, the 

Government shall have: 

* * * * * 

(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, or except 

for other data specifically protected by 

statute for a period of time or, where, 

approved by Patent Counsel; 

* * * * * 

(4) In the performance of DOE 

contracted obligations, each contractor 

is required to manage scientific and 

technical information (STI) produced 

under the contract as a direct and 

integral part of the work and ensure its 

broad availability to all customer 

segments by making STI available to 

DOE’s central STI coordinating office, 

the Office of Scientific and Technical 

Information (OSTI). Requirements for all 

such reportable information to OSTI are 

in DOE Order 241.1, or successor 

version, whether it is publicly 

releasable, controlled unclassified 

information, or classified. 

(c) * * * 

(3) If the Contractor has not been 

granted permission to copyright 

technical data or computer software first 

produced under the contract, and if the 

Government desires to obtain copyright 

in such data and computer software, the 

Patent Counsel may direct the 

Contractor to establish claim to 

copyright in such data or computer 

software and to assign such copyright to 

the Government or its designated 

assignee. 

(d) * * * 

(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 the clause entitled, 

‘‘Rights in Data-General’’ at 48 CFR 

52.227–14 modified in accordance with 

48 CFR 927.409 including alternates 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 Alternate 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(d). 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, 

the Contractor shall use the ‘‘rights in 

Data-Facilities’’ clause at 48 CFR 

970.5227–1. 

* * * * * 

Alternate II (DATE XXXX). As 

prescribed in 970.2704–3(a), where 

Government facilities are being 

constructed, modified, or in 

decontamination and decommissioning, 

and it is anticipated that further 

solicitation may be required to complete 

the project, insert paragraph (f) in the 

Limited Rights Notice required by 

paragraph (e) of the basic clause: 

(f) This ‘‘limited rights data’’ may be 

disclosed in future solicitations for the 

continuation or completion of the work 

contemplated under this contract under 

the restriction that the ‘‘limited rights 

data’’ be retained in confidence and not 

be further disclosed. 

(End of alternate) 

■ 310. Section 970.5227–2 is revised to 

read as follows: 

970.5227–2 Rights in data-technology 

transfer. 

As prescribed in 970.2704–3(b), insert 

the following clause: 

Rights In Data—Technology Transfer 

[December 2024] 

(a) Definitions—Assistant General 

Counsel for Technology Transfer and 

Intellectual Property is the senior 

intellectual property counsel for the 

Department of Energy, as distinguished 

from the NNSA Patent Counsel, and, 

where used in this clause, indicates that 

the authority for the activity(ies) being 

described belongs to DOE. 

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. 

Computer software, as used in this 

clause, means: 

(1) 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 

(2) 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. 

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. 

Department of Energy (DOE), as used 

in this clause, includes the National 

Nuclear Security Administration 

(NNSA), unless otherwise identified or 

indicated. 

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. 

Open source software, as used in this 

clause, means computer software with 

its source code that is distributed under 

a license in which the user is granted 

the right to use, copy, modify, and 

prepare derivative works thereof, 

without having to make royalty 

payments. 

Patent Counsel means the DOE or 

NNSA Patent Counsel assisting the 

contracting activity. 

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 paragraph (h) of this clause. 

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. 

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) Except as 

may be otherwise expressly provided or 


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directed in writing by the Patent 

Counsel, 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 

Patent Counsel, appropriate instances of 

the DOE Strategic Partnership Projects 

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. When 

delivering all Contractor-produced 

computer software to the DOE Office of 

Scientific and Technical Information 

(OSTI), the Contractor shall submit a 

complete package as prescribed in 

paragraph (e)(3) of this clause. 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 (h) of this clause (‘‘Rights in 

Limited Rights Data’’) or paragraph (i) of 

this clause (‘‘Rights in Restricted 

Computer Software’’); and 

(v) The right to remove, cancel, 

correct, or ignore any markings not 

authorized by the terms of this Contract 

on any data furnished hereunder if, in 

response to a written inquiry by DOE 

concerning the propriety of the 

markings, the Contractor fails to 

respond thereto within 60 days or fails 

to substantiate the propriety of the 

markings. In either case DOE will notify 

the Contractor of the action taken. 

(2) The Contractor shall have: 

(i) The right to withhold limited rights 

data and restricted computer software 

unless otherwise provided in provisions 

of this clause; 

(ii) The right to use for its private 

purposes, subject to patent, security or 

other provisions of this Contract, data it 

first produces in the performance of this 

Contract, except for data in DOE’s 

Uranium Enrichment Technology, 

including diffusion, centrifuge, and 

atomic vapor laser isotope separation, 

provided the data requirements of this 

Contract have been met as of the date of 

the private use of such data; and 

(iii) The right to assert copyright 

subsisting in scientific and technical 

works, and works produced by 

Contractor under 48 CFR 952.204–75 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. 

(4) In the performance of DOE 

contracted obligations, each Contractor 

is required to manage scientific and 

technical information (STI) produced 

under the contract as a direct and 

integral part of the work and ensure its 

broad availability to all customer 

segments by making STI available to 

DOE’s central STI coordinating office, 

OSTI. Requirements for all such 

reportable information to OSTI are in 

DOE Order 241.1B, or successor version, 

whether it is publicly releasable, 

controlled unclassified information, or 

classified. 

(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 paragraph (d), 

(e), or (f) of this clause. 

(2) Except for material to which the 

Contractor has obtained the right to 

assert copyright in accordance with 

paragraph (d), (e), or (f) 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. 

(3) If the Contractor has not been 

granted permission to copyright data or 

computer software first produced under 

the contract where such permission is 

necessary, i.e., for works other than 

scientific and technical journal articles 

and data produced under a CRADA, and 

if the Government desires to obtain 

copyright in such data or computer 

software, the Patent Counsel may direct 

the Contractor to establish claim to 

copyright in such data or computer 

software and to assign such copyright to 

the Government or its designated 

assignee. 

(d) Copyrighted works (scientific and 

technical works). (1) The Contractor 

shall have the right to assert, without 

prior approval of the contracting officer, 

copyright subsisting in scientific and 

technical works composed under this 

contract or based on or containing data 

first produced by the Contractor in the 

performance of this Contract, and 

published in academic, technical or 

professional journals, symposia, 

proceedings, contributions to chapters 

of book compilations or similar means 

of dissemination to make broadly 

available to the public or scientific 

community for the purpose of scientific, 

research, knowledge and education. 

Such scientific and technical works may 

be recorded or fixed in any medium 

including but not limited to print, 

online, web, audio, video or other 

medium, and released or disseminated 

through any communication or 

distribution channel including but not 

limited to articles, reports, books, nonarchitectural drawings, repositories, 

videos, websites, workshops, or social 

media. 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 


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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) For each scientific or technical 

work first produced or composed under 

this contract and submitted for 

publication or similar means of 

dissemination, the contractor shall 

provide notice to the publisher of the 

Government’s license in the copyright 

that is substantially similar to or 

otherwise references one of the 

following notices below: 

A suitable notice (long version) 

reflecting the Government’s nonexclusive, paid-up, irrevocable, worldwide license in the copyright. 

Notice: This work was produced by 

[insert the name of the Contractor] 

under contract No. [insert the contract 

number] with the U.S. Department of 

Energy. The United States Government 

retains and the publisher, by accepting 

the work 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 work, or allow others to do 

so, for United States Government 

purposes. The Department of Energy 

will provide public access to these 

results of federally sponsored research 

in accordance with the DOE Public 

Access Plan [insert current link]. 

(End of notice) 

A suitable notice (short version) 

reflecting the Government’s nonexclusive, paid-up, irrevocable, worldwide license in the copyright follows: 

Notice: This work was produced by 

[insert the name of the Contractor] 

under Contract No. [insert the contract 

number] with the U.S. Department of 

Energy. Publisher acknowledges the 

U.S. Government license to provide 

public access under the DOE Public 

Access Plan [insert current link]. 

(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 works 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, when the 

Contractor needs to control distribution 

to advance the goals of the technology 

transfer mission and 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 works under 

paragraph (d) of this clause 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; and if so, which 

jurisdiction; 

(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 exclusively 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 nuclearrelated 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. 

(iv) The Contractor will obtain the 

advanced written approval of the Patent 

Counsel to assert copyright where data 

are determined to be in the following 

excepted categories: 

(A) Under export control restrictions; 

(B) Developed with Naval Reactors’ 

funding; 

(C) Subject to disposition of data 

rights under treaties and international 

agreements. 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 

at DOE’s Office of International Affairs 

(International Commitments—IEC). 

(2) Patent Counsel Review and 

Response to Contractor’s Request. The 

Patent Counsel shall use its best efforts 

to respond in writing within 60 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 


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DOE needs additional time to respond, 

and the reasons therefor. If Patent 

Counsel grants permission for the 

Contractor to assert copyright in 

computer software, the permission 

automatically extends to subsequent 

minor versions (e.g., minor revisions, 

patches and bug fixes) having the same 

funding source, same name and 

substantially same functionality as the 

original computer software, and may be 

extended to subsequent major versions 

representing significant modifications of 

the program with the approval of Patent 

Counsel. 

(3) Permission for Contractor to Assert 

Copyright. (i) For computer software, 

the Contractor shall furnish, or make 

available to the DOE Office of Scientific 

and Technical Information (OSTI) in 

accordance with OSTI guidelines at the 

time permission to assert copyright is 

given under paragraph (e)(2) of this 

clause: 

(A) Announcement information/ 

metadata contained in the Software 

Announcement Notice 241.4; 

(B) the source code and/or executable 

file for each software program; and 

(C) Documentation, if any, which may 

consist of a user manual, sample test 

cases, or similar information, needed by 

a technically competent user to 

understand and use the software 

(whether included on the software 

media itself or provided in a separate 

file or in paper format). 

(ii) 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. 

(iii) Unless otherwise directed by the 

Patent Counsel, for data other than 

computer software to which the 

Contractor has received permission to 

assert copyright under paragraph (e)(2) 

of this clause, the Contractor shall 

within sixty (60) days of obtaining such 

permission furnish, or make available to 

OSTI in accordance with OSTI 

guidelines, 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. 

(iv) Once the Contractor is given 

permission to assert copyright in data, 

the Contractor may begin to 

commercialize the copyrighted data by 

making copyrighted data available for 

licensing to third parties and by offering 

other types of distribution to third 

parties. During the period in which 

commercialization activities pertaining 

to the copyrighted data are continuing, 

or for a specified period of time 

prescribed by Patent Counsel in 

paragraph (e)(2) of this clause, the 

Contractor grants to the Government, 

and others acting on its behalf, a paidup, 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. For all previously 

approved and current copyrighted data 

that the Contractor is actively 

commercializing, the Contractor may 

continue to commercialize in 

accordance with this paragraph. 

(v) When the Contractor abandons 

commercialization activities pertaining 

to the data to which the Contractor has 

been given permission to assert 

copyright or at the end of the specified 

period as prescribed by Patent Counsel, 

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. 

(vi) At any time the Contractor 

abandons commercialization activities 

for copyrighted data, the Contractor 

shall advise OSTI and Patent Counsel 

and, upon request, assign the copyright 

to the Government so that the 

Government can distribute the 

copyrighted data to the public. When 

the Contractor abandons 

commercialization activities, the 

Contractor will provide to OSTI the 

latest version of the copyrighted data 

(for example, source code, object code, 

minimal support documentation, 

drawings or updated manuals.) In 

addition, the Contractor will provide 

annually to Patent Counsel, if requested, 

a list of all copyrighted data that the 

Contractor has abandoned commercial 

licensing activity during that year. 

(vii) 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)(iv) and (v) of 

this clause. Such action shall be taken 

when the data are delivered to the 

Government, licensed or deposited for 

registration as a published work in the 

U.S. Copyright Office, or when 

submitted for publication. The 

acknowledgment of Government 

sponsorship and license rights shall be 

substantially similar to the following: 

Notice: These data were produced by 

(insert name of Contractor) under 

Contract No. lll with the 

Department of Energy. During the 

period of commercialization or such 

other time period specified by the 

Department of Energy, 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. Subsequent to that period 

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) 

(viii) With respect to any data to 

which the Contractor has received 

permission to assert copyright, the DOE 

has the right, during the period that 

Contractor is commercializing the data 

as provided for in paragraph (e)(3)(iv) 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 paragraph (e)(1)(i) of this clause. 

Before licensing under this paragraph, 

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 


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to grant the stated license to the 

Invention Licensing Appeal Board as set 

forth in 10 CFR 781.65—‘‘Appeals.’’ 

(ix) 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. 

(4) The following notice may be 

included in computer software prior to 

any publication or release 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 

clause. 

Notice: This computer software was 

prepared by [insert the Contractor’s 

name and the individual author], 

hereinafter the Contractor, under 

Contract [insert the Contract Number] 

with the Department of Energy (DOE). 

All rights in the computer software are 

reserved by DOE on behalf of the United 

States Government and the Contractor 

as provided in the Contract. You are 

authorized to use this computer 

software for Governmental purposes but 

it is not to be released or distributed to 

the public. NEITHER THE 

GOVERNMENT NOR THE 

CONTRACTOR MAKES ANY 

WARRANTY, EXPRESS OR IMPLIED, 

OR ASSUMES ANY LIABILITY FOR 

THE USE OF THIS SOFTWARE. This 

notice including this sentence must 

appear on any copies of this computer 

software. 

(End of notice) 

(5) A similar notice can be used for 

data, other than computer software, 

prior to any publication or release and 

prior to Contractor’s obtaining 

permission of DOE Patent Counsel to 

assert copyright. 

(f) Open software source. The 

Contractor may release computer 

software first produced by the 

Contractor in the performance of this 

contract under an open source software 

license. Such software shall hereinafter 

be referred to as open source software or 

OSS, subject to the following: 

(1) DOE Program notice for copyright 

assertion for OSS. (i) The Contractor 

shall provide written notice (including 

relevant data such as, for example, the 

software disclosure form) to each DOE 

Program or Programs that have provided 

a substantial portion of the funding 

(funding source(s)) to develop the 

software that the Contractor intends to 

release as OSS unless the funding 

Program(s) has previously provided 

blanket approval for all software 

developed with funding from that 

Program or a specific DOE project 

stipulates the software to be released as 

OSS. If Program has neither consented 

nor objected to the assertion of 

copyright within two weeks of such 

written notification, the Contractor may 

assert copyright in the software. If 

notification of a funding DOE 

Program(s) is not practicable or DOE 

Program(s) has objected, the Contractor 

shall consult with Patent Counsel, 

which may provide approval. For 

software developed under a CRADA, 

Strategic Partnership Projects (SPP), 

User Facility Agreement, or Agreement 

for Commercializing Technology (ACT), 

authorization from the partner of such 

agreement shall be additionally 

obtained for OSS release unless such 

agreement has a provision providing for 

such copyright assertion. 

(ii) If the software is developed with 

funding from a federal government 

agency or agencies (funding source(s)) 

other than DOE, then authorization from 

all the funding agency(ies) shall be 

obtained for OSS release, if practicable. 

Such federal government agency(ies) 

may provide blanket approval for all 

software developed with funding from 

that agency(ies). However, OSS release 

of any one of such software shall be 

subject to approval by all other funding 

sources for the software, if any. If 

approval from such federal government 

agency(ies) is not practicable, the Patent 

Counsel may provide approval instead. 

(2) Assert copyright in the OSS. Once 

the Contractor has met the program 

approval requirements set forth in 

paragraph (f)(1) of this clause, copyright 

in the software to be distributed as OSS 

may be asserted by the Contractor, or, 

for OSS developed under a CRADA, 

User Facility Agreement, or SPP 

Agreement, either by the Contractor, 

CRADA Participant, User Facility User, 

or SPP Sponsor, as applicable, which 

precludes marking such OSS as 

protectable from public distribution. 

(3) Submit Software Announcement 

Notice 241.4 to OSTI. The Contractor 

must submit Software Announcement 

Notice (AN) 241.4 (or the current notice 

as may be required by DOE) to OSTI. In 

the AN 241.4, the Contractor shall 

provide the unique URL (i.e., a 

persistent identifier) from which the 

software can be obtained so that OSTI 

can announce the availability of the 

OSS and the public has access via the 

URL. 

(4) Maintain OSS record. The 

Contractor must maintain a record of all 

software distributed as OSS. Upon 

request of the Patent Counsel, the 

Contractor shall provide the necessary 

information regarding any or all OSS. 

(5) Provide public access to the OSS. 

The Contractor shall ensure that the 

OSS is publicly accessible as open 

source via the Contractor’s website, 

Open Source Bulletin Boards operated 

by third parties, DOE, or other standard 

industry methods. 

(6) Select an OSS license. Each OSS 

will be distributed pursuant to an OSS 

license. The Contractor may choose 

among industry standard OSS licenses 

or create its own set of Contractor 

standard licenses. To assist the 

Contractor, the Assistant General 

Counsel for Technology Transfer and 

Intellectual Property, may periodically 

issue guidance on OSS licenses. Each 

Contractor-created OSS license, must 

contain, at a minimum, the following 

provisions— 

(i) A disclaimer or equivalent that 

disclaims the Government’s and 

Contractor’s liability for licensees’ and 

third parties’ use of the software; and 

(ii) A grant of permission for licensee 

to distribute OSS containing the 

licensee’s derivative works. This 

provision may allow the licensee and 

third parties to commercialize their 

derivative works or might request that 

the licensee’s derivative works be 

forwarded to the Contractor for 

incorporation into future OSS versions. 

(7) Relationship to other required 

clauses in the contract. OSS distributed 

in accordance with this section shall not 

be subject to the requirements relating 

to indemnification of the Contractor or 

Federal Government, U.S. 

Competitiveness and U.S. Preference, as 

set forth in paragraphs (f) and (g) of the 

clause within this contract entitled 

Technology Transfer Mission (48 CFR 

970.5227–3). The requirement for the 

Contractor to request permission to 

assert copyright for the purpose of 

engaging in licensing software for 

royalties, as set forth elsewhere in this 

clause, is not modified by this section. 

(8) Government license. For all OSS, 

the Contractor grants to the 

Government, and others acting on its 

behalf, a paid-up, nonexclusive, 

irrevocable worldwide license in data 

copyrighted in accordance with 

paragraph (f)(2) of this clause to 

reproduce, distribute copies to the 

public, prepare derivative works, 

perform publicly and display publicly, 

and to permit others to do so. 

(9) Contractor abandons OSS. If the 

Contractor ceases to make OSS publicly 

available, then the Contractor shall 

submit to OSTI the object code and 

source code of the latest version of the 

OSS developed by the Contractor in 

addition to a revised Announcement 


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Notice 241.4 (which includes an 

abstract) and the Contractor shall direct 

any inquiries from third parties seeking 

to obtain the original OSS to OSTI. 

(g) Subcontracting. (1) Unless 

otherwise directed by the Patent 

Counsel, 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 DOE policy and 

procedures, the clause entitled, ‘‘Rights 

in Data-General’’ at 48 CFR 52.227–14 

modified in accordance with 48 CFR 

927.409 including alternates as 

appropriate with the prior approval of 

DOE Patent Counsel. The Contractor 

shall not acquire rights in a 

subcontractor’s limited rights data or 

restricted computer software, except 

through the use of Alternate II or III, 

respectively, without the prior approval 

of the 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(d). 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, 

the Contractor shall use the ‘‘Rights in 

Data-Facilities’’ clause at 48 CFR 

970.5227–1. 

(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 highertier 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. 

(h) 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. 

lll 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) 

(i) 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. ll. 

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 paragraphs 

(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. 


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(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. 

ll with (name of Contractor). 

(End of notice) 

(3) If the software is embedded, or if 

it is commercially impractical to mark it 

with human readable text, then the 

symbol R and the clause date (mo/yr) in 

brackets or a box, a [R-mo/yr], may be 

used. This will be read to mean 

restricted computer software, subject to 

the rights of the Government as 

described in the Long Form Notice, in 

effect as of the date indicated next to the 

symbol. The symbol shall not be used to 

mark human readable material. In the 

event this Contract contains any 

variation to the rights in the Long Form 

Notice, then the contract number must 

also be cited. 

(4) If restricted computer software is 

delivered with the copyright notice of 

17 U.S.C. 401, the software will be 

presumed to be published copyrighted 

computer software licensed to the 

Government without disclosure 

prohibitions and with unlimited rights, 

unless the Contractor includes the 

following statement with such copyright 

notice ‘‘Unpublished-rights reserved 

under the Copyright Laws of the United 

States.’’ 

(j) 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. 

(End of clause) 

Alternate I (DEC 2000). As prescribed 

in 970.2704–3(b), where access to 

Category C–24 restricted data is 

contemplated in the performance of a 

contract the contracting officer shall 

insert the phrase ‘‘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’’ 

after ‘‘laser isotope separation’’ and 

before the comma in paragraph (b)(2)(ii) 

of the clause at 970.5227–2, Rights in 

Data—Technology Transfer, as 

appropriate. 

(End of clause) 

Alternate II (DATE XXXX). As 

prescribed in 970.2704–3(b), where 

government facilities are being 

constructed, modified, or in 

decontamination and decommissioning, 

and it is anticipated that further 

solicitation may be required to complete 

the project, insert paragraph (f) in the 

Limited Rights Notice of the basic 

clause: 

(f) This ‘‘limited rights data’’ may be 

disclosed in future solicitations for the 

continuation or completion of the work 

contemplated under this contract under 

the restriction that the ‘‘limited rights 

data’’ be retained in confidence and not 

be further disclosed. 

(End of clause) 

■ 311. Section 970.5227–3 is revised to 

read as follows: 

970.5227–3 Technology transfer mission. 

As prescribed in 970.2770–4(a), insert 

the following clause: 

Technology Transfer Mission [December 

2024] 

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 Public 

Law 101–189, sections 3134 and 3160 of 

Public Law 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); section 102 of the Laboratory 

Modernization and Technology Transfer 

Act (Pub. L. 115–246) 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 Strategic Partnership 

Projects (SPP); 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, SPP, science 

education activities, consulting, 

personnel exchanges, assignments, and 

licensing in accordance with this clause. 

(3) Trademarks and service marks. 

The Contractor, with notification to 

DOE Patent Counsel, is authorized to 

protect goods/services resulting from 

work at the Laboratory through 

Trademark and Service Mark protection. 

The Laboratory name and associated 

logos are owned by the Department of 

Energy unless an exception is allowed 

by the DOE Patent Counsel, and shall be 

protected by DOE Patent Counsel. In 

furtherance of the technology transfer 

mission, should the Contractor want to 

assert trademark or service mark 

protection for any word, phrase, symbol, 

design, or combination thereof that 

includes or is associated with the 

Laboratory name, the Contractor must 

first notify and obtain permission from 

the Department of Energy Patent 

Counsel. All marks, whether or not 

registered with the United States Patent 

and Trademark Office, are to be 

included in the ‘‘Intellectual property 

rights’’ paragraph (i) of this clause, 

regarding transfer to successor 

contractor, DOE reserves the right to 

require the Contractor to cancel 

registration of the mark or cease use of 

the mark. 

(b) Definitions—Agreements for 

Commercializing Technology (ACT) 

means any agreement pursuant to the 

ACT clause, if included in this M&O 

contract, entered into between the 

Contractor as operator of the Laboratory 

and a third party to conduct sponsored 

research at the M&O Contractor’s risk, 

only when such work does not interfere 

with DOE-funded activities conducted 

as authorized by other parts of this M&O 

contract and on a fully reimbursable 

basis. 


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Assignment means any agreement by 

which the Contractor transfers 

ownership of Laboratory Intellectual 

Property, subject to the Government’s 

retained rights. 

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. 

Contractor’s Laboratory Director 

means the individual who has 

supervision over all or substantially all 

of the Contractor’s operations at the 

Laboratory. 

Cooperative Research and 

Development Agreement (CRADA) 

means any agreement entered into 

between the Contractor as operator of 

the Laboratory, and one or more parties 

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 

other 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. 

Department of Energy (DOE), as used 

in this clause, includes the National 

Nuclear Security Administration 

(NNSA), unless otherwise identified or 

indicated. 

Intellectual property means data, 

inventions, patents, patent applications, 

trademarks, service marks, copyrights, 

mask works, protected CRADA 

information, and other forms of 

comparable property rights protected by 

Federal Law and other foreign 

counterparts. 

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 project. 

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. 

Laboratory Tangible Research Product 

means tangible material results of 

research which 

(1) Are provided to permit replication, 

reproduction, evaluation or 

confirmation of the research effort, or to 

evaluate its potential commercial utility; 

(2) Are not materials generally 

commercially available; and 

(3) Were made under this contract by 

Laboratory employees or through the 

use of Laboratory research facilities. 

Master Scope of Work (MSW) means 

a detailed description of a routine scope 

of work containing information 

sufficient to: 

(1) Ensure that the Contractor and the 

cognizant Contracting Officer (CO) have 

a common understanding of the work to 

be performed; 

(2) Allow DOE to make all reviews, 

approvals, determinations, and 

certifications required pursuant to 

relevant DOE Orders and policy; and 

(3) Enable the CO and the Contractor 

to agree that the work is suitable for 

special processing as the subject of 

Strategic Partnership Project (SPP) 

agreements or Cooperative Research and 

Development Agreements (CRADAs) for 

non-Federal sponsors. 

Patent Counsel means the DOE or 

NNSA Patent Counsel assisting the 

contracting activity. The Patent Counsel 

is the first and primary point of contact 

for activities described in this clause. 

Strategic Partnership Projects (SPP) 

means any agreement pursuant to the 

SPP clause, if included in this M&O 

contract, entered into between the 

Contractor as operator of the Laboratory 

and a non-Federal party under which 

the Government, through its laboratory, 

provides personnel, services, facilities, 

equipment, intellectual property, only 

when such work does not interfere with 

DOE-funded activities conducted as 

authorized by other parts of this M&O 

contract and on a fully reimbursable 

basis. 

(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, 

widespread notice of technology 

transfer opportunities, and early stage 

and precommercial technology 

demonstration to remove barriers that 

limit private sector interest and 

demonstrate potential commercial 

applications of any research and 

technologies arising from Laboratory 

activities, shall be deemed allowable 

provided that such costs meet the other 

requirements of the allowable cost 

provisions of this Contract. 

(2) The Contractor’s participation in 

litigation to enforce or defend 

Intellectual Property claims incurred in 

its technology transfer efforts shall be as 

provided in the clause entitled 

‘‘Insurance—Litigation and Claims’’ of 

this contract. 

(d) Conflicts of Interest—Technology 

Transfer. The Contractor shall have 

implementing procedures that seek to 

avoid employee and organizational 

conflicts of interest, or the appearance 

of conflicts of interest, in the conduct of 

its technology transfer activities. These 

procedures shall apply to all persons 

participating in Laboratory research or 

related technology transfer activities. 

Such implementing procedures shall be 

provided to the contracting officer for 

review and approval within sixty (60) 

days after execution of this contract. 

The contracting officer shall have thirty 

(30) days thereafter to approve or 

require specific changes to such 

procedures. Such implementing 

procedures shall include procedures to: 

(1) Inform employees of and require 

conformance with standards of conduct 

and integrity in connection with 

research involving non-federal sponsors 

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 Contractordeveloped Intellectual Property so as to 

avoid interference with or adverse 

effects on user facility or SPP activities 

of the Contractor; 

(5) Conduct DOE-funded projects and 

programs so as to avoid the appearance 

of conflicts of interest or actual conflicts 


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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 is a current or has been a 

Laboratory employee within the 

previous two years or to the company in 

which the individual is a principal and 

the Contractor’s request should include 

notice of any SPP, CRADA and/or ACT 

associated with the Intellectual 

Property; 

(9) Notify non-Federal sponsors of 

SPP activities of any relevant 

Intellectual Property interest of the 

Contractor prior to execution of SPP; 

and 

(10) Notify the Contracting Officer 

and DOE funding program prior to 

evaluating a proposal from a third party 

for DOE, when: 

(i) The evaluator is an inventor of a 

Contractor invention that is the subject 

matter of the proposal; or 

(ii) The evaluator is a principal or has 

financial interest in the third party; or 

(iii) The third party is a licensee of the 

Contractor. 

(e) Fairness of Opportunity. In 

conducting its technology transfer 

activities, the Contractor shall prepare 

procedures and take all reasonable 

measures to ensure widespread notice of 

availability of technologies suited for 

transfer and opportunities for exclusive 

licensing and joint research 

arrangements. The requirement to 

widely disseminate the availability of 

technology transfer opportunities does 

not apply to a specific application 

originated outside of the Laboratory and 

by entities other than the Contractor. 

(f) U.S. Industrial Competitiveness for 

licensing and assignments of rights in 

subject inventions. In the interest of 

enhancing U.S. industrial 

competitiveness, and generating 

economic and technological benefits to 

the U.S. economy, the Contractor shall 

comply with the following in its 

licensing and assignment involving 

Contractor’s rights in subject inventions, 

where the Contractor obtains rights in 

subject inventions during the course of 

the Contractor’s operation of the facility 

under this contract: 

(1) The Contractor agrees to be bound 

by: 

(i) The provisions of 35 U.S.C. 204 

(Preference for United States industry); 

(ii) All requirements in applicable 

Determinations of Exceptional 

Circumstances; and 

(iii) Paragraph (t) U.S. 

Competitiveness in its Patent Rights 

provision (e.g., 48 CFR 970.5227–10 or 

48 CFR 970.5227–12 as may be 

modified) as applicable. 

(2) When the provisions in paragraph 

(f)(1) of this section do not apply, the 

Contractor shall ensure in its license or 

assignment to comply the provisions of 

35 U.S.C. 204 and consider in its 

decisions, at any tier, the following: 

(i) Whether resulting products, and/or 

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) If the proposed licensee or 

assignee is 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 by relying upon U.S. Trade 

Representative reports on Foreign Trade 

Barriers, U.S. Trade Representative 

Special 301 Report (see U.S. Trade 

Representative website at: https://

www.ustr.gov) and other available 

resources, as necessary, to allow for a 

complete and informed decision. 

(iii) If the Contractor determines that 

the licensee or assignee does not meet 

either of the requirements in paragraphs 

(f)(2)(i) or (ii) of this clause, the 

Contractor, prior to entering into such 

an agreement, must obtain the approval 

of the Contracting Officer after 

consulting with DOE Patent Counsel. 

The Contracting Officer shall act on any 

such requests for approval within thirty 

(30) days. 

(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. 

Except for CRADA and SPP where the 

guidance is already provided elsewhere, 

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, 15 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 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 


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circumstances shall these royalties and 

income be used for any purpose 

inconsistent with DOE mission 

direction. 

(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. 

The Contractor shall notify the 

contracting officer of any changes to that 

policy, and such changes, shall be 

subject to the approval of the 

contracting officer. 

(i) Transfer to successor contractor. In 

the event of termination or upon the 

expiration of this Contract, any 

unexpended balance of income received 

for use at the Laboratory shall be 

transferred, at the contracting officer’s 

request, to a successor contractor, or in 

the absence of a successor contractor, to 

such other entity as designated by the 

contracting officer. The Contractor shall 

transfer title, as one or several packages 

if necessary, 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), as 

amended. Such notification shall 

include sufficient information to enable 

DOE to determine the extent that 

commercialization of such technology 

would enhance or diminish security 

interests of the United States, or 

diminish communications within DOE’s 

nuclear weapon production complex. 

DOE shall use its best efforts to 

complete its determination within sixty 

(60) days of the Contractor’s 

notification, and provision of any 

supporting information, and DOE shall 

promptly notify the Contractor as to 

whether the technology is transferable. 

(2) The Contractor shall include in all 

of its technology transfer agreements 

with third parties, including, but not 

limited to, CRADAs, licensing 

agreements and assignments, notice to 

such third parties that the export of 

goods and/or Technical Data from the 

United States may require some form of 

export control license or other authority 

from the U.S. Government and that 

failure to obtain such export control 

license may result in criminal liability 

under U.S. laws. 

(3) For other than fundamental 

research as defined in National Security 

Decision Directive 189, the Contractor is 

responsible to conduct internal export 

control reviews and assure that 

technology is transferred in accordance 

with applicable law. 

(k) Records. The Contractor shall 

maintain records of its technology 

transfer activities in a manner and to the 

extent satisfactory to the DOE and 

specifically including, but not limited 

to, the licensing agreements, 

assignments and the records required to 

implement the requirements of 

paragraphs (e), (f), and (h) of this clause 

and shall provide reports to the 

contracting officer to enable DOE to 

maintain the reporting requirements of 

section 12(c)(6) of the Stevenson-Wydler 

Technology Innovation Act of 1980, as 

amended (15 U.S.C. 3710a(c)(6)). Such 

reports shall be made annually in a 

format to be agreed upon between the 

Contractor and DOE and in such a 

format which will serve to adequately 

inform DOE of the Contractor’s 

technology transfer activities while 

protecting any data not subject to 

disclosure under the Rights in Technical 

Data clause and paragraph (n) of this 

clause. Such records shall be made 

available in accordance with the clauses 

of this Contract pertaining to inspection, 

audit and examination of records. 

(l) Reports to Congress. To facilitate 

DOE’s reporting to Congress, the 

Contractor is required to submit 

annually to DOE a technology transfer 

plan for conducting its technology 

transfer function for the upcoming year, 

including plans for securing Intellectual 

Property rights in Laboratory 

innovations with commercial promise 

and plans for managing such 

innovations so as to benefit the 

competitiveness of United States 

industry. This plan, which may be 

included in the Annual Laboratory 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 

DOE approved guidance, 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 or MSW 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, MSW or proposed 

CRADA, the contracting officer shall 

approve, disapprove or request 

modification to the JWS, MSW 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 or relevant MSW 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, 

relevant MSW 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 


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States agencies, organizations, or other 

persons to enter into cooperative 

research and development agreements 

and licensing agreements. The 

Contractor, in considering these factors, 

may rely upon the information and 

same sources as referenced in 

paragraphs (f)(1)(ii)(C) and (D) of this 

clause; 

(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 or otherwise as 

delineated in Stevenson-Wydler, as 

amended. 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) A final technical report, upon 

completion of a CRADA, shall be 

provided to DOE’s Office of Scientific 

and Technical Information; reports 

marked as Protected CRADA 

Information will not be released to the 

public for a period in accordance with 

the terms of the CRADA. 

(iv) 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) SPP, ACT and user facility 

programs. (i) SPP, ACT and User 

Facility Agreements (UFAs) may be 

available for use by the Contractor in 

addition to CRADAs. The Contractor 

agrees to inform prospective CRADA 

participants, which are intending to 

substantially pay full cost recovery for 

the effort under a proposed CRADA, of 

the availability of alternative forms of 

agreements, i.e., SPP, ACT 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 SPP, 

ACT 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 SPP, ACT 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 negotiation, 

approval or performance 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 entity of 

the CRADA; or 

(2) Receives a gift or gratuity from any 

entity, other than the Contractor, that 

has a substantial interest in the entity of 

the CRADA; or 

(B) A financial interest in any entity, 

other than the Contractor, that has a 

substantial interest in the entity 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 negotiation, 

approval or performance of the 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 (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 

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 

negotiation, approval or performance of 

the CRADA. 

(o) Technology transfer in other costsharing 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 Contactor’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 


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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. 

(End of clause) 

Alternate I [December 2024]. As 

prescribed in 970.2770–4(b), add the 

following definition and new paragraph 

(q): 

Privately funded technology transfer 

means the prosecuting, maintaining, 

licensing, and marketing of inventions 

which are not owned by the 

Government (and not related to 

CRADAs) when such activities are 

conducted entirely without the use of 

Government funds. 

(q) Nothing in paragraphs (c), (e), (f), 

(g), (h), and (i) of this clause are 

intended to apply to the contractor’s 

privately funded technology transfer 

activities if such privately funded 

activities are addressed elsewhere in the 

contract. 

(End of alternate) 

Alternate II (DEC 2000). As prescribed 

in 970.2770–4(c), the contracting officer 

shall substitute the phrase ‘‘weapon 

production facility’’ wherever the word 

‘‘laboratory’’ appears in the clause. 

■ 312. Amend section 970.5227–4 by 

revising the introductory text, clause 

date, and paragraph (c) to read as 

follows: 

970.5227–4 Authorization and consent. 

Insert the following clause in 

solicitations and contracts in 

accordance with 970.2702–70: 

Authorization and Consent [December 

2024] 

* * * * * 

(c)(1) The Contractor agrees to 

include, and require inclusion of, the 

Authorization and Consent clause at 48 

CFR 52.227–1, without Alternate 1, but 

suitably modified to identify the parties, 

in all subcontracts expected to exceed 

the simplified acquisition threshold at 

any tier for supplies or services, 

including construction, architectengineer services, and materials, 

supplies, models, samples, and design 

or testing services. 

(2) The Contractor agrees to include, 

and require inclusion of, paragraph (a) 

of this Authorization and Consent 

clause, suitably modified to identify the 

parties, in all subcontracts at any tier for 

research and development activities 

expected to exceed the simplified 

acquisition threshold. 

(3) Omission of an authorization and 

consent clause from any subcontract, 

including those valued less than the 

simplified acquisition threshold does 

not affect this authorization and 

consent. 

(End of clause) 

■ 313. Amend section 970.5227–5 by: 

■ a. Revising the introductory text and 

clause date; and 

■ b. In paragraph (c), removing 

‘‘$100,000’’ and adding in its place ‘‘the 

simplified acquisition threshold’’. 

The revisions read as follows: 

970.5227–5 Notice and assistance 

regarding patent and copyright 

infringement. 

Insert the following clause in 

solicitations and contracts in 

accordance with 970.2702–70: 

Notice and Assistance Regarding Patent 

and Copyright Infringement [December 

2024] 

* * * * * 

970.5227–6 [Amended] 

■ 314. Amend section 970.5227–6 in the 

introductory text by removing 

‘‘970.2702–3’’ and adding in its place 

‘‘970.2702–70’’. 

970.5227–7 [Amended] 

■ 315. Amend section 970.5227–7 in the 

introductory text by removing 

‘‘970.2702–4’’ and adding in its place 

‘‘970.2702–70’’. 

970.5227–8 [Amended] 

■ 316. Amend section 970.5227–8 in the 

introductory text by removing 

‘‘970.2702–4’’ and adding in its place 

‘‘970.2702–70’’. 

970.5227–9 [Amended] 

■ 317. Amend section 970.5227–9 in the 

introductory text by removing 

‘‘970.2704–6’’ and adding in its place 

‘‘970.2702–70’’. 

■ 318. Section 970.5227–10 is revised to 

read as follows: 

970.5227–10 Patent rights—management 

and operating contracts, nonprofit 

organization or small business firm 

contractor. 

As prescribed in 970.2703–2(a), insert 

the following clause: 

Patent Rights—Management and 

Operating Contracts, Nonprofit 

Organization or Small Business Firm 

Contractor [December 2024] 

(a) Definitions—DOE licensing 

regulations means the Department of 

Energy patent licensing regulations at 10 

CFR part 781. 

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). 

Initial Patent Application means, as to 

a given Subject Invention, the first 

provisional or non-provisional U.S. 

national application for patent as 

defined in 37 CFR 1.9(a)(2) and (3), 

respectively, the first international 

application filed under the Patent 

Cooperation Treaty as defined in 37 CFR 

1.9(b) which designates the United 

States, or the first application for a Plant 

Variety Protection certificate, as 

applicable. 

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.). 

Made when used in relation to any 

invention means the conception or first 

actual reduction to practice of such 

invention. 

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. 

Patent Counsel means the Department 

of Energy (DOE) Patent Counsel 

assisting the DOE contracting activity. 

The Patent Counsel is the first and 

primary point of contact for activities 

described in this clause. 

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. 

Small business firm means a small 

business concern as defined at section 2 

of Public Law 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 


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subcontracting at 13 CFR 121.3–8 and 

121.3–12, respectively, are used. 

Statutory Period means the one-year 

period before the effective filing date of 

a claimed invention during which 

exceptions to prior art exist per 35 

U.S.C. 102(b) as amended by the LeahySmith America Invents Act, Public Law 

112–29. 

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. 

(b) Allocation of Principal Rights. (1) 

Retention of title by the Contractor. 

Except for exceptional circumstance 

subject inventions outlined in paragraph 

(b)(3)(i) of this clause, 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) Treaties and international 

agreements. Any rights acquired by the 

Contractor in subject inventions are 

subject to any disposition of right, title, 

or interest in or to subject inventions 

provided for in treaties or international 

agreements identified at DOE’s Office of 

International Affairs (International 

Commitments—IEC) (https://energy.gov/ 

ia/iec-documents), 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. 

(3) 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 paragraph (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 in which the Contractor 

cannot retain title without specific grant 

of a waiver from DOE: 

(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); and 

(D) DOE Steel Initiative and Metals 

Initiative. 

(ii) As determined by the DOE, 

inventions made under any agreement, 

contract or subcontract related to the 

exceptional circumstance subject 

inventions subject to specific terms 

outlined in those declarations of 

exceptional circumstance, the 

Contractor may take title to these 

inventions consistent with the terms of 

the contract. A complete list of 

declarations of exceptional 

circumstance, which is maintained by 

the Office of the Assistant General 

Counsel for Technology Transfer and 

Intellectual Property, include but is not 

limited to the following— 

(A) U.S. Advanced Battery 

Consortium; 

(B) Any funding agreement which is 

funded in part by the Electric Power 

Research Institute (EPRI) or the Gas 

Research Institute (GRI); 

(C) Any funding agreement related to 

Energy Efficiency, Storage, Integration 

and Related Technologies, Renewable 

Energy, and Advanced Energy 

Technologies which is funded by the 

Office of Energy Efficiency and 

Renewable Energy (EERE) or the 

Advanced Research Projects Agency— 

Energy (ARPA–E); 

(D) Solid State Energy Conversion 

Alliance (SECA), if the Contractor is a 

participant in the ‘‘Core Technology 

Program’’; 

(E) Solid State Lighting (SSL) 

Program, if the Contractor is a 

participant in the ‘‘Core Technology 

Program.’’ 

(F) Cybersecurity, Energy Security, 

and Emergency Response; 

(G) Quantum Information Science 

Technologies; and 

(H) Domestic Manufacture of DOE 

Science and Energy Technologies (S&E 

DEC). 

(iii) Inventions subject to 

‘‘Department of Energy Determination of 

Exceptional Circumstances under the 

Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies’’ (S&E DEC) 

issued June 7, 2021, must comply with 

the requirements of paragraph (t) of this 

section to the maximum extent 

authorized by the S&E DEC unless 

otherwise directed by DOE Patent 

Counsel in writing. 

(iv) 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. 

(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 employeeinventor, 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 employeeinventor. 

(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, 


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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. 

(c) Subject invention disclosure, 

election of title and filing of patent 

application by contractor—(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 

or electronic report and shall identify 

the contract or any other agreement 

under which the invention was made 

and the inventor(s) and all sources of 

funding by Budget and Resources (B&R) 

code for the invention. The funding 

program may require other invention 

identifiers such as related award 

numbers or funding opportunity 

announcement numbers. 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 or made available 

for publication at the time of disclosure. 

The disclosure shall identify if 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 notify the 

agency of any accepted manuscript 

describing the invention for publication 

or of any on sale or public use planned 

by the contractor that is 60 days prior 

to the end of the Statutory Period. The 

Contractor shall notify 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 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 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 first filed 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 paragraphs 

(c)(1), (2), and (3) of this clause may, at 

the discretion of Patent Counsel, be 

granted. 

(5) Publication review. During the 

course of the work under this contract, 

the Contractor 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. 

Contractor’s Invention Identification 

Procedures under paragraph (f)(5) of this 

clause should address timely disclosure 

of inventions, consider whether review 

is required, and if so, facilitate such 

review by Contractor personnel 

responsible for patent matters prior to 

disclosure of publications in order that 

public disclosure of such information 

will not adversely affect the patent 

interest of DOE or the Contractor. 

(6) Reporting to DOE and Approvals. 

Whenever possible in this paragraph (c), 

the Government electronic reporting 

system (e.g., iEdison or similar system) 

shall be used for reporting and 

approvals. 

(d) Conditions when the Government 

may obtain title. 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. 

(2) In those countries in which the 

Contractor fails to file a patent 

application within the times specified 

in paragraph (c) of this clause; provided, 

however, that if the Contractor has filed 

a patent application in a country after 

the times specified in paragraph (c), 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. 

(5) Upon a breach of paragraph (t) of 

this clause. 

(e) Minimum rights of the Contractor 

and protection of the Contractor’s right 

to file—(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 


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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—(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 paragraph (b) or (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 paragraph (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 file a patent application, 

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 60 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) Patent 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 401. 

(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 37 

CFR 401.14 with Alternate I of 48 CFR 

952.227–11, Patent Rights—Retention 

by the Contractor, 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 

paragraph (b)(3) of this clause. The 

subcontractor retains all rights provided 

for the contractor in the patent rights 

clause at 37 CFR 401.3(a) and 401.14. If 

the S&E DEC, or any other related DEC, 

is applicable (see paragraph (b)(3)(iii) of 

this clause), the Contractor shall use 

Alternate II of DEAR 952.227–11, Patent 

Rights—Retention by the Contractor. 

(3) Inclusion of patent rights clause— 

subcontractors other than non-profit 

organizations and small business firms. 

Except for the subcontracts described in 

paragraph (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 a patent waiver granted by DOE 

Patent Counsel, the contractor must 

consult with DOE patent counsel with 

respect to the appropriate patent clause. 

For subcontracts subject to exceptional 

circumstances, the contractor must 

consult with DOE patent counsel with 

respect to the appropriate patent clause 

which may require the use of Alternate 

II of 48 CFR 952.227–13 Patent Rights— 

Acquisition by the Government. 

(4) DOE and subcontractor contract. 

With respect to subcontracts at any tier, 

DOE, the subcontractor, and the 


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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. 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. 

In addition, the Contractor shall provide 

data to DOE for the annual data call for 

the Department of Commerce report that 

includes the number of patent 

applications filed, the number of patents 

issued, licensing activity, 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. 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. The Contractor 

agrees that, with respect to any subject 

invention in which it has acquired title, 

DOE has the right under 35 U.S.C. 203 

and 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 

under applicable law stated above. 

(k) Special provisions for contracts 

with nonprofit organizations. 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 paragraph (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. 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—(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 

under which a subject invention was 

reported, or a statement that no such 

subject inventions under subcontracts 

were reported during the contract 

performance period. 

(n) Examination of Records Relating 

to Subject 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 


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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. 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—(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 paragraph (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—(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. 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. 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) U.S. Competitiveness. (1) 

Consistent with 48 CFR 970.5227–3(f) 

U.S. Industrial Competitiveness, for all 

subject inventions under the S&E DEC, 

the Contractor agrees that any products 

embodying any subject invention or 

produced through the use of any subject 

invention will be manufactured 

substantially in the United States unless 

the Contractor can show to the 

satisfaction of DOE that it is not 

commercially feasible. In the event DOE 

agrees to foreign manufacture, there will 

be a requirement that the Government’s 

support of the technology be recognized 

in some appropriate manner, e.g., 

alternative binding commitments to 

provide an overall net benefit to the U.S. 

economy. The Contractor agrees that it 

will not license, assign or otherwise 

transfer any subject invention to any 

entity, at any tier, unless that entity 

agrees to these same requirements. In 

the event that the Contractor or other 

such entity receiving rights in the 

Subject Invention undergoes a change in 

ownership amounting to a controlling 

interest, the Contractor or other such 

entity receiving rights shall ensure 

continual compliance with the 

requirements of this paragraph (t)(1) and 

shall inform DOE, in writing, of the 

change in ownership within six months 

of the change. The Contractor and any 

successor assignee will convey to DOE, 

upon written request from DOE, title to 

any subject invention, upon a breach of 

this paragraph (t)(1). The Contractor will 

include this paragraph (t) in all 

subawards/contracts, regardless of tier, 

for experimental, developmental or 

research work. 

(2) The requirements, rights and 

administration of paragraph (t)(1) of this 

clause are further clarified as follows: 

(i) Waivers. The Contractor (or any 

entity subject to this paragraph) may 

request a waiver or modification of 

paragraph (t)(1) of this clause. Such 

waivers or modifications may be granted 

when DOE determines that: 

(A) The Contractor (or any entity 

subject to paragraph (t)(1) of this clause) 

has demonstrated, with quantifiable 

data, that manufacturing in the United 

States is not commercially feasible; and 

(B) A waiver or modification would 

best serve the interests of the United 

States and the general public. 

(ii) Final determination of breach of 

paragraph (t)(1) of this clause. If DOE 

determines the Contractor is in breach 

of paragraph (t)(1) of this clause, the 

Department may issue a final written 

determination of such breach. If such 

determination includes a demand for 

title to the subject inventions under the 

award, the demand for title will cause 

an immediate conveyance and 


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assignment of all rights to all subject 

inventions subject to the breach to the 

United States Government, including all 

pending U.S. and foreign patent 

applications and all U.S. and foreign 

patents that cover any subject invention, 

without compensation. Any such final 

determination shall be signed by the 

cognizant DOE Contracting Officer with 

the concurrence of the Assistant General 

Counsel for Technology Transfer & 

Intellectual Property. Advanced notice 

will be provided for comment to the 

Contractor before any final written 

determination by DOE is issued. 

(iii) Pursuant to Contractor’s 

agreement in paragraph (t)(1) of this 

clause to not license, assign or 

otherwise transfer rights to subject 

inventions at any tier unless the entity 

agrees to paragraph (t)(1) of this clause: 

any such license, assignment, or other 

transfer of right to any subject invention 

developed under the award shall 

contain paragraph (t)(1) of this clause 

suitably modified to properly identify 

the parties. If a licensee, assignee, or 

other transferee of rights to any subject 

invention is finally determined by DOE 

in writing to be in breach of paragraph 

(t)(1) of this clause, the applicable 

license, assignment or other transfer 

shall be deemed null and void. 

Advanced notice will be provided for 

comment to the non-complying party 

before any final written determination 

by DOE is made. 

(iv) For clarity, if the forfeiture of title 

to any subject invention is due to a 

breach of paragraph (t)(1) of this clause, 

the Contractor shall not be entitled to 

any compensation, or to a license to the 

subject invention including the reserved 

license in paragraph (e)(1) of this clause, 

unless DOE grants a license through a 

separately agreed upon licensing 

agreement. 

(u) 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. 

(v) Unauthorized Access. The 

contractor will protect all invention 

reports, unpublished patent 

applications and other invention related 

information from unauthorized access 

and disclosure using at least commonly 

available techniques and practices. In 

the event that the Contractor becomes 

aware of unauthorized access to 

invention reports, unpublished patent 

applications and other invention related 

information, the Contractor shall notify 

Patent Counsel within 7 days. 

(End of clause) 

Alternate 1 Weapons Related Subject 

Inventions. As prescribed at 970.2703– 

2(g), insert the following definition in 

paragraph (a) and add paragraph (b)(7), 

respectively: 

(a) Definitions—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—(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. 

(End of alternate) 

■ 319. Amend section 970.5227–11 by: 

■ a. Revising the introductory text, 

clause heading and date, and paragraphs 

(a), (c)(2) introductory text, (c)(2)(vii), 

(c)(5), (f)(2), and (f)(3); and 

■ b. Adding paragraph (o). 

The revisions and addition read as 

follows: 

970.5227–11 Patent rights—management 

and operating contracts, for-profit 

contractor, no patent waiver. 

As prescribed in 970.2702–2(b), insert 

the following clause: 

Patent Rights—Management and 

Operating Contracts, for-Profit 

Contractor, No Patent Waiver [December 

2024] 

(a) Definitions—Department of Energy 

(DOE), as used in this clause, includes 

the National Nuclear Security 

Administration (NNSA), and unless 

otherwise identified or indicated, 

includes the coordinated efforts of the 

DOE and NNSA. 

DOE licensing regulations means the 

Department of Energy patent licensing 

regulations at 10 CFR part 781. 

DOE patent waiver regulations means 

the Department of Energy patent waiver 

regulations at 10 CFR part 784. 

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.). 

Made when used in relation to any 

invention means the conception or first 

actual reduction to practice of such 

invention. 

Patent counsel means DOE Patent 

Counsel assisting the contracting 

activity. The Patent Counsel is the first 

and primary point of contact for 

activities described in this clause. 

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. 

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. 

* * * * * 

(c) * * * 

(2) 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 the subject invention is 

reported to Contractor personnel 

responsible for patent matters, in 

accordance with paragraph (c)(1) of this 

clause, or, if earlier, within six (6) 

months after the Contractor has 

knowledge of the subject invention, but 

in any event no less than 60 days 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: 

* * * * * 

(vii) All sources of funding by Budget 

and Resources (B&R) code. The funding 

program may require other invention 

identifiers such as related award 

numbers or funding opportunity 

announcement numbers; and 

* * * * * 

(5) 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 of the effectiveness of 

such procedures by the Contracting 


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Officer. Whenever possible in this 

paragraph (c), the Government 

electronic reporting system (e.g., 

iEdison or similar system) may be used 

for reporting and approvals. 

* * * * * 

(f) * * * 

(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 37 

CFR 401.14 with Alternate I of 48 CFR 

952.227–11 Patent Rights—Retention by 

the Contractor, 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. If the 

Department of Energy Determination of 

Exceptional Circumstances under the 

Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies’’ (S&E DEC) 

issued 6/7/2021, or any related DEC, is 

applicable, the Contractor shall use 

Alternate II of 48 CFR 952.227–11 

Patent Rights—Retention by the 

Contractor. 

(3) Inclusion of patent rights clause— 

subcontractors other than non-profit 

organizations and small business firms. 

Except for the subcontracts described in 

paragraph (f)(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 patent waiver 

granted by DOE Patent Counsel, in any 

contract for experimental, 

developmental, demonstration or 

research work. If the S&E DEC, or any 

related DEC, is applicable, the 

Contractor shall use Alternate II of 48 

CFR 952.227–13 Patent Rights— 

Acquisition by the Government. 

* * * * * 

(o) Unauthorized Access. The 

contractor will protect all invention 

reports, unpublished patent 

applications and other invention related 

information from unauthorized access 

and disclosure using at least commonly 

available techniques and practices. In 

the event that the Contractor becomes 

aware of unauthorized access to 

invention reports, unpublished patent 

applications and other invention related 

information, the Contractor shall notify 

Patent Counsel within 7 days. 

(End of clause) 

■ 320. Section 970.5227–12 is revised to 

read as follows: 

970.5227–12 Patent rights—management 

and operating contracts, for-profit 

contractor, patent waiver. 

As prescribed in 970.2703–2(c), insert 

the following clause: 

Patent Rights—Management and 

Operating Contracts, For-Profit 

Contractor, Patent Waiver [December 

2024] 

(a) Definitions—Department of Energy 

(DOE), as used in this clause, includes 

the National Nuclear Security 

Administration (NNSA), and unless 

otherwise identified or indicated, 

includes the coordinated efforts of the 

DOE and NNSA. 

DOE licensing regulations means the 

Department of Energy patent licensing 

regulations at 10 CFR part 781. 

DOE patent waiver regulations means 

the Department of Energy patent waiver 

regulations at 10 CFR part 784. 

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). 

Initial Patent Application means, as to 

a given Subject Invention, the first 

provisional or non-provisional U.S. 

national application for patent as 

defined in 37 CFR 1.9(a)(2) and (3), 

respectively, the first international 

application filed under the Patent 

Cooperation Treaty as defined in 37 CFR 

1.9(b) which designates the United 

States, or the first application for a Plant 

Variety Protection certificate, as 

applicable. 

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.). 

Made when used in relation to any 

invention means the conception or first 

actual reduction to practice of such 

invention. 

Patent counsel means DOE Patent 

Counsel assisting the contracting 

activity. The Patent Counsel is the first 

and primary point of contact for 

activities described in this clause. 

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. 

Statutory period means the one-year 

period before the effective filing date of 

a claimed invention during which 

exceptions to prior art exist per 35 

U.S.C. 102(b) as amended by the LeahySmith America Invents Act, Public Law 

112–29. 

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. 

(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 

paragraph (b)(2) of this clause or a 

determination of greater rights pursuant 

to paragraph (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 paragraph (b)(3) 

of this clause, paragraph (t) 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 

paragraph (b)(2) or a determination of 

greater rights pursuant to paragraph 

(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. 


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(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 

paragraph (b)(3) of this clause, and any 

reservations and conditions deemed 

appropriate by the Secretary of Energy 

or designee. 

(5) Treaties and international 

agreements. Any rights acquired by the 

Contractor in subject inventions are 

subject to any disposition of right, title, 

or interest in or to subject inventions 

provided for in treaties or international 

agreements identified at DOE’s Office of 

International Affairs (international 

Commitments—IEC) (https://energy.gov/ 

ia/.iec-documents), 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. 

(6) Exceptional circumstance subject 

inventions. Except to the extent that 

rights are retained by the Contractor by 

a determination of greater rights in 

accordance with paragraph (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 in which the Contractor 

cannot retain title without specific grant 

of a waiver from DOE: 

(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); and 

(D) DOE Steel Initiative and Metals 

Initiative. 

(ii) As determined by the DOE, 

inventions made under any agreement, 

contract or subcontract related to the 

exceptional circumstance subject 

inventions subject to specific terms 

outlined in those declarations of 

exceptional circumstance, the 

Contractor may take title to these 

inventions consistent with the terms of 

this contract. A complete list of 

declarations of exceptional 

circumstance, which is maintained by 

the Office of the Assistant General 

Counsel for Technology Transfer and 

Intellectual Property, include but is not 

limited to the following— 

(A) U.S. Advanced Battery 

Consortium; 

(B) Any funding agreement which is 

funded in part by the Electric Power 

Research Institute (EPRI) or the Gas 

Research Institute (GRI); 

(C) Any funding agreement related to 

Energy Efficiency, Storage, Integration 

and Related Technologies, Renewable 

Energy, and Advanced Energy 

Technologies which is funded by the 

Office of Energy Efficiency and 

Renewable Energy (EERE) or the 

Advanced Research Projects Agency— 

Energy (ARPA–E); 

(D) Solid State Energy Conversion 

Alliance (SECA), if the Contractor is a 

participant in the ‘‘Core Technology 

Program’’; 

(E) Solid State Lighting (SSL) 

Program, if the Contractor is a 

participant in the ‘‘Core Technology 

Program.’’ 

(F) Cybersecurity, Energy Security, 

and Emergency Response; 

(G) Quantum Information Science 

Technologies; and 

(H) Domestic Manufacture of DOE 

Science and Energy Technologies (S&E 

DEC). 

(iii) Inventions subject to 

‘‘Department of Energy Determination of 

Exceptional Circumstances under the 

Bayh-Dole Act to Further Promote 

Domestic Manufacture of DOE Science 

and Energy Technologies’’ (S&E DEC) 

issued 6/7/2021, including as applied 

through DOE policy, must comply with 

the requirements of paragraph (t) of this 

clause to the maximum extent 

authorized by the S&E DEC unless 

otherwise directed by DOE Patent 

Counsel or the funding source (e.g. 

Work Authorization or Annual 

Operating Plan). Notwithstanding 

paragraph (b)(7) of this clause, 

inventions subject to the S&E DEC may 

continue to be retained by the 

Contractor (subject to the requirements 

of paragraph (t) of this clause) without 

a request for greater rights, unless 

subject to another Determination of 

Exceptional Circumstances. 

(iv) Exceptional circumstances subject 

inventions are as set forth in the 

applicable patent waiver. In addition, 

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. 

(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 paragraph 

(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 paragraph (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 

paragraph (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 


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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 no less than 

60 days before any on sale, public use, 

or publication of the subject invention. 

The disclosure to DOE shall be in the 

form of a written or electronic 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. The funding 

program may require other invention 

identifiers such as related award 

numbers or funding opportunity 

announcement numbers; and 

(viii) The identification of any 

agreement relating to the subject 

invention, including Cooperative 

Research and Development Agreements 

and Strategic Partnership Projects 

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 (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. 

Notwithstanding the above, inventions 

subject to the S&E DEC do not require 

approval from Patent Counsel prior to 

any release or publication of 

information. 

(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 paragraph (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 paragraph 

(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 

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 

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 paragraph (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 statutory period, 

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, 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. 

(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 paragraphs (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. 

(8) Reporting to DOE and Approvals. 

Whenever possible in this paragraph (c), 

the Government electronic reporting 

system (e.g., iEdison or similar system) 

may be used for reporting and 

approvals. 

(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 paragraph (b)(2) or (7) of 

this clause, DOE may acquire such title 

or rights from the Contractor, or DOE 

may decide against acquiring such title 


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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 

paragraphs (c)(1) and (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 paragraph (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 paragraph (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 not file a nonprovisional application, or 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 paragraph (b)(2) of this 

clause is terminated under paragraph (v) 

of this clause. 

(6) Upon a breach of paragraph (t) 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 

paragraph (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. 

Contractor must obtain DOE approval of 

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 have 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 paragraph (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 paragraph (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 60 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 


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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 37 

CFR 401.14, with Alternate I of 48 CFR 

952.227–11 Patent Rights—Retention by 

the Contractor, 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 

paragraph (b)(6) of this clause. If the 

S&E DEC, or any related DEC, is 

applicable (see paragraph (b)(6)(iii) of 

this clause), the Contractor shall use 

Alternate II of 48 CFR 952.227–11 

Patent Rights—Retention by the 

Contractor. 

(3) Inclusion of patent rights clause— 

subcontractors other than non-profit 

organizations or small business firms. 

Except for the subcontracts described in 

paragraph (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 patent waiver 

granted by DOE Patent Counsel, in any 

contract for experimental, 

developmental, demonstration or 

research work. If the S&E DEC, or any 

related DEC, is applicable (see 

paragraph (b)(6)(iii) of this clause), the 

Contractor shall use Alternate II of 48 

CFR 952.227–13 Patent Rights— 

Acquisition by the Government. 

(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. In addition, the Contractor 

shall provide data to DOE for the annual 

data call for the Department of 

Commerce report that included the 

number of patent applications filed, the 

number of patents issued, licensing 

activity, 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. 


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(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 under the 

patent waiver. 

(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 paragraphs (f)(3) and (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 paragraph (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) 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 


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an annual appraisal to evaluate the 

Contractor’s effectiveness in identifying 

and protecting subject inventions in 

accordance with DOE policy. 

(t) U.S. Competitiveness. (1) 

Consistent with 48 CFR 970.5227–3(f) 

U.S. Industrial Competitiveness, for all 

subject inventions under the S&E DEC, 

the Contractor agrees that any products 

embodying any subject invention or 

produced through the use of any subject 

invention will be manufactured 

substantially in the United States unless 

the Contractor can show to the 

satisfaction of DOE that it is not 

commercially feasible. In the event DOE 

agrees to foreign manufacture, there will 

be a requirement that the Government’s 

support of the technology be recognized 

in some appropriate manner, e.g., 

alternative binding commitments to 

provide an overall net benefit to the U.S. 

economy. The Contractor agrees that it 

will not license, assign or otherwise 

transfer any subject invention to any 

entity, at any tier, unless that entity 

agrees to these same requirements. In 

the event that the Contactor or other 

such entity receiving rights in the 

Subject Invention undergoes a change in 

ownership amounting to a controlling 

interest, the Contractor or other such 

entity receiving rights shall ensure 

continual compliance with the 

requirements of this paragraph (t)(1) and 

shall inform DOE, in writing, of the 

change in ownership within six months 

of the change. The Contractor and any 

successor assignee will convey to DOE, 

upon written request from DOE, title to 

any subject invention, upon a breach of 

this paragraph (t)(1). The Contractor will 

include this paragraph (t) in all 

subawards/contracts, regardless of tier, 

for experimental, developmental or 

research work. 

(2) The requirements, rights and 

administration of paragraph (t)(1) of this 

clause are further clarified as follows: 

(i) Waivers. The Contractor (or any 

entity subject to this paragraph) may 

request a waiver or modification of 

paragraph (t)(1) of this clause. Such 

waivers or modifications may be granted 

when DOE determines that (A) the 

Contractor (or any entity subject to 

paragraph (t)(1) of this clause) has 

demonstrated, with quantifiable data, 

that manufacturing in the United States 

is not commercially feasible and (B) a 

waiver or modification would best serve 

the interests of the United States and the 

general public. 

(ii) Final determination of breach of 

paragraph (t)(1) of this clause. If DOE 

determines the Contractor is in breach 

of paragraph (t)(1) of this clause, the 

Department may issue a final written 

determination of such breach. If such 

determination includes a demand for 

title to the subject inventions under the 

award, the demand for title will cause 

an immediate conveyance and 

assignment of all rights to all subject 

inventions subject to the breach to the 

United States Government, including all 

pending U.S. and foreign patent 

applications and all U.S. and foreign 

patents that cover any subject invention, 

without compensation. Any such final 

determination shall be signed by the 

cognizant DOE Contracting Officer with 

the concurrence of the Assistant General 

Counsel for Technology Transfer & 

Intellectual Property. Advanced notice 

will be provided for comment to the 

Contractor before any final written 

determination by DOE is issued. 

(iii) License, Assignment, or Transfer. 

Pursuant to Contractor’s agreement in 

paragraph (t)(1) of this clause to not 

license, assign or otherwise transfer 

rights to subject inventions at any tier 

unless the entity agrees to paragraph 

(t)(1) of this clause: any such license, 

assignment, or other transfer of right to 

any subject invention developed under 

the award shall contain paragraph (t)(1) 

of this clause suitably modified to 

properly identify the parties. If a 

licensee, assignee, or other transferee of 

rights to any subject invention is finally 

determined by DOE in writing to be in 

breach of paragraph (t)(1) of this clause, 

the applicable license, assignment or 

other transfer shall be deemed null and 

void. Advanced notice will be provided 

for comment to the non-complying party 

before any final written determination 

by DOE is made. 

(iv) Compensation. For clarity, if the 

forfeiture of title to any subject 

invention is due to a breach of 

paragraph (t)(1) of this clause, the 

Contractor shall not be entitled to any 

compensation, or to a license to the 

subject invention including the reserved 

license in paragraph (e)(1) of this clause, 

unless DOE grants a license through a 

separately agreed upon licensing 

agreement. 

(u) 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. At the discretion 

of the Patent Counsel, authority to 

review publications prior to release may 

be delegated to the Contractor. 

(v) Termination of contractor’s 

advance class waiver. If a request by the 

Contractor for an advance class waiver 

pursuant to paragraph (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. 

(w) Unauthorized Access. The 

contractor will protect all invention 

reports, unpublished patent 

applications and other invention related 

information from unauthorized access 

and disclosure using at least commonly 

available techniques and practices. In 

the event that the Contractor becomes 

aware of unauthorized access to 

invention reports, unpublished patent 

applications and other invention related 

information, the Contractor shall notify 

Patent Counsel within 7 days. 

(End of clause) 

Alternate 1 Weapons Related Subject 

Inventions. As prescribed at 970.2703– 

2(g), insert the following definition in 

paragraph (a) and add paragraph (b)(10) 

respectively: 

(a) Definitions—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. (10) 

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 a right to 

retain title to any weapons related 

subject inventions. 


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(End of alternate) 

■ 321. Section 970.5232–1 is amended 

by revising the introductory text to read 

as follows: 

970.5232–1 Reduction or suspension of 

advance, partial, or progress payments 

upon finding of substantial evidence of 

fraud. 

As prescribed in 970.3200–11, insert 

the following clause: 

* * * * * 

■ 322. Section 970.5232–2 is revised to 

read as follows: 

970.5232–2 Payments and advances. 

As prescribed in 970.3270(a)(1), insert 

the following clause: 

Payments and Advances [December 

2024] 

(a) Installments of fixed-fee. The 

fixed-fee payable, if applicable, 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. 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. 

(c) Timing of payments. Funds for 

payments of allowable costs, including 

payments for pension plan 

contributions, shall be drawn from the 

special financial institution account 

when those payments are made, not 

when the costs are accrued. 

(d) Special financial institution 

account—use. All advances of 

Government funds shall be withdrawn 

pursuant to a payments cleared 

financing arrangement prescribed by 

DOE in favor of the financial institution 

or, at the option of the Government, 

shall be made by direct payment or 

other payment mechanism to the 

Contractor, and shall be deposited only 

in the special financial institution 

account referred to in the Special 

Financial Institution Account 

Agreement, which is incorporated into 

this contract as Appendix—‘‘lll’’. 

The contractor will follow current 

procedures and requirements for 

establishing and managing the special 

financial institution account that are 

stated in the Department’s Financial 

Management Handbook and relevant 

Department of Treasury rules. 

(e) Use of the special financial 

institution account for unallowable 

costs. Government funds in the special 

financial institution account shall be 

used only 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. 

(f) Title to funds advanced. Title to 

the unexpended balance of any funds 

advanced and of any special financial 

institution account established pursuant 

to this clause shall remain in the 

Government and be superior to any 

claim or lien of the financial institution 

of deposit or others. It is understood 

that an advance to the Contractor 

hereunder is not a loan to the Contractor 

and will not require the payment of 

interest by the Contractor, and that the 

Contractor acquires no right, title or 

interest in or to such advance other than 

the right to make expenditures 

therefrom, as provided in this clause. 

(g) Financial settlement. The 

Government shall promptly pay to the 

Contractor the unpaid balance of 

allowable costs (or other items 

specifically approved in writing by the 

Contracting Officer) 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 Governmentowned 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 Contract 

Clause, 48 CFR 970.5228–1, 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. 

(h) Claims. Claims for credit against 

funds advanced for payment shall be 

accompanied by such supporting 

documents and justification as the 

Contracting Officer shall prescribe. 

(i) Discounts. 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. 

(j) Collections. 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 


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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. 

(k) Direct payment of charges. 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. 

(l) Determining allowable costs. 

Regardless of contractor type, 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. 

(End of clause) 

Alternate I (DEC 2000). As prescribed 

in 970.3270(a)(1)(i), if a separate fixedfee is provided for a separate item of 

work, paragraph (a) of the basic clause 

should be modified to permit payment 

of the entire fixed-fee upon completion 

of that item. 

Alternate II [December 2024]. As 

prescribed in 970.3270(a)(1)(ii), when 

total available fee provisions are used, 

replace paragraph (a) of the basic clause 

with the following paragraph (a): 

(a) Payment of Total available fee: 

Base Fee and Performance Fee. (1) The 

base fee amount, if any, is payable in 

equal monthly installments. Total 

available fee amount earned is payable 

following the Government’s 

Determination of Total Available Fee 

Amount Earned in accordance with the 

clause of this contract entitled ‘‘Total 

Available Fee: Base Fee Amount and 

Performance Fee Amount.’’ Base fee 

amount and total available fee amount 

earned 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 

base fee amount or total available fee 

amount earned payment may be 

withdrawn against the payments cleared 

financing arrangement without the prior 

written approval of the contracting 

officer. 

(2) Provisional fee. Additionally, if the 

Contracting Officer authorizes 

provisional payment of fee and for only 

as long as the Contracting Officer 

authorizes it, the Contractor may 

withdraw from funds advanced on the 

last working day of each month a 

provisional fee equal to 6 percent of the 

annual total available fee amount. The 

Contracting Officer may for any reason 

withdraw his/her authorization 

allowing the Contractor’s withdrawal of 

provisional fee if at any time in his/her 

judgement the Contractor will not earn 

the provisional fee. The Contracting 

Officer’s decision to authorize the 

Contractor’s withdrawal of provisional 

fee or to withdraw such authorization is 

solely within the Contracting Officer’s 

discretion. Following the Government’s 

determination of total available fee 

amount earned, the Contractor may 

withdraw from funds advanced the 

amount by which earned fee exceeds 

provisional fee; and must immediately 

return to funds advanced the amount by 

which provisional fee exceeds earned 

fee. 

(End of alternate) 

Alternate III [December 2024]. As 

prescribed in 970.3270(a)(1)(iii), the 

following paragraph (k) shall be 

included in management and operating 

contracts with integrated accounting 

systems: 

(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. 308), as 

amended, and the False Claims Act (31 

U.S.C. 3279, et seq.). 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. 

(End of alternate) 

Alternate IV [December 2024]. As 

prescribed in 970.3270(a)(1)(iv), the 

following paragraph (k) shall be 

included in management and operating 

contracts without integrated accounting 

systems: 

(k) Certification and penalties. The 

Contractor shall prepare and submit a 

‘‘Statement of Costs Incurred and 

Claimed’’ (Cost Statement) for the total 

of net expenditures incurred for the 

period covered by the Cost Statement. It 

is anticipated that this will be an annual 

submission unless otherwise agreed to 

by the Contracting Officer. 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. 308), as 

amended. 

(End of alternate) 

■ 323. Amend section 970.5232–3 by 

revising the clause date and paragraphs 

(a), (c), and (h)(1) to read as follows: 

970.5232–3 Accounts, records, and 

inspection. 

* * * * * 

Accounts, Records, and Inspection 

[December 2024] 

(a) Accounts. The Contractor shall 

maintain a separate and distinct set of 

accounts, records, documents, and other 

evidence showing and supporting: all 

allowable costs; collections accruing to 

the Contractor in connection with the 

work under this contract, other 

applicable credits, negotiated fixed 

amounts, 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. 

* * * * * 

(c) Audit of subcontractors’ incurred 

costs. If the subcontractor’s incurred 

costs are a factor in determining the 

amount the Contractor pays the 

subcontractor and submits to the 

Government for reimbursement, the 

Contractor shall: perform a sufficient 

amount of audit work (that the 

Contractor’s auditor or the Contracting 

Officer agrees is sufficient) of its 

subcontractor’s incurred costs to 

provide reasonable assurance the costs 

are allowable; or arrange for an audit by 

the cognizant government audit agency 


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through the Contracting Officer of its 

subcontractor’s incurred costs. 

* * * * * 

(h) * * * 

(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 or subcontractor’s directly 

pertinent records involving transactions 

related to this contract or a subcontract 

hereunder and to interview any 

employee regarding such transactions. 

* * * * * 

■ 324. Section 970.5232–5 is amended 

by revising the introductory text to read 

as follows: 

970.5232–5 Liability with respect to cost 

accounting standards. 

As prescribed in 970.3270(a)(4), insert 

the following clause: 

* * * * * 

■ 325. Section 970.5232–6 is amended 

by revising the introductory text to read 

as follows: 

970.5232–6 Strategic partnership project 

funding authorization. 

As prescribed in 970.3270(a)(5), insert 

the following clause: 

* * * * * 

■ 326. Section 970.5232–7 is revised to 

read as follows: 

970.5232–7 Financial management 

system. 

As prescribed in 970.3270(b)(1), insert 

the following clause: 

Financial Management System 

[December 2024] 

(a) The Contractor shall maintain and 

administer a financial management 

system that is suitable to provide proper 

accounting in accordance with DOE 

requirements. In addition, the 

Contractor shall maintain and 

administer a financial management 

system that is in accordance with 

Generally Accepted Accounting 

Principles (GAAP) for Federal entities, 

as defined by the Federal Accounting 

Standards Advisory Board and 

implemented by the DOE Financial 

Management Handbook and other 

implementing policies. The financial 

system will also permit the proper 

allocation of costs to separately funded 

activities consistent with Cost 

Accounting Standards (CAS), as defined 

by 48 CFR part 9900 and any 

implementing DOE policies and ensures 

that accountability for the assets can be 

maintained. 

(b) The Contractor shall submit to the 

Contracting Officer for written approval 

an annual plan for new financial 

management systems and/or subsystems 

and major enhancements and/or 

upgrades to the currently existing 

financial systems and/or subsystems. 

The Contractor shall notify DOE thirty 

(30) days in advance of any planned 

implementation of any substantial 

changes to the plan and, as requested by 

the Contracting Officer, shall submit any 

such changes to the Contracting Officer 

for written approval before 

implementation. 

(End of clause) 

■ 327. Amend section 970.5235–1 by 

revising the clause date and paragraphs 

(c) and (d) to read as follows: 

970.5235–1 Federally funded research and 

development center sponsoring agreement. 

* * * * * 

Federally Funded Research and 

Development Center Sponsoring 

Agreement [December 2024] 

* * * * * 

(c) Unless otherwise provided by the 

contract, the Contractor may accept 

work from a nonsponsor (as defined in 

48 CFR 35.017) in accordance with the 

requirements and limitations of 48 CFR 

970.3501, and the clause at 48 CFR 

970.5217–1, Strategic Partnership 

Projects Program. Only the Contracting 

Officer can place work on the contract; 

and obligate the Government to 

reimburse the contractor for the work. 

(d) As an FFRDC, the Contractor shall 

not use its privileged information or 

access to government facilities to 

compete with the private sector. 

Specific guidance on restricted activities 

is contained in DOE Order 481.1, 

Strategic Partnership Projects (NonDepartment of Energy Funded Work)), 

or its successor version. 

* * * * * 

■ 328. Amend section 970.5242–1 by 

revising the introductory text to read as 

follows: 

970.5242–1 Penalties for unallowable 

costs. 

As prescribed in 970.4207–370, insert 

the following clause: 

* * * * * 

■ 329. Amend section 970.5244–1 by 

revising the clause date and paragraphs 

(a), (c), (e), (f), (h)(1), (l), (w), and (x) to 

read as follows: 

970.5244–1 Contractor purchasing 

system. 

* * * * * 

Contractor Purchasing System 

[December 2024] 

(a) General. The Contractor shall 

develop, implement, and maintain 

formal policies, practices, and 

procedures to be used in the award of 

subcontracts consistent with this clause 

and 48 CFR subpart 970.44, as well as 

48 CFR subpart 44.3. The Contractor’s 

purchasing system and methods shall be 

fully documented, consistently applied, 

and acceptable to the Department of 

Energy (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 obligations 

include, among other things, retaining 

documentation to justify the cost on any 

flexibly priced subcontract or any 

subcontract with a flexibly priced 

element. DOE reserves the right at any 

time to require that the Contractor 

submit for approval any or all 

subcontracts or 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 

Contractor’s purchasing function, 

including the Contractor’s compliance 

with its approved system and methods. 

Such appraisals shall be performed 

against the criteria and measures set 

forth in 48 CFR part 44, subpart 44.3. 

The Contractor’s approved purchasing 

system and methods shall include the 

requirements set forth in paragraphs (b) 

through (y) of this clause. 

* * * * * 

(c) Acquisition of real property. Real 

estate or real property interests shall be 

acquired in accordance with 48 CFR 

part 917, subpart 917.74. 

* * * * * 

(e) Audit of subcontractors. (1) The 

Contractor shall provide for— 

(i) Periodic post-award audit—or a 

sufficient amount of audit work (that the 

Contractor’s auditor or the Contracting 

Officer agrees is sufficient)—to provide 

reasonable assurance that all claimed 

subcontract costs are allowable for: 

flexibly priced subcontracts at all tiers; 

and the flexibly priced elements in any 

subcontracts at all tiers (‘‘flexibly 

priced’’ subcontracts and elements 

include Cost-Reimbursement 

subcontracts, Time-and-Materials 

subcontracts, cost-reimbursement 

elements in Fixed-Priced contracts, 

etc.); and 

(ii) Audits, where necessary, to 

provide a valid basis for pre-award or 

cost or price analysis. 


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(2) Responsibility for determining the 

costs allowable under each costreimbursement subcontract remains 

with the contractor or next higher-tier 

subcontractor. The Contractor shall 

provide, in appropriate cases, for the 

timely joint involvement of the 

Contractor and the DOE Contracting 

Officer in resolution of subcontract cost 

allowability. In no case, however, shall 

the Contractor’s subcontract audit 

arrangements preclude the Contracting 

Officer’s determination of the 

allowability or unallowability of the 

subcontract costs the Contractor claims 

for reimbursement. 

(3) Where audits of subcontractors at 

any tier are required, the Contractor 

shall consult with the DOE Contracting 

Officer on the best approach for 

obtaining an audit; this may involve 

employing external auditors. The 

Contractor shall interact with the 

cognizant Federal agency in a manner 

appropriate to the magnitude and nature 

of the subcontracted work. In no case, 

however, shall subcontractor auditing 

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 contractoraffiliated sources shall be determined in 

accordance with 48 CFR 970.4402–3 

and 31.205–26(e). 

(f) Bonds and insurance. (1) The 

Contractor shall require performance 

bonds in amounts as set forth in 48 CFR 

28.102–2(b) for all fixed-priced and 

unit-priced construction subcontracts in 

excess of $150,000. The Contractor shall 

consider the use of performance bonds 

in fixed-price non-construction 

subcontracts, where appropriate. 

(2) For fixed-price, unit-priced and 

cost reimbursement construction 

subcontracts in excess of $150,000, 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 

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 $35,000, but 

not greater than $150,000, 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 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. 

* * * * * 

(h) * * * 

(1) Independent Estimates. A detailed, 

independent estimate of costs shall be 

prepared for all construction work to be 

subcontracted that is expected to exceed 

the simplified acquisition threshold. 

* * * * * 

(l) Indemnification. Except for PriceAnderson Nuclear Hazards Indemnity, 

no subcontractor may be indemnified 

except with the prior approval of the 

Head of the Contracting Activity, in 

consultation with local legal counsel. 

* * * * * 

(w) Unclassified controlled nuclear 

information. Subcontracts involving 

unclassified controlled nuclear 

information shall be treated in 

accordance with 10 CFR part 1017. 

(x) Subcontract flowdown 

requirements. 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) Construction Wage Rate 

requirements, formerly known as DavisBacon, clauses prescribed in 48 CFR 

22.407. 

(2) Foreign Travel clause prescribed 

in 48 CFR 952.247–70. 

(3) Counterintelligence clause 

prescribed in 48 CFR 904.404(d)(7). 

(4) Service Contract Labor Standards, 

formerly known as 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 970.1504–201. 

(7) Workforce Restructuring and 

Displaced Employee Hiring Preference 

clause prescribed in 48 CFR 970.2672– 

3. 

(8) Service Contract Reporting clause 

prescribed in 48 CFR 4.1705. 

(9) Contract Work Hours and Safety 

Standards—Overtime Compensation as 

prescribed in 48 CFR 22.305. 

(10) Paid Sick leave under Executive 

Order 13706 as prescribed in 48 CFR 

22.2110. 

(11) Collective Bargaining Agreements 

Management and Operating Contracts as 

prescribed in 48 CFR 970.2201–130. 

(12) Workplace Substance Abuse 

Programs at DOE Sites as prescribed in 

48 CFR 970.2605–4. 

(13) Contracts for Materials, Supplies, 

Articles, and Equipment clause 

prescribed in 48 CFR 22.610. 

* * * * * 

■ 330. Section 970.5245–1 is revised to 

read as follows: 

970.5245–1 Property. 

As prescribed in 970.4501–2, insert 

the following clause: 

Property [December 2024] 

(a) Application of regulations. The 

Contractor shall comply with the 

applicable requirements in 41 CFR 

chapters 101, 102 and 109 in addition 

to this clause. 

(b) Furnishing of Government 

property. The Government reserves the 

right to furnish any property or services 

required for the performance of the 

work under this contract. 

(c) Title to property. 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 


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become a fixture or lose its identity as 

personal property by reason of affixation 

to any realty. 

(d) Identification. 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. 

(e) Disposition. 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. 

(f) Protection of government 

property—management of high-risk 

property and classified materials. (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 (DOE) 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. 

(g) Risk of loss of Government 

property. (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 and classified materials; or 

(C) Failure of contractor managerial 

personnel to establish, administer, or 

properly maintain an approved property 

management system in accordance with 

41 CFR chapter 109. 

(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 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 this clause is not 

allowable. 

(h) Steps to be taken in event of loss. 

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. 

(i) Government property for 

Government use only. Government 

property shall be used only for the 

performance of this contract. 

(j) Property Management—(1) 

Property Management System. (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) [Reserved] 

(C) Full integration with the 

Contractor’s other administrative and 

financial systems; and 

(D) A method for continuously 

improving property management 


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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 

paragraph (i)(2) of this clause. 

(2) Property Inventory. (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. 

(k) 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. 

(l) The Contractor shall include this 

clause in all cost reimbursable 

subcontracts. 

(End of clause) 

Alternate I [December 2024]. As 

prescribed in 970.4501–2, when the 

award is to a nonprofit contractor, 

replace paragraph (k) of the basic clause 

with the following paragraph (k): 

(k) 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 

Project as defined in DOE Order 413.3B, 

or successor version (Version in effect 

on effective date of contract). 

[FR Doc. 2024–23817 Filed 11–12–24; 8:45 am] 

BILLING CODE 6450–01–P 


lotter on DSK11XQN23PROD with RULES2