Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19891

operations continued at the site until

1983 when overpass construction work

began. Excavation activities conducted

as part of the overpass construction led

to the discovery of the three on-site dry

wells. Sludge from the wells was found

to be Resource Conservation and

Recovery Act (RCRA) characteristic due

to ignitability. In June 1987, under a

Consent Decree signed by the former

owners of the property, St. Joseph

County and IDEM, approximately 210

cubic yards of soil and sludge were

removed from in and around the dry

wells and disposed of properly. Because

a RCRA facility upgradient from the

WSS site was a documented source of

volatile organic compound (VOC)

groundwater contamination, it was not

clear what contribution the

contamination on the WSS site may

have had on the adjacent municipal

well field. Due to the historical VOC

contamination of the municipal well

field west of the site, the potential for

groundwater contamination at the WSS

site to migrate to the well field, and the

soil contamination discovered at WSS,

the site was scored using the Hazard

Ranking System (HRS) method, was

proposed for NPL listing in June 1988,

and was placed on the NPL in October

1990. A remedial investigation was

conducted at the site from September to

December 1990 to characterize the

nature and extent of contamination and

to assess potential risks to human health

and the environment that the site posed.

Based on the results of the remedial

investigation and the site baseline risk

assessment, a Proposed Plan

recommending No Action was prepared.

A public meeting was held to address

questions about the recommendation,

and EPA responded to all public

comments. None of the comments

received voiced objections to the

recommended action. A ROD for the

WSS site was signed on September 29,

1995, which documented the decision

that no further remedial action was

necessary at the site due to the lack of

unacceptable risks posed by the site to

human health and the environment.

C. Characterization of Risk

The remedial investigation of the

WSS site included the collection of

seventeen (17) surface and subsurface

soil samples, the installation and

sampling of eleven (11) monitoring

wells, and the collection of groundwater

samples from one adjacent extraction

well and six municipal wells. All

samples were analyzed for VOCs, semivolatile organic compounds (SVOCs),

base/neutral extractable compounds,

pesticides, polychlorinated biphenyls,

and inorganic compounds (including

metals). Sampling results were used to

prepare a baseline risk assessment for

the site. After results from the baseline

risk assessment were carefully analyzed

by an EPA toxicologist, EPA determined

that the WSS site does not pose a

significant current or future risk to

human health or the environment. An

investigation at and cleanup of the

RCRA facility upgradient of the WSS

site that is a documented source of VOC

contamination in groundwater

continues under oversight from the

RCRA Program. In addition, monitoring

of wells in all of the City of South Bend

municipal well fields continues under

the auspices of the State of Indiana to

ensure that all requirements of the Safe

Drinking Water Act (SDWA) are being

met.

V. Conclusion

One of the three criteria for deletion

specifies that EPA may delete a site

from the NPL if ‘‘the remedial

investigation has shown that the release

poses no significant threat to public

health or the environment and,

therefore, taking of remedial measures is

not appropriate’’. EPA, with

concurrence from IDEM, has determined

that this criterion for deletion has been

met. Consequently, EPA is proposing

deletion of the WSS site from the NPL.

Documents supporting this action are

available in the site deletion docket.

Dated: April 11, 1996.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 96–11078 Filed 5–2–96; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF ENERGY

48 CFR Parts 901, 905, 906, 908, 915,

916, 917, 922, 928, 932, 933, 935, 936,

942, 945, 952 and 971

RIN 1991–AB25

Acquisition Regulation; Regulatory

Reinvention

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Energy

(DOE) proposes to amend the

Department of Energy Acquisition

Regulation (DEAR) in its continuing

effort to streamline and simplify the

acquisition process and to meet the

objectives of several Executive Orders

(EO), including: EO 12861, Elimination

of One-Half of Executive Branch

Internal Regulations; EO 12931, Federal

Procurement Reform; and EO 12866,

Regulatory Planning and Review. This

proposed rule revises certain regulatory

material and deletes other material that

has been determined to be

nonregulatory and unnecessary. Specific

material to be revised or deleted from

the DEAR is summarized in the

‘‘Section-by-Section Analysis’’

appearing later in this document.

DATES: Written comments should be

forwarded no later than July 2, 1996.

ADDRESSES: Send written comments to

the attention of Kevin M. Smith, Office

of Policy (HR–51), Office of

Procurement and Assistance

Management, Department of Energy,

1000 Independence Avenue, SW.,

Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT:

Kevin M. Smith, (202) 586–8189.

SUPPLEMENTARY INFORMATION:

I. Background

II. Section-by-Section Analysis

III. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility

Act

D. Review Under the Paperwork Reduction

Act

E. Review Under Executive Order 12612

F. Review Under the National

Environmental Policy Act

G. Public Hearing Determination

I. Background

Executive Order (EO) 12861, dated

September 11, 1993, Elimination of

One-Half of Executive Branch Internal

Regulations, was issued by the President

to streamline Government operations,

improve productivity, and improve

customer service. EO 12931, dated

October 13, 1994, Federal Procurement

Reform, calls for significant changes to

make the Government procurement

process more effective and efficient. EO

12866, dated September 30, 1993,

Regulatory Planning and Review,

requires agencies to review regulations

to improve effectiveness and to reduce

regulatory burden. This proposed rule

represents DOE’s third action to

eliminate existing regulatory material

that is unnecessary. In promulgating

this rule, the Department will further

the objectives of the EOs by reducing

the volume of the DEAR; streamlining

operations; reducing constraints,

prescriptive requirements, and

administrative processes; making

requirements outcome oriented vs.

process oriented; and, defining roles

and assigning responsibilities at the

lowest appropriate level within the

procurement organization. This

proposed rule makes three types of

changes to the DEAR. Certain regulatory

coverage is being revised and condensed
19892 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

to simplify and streamline the

acquisition process; substantive policy

changes have not been made in these

areas. In addition, to implement certain

requirements of the Federal Acquisition

Streamlining Act of 1994, Pub. L. 103–

355, regarding the availability of protest

files and agency protest reviews, two

new solicitation provisions are being

added. Consistent with the requirements

of E.O. 12979, dated October 25, 1995,

Agency Procurement Protests, language

also is being added to encourage the use

of alternative dispute resolution

procedures in appropriate

circumstances. Finally, other material

that has been determined to be

nonregulatory in nature is being

removed from the DEAR, including

informational material and internal

guidance and procedures.

II. Section-by-Section Analysis

1. Part 901 is revised to simplify the

language, remove informational

material, and remove internal

procedures addressing deviations to the

regulation, ratification of unauthorized

commitments, and selection of

contracting officers and their

representatives. 2. Subpart 905.4, addressing the

internal DOE process for release of

contract information, is removed.

3. Section 906.302, citing the Atomic

Energy Act authority for circumstances

permitting other than full and open

competition, is removed. 4. Section 906.303, addressing the

internal procedures for processing

noncompetitive justifications, is

removed.

5. Part 908, addressing required

sources of supplies and services, is

revised to simplify the language, remove

informational material, remove internal

procedures, and to move subpart 908.3,

addressing the acquisition of utility

services, to the new Part 941.

6. Subpart 915.5, addressing

unsolicited proposals, is revised to

simplify the language, remove

informational material, and remove

internal procedures. 7. Subpart 915.6, addressing internal

source selection procedures, is removed. 8. Subsection 915.970–8, addressing

weighted guidelines application

considerations, is revised to remove

informational material and internal

guidance. 9. Section 916.405, containing

recommended language for award fee

contract clauses, is removed.

10. Subpart 917.70, addressing cost

participation, is revised to simplify the

language, remove informational

material, and remove internal

procedures.

11. Subpart 917.72, addressing

Program Opportunity Notices for

commercial demonstrations, is revised

to simplify the language, remove

informational material, and remove

internal procedures. 12. Subpart 917.73, addressing

Program Research and Development

Announcements, is revised to simplify

the language, remove informational

material, and remove internal

procedures. 13. Subpart 917.74, addressing the

acquisition, use and disposal of real

estate, is revised to simplify the

language, remove informational

material, and remove internal

procedures. 14. Subpart 917.75, providing

guidance for the use of multiple awardsphased acquisitions, is removed. 15. Section 922.805, providing

guidance to the contracting officer for

obtaining affirmative action program

posters, is removed. 16. Subpart 922.70, providing

guidance regarding construction

laborers and mechanics, is removed.

17. Subpart 928.1, addressing the use

of bonds, is revised to simplify the

language, remove informational

material, and remove internal

procedures. 18. Section 932.102, providing

information on contract financing, is

revised to simplify the language, remove

informational material, and remove

internal procedures. 19. Subpart 932.7, providing

information on contract financing, is

removed.

20. Section 932.802, providing

information on the use of partial

assignments, is removed. 21. Section 932.805, providing

internal procedures for the information

to be furnished to assignees, is removed. 22. Subpart 932.9, addressing prompt

payments, is revised to simplify the

language, remove informational

material, and remove internal

procedures. 23. Section 932.7000, providing

introductory information on loan

guarantees, is removed. 24. Section 932.7001, providing

definitions, is removed.

25. Subpart 933.1, addressing

protests, is revised to simplify the

language, remove informational

material, remove internal procedures,

add two new solicitation provisions that

address protest file availability and

agency protest review, and add

alternative dispute resolution

procedures. 26. Section 935.016, addressing

research opportunity announcements, is

revised to simplify the language, remove

informational material, and remove

internal procedures.

27. Sections 936.601, 936.602–2,

936.602–3, and 936.602–4, providing

internal procedures for contracting for

architect-engineer services, are

removed.

28. Sections 936.603, 936.605, and

936.606, providing internal procedures

for contracting for architect-engineer

services, are removed.

29. Subpart 936.72, providing internal

information and guidance for the

acquisition of special equipment, is

removed.

30. Part 941, addressing the

acquisition of utility services, is added

to include the coverage, as revised, that

was previously contained in Part 908.

31. Subsection 942.705–1, addressing

final indirect cost rate determinations, is

revised to simplify the language.

32. Subsection 942.705–3, addressing

negotiated rates for educational

institutions, is revised to simplify the

language.

33. Subsection 942.705–4, addressing

negotiated rates for state and local

governments, is revised to simplify the

language.

34. Subsection 942.705–5, addressing

negotiated rates for nonprofit

organizations other than educational

and state and local governments, is

revised to simplify the language.

35–36. Subpart 942.70, providing

internal guidance and procedures for

obtaining audit support services, is

removed.

37. Subsection 945.505–5, providing

internal guidance for making records of

plant equipment, is removed.

38. Subsection 945.505–14, providing

information for the completion of

Government property reports, is

removed.

39. Section 952.214, addressing

clauses related to sealed bidding, is

removed as there is no material under

that section title.

40. Section 952.215, addressing

clauses related to contracting by

negotiation, is removed as the

prescriptions for those clauses were

removed in an earlier final rule.

41. Subsection 952.233–2 is revised to

change the DOE office that receives

copies of protests.

42. Subsection 952.233–4 is added to

include a new solicitation provision

regarding the availability of protest files.

43. Subsection 952.233–5 is added to

include a new solicitation provision

regarding agency protest reviews.

44. Subsection 952.251–70 is

amended to correct the date of the

contract clause Contractor Employee

Travel Discounts.

45. Part 971, providing internal

procedures for the review and approval

of contract actions, is removed.
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19893

III. Procedural Requirements

A. Review Under Executive Order 12866

This regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ (58 FR 51735, October 4,

1993). Accordingly, this action was not

subject to review, under that Executive

Order, by the Office of Information and

Regulatory Affairs of the Office of

Management and Budget (OMB).

B. Review Under Executive Order 12778

Section 2 of Executive Order 12778

instructs each agency to adhere to

certain requirements in promulgating

new regulations and reviewing existing

regulations. These requirements, set

forth in sections 2(a) and (b)(2), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected legal

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable

effort to ensure that the regulation

specifies clearly any preemptive effect,

effect on existing Federal law or

regulation, and retroactive effect;

describes any administrative

proceedings to be available prior to

judicial review and any provisions for

the exhaustion of such administrative

proceedings; and defines key terms.

DOE certifies that this proposed rule

meets the requirements of sections 2(a)

and (b) of Executive Order 12778.

C. Review Under the Regulatory

Flexibility Act

This proposed rule was reviewed

under the Regulatory Flexibility Act of

1980, Pub. L. 96–354, which requires

preparation of a regulatory flexibility

analysis for any rule that is likely to

have a significant economic impact on

a substantial number of small entities.

This proposed rule will have no impact

on interest rates, tax policies or

liabilities, the cost of goods or services,

or other direct economic factors. It will

also not have any indirect economic

consequences such as changed

construction rates. DOE certifies that

this proposed rule will not have a

significant economic impact on a

substantial number of small entities

and, therefore, no regulatory flexibility

analysis has been prepared.

D. Review Under the Paperwork

Reduction Act

No new information collection or

recordkeeping requirements are

imposed by this proposed rule.

Accordingly, no OMB clearance is

required under the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501,

et seq.).

E. Review Under Executive Order 12612

Executive Order 12612, entitled

‘‘Federalism,’’ 52 FR 41685 (October 30,

1987), requires that regulations, rules,

legislation, and any other policy actions

be reviewed for any substantial direct

effects on States, on the relationship

between the Federal Government and

the States, or in the distribution of

power and responsibilities among

various levels of government. If there

are sufficient substantial direct effects,

then the Executive Order requires

preparation of a federalism assessment

to be used in all decisions involved in

promulgating and implementing a

policy action. DOE has determined that

this proposed rule will not have a

substantial direct effect on the

institutional interests or traditional

functions of States.

F. Review Under the National

Environmental Policy Act

Pursuant to the Council on

Environmental Quality Regulations (40

CFR 1500–1508), the Department has

established guidelines for its

compliance with the provisions of the

National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321, et seq.).

Pursuant to Appendix A of Subpart D of

10 CFR 1021, National Environmental

Policy Act Implementing Procedures

(Categorical Exclusion A6), DOE has

determined that this proposed rule is

categorically excluded from the need to

prepare an environmental impact

statement or environmental assessment.

G. Public Hearing Determination

DOE has concluded that this proposed

rule does not involve any significant

issues of law or fact. Therefore,

consistent with 5 U.S.C. 553, DOE has

not scheduled a public hearing.

List of Subjects in 48 CFR Parts 901,

905, 906, 908, 915, 916, 917, 922, 928,

932, 933, 935, 936, 942, 945, 952, and

971

Government procurement.

Issued in Washington, D.C., on April 24,

1996.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement

and Assistance Management.

For the reasons set out in the

preamble, Chapter 9 of Title 48 of the

Code of Federal Regulations is proposed

to be amended as set forth below:

1. The authority citation for Parts 901,

905, 906, 908, 915, 916, 917, 922, 928,

932, 933, 935, 936, 942, 945, 952, and

971 continues to read as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

2. Part 901 is revised to read as

follows:

PART 901—FEDERAL ACQUISITION

REGULATIONS SYSTEM

Subpart 901.1—Purpose, Authority,

Issuance

Sec.

901.101 Purpose.

901.102 Authority.

901.103 Applicability.

901.104 Issuance.

901.104–1 Publication and code

arrangement.

901.104–2 Arrangement of regulations.

901.104–3 Copies.

901.105 OMB control numbers.

Subpart 901.3—Agency Acquisition

Regulations

901.301–70 Other issuances related to

acquisition.

Subpart 901.6—Contracting Authority and

Responsibilities

901.601 General.

901.602–3 Ratification of unauthorized

commitments.

Subpart 901.1—Purpose, Authority,

Issuance

901.101 Purpose.

The Department of Energy

Acquisition Regulation (DEAR)

establishes uniform acquisition policies

which implement and supplement the

Federal Acquisition Regulation (FAR).

901.102 Authority.

The DEAR and amendments thereto

are issued by the Procurement Executive

pursuant to a delegation from the

Secretary 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. 486(c)), and other applicable law.

901.103 Applicability.

The FAR and DEAR apply to all DOE

acquisitions of supplies and services

which obligate appropriated funds

unless otherwise specified in this

chapter.

901.104 Issuance.

901.104–1 Publication and code

arrangement.

(a) The DEAR and its subsequent

changes are published in the Federal

Register, cumulative form in the Code of

Federal Regulations, and a separate

loose-leaf edition.

(b) The DEAR is issued as Chapter 9

of Title 48 of the Code of Federal

Regulations.
19894 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

901.104–2 Arrangement of regulations.

(a) General. The DEAR is divided into

the same parts, subparts, sections,

subsections and paragraphs as is the

FAR.

(b) Numbering. The numbering

illustrations at (FAR) 48 CFR 1.104–2(b)

apply to the DEAR, but the DEAR

numbering will be preceded with a 9 or

a 90. Material which supplements the

FAR will be assigned the numbers 70

and up.

901.104–3 Copies.

Copies of the DEAR published in the

Federal Register or Code of Federal

Regulations may be purchased from the

Superintendent of Documents,

Government Printing Office,

Washington, DC 20402.

901.105 OMB control numbers.

The Paperwork Reduction Act of

1980, Public Law 98–511, and the Office

of Management and Budget’s

implementing regulations at 5 CFR Part

1320, require that reporting and record

keeping requirements affecting 10 or

more members of the public be cleared

by that Office. The OMB control number

for the collection of information under

48 CFR Chapter 9 is 1910–4100.

Subpart 901.3—Agency Acquisition

Regulations

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

Regulations, the DOE Property

Management Regulations, and DOE

Directives.

Subpart 901.6—Contracting Authority

and Responsibilities

901.601 General.

Contracting authority vests in the

Secretary of Energy. The Secretary has

delegated this authority to the

Procurement Executive. The

Procurement Executive has redelegated

this authority to the Heads of

Contracting Activities (HCA). These

delegations are formal written

delegations containing dollar limitations

and conditions. Each HCA in turn

makes formal contracting officer

appointments within the contracting

activity. 901.602–3 Ratification of

unauthorized commitments.

(b) (2) The Procurement Executive is

authorized to ratify an unauthorized

commitment.

(3) The ratification authority of the

Procurement Executive in paragraph

(b)(2) of this section is delegated to the

Head of the Contracting Activity (HCA)

for individual unauthorized

commitments of $25,000 or under. The

ratification authority of the HCA is

nondelegable.

PART 905—PUBLICIZING CONTRACT

ACTIONS

905.4 [Removed]

3. Subpart 905.4 is removed.

PART 906—COMPETITION

REQUIREMENTS

906.302 [Removed]

4. Section 906.302, including

906.302–70, is removed.

906.303 [Removed]

5. Section 906.303, including

906.303–1, is removed.

6. Part 908 is revised to read as

follows:

PART 908—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

Subpart 908.8—Acquisition of Printing and

Related Supplies

Sec.

908.802 Policy.

Subpart 908.11—Leasing of Motor Vehicles

908.1102 Presolicitation requirements.

908.1104 Contract clauses.

908.1170 Leasing of fuel-efficient vehicles.

Subpart 908.71—Acquisition of Special

Items

908.7100 Scope of subpart.

908.7101 Motor vehicles.

908.7101–1 Consolidated acquisition of

new vehicles by General Services

Administration.

908.7101–3 Direct acquisition.

908.7101–4 Replacement of motor vehicles.

908.7101–5 Used vehicles.

908.7101–6 Acquisition of fuel-efficient

vehicles.

908.7101–7 Government license tags.

908.7102 Aircraft.

908.7103 Office machines.

908.7104 Office furniture and furnishings.

908.7105 Filing cabinets.

908.7106 Security cabinets.

908.7107 Alcohol.

908.7108 Helium.

908.7109 Fuels and packaged petroleum

products.

908.7111 Arms and ammunition.

908.7112 Materials handling equipment

replacement standards.

908.7114 Wiretapping and eavesdropping

equipment.

908.7115 Forms.

908.7116 Electronic data processing tape.

908.7117 Tabulating machine cards.

Subpart 908.8—Acquisition of Printing

and Related Supplies

908.802 Policy.

(b) Inclusion of printing requirements

(limited exceptions are set forth in

paragraphs 35–2 through 35–4 of the

Government Printing and Binding

Regulations) in contracts for supplies

and services is prohibited unless

specifically approved by the Director,

Office of Administrative Services,

Headquarters. Contracting officers shall

insert the clause at 48 CFR 952.208–70.

Subpart 908.11—Leasing of Motor

Vehicles

908.1102 Presolicitation requirements.

(a)(4) Commercial vehicle lease

sources may be used only when the

General Services Administration (GSA)

has advised that it cannot furnish the

vehicle(s) through the Interagency

Motor Pool System and it has been

determined that the vehicle(s) are not

available through the GSA Consolidated

Leasing Program.

908.1104 Contract clauses.

(e) The clause at 48 CFR 952.208–7,

Tagging of Leased Vehicles, shall be

inserted whenever a vehicle(s) is to be

leased over 60 days, except for those

vehicles exempted by (FPMR) 41 CFR

101–38.6.

908.1170 Leasing of fuel-efficient vehicles.

(a) All sedans and station wagons and

certain types of light trucks, as specified

by GSA, that are acquired by lease for

60 continuous days or more for official

use by DOE or its authorized

contractors, are subject to the

requirements of the Energy Policy and

Conservation Act of 1975 (EPCA),

Public Law 94–163 and of Executive

Order 12003 and subsequent

implementing regulations.

(b) Leased vehicles will meet the

miles-per-gallon criteria of, and be

incorporated in, the approved plan of

the fiscal year in which leases are

initiated, reviewed, extended, or

increased in scope. Vehicle leases will

specify the vehicle model type to be

provided.

Subpart 908.71—Acquisition of Special

Items

908.7100 Scope of subpart.

This subpart sets forth requirements

and procedures for the acquisition of

special items by DOE and contractors

authorized to use special sources of

supply to the extent indicated herein.

908.7101 Motor vehicles.

908.7101–1 Consolidated acquisition of

new vehicles by General Services

Administration.

(a) New vehicles shall be procured in

accordance with (FPMR) 41 CFR 101

25.304, 101–26.501, and 101–38.13, and
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19895

(DOE–PMR) 41 CFR 109–25.304, 109–

38.13, and 109–38.51.

908.7101–3 Direct acquisition.

Vehicles may be acquired by DOE

activities directly rather than through

GSA when a waiver has been granted by

GSA. A copy of the activity’s request to

GSA for a waiver shall be forwarded to

the Director, Office of Property

Management, within the Headquarters

procurement organization. In those

cases involving general purpose

vehicles where GSA refuses to grant a

waiver and where it is believed that

acquisition through GSA would

adversely affect or otherwise impair the

program, authority for direct acquisition

shall be obtained from the abovementioned Headquarters official, prior

to acquisition. In the acquisition of

special purpose vehicles for use by DOE

and its authorized contractors, the Head

of the Contracting Activity may

authorize direct purchases. The

purchase price for sedans and station

wagons, shall not exceed any statutory

limitation in effect at the time the

acquisition is made. (See (DOE–PMR) 41

CFR 109–38.5102–4).

908.7101–4 Replacement of motor

vehicles.

(a) The replacement of motor vehicles

shall be in accordance with the

replacement standards prescribed in

(FPMR) 41 CFR 101–38.9 and (DOE–

PMR) 41 CFR 109–38.9.

(b) The Heads of Contracting

Activities may arrange to sell, as

exchange sales, used motor vehicles

being replaced and to apply the

proceeds to the purchase of similar new

vehicles. However, in the event

personnel are not available to make

such sales, or it is in the best interest of

the DOE office, GSA may be requested

to sell the used vehicles.

908.7101–5 Used vehicles.

Heads of Contracting Activities may

authorize the purchase of used vehicles

where justified by special

circumstances; e.g., when new vehicles

are in short supply, the vehicles are to

be used for experimental or test

purposes, or the vehicles are acquired

from exchange sale. In accordance with

(DOE–PMR) 41 CFR 109–38.5102, the

statutory passenger vehicle allocation

requirements for DOE shall apply to any

purchase of used vehicles except in the

case of vehicles to be used exclusively

for experimental or test purposes.

908.7101–6 (Acquisition of fuel-efficient

vehicles.

(a) All purchases of sedans and

station wagons, and certain types of

light trucks as specified by GSA, are

subject to the requirements of the

Energy Policy and Conservation Act of

1975 (EPCA), Public Law 94–163, and of

Executive Orders 12003 and 12375 and

subsequent implementing regulations.

(b) Sedans, station wagons, and light

trucks requisitioned according to an

approved forecast, but not contracted for

by GSA until the subsequent fiscal year,

will be included in the acquisition plan

for the miles-per-gallon criteria of the

year in which GSA signs the purchase

contract along with the new vehicles

planned for acquisition that year.

908.7101–7 Government license tags.

(a) Government license tags shall be

procured and assignments recorded by

DOE offices in accordance with (FPMR)

41 CFR 101–38.303. Special license tags

for security purposes shall be purchased

in accordance with State and local laws,

regulations, and procedures. See (DOE–

PMR) 41 CFR 109–38.3 and 109–38.6 for

additional guidance.

908.7102 Aircraft.

Acquisition of aircraft shall be in

accordance with (DOE–PMR) 41 CFR

109–38.5205.

908.7103 Office machines.

Acquisitions of office machines by

DOE offices and its authorized

contractors shall be in accordance with

(FPMR) 41 CFR 101–25.104, 101–

25.302, 101–25.302–3, 101–25.302–4,

and 101–25.302–6, and 101–25.403, and

(DOE–PMR) 41 CFR 109–25.302, 109–

25.302–3, and 109–25.4.

908.7104 Office furniture and furnishings.

Acquisitions of office furniture and

furnishings by DOE offices shall be in

accordance with (FPMR) 41 CFR 101–

25.104, 101–25.302, 101–25.302–1, 101–

25.302–5, 101–25.302–7, and 101–

25.302–8, 101–25.404 and 101–26.505,

and (DOE–PMR) 41 CFR 109–25.302,

109–25.302–1, and 109–25.350.

908.7105 Filing cabinets.

Acquisitions of filing cabinets shall be

in accordance with (FPMR) 41 CFR 101–

26.308 and 101–25.302–2 and (DOE–

PMR) 41 CFR 109–25.302–2.

908.7106 Security cabinets.

(a) Acquisitions of security cabinets

shall be in accordance with (FPMR) 41

CFR 101–26.507 and the ‘‘prerequisites

to ordering’’ criteria contained in

(FPMR) 41 CFR 101–25.302–2 and

(DOE–PMR) 41 CFR 109–25.302–2.

(b) Fixed-price prime contractors and

lower tier subcontractors may use GSA

acquisition sources for security cabinets

in accordance with (FPMR) 41 CFR 101–

26.407 and FAR 51.

908.7107 Alcohol.

(a) To the fullest extent practicable,

alcohol for use by DOE or its cost-type

contractors shall be procured on a taxfree basis.

(b) ATF regulations relating to the

acquisition and use of alcohol free of

tax, by Government agencies, are set

forth in 26 CFR 213.141 through

213.146.

(c) ATF Form 1444/1486, ‘‘Tax Free

Spirits or Specially Denatured Spirits

for Use of United States,’’ shall be used

for acquisitions of specially denatured

alcohol and ethyl alcohol. Section I of

the form is the application for

permission to acquire and Section II is

the permit. If acquisition from more

than one warehouse is desirable,

separate applications must be made for

withdrawal from each warehouse. When

permits are no longer required, they

should be forwarded to the Bureau of

Alcohol, Tobacco and Firearms for

cancellation. Alcohol procured by use of

the ATF form referred to in this section

shall be used exclusively on DOE work.

(d) The Procurement Executive has

been authorized to sign and delegate to

others authority to sign applications

under Bureau of Alcohol, Tobacco and

Firearms regulations relating to the

acquisition and use of alcohol free of

tax. Specific DOE personnel have been

delegated authority to execute Part I of

Form 1444/1486 by letters to the

Director, Bureau of Alcohol, Tobacco

and Firearms without power of

redelegation. Only the individuals so

authorized shall execute Section I of

these forms.

(e) Applications on the ATF Form

1444/1486 shall be executed in

duplicate by an authorized DOE official

and mailed directly to the address on

the application. Only one permit will be

provided to each field organization. Due

to the numerous locations managed by

field operations offices, the exact

shipping address need not be shown in

block 3 of the form. Shipments,

however, must be addressed to the

‘‘Department of Energy at various

locations within the United States.’’ The

ATF will assign the application a permit

number and return it to the requestor.

Distribution of certified copies shall be

controlled and each holder of a certified

copy recorded.

(f) A signed copy of the permit shall

accompany the original purchase order

issued to the plant or warehouse, where

it shall be retained or returned with the

shipment. Subsequent orders shall refer

to the permit on file in the plant or

warehouse if it was retained.

(g) When alcohol is shipped, the

shipper prepares the required form as

specified by Bureau of Alcohol, Tobacco
19896 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

and Firearms regulations and forwards

them to the consignee. Upon receipt of

the receiving report covering the

shipment, the officer who signed the

purchase order shall execute the

certificate of receipt and forward it to

the appropriate Regional Director,

Bureau of Alcohol, Tobacco and

Firearms. The carrier transporting the

alcohol shall also be given a receipt as

specified by Bureau of Alcohol, Tobacco

and Firearms regulations.

(h) Abandoned and forfeited alcohol

which has come into the custody or

control of a Federal agency may be

obtained by following the procedure set

forth in (FPMR) 41 CFR 101–48.1.

908.7108 Helium.

(a) Acquisitions of helium by DOE

and its authorized contractors shall be

in accordance with this section.

(b) The Helium Act (Public Law 86–

777, as amended (50 U.S.C. 167(d))

provides that, to the extent that supplies

are readily available, whether in gaseous

or liquid form, DOE shall purchase all

major requirements of helium from the

Secretary of Interior, Bureau of Mines,

or from the Bureau of Mines distribution

contractors eligible to sell Bureau of

Mines helium to Federal agencies and

their users in accordance with 30 CFR

part 602.

908.7109 Fuels and packaged petroleum

products.

Acquisitions of fuel and packaged

petroleum products by DOE offices shall

be in accordance with (FPMR) 41 CFR

101–26.602. When contractors are

authorized, consistent with 48 CFR part

951, to acquire such products from

Defense sources, they shall do so in

accordance with (FPMR) 41 CFR 101–

26.602.

908.7111 Arms and ammunition.

(a) Acquisition of arms and

ammunition readily procurable in the

civilian market shall be made in

accordance with regular acquisition

procedures.

(b) Acquisition of arms and

ammunition which are peculiar to the

military services shall be made by

submission of order form to the

Commanding General, Headquarters,

U.S. Army Material Development and

Readiness Command, 5001 Eisenhower

Avenue, Alexandria, VA 22333.

908.7112 Materials handling equipment

replacement standards.

Materials handling equipment shall

be purchased for replacement purposes

in accordance with the standards in

(FPMR) 41 CFR 101–25.405 and (DOE–

PMR) 41 CFR 109–25.4. The Heads of

Contracting Activities are authorized to

replace an item earlier than the date

specified in such standards under

unusual circumstances. A written

justification shall be placed in the

purchase file.

908.7114 Wiretapping and eavesdropping

equipment.

Acquisition by DOE offices and

contractors of devices primarily

designed to be used surreptitiously to

overhear or record conversations is

prohibited.

908.7115 Forms.

(a) DOE forms shall be obtained by

DOE offices in accordance with the DOE

Order 1322.2 (See current version).

Cost-type contractors shall obtain DOE

forms through the DOE contracting

officer.

(b) Standard, optional, and certain

other agency forms as listed in the GSA

Supply Catalog will be obtained by DOE

offices in accordance with (FPMR) 41

CFR 101–26.302.

(c) Marginally punched continuous

forms shall be obtained in accordance

with (FPMR) 41 CFR 101–26.703.

908.7116 Electronic data processing tape.

(a) Acquisitions of electronic data

processing tape by DOE offices shall be

in accordance with (FPMR) 41 CFR 101–

26.508.

(b) Acquisitions of electronic data

processing tape by authorized

contractors shall be in accordance with

(FPMR) 41 CFR 101–26.508–1.

However, if adequate justification exists,

the Heads of the Contracting Activities

may authorize contractors to obtain

their tape from other sources. When

such an authorization is granted, a copy

of the authorization and justification

shall be retained in the contract file.

908.7117 Tabulating machine cards.

DOE offices shall acquire tabulating

machine cards in accordance with

(FPMR) 41 CFR 101–26.509.

PART 915—CONTRACTING BY

NEGOTIATION

7. Subpart 915.5 is revised to read as

follows:

Subpart 915.5—Unsolicited Proposals

Sec.

915.502 Policy.

915.503 General.

915.505 Content of unsolicited proposals.

915.506 Agency procedures.

915.507 Contracting methods.

915.502 Policy.

(a) Present and future needs demand

the involvement of all resources in

exploring alternative energy sources and

technologies. To achieve this objective,

it is DOE policy to encourage external

sources of unique and innovative

methods, approaches, and ideas by

stressing submission of unsolicited

proposals for government support. In

furtherance of this policy and to ensure

the integrity of the acquisition process

through application of reasonable

controls, the DOE:

(1) Disseminates information on areas

of broad technical concern whose

solutions are considered relevant to the

accomplishment of DOE’s assigned

mission areas;

(2) Encourages potential proposers to

consult with program personnel before

expending resources in the development

of written unsolicited proposals;

(3) Endeavors to distribute unsolicited

proposals to all interested organizations

within DOE;

(4) Processes unsolicited proposals in

an expeditious manner and, where

practicable, keep proposers advised as

discrete decisions are made;

(5) Assures that each proposal is

evaluated in a fair and objective

manner; and,

(6) Assures that each proposal will be

used only for its intended purpose and

the information contained therein will

not be divulged without prior

permission of the proposer.

(b) Extensions of contract work

resulting from unsolicited proposals

shall be processed in accordance with

the procedures at 48 CFR 943.170.

915.503 General.

(f) Unsolicited proposals for the

performance of support services are,

except as discussed in this paragraph,

unacceptable as the performance of such

services is unlikely to necessitate

innovative and unique concepts. There

may be rare instances in which an

unsolicited proposal offers an

innovative and unique approach to the

accomplishment of a support service. If

such a proposal offers a previously

unknown or an alternative approach to

generally recognized techniques for the

accomplishment of a specific service(s)

and such approach will provide

significantly greater economy or

enhanced quality, it may be considered

for acceptance. Such acceptance shall,

however, require approval of the

acquisition of support services in

accordance with applicable DOE

Directives and be processed as a

deviation to the prohibition herein.

915.505 Content of unsolicited proposals.

(b)(5) Unsolicited proposals for

nonnuclear energy demonstration

activities not covered by existing formal

competitive solicitations or program

opportunity notices may include a
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19897

request for federal assistance or

participation, and shall be subject to the

cost sharing provisions of 48 CFR

917.70.

915.506 Agency procedures.

(b) Unless otherwise specified in a

notice of program interest, all

unsolicited proposals should be

submitted to the Unsolicited Proposal

Coordinator, Office of Procurement and

Assistance, Washington, DC 20585. 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.

915.507 Contracting methods.

(d) DOE’s cost participation policy, at

48 CFR 917.70, shall be followed in

determining the extent to which the

DOE will participate in the cost for the

proposed effort.

Subpart 915.6—[Removed]

8. Subpart 915.6 is removed.

9. Subsection 915.970–8 is revised to

read as follows:

915.970–8 Weighted guidelines application

considerations.

The Department has developed

internal procedures to aid the

contracting officer in the application of

weighted guidelines and to assure a

reasonable degree of uniformity across

the Department.

PART 916—TYPES OF CONTRACTS

916.405 [Removed]

10. Section 916.405 is removed.

PART 917—SPECIAL CONTRACTING

METHODS

11. Subpart 917.70 is revised to read

as follows:

Subpart 917.70—Cost Participation

Sec.

917.7000 Scope of subpart.

917.7001 Policy.

Subpart 917.70—Cost Participation.

917.7000 Scope of subpart.

(a) This subpart sets forth the DOE

policy on cost participation by

organizations performing research,

development, and/or demonstration

projects under DOE prime contracts.

This subpart does not cover efforts and

projects performed for DOE by other

Federal agencies.

(b) Cost participation is a generic term

denoting any situation where the

Government does not fully reimburse

the performer for all allowable costs

necessary to accomplish the project or

effort under the contract. The term

encompasses cost sharing, cost

matching, cost limitation (direct or

indirect), participation in kind, and

similar concepts.

917.7001 Policy.

(a) When DOE supports performer

research, development, and/or

demonstration efforts, where the

principal purpose is ultimate

commercialization and utilization of the

technologies by the private sector, and

when there are reasonable expectations

that the performer will receive present

or future economic benefits beyond the

instant contract as a result of

performance of the effort, it is DOE

policy to obtain cost participation. Full

funding may be provided for early

phases of development programs when

the technological problems are still

great.

(b) In making the determination to

obtain cost participation, and evaluating

present and future economic benefits to

the performer, DOE will consider the

technical feasibility, projected economic

viability, societal and political

acceptability of commercial application,

as well as possible effects of other DOEsupported projects in competing

technologies.

(c) The propriety, manner, and

amount of cost participation must be

decided on a case-by-case basis.

(d) Cost participation is required for

demonstration projects unless exempted

by the Under Secretary. Demonstration

projects, pursuant to this subpart,

include demonstrations of technological

advances and field demonstrations of

new methods and procedures, and

demonstrations of prototype commercial

applications for the exploration,

development, production,

transportation, conversion, and

utilization of energy resources.

12. Subpart 917.72 is revised to read

as follows:

Subpart 917.72—Program Opportunity

Notices for Commercial Demonstrations

Sec.

917.7200 Scope of subpart.

917.7201 Policy.

917.7201–1 General.

Subpart 917.72—Program Opportunity

Notices for Commercial

Demonstrations

917.7200 Scope of subpart.

(a) This subpart discusses the policy

for the use of a program opportunity

notice solicitation approach to

accelerate the demonstration of the

technical feasibility and commercial

application of all potentially beneficial

non-nuclear energy sources and

utilization technologies.

(b) This subpart applies to

demonstrations performed by

individuals, educational institutions,

other commercial or industrial

organizations, or other private entities,

or by public entities, including State

and local governments, but not other

Federal agencies. For purposes of this

subpart, commercial demonstration

projects include demonstrations of

technological advances, field

demonstrations of new methods and

procedures, and demonstration of

prototype commercial applications for

the exploration, development,

production, transportation, conversion,

and utilization of non-nuclear energy

resources.

917.7201 Policy.

917.7201–1 General.

(a) It is DOE’s intent to encourage the

submission of proposals to accelerate

the demonstration of the technical,

operational, economic, and commercial

feasibility and environmental

acceptability of particular energy

technologies, systems, subsystems, and

components. Program opportunity

notices will be used to provide

information concerning scientific and

technological areas encompassed by

DOE’s programs. DOE shall, from time

to time, issue program opportunity

notices for proposals for demonstrations

of various forms of non-nuclear energy

and technology utilization.

(b) Each program opportunity notice

shall as a minimum describe: the goal of

the intended demonstration effort; the

time schedule for award; evaluation

criteria; program policy factors; the

amount of cost detail required; and

proposal submission information.

Program policy factors are those factors

which, while not appropriate indicators

of a proposal’s individual merit (i.e.,

technical excellence, proposer’s ability,

cost, etc.), are relevant and essential to

the process of choosing which of the

proposals received will, taken together,

best achieve the program objectives. All

such factors shall be predetermined and

specified in the notice so as to notify

proposers that factors which are
19898 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

essentially beyond their control will

affect the selection process.

13. Subpart 917.73 is revised to read

as follows:

Subpart 917.73—Program Research and

Development Announcements

Sec.

917.7300 Scope of subpart.

917.7301 Policy.

917.7301–1 General.

Subpart 917.73—Program Research

and Development Announcements

917.7300 Scope of subpart.

(a) This subpart discusses the policy

for the use of a program research and

development announcement (PRDA)

solicitation approach to obtain and

select proposals from the private sector

for the conduct of research,

development, and related activities in

the energy field.

917.7301 Policy

917.7301–1 General

(a) PRDAs shall be used to provide

potential proposers with information

concerning DOE’s interest in entering

into arrangements for research,

development, and related projects in

specified areas of interest. It is DOE’s

intent to solicit the submission of ideas

which will serve as a basis for research,

development, and related activities in

the energy field. It is DOE’s desire to

encourage the involvement of small

business concerns, small disadvantage

business concerns, and women-owned

small business concerns in research and

development undertaken pursuant to

PRDAs.

(b) The PRDA should not replace

existing acquisition procedures where a

requirement can be sufficiently defined

for solicitation under standard

advertised or negotiated acquisition

procedures. Similarly, it should not

inhibit or curtail the submission of

unsolicited proposals. However, a

proposal which is submitted as though

it were unsolicited but is in fact

germane to an existing PRDA shall be

treated as though submitted in response

to the announcement or returned

without action to the proposer, at the

proposer’s option. Further, the PRDA is

not to be used in a competitive situation

where it is appropriate to negotiate a

study contract to obtain analysis and

recommendations to be incorporated in

the subsequent request for proposals.

(c) The PRDA is to be used only

where:

(1) Research and development is

required in support of a specific project

area within an energy program with the

objective of advancing the general

scientific and technological base, and

this objective is best achieved through:

(i) A diversity of possible approaches,

within the current state of the art,

available for solving the problems;

(ii) The involvement of a broad

spectrum of organizations in seeking out

solutions to the problems posed;

(iii) The application of the unique

qualifications or specialized capabilities

of many individual proposers which

will enable them to perform portions of

the research project (without necessarily

possessing the qualifications to perform

the entire project) so that the overall

support may be broken into segments

which cannot be ascertained in advance;

and,

(iv) The fostering of new and creative

solutions.

(2) Consistent with paragraph (c)(1) of

this section, it is anticipated that

choices will have to be made among

dissimilar concepts, ideas, or

approaches; and

(3) It is determined that a broad range

of organizations exist that would be

capable of contributing towards the

overall research and development goals

identified in paragraph (c)(1) of this

section.

(d) Each PRDA shall as a minimum

describe: the area(s) of program interest;

time schedule for award; proposal

submittal information; evaluation

criteria; and program policy factors. The

PRDA should clearly emphasize to

proposers that program policy factors

are essentially beyond their control and

will affect the selection process. The

PRDA should also state that DOE

reserves the right to select for award or

support any, all, or none of the

proposals received in response to an

announcement.

14. Subpart 917.74 is revised to read

as follows:

Subpart 917.74—Acquisition, Use, and

Disposal of Real Estate

Sec.

917.7401 General.

917.7402 Policy.

917.7403 Application.

Subpart 917.74—Acquisition, Use, and

Disposal of Real Estate

917.7401 General.

Special circumstances and situations

may arise under cost-type contracts

when, in the performance of their

contract or subcontract, the performer

shall be required, or otherwise find it

necessary, to acquire real estate or

interests therein by:

(a) Purchase, on DOE’s behalf or in its

own name, with title eventually vesting

in the Government.

(b) Lease, and DOE assumes liability

for, or otherwise will pay for the

obligation under the lease.

(c) Acquisition of temporary interest

through easement, license or permit,

and DOE funds the cost of the

temporary interest.

917.7402 Policy.

It is the policy of the Department of

Energy that when the real estate

acquisitions are made, the following

policies and procedures shall be applied

to such acquisitions:

(a) Real estate acquisitions shall be

mission essential; effectively,

economically, and efficiently managed

and utilized; and disposed of promptly,

when not needed;

(b) Acquisitions shall be justified,

with documentation which describes

the need for the acquisitions, general

requirements, cost, acquisition method

to be used, site investigation reports,

site recommended for selection, and

property appraisal reports; and

(c) Acquisition by lease, in addition to

the requirements in paragraphs (a) and

(b) of this section:

(1) Shall not exceed a one-year term

if funded by one-year appropriations.

(2) May exceed a one-year term, when

the lease is for special purpose space

funded by no-year appropriations and

approved by the Department.

(3) Shall contain an appropriate

cancellation clause which limits the

Government’s obligation to no more

than the amount of rent to the earliest

cancellation date plus a reasonable

cancellation payment.

(4) Shall be consistent with

Government laws and regulations

applicable to real estate management.

917.7403 Application.

The clause at 48 CFR 952.217–70

shall be included in contracts or

modifications where contractor

acquisitions are expected to be made.

917.75 [Removed]

15. Subpart 917.75 is removed.

922.805 [Removed]

16. Section 922.805 is removed.

922.70 [Removed]

17. Subpart 922.70 is removed.

PART 928—BONDS AND INSURANCE

18. Subpart 928.1 is revised to read as

follows:

Subpart 928.1—Bonds

Sec.

928.101–1 Policy on use.

928.103–3 Payment bonds.

928.103–70 Review of performance and

payment bonds for other than

construction.
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19899

Subpart 928.1—Bonds

928.101–1 Policy on use.

(a) In addition to the restriction on

use of bid guarantees in FAR 28.101–

1(a), a bid guarantee may be required

only for fixed price or unit price

contracts entered into as a result of

sealed bidding. They may not be

required for negotiated contracts.

928.103–3 Payment bonds.

(a) A determination that is in the best

interest of the Government to require

payment bonds in connection with

other than construction contracts may

be made by the contracting officer on

individual acquisitions.

928.103–70 Review of performance and

payment bonds for other than construction.

A performance or payment bond,

other than an annual bond, shall not

antedate the contract to which it

pertains.

PART 932—CONTRACT FINANCING

19. Section 932.102 is revised to read

as follows:

932.102 Description of contract financing

methods.

(e)(2) Progress payments based on a

percentage or stage of completion may

be authorized by the Head of the

Contracting Activity when a

determination is made that progress

payments based on costs cannot be

practically employed and that there are

adequate safeguards provided for the

administration of progress payments

based on a percentage or stage of

completion.

932.7 [Removed]

20. Subpart 932.7 is removed.

932.802 [Removed]

21. Section 932.802 is removed.

932.805 [Removed]

22. Section 932.805 is removed.

23. Subpart 932.9 is revised to read as

follows:

Subpart 932.9—Prompt Payment

Sec.

932.970 Implementing DOE policies and

procedures.

Subpart 932.9—Prompt Payment

932.970 Implementing DOE policies and

procedures.

(a) Invoice payments. (1) Contract

settlement date. For purposes of

determining any interest penalties

under cost-type contracts, the effective

date of contract settlement shall be the

effective date of the final contract

modification issued to acknowledge

contract settlement and to close out the

contract.

(2) Constructive acceptance periods.

Where the contracting officer

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

basis, that it is not reasonable or feasible

for DOE to perform the acceptance or

approval function within the standard

period, the contracting officer should

specify a longer constructive acceptance

or approval period, as appropriate.

Considerations include, but are not

limited to, the nature of supplies or

services involved, geographical site

location, inspection and testing

requirements, shipping and acceptance

terms, and available DOE resources.

(b) Contract financing payments.

Contracting officers may specify

payment due dates that are less than the

standard 30 days when a determination

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

basis, that a shorter contract financing

payment cycle will be required to

finance contract work. 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 can be reasonably met.

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.

932.7000 [Removed]

24. Section 932.7000 is removed.

932.7001 [Removed]

25. Section 932.7001 is removed.

PART 933—PROTESTS, DISPUTES

AND APPEALS

26. Subpart 933.1 is revised to read as

follows:

Subpart 933.1—Protests

Sec.

933.103 Protests to the agency.

933.104 Protests to GAO.

933.105 Protests to GSBCA.

933.106 Solicitation provisions.

Subpart 933.1—Protests

933.103 Protests to the agency.

(f) If FAR 33.103(f) requires that

award be withheld or performance be

suspended or the awarded contract be

terminated pending resolution of an

agency protest, authority to award and/

or continue performance of the

protested contract may be requested by

the Head of the Contracting Activity

(HCA), concurred in by counsel, and

approved by the Procurement Executive.

(i)(1) Protests filed with the

contracting officer before or after award

shall be decided by the Head of the

Contracting Activity except for the

following cases, which shall be decided

by the Procurement Executive:

(i) The protester requests that the

protest be decided by the 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 DOE acquisition policy.

(2) Upon receipt of a protest

requesting a decision by the

Procurement Executive, the contracting

activity shall immediately provide a

copy of the protest to the Office of

Clearance and Support.

(j) The Department of Energy

encourages direct negotiations between

an offeror and the contracting officer in

an attempt to resolve protests. In those

situations where the parties are not able

to achieve resolution, the Department

favors the use of alternative dispute

resolution (ADR) techniques to resolve

protests. 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. Upon receipt of

a protest requesting a decision at the

Headquarters level, the Office of

Clearance and Support will explore

with the protester whether the use of

ADR techniques would be appropriate

to resolve the protest. Both parties must

agree that the use of such techniques is

appropriate. If the parties do not

mutually agree to utilize ADR to resolve

the protest, the protest will be processed

in accordance with the procedures set

forth in paragraph (k).

(k) Upon receipt of a protest lodged

with the Department, the contracting

officer shall prepare a report similar to

that discussed in FAR 33.104(a)(3)(iii).

In the case of a protest filed at the

Headquarters level, the report shall be

forwarded to the Office of Clearance and

Support within 21 calendar days of

being notified of such a protest with a

proposed response to the protest. The

Procurement Executive (for protests at

the Headquarters level or those specific

HCA protests cited in paragraph (d)(2)

of this section) or an HCA (for protests
19900 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

at the contracting activity level) will

render a decision on a protest within 35

calendar days, unless a longer period of

time is determined to be needed.

933.104 Protests to GAO.

(a)(2) The contracting officer shall

provide the notice of protest.

(b) Protests before award. (1) When

the Department has received notice from

the GAO of a protest filed directly with

the GAO, a contract may not be awarded

until the matter is resolved, unless

authorized by the Head of the

Contracting Activity in accordance with

FAR 33.104(b). Before the Head of the

Contracting Activity authorizes the

award, the required finding shall be

concurred in by the DOE counsel

handling the protest, endorsed by the

Senior Program Official, and approved

by the Procurement Executive. The

finding shall address the likelihood that

the protest will be sustained by the

GAO.

(c) Protests after award. Before the

Head of the Contracting Activity

authorizes the award, the finding

required by FAR 33.104(c)(2) shall be

concurred in by the DOE counsel

handling the protest, endorsed by the

Senior Program Official, and approved

by the Procurement Executive.

(g) Notice to GAO. (1) The report to

the GAO regarding a decision not to

comply with the GAO’s

recommendation, discussed at FAR

33.104(f), shall be provided by the HCA

making the award, after approval of the

Procurement Executive. If a DOE-wide

policy issue is involved, the report shall

be provided by the Procurement

Executive.

(2) It is the policy of the Department

to comply promptly with

recommendations set forth in

Comptroller General Decisions except

for compelling reasons.

(3) The GAO does not have

jurisdiction to consider subcontractor

protests.

933.105 Protests to GSBCA.

(a)(1)(i) The GSBCA does not have

jurisdiction to consider subcontractor

protests.

(d)(2) The determinations and

findings required by FAR 33.105(d)(2)

shall be executed by the HCA.

(4) If the GSBCA suspends the

procurement authority to acquire any

goods or services not previously

delivered and accepted under an

awarded contract, the contracting officer

shall invoke the clause at FAR 52.233–

3, ‘‘Protest After Award,’’ to cause the

contractor to cease performance and to

suspend related activities that may

result in additional obligations being

incurred by the Government.

933.106 Solicitation provisions.

(a) The contracting officer shall

supplement the provision at FAR

52.233–2, Service of Protest, in

solicitations for other than simplified

acquisitions by adding the provision at

48 CFR 952.233–2.

(b) The contracting officer shall

include the provision at 48 CFR

952.233–4 in solicitations for purchases

above the simplified acquisition

threshold.

(c) The contracting officer shall

include the provision at 48 CFR

952.233–5 in solicitations for purchases

above the simplified acquisition

threshold.

PART 935—RESEARCH AND

DEVELOPMENT CONTRACTING

27. Subsections 935.016–3 through

935.016–7 and 935.016–9 are removed,

and section 935.016 and subsections

935.016–1, 935.016–2 and 935.016–8 are

revised to read as follows:

935.016 Research opportunity

announcements.

935.016–1 Scope.

(a) FAR 35.016 sets forth the policies

and procedures for contracting for

research through the use of broad

agency announcements as authorized by

the Competition in Contracting Act of

1984 (CICA) (41 U.S.C. 259(b)(2)) and

Federal Acquisition Regulation (FAR)

6.102(d)(2). Within DOE, broad agency

announcements, will be designated as

Research Opportunity Announcements

(ROAs).

(b) Research Opportunity

Announcements are a form of

competitive solicitation under which

DOE’s broad mission and program-level

research objectives are defined;

proposals which offer meritorious

approaches to those objectives are

requested from all offerors capable of

satisfying the Government’s needs;

those proposals are evaluated by

scientific or peer review against stated

specific evaluation criteria; and

selection of proposals for possible

contract award is based upon that

evaluation, the importance of the

research to the program objectives, and

funds availability.

935.016–2 Applicability.

(a) This section applies to all DOE

Headquarters and field program

organizations which, by virtue of their

statutorily mandated mission or other

such authority as may exist, support

energy or energy-related research

activities through contractual

relationships.

(1) The ROA may be used as a

competitive solicitation procedure

through which DOE acquires basic and

applied research in support of its broad

mission and program-level research

objectives, and these objectives may be

best achieved through relationships

where contractors pursue diverse and

dissimilar solutions and approaches to

scientific and technological areas

related to DOE’s missions and programs.

(2) The ROA shall not be used as a

solicitation method when one or more

of the following conditions exist:

(i) In accordance with the Federal

Grant and Cooperative Agreement Act,

Public Law 97–258, the principal

purpose of the relationship will be

assistance;

(ii) The purpose of the research is to

accelerate the demonstration of the

technical, operational, economic, or

commercial feasibility and

environmental acceptability of

particular energy technologies, systems,

subsystems, and components that would

appropriately be acquired by Program

Opportunity Notices (PONs) in

accordance with 48 CFR 917.72;

(iii) The research is required in

support of a specific project area within

an energy program which appropriately

would be acquired by Program Research

and Development Announcements

(PRDAs) in accordance with 48 CFR

917.73;

(iv) The research requirements can be

sufficiently defined to allow the use of

contracting by negotiation in accordance

with FAR part 15;

(v) The purpose of the research is the

acquisition of goods and services related

to the development of a specific system

or hardware acquisition; or,

(vi) Any funds to be obligated to a

resulting contract will be used to

conduct or support a conference or

training activity.

(b) The following limitations are

applicable to the use of ROAs:

(1) The use of broad agency

announcements for the acquisition of

that part of development not related to

the development of a specific system or

hardware is authorized by FAR

35.016(a). Notwithstanding that

authorization, ROAs shall be used

within DOE only to acquire basic and

applied research.

(2) Proposals shall not be solicited

from, and contracts shall not be

awarded to, any specific entity which

operates a Government-owned or

-controlled research, development,

special production, or testing

establishment, such as DOE’s

management and operating contractor
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules 19901

facilities, Federally Funded Research

and Development Centers chartered by

other agencies, or other such entities.

This limitation shall not be used to

preclude the parent organization of the

entity operating the Government-owned

or -controlled facility, its subsidiaries,

other divisions, or other related

business affiliates from proposing, or

receiving awards, under DOE’s ROA

solicitations, provided that any

proposed resources (personnel,

facilities, and other resources) used in

the management and operation of the

Government-owned or -controlled

facility have been approved for use in

the ROA effort by the sponsoring

agency.

935.016–8 Selection of proposals.

(a) After considering the evaluation

findings, the importance of the

proposed research to the program

objectives, and funds availability, the

Selection Official shall determine

whether a specific proposal warrants

selection for negotiation and award of a

contract. The decision of the Selection

Official shall be documented in writing

and shall address, as appropriate, such

issues as:

(1) The scientific and technical merit

of the proposal in relation to the ROA

evaluation criteria;

(2) The qualifications, capabilities,

and experience of the proposed

personnel; technical approach; facilities;

and where applicable, cost participation

by the offeror (or any combination of the

above);

(3) The importance of the proposed

research to the program objectives;

(4) Which areas of the proposal,

whether in whole or in part, have been

selected for funding, and the amount of

that funding; and,

(5) Assurances that any other

requirements which are imposed by

statute, regulation, or internal directives

relating to the specific research

activities and which are properly the

responsibility of the program office have

been satisfied.

(b) Absent extenuating circumstances,

selection decisions regarding any

individual proposal should be made

within six (6) months after receipt of the

proposal. Proposals which have been

evaluated may be accumulated to allow

for a consolidated selection decision so

long as not more than six (6) months

have passed since the receipt of any of

the proposals so accumulated.

(c) The cognizant DOE program

official shall notify successful and

unsuccessful offerors of any selection/

non-selection decisions. These notices

shall be made in writing promptly after

the decision is made, and shall, at a

minimum, state in general terms, the

basis for the determination.

PART 936—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

936.601 through 936.602–4 [Removed]

28. Sections 936.601, 936.602–2,

936.602–3, and 936.602–4 are removed.

936.603 through 936.606 [Removed]

29. Sections 936.603, 936.605, and

936.606 are removed.

936.72 [Removed]

30. Subpart 936.72 is removed.

31. Part 941 is added at the end of

Subchapter F as follows:

PART 941—ACQUISITION OF UTILITY

SERVICES

Subpart 941.2—Acquiring Utility Services.

Sec.

941.201–70 DOE Directives.

941.201–71 Use of subcontracts.

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

Subpart 941.2—Acquiring Utility

Services

941.201–70 DOE Directives.

Utility services (defined at FAR

41.101) shall be acquired in accordance

with FAR part 41 and DOE Directives in

subseries 4540 (Public Services).

941.201–71 Use of subcontracts.

Utility services for the furnishing of

electricity, gas (natural or

manufactured), steam, water and/or

sewerage at facilities owned or leased by

DOE shall not be acquired under a

subcontract arrangement, except as

provided for at 48 CFR 970.0803 or if

the prime contract is with a utility

company.

PART 942—CONTRACT

ADMINISTRATION

32. Subsection 942.705–1 is revised to

read as follows:

942.705–1 Contracting officer

determination procedure.

(a)(3) The Department of Energy shall

use the contracting officer

determination procedure for all business

units for which it shall be required to

negotiate final indirect cost rates. A list

of such business units is maintained by

the Office of Policy, within the

Headquarters procurement organization.

(b)(1) Pursuant to FAR 52.216–7,

Allowable Cost and Payment,

contractors shall be requested to submit

their final indirect cost rate proposals

reflecting actual cost experience during

the covered period to the cognizant

contracting officer responsible for

negotiating their final rates. The DOE

negotiating official shall request all

needed audit service in accordance with

internal procedures.

33. Subsection 942.705–3 is revised to

read as follows:

942.705–3 Educational institutions.

(a)(2) The negotiated rates established

for the institutions cited in OMB

circular No. A–88 are distributed to the

Cognizant DOE Office (CDO) assigned

lead office responsibility for all DOE

indirect cost matters relating to a

particular contractor by the Office of

Policy, within the Headquarters

procurement organization.

34. Subsection 942.705–4 is revised to

read as follows:

942.705–4 State and local governments.

A list of cognizant agencies for State/

local government organizations is

periodically published in the Federal

Register by the Office of Management

and Budget (OMB). The responsible

agencies are notified of such

assignments. The current negotiated

rates for State/local government

activities is distributed to each CDO by

the Office of Policy, within the

Headquarters procurement organization.

35. Subsection 942.705–5 is revised to

read as follows:

942.705–5 Nonprofit organizations other

than educational and state and local

governments.

OMB Circular A–122 establishes the

rules for assigning cognizant agencies

for the negotiation and approval of

indirect cost rates. The Federal agency

with the largest dollar value of awards

(contracts plus federal financial

assistance dollars) will be designated as

the cognizant agency. There is no

published list of assigned agencies. The

Office of Policy, within the

Headquarters procurement organization,

distributes to each CDO the rates

established by the cognizant agency.

942.70 [Removed]

36.37. Subpart 942.70 is removed.

PART 945—GOVERNMENT PROPERTY

945.505–5 [Removed]

38. Subsection 945.505–5 is removed.

945.505–14 [Removed]

39. Subsection 945.505–14 is

removed.

PART 952—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

952.214 [Removed]

40. Section 952.214 is removed.
19902 Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Proposed Rules

1The ICC Termination Act of 1995, Pub. L. No.

104–88, 109 Stat. 803 (ICCTA), which was enacted

on December 29, 1995, and took effect on January

1, 1996, abolished the Interstate Commerce

Commission (ICC) and transferred certain functions

and proceedings to the Board. Section 204(b)(1) of

the Act provides, in general, that proceedings

pending before the ICC on the effective date of that

legislation shall be decided under the law in effect

prior to January 1, 1996, insofar as they involve

functions retained by the Act. Section 204(b)(3)

provides that, ‘‘[i]n the case of a proceeding under

a provision of law repeal[ed], and not reenacted, by

this Act such proceeding shall be terminated.’’

Although the motor carrier tariff filing provisions

were sharply curtailed in the ICCTA and in prior

legislation, they were not entirely repealed.

Therefore, it is not pursuant to the automatic

termination provisions of section 204(b)(3) of

ICCTA that this pending proceeding is being

terminated.

2Senate Report No. 102–351, dated July 30, 1992,

accompanying the U.S. Department of

Transportation and Related Agencies

Appropriations Bill, 1993.

3The Trucking Industry Regulatory Reform Act of

1994, Pub. L. No. 103–311, 108 Stat. 1683, enacted

August 26, 1994, and ICCTA.

952.215 [Removed]

41. Section 952.215 and subsections

952.215–22 and 952.215–23 are

removed.

42. Subsection 952.233–2 is revised to

read as follows:

952.233–2 Service of protest.

As prescribed in 48 CFR 933.106(a),

add the following to the end of the

clause at FAR 52.233–2:

(c) Another copy of a protest filed with the

General Accounting Office or the General

Services Administration Board of Contract

Appeals 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, Fax: (202) 586–4546.

43. Subsection 952.233–4 is added to

read as follows:

952.233–4 Notice of protest file

availability.

As prescribed in 933.106(b), insert the

following provision:

NOTICE OF PROTEST FILE AVAILABILITY

(XXX)

(a) If a protest of this procurement is filed

with the General Accounting Office (GAO) in

accordance with 4 CFR part 21, any actual or

prospective offeror may request the

Department of Energy to provide it with

reasonable access to the protest file pursuant

to FAR 33.104(a)(3)(ii), implementing section

1065 of Pub.L. 103–355. Such request must

be in writing and addressed to the

contracting officer for this procurement.

(b) Any offeror who submits information or

documents to the Department 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 FAR 33.104(a)(3)(ii). The Department 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.)

44. Subsection 952.233–5 is added to

read as follows:

952.233–5 Agency protest review.

As prescribed in 48 CFR 933.106(c),

insert the following provision:

AGENCY PROTEST REVIEW (XXX)

Protests to the Agency will be decided

either at the level of the Head of the

Contracting Activity or at the Headquarters

level. The Department of Energy’s agency

protest procedures, set forth in 933.103,

elaborate on these options and on the

availability of a suspension of a procurement

that is protested to the agency. The

Department encourages potential protesters

to discuss their concerns with the contracting

officer prior to filing a protest.

952.251–70 [Amended]

45. Subsection 952.251–70 is

amended by revising the date of the

clause to read ‘‘(June 1995)’’.

PART 971—REVIEW AND APPROVAL

OF CONTRACT ACTIONS [REMOVED]

46. Part 971 is removed.

[FR Doc. 96–10757 Filed 5–2–96; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1312

[Ex Parte No. MC–212]

Review of Motor Tariff Regulations1993

AGENCY: Surface Transportation Board

(Board).1

ACTION: Proposed rule; termination of

proceeding.

SUMMARY: The Board is terminating this

proceeding in which modifications to

motor carrier tariff filing requirements

were being considered, because

intervening legislation has made

consideration of those modifications

unnecessary.

DATES: This action is made on May 3,

1996.

FOR FURTHER INFORMATION CONTACT:

Michael L. Martin, (202) 927–6033;

[TDD for the hearing impaired: (202)

927–5721].

SUPPLEMENTARY INFORMATION: In a

Notice of Proposed Rulemaking

published at 58 FR 14198 (March 16,

1993), the ICC instituted a proceeding to

seek public comment on whether

certain motor carrier tariff filing

requirements should be modified. The

proceeding was initiated in response to

a Congressional directive that the ICC

increase its motor carrier tariff

oversight.2

In recent legislation,3 Congress has

repealed the tariff filing requirements

for most motor common carriers of

property, and voided such tariffs. Now,

the only rates that motor carriers must

publish and file in tariffs are those

relating to joint motor-water movements

in the noncontiguous domestic trade.

Because carriers are no longer required

to file the tariffs that precipitated the

notice of proposed rulemaking, we are

terminating this proceeding.

Authority: 49 U.S.C. 10321.

Decided: April 17, 1996.

By the Board, Chairman Morgan, Vice

Chairman Simmons, and Commissioner

Owen.

Vernon A. Williams,

Secretary.

[FR Doc. 96–11089 Filed 5–2–96; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 673

[I.D. 042496B]

RIN 0648–AF81

Scallop Fishery off Alaska;

Implementation of Federal

Management Measures

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce

ACTION: Notice of availability of an

amendment to a fishery management

plan; request for comments.

SUMMARY: The North Pacific Fishery

Management Council (Council) has

submitted Amendment 1 to the Fishery

Management Plan for the Scallop

Fishery off Alaska for Secretarial

review. Amendment 1 would establish a

Federal management regime for the

scallop fishery in Federal waters off

Alaska. Comments from the public are

requested.

DATES: Comments on Amendment 1

must be submitted on or before June 28,

1996.