(General Provisions) Contract Appeals and the Acquisition Regulation: General, Acquisition Planning, and Contracting Methods and Contract Types, 7685-7694 [2011-1320]
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7685
Rules and Regulations
Federal Register
Vol. 76, No. 29
Friday, February 11, 2011
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
I. Background
DEPARTMENT OF ENERGY
10 CFR Part 1023
48 CFR Parts 901, 902, 903, 904, 906,
907, 908, 909, 911, 914, 915, 916, 917,
and 952
RIN 1991–AB81
(General Provisions) Contract Appeals
and the Acquisition Regulation:
General, Acquisition Planning, and
Contracting Methods and Contract
Types
Department of Energy.
Final rule.
AGENCY:
ACTION:
The Department of Energy
(DOE) is amending the Department of
Energy Acquisition Regulation (DEAR)
regulations on Acquisition Planning,
and Contracting Methods and Contract
Types to make changes to conform to
the Federal Acquisition Regulation
(FAR), remove out-of-date coverage, and
update references. Today’s rule does not
alter substantive rights or obligations
under current law.
DATES: Effective Date: March 14, 2011.
FOR FURTHER INFORMATION CONTACT:
Barbara Binney at (202) 287–1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
II. Discussion
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility
Act
D. Review Under the Paperwork Reduction
Act
E. Review Under the National
Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates
Reform Act of 1995
H. Review Under the Treasury and General
Government Appropriations Act, 1999
I. Review Under Executive Order 13211
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J. Review Under the Treasury and General
Government Appropriations Act, 2001
K. Review Under the Small Business
Regulatory Enforcement Fairness Act of
1996
L. Approval by the Office of the Secretary
of Energy
This final rule amends the
Department of Energy Acquisition
Regulation (DEAR) and the DOE
regulation at 10 CFR part 1023 which
implements DOE’s contract appeals
procedures. DEAR subchapters A, B,
and C have outdated sections that need
to be updated for consistency with the
Civilian Board of Contract Appeals
(CBCA) provisions of Section 847 of the
National Defense Authorization Act for
Fiscal Year 2006, Public Law 109–163,
and provisions of the FAR and the Title
41, chapter 102—Federal Management
Regulation. DOE is implementing these
provisions but they are not yet reflected
in the DEAR.
DOE is also removing regulations in
10 CFR part 1023 that have been made
obsolete by the establishment of the
CBCA within the General Services
Administration. DOE has already
adjusted its internal procedures to
address the CBCA jurisdiction.
With the amended changes to
Subchapters A, B, and C, the DEAR
would conform to the FAR, the Title 41,
chapter 101—Federal Property
Management Regulation, and the
Federal Management Regulation. The
purpose of this rule is to update the
existing DEAR to conform it to the FAR.
Changes are to DEAR parts 901, 902,
903, 904, 906, 907, 908, 909, 911, 914,
915, 916, 917, and 952. No changes are
being made to DEAR parts 905, 910, and
912 at this time. None of today’s
conforming changes are substantive or
of a nature to cause any significant
expense for DOE or its contractors.
II. Discussion
DOE published a notice of proposed
rulemaking on July 1, 2010 (75 FR
38042), with a public comment period
ending on August 2, 2010. DOE received
no comments.
DOE amends the 10 CFR part 1023 as
follows:
1. DOE removes from the regulation
10 CFR part 1023 made obsolete by the
termination of the Energy Board of
Contract Appeals and the establishment
of the Civilian Board of Contract
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Appeals. Section 847 of the National
Defense Authorization Act for Fiscal
Year 2006, Public Law 109–163
established within the General Services
Administration the Civilian Board of
Contract Appeals and terminates
authority for the Energy Board of
Contract Appeals.
DOE amends the DEAR as follows:
2. Section 901.101 is revised to add
‘‘(Chapter 1 of Title 48 of the Code of
Federal Regulations (CFR))’’ to provide
the citation to the FAR’s CFR chapter.
3. Section 901.102 is removed and
redesignated as 901.103 to conform to
the FAR. It also is revised to add
‘‘Senior’’ before ‘‘Procurement
Executive’’ and to clarify that there are
two Senior Procurement Executives, one
for the National Nuclear Security
Administration (NNSA) and the other
for the rest of the Department of Energy
(DOE). The section is further revised to
add a reference to the more recent and
separate delegation for the NNSA Senior
Procurement Executive from the
Administrator of the NNSA, and update
citation references to the United States
Code.
4. Section 901.103 is redesignated as
901.104. That section is also revised to
clarify that the DEAR applies to NNSA
acquisitions.
5. Section 901.104–1 is redesignated
as 901.105–1. That section is revised to
add the CFR citation and the Web site
reference for the electronic CFR.
6. Section 901.104–2 is redesignated
as 901.105–2. In addition, it is moved to
update the cite in paragraph (b) from
1.104–2(b) to 1.105–2(b) to conform to
the FAR.
7. Section 901.104–3 is redesignated
as 901.105–3 which is revised to add the
Web site reference to view the electronic
DEAR.
8. Section 901.105 is redesignated as
901.106. The title of the redesignated
901.106 is revised to read ‘‘OMB
approval under the Paperwork
Reduction Act’’ to conform to the FAR.
In addition, the Office of Management
and Budget (OMB) acronym is spelled
out. The paragraph is further revised to
remove the redundant FAR text and the
reference to canceled OMB control
number 1910–5103.
9. Section 901.301–70 paragraph (a) is
revised to add a reference to the Federal
Management Regulation to conform to
the FMR. The paragraph is also revised
to state that the Department of Energy
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Acquisition Guide provides procedural
guidance for the acquisition community
and provides the Web link to the guide.
10. Subpart 901.6 is revised to add
‘‘Career Development,’’ to the title of this
subpart.
11. Section 901.601 paragraph (a) is
revised to add the contracting authority
for NNSA. This paragraph explains the
authorities for the Senior Procurement
Executives for DOE and NNSA.
Paragraph (b) is revised to clarify that
both of the Senior Procurement
Executives have been authorized to
perform functions set forth at FAR
1.601(b).
12. Section 901.602–3 is revised to
clarify that the Senior Procurement
Executives are authorized to ratify
unauthorized commitments.
13. Section 901.603 is revised by
adding references to DOE Order 361.1B,
Acquisition Career Management
Program and DOE Order 541.1B,
Appointment of Contracting Officers
and Contracting Officer Representatives,
or their respective successor orders.
14. Part 902 is revised by adding
subpart 902.1 consisting of 902.101,
Definitions, to define the ‘‘Agency Head
or Head of the Agency’’, the
‘‘Department of Energy’’, and the ‘‘Senior
Procurement Executive’’ and by
removing 902.200 in its entirety and
adding the clause instruction at 902.201
to conform to the FAR.
15. Section 903.303 is amended in
paragraph (a) to add ‘‘Senior’’ before
‘‘Procurement Executive’’.
16. Subpart 903.4 Contingent Fees is
amended at 903.405 to revise the section
heading.
17. Section 903.405 is revised to
delete the reference to use Standard
Form 119, which is outdated, but retains
the direction that the chief of the
contracting office seek review by
counsel before initiating appropriate
action.
18. Section 903.603 in paragraph (a)
removes the first occurrence of ‘‘FAR’’.
19. Subpart 903.7—Voiding and
Rescinding Contracts is added to state
only the Head of the Contracting
Activity can determine whether a
contract is voided or rescinded.
20. Subpart 903.10—Contractor Code
of Business Ethics and Conduct is added
to conform with the FAR.
21. Section 903.1004 Contract clauses,
paragraph (b)(2)(ii) is added to instruct
the contracting officer to insert the DOE
Web site address https://ig.energy.gov/
hotline.htm in paragraph (b)(3) of the 48
CFR 52.203–14 clause, Display of
Hotline Poster(s).
22. Section 904.7001 is amended by
removing the last sentence which
contained the definitions of
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‘‘contractor,’’ ‘‘contract,’’ and ‘‘special
nuclear material.’’
23. Section 904.7002 is amended by
adding three definitions of terms that
were previously described in the last
sentence of section 904.7001.
24. Section 906.102 paragraph (d)(4)
is rewritten to clarify the use of
competitive selection procedures for the
award of research proposals in
accordance with Subpart 917.73 and
FAR Part 35.
25. Section 906.102 paragraph (d)(5)
is rewritten to clarify the use of
competitive selection procedures for
award of program opportunity notices
for commercial demonstrations in
accordance with Subpart 917.72.
26. Section 906.501 is revised to add
the NNSA role in delegating authority
for appointment of the agency and
contracting activity competition
advocates, and removing the last
sentence referencing procedural
guidance in internal directives.
27. Part 907 is removed and reserved,
pursuant to Federal Acquisition Circular
2005–09 which revised FAR Subpart 7.3
to be consistent with OMB Circular A–
76 (Revised), Performance of
Commercial Activities, dated May 29,
2003.
28. Section 908.7107 on the
procurement of industrial alcohol is
amended by revising this section to
reflect current Alcohol and Tobacco Tax
and Trade Bureau, Department of
Treasury regulations.
29. Sections 909.400(a), 909.400(b),
and 909.401 are amended by adding
‘‘National Nuclear Security
Administration (NNSA)’’ after ‘‘DOE’’.
30. Section 909.401 is amended by
removing ‘‘10 CFR part 1036.’’ and
adding in its place ‘‘2 CFR part 901.’’ to
update the citation.
31. Part 909 is amended by adding to
section 909.405 Effect of listing, by
identifying the debarment exception
authority for NNSA in paragraph (e) and
by adding references to NNSA and the
Excluded Parties List System (EPLS) in
paragraphs (f) through (h), which
supplement FAR 9.405.
32. Section 909.406–2 is amended in
paragraph (c) by adding ‘‘DOE and
NNSA’’ and revising punctuation in
paragraphs (c)(1) and (d)(1).
33. Section 909.406–3(a)(1) is
amended in the first sentence, by
removing ‘‘both the Deputy Assistant
Secretary for Procurement and
Assistance Management’’ and adding in
its place ‘‘the appropriate Senior
Procurement Executive’’ to correct the
title of the official and by removing
‘‘1010.217(b), Cooperation with the
Inspector General.’’ and adding in its
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place ‘‘1010.103, Reporting
Wrongdoing.’’
34. Consistent with FAR 9.404,
section 909.406–3(a)(2) is amended in
paragraph (2) by revising punctuation;
in subparagraph (iv) by adding ‘‘or other
identifying number for an individual’’ as
identifying information to be provided
in a debarment referral; in
subparagraphs (v) and (vii) adding ‘‘and
NNSA’s’’; and in subparagraph (vi)
removing ‘‘Board of Contract Appeals;
and’’ and adding in its place ‘‘Civilian
Board of Contract Appeals or other factfinding body; and’’.
35. Section 909.406–3(b)(2) is
amended in the third sentence by
removing ‘‘refer the matter to the Energy
Board of Contract Appeals’’ and adding
in its place ‘‘appoint, and refer the
matter to, a Fact-Finding Official’’.
36. Section 909.406–3(b)(3) is
amended in the first sentence by
removing ‘‘therefor’’.
37. Section 909.406–3(b)(4) is
amended in the second through the
fourth sentences by removing reference
to the Energy Board of Contract Appeals
and by adding in its place a reference to
the Fact-Finding Official.
38. Section 909.406–3(d)(4) is
amended in the third through fifth
sentences by removing reference to the
Energy Board of Contract Appeals and
adding in its place a reference to the
Fact-Finding Official.
39. Section 909.406–70(b) is amended
in the third sentence, after ‘‘respondent’’
by removing the rest of the sentence.
40. Section 909.407 adds a new
section heading.
41. Consistent with FAR 9.404,
section 909.407–3 is amended in
paragraph (e)(1)(vii) by removing
mention of GSA and by adding EPLS to
update the name of the listing.
42. Section 915.201 is amended by
revising the section heading.
43. Section 915.305(d) is amended to
remove ‘‘48 CFR (DEAR)’’ in the second
sentence.
44. Sections 915.404–2 paragraph
(a)(1) in two places; 915.404–2–70
paragraphs (a)(1) and (a)(2); 915.404–4–
70–4 paragraph (a); and 915.404–4–70–
7 paragraph (b) are amended by
removing the dollar values and adding
the reference to 48 CFR 15.403–4(a)(1).
45. Section 915.404–4(c)(4)(i) is
amended by removing ‘‘profit and fees’’
and adding ‘‘price and fee’’.
46. Section 915.404–4–70–2 is
amended by renumbering the table in
paragraph (d) to conform to the DOE
Form 42.20.23, Weighted Guidelines.
47. Section 915.404–4–72 is amended
by removing ‘‘916.404–2’’ and adding
‘‘916.405–2’’ to update the reference to
conform to FAR 16.405–2.
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48. Section 916.203–4(d)(2) is
amended by removing ‘‘(FAR)’’.
49. Section 916.307 is amended by
adding a paragraph (a) which provides
direction to the contracting officer to
modify paragraph (a) of clause 48 CFR
52.216–7 by adding the phrase ‘‘as
supplemented by subpart 931.2 of the
DEAR’’ after ‘‘FAR subpart 31.2’’.
50. Section 917.602 is amended to
remove ‘‘that’’ in the second sentence of
paragraph (c) and adding in its place
‘‘than’’.
51. Section 917.7301–1 is amended by
removing paragraphs (c) and (d). This
information is internal guidance and has
been moved to DOE’s Acquisition
Guide.
52. Section 917.7401 is amended by
adding in the first paragraph before the
first sentence, ‘‘The acquisition of real
estate requires the involvement of a
DOE Certified Realty Specialist, as
specified at 917.7402.’’ This amendment
adds clarity to the processes of the
DEAR and conforms to DOE Order
430.1B.
53. Section 917.7401(b) is amended
by removing paragraph (b) in its entirety
and adding in its place, ‘‘(b) Lease for
which DOE will reimburse the
contractor for the pre-approved costs
incurred under the lease.’’ This adds
clarity to the DEAR and conforms to
DOE Order 430.1B.
54. Section 917.7402 is amended in
the first sentence by changing the
punctuation; and in paragraph (b)
adding ‘‘acquisition option
considerations with the best’’ between
the words ‘‘cost,’’ and ‘‘acquisition
method’’ and removing ‘‘and property
appraisal reports; and’’ and adding in its
place ‘‘property appraisal reports, and
include the review and approval by the
applicable DOE Certified Realty
Specialist in accordance with DOE
Order 430.1B, or its successor version;
and’’. This adds clarity to the DEAR and
conforms to the DOE Order 430.1B.
55. Section 917.7402(c)(2) and (4) is
amended in paragraph (c)(2) by adding
‘‘approved by a DOE Certified Realty
Specialist’’ and in paragraph (c)(4) by
removing ‘‘and regulations applicable to
real estate management.’’ and adding in
its place ‘‘, regulations, and the DOE
Order 430.1B, or its successor version,
applicable to real estate acquisition.’’
This adds clarity to the DEAR and
conforms to the DOE Order 430.1B.
56. Section 917.7402(d) is amended
by adding that any real property actions
require the involvement of the
applicable DOE Certified Realty
Specialist.
57. Section 917.7403 is amended in
the title by removing ‘‘Application.’’ and
adding in its place ‘‘Contract clause.’’; by
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removing ‘‘48 CFR’’ before the clause
number; by adding ‘‘, Acquisition of
Real Property,’’ after ‘‘952.217–70’’; by
removing ‘‘or’’ and adding in its place
‘‘including’’; and by adding ‘‘of real
property’’ after ‘‘contractor acquisitions’’.
58. Section 952.202–1 is amended to
remove the included definitions and to
direct contracting officers to supplement
clause 48 CFR 52.202–1 by inserting
paragraph (c). These changes are made
to conform to revised part 902.
59. Clause 952.204–2 and provision
952.204–73 are amended to encourage
contractors to submit information
through the use of the online tool and
to send a copy of standard form 328 to
the contracting officer.
60. Clause 952.204–71 is amended in
paragraph (b) by adding ‘‘which may
involve making unclassified information
about nuclear technology available to
sensitive foreign nations’’ after
‘‘subcontracts’’. This phrase is added to
provide clarity for subcontractor flow
down pursuant to DEAR 904.404(d)(3).
61. Clause 952.217–70 is amended in
subparagraph (a)(2) by removing this
subparagraph in its entirety and adding
in its place ‘‘(2) Lease for which the
Department of Energy will reimburse
the incurred costs of the lease as a
reimbursable contract cost’’. This change
is made to add clarity on
reimbursements for leases.
62. Throughout, sections are amended
by removing ‘‘FAR’’ and adding ‘‘48
CFR’’, by removing ‘‘DEAR’’ and adding
‘‘48 CFR’’, and by updating other CFR
citations or changing punctuation.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today’s regulatory action has been
determined not to be a ‘‘significant
regulatory action’’ under Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ (58 FR 51735, October 4,
1993). Accordingly, this rule is not
subject to review under that Executive
Order by the Office of Information and
Regulatory Affairs (OIRA) of the Office
of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 12988, ‘‘Civil Justice
Reform,’’ 61 FR 4729 (February 7, 1996),
imposes on Executive agencies the
general duty to adhere to the following
requirements: (1) Eliminate drafting
errors and ambiguity; (2) write
regulations to minimize litigation; and
(3) provide a clear legal standard for
affected conduct rather than a general
standard and promote simplification
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and burden reduction. With regard to
the review required by section 3(a),
section 3(b) of Executive Order 12988
specifically requires that Executive
agencies make every reasonable effort to
ensure that the regulation: (1) Clearly
specifies the preemptive effect, if any;
(2) clearly specifies any effect on
existing Federal law or regulation; (3)
provides a clear legal standard for
affected conduct while promoting
simplification and burden reduction;
(4) specifies the retroactive effect, if any;
(5) adequately defines key terms; and (6)
addresses other important issues
affecting clarity and general
draftsmanship under any guidelines
issued by the United States Attorney
General. Section 3(c) of Executive Order
12988 requires Executive agencies to
review regulations in light of applicable
standards in section 3(a) and section
3(b) to determine whether they are met
or if it is unreasonable to meet one or
more of them. DOE has completed the
required review and determined that, to
the extent permitted by law, this rule
meets the relevant standards of
Executive Order 12988.
C. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that an
agency prepare an initial regulatory
flexibility analysis for any regulation for
which a general notice or rulemaking is
required, unless the agency certifies that
the rule, if promulgated, will not have
a significant economic impact on a
substantial number of small entities
(5 U.S.C. 605(b)). This rule updates
references in the DEAR that apply to
public contracts and does not impose
any additional requirements on small
businesses. Today’s rule does not alter
any substantive rights or obligations
and, consequently, today’s rule will not
have a significant cost or administrative
impact on contractors, including small
entities. On the basis of the foregoing,
DOE certifies that this rule would not
have a significant economic impact on
a substantial number of small entities.
Accordingly, DOE has not prepared a
regulatory flexibility analysis for this
rulemaking. DOE’s certification and
supporting statement of factual basis
will be provided to the Chief Counsel
for Advocacy of the Small Business
Administration pursuant to 5 U.S.C.
605(b).
D. Review Under the Paperwork
Reduction Act
This final rule does not impose a
collection of information requirement
subject to the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. Existing burdens
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associated with the collection of certain
contractor data under the DEAR have
been cleared under OMB control
number 1910–4100.
E. Review Under the National
Environmental Policy Act
DOE has concluded that promulgation
of this rule falls into a class of actions
which would not individually or
cumulatively have significant impact on
the human environment, as determined
by DOE’s regulations (10 CFR part 1021,
subpart D) implementing the National
Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically
excluded from NEPA review because
the amendments to the DEAR are
strictly procedural (categorical
exclusion A6). Therefore, today’s rule
does not require an environmental
impact statement or environmental
assessment pursuant to NEPA.
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F. Review Under Executive Order 13132
Executive Order 13132, 64 FR 43255
(August 4, 1999), imposes certain
requirements on agencies formulating
and implementing policies or
regulations that preempt State law or
that have federalism implications.
Agencies are required to examine the
constitutional and statutory authority
supporting any action that would limit
the policymaking discretion of the
States and carefully assess the necessity
for such actions. The Executive Order
requires agencies to have an
accountability process to ensure
meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications. On March 14, 2000, DOE
published a statement of policy
describing the intergovernmental
consultation process it will follow in the
development of such regulations (65 FR
13735). DOE has examined today’s rule
and has determined that it does not
preempt State law and does not have a
substantial direct effect on the States, on
the relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. No further action
is required by Executive Order 13132.
G. Review Under the Unfunded
Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4) generally
requires a Federal agency to perform a
written assessment of costs and benefits
of any rule imposing a Federal mandate
with costs to State, local or Tribal
governments, or to the private sector, of
$100 million or more. This rule does not
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impose any Federal mandate on State,
local or Tribal governments or on the
private sector.
and DOE guidelines and has concluded
that it is consistent with applicable
policies in those guidelines.
H. Review Under the Treasury and
General Government Appropriations
Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277), requires
Federal agencies to issue a Family
Policymaking Assessment for any
rulemaking or policy that may affect
family well-being. This rule will have
no impact on the autonomy or integrity
of the family as an institution.
Accordingly, DOE has concluded that it
is not necessary to prepare a Family
Policymaking Assessment.
K. Review Under the Small Business
Regulatory Enforcement Fairness Act of
1996
I. Review Under Executive Order 13211
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use, 66 FR 28355 (May
22, 2001), requires Federal agencies to
prepare and submit to Office of
Information and Regulatory Affairs of
the Office of Management and Budget,
a Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgates or is expected to lead to
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; (2) is likely to have a
significant adverse effect on the supply,
distribution, or use of energy; or (3) is
designated by the Administrator of
OIRA as a significant energy action. For
any significant energy action, the agency
must give a detailed statement of any
adverse effects on energy supply,
distribution, or use should the proposal
be implemented, and of reasonable
alternatives to the action and their
expected benefits on energy supply,
distribution, and use. Today’s rule is not
a significant energy action. Accordingly,
DOE has not prepared a Statement of
Energy Effects.
List of Subjects
J. Review Under the Treasury and
General Government Appropriations
Act, 2001
The Treasury and General
Government Appropriations Act, 2001
(44 U.S.C. 3516, note) provides for
agencies to review most disseminations
of information to the public under
guidelines established by each agency
pursuant to general guidelines issued by
OMB. OMB’s guidelines were published
at 67 FR 8452 (February 22, 2002), and
DOE’s guidelines were published at 67
FR 62446 (October 7, 2002). DOE has
reviewed today’s rule under the OMB
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As required by 5 U.S.C. 801, the
Department will report to Congress
promulgation of this rule prior to its
effective date. The report will state that
it has been determined that the rule is
not a ‘‘major rule’’ as defined by 5 U.S.C.
804(3).
L. Approval by the Office of the
Secretary of Energy
Issuance of today’s rule has been
approved by the Office of the Secretary.
10 CFR Part 1023
Administrative practice and
procedure, Claims, Equal access to
justice, Government contracts,
Government procurement, Lawyers.
48 CFR Parts 901, 902, 903, 904, 906,
907, 908, 909, 911, 914, 915, 916, 917,
and 952
Government procurement.
Issued in Washington, DC, on January 13,
2011.
Patrick M. Ferraro,
Acting Director, Office of Procurement and
Assistance Management, Department of
Energy.
Joseph F. Waddell,
Director, Office of Acquisition and Supply
Management, National Nuclear Security
Administration.
For the reasons set out in the
preamble, the Department of Energy
amends Chapter X of Title 10 and
Chapter 9 of Title 48 of the Code of
Federal Regulations as set forth below.
TITLE 10—ENERGY
PART 1023—[REMOVED]
1. Under the authority of Section 847
of the National Defense Authorization
Act for Fiscal Year 2006, Public Law
109–163, 10 CFR chapter X is amended
by removing part 1023.
■
TITLE 48—FEDERAL ACQUISITION
REGULATIONS SYSTEM
2. Authority citations continue to read
as follows:
■ a. For parts 901, 903, 904, 906, 908,
909, 914, 915, 916, and 917, the
authority citation continues to read as
follows:
■
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
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b. For parts 911 and 952 the authority
citations continue to read as follows:
■
Authority: 42 U.S.C. 2201; 2282a; 2282b;
2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401
et seq.
Register, cumulative form in the Code of
Federal Regulations (CFR), and
Government Printing Office’s Electronic
CFR at https://ecfr.gpoaccess.gov.
(b) The DEAR is issued as Chapter 9
of Title 48 of the CFR.
PART 901—FEDERAL ACQUISITION
REGULATIONS SYSTEM
901.105–2
Subpart 901.1—Purpose, Authority,
Issuance
8. Amend newly redesignated
901.105–2(b) by removing ‘‘(FAR)’’
before ‘‘48’’ and removing ‘‘1.104–2(b)’’
and adding in its place ‘‘1.105–2(b)’’.
901.101
[Amended]
■
[Amended]
3. Section 901.101 is amended by
adding ‘‘(Chapter 1 of Title 48 of the
Code of Federal Regulations (CFR))’’ at
the end of the sentence.
■
901.102, 901.103, 901.104, 901.104–1,
901.104–2, 901.104–3, and 901.105
[Redesignated as 901.103, 901.104, 901.105,
901.105–1, 901.105–2, 901.105–3, and
901.106]
901.105–3
[Amended]
9. Amend newly redesignated
901.105–3 by adding ‘‘or viewed on line
at https://ecfr.gpoaccess.gov or at https://
management.energy.gov/DEAR.htm’’ at
the end of the sentence.
■ 10. Revise newly redesignated
901.106 to read as follows:
■
4. Redesignate sections 901.102,
901.103, 901.104, 901.104–1, 901.104–2,
901.104–3, and 901.105 as sections
901.103, 901.104, 901.105, 901.105–1,
901.105–2, 901.105–3, and 901.106,
respectively.
■ 5. Newly redesignated section 901.103
is revised to read as follows:
901.106 OMB approval under the
Paperwork Reduction Act.
901.103
■
■
Authority.
The DEAR and amendments thereto
are issued by the Senior Procurement
Executives of the Department of Energy
(DOE) and the National Nuclear
Security Administration (NNSA). The
DOE Senior Procurement Executive
delegation is pursuant to a delegation
from the Secretary of Energy in
accordance with the authority of section
644 of the Department of Energy
Organization Act (42 U.S.C. 7254),
section 205(c) of the Federal Property
and Administrative Services Act of
1949, as amended, (40 U.S.C. 121(c)(2)),
and other applicable laws. The NNSA
Senior Procurement Executive
delegation is pursuant to a delegation
from the Administrator of the NNSA, in
accordance with section 3212 of the
National Nuclear Security
Administration Act (50 U.S.C. 2402),
section 205(c) of the Federal Property
and Administrative Services Act of
1949, as amended, (40 U.S.C. 121(c)(2)),
and other applicable laws.
901.104
[Amended]
6. Newly redesignated 901.104 is
amended by adding ‘‘and NNSA’’ after
the acronym ‘‘DOE.’’
■ 7. Revise newly redesignated
901.105–1 to read as follows:
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■
901.105–1 Publication and code
arrangement.
(a) The DEAR and its subsequent
changes are published in the Federal
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The Office of Management and Budget
(OMB) control number for the collection
of information under 48 CFR chapter 9
is 1910–4100.
Subpart 901.3—Agency Acquisition
Regulations
11. Section 901.301–70 is revised to
read as follows:
901.301.70 Other issuances related to
acquisition.
(a) In addition to the FAR and DEAR,
there are other issuances which deal
with acquisition. Among these are the
Federal Property Management
Regulation, the Federal Management
Regulation, the DOE Property
Management Regulation, and DOE
Directives. The Department also
maintains the DOE Acquisition Guide
(‘‘the Guide’’), which has procedural
guidance for the acquisition community.
The DOE Acquisition Guide serves this
purpose by identifying relevant internal
standard operating procedures to be
followed by both procurement and
program personnel who are involved in
various aspects of the acquisition
process. The Guide also is intended to
be a repository of best practices found
throughout the agency that reflect
specific illustrations of techniques
which might be helpful to all readers.
The Guide is at https://
management.energy.gov/
policy_guidance/
Acquisition_Guide.htm.
7689
13. Section 901.601 is revised to read
as follows:
■
901.601
General.
(a) Contracting authority for DOE
vests in the Secretary of Energy, and for
NNSA in the Administrator.
(1) The Secretary has delegated this
authority to the DOE Senior
Procurement Executive. The DOE Senior
Procurement Executive has redelegated
this authority to the DOE Heads of
Contracting Activities (HCA). These
delegations are formal written
delegations containing specific dollar
limitations and conditions. Each DOE
HCA, in turn, makes formal contracting
officer appointments for its contracting
activity.
(2) Contracting authority for NNSA
vests in the Under Secretary for Nuclear
Security, also known as the NNSA
Administrator. The NNSA
Administrator has delegated this
authority, with specific dollar
limitations and conditions to the NNSA
Senior Procurement Executive. The
NNSA Senior Procurement Executive
has redelegated this authority to the
NNSA Head of the Contracting
Activities (HCA). Each NNSA HCA in
turn makes formal contracting officer
appointments for its contracting
activity.
(b) The Senior Procurement
Executives have been authorized,
without power of redelegation, to
perform the functions set forth at 48
CFR 1.601(b) regarding the assignment
of contracting functions and
responsibilities to another agency, and
the creation of joint or combined offices
with another agency to exercise
acquisition functions and
responsibilities.
■ 14. Section 901.602–3 is amended by
revising paragraph (b)(2), and removing
from paragraph (b)(3), the term
‘‘Procurement Executive’’ and adding in
its place ‘‘DOE and NNSA Senior
Procurement Executives’’.
The revision reads as follows:
901.602–3 Ratification of unauthorized
commitments.
(b)(2) The Senior Procurement
Executives are authorized to ratify
unauthorized commitments.
*
*
*
*
*
■ 15. Sections 901.603, 901.603–1, and
901.603–70 are added to subpart 901.6
to read as follows:
Subpart 901.6—Career Development,
Contracting Authority, and
Responsibilities
901.603 Selection, appointment, and
termination of appointment.
12. The heading of subpart 901.6 is
revised to read as set forth above.
The DOE Order 361.1B, Acquisition
Career Management Program, or its
■
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901.603–1
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successor order, sets forth the
requirements and responsibilities for the
DOE and NNSA Acquisition Career
Development Program.
901.603–70 Appointment of contracting
officers and contracting officer’s
representatives.
See the DOE Order 541.1B,
Appointment of Contracting Officers
and Contracting Officer Representatives,
or its successor order, for procedures on
the appointment of contracting officers
and contracting officer’s representatives.
■ 16. Part 902 is revised to read as
follows:
PART 902—DEFINITIONS OF WORDS
AND TERMS
■ a. Adding ‘‘Senior’’ before
‘‘Procurement Executive’’ in the first
sentence of paragraph (a); and
■ b. Removing ‘‘FAR’’ from the first
sentence, both occurrences, and adding
in its place ‘‘48 CFR’’.
■ 18. Section 903.405 is revised to read
as follows:
903.405 Misrepresentations or violations
of the Covenant Against Contingent Fees.
(b) Before the Chief of the Contracting
Office initiates appropriate action, the
action shall be reviewed by Legal
Counsel.
903.603
[Amended]
Subpart 902.2—Definitions Clause
902.201 Contract clause.
19. Section 903.603 is amended by:
a. Removing the first occurrence of
‘‘FAR’’ in paragraph (a); and
■ b. Removing ‘‘FAR’’ at its second
occurrence in the first sentence and
adding in its place ‘‘48 CFR’’.
■ 20. Add a new subpart 903.7
consisting of 903.700 to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
Subpart 903.7—Voiding and
Rescinding Contracts
Subpart 902.1—Definitions
903.700
Sec.
Subpart 902.1—Definitions
902.101 Definitions.
902.101
Definitions.
■
■
Scope of subpart.
The HCA is the designee for
determining whether to void or rescind
a contract. This authority is
nondelegable.
■ 21. Add a new subpart 903.10
consisting of 903.1004 to read as
follows:
22. Section 904.404 is amended by
removing ‘‘FAR’’ in paragraph (d)(1) in
the last sentence and adding in its place
‘‘48 CFR’’.
Subpart 902.2—Definitions Clause
904.804
902.201
emcdonald on DSK2BSOYB1PROD with RULES
Agency Head or Head of the Agency
means—
(1) For the Department of Energy
(DOE)—
(i) The Secretary;
(ii) The Deputy Secretary; or
(iii) Under Secretaries of the
Department of Energy.
(2) For the National Nuclear Security
Administration (NNSA) the
Administrator, also known as the Under
Secretary of Nuclear Security.
Department of Energy (DOE) means,
as used in the DEAR, the Department of
Energy and includes the National
Nuclear Security Administration
(NNSA), unless otherwise specified.
Senior Procurement Executive means
for the Department of Energy, the
Director, Office of Procurement and
Assistance Management and for the
National Nuclear Security
Administration, the Director, Office of
Acquisition and Supply Management.
23. Section 904.804–1 is amended by
removing ‘‘FAR’’ in paragraph (a) and
adding in its place ‘‘48 CFR’’.
PART 903—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
■
[Amended]
17. Section 903.303 is amended by:
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903.1004
Contract clauses.
(b)(2)(ii) Insert the DOE Web site
address https://ig.energy.gov/hotline.htm
in paragraph (b)(3) of the 48 CFR
52.203–14 clause, Display of Hotline
Poster(s).
PART 904—ADMINISTRATIVE
MATTERS
904.404
[Amended]
■
[Amended]
■
Contract clause.
Insert the clause at 952.202–1,
Definitions, in solicitation and contracts
that exceed the simplified acquisition
threshold.
903.303
Subpart 903.10—Contractor Code of
Business Ethics and Conduct
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904.7001
[Amended]
24. Section 904.7001 is amended by
removing ‘‘as defined in 10 CFR part
710’’ from the first sentence and
removing the last sentence in its
entirety.
■ 25. Section 904.7002 is amended by
adding in alphabetical order new
■
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definitions for ‘‘contract’’, ‘‘contractor’’,
and ‘‘special nuclear material’’ to read as
follows:
904.7002
Definitions.
Contract means the prime contract
and the subcontract at any tier.
*
*
*
*
*
Contractor means the contractor and
the subcontractor at any tier.
*
*
*
*
*
Special nuclear material means
special nuclear material as defined in 10
CFR 710.5(a).
PART 906—COMPETITION
REQUIREMENTS
26. Section 906.102 is amended in
paragraph (d)(1) by removing ‘‘FAR
Subpart’’ and adding in its place ‘‘48
CFR subpart’’, and revising paragraphs
(d)(4) and (d)(5) to read as follows:
■
906.102
Use of competitive procedures.
(d) * * *
(4) Program research and
development announcements shall
follow the competitive selection
procedures for the award of research
proposals in accordance with subpart
917.73 and 48 CFR part 35.
(5) Program opportunity notices for
commercial demonstrations shall follow
the competitive selection procedures for
award of these proposals in accordance
with subpart 917.72.
906.202
[Amended]
27. Section 906.202 is amended by
removing ‘‘FAR’’ in paragraph (b)(1) and
adding in its place ‘‘48 CFR’’.
■
906.304
[Amended]
28. Section 906.304 is amended by
removing ‘‘FAR’’ in paragraph (c)(2) and
adding in its place ‘‘48 CFR’’.
■ 29. Section 906.501 is revised to read
as follows:
■
906.501
Requirement.
The Secretary of Energy and NNSA
Administrator have delegated the
authority for appointment of the agency
and contracting activity competition
advocates to the respective DOE and
NNSA Senior Procurement Executives.
The Senior Procurement Executives
have redelegated authority to the Head
of the Contracting Activity to appoint
contracting activity competition
advocates.
PART 907—[REMOVED AND
RESERVED]
30. Under the authority of 42 U.S.C.
7101 et seq. and 50 U.S.C. 2401 et seq.,
Part 907 is removed and reserved.
■
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PART 908—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
908.7106
[Amended]
31. Section 908.7106 is amended by
removing ‘‘FAR’’ in paragraph (b) and
adding in its place ‘‘48 CFR part’’.
■ 32. Section 908.7107 is revised to read
as follows:
■
emcdonald on DSK2BSOYB1PROD with RULES
908.7107 Procurement and use of
industrial alcohol.
(a) This section covers the
procurement of industrial alcohol by
DOE or authorized contractors and the
applicable policies and delegations of
authority to submit industrial alcohol
user application to procure and use taxfree alcohol or specially denatured
spirits. To the fullest extent practicable,
industrial alcohol for use by DOE or its
contractors shall be procured on a taxfree basis.
(b) The procurement of tax-free
alcohol or specially denatured spirits
shall be conducted in accordance with
the regulations, policy, and procedures
of the Alcohol and Tobacco Tax and
Trade Bureau (TTB), of the Department
of Treasury. The applicable TTB
regulations and forms may be accessed
at the following Web site: https://
www.ttb.gov/foia/err.shtml#regulations.
For further information, contact the
Alcohol and Tobacco Tax and Trade
Bureau, Director, National Revenue
Center, 550 Main St., Suite 8002,
Cincinnati, OH 45202–5215 or toll free
at 1–877–882–3277.
(c) The applying office should
coordinate, as necessary, with the local
State Alcohol Control Board, or its
equivalent, to obtain the appropriate
State license.
(1) Tax-free alcohol. TTB regulations
relating to the procurement and use of
alcohol free of tax, by Government
agencies, are set forth in 27 CFR Part 22,
subpart N, §§ 22.171 to 22.176.
(2) Specially denatured spirits. TTB
regulations relating to the acquisition
and use of alcohol free of tax, by
Government agencies, are set forth in 27
CFR Part 20, subpart N, §§ 20.241 to
20.245.
(d) For the user permits to procure
and use tax-free alcohol and specially
denatured spirits submit the application
on the TTB Form 5150.22, ‘‘Application
for Industrial Alcohol User Permit,’’ (or
the current TTB form). When permits
are no longer required, they should be
forwarded to the Alcohol and Tobacco
Tax and Trade Bureau for cancellation.
Industrial alcohol procured by use of
the TTB form referred to in this
subsection shall be used exclusively on
DOE work.
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(e) The Senior Procurement Executive
(SPE) has the authority to sign the TTB
application, Form 5150.22. The SPE
may delegate this authority to sign the
application to specifically named DOE
personnel. Requests for new
authorizations or changes to existing
authorizations shall be submitted by
letter to the SPE. A copy of the TTB
approved permit shall be sent to the
SPE.
(f) Abandoned and forfeited alcohol
which has come into the custody or
control of a Federal agency may be
obtained by following the procedure set
forth in the FMR at 41 CFR part 102–
41.
PART 909—CONTRACTOR
QUALIFICATIONS
909.400
[Amended]
33. Section 909.400 is amended:
a. In paragraph (a), by adding ‘‘and
National Nuclear Security
Administration (NNSA)’’; after ‘‘(DOE)’’;
■ b. In paragraph (a), by adding ‘‘and,
NNSA’’, after ‘‘DOE’’; and
■ c. In paragraph (b), by adding ‘‘and
NNSA’’ after ‘‘DOE’’.
■
■
909.401
[Amended]
34. Section 909.401 is amended by:
a. Adding ‘‘and NNSA’’; after ‘‘DOE’’;
and
■ b. Removing ‘‘10 CFR part 1036.’’ and
adding in its place ‘‘2 CFR part 901.’’
■ 35. Section 909.405 is revised to read
as follows:
■
■
909.405
Effect of listing.
(e) The Department of Energy may not
solicit offers from, award contracts to or
consent to subcontracts with contractors
debarred, suspended, or proposed for
debarment unless the Senior
Procurement Executive makes a written
determination justifying that there is a
compelling reason for such action in
accordance with 48 CFR 9.405(a). For
NNSA, the Head of the Contracting
Activity (HCA) makes the written
determination justifying the compelling
reason.
(f) DOE or NNSA may disapprove or
not consent to the selection (by a
contractor) of an individual to serve as
a principal investigator, as a project
manager, in a position of responsibility
for the administration of Federal funds,
or in another key personnel position, if
the individual is listed in the Excluded
Parties List System (EPLS).
(g) DOE or NNSA shall not conduct
business with an agent or representative
of a contractor if the agent’s or
representative’s name is listed in the
EPLS.
(h) DOE or NNSA shall review the
EPLS before conducting a pre-award
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7691
survey or soliciting proposals, awarding
contracts, renewing or otherwise
extending the duration of existing
contracts, or approving or consenting to
the award, extension, or renewal of
subcontracts.
909.406–2
[Amended]
36. Section 909.406–2 is amended by
adding ‘‘DOE and NNSA’’ in paragraph
(c) introductory text, first sentence, after
‘‘The’’.
■ 37. Section 909.406–3 is amended by:
■ a. Removing from the first sentence in
paragraph (a)(1), ‘‘both the Deputy
Assistant Secretary for Procurement and
Assistance Management’’ and adding in
its place ‘‘the appropriate Senior
Procurement Executive’’; and removing,
‘‘§ 1010.217(b), Cooperation with the
Inspector General.’’ and adding in its
place ‘‘§ 1010.103, Reporting
Wrongdoing.’’;
■ b. Removing the colon at the end of
the introductory text of paragraph (a)(2)
and adding in its place ‘‘—’’;
■ c. Adding ‘‘or other identifying
number for an individual’’ in paragraph
(a)(2)(iv) after ‘‘Number’’;
■ d. Adding ‘‘and NNSA’s’’ in paragraph
(a)(2)(v) after ‘‘DOE’s’’;
■ e. Removing ‘‘Board of Contract
Appeals; and’’ in paragraph (a) (2)(vi)
and adding in its place ‘‘Civilian Board
of Contract Appeals or other fact-finding
body; and;’’;
■ f. Adding ‘‘and NNSA’’ in paragraph
(a)(2) (vii) after ‘‘DOE’’;
■ g. Removing ‘‘refer the matter to the
Energy Board of Contract Appeals’’ in
paragraph (b)(2) third sentence and
adding in its place ‘‘appoint, and refer
the matter to, a Fact-Finding Official’’;
■ h. Removing ‘‘therefor’’ in paragraph
(b)(3) first sentence; and
■ i. Revising paragraphs (b)(4) and (d)(4)
to read as follows:
■
909.406–3
Procedures.
*
*
*
*
*
(b) * * *
(4) Fact-finding conference. The
purpose of a fact-finding conference
under this section is to provide the
respondent an opportunity to dispute
material facts through the submission of
oral and written evidence; resolve facts
in dispute; and provide the Debarring
Official with findings of fact based, as
applicable, on adequate evidence or on
a preponderance of the evidence. The
fact-finding conference shall be
conducted in accordance with rules
consistent with 48 CFR 9.406–3(b). The
Fact-Finding Official will notify the
affected parties of the schedule for the
hearing. The Fact-Finding Official shall
deliver written findings of fact to the
Debarring Official (together with a
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transcription of the proceeding, if made)
within a certain time period after the
hearing record closes as specified by the
Fact-Finding Official. The findings shall
resolve any disputes over material facts
based upon a preponderance of the
evidence, if the case involves a proposal
to debar, or on adequate evidence, if the
case involves a suspension. Since
convictions or civil judgments generally
establish the cause for debarment by a
preponderance of the evidence, there
usually is no genuine dispute over a
material fact that would warrant a factfinding conference for those proposed
debarments based on convictions or
civil judgments.
(d) Debarring Official’s decision. (4)
The Debarring Official’s final decision
shall be based on the administrative
record. In those actions where
additional proceedings are necessary as
to disputed material facts, written
findings of fact shall be prepared and
included in the final decision. In those
cases where the contractor has
requested and received a fact-finding
conference, the written findings of fact
shall be those findings prepared by the
Fact-Finding Official. Findings of fact
shall be final and conclusive unless,
within 15 days of receipt of the findings,
the Department or the respondent
requests reconsideration, or unless set
aside by a court of competent
jurisdiction. The Fact-Finding Official
shall be provided a copy of the
Debarring Official’s final decision.
909.406–70
[Amended]
38. Section 909.406–70 is amended by
removing the words ‘‘and, if a factfinding conference under 909.406–
3(b)(4) is pending (as in the case of a
request for reconsideration of a
suspension, where the proposed
debarment is the subject of a factfinding conference), a copy of the
disposition shall be transmitted to the
Energy Board of Contract Appeals’’ in
paragraph (b), third sentence.
■
909.400, 909.403, 909.406, 909.407
[Amended]
40. In the table below, for each section
indicated in the left column, remove the
word indicated in the middle column
from where it appears in the section,
and add the word in the right column:
■
Section
[Amended]
39. Section 909.407–3 is amended by
revising paragraph (e)(1)(vii) to read as
follows:
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Procedures.
*
*
*
*
*
(e) * * *
(1) * * *
(vii) A statement that the respondent’s
name and address will be added to the
EPLS; and
*
*
*
*
*
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Add
‘‘48
‘‘48
‘‘48
‘‘48
‘‘48
‘‘48
.....
.....
.....
.....
.....
.....
CFR’’
CFR’’
CFR’’
CFR’’
CFR’’
CFR’’
PART 911—DESCRIBING AGENCY
NEEDS
911.600
[Amended]
41. Section 911.600 is amended by
removing ‘‘FAR’’ and adding in its place
‘‘48 CFR part’’.
■
PART 914—SEALED BIDDING
914.404, 914.407, 914.502
[Amended]
42. In the table below, for each section
indicated in the left column, remove the
word indicated in the middle column
from where it appears in the section,
and add the word in the right column:
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915.404–4
[Amended]
47. Section 915.404–4(c)(4)(i) is
amended in the first sentence by
removing ‘‘profit and fees’’ and adding in
its place ‘‘price and fee’’.
■ 48. Section 915.404–4–70–2
paragraph (d) is revised to read as
follows:
■
915.404–4–70–2
system.
Weighted guidelines
*
*
*
*
*
(d) The factors set forth in the
following table are to be used in
determining DOE profit objectives. The
factors and weight ranges for each factor
shall be used in all instances where the
weighted guidelines are applied.
■
Section
Remove
Add
914.404–1 ............
914.407–3(e) in 3
places.
914.407–4 in 2
places.
914.502(c) ............
‘‘FAR’’ .......
‘‘FAR’’ .......
‘‘48 CFR’’
‘‘48 CFR’’
‘‘FAR’’ .......
‘‘48 CFR’’
‘‘FAR’’ .......
‘‘48 CFR’’
PART 915—CONTRACTING BY
NEGOTIATION
43. Section 915.201 is amended by
revising the section heading to read as
follows:
■
915.201 Exchanges with industry before
receipt of proposals.
*
*
*
*
*
[Amended]
44. Section 915.305(d) is amended by
removing ‘‘48 CFR (DEAR)’’ in the
second sentence.
■
■
909.407–3
‘‘FAR’’
‘‘FAR’’
‘‘FAR’’
‘‘FAR’’
‘‘FAR’’
‘‘FAR’’
909.400(c) ...............
909.403 ...................
909.406–2(d)(1) .......
909.406–70(a) .........
909.407–3(b)(2) .......
909.407–3(e)(1)(v) ..
915.305
909.407–3
Remove
(a) Removing ‘‘$500,000’’ in paragraph
(a)(1), and adding in its place ‘‘The
threshold stated at 48 CFR 15.403–
4(a)(1)’’; and
(b) Removing ‘‘$1,000,000’’ in
paragraph (a)(2), and adding in its place
‘‘Twice the threshold at 48 CFR 15.403–
4(a)(1) for requiring cost or pricing
data’’.
915.404–2
[Amended]
45. Section 915.404–2 is amended by
removing ‘‘$500,000’’ in paragraph (a)(1),
in two places, and adding in its place
‘‘the threshold stated at 48 CFR 15.403–
4(a)(1).’’
■
915.404–2–70
[Amended]
46. Section 915.404–2–70 is amended
by:
■
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Profit factors
I. Contractor Effort (Weights applied to cost):
a. Material acquisitions:
(1) Purchased parts ................
(2) Subcontracted items ..........
(3) Other materials ..................
b. Labor skills:
(1) Technical and managerial:
(a) Scientific .....................
(b) Project management/
administration.
(c) Engineering ................
(2) Manufacturing ....................
(3) Support services ................
c. Overhead:
(1) Technical and managerial
(2) Manufacturing ....................
(3) Support services ................
d. Other direct costs ...................
e. G&A (General Management)
expenses.
II. Contract Risk (type of contractweights applied to total cost of
items 4.a. thru 4.e.).
III. Capital Investment (Weights applied to the net book value of allocable facilities).
IV. Independent Research and Development:
a. Investment in IR&D program
(Weights applied to allocable
IR&D costs).
b. Developed items employed
(Weights applied to total of
profit $ for items 4.a. thru 4.e.).
V. Special Program Participation
(Weights applied to total of Profit
$ for items 4.a. thru 4.e.).
VI. Other Considerations (Weights
applied to total of Profits $ for
items 4.a. thru 4.e.).
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Weight
ranges
(percent)
1 to 3.
1 to 4.
1 to 3.
10 to 20.
8 to 20.
8 to 14.
4 to 8.
4 to 14.
5
3
3
3
5
to
to
to
to
to
8.
6.
7.
8.
7.
0 to 8.
5 to 20.
5 to 7.
0 to 20.
¥5 to
+5.
¥5 to
+5.
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Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations
Weight
ranges
(percent)
Profit factors
‘‘the threshold stated at 48 CFR 15.403–
4(a)(1)’’.
915.404–4–70–7
VII. Productivity/Performance (special computation).
915.404–4–70–4
[Amended]
(N/A).
50. Section 915.404–4–70–7 is
amended by removing ‘‘$500,000’’ in
paragraph (b), and adding in its place
‘‘the threshold stated at 48 CFR 15.403–
4(a)(1)’’.
■
[Amended]
49. Section 915.404–4–70–4 is
amended by removing ‘‘$500,000’’ in
paragraph (a), and adding in its place
■
915.404–4–72
[Amended]
51. Section 915.404–4–72 is amended
by removing ‘‘916.404–2’’ in paragraph
(a), and adding in its place ‘‘916.405–2’’.
■
915.207, 915.404
[Amended]
52. In the table below, for each section
indicated in the left column, remove the
word indicated in the middle column
from where it appears in the section,
and add the word in the right column:
■
Section
Remove
915.207–70(e)(2) ......................................................................................................................................
915.207–70(f)(2)(i) ....................................................................................................................................
915.207–70(f)(5) .......................................................................................................................................
915.404–2(a)(1) in the first sentence .......................................................................................................
915.404–4(c)(4)(i) .....................................................................................................................................
915.404–4(d) .............................................................................................................................................
915.404–4–70 ...........................................................................................................................................
915.404–4–70–2(a) ...................................................................................................................................
915.404–4–70–3, in the last sentence .....................................................................................................
915.404–4–71–1(a) in the introductory text .............................................................................................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘FAR’’ ....................
‘‘DOE to’’ ...............
917.7401
PART 916—TYPES OF CONTRACTS
916.203
[Amended]
53. Section 916.203–4(d)(2) is
amended by removing ‘‘(FAR)’’.
■
916.307
[Amended]
54. Section 916.307 is amended by:
a. Adding a new paragraph (a) to read
set forth below; and
■ b. By removing ‘‘FAR’’ in paragraph (g)
and adding in its place ‘‘48 CFR’’.
■
■
916.307
Contract clauses.
(a) When contracting with a
commercial organization, modify
paragraph (a) of the clause at 48 CFR
52.216–7 by adding the phrase ‘‘as
supplemented by subpart 931.2 of the
DEAR’’ after ‘‘FAR subpart 31.2.’’
*
*
*
*
*
917.7402
PART 917—SPECIAL CONTRACTING
METHODS
917.602
[Amended]
55. Section 917.602 is amended by
removing ‘‘that’’ in the second sentence
of paragraph (c) and adding in its place
‘‘than’’.
■
917.7200
[Amended]
56. Section 917.7200 is amended by
removing ‘‘non nuclear’’ in paragraph (a)
and adding in its place ‘‘nonnuclear’’.
emcdonald on DSK2BSOYB1PROD with RULES
■
917.7301
[Amended]
57. Section 917.7301–1 is amended by
removing paragraphs (c) and (d).
■ 58. Section 917.7401 is amended by
adding a new sentence at the beginning
of the introductory text and by revising
paragraph (b) to read as follows:
■
VerDate Mar<15>2010
16:27 Feb 10, 2011
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General.
The acquisition of real estate requires
the involvement of a DOE Certified
Realty Specialist, as specified at
917.7402. * * *
*
*
*
*
*
(b) Lease for which DOE will
reimburse the contractor for the preapproved costs incurred under the lease.
*
*
*
*
*
■ 59. Section 917.7402 is amended by:
■ a. Removing the colon from the end of
the introductory text and adding in its
place ‘‘—’’;
■ b. Revising paragraphs (b), (c)(2) and
(4); and
■ c. Adding a new paragraph (d).
The revisions and addition read as
follows:
Policy.
*
*
*
*
*
(b) Acquisitions shall be justified,
with documentation which describes
the need for the acquisitions, general
requirements, cost, acquisition option
considerations with the best acquisition
method to be used, site investigation
reports, site recommended for selection,
property appraisal reports, and include
the review and approval by the
applicable DOE Certified Realty
Specialist in accordance with DOE
Order 430.1B, or its successor version;
and
(c) * * *
(2) May exceed a one-year term, when
the lease is for special purpose space
funded by no-year appropriations and
approved by a DOE Certified Realty
Specialist. * * *
(4) Shall be consistent with
Government laws, regulations, and the
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Add
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘DOE to’’
DOE Order 430.1B, or its successor
version, applicable to real estate
acquisition.
(d) Any real property actions require
the involvement of the applicable DOE
Certified Realty Specialist.
60. Section 917.7403 is revised to read
as follows:
■
917.7403
Contract clause.
The clause at 952.217–70, Acquisition
of Real Property, shall be included in
contracts including modifications where
contractor acquisitions of real property
are expected to be made.
PART 952—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
61. Section 952.202–1 is revised to
read as follows:
■
952.202–1
Definitions.
As prescribed in 902.201, insert the
clause at 48 CFR 52.202–1, Definitions,
in all contracts. The following shall be
added to the clause as paragraph (c):
(c) When a solicitation provision or
contract clause uses a word or term that
is defined in the Department of Energy
Acquisition Regulation (DEAR) (48 CFR
chapter 9), the word or term has the
same meaning as the definition in 48
CFR 902.101 or the definition in the
part, subpart, or section of 48 CFR
chapter 9 where the provision or clause
is prescribed in effect at the time the
solicitation was issued, unless an
exception in (a) applies.
■
■
62. Section 952.204–2 is amended by:
a. Revising the date of the clause; and
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b. Adding in paragraph (j)(1) after the
first sentence, two new sentences to
read as follows:
■
952.204–2
Security.
*
*
*
*
*
SECURITY MAR 2011
*
*
*
*
*
(j) * * *
(1) * * * Contractors are encouraged
to submit this information through the
use of the online tool at https://
foci.td.anl.gov. When completed the
Contractor must print and sign one copy
of the SF 328 and submit it to the
Contracting Officer. * * *
*
*
*
*
*
■ 63. Section 952.204–71 is amended by
revising the clause date and paragraph
(b) to read as follows:
952.204–71
controls.
*
*
Sensitive foreign nations
*
*
*
SENSITIVE FOREIGN NATIONS
CONTROLS MAR 2011
*
*
*
*
*
(b) The provisions of this clause shall
be included in any subcontracts which
may involve making unclassified
information about nuclear technology
available to sensitive foreign nations.
*
*
*
*
*
■ 64. Section 952.204–73 is amended
by:
■ a. Revising the date of the provision;
and
■ b. Adding two new sentences at the
end of paragraph (a)(1).
The revision and addition reads as
follows:
952.209–72
952.204–73
*
*
*
Facility clearance.
*
*
*
FACILITY CLEARANCE MAR 2011
(a) * * *
(1) * * * Contractors are encouraged
to submit this information through the
use of the online tool at https://
foci.td.anl.gov. When completed the
Contractor must print and sign one copy
of the SF 328 and submit it to the
Contracting Officer.
*
*
*
*
*
[Amended]
65. Section 952.209–72 is amended by
removing ‘‘48 CFR’’ in the introductory
text.
■
952.217–70
[Amended]
66. Section 952.217–70 is amended by
revising the date of the clause and
paragraph (a)(2) to read as follows:
■
952.217–70
*
*
Acquisition of real property.
*
*
ACQUISITION OF REAL PROPERTY
MAR 2011
*
*
*
*
(a) * * *
(2) Lease for which the Department of
Energy will reimburse the incurred costs
as a reimbursable contract cost.
*
*
*
*
*
952.204, 952.215, 952.216
Remove
952.204–2(e) in the first sentence ..........................................................................................
952.204–2(g) in the first sentence ..........................................................................................
952.204–2(h)(2)(i) in the first sentence ..................................................................................
952.204–2(h)(2)(iii) in the first sentence ................................................................................
952.204–2(h)(2)(iv) .................................................................................................................
952.204–2(h)(2)(iv) .................................................................................................................
952.204–2(h)(2)(vi) in the introductory text ............................................................................
952.204–2(l) in five places .....................................................................................................
952.204–2(l) in the second sentence .....................................................................................
952.204–2(l) in the second sentence .....................................................................................
952.215–70(a) in the second sentence ..................................................................................
952.216–7 ...............................................................................................................................
952.216–15 Alternate .............................................................................................................
‘‘the information:’’ ...........
‘‘means:’’ ........................
‘‘A review must:’’ ............
‘‘including those: (a)’’ .....
‘‘10 CFR Part 707.4’’ .....
‘‘10 CFR Part 707’’ ........
‘‘authorization:’’ ..............
‘‘Subcontractor’’ ..............
‘‘Subcontractors’’ ............
‘‘DEAR 952.204–73’’ ......
‘‘DEAR 970.5203–3’’ ......
‘‘FAR’’ .............................
‘‘FAR’’ .............................
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2011–0054; Directorate
Identifier 2010–CE–070–AD; Amendment
39–16582; AD 2011–01–53]
emcdonald on DSK2BSOYB1PROD with RULES
RIN 2120–AA64
Airworthiness Directives; PIAGGIO
AERO INDUSTRIES S.p.A Model
PIAGGIO P–180 Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; correction.
AGENCY:
VerDate Mar<15>2010
17:53 Feb 10, 2011
Jkt 223001
The FAA is correcting an
airworthiness directive (AD) that
published in the Federal Register. That
AD applies to the products listed above.
The Piaggio service bulletin number
specified in the Alternative Methods of
Compliance (AMOCs) section is
incorrect. This document corrects that
error. In all other respects, the original
document remains the same.
SUMMARY:
BILLING CODE 6450–01–P
[Amended]
67. In the table below, for each section
indicated in the left column, remove the
word indicated in the middle column
from where it appears in the section,
and add the word in the right column:
■
Section
[FR Doc. 2011–1320 Filed 2–10–11; 8:45 am]
*
Add
‘‘the information—’’
‘‘means—’’
‘‘a review must—’’
‘‘including those—(A)’’
‘‘10 CFR 707.4’’
‘‘10 CFR part 707’’
‘‘authorization—’’
‘‘subcontractor’’
‘‘subcontractors’’
‘‘48 CFR 952.204–73’’
‘‘48 CFR 970.5203–3’’
‘‘48 CFR’’
‘‘48 CFR’’
other information. The address for the
Docket Office (phone: 800–647–5527) is
Document Management Facility, U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590.
FOR FURTHER INFORMATION CONTACT:
This final rule is effective
February 11, 2011. The effective date for
AD 2011–01–53 remains January 24,
2011.
Mike Kiesov, Aerospace Engineer, Small
Airplane Directorate, FAA, 901 Locust,
Kansas City, MO 64106; phone: (816)
329–4144; fax: (816) 329–4090; e-mail:
mike.kiesov@faa.gov.
You may examine the AD
docket on the Internet at https://
www.regulations.gov; or in person at the
Docket Management Facility between
9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD
docket contains this AD, the regulatory
evaluation, any comments received, and
SUPPLEMENTARY INFORMATION:
Airworthiness Directive 2011–01–53,
amendment 39–16582 (76 FR 4056,
January 24, 2011), currently requires an
immediate functional test of the fuselage
drain holes, and requires sending a
report of the results to the FAA. The AD
also allows, with noted exceptions, for
DATES:
ADDRESSES:
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]]>Agencies
[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Rules and Regulations]
[Pages 7685-7694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1320]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 /
Rules and Regulations
[[Page 7685]]
DEPARTMENT OF ENERGY
10 CFR Part 1023
48 CFR Parts 901, 902, 903, 904, 906, 907, 908, 909, 911, 914, 915,
916, 917, and 952
RIN 1991-AB81
(General Provisions) Contract Appeals and the Acquisition
Regulation: General, Acquisition Planning, and Contracting Methods and
Contract Types
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is amending the Department of
Energy Acquisition Regulation (DEAR) regulations on Acquisition
Planning, and Contracting Methods and Contract Types to make changes to
conform to the Federal Acquisition Regulation (FAR), remove out-of-date
coverage, and update references. Today's rule does not alter
substantive rights or obligations under current law.
DATES: Effective Date: March 14, 2011.
FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under the Small Business Regulatory Enforcement
Fairness Act of 1996
L. Approval by the Office of the Secretary of Energy
I. Background
This final rule amends the Department of Energy Acquisition
Regulation (DEAR) and the DOE regulation at 10 CFR part 1023 which
implements DOE's contract appeals procedures. DEAR subchapters A, B,
and C have outdated sections that need to be updated for consistency
with the Civilian Board of Contract Appeals (CBCA) provisions of
Section 847 of the National Defense Authorization Act for Fiscal Year
2006, Public Law 109-163, and provisions of the FAR and the Title 41,
chapter 102--Federal Management Regulation. DOE is implementing these
provisions but they are not yet reflected in the DEAR.
DOE is also removing regulations in 10 CFR part 1023 that have been
made obsolete by the establishment of the CBCA within the General
Services Administration. DOE has already adjusted its internal
procedures to address the CBCA jurisdiction.
With the amended changes to Subchapters A, B, and C, the DEAR would
conform to the FAR, the Title 41, chapter 101--Federal Property
Management Regulation, and the Federal Management Regulation. The
purpose of this rule is to update the existing DEAR to conform it to
the FAR. Changes are to DEAR parts 901, 902, 903, 904, 906, 907, 908,
909, 911, 914, 915, 916, 917, and 952. No changes are being made to
DEAR parts 905, 910, and 912 at this time. None of today's conforming
changes are substantive or of a nature to cause any significant expense
for DOE or its contractors.
II. Discussion
DOE published a notice of proposed rulemaking on July 1, 2010 (75
FR 38042), with a public comment period ending on August 2, 2010. DOE
received no comments.
DOE amends the 10 CFR part 1023 as follows:
1. DOE removes from the regulation 10 CFR part 1023 made obsolete
by the termination of the Energy Board of Contract Appeals and the
establishment of the Civilian Board of Contract Appeals. Section 847 of
the National Defense Authorization Act for Fiscal Year 2006, Public Law
109-163 established within the General Services Administration the
Civilian Board of Contract Appeals and terminates authority for the
Energy Board of Contract Appeals.
DOE amends the DEAR as follows:
2. Section 901.101 is revised to add ``(Chapter 1 of Title 48 of
the Code of Federal Regulations (CFR))'' to provide the citation to the
FAR's CFR chapter.
3. Section 901.102 is removed and redesignated as 901.103 to
conform to the FAR. It also is revised to add ``Senior'' before
``Procurement Executive'' and to clarify that there are two Senior
Procurement Executives, one for the National Nuclear Security
Administration (NNSA) and the other for the rest of the Department of
Energy (DOE). The section is further revised to add a reference to the
more recent and separate delegation for the NNSA Senior Procurement
Executive from the Administrator of the NNSA, and update citation
references to the United States Code.
4. Section 901.103 is redesignated as 901.104. That section is also
revised to clarify that the DEAR applies to NNSA acquisitions.
5. Section 901.104-1 is redesignated as 901.105-1. That section is
revised to add the CFR citation and the Web site reference for the
electronic CFR.
6. Section 901.104-2 is redesignated as 901.105-2. In addition, it
is moved to update the cite in paragraph (b) from 1.104-2(b) to 1.105-
2(b) to conform to the FAR.
7. Section 901.104-3 is redesignated as 901.105-3 which is revised
to add the Web site reference to view the electronic DEAR.
8. Section 901.105 is redesignated as 901.106. The title of the
redesignated 901.106 is revised to read ``OMB approval under the
Paperwork Reduction Act'' to conform to the FAR. In addition, the
Office of Management and Budget (OMB) acronym is spelled out. The
paragraph is further revised to remove the redundant FAR text and the
reference to canceled OMB control number 1910-5103.
9. Section 901.301-70 paragraph (a) is revised to add a reference
to the Federal Management Regulation to conform to the FMR. The
paragraph is also revised to state that the Department of Energy
[[Page 7686]]
Acquisition Guide provides procedural guidance for the acquisition
community and provides the Web link to the guide.
10. Subpart 901.6 is revised to add ``Career Development,'' to the
title of this subpart.
11. Section 901.601 paragraph (a) is revised to add the contracting
authority for NNSA. This paragraph explains the authorities for the
Senior Procurement Executives for DOE and NNSA. Paragraph (b) is
revised to clarify that both of the Senior Procurement Executives have
been authorized to perform functions set forth at FAR 1.601(b).
12. Section 901.602-3 is revised to clarify that the Senior
Procurement Executives are authorized to ratify unauthorized
commitments.
13. Section 901.603 is revised by adding references to DOE Order
361.1B, Acquisition Career Management Program and DOE Order 541.1B,
Appointment of Contracting Officers and Contracting Officer
Representatives, or their respective successor orders.
14. Part 902 is revised by adding subpart 902.1 consisting of
902.101, Definitions, to define the ``Agency Head or Head of the
Agency'', the ``Department of Energy'', and the ``Senior Procurement
Executive'' and by removing 902.200 in its entirety and adding the
clause instruction at 902.201 to conform to the FAR.
15. Section 903.303 is amended in paragraph (a) to add ``Senior''
before ``Procurement Executive''.
16. Subpart 903.4 Contingent Fees is amended at 903.405 to revise
the section heading.
17. Section 903.405 is revised to delete the reference to use
Standard Form 119, which is outdated, but retains the direction that
the chief of the contracting office seek review by counsel before
initiating appropriate action.
18. Section 903.603 in paragraph (a) removes the first occurrence
of ``FAR''.
19. Subpart 903.7--Voiding and Rescinding Contracts is added to
state only the Head of the Contracting Activity can determine whether a
contract is voided or rescinded.
20. Subpart 903.10--Contractor Code of Business Ethics and Conduct
is added to conform with the FAR.
21. Section 903.1004 Contract clauses, paragraph (b)(2)(ii) is
added to instruct the contracting officer to insert the DOE Web site
address https://ig.energy.gov/hotline.htm in paragraph (b)(3) of the 48
CFR 52.203-14 clause, Display of Hotline Poster(s).
22. Section 904.7001 is amended by removing the last sentence which
contained the definitions of ``contractor,'' ``contract,'' and
``special nuclear material.''
23. Section 904.7002 is amended by adding three definitions of
terms that were previously described in the last sentence of section
904.7001.
24. Section 906.102 paragraph (d)(4) is rewritten to clarify the
use of competitive selection procedures for the award of research
proposals in accordance with Subpart 917.73 and FAR Part 35.
25. Section 906.102 paragraph (d)(5) is rewritten to clarify the
use of competitive selection procedures for award of program
opportunity notices for commercial demonstrations in accordance with
Subpart 917.72.
26. Section 906.501 is revised to add the NNSA role in delegating
authority for appointment of the agency and contracting activity
competition advocates, and removing the last sentence referencing
procedural guidance in internal directives.
27. Part 907 is removed and reserved, pursuant to Federal
Acquisition Circular 2005-09 which revised FAR Subpart 7.3 to be
consistent with OMB Circular A-76 (Revised), Performance of Commercial
Activities, dated May 29, 2003.
28. Section 908.7107 on the procurement of industrial alcohol is
amended by revising this section to reflect current Alcohol and Tobacco
Tax and Trade Bureau, Department of Treasury regulations.
29. Sections 909.400(a), 909.400(b), and 909.401 are amended by
adding ``National Nuclear Security Administration (NNSA)'' after
``DOE''.
30. Section 909.401 is amended by removing ``10 CFR part 1036.''
and adding in its place ``2 CFR part 901.'' to update the citation.
31. Part 909 is amended by adding to section 909.405 Effect of
listing, by identifying the debarment exception authority for NNSA in
paragraph (e) and by adding references to NNSA and the Excluded Parties
List System (EPLS) in paragraphs (f) through (h), which supplement FAR
9.405.
32. Section 909.406-2 is amended in paragraph (c) by adding ``DOE
and NNSA'' and revising punctuation in paragraphs (c)(1) and (d)(1).
33. Section 909.406-3(a)(1) is amended in the first sentence, by
removing ``both the Deputy Assistant Secretary for Procurement and
Assistance Management'' and adding in its place ``the appropriate
Senior Procurement Executive'' to correct the title of the official and
by removing ``1010.217(b), Cooperation with the Inspector General.''
and adding in its place ``1010.103, Reporting Wrongdoing.''
34. Consistent with FAR 9.404, section 909.406-3(a)(2) is amended
in paragraph (2) by revising punctuation; in subparagraph (iv) by
adding ``or other identifying number for an individual'' as identifying
information to be provided in a debarment referral; in subparagraphs
(v) and (vii) adding ``and NNSA's''; and in subparagraph (vi) removing
``Board of Contract Appeals; and'' and adding in its place ``Civilian
Board of Contract Appeals or other fact-finding body; and''.
35. Section 909.406-3(b)(2) is amended in the third sentence by
removing ``refer the matter to the Energy Board of Contract Appeals''
and adding in its place ``appoint, and refer the matter to, a Fact-
Finding Official''.
36. Section 909.406-3(b)(3) is amended in the first sentence by
removing ``therefor''.
37. Section 909.406-3(b)(4) is amended in the second through the
fourth sentences by removing reference to the Energy Board of Contract
Appeals and by adding in its place a reference to the Fact-Finding
Official.
38. Section 909.406-3(d)(4) is amended in the third through fifth
sentences by removing reference to the Energy Board of Contract Appeals
and adding in its place a reference to the Fact-Finding Official.
39. Section 909.406-70(b) is amended in the third sentence, after
``respondent'' by removing the rest of the sentence.
40. Section 909.407 adds a new section heading.
41. Consistent with FAR 9.404, section 909.407-3 is amended in
paragraph (e)(1)(vii) by removing mention of GSA and by adding EPLS to
update the name of the listing.
42. Section 915.201 is amended by revising the section heading.
43. Section 915.305(d) is amended to remove ``48 CFR (DEAR)'' in
the second sentence.
44. Sections 915.404-2 paragraph (a)(1) in two places; 915.404-2-70
paragraphs (a)(1) and (a)(2); 915.404-4-70-4 paragraph (a); and
915.404-4-70-7 paragraph (b) are amended by removing the dollar values
and adding the reference to 48 CFR 15.403-4(a)(1).
45. Section 915.404-4(c)(4)(i) is amended by removing ``profit and
fees'' and adding ``price and fee''.
46. Section 915.404-4-70-2 is amended by renumbering the table in
paragraph (d) to conform to the DOE Form 42.20.23, Weighted Guidelines.
47. Section 915.404-4-72 is amended by removing ``916.404-2'' and
adding ``916.405-2'' to update the reference to conform to FAR 16.405-
2.
[[Page 7687]]
48. Section 916.203-4(d)(2) is amended by removing ``(FAR)''.
49. Section 916.307 is amended by adding a paragraph (a) which
provides direction to the contracting officer to modify paragraph (a)
of clause 48 CFR 52.216-7 by adding the phrase ``as supplemented by
subpart 931.2 of the DEAR'' after ``FAR subpart 31.2''.
50. Section 917.602 is amended to remove ``that'' in the second
sentence of paragraph (c) and adding in its place ``than''.
51. Section 917.7301-1 is amended by removing paragraphs (c) and
(d). This information is internal guidance and has been moved to DOE's
Acquisition Guide.
52. Section 917.7401 is amended by adding in the first paragraph
before the first sentence, ``The acquisition of real estate requires
the involvement of a DOE Certified Realty Specialist, as specified at
917.7402.'' This amendment adds clarity to the processes of the DEAR
and conforms to DOE Order 430.1B.
53. Section 917.7401(b) is amended by removing paragraph (b) in its
entirety and adding in its place, ``(b) Lease for which DOE will
reimburse the contractor for the pre-approved costs incurred under the
lease.'' This adds clarity to the DEAR and conforms to DOE Order
430.1B.
54. Section 917.7402 is amended in the first sentence by changing
the punctuation; and in paragraph (b) adding ``acquisition option
considerations with the best'' between the words ``cost,'' and
``acquisition method'' and removing ``and property appraisal reports;
and'' and adding in its place ``property appraisal reports, and include
the review and approval by the applicable DOE Certified Realty
Specialist in accordance with DOE Order 430.1B, or its successor
version; and''. This adds clarity to the DEAR and conforms to the DOE
Order 430.1B.
55. Section 917.7402(c)(2) and (4) is amended in paragraph (c)(2)
by adding ``approved by a DOE Certified Realty Specialist'' and in
paragraph (c)(4) by removing ``and regulations applicable to real
estate management.'' and adding in its place ``, regulations, and the
DOE Order 430.1B, or its successor version, applicable to real estate
acquisition.'' This adds clarity to the DEAR and conforms to the DOE
Order 430.1B.
56. Section 917.7402(d) is amended by adding that any real property
actions require the involvement of the applicable DOE Certified Realty
Specialist.
57. Section 917.7403 is amended in the title by removing
``Application.'' and adding in its place ``Contract clause.''; by
removing ``48 CFR'' before the clause number; by adding ``, Acquisition
of Real Property,'' after ``952.217-70''; by removing ``or'' and adding
in its place ``including''; and by adding ``of real property'' after
``contractor acquisitions''.
58. Section 952.202-1 is amended to remove the included definitions
and to direct contracting officers to supplement clause 48 CFR 52.202-1
by inserting paragraph (c). These changes are made to conform to
revised part 902.
59. Clause 952.204-2 and provision 952.204-73 are amended to
encourage contractors to submit information through the use of the
online tool and to send a copy of standard form 328 to the contracting
officer.
60. Clause 952.204-71 is amended in paragraph (b) by adding ``which
may involve making unclassified information about nuclear technology
available to sensitive foreign nations'' after ``subcontracts''. This
phrase is added to provide clarity for subcontractor flow down pursuant
to DEAR 904.404(d)(3).
61. Clause 952.217-70 is amended in subparagraph (a)(2) by removing
this subparagraph in its entirety and adding in its place ``(2) Lease
for which the Department of Energy will reimburse the incurred costs of
the lease as a reimbursable contract cost''. This change is made to add
clarity on reimbursements for leases.
62. Throughout, sections are amended by removing ``FAR'' and adding
``48 CFR'', by removing ``DEAR'' and adding ``48 CFR'', and by updating
other CFR citations or changing punctuation.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this rule is not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs (OIRA) of the
Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the United
States Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or if it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
an agency prepare an initial regulatory flexibility analysis for any
regulation for which a general notice or rulemaking is required, unless
the agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)). This rule updates references in the DEAR that apply
to public contracts and does not impose any additional requirements on
small businesses. Today's rule does not alter any substantive rights or
obligations and, consequently, today's rule will not have a significant
cost or administrative impact on contractors, including small entities.
On the basis of the foregoing, DOE certifies that this rule would not
have a significant economic impact on a substantial number of small
entities. Accordingly, DOE has not prepared a regulatory flexibility
analysis for this rulemaking. DOE's certification and supporting
statement of factual basis will be provided to the Chief Counsel for
Advocacy of the Small Business Administration pursuant to 5 U.S.C.
605(b).
D. Review Under the Paperwork Reduction Act
This final rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Existing burdens
[[Page 7688]]
associated with the collection of certain contractor data under the
DEAR have been cleared under OMB control number 1910-4100.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this rule falls into a class
of actions which would not individually or cumulatively have
significant impact on the human environment, as determined by DOE's
regulations (10 CFR part 1021, subpart D) implementing the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically excluded from NEPA review
because the amendments to the DEAR are strictly procedural (categorical
exclusion A6). Therefore, today's rule does not require an
environmental impact statement or environmental assessment pursuant to
NEPA.
F. Review Under Executive Order 13132
Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. The Executive Order requires agencies to
have an accountability process to ensure meaningful and timely input by
State and local officials in the development of regulatory policies
that have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined today's rule and has determined that it does
not preempt State law and does not have a substantial direct effect on
the States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. No further action is required by
Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a written assessment of costs and
benefits of any rule imposing a Federal mandate with costs to State,
local or Tribal governments, or to the private sector, of $100 million
or more. This rule does not impose any Federal mandate on State, local
or Tribal governments or on the private sector.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rulemaking or policy that may
affect family well-being. This rule will have no impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 13211
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to
Office of Information and Regulatory Affairs of the Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (3) is designated by the
Administrator of OIRA as a significant energy action. For any
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's rule is not a significant energy action. Accordingly, DOE has
not prepared a Statement of Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's rule under the OMB and DOE guidelines and has concluded that it
is consistent with applicable policies in those guidelines.
K. Review Under the Small Business Regulatory Enforcement Fairness Act
of 1996
As required by 5 U.S.C. 801, the Department will report to Congress
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(3).
L. Approval by the Office of the Secretary of Energy
Issuance of today's rule has been approved by the Office of the
Secretary.
List of Subjects
10 CFR Part 1023
Administrative practice and procedure, Claims, Equal access to
justice, Government contracts, Government procurement, Lawyers.
48 CFR Parts 901, 902, 903, 904, 906, 907, 908, 909, 911, 914, 915,
916, 917, and 952
Government procurement.
Issued in Washington, DC, on January 13, 2011.
Patrick M. Ferraro,
Acting Director, Office of Procurement and Assistance Management,
Department of Energy.
Joseph F. Waddell,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
For the reasons set out in the preamble, the Department of Energy
amends Chapter X of Title 10 and Chapter 9 of Title 48 of the Code of
Federal Regulations as set forth below.
TITLE 10--ENERGY
PART 1023--[REMOVED]
0
1. Under the authority of Section 847 of the National Defense
Authorization Act for Fiscal Year 2006, Public Law 109-163, 10 CFR
chapter X is amended by removing part 1023.
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
2. Authority citations continue to read as follows:
0
a. For parts 901, 903, 904, 906, 908, 909, 914, 915, 916, and 917, the
authority citation continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
[[Page 7689]]
0
b. For parts 911 and 952 the authority citations continue to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 50 U.S.C. 2401 et seq.
PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 901.1--Purpose, Authority, Issuance
901.101 [Amended]
0
3. Section 901.101 is amended by adding ``(Chapter 1 of Title 48 of the
Code of Federal Regulations (CFR))'' at the end of the sentence.
901.102, 901.103, 901.104, 901.104-1, 901.104-2, 901.104-3, and
901.105 [Redesignated as 901.103, 901.104, 901.105, 901.105-1,
901.105-2, 901.105-3, and 901.106]
0
4. Redesignate sections 901.102, 901.103, 901.104, 901.104-1, 901.104-
2, 901.104-3, and 901.105 as sections 901.103, 901.104, 901.105,
901.105-1, 901.105-2, 901.105-3, and 901.106, respectively.
0
5. Newly redesignated section 901.103 is revised to read as follows:
901.103 Authority.
The DEAR and amendments thereto are issued by the Senior
Procurement Executives of the Department of Energy (DOE) and the
National Nuclear Security Administration (NNSA). The DOE Senior
Procurement Executive delegation is pursuant to a delegation from the
Secretary of Energy in accordance with the authority of section 644 of
the Department of Energy Organization Act (42 U.S.C. 7254), section
205(c) of the Federal Property and Administrative Services Act of 1949,
as amended, (40 U.S.C. 121(c)(2)), and other applicable laws. The NNSA
Senior Procurement Executive delegation is pursuant to a delegation
from the Administrator of the NNSA, in accordance with section 3212 of
the National Nuclear Security Administration Act (50 U.S.C. 2402),
section 205(c) of the Federal Property and Administrative Services Act
of 1949, as amended, (40 U.S.C. 121(c)(2)), and other applicable laws.
901.104 [Amended]
0
6. Newly redesignated 901.104 is amended by adding ``and NNSA'' after
the acronym ``DOE.''
0
7. Revise newly redesignated 901.105-1 to read as follows:
901.105-1 Publication and code arrangement.
(a) The DEAR and its subsequent changes are published in the
Federal Register, cumulative form in the Code of Federal Regulations
(CFR), and Government Printing Office's Electronic CFR at https://ecfr.gpoaccess.gov.
(b) The DEAR is issued as Chapter 9 of Title 48 of the CFR.
901.105-2 [Amended]
0
8. Amend newly redesignated 901.105-2(b) by removing ``(FAR)'' before
``48'' and removing ``1.104-2(b)'' and adding in its place ``1.105-
2(b)''.
901.105-3 [Amended]
0
9. Amend newly redesignated 901.105-3 by adding ``or viewed on line at
https://ecfr.gpoaccess.gov or at https://management.energy.gov/DEAR.htm''
at the end of the sentence.
0
10. Revise newly redesignated 901.106 to read as follows:
901.106 OMB approval under the Paperwork Reduction Act.
The Office of Management and Budget (OMB) control number for the
collection of information under 48 CFR chapter 9 is 1910-4100.
Subpart 901.3--Agency Acquisition Regulations
0
11. Section 901.301-70 is revised to read as follows:
901.301.70 Other issuances related to acquisition.
(a) In addition to the FAR and DEAR, there are other issuances
which deal with acquisition. Among these are the Federal Property
Management Regulation, the Federal Management Regulation, the DOE
Property Management Regulation, and DOE Directives. The Department also
maintains the DOE Acquisition Guide (``the Guide''), which has
procedural guidance for the acquisition community. The DOE Acquisition
Guide serves this purpose by identifying relevant internal standard
operating procedures to be followed by both procurement and program
personnel who are involved in various aspects of the acquisition
process. The Guide also is intended to be a repository of best
practices found throughout the agency that reflect specific
illustrations of techniques which might be helpful to all readers. The
Guide is at https://management.energy.gov/policy_guidance/Acquisition_Guide.htm.
Subpart 901.6--Career Development, Contracting Authority, and
Responsibilities
0
12. The heading of subpart 901.6 is revised to read as set forth above.
0
13. Section 901.601 is revised to read as follows:
901.601 General.
(a) Contracting authority for DOE vests in the Secretary of Energy,
and for NNSA in the Administrator.
(1) The Secretary has delegated this authority to the DOE Senior
Procurement Executive. The DOE Senior Procurement Executive has
redelegated this authority to the DOE Heads of Contracting Activities
(HCA). These delegations are formal written delegations containing
specific dollar limitations and conditions. Each DOE HCA, in turn,
makes formal contracting officer appointments for its contracting
activity.
(2) Contracting authority for NNSA vests in the Under Secretary for
Nuclear Security, also known as the NNSA Administrator. The NNSA
Administrator has delegated this authority, with specific dollar
limitations and conditions to the NNSA Senior Procurement Executive.
The NNSA Senior Procurement Executive has redelegated this authority to
the NNSA Head of the Contracting Activities (HCA). Each NNSA HCA in
turn makes formal contracting officer appointments for its contracting
activity.
(b) The Senior Procurement Executives have been authorized, without
power of redelegation, to perform the functions set forth at 48 CFR
1.601(b) regarding the assignment of contracting functions and
responsibilities to another agency, and the creation of joint or
combined offices with another agency to exercise acquisition functions
and responsibilities.
0
14. Section 901.602-3 is amended by revising paragraph (b)(2), and
removing from paragraph (b)(3), the term ``Procurement Executive'' and
adding in its place ``DOE and NNSA Senior Procurement Executives''.
The revision reads as follows:
901.602-3 Ratification of unauthorized commitments.
(b)(2) The Senior Procurement Executives are authorized to ratify
unauthorized commitments.
* * * * *
0
15. Sections 901.603, 901.603-1, and 901.603-70 are added to subpart
901.6 to read as follows:
901.603 Selection, appointment, and termination of appointment.
901.603-1 General.
The DOE Order 361.1B, Acquisition Career Management Program, or its
[[Page 7690]]
successor order, sets forth the requirements and responsibilities for
the DOE and NNSA Acquisition Career Development Program.
901.603-70 Appointment of contracting officers and contracting
officer's representatives.
See the DOE Order 541.1B, Appointment of Contracting Officers and
Contracting Officer Representatives, or its successor order, for
procedures on the appointment of contracting officers and contracting
officer's representatives.
0
16. Part 902 is revised to read as follows:
PART 902--DEFINITIONS OF WORDS AND TERMS
Sec.
Subpart 902.1--Definitions
902.101 Definitions.
Subpart 902.2--Definitions Clause
902.201 Contract clause.
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
Subpart 902.1--Definitions
902.101 Definitions.
Agency Head or Head of the Agency means--
(1) For the Department of Energy (DOE)--
(i) The Secretary;
(ii) The Deputy Secretary; or
(iii) Under Secretaries of the Department of Energy.
(2) For the National Nuclear Security Administration (NNSA) the
Administrator, also known as the Under Secretary of Nuclear Security.
Department of Energy (DOE) means, as used in the DEAR, the
Department of Energy and includes the National Nuclear Security
Administration (NNSA), unless otherwise specified.
Senior Procurement Executive means for the Department of Energy,
the Director, Office of Procurement and Assistance Management and for
the National Nuclear Security Administration, the Director, Office of
Acquisition and Supply Management.
Subpart 902.2--Definitions Clause
902.201 Contract clause.
Insert the clause at 952.202-1, Definitions, in solicitation and
contracts that exceed the simplified acquisition threshold.
PART 903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
903.303 [Amended]
0
17. Section 903.303 is amended by:
0
a. Adding ``Senior'' before ``Procurement Executive'' in the first
sentence of paragraph (a); and
0
b. Removing ``FAR'' from the first sentence, both occurrences, and
adding in its place ``48 CFR''.
0
18. Section 903.405 is revised to read as follows:
903.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(b) Before the Chief of the Contracting Office initiates
appropriate action, the action shall be reviewed by Legal Counsel.
903.603 [Amended]
0
19. Section 903.603 is amended by:
0
a. Removing the first occurrence of ``FAR'' in paragraph (a); and
0
b. Removing ``FAR'' at its second occurrence in the first sentence and
adding in its place ``48 CFR''.
0
20. Add a new subpart 903.7 consisting of 903.700 to read as follows:
Subpart 903.7--Voiding and Rescinding Contracts
903.700 Scope of subpart.
The HCA is the designee for determining whether to void or rescind
a contract. This authority is nondelegable.
0
21. Add a new subpart 903.10 consisting of 903.1004 to read as follows:
Subpart 903.10--Contractor Code of Business Ethics and Conduct
903.1004 Contract clauses.
(b)(2)(ii) Insert the DOE Web site address https://ig.energy.gov/hotline.htm in paragraph (b)(3) of the 48 CFR 52.203-14 clause, Display
of Hotline Poster(s).
PART 904--ADMINISTRATIVE MATTERS
904.404 [Amended]
0
22. Section 904.404 is amended by removing ``FAR'' in paragraph (d)(1)
in the last sentence and adding in its place ``48 CFR''.
904.804 [Amended]
0
23. Section 904.804-1 is amended by removing ``FAR'' in paragraph (a)
and adding in its place ``48 CFR''.
904.7001 [Amended]
0
24. Section 904.7001 is amended by removing ``as defined in 10 CFR part
710'' from the first sentence and removing the last sentence in its
entirety.
0
25. Section 904.7002 is amended by adding in alphabetical order new
definitions for ``contract'', ``contractor'', and ``special nuclear
material'' to read as follows:
904.7002 Definitions.
Contract means the prime contract and the subcontract at any tier.
* * * * *
Contractor means the contractor and the subcontractor at any tier.
* * * * *
Special nuclear material means special nuclear material as defined
in 10 CFR 710.5(a).
PART 906--COMPETITION REQUIREMENTS
0
26. Section 906.102 is amended in paragraph (d)(1) by removing ``FAR
Subpart'' and adding in its place ``48 CFR subpart'', and revising
paragraphs (d)(4) and (d)(5) to read as follows:
906.102 Use of competitive procedures.
(d) * * *
(4) Program research and development announcements shall follow the
competitive selection procedures for the award of research proposals in
accordance with subpart 917.73 and 48 CFR part 35.
(5) Program opportunity notices for commercial demonstrations shall
follow the competitive selection procedures for award of these
proposals in accordance with subpart 917.72.
906.202 [Amended]
0
27. Section 906.202 is amended by removing ``FAR'' in paragraph (b)(1)
and adding in its place ``48 CFR''.
906.304 [Amended]
0
28. Section 906.304 is amended by removing ``FAR'' in paragraph (c)(2)
and adding in its place ``48 CFR''.
0
29. Section 906.501 is revised to read as follows:
906.501 Requirement.
The Secretary of Energy and NNSA Administrator have delegated the
authority for appointment of the agency and contracting activity
competition advocates to the respective DOE and NNSA Senior Procurement
Executives. The Senior Procurement Executives have redelegated
authority to the Head of the Contracting Activity to appoint
contracting activity competition advocates.
PART 907--[REMOVED AND RESERVED]
0
30. Under the authority of 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et
seq., Part 907 is removed and reserved.
[[Page 7691]]
PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
908.7106 [Amended]
0
31. Section 908.7106 is amended by removing ``FAR'' in paragraph (b)
and adding in its place ``48 CFR part''.
0
32. Section 908.7107 is revised to read as follows:
908.7107 Procurement and use of industrial alcohol.
(a) This section covers the procurement of industrial alcohol by
DOE or authorized contractors and the applicable policies and
delegations of authority to submit industrial alcohol user application
to procure and use tax-free alcohol or specially denatured spirits. To
the fullest extent practicable, industrial alcohol for use by DOE or
its contractors shall be procured on a tax-free basis.
(b) The procurement of tax-free alcohol or specially denatured
spirits shall be conducted in accordance with the regulations, policy,
and procedures of the Alcohol and Tobacco Tax and Trade Bureau (TTB),
of the Department of Treasury. The applicable TTB regulations and forms
may be accessed at the following Web site: https://www.ttb.gov/foia/err.shtml#regulations. For further information, contact the Alcohol and
Tobacco Tax and Trade Bureau, Director, National Revenue Center, 550
Main St., Suite 8002, Cincinnati, OH 45202-5215 or toll free at 1-877-
882-3277.
(c) The applying office should coordinate, as necessary, with the
local State Alcohol Control Board, or its equivalent, to obtain the
appropriate State license.
(1) Tax-free alcohol. TTB regulations relating to the procurement
and use of alcohol free of tax, by Government agencies, are set forth
in 27 CFR Part 22, subpart N, Sec. Sec. 22.171 to 22.176.
(2) Specially denatured spirits. TTB regulations relating to the
acquisition and use of alcohol free of tax, by Government agencies, are
set forth in 27 CFR Part 20, subpart N, Sec. Sec. 20.241 to 20.245.
(d) For the user permits to procure and use tax-free alcohol and
specially denatured spirits submit the application on the TTB Form
5150.22, ``Application for Industrial Alcohol User Permit,'' (or the
current TTB form). When permits are no longer required, they should be
forwarded to the Alcohol and Tobacco Tax and Trade Bureau for
cancellation. Industrial alcohol procured by use of the TTB form
referred to in this subsection shall be used exclusively on DOE work.
(e) The Senior Procurement Executive (SPE) has the authority to
sign the TTB application, Form 5150.22. The SPE may delegate this
authority to sign the application to specifically named DOE personnel.
Requests for new authorizations or changes to existing authorizations
shall be submitted by letter to the SPE. A copy of the TTB approved
permit shall be sent to the SPE.
(f) Abandoned and forfeited alcohol which has come into the custody
or control of a Federal agency may be obtained by following the
procedure set forth in the FMR at 41 CFR part 102-41.
PART 909--CONTRACTOR QUALIFICATIONS
909.400 [Amended]
0
33. Section 909.400 is amended:
0
a. In paragraph (a), by adding ``and National Nuclear Security
Administration (NNSA)''; after ``(DOE)'';
0
b. In paragraph (a), by adding ``and, NNSA'', after ``DOE''; and
0
c. In paragraph (b), by adding ``and NNSA'' after ``DOE''.
909.401 [Amended]
0
34. Section 909.401 is amended by:
0
a. Adding ``and NNSA''; after ``DOE''; and
0
b. Removing ``10 CFR part 1036.'' and adding in its place ``2 CFR part
901.''
0
35. Section 909.405 is revised to read as follows:
909.405 Effect of listing.
(e) The Department of Energy may not solicit offers from, award
contracts to or consent to subcontracts with contractors debarred,
suspended, or proposed for debarment unless the Senior Procurement
Executive makes a written determination justifying that there is a
compelling reason for such action in accordance with 48 CFR 9.405(a).
For NNSA, the Head of the Contracting Activity (HCA) makes the written
determination justifying the compelling reason.
(f) DOE or NNSA may disapprove or not consent to the selection (by
a contractor) of an individual to serve as a principal investigator, as
a project manager, in a position of responsibility for the
administration of Federal funds, or in another key personnel position,
if the individual is listed in the Excluded Parties List System (EPLS).
(g) DOE or NNSA shall not conduct business with an agent or
representative of a contractor if the agent's or representative's name
is listed in the EPLS.
(h) DOE or NNSA shall review the EPLS before conducting a pre-award
survey or soliciting proposals, awarding contracts, renewing or
otherwise extending the duration of existing contracts, or approving or
consenting to the award, extension, or renewal of subcontracts.
909.406-2 [Amended]
0
36. Section 909.406-2 is amended by adding ``DOE and NNSA'' in
paragraph (c) introductory text, first sentence, after ``The''.
0
37. Section 909.406-3 is amended by:
0
a. Removing from the first sentence in paragraph (a)(1), ``both the
Deputy Assistant Secretary for Procurement and Assistance Management''
and adding in its place ``the appropriate Senior Procurement
Executive''; and removing, ``Sec. 1010.217(b), Cooperation with the
Inspector General.'' and adding in its place ``Sec. 1010.103,
Reporting Wrongdoing.'';
0
b. Removing the colon at the end of the introductory text of paragraph
(a)(2) and adding in its place ``--'';
0
c. Adding ``or other identifying number for an individual'' in
paragraph (a)(2)(iv) after ``Number'';
0
d. Adding ``and NNSA's'' in paragraph (a)(2)(v) after ``DOE's'';
0
e. Removing ``Board of Contract Appeals; and'' in paragraph (a) (2)(vi)
and adding in its place ``Civilian Board of Contract Appeals or other
fact-finding body; and;'';
0
f. Adding ``and NNSA'' in paragraph (a)(2) (vii) after ``DOE'';
0
g. Removing ``refer the matter to the Energy Board of Contract
Appeals'' in paragraph (b)(2) third sentence and adding in its place
``appoint, and refer the matter to, a Fact-Finding Official'';
0
h. Removing ``therefor'' in paragraph (b)(3) first sentence; and
0
i. Revising paragraphs (b)(4) and (d)(4) to read as follows:
909.406-3 Procedures.
* * * * *
(b) * * *
(4) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts through the submission of oral
and written evidence; resolve facts in dispute; and provide the
Debarring Official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. The fact-
finding conference shall be conducted in accordance with rules
consistent with 48 CFR 9.406-3(b). The Fact-Finding Official will
notify the affected parties of the schedule for the hearing. The Fact-
Finding Official shall deliver written findings of fact to the
Debarring Official (together with a
[[Page 7692]]
transcription of the proceeding, if made) within a certain time period
after the hearing record closes as specified by the Fact-Finding
Official. The findings shall resolve any disputes over material facts
based upon a preponderance of the evidence, if the case involves a
proposal to debar, or on adequate evidence, if the case involves a
suspension. Since convictions or civil judgments generally establish
the cause for debarment by a preponderance of the evidence, there
usually is no genuine dispute over a material fact that would warrant a
fact-finding conference for those proposed debarments based on
convictions or civil judgments.
(d) Debarring Official's decision. (4) The Debarring Official's
final decision shall be based on the administrative record. In those
actions where additional proceedings are necessary as to disputed
material facts, written findings of fact shall be prepared and included
in the final decision. In those cases where the contractor has
requested and received a fact-finding conference, the written findings
of fact shall be those findings prepared by the Fact-Finding Official.
Findings of fact shall be final and conclusive unless, within 15 days
of receipt of the findings, the Department or the respondent requests
reconsideration, or unless set aside by a court of competent
jurisdiction. The Fact-Finding Official shall be provided a copy of the
Debarring Official's final decision.
909.406-70 [Amended]
0
38. Section 909.406-70 is amended by removing the words ``and, if a
fact-finding conference under 909.406-3(b)(4) is pending (as in the
case of a request for reconsideration of a suspension, where the
proposed debarment is the subject of a fact-finding conference), a copy
of the disposition shall be transmitted to the Energy Board of Contract
Appeals'' in paragraph (b), third sentence.
909.407-3 [Amended]
0
39. Section 909.407-3 is amended by revising paragraph (e)(1)(vii) to
read as follows:
909.407-3 Procedures.
* * * * *
(e) * * *
(1) * * *
(vii) A statement that the respondent's name and address will be
added to the EPLS; and
* * * * *
909.400, 909.403, 909.406, 909.407 [Amended]
0
40. In the table below, for each section indicated in the left column,
remove the word indicated in the middle column from where it appears in
the section, and add the word in the right column:
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
909.400(c)...................... ``FAR''........... ``48 CFR''
909.403......................... ``FAR''........... ``48 CFR''
909.406-2(d)(1)................. ``FAR''........... ``48 CFR''
909.406-70(a)................... ``FAR''........... ``48 CFR''
909.407-3(b)(2)................. ``FAR''........... ``48 CFR''
909.407-3(e)(1)(v).............. ``FAR''........... ``48 CFR''
------------------------------------------------------------------------
PART 911--DESCRIBING AGENCY NEEDS
911.600 [Amended]
0
41. Section 911.600 is amended by removing ``FAR'' and adding in its
place ``48 CFR part''.
PART 914--SEALED BIDDING
914.404, 914.407, 914.502 [Amended]
0
42. In the table below, for each section indicated in the left column,
remove the word indicated in the middle column from where it appears in
the section, and add the word in the right column:
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
914.404-1....................... ``FAR''........... ``48 CFR''
914.407-3(e) in 3 places........ ``FAR''........... ``48 CFR''
914.407-4 in 2 places........... ``FAR''........... ``48 CFR''
914.502(c)...................... ``FAR''........... ``48 CFR''
------------------------------------------------------------------------
PART 915--CONTRACTING BY NEGOTIATION
0
43. Section 915.201 is amended by revising the section heading to read
as follows:
915.201 Exchanges with industry before receipt of proposals.
* * * * *
915.305 [Amended]
0
44. Section 915.305(d) is amended by removing ``48 CFR (DEAR)'' in the
second sentence.
915.404-2 [Amended]
0
45. Section 915.404-2 is amended by removing ``$500,000'' in paragraph
(a)(1), in two places, and adding in its place ``the threshold stated
at 48 CFR 15.403-4(a)(1).''
915.404-2-70 [Amended]
0
46. Section 915.404-2-70 is amended by:
(a) Removing ``$500,000'' in paragraph (a)(1), and adding in its
place ``The threshold stated at 48 CFR 15.403-4(a)(1)''; and
(b) Removing ``$1,000,000'' in paragraph (a)(2), and adding in its
place ``Twice the threshold at 48 CFR 15.403-4(a)(1) for requiring cost
or pricing data''.
915.404-4 [Amended]
0
47. Section 915.404-4(c)(4)(i) is amended in the first sentence by
removing ``profit and fees'' and adding in its place ``price and fee''.
0
48. Section 915.404-4-70-2 paragraph (d) is revised to read as follows:
915.404-4-70-2 Weighted guidelines system.
* * * * *
(d) The factors set forth in the following table are to be used in
determining DOE profit objectives. The factors and weight ranges for
each factor shall be used in all instances where the weighted
guidelines are applied.
------------------------------------------------------------------------
Profit factors Weight ranges (percent)
------------------------------------------------------------------------
I. Contractor Effort (Weights applied to
cost):
a. Material acquisitions:
(1) Purchased parts..................... 1 to 3.
(2) Subcontracted items................. 1 to 4.
(3) Other materials..................... 1 to 3.
b. Labor skills:
(1) Technical and managerial:
(a) Scientific...................... 10 to 20.
(b) Project management/ 8 to 20.
administration.
(c) Engineering..................... 8 to 14.
(2) Manufacturing....................... 4 to 8.
(3) Support services.................... 4 to 14.
c. Overhead:
(1) Technical and managerial............ 5 to 8.
(2) Manufacturing....................... 3 to 6.
(3) Support services.................... 3 to 7.
d. Other direct costs..................... 3 to 8.
e. G&A (General Management) expenses...... 5 to 7.
II. Contract Risk (type of contract-weights 0 to 8.
applied to total cost of items 4.a. thru
4.e.).
III. Capital Investment (Weights applied to 5 to 20.
the net book value of allocable facilities).
IV. Independent Research and Development:
a. Investment in IR&D program (Weights 5 to 7.
applied to allocable IR&D costs).
b. Developed items employed (Weights 0 to 20.
applied to total of profit $ for items
4.a. thru 4.e.).
V. Special Program Participation (Weights -5 to +5.
applied to total of Profit $ for items 4.a.
thru 4.e.).
VI. Other Considerations (Weights applied to -5 to +5.
total of Profits $ for items 4.a. thru
4.e.).
[[Page 7693]]
VII. Productivity/Performance (special (N/A).
computation).
------------------------------------------------------------------------
915.404-4-70-4 [Amended]
0
49. Section 915.404-4-70-4 is amended by removing ``$500,000'' in
paragraph (a), and adding in its place ``the threshold stated at 48 CFR
15.403-4(a)(1)''.
915.404-4-70-7 [Amended]
0
50. Section 915.404-4-70-7 is amended by removing ``$500,000'' in
paragraph (b), and adding in its place ``the threshold stated at 48 CFR
15.403-4(a)(1)''.
915.404-4-72 [Amended]
0
51. Section 915.404-4-72 is amended by removing ``916.404-2'' in
paragraph (a), and adding in its place ``916.405-2''.
915.207, 915.404 [Amended]
0
52. In the table below, for each section indicated in the left column,
remove the word indicated in the middle column from where it appears in
the section, and add the word in the right column:
----------------------------------------------------------------------------------------------------------------
Section Remove Add
----------------------------------------------------------------------------------------------------------------
915.207-70(e)(2)........................ ``FAR''........................... ``48 CFR''
915.207-70(f)(2)(i)..................... ``FAR''........................... ``48 CFR''
915.207-70(f)(5)........................ ``FAR''........................... ``48 CFR''
915.404-2(a)(1) in the first sentence... ``FAR''........................... ``48 CFR''
915.404-4(c)(4)(i)...................... ``FAR''........................... ``48 CFR''
915.404-4(d)............................ ``FAR''........................... ``48 CFR''
915.404-4-70............................ ``FAR''........................... ``48 CFR''
915.404-4-70-2(a)....................... ``FAR''........................... ``48 CFR''
915.404-4-70-3, in the last sentence.... ``FAR''........................... ``48 CFR''
915.404-4-71-1(a) in the introductory ``DOE to''........................ ``DOE to''
text.
----------------------------------------------------------------------------------------------------------------
PART 916--TYPES OF CONTRACTS
916.203 [Amended]
0
53. Section 916.203-4(d)(2) is amended by removing ``(FAR)''.
916.307 [Amended]
0
54. Section 916.307 is amended by:
0
a. Adding a new paragraph (a) to read set forth below; and
0
b. By removing ``FAR'' in paragraph (g) and adding in its place ``48
CFR''.
916.307 Contract clauses.
(a) When contracting with a commercial organization, modify
paragraph (a) of the clause at 48 CFR 52.216-7 by adding the phrase
``as supplemented by subpart 931.2 of the DEAR'' after ``FAR subpart
31.2.''
* * * * *
PART 917--SPECIAL CONTRACTING METHODS
917.602 [Amended]
0
55. Section 917.602 is amended by removing ``that'' in the second
sentence of paragraph (c) and adding in its place ``than''.
917.7200 [Amended]
0
56. Section 917.7200 is amended by removing ``non nuclear'' in
paragraph (a) and adding in its place ``nonnuclear''.
917.7301 [Amended]
0
57. Section 917.7301-1 is amended by removing paragraphs (c) and (d).
0
58. Section 917.7401 is amended by adding a new sentence at the
beginning of the introductory text and by revising paragraph (b) to
read as follows:
917.7401 General.
The acquisition of real estate requires the involvement of a DOE
Certified Realty Specialist, as specified at 917.7402. * * *
* * * * *
(b) Lease for which DOE will reimburse the contractor for the pre-
approved costs incurred under the lease.
* * * * *
0
59. Section 917.7402 is amended by:
0
a. Removing the colon from the end of the introductory text and adding
in its place ``--'';
0
b. Revising paragraphs (b), (c)(2) and (4); and
0
c. Adding a new paragraph (d).
The revisions and addition read as follows:
917.7402 Policy.
* * * * *
(b) Acquisitions shall be justified, with documentation which
describes the need for the acquisitions, general requirements, cost,
acquisition option considerations with the best acquisition method to
be used, site investigation reports, site recommended for selection,
property appraisal reports, and include the review and approval by the
applicable DOE Certified Realty Specialist in accordance with DOE Order
430.1B, or its successor version; and
(c) * * *
(2) May exceed a one-year term, when the lease is for special
purpose space funded by no-year appropriations and approved by a DOE
Certified Realty Specialist. * * *
(4) Shall be consistent with Government laws, regulations, and the
DOE Order 430.1B, or its successor version, applicable to real estate
acquisition.
(d) Any real property actions require the involvement of the
applicable DOE Certified Realty Specialist.
0
60. Section 917.7403 is revised to read as follows:
917.7403 Contract clause.
The clause at 952.217-70, Acquisition of Real Property, shall be
included in contracts including modifications where contractor
acquisitions of real property are expected to be made.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
61. Section 952.202-1 is revised to read as follows:
952.202-1 Definitions.
As prescribed in 902.201, insert the clause at 48 CFR 52.202-1,
Definitions, in all contracts. The following shall be added to the
clause as paragraph (c):
(c) When a solicitation provision or contract clause uses a word or
term that is defined in the Department of Energy Acquisition Regulation
(DEAR) (48 CFR chapter 9), the word or term has the same meaning as the
definition in 48 CFR 902.101 or the definition in the part, subpart, or
section of 48 CFR chapter 9 where the provision or clause is prescribed
in effect at the time the solicitation was issued, unless an exception
in (a) applies.
0
62. Section 952.204-2 is amended by:
0
a. Revising the date of the clause; and
[[Page 7694]]
0
b. Adding in paragraph (j)(1) after the first sentence, two new
sentences to read as follows:
952.204-2 Security.
* * * * *
SECURITY MAR 2011
* * * * *
(j) * * *
(1) * * * Contractors are encouraged to submit this information
through the use of the online tool at https://foci.td.anl.gov. When
completed the Contractor must print and sign one copy of the SF 328 and
submit it to the Contracting Officer. * * *
* * * * *
0
63. Section 952.204-71 is amended by revising the clause date and
paragraph (b) to read as follows:
952.204-71 Sensitive foreign nations controls.
* * * * *
SENSITIVE FOREIGN NATIONS CONTROLS MAR 2011
* * * * *
(b) The provisions of this clause shall be included in any
subcontracts which may involve making unclassified information about
nuclear technology available to sensitive foreign nations.
* * * * *
0
64. Section 952.204-73 is amended by:
0
a. Revising the date of the provision; and
0
b. Adding two new sentences at the end of paragraph (a)(1).
The revision and addition reads as follows:
952.204-73 Facility clearance.
* * * * *
FACILITY CLEARANCE MAR 2011
(a) * * *
(1) * * * Contractors are encouraged to submit this information
through the use of the online tool at https://foci.td.anl.gov. When
completed the Contractor must print and sign one copy of the SF 328 and
submit it to the Contracting Officer.
* * * * *
952.209-72 [Amended]
0
65. Section 952.209-72 is amended by removing ``48 CFR'' in the
introductory text.
952.217-70 [Amended]
0
66. Section 952.217-70 is amended by revising the date of the clause
and paragraph (a)(2) to read as follows:
952.217-70 Acquisition of real property.
* * * * *
ACQUISITION OF REAL PROPERTY MAR 2011
* * * * *
(a) * * *
(2) Lease for which the Department of Energy will reimburse the
incurred costs as a reimbursable contract cost.
* * * * *
952.204, 952.215, 952.216 [Amended]
0
67. In the table below, for each section indicated in the left column,
remove the word indicated in the middle column from where it appears in
the section, and add the word in the right column:
----------------------------------------------------------------------------------------------------------------
Section Remove Add
----------------------------------------------------------------------------------------------------------------
952.204-2(e) in the first sentence. ``the information:''................. ``the information--''
952.204-2(g) in the first sentence. ``means:''........................... ``means--''
952.204-2(h)(2)(i) in the first ``A review must:''................... ``a review must--''
sentence.
952.204-2(h)(2)(iii) in the first ``including those: (a)''............. ``including those--(A)''
sentence.
952.204-2(h)(2)(iv)................ ``10 CFR Part 707.4''................ ``10 CFR 707.4''
952.204-2(h)(2)(iv)................ ``10 CFR Part 707''.................. ``10 CFR part 707''
952.204-2(h)(2)(vi) in the ``authorization:''................... ``authorization--''
introductory text.
952.204-2(l) in five places........ ``Subcontractor''.................... ``subcontractor''
952.204-2(l) in the second sentence ``Subcontractors''................... ``subcontractors''
952.204-2(l) in the second sentence ``DEAR 952.204-73''.................. ``48 CFR 952.204-73''
952.215-70(a) in the second ``DEAR 970.5203-3''.................. ``48 CFR 970.5203-3''
sentence.
952.216-7.......................... ``FAR''.............................. ``48 CFR''
952.216-15 Alternate............... ``FAR''.............................. ``48 CFR''
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-1320 Filed 2-10-11; 8:45 am]
BILLING CODE 6450-01-P
