CLAUSES TITLE
H.1 Separate Business Unit
H.2 Promises and Commitments
H.3 Pre-existing Conditions
H.4 Tri-Party Agreement
H.5 Environment, Safety, and Health
H.6 Toxic Chemical Release Reporting Requirements (FAR 52.223-14) (OCT 1995)
H.7 Sitewide Safety Plan
H.8 Sitewide Qualification and Training Plan
H.9 Execution of Permits and Applications
H.10 Contractor Acceptance of Notices of Violation or Alleged Violations, Fines and Penalties
H.11 Emergency Clause
H.12 Shutdown Authorization
H.13 Acquisition and Use of Environmentally Preferable Products and Services (DEAR 970.5204-39) (OCT 1995)
H.14 Laws, Regulations, and DOE Directives
H.15 Incorporation of Revised Departmental Policies and Procedures
H.16 Withdrawal of Work
H.17 Use of DOE Facilities
H.18 Work for Others Funding Authorization
H.19 Advance Acquisition Plan/Make-or-Buy Program/Subcontracts Consent and Contract Clause Flow Down Requirements
H.20 Limitation on Subcontractor Period of Performance
H.21 Assignment of Subcontracts
H.22 Information
H.23 Ownership of Records
H.24 Privacy Act Systems of Records
H.25 Internal Audit
H.26 Assignment of DOE Prime Contracts
H.27 Government-Owned Property
H.28 Advance Understanding on Personnel Costs, Policies, and Procedures
H.29 Legal Defense and Reimbursement of Contractor Protective H-38 Force Officers
H.30 Diversity
H.31 Implementation of Section 3161 Policy on Workforce Restructuring
H.32 Retraining for Displaced Employees
H.33 Transfer--Relocation Allowance
H.34 Labor Relations
H.35 Determination of Appropriate Labor Standards
H.36 Service Contract Act (SCA) Wage Determination
H.37 Hanford Site Stabilization Agreement
H.38 Insurance--Litigation and Claims
H.39 Financial Management System
H.40 Costs Associated with Whistleblower Actions
H.41 Performance Objectives, Measures, and Incentives
H.42 Segregation of Costs
H.43 Available Fee Pool
H.44 Base Fee and Award Fee (JUL 1991)
H.45 Cost Savings Program
H.46 Determination of Incentive Fees
H.47 Conditional Payment of Fee or Incentives (Exclusive of Base Fee)
H.48 Provisional Payment of Incentives
H.49 Contractor Use of Mandatory Sources of Supply
H.50 Cost Savings Program Exclusion From Other Fees
H.51 Sharing Earned Fees with Employees
H.52 Contractor Controlled Insurance Program
H.53 Fringe Benefit Ceiling
H.54 Indirect Cost Allocations
The work performed by the Contractor under this contract shall be conducted by a separate business unit (division, segment, etc.) from the parent company signing this contract. In addition, the Major Subcontractors shall be separate business units from their parent companies. These business units may report or interface directly with a home office as approved by the Contracting Officer.
A. Detailed below and incorporated into this contract is a list of negotiated promises made by the Contractor in its contract proposal, dated March 25, 1996, which have not been identified elsewhere in this contract as a contract requirement. It is recognized that, as appropriate, these promises and commitments may be covered by a performance measure and/or an incentive fee arrangement. However, whether or not the promises/commitments are ever the subject of a performance measure and/or incentivization, the Contractor is expected to, in good faith, strive to meet the stated objectives as part of contract compliance. The extent to which the Contractor is able to achieve success and the extent to which the promises/commitments have been kept shall be considered by DOE in any determination to exercise the Options provided for in Section B of this contract.
The Contractor agrees to the following:
(1) In filling employment positions for work under the contract, other than for management positions, the Contractor, including Major Subcontractors, niche or other subcontractors, and outsourced entities agree to hire employees from the workforce of the incumbent contractor and its integrated subcontractors (Westinghouse Hanford Company, ICF Kaiser Hanford, and Boeing Computer Services Richland). The number and type of positions to be established, the salary/pay rate ranges for all positions, and the terms and conditions of such employment, except as noted below, are at the sole discretion of the Contractor or Major Subcontractors.
For purposes of this contract, management positions are defined as those above the first-line managerial/supervisory level and as those typically responsible for subordinate staff, budget oversight, and/or policy-making decisions.
After operations begin, subsequent vacant positions (other than those covered under paragraph (1) above) shall be filled in accordance with the Contractor's normal business practices, subject to any other applicable requirements of this contract, including Section 3161 of the National Defense Authorization Act for Fiscal Year 1993 (see Clauses H.31 through H.33).
(2) Employees currently employed by the incumbent contractor and its integrated subcontractors other than management positions who are offered and accept employment with the Contractor and its Major Subcontractors will be paid base salary/pay rates equivalent to the base salary/pay rates they are being paid at the time of the offer if the position for which they are being hired entails duties and responsibilities substantially equivalent to the position last held with the incumbent contractor.
Employees hired from the previous incumbent contractor and its integrated subcontractors whose base salaries/pay fall above the maximum rate of the new salary/pay rate range, and who are placed in positions substantially equivalent to their existing position, will be placed in a "red circle" classification. The employees will continue to receive their most recent salary/pay rate paid by the incumbent contractor or integrated subcontractor, but they shall receive no base salary/pay adjustments until such time as the rate range is increased to include their base salary/pay. They will then be eligible for increases that will result in being paid no more than the maximum of their range.
Employees hired from the previous incumbent contractor or integrated subcontractors and whose salaries/pay fall below the minimum of the rate range, and who are placed in positions substantially equivalent to their existing positions shall have their salaries/pay rate increased to the minimum of the range.
(3) The Contractor and Major Subcontractors shall assume the assets, liabilities, and other obligations and continue the defined benefit pension plans (does not include any defined contribution plans) of the incumbent contractor and integrated subcontractors, on a multiple employer basis for employees of the Contractor and its Major Subcontractors.
(4) The Contractor and Major Subcontractors shall offer an Internal Revenue Service qualified defined contribution plan(s) for employees of the Contractor and its Major Subcontractors that will accept employee account assets and liabilities from the 401(k) plans of the incumbent contractor and its integrated subcontractors. The provisions of the plan(s) are at the sole discretion of the Contractor and its Major Subcontractors.
(5) The Contractor and Major Subcontractors shall credit the length of service of employees currently employed by the incumbent contractor and its integrated subcontractors, who are hired for work under this contract or under the subcontracts of Major Subcontractors, toward the service period required for benefits of this contract or subcontracts of Major Subcontractors relating to vacations, sick leave, health insurance, layoff, recall, or other benefits. This includes accepting severance pay credits earned by the employees of the incumbent contractor and integrated subcontractors to the extent that the employees have not exercised any severance pay rights with the incumbent contractor and its integrated subcontractors.
(6) The Contractor and Major Subcontractors shall respect the right of employees to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. The Contractor and its Major Subcontractors will be performing substantially similar operations at the same site as the predecessor incumbent contractor and its integrated subcontractors; and, as a result of the hiring preference, a majority of their potential bargaining unit employees are likely to be former employees of the predecessor incumbent contractor and its integrated subcontractors who had been represented by the respective certified collective bargaining agent. Therefore, the collective bargaining representative of such employees is to be accorded full recognition for negotiating their terms and conditions of employment, and the Contractor shall initially consult with the respective certified collective bargaining agent regarding the initial terms and conditions of employment of those employees who had been represented by the certified collective bargaining agent. The Contractor shall be obligated to recognize and bargain with the certified collective bargaining agent of the predecessor's bargaining unit employees as a successor employer, consistent with the National Labor Relations Act.
(7) The Contractor shall initially provide for continuity of insurance coverage of employees of the incumbent contractors and their predecessors who are absent and receiving payments under the following programs: Long Term Disability, Short Term Disability, and Workers' Compensation, and including any then current COBRA (Consolidated Omnibus Budget Reconciliation Act) participation in a health benefits insurance program. Such insurance coverage shall be provided under the same terms and conditions as provided in existing programs, including the right of management to change those terms and conditions, where applicable.
(8) The Contractor shall initially provide for continuity of insurance coverages (health, life, other, as applicable) of employees who have retired from the incumbent contractors or their predecessors to the extent currently provided by the incumbents. Such insurance coverage shall be provided under the same terms and conditions as provided in existing programs, including the right of management to change those terms and conditions, where applicable.
(9) The Contractor shall work with DOE and the Tri-Cities to create a local economy which is substantially less dependent on a DOE Hanford payroll. The Contractor and its Major Subcontractors commit to help create 3,000 new jobs in the Tri-City community by the end of the five year contract period.
(10) Of the total Project Hanford budget, 50% shall be outsourced by 2001 to other than Major Subcontractors, including outsourcing by the Major Subcontractors, and within five years, 60% of all outsourced Project Hanford dollars shall be directed to local, regional, and Native American businesses. The Contractor shall also establish a SB/SDB loan program. For purposes of this paragraph H.2 B. (2), outsourcing means contractual commitments to entities other than the FDH team itself. Contractual commitments by FDH to entities other than its Major Subcontractors would be part of this figure, as would contractual commitments by FDH's Major Subcontractor's to their lower tier subcontractors.
(11) The Contractor shall leverage local economic benefit from execution of this contract, and from the worldwide industrial and commercial interest of the Contractor and its Major Subcontractors.
(12) The Contractor shall reduce DOE capital and fixed operations costs.
(13) The Contractor shall progressively increase the ratio of outsourced jobs to site staff.
(14) In collaboration with PNNL, the Contractor shall implement technology transfer and intellectual property management programs to stimulate commercialization, privatization, and entrepreneurship.
(15) The Contractor shall aggressively pursue conversion of valuable Hanford assets (people, intellectual property, equipment, material, facilities) to commercial productive use.
(16) The Contractor shall mentor local suppliers and contractors to help bring their systems and deliverables into line with best-in-class criteria and shall create financial incentives that encourage best-in-class suppliers outside the region to establish and serve Project Hanford from a Tri-Cities base of operations.
(17) The Contractor shall implement the DOE Mentor/Protege program at Hanford, based on the model developed at Fernald.
(18) The Contractor shall set up a loan program with financing available to the local business community for capital expenditure or mobilization for new work at Hanford. Businesses that are not able to obtain traditional financing shall have access to capital through Prin Vest, using their Project Hanford subcontracts as collateral.
(19) Incentives shall be a cornerstone of the Contractor's technology transfer program. Inventors will benefit through royalty sharing, equity ownership in license-based new businesses or the opportunity to start a new business. The Contractor shall establish an Entrepreneurial Leave of Absence program. The Contractor shall coordinate with their Purchasing to leverage idle site facilities, equipment, and materials for the benefit of local businesses and new business creation. The Contractor shall market these resources aggressively, and shall work closely with organizations such as the Port of Benton to leverage these assets into jobs.
In the licensing arena, the Contractor will work with PNNL to provide reduced royalty terms and other incentives for licensees who agree to establish businesses in the region.
(20) The Contractor's technology transfer activity will be modeled after Lockheed Martin's programs at Oak Ridge and Sandia, covering industrial and commercial relationships (from CRADAs and licensing to Facility User, Technical Assistance, and Funds-In Agreements).
Working closely with PNNL, the Contractor shall ensure that intellectual property and technologies arising from Project Hanford are evaluated for commercial potential and, where appropriate, offered for licensing.
(21) The Contractor shall perform a Technology Audit and Resource Inventory to produce a database of transferable skills, tools, and capabilities. This continuing process shall promote awareness of Hanford assets, prerequisite to targeting candidates for outsourcing, privatization, licensing, cooperative research and development, technical assistance, facility user agreements, and non-mission asset loan or transfer.
(22) The Contractor and its Major Subcontractors shall invest a combined total of $3 million or more during the period from contract award through September 30, 1997, to bring new jobs to the Tri-Cities.
The Contractors investment in economic transition begins with relocation of six growth-oriented business operations to the area by October 1, 1997. The Contractor's investment continues with the commitment of up to 12 percent of the fees earned through Project Hanford performance to benefit the community. This reinvestment shall be structured to leverage the skills, relationships, and purchasing power of FDH, Lockheed Martin, and FDH's other Major Subcontractors to the benefit of the Tri-Cities. The proposed step formula for contributions in any given year is:
- 6% of fee between $10 million and $20 million
- 8% of total fee over $10 million if fee is between $20 million and $40 million
- 12% of total fee earned over $10 million if fee is over $40 million
The Contractor and its Major Subcontractors shall immediately bring six new subsidiaries or affiliates to the Tri-Cities. By October 1, 1996, 2525 Hanford jobs, and incumbent personnel, shall be outsourced into these organizations, subject to adjustment to reflect actual adjustments in the number of employees, due, for example, to employee elections to accept the retirement package offered by DOE, available through August 30, 1996.
The Contractor commits to the subsequent expansion of these businesses into non-Hanford markets.
The Contractor shall assume major non-billable costs and shall significantly reduce DOE's costs in the first year, with continued savings in the out-years, in the areas of A&E, general engineering, construction management, and procurement. The 1350 personnel performing these functions will reside in a new regional office pursuing work for both Project Hanford and non-Hanford clients, Fluor Daniel Northwest (FDNW). This office shall pursue commercial work to support growth to an additional 125 new jobs above the baseload of 1350 jobs outsourced from Project Hanford. FDNW shall support subcontractor affiliates in their efforts to bring jobs and enterprise to the Tri-Cities. In addition to architect-engineering and construction management, the office shall house regional business lines providing training, temporary services, systems engineering, and project management.
Lockheed Martin's Tri-Cities based Services Division office shall outsource 520 jobs from existing Hanford information resource management functions. Although this Hanford requirement will decrease over the next five years through rightsizing, we intend to maintain the 520 level through pursuit of non-Hanford work.
(23) The Contractor and Major Subcontractors shall work with local and state governments and economic development groups to target "anchor" industries, evaluate infrastructure development needs, attract targeted businesses, and promote new starts, relocations, and investments in Tri-Cities initiatives. The Contractor shall maintain close ties to corporate executives who are responsible for specific business areas (e.g., foods, pulp and paper, infrastructure, manufacturing, information and communications, environmental, mining, power) to gain access to client and supplier bases.
The Contractor, working with TRIDEC, shall assign and supply experienced people from the Contractor's parent corporation commercial businesses to assist and counsel local citizens wishing to start or expand a business. Professionals experienced in developing business plans, financial evaluations, and marketing plans will be made available for this program under TRIDEC auspices.
(24) The Contractor agrees to form Columbia Basin Ventures, Inc. (CBV) to provide direct investment or third-party financing to business opportunities that offer high potential for regional growth. CBV will be a joint venture formed by the Contractor and its Major Subcontractors. It will contain personnel supplied by Fluor Daniel Technologies (the technology investment arm of Fluor Daniel), Fluor Daniel Siting and Consulting, and Lockheed Martin. The venture will maintain close working ties with the Project Hanford Offices of Technology Management and Economic Transition, but shall provide a complementary resource to focus on non-Hanford business and technology. The Contractor and its Major Subcontractors shall establish a $10M investment fund from their private resources for use by CBV.
CBV shall work through existing local agencies (e.g., TRIDEC, Tri-Cities ports and municipalities, and the Benton Franklin Regional Council), providing personnel from the Contractor's parent corporation commercial businesses to support their initiatives and enhance their effectiveness. Personnel expert in industrial recruitment shall be assigned to TRIDEC. CBV shall exert the corporate leverage developed by these companies. The Contractor shall put this buying power and supplier network to use in efforts to attract industry and broaden the market reach of Hanford spin-off companies.
CBV shall provide and attract investment capital for local ventures that promise a fair return. It shall partner with local academic (WSU, CBC), research (PNNL), and industry organizations to help bring entrepreneurial interests to the Tri-Cities area.
(25) The Contractor and Major Subcontractors shall provide funds from Project Hanford fees earned to help refurbish the WPPSS warehouse to house the Applied Process Engineering Laboratory, and Lockheed Martin shall construct a waste tank model to support TWRS and TWRS privatization activities. The Contractor shall also work with the Port of Benton (which has identified uses for specific areas of the Hanford Site and the Tri-Cities Science and Technology Park) to facilitate use of Hanford facilities and equipment, with a bias toward organizations that will create local jobs.
(26) The Contractor shall partner with the northwestern division of the Associated Western Universities (AWU NW). The Contractor shall broaden the consortium's training activity associated with the University/DOE Laboratory Cooperative Science Education Program (Lab Coop) fellowships at Hanford. The Contractor shall develop an engineering Mentorship Program to bring science and engineering students into contact with the Contractor and Major Subcontractor managers at engineering an environmental remediation projects.
The Contractor shall work with Columbia Basin College (CBC) and Washington State University Tri-Cities (an AWU NW member) to design and implement education/training programs keyed to markets that can use skills acquired at Hanford in order to assist the diverse Hanford workforce transition more effectively into the private sector. This effort will be integrated into the Site-wide Training Program.
(27) The Contractor shall form a Community Involvement Team to be a primary vehicle for Project Hanford civic and regional involvement. The team will be administered by a senior executive Project Hanford's Office of External Affairs, and will help mobilize and support personal commitments to community support activity.
Project Hanford employees will be encouraged to donate their time to instruction in local schools through programs such as MathCounts, Engineer-in-the-Classroom, and partnering with local elementary schools to provide science or computer instruction and supplies. Managers shall be encouraged to donate a minimum of 40 hours/year in community service. This involvement shall be a consideration in manager performance evaluations.
(28) Major Subcontractors The Contractor agrees to include the following subcontractor promises and commitments as well as other parts of this clause in the Major Subcontracts:
(a) The Major Subcontractors shall commit to outsourcing goals that aggregate to 50 percent of total Project Hanford budget, and allocate up to 12 percent of annual fee from Project Hanford performance to economic transition activities. The proposed step formula for contributions in any given year is:
- 6% of fee between $10 million and $20 million
- 8% of total fee over $10 million if fee is between $20 million and $40 million
- 12% of total fee earned over $10 million if fee is over $40 million
(b) Plans to Outsource Hanford Work The Major Subcontractors commit to achieving the site-wide goals of outsourcing 50 percent of Hanford dollars by 2001.
Outsourcing benefits shall be realized, and site FTE reductions achieved, on Day 1 of the contract through the absorption of Hanford personnel into affiliates and subsidiaries of the Major Subcontractors.
(c) Plans to Invest Corporate Resources in the Local Community Each company has made a financial and business commitment to spur private sector job growth in the Tri-Cities through the relocation of operations and growth to execute non-Hanford work.
Rust commits to establish a Richland office and will transfer approximately 120 current Hanford employees. This office will provide RCRA environmental monitoring and permitting services for Project Hanford and for Rust's commercial monitoring and permitting activities. Growth over the five-year contract period is expected to involve 70 additional jobs, for a total of 190 jobs.
Babcock & Wilcox commits to establish the corporate headquarters of B&W Protec, Inc., in the Tri-Cities. B&W Protec will provide safeguards and security services to Fluor Daniel for Project Hanford. Employment preference shall be given to current Hanford personnel. Initially, the staff of B&W Protec will be 185 outsourced employees, managed by three to five B&W professionals experienced in safeguards and security and in marketing such services in the commercial marketplace. The goal of B&W Protec is to develop a mix of regional and national government and commercial clients such that the staff level can grow at a rate of ten jobs per year.
Duke commits to outsource 100 Hanford site employees, and bring to its Richland office a substantial portion of engineering projects currently executed elsewhere with Fluor Daniel. These include Louisiana Energy Systems (fuel enrichment) and Civilian Radioactive Waste Management System (high-level nuclear waste disposal). In addition, Duke shall establish its northwest operations for environmental work through INTERRA, and will provide utility operations and maintenance services in conjunction with Fluor Daniel. This will create 25 private sector jobs Day 1. During the five-year contract, Duke anticipates growth to a total of 200 jobs, including 20 during Year 1 of the contract.
Numatec commits to establish a U.S. office for SGN Engineering, which will support Numatec Hanford Company and other Project Hanford subcontractors. The number of jobs outsourced from Project Hanford into SGN Engineering is expected to be 200. SGN Engineering will staff other non-Hanford U.S. projects and select international projects from this office. As the baseload of Hanford work decreases, such projects should maintain or increase the number of jobs. SGN Engineering will be part of the Eurisys Group, a network of more than 40 companies in nuclear, engineering, consulting, software, information systems, maintenance, and documentation management.
A. The DOE agrees to reimburse, and the Contractor shall not be held responsible, for any liability, including without limitation a claim involving strict or absolute liability, and any civil fine or penalty, expense, or remediation cost, but limited to those of a civil nature, which may be incurred by, imposed on, or asserted against the Contractor arising out of any condition, act, or failure to act that occurred before the Contractor assumed responsibility on October 1, 1996. To the extent the acts or omissions of the Contractor cause or add to any liability, expense or remediation cost resulting from conditions in existence prior to October 1, 1996, the Contractor shall be responsible in accordance with the terms and conditions of this contract.
B. The Contractor has the duty to inspect the facilities and sites and identify as a part of the Transition Plan required by Paragraph C.7 of Section C, those conditions that could give rise to a liability, obligation, loss, damage, penalty, fine, claim, action, suit, cost, expense, or disbursement or areas of actual or potential noncompliance with the terms and conditions of this contract or applicable law or regulation. The Contractor has the responsibility to take corrective action, as directed by the Contracting Officer, as required elsewhere in this contract.
C. Following completion of the Transition Period the Contractor shall identify to the Contracting Officer in a timely manner, but in no case greater than 30 days after discovery, newly discovered pre-existing conditions such as those described in Paragraph B. above. The Contractor has the responsibility to take corrective actions, as directed by the Contracting Officer, as required elsewhere in this contract.
D. The obligations of the Government under this provision are subject only to the availability of appropriated funds.
E. The Contractor shall include this contract clause in all subcontracts under this contract with Major Subcontractors, altering the clause only as necessary to identify properly the contracting parties.
The DOE, the U.S. Environmental Protection Agency Region 10 (EPA), and the Washington State Department of Ecology (Ecology) have entered into the Hanford Federal Facility Agreement and Consent Order, referred to as the Tri-Party Agreement (TPA) to ensure compliance with the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA). The TPA sets forth certain requirements and milestones for cleanup activities at the Hanford Site. The Contractor agrees to plan and perform the work under this contract in accordance with DOE direction concerning implementation of the TPA and achievement of current and future milestones in the TPA.
A. The Contractor shall perform the work under this contract in a manner that is safe, healthy, and environmentally acceptable and shall develop and manage a comprehensive program in support of these objectives. The Contractor shall exercise a degree of care commensurate with the risk of harm involved, particularly with respect to the operation of nuclear facilities, where applicable.
B. The Contractor shall comply with, and assist the DOE in complying with (where identified by the Department) applicable Federal and non-Federal environment, safety, and health laws; regulations; and the list identified in the clause of this contract on Departmental directives, or directives as otherwise identified in writing by the Contracting Officer. The Contractor shall cooperate appropriately with Federal and non-Federal agencies having jurisdiction over environmental, safety, and health matters under this contract.
C. The Contractor shall submit by September 1, 1996, to the Contracting Officer for review and approval, an Environment, Safety, and Health (ES&H) Management Plan, including nuclear safety, where appropriate. This ES&H Management Plan shall be in accordance with written guidance provided by DOE, as it may be periodically revised. The Contractor shall annually submit an updated ES&H Management Plan to the Contracting Officer for review and approval reflecting budget decisions and Contractor commitments for implementation in the budget execution year. Revisions to the ES&H Management Plan shall be subject to the change control process(es) established for the facility(ies) managed by the Contractor.
D. The Contractor shall promptly correct any noncompliance with applicable environmental or safety and health requirements, including requirements for the ES&H Management Plan, for which written notice is given by DOE. If the Contractor fails to take corrective action or if, at any time, the Contractor's acts or failure to act cause substantial harm or an imminent danger to the environment or health and safety of employees or the public, the Contracting
Officer may issue an order stopping work in whole or in part. Any stop work order issued under this clause (including a stop work order issued by the Contractor to a subcontractor in accordance with Paragraph E of this clause) shall be without prejudice to any other legal or contractual rights of the Government. Thereafter, an order authorizing the resumption of the work may be issued at the discretion of the Contracting Officer. The Contractor shall not be entitled to an extension of time or additional fee or damages by reason of, or in connection with, any work stoppage ordered in accordance with this clause.
E. The Contractor shall provide in its purchasing system, required under the clause of this contract entitled "Subcontracts (Cost Reimbursement and Letter Contracts)" (Clause I.75) policies, practices, and procedures for the flowdown of appropriate requirements of this clause to subcontractors performing work on-site at a DOE-owned or -leased facility. Such subcontracts shall provide for the right to stop work under the conditions described in Paragraph D of this clause. (See also Clause H.12, "Shutdown Authorization.")
A. Unless otherwise exempt, the Contractor-owned or -operated facilities used in the performance of this contract shall file by July 1 for the prior calendar year an annual Toxic Chemical Release Inventory Form (Form R) as described in sections 313 (a) and (g) of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11023 (a) and (g)), and section 6607 of the Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13106). Such Contractor facilities shall file the annual Form R throughout the life of the contract.
B. A Contractor is exempt from the requirement to file an annual Form R if none of the Contractor-owned or -operated facilities used in the performance of this contract--
(1) manufacture, process, or otherwise use any toxic chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);
(2) have 10 or more full-time employees as specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A);
(3) meet the reporting thresholds of toxic chemicals established under section 313(f) of EPCRA (including the alternate thresholds at 40 CFR 372.27, provided an appropriate certification form has been filed with EPA); or
(4) fall within Standard Industrial Classification Code (SIC) designations 20 through 39 as set forth in FAR 19.102.
C. If the Contractor has certified to be exempt in accordance with one or more of the criteria in paragraph (B) of this clause, and after award of the contract circumstances change so that any one of its owned or operated facilities used in the performance of this contract is no longer exempt--
(1) The Contractor shall notify the Contracting Officer; and
(2) The Contractor-owned and -operated facilities used in the performance of this contract, unless otherwise exempt, shall (i) submit a Toxic Chemical Release Inventory Form (Form R) on or before July 1 for the prior calendar year during which the Contractor becomes eligible; and (ii) continue to file the annual Form R for the life of the contract.
D. The Contracting Officer may terminate this contract or take other action as appropriate if the Contractor fails to comply accurately and fully with the EPCRA and PPA toxic chemical release filing and reporting requirements.
E. Except for acquisitions of commercial items, as defined in FAR Part 12, the Contractor shall--
(1) for competitive subcontracts expected to exceed $100,000 (including all options), include a solicitation provision substantially the same as the provision at FAR 52.223-13, Certification of Toxic Chemical Release Reporting; and
(2) include in any resultant subcontract exceeding $100,000 (including all options), with subcontractors having SIC designations of major groups 20 through 39 as set forth in FAR 19.102, the substance of this clause, except this paragraph (E).
In order to provide consistency on the Hanford Site, the Contractor shall submit as a part of the ES&H Management Plan (see Section J, Appendix F), a sitewide safety plan, which is to provide the proper emphasis and requirements for safety for both the Contractor and all subcontractors working at the site. The Sitewide Safety Plan shall include provisions for recognizing equivalent training and/or reciprocity for training and flowdown of ES&H training requirements to subcontractors. This Sitewide Safety Plan shall cross-reference to the Sitewide Qualification and Training Plan (Contract Clause H.8) for safety training and requirements.
A. In order to provide consistency with personnel qualification on the Hanford Site, the Contractor shall submit a Sitewide Qualification and Training Plan (see Section J, Appendix E). This Plan shows how the Contractor will ensure that all personnel working at the Hanford Site meet and maintain qualification and training requirements in accordance with DOE and other applicable regulations. The plan shall include:
(1) assignment of responsibilities both with the DOE Richland Operations Office (RL) and any Hanford central training organizations.
(2) how the Contractor will use a single point of contact project management approach to integrate and track the best available training resources to meet the diverse training needs of the Hanford Site.
(3) how the Contractor will recognize and use equivalent training and/or reciprocity for training.
(4) a system to track flowdown of training requirements to subcontractors.
(5) how the "Best in Class" and "Make or Buy" approach will be used to identify and use high-quality training while eliminating redundant and duplicate programs.
(6) a system to track training completed (needs to be part of the Human Resources "PeopleSoft" system (see Section C.2.C.(3)).
A. In recognition of the Contractor's responsibility to operate in compliance with all applicable environmental requirements, the Contractor agrees to sign environmental permits and applications as "operator" or "co-operator," as appropriate. To clarify the resulting obligations under the contract, the parties agree to the following:
(1) The Contractor is responsible for signing permit applications and obtaining all necessary environmental permits. The Contractor shall accept assignment of permits currently held by DOE and its existing Management and Operating (M&O) Contractor. DOE will co-sign Hazardous Waste and State Dangerous Waste permit applications as owner where required by applicable law.
2) DOE agrees that if bonds, insurance, or administrative fees are required as a condition for such permits, such costs shall be allowable. In the event that such costs are determined by DOE to be excessive or unreasonable, DOE shall provide the regulatory agency with an acceptable form of financial responsibility. Under no circumstances, shall the Contractor or its parent be required to provide any corporate resources or corporate guarantees to satisfy such regulatory requirements.
B. In the event of termination or expiration of this contract, DOE will require the successor Contractor to accept transfer of all environmental permits executed by the Contractor, or DOE will accept responsibility for such permits, and the Contractor shall be relieved of all future liability and responsibility resulting from the acts or omissions of the successor Contractor or DOE.
A. The Contractor shall accept, in its own name, service of notices of violations or alleged violations (NOVs/NOAVs) issued by Federal or state regulators to the Contractor resulting from the Contractor's performance of work under this contract, without regard to liability. The allowability of the costs associated with fines and penalties shall be governed by provisions of this Contract.
B. The Contractor shall, along with DOE, conduct negotiations with regulators regarding NOVs/NOAV's, and fines and penalties; however, the Contractor shall not make any commitments or offers to regulators that would bind the Government in any form or fashion, including monetary obligations, without receiving written concurrence from the Contracting Officer or his/her authorized representative prior to making any such offers/commitments. Failure to obtain such advance written approval may result in otherwise allowable costs being declared unallowable and/or the Contractor being liable for any excess costs to the Government associated with or resulting from such offers/commitments.
A. The RL Manager or designee shall have sole discretion to determine when an emergency situation exists at the Hanford Site affecting site personnel, the public health, safety, the environment, or security. In the event the RL Manager or designee determines such an emergency exists, the RL Manager or designee will have the authority to direct any and all activities of the Contractor and subcontractors necessary to resolve the emergency situation. The RL Manager or designee may direct the activities of the Contractor and subcontractors throughout the duration of the emergency.
B. The Contractor shall include this clause in all subcontracts at any tier for work performed at the Hanford Site.
A. In the event of a specific imminent environmental, health, or safety hazard, identified by facility line management, DOE Facility Representatives, operators, or facility health and safety personnel overviewing facility operations, the individual or group identifying the specific imminent hazard situation should immediately take actions to eliminate or mitigate the hazard. This shall be accomplished by directing the operator/implementer of the activity or process causing the imminent hazard to shutdown the activity or the facility or by initiating emergency response actions or other actions to protect the health and safety of the workers and the public and to protect DOE facilities and the environment. (DOE designated Facility Representatives provide technical oversight of operations to help line management ensure that the facilities are operated in a safe, healthful, and environmentally acceptable manner in accordance with DOE Orders and other requirements. As such, they have "Stop Work" and "Shutdown Authorization" authority.)
In the event an imminent environmental, health, or safety hazard is identified, the individual or group that identified the hazard should coordinate with an appropriate Contractor official, who will direct as needed, broader shutdown actions or other actions, as required. Such mitigating actions should subsequently be coordinated with the RL Manager, the facility/site DOE management, and the facility/site Contractor management. The shutdown direction should be promptly confirmed in writing from the cognizant Contracting Officer.
This authority is in addition to the contract clause entitled "Stop-Work Order - Alternate I" (Clause I.73)
B. In the event of a non-imminent environmental, health, or safety hazard identified by facility line managers, facility operators, health and safety personnel overviewing facility operations, or by independent oversight organizations, the individual or group identifying the potential environmental, health or safety hazard may recommend corrective action or facility shutdown. However, the recommendation must be coordinated with the Contractor management at the facility, the responsible DOE manager, and the RL Manager. Any written direction to shutdown operations will be issued in coordination with the Contracting Officer.
C. After shutdown, an operation or facility may become operational only after receiving written authorization from the RL Manager, or his delegated authority, in coordination with the Contracting Officer.
D. The Contractor shall provide in its purchasing system, required under the contract clause entitled "Subcontracts (Cost Reimbursement and Letter Contracts)" (Clause I.75), for policies, practices, and procedures for the flowdown of appropriate requirements of this clause to subcontractors performing work on-site at a DOE-owned or -leased facility. Such subcontracts shall provide for the right to stop work under the conditions described herein.
A. In the performance of this contract, the Contractor shall comply with the requirements of the following issuances:
(1) Executive Order 12873, dated October 20, 1993, entitled "Federal Acquisition, Recycling, and Waste Prevention,"
(2) Section 6002 of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended (42 U.S.C. 6962, Pub. L. 94-580, 90 Stat. 2822),
(3) Title 40 of the Code of Federal Regulations, Subchapter I, Part 247 (Comprehensive Guidelines for the Procurement of Products Containing Recovered Materials) and such other Subchapter I Parts or Comprehensive Procurement Guidelines as the Environmental Protection Agency may issue from time to time as guidelines for the procurement of products that contain recovered/recycled materials,
(4) "U.S. Department of Energy Affirmative Procurement Program for Products Containing Recovered Materials and related guidance document(s), as they are identified in writing by the Contracting Officer.
B. The Contractor shall prepare and submit reports on matters related to the use of environmentally preferable products and services in accordance with written direction from the Contracting Officer.
C. In complying with the requirements of Paragraph A of this clause, the Contractor shall coordinate its concerns and seek implementing guidance on Federal and Departmental policy, plans, and program guidance with the DOE recycling point of contact, who shall be identified by the Contracting Officer. Reports required pursuant to Paragraph B of this clause, shall be submitted through the DOE recycling point of contact.
A. In performing work under this contract, the Contractor shall comply with the requirements of:
(1) Federal, state, and local laws and regulations, unless relief has been granted in writing by the appropriate regulatory agency; and
(2) those DOE directives, or parts thereof, identified in the List of Applicable Directives contained in Section J, Appendix C, to this contract.
B. The Contracting Officer may, from time to time and at any time, revise the List of Applicable Directives (List) by unilateral modification to the contract to add, modify, or delete specific requirements. Prior to revising the List, the Contracting Officer shall notify the Contractor in writing of DOE's intent to revise the List and provide the Contractor with the opportunity to (1) assess the effect of the Contractor's compliance with the revised List on contract cost and funding, technical performance, and schedule, and (2) identify any potential inconsistencies between the revised List and the other terms and conditions of the contract, including an alternative set of requirements incorporated by reference in accordance with Paragraph D. Within 30 days after receipt of the Contracting Officer's notice, the Contractor shall advise the Contracting Officer in writing of the potential impact of the Contractor's compliance with the revised List. Based on the information provided by the Contractor and any other information available, the Contracting Officer shall decide whether to revise the List, and so advise the Contractor not later than 30 days prior to the effective date of the revision of the List. The Contractor and the Contracting Officer shall identify and, if appropriate, agree to any changes to other contract terms and conditions, including cost and schedule, associated with the revision of the List pursuant to the contract clause entitled "Changes--Cost Reimbursement - Alternate II" (Clause I.74).
C. The ES&H requirements on the List may be superseded, in whole or in part, and with respect to all or part of the activities under this contract, by an alternative set of requirements developed through a DOE-approved process (e.g., the Standards/Requirements Identification process or the Necessary and Sufficient process) and approved by the DOE pursuant to that process. An alternative set of requirements may be incorporated into the List by reference but, in any case, shall be construed as requirements of the Contractor as if included on the List. Any proposed changes to the alternative set of requirements shall be developed and approved in accordance with the applicable DOE-approved process.
D. The Contractor shall be responsible for compliance with the requirements made applicable to this contract, regardless of the performer of the work. Consequently, the Contractor shall be responsible for flowing down the necessary provisions to subcontracts at any tier to which the Contractor determines such requirements apply.
E. The Contractor shall incorporate the substance of this clause with respect to applicable Orders and Directives, excluding any reference to the contract clause entitled "Changes--Cost Reimbursement Alternate II" (Clause I.74), in subcontracts for performance of work at the site and as directed by the Contracting Officer.
The parties acknowledge that the DOE has undertaken a review of DOE policies and procedures applicable to contracts for management of Government-owned facilities. This review may result in further deletions, additions, or revisions to existing contract clauses, or other DOE regulations, Orders, or Directives which are issued after the effective date of this contract, and which could conflict with or supersede some aspects of this contract. It is the intent of DOE to modify this contract, as necessary, to incorporate these new or revised clauses, regulations, Orders, or Directives or delete requirements no longer needed. This clause does not imply the right of DOE to unilateral modification to the contract except as may be modified pursuant to clause H.14, "Laws, Regulations, and DOE Directives."
A. The Contracting Officer reserves the right to have any of the work contemplated by Section C, Statement of Work, of this contract performed by either another Contractor or to have the work performed by Government employees.
B. Work may be withdrawn: (1) in order for the Government to conduct pilot programs; (2) if the Contractors estimated cost of the work is considered unreasonable; (3) for less than satisfactory performance by the Contractor; or (4) or any other reason deemed by the Contracting Officer to be in the best interests of the Government.
C. If the withdrawn work has been authorized under an annual Work Authorization Directive, the work shall be terminated in accordance with the procedures in the contract clause entitled "Termination (Cost-Reimbursement)" (Clause I.84).
D. If any work is withdrawn by the Contracting Officer, the Contractor agrees to fully cooperate with the new performing entity and to provide whatever support is required.
A. Work for Other Government Agencies
(1) DOE may authorize the Contractor to perform non-DOE funded work involving the use of DOE facilities and resources, including Contractor staff, provided that the work is consistent with applicable laws and regulations and satisfies DOE policies regarding mission compatibility and competition with the private and public sectors.
(2) When a work request is submitted by a sponsoring, non-DOE entity, the Contractor shall, when requested by DOE:
(i) review the work statement for mission compatibility so as to ensure that the work is consistent with and complementary to the mission of the contract and the facility, will not adversely affect assigned programs, and will not unduly burden mission resources;
(ii) advise the Contracting Officer if the Contractor is aware that performance of the work would result in direct competition with capabilities available in the private or public sectors;
(iii) develop a cost estimate for the work to be performed and describe the DOE equipment, facilities, and Contractor staff required to complete the effort; and
(iv) upon receipt of DOE authorization, perform the requested work in accordance with instructions provided by the Contracting Officer.
(3) The performance of non-DOE funded work shall be subject to the provisions of this contract and to other applicable rules, regulations, and policies as may be specifically directed to the Contractor's attention by the Contracting Officer.
B. Work for Non-Government Entities
The Contractor may also propose the use of Government-owned facilities, equipment and other property on a non-interference basis for private work and private work for other entities. The Contractor agrees to reimburse DOE for such use on a full-cost recovery basis at rates approved by the Contracting Officer.
C. Local Community Assistance
The Contractor may conduct programs of local community assistance to mitigate adverse impacts of closure or reconfiguration of DOE facilities. Such programs may provide for the lease or transfer of DOE property at less than fair market value in accordance with the Hall Amendment (Public Law 103-160, Sections 3154 and 3155). Any lease or transfer of DOE property under this program must be prior-approved in writing by the Contracting Officer.
The Contractor is permitted to provide advanced payment using Contractor funds for reimbursable work to be performed by the Contractor for non-Federal entities in instances where advanced payment from that entity is required pursuant to DOE policy and such an advance cannot be obtained by DOE. The Contractor is also permitted to provide advanced continuation funding using Contractor funds for Federal entities when the term or the funds on a Federal interagency agreement have elapsed. Any uncollectible receivables resulting from the Contractor using its own funding shall be the responsibility of the Contractor, and the United States Government shall not have any liability to the Contractor therefor.
A. Advance Acquisition Plan
The Contractor shall develop and update annually a strategic plan for the next two years of subcontracting in the form of an Advanced Acquisition Plan. The Contractor shall submit the initial Advanced Acquisition Plan to DOE for approval by December 1, 1996, as part of its Economic Transition and Outsourcing Plan.
The Advanced Acquisition Plan shall identify the Contractor's management and decision-making strategies for planned key acquisition essential to effective and productive performance. The Advanced Acquisition Plan shall specifically address the following, including the relevant Contractor/RL interfaces:
1. decision-making criteria, including business risk analysis, for determining the optimum contracting method and fee structure.
2. subcontract management organizational structure and implementation activities (e.g., providing technical direction, change control, contract administration, quality assurance, performance measurement, funds control, acceptance of completed work, fee negotiations, and subcontract closeout.)
B. MAKE-OR-BUY PROGRAM
(1) Definitions "Buy item" means a unit of work effort or a requirement to be produced or performed by an outside source, including a subcontractor or an affiliate, subsidiary, or division of the Contractor.
(2) "Make item" means a unit of work effort or a requirement to be produced or performed by the Contractor using its personnel and other resources at the DOE facility or site.
(3) "Master make-or-buy program" means a Contractor's written program for the contract that identifies work efforts that either are "make items" or "buy items."
(4) Master Make-or-Buy Program The Contractor shall initiate, develop, or adopt a Master Make-or-Buy Program that establishes a preference for buying items and work effort on a least cost basis, subject to specific DOE make-or-buy criteria identified in this contract or otherwise provided by the Contracting Officer. The Contractor shall submit for approval a plan documenting the Master Make-or-Buy Program.
(5) Implementation Once the Master Make-or-Buy Plan is approved, the Contractor shall perform in accordance with the Master Make-or-Buy Plan.
(6) Submission and approval The Contractor shall submit the Master Make-or-Buy Plan as part of its Economic Transition and Outsourcing Plan for approval by December 1, 1996.
The following documentation shall be prepared and submitted:
(a) a description of each major work item, and if appropriate, the identification of the associated Work Authorization or Work Breakdown Structure element;
(b) the categorization of each work item as "must make," "must buy," or "can make or buy," with the reasons for such categorization in consideration of the program-specific make or buy criteria (including least cost considerations). For items categorized as "must make," a cost/benefit analysis must be performed for each item;
(c) a decision to either "make" or "buy" in consideration of the program-specific make or buy criteria (including least cost considerations) for work effort categorized as "can make or buy";
(d) identification of proposed suppliers and subcontractors, if known, and their location and size status;
(e) a recommendation to defer make or buy decisions where categorization of identifiable work effort(s) is impracticable at the time of initial development of the Master Make-or-Buy Plan;
(f) the impact of a change in current make-or-buy practices on the existing workforce;
(g) any additional information appropriate to support and explain the Master Make-or-Buy Plan; and
(h) to the maximum extent possible, the use of fixed-price subcontracts.
(1) Changes to the Master Make-or-Buy Plan The Master Make-or-Buy Plan established in accordance with Paragraph (4) above, shall remain in effect for the term of the contract, unless: (1) a lesser period is provided either for the total Master Make-or-Buy Plan or for individual items or work effort; or (2) the circumstances supporting the original make-or-buy decisions change subsequent to the initial approval. At least annually, the Contractor shall review the approved Master Make-or-Buy Plan to ensure that it reflects current conditions.
Changes to the approved Master Make-or-Buy Plan shall be submitted to RL in advance of the proposed effective date of the change in sufficient time to permit review and evaluation. All changes shall be submitted in accordance with instructions provided by the Contracting Officer. Modification of the Master Make-or-Buy Plan to incorporate proposed changes or additions shall be effective upon the Contractor's receipt of the Contracting Officer's written approval.
C. The Contractor shall include paragraphs A and B of this clause in all subcontracts with Major Subcontractors, altering the clause only as necessary to identify properly the contracting parties.
D. Prior to the placement of subcontracts and in accordance with the contract clause entitled "Subcontracts (Cost Reimbursement and Letter Contracts) (Clause I.75), the Contractor shall ensure the following:
(1) the subcontracts contain all of the clauses of this contract (altered when necessary for proper identification of the contracting parties) which contain a requirement for such inclusion in applicable subcontracts. Particular attention should be directed to the potential flow down applicability of the clauses entitled "Utilization of Small Business Concerns and Small Disadvantaged Business Concerns" (Clause I.27) and "Small Business and Small Disadvantaged Business Subcontracting Plan" (Clause I.28) contained in PART II, Section I, of the contract;
(2) any applicable subcontractor Certificate of Current Cost or Pricing Data (see FAR 15.804-2) and subcontractor Representations and Certifications are completed (see the document referenced in the contract clause entitled "Representations and Certifications" [Clause G.8]); and
(3) any required prior notice and description of the subcontract is given to the Contracting Officer, and any required consent is received. Except as may be expressly set forth therein, any consent by the Contracting Officer to the placement of subcontracts shall not be construed to constitute approval of the subcontractor or any subcontract terms or conditions, determination of the allowability of any cost, revision of this contract or any of the respective obligations of the parties thereunder, or creation of any subcontractor privity of contract with the Government.
E. The Contractor shall also obtain and furnish to the Contracting Officer either an Organizational Conflict of Interest (OCI) Disclosure Statement or Representation form in accordance with DEAR 909.570-7, " Disclosure or representation", from all subcontractors to be used under this contract to perform the types of work identified in DEAR 909.570-4(b). No work shall be performed by the subcontractor until the Contracting Officer has cleared the subcontractor for OCI.
F. The Contractor shall ensure that all cost-reimbursable type subcontracts placed for a total amount which exceeds $5 million shall have incentive provisions based on performance measurements, criteria, and success factors.
G. In compliance with the Governments initiative of "Streamlining Procurement Through Electronic Commerce," and presenting a "singleface" to industry, the Contractor shall strive to implement, within available funding, an Electronic Commerce System that will generate a paperless, automated, integrated procurement/payment system. This system shall, to the maximum practicable extent, subject to DOE approval, allow for electronic request for quotations, quotations, purchase orders, electronic invoices, and remittance advices; full integration between the procurement, receiving, inventory control and accounting systems; and accounting system programs that compare invoices, receipts, and orders and automatically issue electronic funds transfer payments.
Subcontracts awarded under this contract with Major Subcontractors shall be limited to 2 years, with options for up to 3 additional years (as appropriate), unless awarded on a fixed-price competitive basis. In addition, cost reimbursable subcontracts estimated to exceed $5,000,000 shall be subject to this limitation unless otherwise approved by DOE. This limitation shall apply to other subcontracts as identified from time to time by the DOE. The Contractor shall include contract clause B.10, Exercise of Option(s) in its entirety, in all subcontracts awarded subject to this limitation. If at the Government's option the contract is extended for an additional period beyond the initial five year period, then Major Subcontractors whose performance warrants may be extended for an additional two year period with options for up to an additional three years.
A. Existing subcontractor contractual agreements (exclusive of the WHC subcontracts with ICF Kaiser Engineers Hanford and Boeing Computer Services Richland), unless otherwise determined by DOE, shall be assigned to the successor Contractor effective October 1, 1996. The subcontractor contractual agreements shall include all (1) subcontracts and purchase orders, (2) agreements with domestic and foreign research organizations, (3) agreements with universities and colleges, and (4) other similar agreements. This assignment does not include any collective bargaining agreements the predecessor Contractor may have with certified collective bargaining agents.
B. The Government reserves the right to direct the Contractor to assign to the Government or another contractor any subcontract awarded under this contract.
A. Management of Information Resources The Contractor shall design and implement Information Resources Management (IRM) capabilities for the Hanford Site in accordance with the Office of Management and Budget (OMB) Circular A-130, Management of Federal Information Resources. The Contractor shall flow down the provisions of OMB Circular A-130 to all Major Subcontractors.
B. Release of Information
(1) Working with the RL Office of External Affairs (OEA) and the Records Manager when appropriate, the Contractor shall be responsible for developing, planning, and coordinating proactive approaches to timely dissemination of information regarding DOE unclassified activities onsite and offsite.
(2) The Contractor shall be responsible for following DOE guidelines and/or procedures for all oral, written and audio/visual information material prepared for public use, including technical information.
C. Unclassified, Controlled, Nuclear Information (UCNI)
Documents originated by the Contractor or furnished by the Government to the Contractor, in connection with this contract, may contain Unclassified, Controlled, Nuclear Information as determined pursuant to Section 148 of the Atomic Energy Act of 1954, as amended. The Contractor shall be responsible for protecting such information from unauthorized dissemination in accordance with DOE regulations and directives and the contract clauses entitled "Security" (Clause I.91) and "Classification" (Clause I.92).
D. Confidentiality of Information
To the extent that the work under this contract requires that the Contractor be given access to confidential or proprietary business, technical, or financial information belonging to the Government or other companies, the Contractor shall, after receipt thereof, treat such information as confidential and agrees not to appropriate such information to its own use or to disclose such information to third parties unless specifically authorized by the Contracting Officer in writing. The foregoing obligations, however, shall not apply to:
(1) Information which, at the time of receipt by the Contractor, is in the public domain;
(2) Information which is published after receipt thereof by the Contractor or otherwise becomes part of the public domain through no fault of the Contractor;
(3) Information which the Contractor can demonstrate was in its possession at the time of receipt thereof and was not acquired directly or indirectly from the Government or other companies;
(4) Information which the Contractor can demonstrate was received by it from a third party who did not require the Contractor to hold it in confidence.
The Contractor shall obtain the written agreement, in a form satisfactory to the Contracting Officer, of each employee permitted access to such information, whereby the employee agrees that he will not discuss, divulge or disclose any such information or data to any person or entity except those persons within the Contractor's organization directly concerned with the performance of the contract.
The Contractor agrees, if requested by the Government, to sign an agreement identical, in all material respects, to the provisions of this subparagraph D., with each company supplying information to the Contractor under this contract, and to supply a copy of such agreement to the Contracting Officer. From time to time upon request of the Contracting Officer, the Contractor shall supply the Government with reports itemizing information received as confidential or proprietary and setting forth the company or companies from which the Contractor received such information.
The Contractor agrees that upon request by DOE, it will execute a DOE-approved agreement with any party whose facilities or proprietary data it is given access to or is furnished, restricting use and disclosure of the data or the information obtained from the facilities. Upon request by DOE, such an agreement shall also be signed by Contractor personnel.
E. The Government reserves the right to require the Contractor to include this clause or a modified version of this clause in any subcontract as directed in writing by the Contracting Officer.
A. Government's Records. Except as provided in Paragraph B of this clause, all records acquired or generated by the Contractor in its performance of this contract shall be the property of the Government and shall be delivered to the Government or otherwise disposed of by the Contractor either as the Contracting Officer may from time to time direct during the process of the work or, in any event, as the Contracting Officer shall direct upon completion or termination of the contract.
All occupational health records generated during the performance of Hanford-related activities will be maintained by the Hanford Environmental Health Foundation (HEHF) and are the property of DOE.
All radiation exposure records generated during the performance of Hanford-related activities will be maintained by the Pacific Northwest National Laboratory (PNNL) and are the property of DOE.
B. Contractor's Own Records. The following records are considered the property of the Contractor and are not within the scope of Paragraph A above:
(1) Employment-related records such as the following:
(2) Confidential Contractor financial information and correspondence between the Contractor and other segments of the Contractor located away from the DOE facility (i.e., the Contractor's corporate headquarters);
(3) The following categories of records maintained pursuant to the Technology Transfer clause of this contract:
(i) executed license agreements (including exhibits or appendices containing information on royalties, royalty rates, other financial information, or commercialization plans) and all related documents, notes, and correspondence.
(ii) the Contractor's protected Cooperative Research and Development Agreement (CRADA) information and appendices to a CRADA that contain licensing terms and conditions, or royalty or royalty rate information.
(iii) patent, copyright, mask work, and trademark application files and related Contractor invention disclosures, documents, and correspondence, where the Contractor has elected rights or has permission to assert rights and has not relinquished such rights or turned such rights over to the Government.
[The Contractor shall identify below any other proposed Contractor-owned records.]
In the event of completion or termination of this contract, copies of any such Contractor-owned records identified above shall be delivered to DOE or its designees. Title to such records shall vest in DOE upon delivery.
C. Inspecting, Copying, and Auditing of Records All records acquired or generated by the Contractor under this contract in the possession of the Contractor, including those described at Paragraph B above, shall be subject to inspection, copying, and audit by the Government or its designee at all reasonable times, and the Contractor shall afford the Government or its designee reasonable facilities for such inspection, copying, and audit. Upon request by the Contracting Officer, the Contractor shall deliver such records to a location specified by the Contracting Officer for inspection, copying, and audit.
D. Applicability The provisions of Paragraphs B and C of this clause apply to all records described therein without regard to the date or origination of such records.
E. Records Retention Standards Special records retention standards, described at DOE Order 1324.5B, Records Management Program, and at DOE Records Schedules (version in effect on effective date of contract), are applicable for the classes of records described therein, whether or not the records are owned by the Government or the Contractor. In addition, the Contractor shall retain individual radiation exposure records generated in the performance of work under this contract until DOE authorizes disposal.
F. Flowdown The Contractor shall include the requirements of this clause in all contracts with Major Subcontractors.
A. The Contractor shall design, develop, or adopt the following systems of records on individuals to accomplish an agency function pursuant to the contract clause entitled "Privacy Act" (Clause I.47).
| System No. DOE-5 DOE-11 DOE-13 DOE-14 DOE-15 DOE-23 DOE-28 DOE-31 DOE-32 DOE-33 DOE-35 DOE-40 DOE-43 DOE-47 DOE-51 DOE-53 DOE-58 DOE-81 DOE-84 |
Title Personnel Records of Former Contractor Employees Emergency Locator Records Payroll & Locator Records Report of Compensation Payroll & Pay-Related Data for Employees of Terminated Contractors Richland Property System General Training Records Firearms Qualifications Requirements Gov't Motor Vehicle Operator Records Personnel Medical Records Personnel Radiation Exposure Records Contractor Employees Insurance Claims Personnel Security File Security Investigations Employee and Visitor Access Control Records Personnel Security File General Correspondence Files Counterintelligence Administrative and Analytical Reports Counterintelligence Investigative Records |
B. The above list shall be revised from time to time by mutual agreement between the Contractor and the Contracting Officer as necessary to keep it current. A formal modification to the contract is not required to incorporate these revisions; but, the revisions become effective upon mutual agreement of the parties. The mutually agreed upon revisions shall have the same effect as if actually listed above for the purpose of satisfying the listing requirement contained in Paragraph (a)(1) of the contract clauses entitled "Privacy Act" (Clause I.47). The revisions will be formally incorporated per the next annual contract update modification, unless added sooner by the Contracting Officer.
The Contractor agrees to conduct an internal audit and examination satisfactory to DOE of the records, operations, expenses, and the transactions with respect to costs claimed to be allowable under this contract annually and at such other times as may be mutually agreed upon. The results of such audit, including the working papers, shall be submitted or made available to the Contracting Officer.
During the period of performance of this contract it may become necessary for the Department of Energy (DOE) to transfer and assign (and Contractor agrees to accept) existing or future DOE prime contracts supporting site work to this contract. The transfer of these prime contracts will be for administration purposes and in effect the transferred contracts will become subcontracts to this contract. Details of the transfer will be determined by the DOE prior to the transfer. Any recommendations and/or suggestions on individual transfers should be submitted in writing to the Contracting Officer prior to the transfer or assignment.
During the contract period of performance, the Contractor will continue to be accountable for all existing and acquired Government-owned property recordable in the Richland Property System and all special nuclear material as identified in the Nuclear Material Management and Safeguards System. In addition, the Contractor will be responsible for updating these systems to reflect changes in property or special nuclear materials inventory.
The DOE has reached an advance understanding with the Contractor on certain personnel costs, related expenses, policies, and procedures. These costs are those associated with personnel policies and procedures which the Contractor will apply to work under this contract. Advance review by DOE and written approval by the Contracting Officer of such personnel policies and procedures is required. Any exceptions noted in the Contracting Officer's written approval will govern the Contractor's application of the personnel policies and procedures under this contract. Any deviation from the personnel policies and procedures so approved must have DOE approval before costs occasioned thereby will be considered allowable (either direct or indirect) under the subject contract. In addition, DOE approval will be required for total annual compensation paid to each person designated as Key Personnel and identified in the contract clause entitled "Key Personnel" (Clause I.102), exclusive of bonus or incentive compensation pay which will not be an allowable cost under this contract. The Advance Understanding will be part of this contract and included in Section J.
A. It is Government policy to have the Contractor defend any Contractor or subcontractor protective force officer if a claim or legal action is brought against the employee as a result of that employee's conduct while performing duties undertaken by the employee in good faith for the purpose of accomplishing and fulfilling the official duties of his/her employment. The prior approval of the Contracting Officer shall be obtained before any such defense is undertaken.
B. When involved in any claim or legal action covered by this clause, an employee may, with prior approval of the Contracting Officer, be allowed time off with basic pay on scheduled workdays for consultation with counsel, trial attendance, and other matters as are reasonably incident to the claim or legal action.
The Contractor shall submit a Diversity Plan to the Contracting Officer for approval no later than October 1, 1996. The Diversity Plan shall be prepared in accordance with Section J, Appendix G, Guidance for Preparation of Diversity Plan and shall include innovative strategies for increasing opportunities to fully use the talents and capabilities of a diverse work force. The Plan shall address, at a minimum, the Contractor's approach for promoting diversity through (1) the Contractor's work force, (2) educational outreach, (3) community involvement and outreach; (4) subcontracting, and (5) economic development (including technology transfer). The approved Diversity Plan will be part of the Management and Integration Plan (Section J, Appendix E).
A. Pursuant to the requirements of section 3161 of the National Defense Authorization Act for Fiscal Year 1993 (Pub. L. 102-484), and subject to Clause H.2, Paragraph B., preference is to be provided to displaced Contractor employees whose eligibility is defined in the DOE guidelines on work force restructuring or the site work force restructuring plan, including lower tier subcontractor employees, for work at the Hanford Site in accordance with the following unless modified by final section 3161 guidance issued by DOE. The Contractor shall:
(1) require subcontractors and sub-tier contractors offering or bidding to perform a work activity to provide hiring preference, to the extent practicable, in filling vacancies to displaced employees who meet the eligibility criteria contained in the Department's Work Force Restructuring Guidelines and who are qualified for the prospective work or, through further retraining, can become qualified within the time frames and dollar amounts provided for in the guidelines (displaced workers with the hiring preference are listed on the Department's Job Opportunity Bulletin Board System [JOBBS] along with their qualifications); consistent with applicable law or employment seniority plans or practices of the DOE, with section 3152 of the National Defense Authorization Act for Fiscal Years 1990 and 1991, and with the terms of any legally enforceable affirmative action plan.
(2) provide, or through its subcontractors provide, the training contemplated by Paragraph A(1) above; and
(3) discuss with affected unions or subcontractors and bargain where required by law regarding the implementation of the hiring preference provided by Paragraph A above.
B. The Contractor and any lower tier subcontractor subject to Paragraph A(l) above shall negotiate with affected unions to implement the hiring preference. This includes if necessary, special agreements for allocation of work or arrangements for exceptions to internal union rules that might otherwise be obstacles to implementation of the hiring preference, consistent with the Departmental guidance regarding section 3161.
C. The Contractor and any subcontractor shall comply with plans issued by DOE pursuant to section 3161.
D. Nothing in this clause shall be construed to excuse the Contractor or any subcontractor from compliance with the requirements of any applicable law.
E. Nothing in this clause is intended to create rights in third parties or persons.
A. Salaried and hourly employees whose jobs are likely to be eliminated due to changes in the Contractor's scope of work, budgetary reductions, or efficiencies in performing the mission who are covered by the terms of section 3161 may be offered opportunities for retraining. Retraining programs will be designed to provide occupational skills which are in demand by the Contractor or by other employers locally, regionally, or nationally, as appropriate. Tuition payments for courses to qualify displaced employees for outside employment may be approved by the Contractor. Retraining for outside employment may be conducted during working hours under programs approved by DOE.
B. When actual or potential employment termination is the result of a work force restructuring plan prepared by the Department pursuant to section 3161, the Contractor shall comply with the DOE approved plan. This plan may prescribe funding amounts for retraining eligible workers for new Contractor jobs in environmental cleanup, and may prescribe funding amounts and procedures for providing displaced workers with tuition reimbursement for training or education that will assist the transition to new careers.
A. An allowance for transfers and relocations accomplished pursuant to section 3161 may be reimbursed with an outbound and an inbound allowance not to exceed the employee's receipted expenses up to 4-1/3 weeks salary, except that a flat amount not to exceed one thousand dollars ($1,000.00) may be allowed in lieu of receipted expenses.
B. When actual or potential employment termination is the result of a work force restructuring plan prepared by the Department pursuant to section 3161, the Contractor shall comply with the plan. This plan may prescribe funding amounts for relocating an eligible employee to another company at another DOE site when the employee does not qualify for relocation assistance under the hiring Contractor's policies.
A. The Contractor, or its Major Subcontractors, will respect the rights of employees (1) to organize, form, join, or assist labor organizations; bargain collectively through representatives of the employees own choosing; and engage in other protected concerted activities for the purpose of collective bargaining, or (2) to refrain from such activities.
B. To the extent required by law, the Contractor or its Major Subcontractors shall give notice to any lawfully designated representative of its employees for purposes of collective bargaining and, upon proper request, bargain to good faith impasses or agreement, or otherwise satisfy applicable bargaining obligations.
C. The Contractor shall promptly advise the Contracting Officer of, and provide all appropriate documentation regarding, any labor relations developments at the prime or subcontract level that involve or appear likely to involve:
(1) possible strike situations affecting the facility;
(2) referral to the Energy Labor-Management Relations Panel;
(3) the National Labor Relations Board at any level;
(4) recourse to procedures under the Labor-Management Act of 1947, as amended, or any other Federal or state labor law; or
(5) any grievance that may reasonably be assumed to be arbitrated under a Collective Bargaining Agreement.
D. Cost of wages and fringe benefits, to employees represented by collective bargaining units, not in excess of those provided in the collective bargaining agreements listed below, shall be allowable. The costs associated with grievance processing and settlements, arbitration, and arbitration awards shall be allowable in accordance with the provisions of the contract clause entitled "Insurance - Litigation and Claims" (Clause H.38). All other costs and expenses incurred pursuant to the provision of the collective bargaining agreements and revisions thereto listed below are allowable costs hereunder.
DOE shall determine the appropriate labor standards in accordance with the Davis-Bacon Act, which shall apply to work performed under this contract. Where requested by DOE, the Contractor shall provide such information in the form and timeframe required by DOE, as may be necessary for DOE to make such labor standards determinations. The Contractor will then be responsible for ensuring that the appropriate labor standards provisions are included in subcontracts.
For any subcontract subject wholly or in part to the provisions of the McNamara-O'Hara Service Contract Act (SCA), the Contractor shall require the subcontractor to pay service employees employed thereunder no less than the minimum wage and fringe benefits set forth in the applicable currently effective wage determination(s). Prior to the beginning of each contract year/option period, the agency Contracting Officer shall file a request for a revised wage determination (WD) with the U.S. Department of Labor. Any revised WD received shall be incorporated into the affected subcontract by modification.
A. The Site Stabilization Agreement for all construction work for the DOE at the Hanford Site consists of a Basic Agreement dated September 10, 1984, plus an Appendix A. (The Site Stabilization Agreement is available in the DOE Public Reading Room. The Site Stabilization Agreement will be made a part of this contract by reference upon award. The Contractor shall be required to comply with the most current Site Stabilization Agreement, and as modified throughout performance of the contract.)
B. This clause applies to employees performing work under RL contracts or subcontracts subject to the Davis-Bacon Act, in the classifications set forth in the Site Stabilization Agreement for work performed at the Hanford Site.
C. Contractors and subcontractors at all tiers who are parties to an agreement(s) for construction work with a Local Union having jurisdiction over RL construction work performed at the Hanford Site, or who are parties to a national labor agreement for such construction work, shall become signatory to the Site Stabilization Agreement and shall abide by all of its provisions, including its Appendix A. Subcontractors at all tiers who have subcontracts with a signatory Contractor or subcontractor shall become signatory to the Site Stabilization Agreement and shall abide by all of its provisions, including its Appendix A.
D. Contractors and subcontractors at all tiers who are not signatory to the Site Stabilization Agreement and who are not required under Paragraph C above to become signatory to the Site Stabilization Agreement shall pay not less and no more than the wages, fringe benefits, and other employee compensation set forth in Appendix A and shall adhere, except as otherwise directed by the Contracting Officer, to the following provisions of the Site Stabilization Agreement:
1. Article VII Employment, Section 2 only
2. Article XII Non-Signatory Contractor Requirements
3. Article XIII Hours of Work, Shifts, and Overtime
4. Article XIV Holidays
5. Article XV Wage Scales and Fringe Benefits, Sections 1 & 2 only
6. Article XVII Payment of Wages-Checking In & Out, Section 3 only
7. Article XX General Working Conditions
8. Article XXI Safety and Health
E. The Contractor agrees to make no contributions in connection with this contract to Industry Promotion Funds, or similar funds, except with the prior approval of the Contracting Officer.
F. The obligation of the Contractor and its subcontractors to pay fringe benefits shall be discharged by making payments required by this contract in accordance with the provisions of the amendments to the Davis-Bacon Act contained in the Act of July 2, 1964, (Public Law 88-349-78 Stat. 238-239) and the Department of Labor regulations in implementation thereof (29 CFR, Parts 1,3,5).
G. The Contracting Officer may direct the Contractor to pay amounts for wages, fringe benefits, and other employee compensation if the Site Stabilization Agreement, including its Appendix A, is modified by the involved parties.
H. (1) In the event of failure to comply with Paragraphs C, D, E, F, and G above, or failure to perform any of the obligations imposed upon the Contractor and its subcontractors, the Contracting Officer may withhold any payments due to the Contractor and may terminate the contract for default.
(2) The rights and remedies of the Government provided in this Paragraph (1) above shall not be exclusive and are in addition to any other rights and remedies of the Government provided by law or under this contract.
I. The requirements of this paragraph are in addition to, and shall not relieve the Contractor of any obligation imposed by other clauses of this contract, including those entitled "Davis-Bacon Act" (Clause I.141), "Contract Work Hours and Safety Standards Act-Overtime Compensation" (Clause I.140), "Payrolls and Basic Records" (Clause I.143), "Compliance with Copeland Act Requirements" (Clause I.146), "Withholding of Funds" (Clause I.142), and "Contract Termination--Debarment" (Clause I.147).
J. The Contractor agrees to maintain its bid or proposal records showing rates and amounts used for computing wages and other compensation, and its payroll and personnel records during the course of work subject to this paragraph, and to preserve such records for a period of 3 years thereafter for all employees performing such work. Such records will contain the name, address, social security number of each such employee, correct classification, rate of pay, daily and weekly number of hours worked, and dates and hours of the day within which work was performed, deductions made, and amounts for wages and other compensation covered by Paragraphs C, D, E, F, and G. of this contract clause. The Contractor agrees to make these records available for inspection by the Contracting Officer and will permit employee interviews during working hours on the job.
K. The Contractor agrees to insert this clause, including this paragraph K, in all subcontracts for the performance of work subject to the Davis-Bacon Act.
A. The Contractor may, with the prior written authorization of the Contracting Officer, and shall, upon the request of the Government, initiate litigation against third parties, including proceedings before administrative agencies, in connection with this contract. The Contractor shall proceed with such litigation in good faith and as directed from time to time by the Contracting Officer, and in accordance with the DOE-approved Contractor Litigation Management Plan (including cost guidelines [see Section J, Appendix E]), as such Plan may be revised from time to time, and if not otherwise made unallowable in this contract.
B. The Contractor shall give the Contracting Officer immediate notice in writing of any action, including any proceeding before any administrative agency, filed against the Contractor arising out of the performance of this contract. Except as otherwise directed by the Contracting Officer in writing, the Contractor shall furnish immediately to the Contracting Officer copies of all pertinent papers received by the Contractor with respect to such action. The Contractor, with the prior written authorization of the Contracting Officer, shall proceed with such litigation in good faith and as directed from time to time by the Contracting Officer, in accordance with the DOE-approved Contractor Litigation Management Plan (including cost guidelines), as such Plan may be revised from time to time, and if not otherwise made unallowable in this contract.
C. (1) Except as provided in Subparagraph C (2) of this clause, the Contractor shall procure and maintain such other bonds and insurance required by law or approved in writing by the Contracting Officer.
(2) With regard to Workers Compensation Insurance:
(i) The coverage afforded by the workers' compensation statutes of the State of Washington (Title 51, Revised Code of Washington) shall, for performance of work under this contract at the Hanford Site, including work subcontracted, (except work performed under certain lump-sum subcontracts as determined by the Contracting Officer), be subject to the following:
(a) Except as provided above and in Paragraph (f) below, the Contractor shall be relieved of all obligation to pay premiums for such coverage. DOE has agreed, under the terms of a contract with the Department of Labor and Industries of the State of Washington (hereinafter called the "DOL") to bear the actual cost of such coverage.
(b) The Contractor shall submit to DOE, for transmittal to the DOL, such payroll records as are required by the said statutes, except as provided above and in Paragraph F below.
(c) The Contractor shall, for coverage of each individual employer or any member or officer of any corporate employer provided for by Section 51.32.030 of the Revised Code of Washington, submit to DOE for transmittal to the DOL the written notice required by that section.
(d) The Contractor shall submit directly to the DOL the accident reports provided for by Section 51.28.010 of the Revised Code of Washington.
(e) The Contractor shall take such action, and only such action, as DOE requests in connection with any accident reports, including assistance in the investigation and disposition of any claim thereunder and, subject to the direction and control of DOE, the conduct of litigation in the Contractor's own name in connection therewith.
(f) The Contractor shall be responsible for making all payments and submitting all reports required by Title 51, Section 51.32.073, Revised Code of Washington.
(3) All bonds and insurance required by this clause shall be in a form and amount and for those periods as the Contracting Officer may require or approve and with sureties and insurers approved by the Contracting Officer.
D. The Contractor agrees to submit, for the Contracting Officer's approval, to the extent and in the manner directed by the Contracting Officer, any other bonds and insurance that are maintained by the Contractor in connection with the performance of this contract and for which the Contractor seeks reimbursement.
E. Except as provided in Subparagraphs G and H of this clause or specifically disallowed elsewhere in this contract, the Contractor shall be reimbursed:
(1) for that portion of the reasonable cost of bonds and insurance allocable to this contract, required in accordance with contract terms, or approved under this clause; and
(2) for liabilities (and expenses incidental to such liabilities, including litigation costs) to third persons not compensated by insurance or otherwise without regard to, and as an exception to, the clause of this contract entitled "Obligation of Funds" (Clause B.2).
F. The Government's liability under Paragraph E of this clause is subject to the availability of appropriated funds at the time a contingency occurs. Nothing in this contract shall be construed as implying that the Congress will, at a later date, appropriate funds sufficient to meet deficiencies.
G. Notwithstanding Subparagraph E of this clause, the Contractor shall not be reimbursed for liabilities (and expenses incidental to such liabilities, including litigation costs, counsel fees, judgements and settlements):
(1) Which are otherwise unallowable by law or the provisions of this contract;
(2) For which the Contractor has failed to insure or to maintain insurance as required by law, this contract, or by written direction of the Contracting Officer.
H. (1) (i) Notwithstanding any other provision of this contract, the Contractor's liabilities to third persons, including employees, (and any expenses incidental to such liabilities, including litigation costs) are not allowable unless the Contractor demonstrates to the Contracting Officer that such liabilities were not caused by the willful misconduct or lack of good faith of the Contractor's managerial personnel; or the failure to exercise prudent business judgment by the Contractor's managerial personnel.
(ii) Costs that may be unallowable under G(1) or H(1)(i) above shall be differentiated and accounted for by the Contractor so as to be separately identifiable. The Contracting Officer shall generally withhold payment and not authorize the use of funds advanced under the contract for payment of such costs. However, the Contracting Officer may, in appropriate circumstances, provide for conditional payment upon provision of adequate security, or other adequate assurance, and agreement by the Contractor to repay all unallowable costs, plus interest, if the costs are subsequently determined to be unallowable.
(2) Punitive damages are not allowable unless the Contractor demonstrates to the Contracting Officer that they were incurred as a result of compliance with specific terms and conditions of the contract or written instructions from the Contracting Officer.
(3) The cost of insurance procured by the Contractor to cover the third-party liabilities referenced in Subparagraph G(1) of this clause is not allowable.
(4) The term "Contractor's managerial personnel" as used in this clause means the Contractor's directors, officers, and any of its managers, superintendents, or other equivalent representatives who have supervision or direction of:
(i) all or substantially all of the Contractor's business; or
(ii) all or substantially all of the Contractor's operations at any one facility or separate location to which this contract is being performed; or
(iii) a separate and complete major industrial operation in connection with the performance of this contract; or
(iv) a separate and complete major construction, alteration, or repair operation in connection with performance of this contract; or
(v) a separate and discrete major task or operation in connection with the performance of this contract.
(5) The Contractor may, at its own expense and not as an allowable cost, procure for its own protection insurance to compensate the Contractor for any unallowable or unreimbursable costs incurred in connection with contract performance.
I. If any suit or action is filed or any claim is made against the Contractor, the cost and expense of which may be reimbursable to the Contractor under this contract and the risk of which is then uninsured or is insured for less than the amount claimed, the Contractor shall:
(1) immediately notify the Contracting Officer and promptly furnish copies of all pertinent papers received;
(2) authorize Government representatives to collaborate with, (i) in-house or approved outside counsel in settling or defending the claim, or (ii) counsel for the insurance carrier in settling or defending the claim when the amount of the liability claimed exceeds the amount of coverage, unless precluded by the terms of the insurance contract; and,
(3) authorize Government representatives to settle the claim or to defend or represent the Contractor in and/or to take charge of any litigation, if required by the DOE, when the liability is not insured or covered by bond. In any action against more than one DOE Contractor, the DOE may require the Contractor to be represented by common counsel. Counsel for the Contractor may, at the Contractor's expense, be associated with the DOE representatives in any such claim or litigation.
J. The Contractor agrees to insert this clause in all subcontracts with Major Subcontractors.
A. The Contractor's accounting system must have the electronic capability to generate and transmit by acceptable mode, the periodic detailed accounting information, at a minimum monthly and at year-end, to the DOE's Primary Accounting System for reporting financial activity under this contract in accordance with DOE requirements.
B. The Contractor shall maintain and administer a financial management system as described in the Management and Integration Plan that (1) is suitable to provide proper accounting in accordance with Generally Accepted Accounting Principles, and Cost Accounting Standards, except as modified by DOE requirements; (2) provides accurate and reliable financial and statistical data on a timely basis; (3) ensures accountability for all assets; (4) supports financial planning and budget formulation, validation, execution, and the recasting or changing of DOE funding or task codes such as Budget and Reporting Numbers (B&R), activity data sheet numbers (ADS), and local projects/tasks; (5) maintains proper funding authorization; (6) provides sufficient management controls per DEAR 970.5204-20 MANAGEMENT CONTROLS, and internal controls; (7) integrates and reports the financial information for subcontractors; and (8) provides all other necessary financial reports which shall include accumulating and reporting indirect and support costs by function. The Contractor will be requested, periodically, to provide certain functional cost information not normally provided to DOE on a routine basis, but should be otherwise available through query of the Contractor's accounting system.
C. The Contractor will assume existing responsibilities for accounting control of special nuclear materials. The Contractor will continue to operate the classified Departmental Inventory Management System (DIMS), which reports the financial aspects of special nuclear material inventory changes and status.
D. The Contractor shall submit a plan for DOE approval of any substantive change to the financial management system or subsystems at least 60 days in advance of implementation. This plan must identify the cost and schedule for changing from the existing financial systems, and provide a comparison of the capabilities of the new system(s) to the existing system(s).
E. The financial management systems of Major Subcontractors shall have the same level of detail required of the Contractor and be consistent with the requirements of this clause.
A. Definitions
(1) Adverse Determination means -
(i) a judgement of liability against the Contractor and in favor of the employee in an action in a judicial forum;
(ii) a recommended decision under 29 CFR 24.6 by an Administrative Law Judge that the Contractor has violated the employee provisions of the statutes or executive orders for which the Secretary of Labor has been assigned enforcement responsibility;
(iii) an initial agency decision, under 10 CFR 708.10 that the Contractor has engaged in conduct prohibited by 10 CFR 708.5;
(iv) any decision against the Contractor by the head of an executive agency under 6006 of the Federal Acquisition Streamlining Act, Pub. L. 103-355 (adding section 315 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251, et seq.), see Paragraph C);
(2) Retaliatory or Discriminatory Acts mean(s) discharge, demotion, reduction in pay, coercion, restraint, threats, intimidation or other similar negative action taken against an employee by the Contractor during the term of this contract as a result of activities protected by the statutes enumerated in 29 CFR 24.1(a) or as a result of the employee's disclosure of information, participation in a proceeding or refusal to engage in illegal or dangerous activities as set forth in 10 CFR 708.5(a).
(3) Employee Action means an action filed in Federal or state court for redress of retaliatory or discriminatory action by the Contractor, any administrative procedure brought by an employee or federal agency under 29 CFR Part 24, or any other complaint filed against the Contractor for retaliatory or discriminatory acts under 10 CFR Part 708 by an employee of any other Contractor or subcontractor which is cognizable under 10 CFR 708.
(4) Litigation Costs include attorney, consultant, and expert witness fees, but exclude costs of settlements and judgements.
B. All costs incurred in the investigation and/or defense of an employee action under this contract clause shall be differentiated and accounted for by the Contractor so as to be separately identifiable. Subsequent to an adverse determination, such costs, as well as costs associated with any interim relief which may be granted, may not be paid from any advanced funding provided pursuant to this contract. Notwithstanding the foregoing, the Contracting Officer may, in appropriate circumstances, provide for conditional payment upon provisions of adequate security, or other adequate assurance, and agreements by the Contractor to repay all litigation costs incurred subsequent to an adverse determination, as well as any interim relief cost, plus interest, unless there is a final determination that the Contractor is not liable for any retaliatory or discriminatory acts. The allowance of such costs, notwithstanding any other provision of the contract, will be determined in accordance with this clause.
C. Litigation costs and settlement costs incurred in connection with the defense of, or a settlement of, an employee action are allowable if incurred by the Contractor before any adverse determination of the employee's claim, if approved as just and reasonable by the Contracting Officer and otherwise allowable under the contract. Costs incurred in pursuit of mediation or other forms of alternative dispute resolution are allowable, if approved as just and reasonable by the Contracting Officer, and no adverse determination of the employee's claim has occurred. Additionally, the Contracting Officer may, in appropriate circumstances, reimburse the Contractor for litigation costs and costs of judgements and settlements which, in aggregate, do not exceed any prior settlement offer approved by the Contracting Officer and rejected by the employee.
D. Except as provided in Paragraphs C, E and F of this clause, any other cost associated with an employee action (including litigation costs connected with, a judgement resulting from, or settlement subsequent to the employee action) are not allowable unless the Contractor receives a judgement or final determination favorable to the Contractor. In such event, reasonable litigation costs incurred by the Contractor are allowable, and the Contractor may submit a request for reimbursement for all such costs incurred subsequent to the adverse determination.
E. Costs incurred by the Contractor as a result of an employee action for retaliatory or discriminatory acts that resulted from compliance with either (1) specific terms and conditions of the contract or (2) written instructions from the Contracting Officer shall be allowable.
Reasonable litigation costs and settlement costs incurred by, and judgements entered by the Office of Hearings and Appeals against, the Contractor as a result of an employee action for discrimination under 10 CFR 708 are allowable where the Office of Contractor Employee Protection has issued a proposed disposition denying the relief being sought by the employee and the employee requests a hearing by the Office of Hearings and Appeals.
F. The provisions of this clause shall not apply to the defense of suits by employees or ex-employees of the Contractor under FAR 31.205-47.
G. The Contractor shall insert or have inserted the substance of this clause in all cost reimbursement subcontracts, with respect to work performed at a DOE-owned or -leased facility where 10 CFR 708 is also applicable under provisions of the contract clause entitled "Whistleblower Protection for Contractor Employees" (Clause I.117).
The Government will develop performance objectives, measures and expectations along with related fee distribution for the coming fiscal year which, after discussion with the Contractor, will be unilaterally added to the contract. The Contractor will also prepare additional performance objectives, measures and expectations which will be negotiated prior to placement in the contract. The final determination of objectives, measures, expectations and related fee distribution will be made solely by DOE and DOE may unilaterally add any and all of them in a modification to this contract. However, if the Contractor disagrees with the established objectives, measures, expectations, and related fee distribution, the Contractor may appeal the determination to the Manager, RL. However, the final decision by the Manager, RL shall not be subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). The objectives, measures, expectations, and related fee distribution will be set forth in Section J, Appendix D, of this contract. The evaluation of performance against expectations will be a consideration in (1) development of fee awards, if any, (2) in the DOE decision whether to extend the contract, and (3) in terminating the contract for default.
After determination of objectives, measures, expectations and related fee distribution for a fiscal year, the Contractor and DOE shall execute a Performance Agreement in the format included in Section J, Appendix D, for each expectation. The Performance Agreement sets forth the agreed upon criteria/specifications for acceptable performance of such expectation. The criteria/specifications set forth in the Performance Agreement shall be mutually agreed to by both DOE and the Contractor. In the event the parties cannot mutually agree, the final decision shall be made solely by the Manager, RL, and shall not be subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
The final determination on the acceptability of the work performed by the Contractor under this provision shall be made solely by the RL Manager, and shall not be subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
In the event the Contractor believes the DOE has interfered with its ability to meet specific performance expectations, it may present evidence to support this position along with a proposed adjustment to the RL Manager. The RL Manager will make a determination and provide a copy of that determination to the Contractor. The RL Manager's determination will be final and not subject to the contract clause entitled, "Disputes-Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
A critical few of the performance objectives, measures, and/or expectations have fee directly assigned to their accomplishment, or have a negative deduction from earned fee for failure to accomplish. A lesser number of the expectations are incentivized positively and/or negatively over and above the other fee assigned. If fee is assigned to an objective or measure, then in order to receive the fee amount set out for a single objective or measure, all performance expectations supporting that objective or measure must be met. If one or more of the expectations is not met, none of the fee associated with the objective or measure will be paid. If a performance expectation has an incentive level which is met, an incentive fee would be paid in addition to any fee earned for accomplishment of the objective, measure, and/or expectation. In addition, if the incentivized expectation is accomplished, its incentive fee portion would be paid regardless of whether or not the fee was earned on the overall objective or measure. Certain of the objectives, measures, and/or expectations may have a negative deduction set out. If the negative level of performance is not surpassed, no fee will be paid for these objectives, measures and/or expectations and further the negative deduction will be made from other fees earned. In no event, however, would the aggregate of all negative deductions exceed the amount of fee earned for the given Fiscal Year.
In order for any expectation to be considered performed, not only must it meet the criteria of the Performance Agreement, but the work must be accomplished within the approved cost and schedule, as modified through the Change Control process.
If, for any reason, DOE cancels an objective or measure, the fee attached to that objective or measure shall be reallocated to a new objective or measure or to other existing objectives or measures, or to both new and existing objectives and measures. The decision as to the new objective or measure, and/or the decision as to which existing objectives' or measures' fee may be reallocated, is at DOE's unilateral discretion.
If for any reason, DOE cancels an expectation, there will be no changes unless it is an expectation with a fee assigned. In that case, the fee shall be reallocated to a new objective, measure, and/or expectation or to existing objectives, measures, and/or expectations or both new and existing objectives, measures, and/or expectations. The decision as to the new objective, measure and/or expectation and/or the decision as to which existing objectives, measures, and/or expectations fee may be reallocated, is at DOE's unilateral discretion.
A. Whenever the contract contains both fixed-price and cost-type efforts, the Contractor shall maintain separate accounts for each unique contract type by Contract Line Item Number (CLIN), by task order, or other suitable accounting procedure of all incurred segregable costs of work allocable to the work effort directly related to each contract.
B. Whenever the contract contains a provision for an incentive for a portion of the work effort under the contract, the Contractor shall maintain separate accounts, by CLIN, task order, or other suitable accounting procedure of all incurred segregable costs of work allocable to the work effort directly related to the incentive.
C. If the Contractor has initiated work pursuant to the contract clause entitled "Cost Savings Program" (Clause H.45), if included in this contract, regardless of whether or not a proposal has been accepted, the Contractor, for each cost savings incentive effort/proposal, shall maintain separate accounts, by CLIN, task order or other suitable accounting procedure, of all incurred segregable costs, both changed and not changed, allocable to the changed work effort set forth in the applicable Cost Savings Proposal.
D. The Contractor shall maintain all such accounts, required pursuant to the paragraphs above, in accordance with this contract, but, in no case, for a period of less than 3 years following the Government's determination of the applicable incentive fee.
It is DOE's intention that the Government will pay no more in total fee across the Hanford Site for the Contractor and its Major Subcontractors than if a single management and operating contractor were operating the whole site. The total available fee pool under this contract will be no more than the maximum fee permitted under DEAR 970.1509 and 915.971-5 for a Defense Facility - A (See
DEAR 970.1509-8(b)(6). The total available fee pool will be used as the maximum fee available for distribution to the Contractor and its Major Subcontractors. The total fee for the Contractor when added to the fees for its Major Subcontractors shall not exceed this total available fee pool. The fee structure shall be set forth in the awarded contract for the period October 1, 1996, through September 30, 1997. For each fiscal year thereafter, the Contracting Officer shall allocate the total available fee pool, set forth in Section B, for that fiscal year across the fee structure in accordance with the following:
| Fee/Incentive | Percentage |
| Base Fee | 0% |
| Award Fee | 0% |
| Performance Fee | 100% |
| Total Available Fee Pool | 100% |
However, if the estimated cost for that fiscal year, set forth in Section B, differs significantly from the estimated cost being set for that fiscal year following passage of the budget, the corresponding total available fee pool for that fiscal year may be increased or decreased unilaterally by the Contracting Officer. The aforementioned unilateral increase or decrease will be determined as follows:
The estimated cost, total available fee pool and the contract fee structure, as it may be determined from the formulas above, for the new fiscal year shall be set forth in a modification unilaterally executed by the Contracting Officer. The amount of the total available fee pool or fiscal year allocation of the available fee across the fee structure hereunder shall not be subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65).
If, at any time, the Contracting Officer determines that the amount of fee or fee structure is not commensurate with the scope of work or risk under the contract, the Contracting Officer may unilaterally decide, not subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), to enter into negotiations with the Contractor to determine a revision to the total available fee pool or fee structure.
NOTE: This clause will not be applicable for FY97. In future years, the use of this clause will be subject to approval of the DOE Contracting Officer.
A. Base Fee and Award Fee It is herewith agreed that a base fee and an award fee, to be determined in accordance with the provisions of this clause, are available for payment in accordance with the contract clause entitled "Payments and Advances (Modified)" (Clause I.60).
B. Fiscal Year Fee Amounts Prior to the beginning of each fiscal year under this contract, the Contracting Officer shall determine the amount of the base and award fee in accordance with the clause entitled "Available Fee Pool" (Clause H.43). This contract shall be unilaterally modified by the Contracting Officer to reflect fiscal year amounts for base and award fees. It is herein agreed the award fee amount shall be assigned to evaluation periods 6 months in duration. The fiscal year award and base fee amounts shall not be subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
C. Determination of Award Fee Earned
(1) The Government shall, at the conclusion of each specified evaluation period, evaluate the Contractor's performance for a determination of award fee earned.
(2) For this contract, the Government Fee Determination Official (FDO) will be the RL Manager. The Contractor agrees that the determination as to the amount of award fee earned will be made by the Government FDO and such determination is binding on both parties and shall not be subject to appeal under the contract clause entitled "Disputes - Alternate I" (Clause I.65), or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), or any other appeal clause.
(3) The evaluation of Contractor performance shall be in accordance with the Performance Evaluation Plan described in Subparagraph D below. The Contractor shall be promptly advised in writing of the determination and the reasons why the award fee was or was not earned. While it is recognized that the basis for determination of the fee shall be the evaluation by the Government in accordance with the Performance Evaluation Plan (PEP), the FDO may also consider any information available to him or her which relates to the Contractor's performance of contract requirements identified in the Statement of Work as amended to include annual work authorization plans (or similar documents specifying work scope) regardless of whether or not those requirements are specifically identified in the PEP. To the extent the Contractor does not perform those requirements in accordance with the Statement of Work as amended to include annual work authorization plans (or similar documents specifying work scope), the FDO may reduce the fee determination. In the event that the Contractor's performance is considered unacceptable in any area of contract performance which is specified in the Performance Evaluation Plan, even if no weight or fee is specifically assigned to the particular performance area, the FDO may at his/her discretion determine the Contractor's overall performance to be unacceptable, and accordingly may withhold the entire award fee for the evaluation period.
D. Performance Evaluation Plan
(1) The Government shall establish unilaterally a Performance Evaluation Plan upon which the determination of award fee shall be based. Such Plan shall include the criteria to be considered under each area evaluated and the percentage of award fee available for each area. A copy of the Plan shall be provided to the Contractor 30 calendar days prior to the start of an evaluation period.
(2) The Performance Evaluation Plan will set forth the criteria upon which the Contractor will be evaluated for performance relating to any technical, schedule, management, and/or cost objectives selected for evaluation. Such criteria may be objective or subjective. The Plan shall also set forth a performance grading and fee conversion table establishing performance points and the percentage of available award fee earned for each performance point for outstanding, good, satisfactory, marginal, and unsatisfactory performance levels.
(3) The Performance Evaluation Plan may, consistent with the contract statement of work, be revised unilaterally by the Government at any time during the period of performance. Notification of such changes shall be provided to the Contractor at least 90 calendar days prior to the end of the evaluation period in which the change will apply and at least thirty (30) calendar days prior to the change becoming effective.
E. Contractor Self-Assessment
Following each evaluation period, the Contractor shall submit a self-assessment within 7 calendar days after the end of the period. This self-assessment shall address both the strengths and weaknesses of the Contractor's performance during the evaluation period, including the areas within the Business Management Oversight Process. Where deficiencies in performance are noted, the Contractor shall describe the actions planned or taken to correct such deficiencies and avoid their recurrence. The FDO will review the Contractor's self-assessment, if submitted, as part of their evaluation of the Contractor's management during the period. An unrealistic self-assessment will result in lower award fee determinations. The Contractor will not be penalized for a realistic self-assessment, although deficiencies noted by the Contractor may be reflected in the Government's evaluation. The self-assessment itself will not be the basis for the award fee determination.
F. Schedule for Award Determinations
The FDO shall issue the final award fee determination in accordance with the schedule set forth in the Performance Evaluation Plan. However, a determination must be made within 60 calendar days after the receipt by the Contracting Officer of the Contractor's self-assessment discussed in Paragraph E above, if required, or 75 calendar days after the end of the evaluation period. If the determination is delayed beyond that date, the Contractor shall be entitled to interest on the determined award fee amount at the rate established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on the payment date. This rate is referred to as the "Renegotiation Board Interest Rate," and is published in the Federal Register semiannually on or about January 1 and July 1. The interest on any late award fee determination amount will accrue daily and be compounded in 30-day increments inclusive from the first day after the schedule determination date through the actual date the determination is issued. That is, interest accrued at the end of any 30-day period will be added to the determined amount of award fee and be subject to interest if not paid in the succeeding 30-day period.
Note: This clause will not be applicable for FY97. In future years, the use of this clause will be subject to approval of the DOE Contracting Officer.
A. General
It is DOE's intent to have its facilities and laboratories operated in the most efficient and effective manner possible. To this end, the Contractor shall, in the performance of this contract, assess its operations and identify areas where efficiencies would bring cost reductions and savings to operations without adversely affecting the level of performance required by the contract.
The Contractor, to the maximum extent possible, will identify areas where efficiencies/streamlined work processes may result in cost reductions/savings. The Contractor will develop and submit Cost Savings Proposals (CSP) addressing such to the Contracting Officer for review. If accepted, the Contractor shall share in any net (Measurable, Near-Term) savings realized from accepted CSPs in accordance with the incentive sharing arrangement in paragraph G. below. Any CSP submitted pursuant to this clause shall be subject to cost and pricing data (reference Contract Clauses I.17, "Price Reduction for Defective Cost or Pricing Data"; I.18, "Price Reduction for Defective Cost or Pricing Data--Modifications"; I.19, "Subcontractor Cost or Pricing Data"; and I.20, "Subcontractor Cost or Pricing Data--Modifications"; of this contract.)
B. Definitions
"Measurable, Near-Term Savings" as used in this clause, mean cost savings that revert to DOE control and may be available for deobligation in the immediate fiscal year or that will become available for deobligation in the following fiscal year. Such savings may result from a specific cost reduction/savings effort which is broken out from other efforts and negotiated on a Cost Plus Incentive Fee (CPIF)/Fixed Price Incentive (FPI)/Firm Fixed Price (FFP) basis or may result directly from innovative new or changed designs, processes and/or methods initiated by the Contractor and applied to a specific project or program. Such new or changed designs, processes, and/or methods must demonstrate achievement of cost effectiveness in excess of that anticipated by the "expected performance" level set forth in the Statement of Work (Work Authorization Directive, Multi-Year Program Plan, or similar document). Measurable, Near-Term Savings are the net savings that result from the difference in the estimated cost of performing an effort/project as originally planned and the actual cost of performing that same effort/project using a revised plan intended to reduce costs, along with any Contractor's Development, Contractor's Implementation and administrative costs (Optional) + DOE costs (Optional) associated with the revised plan. Such savings must result in funding being returned to the direct control of DOE in a separate management reserve account. Savings resulting from formal or informal direction given by DOE will not be considered as Measurable, Near-Term savings for purposes of this clause and will not qualify for incentive sharing. Savings resulting from changes in the mission or routine reorganization of the Contractor due to changes in the budget will not be considered as Measurable, Near-Term Savings for the purposes of this clause and will not qualify for incentive sharing. Measurable, Near-Term Savings shall be limited, for purposes of the sharing rate(s) set forth in Paragraph G below, to a period not to exceed the current fiscal year in which they were initiated and the next fiscal year. In order to qualify for sharing, the savings must be susceptible to deobligation from the instant contract, whether or not such deobligation takes place.
"Contractor's Development Cost", as used here, includes, but is not necessarily limited to, the cost of up front planning, engineering, prototyping, and testing of a design, process or method.
"Contractor's Implementation Cost", as used here, includes, but is not necessarily limited to, the cost of tooling, facilities, documentation, etc. required to effect a design, process or method change once it has been tested and approved.
"DOE costs," as used in this clause, refer to those DOE costs that result directly from implementing the CSP, such as any net increases in the cost of testing, operations, maintenance, and logistics support. The term does not include the normal administrative costs of processing the CSP.
"Administrative Cost", as used here, includes, but is not necessarily limited to, the cost of developing the CSP (or similar cost reductions/savings proposal) and administering cost savings programs.
"Cost reduction" means the amount of the decrease in cost of performance, without deducting any Contractor's development or implementation costs, resulting from using the CRP on this contract.
C. Procedure for Submission of CSPs
(1) CSPs for Value Engineering (design/process/methods) type changes submitted by the Contractor should contain, at a minimum, the following:
(a) Current Method (Baseline) -- A verifiable description of the current scope of work, cost, and schedule to be impacted by the initiative and supporting documentation.
(b) New Method (Baseline) -- A verifiable description of the new cost, work scope, and schedule; how the initiative will be accomplished and supporting documentation.
(c) Feasibility Assessment -- A description and evaluation of the proposed initiative and benefits, risks, and impacts of implementation. This evaluation should include an assessment of the difference between the current baseline and proposed new method less implementation costs.
(2) CSPs for the establishment of stand alone CPIF/FPI/FFP programs not specifically related to Value Engineering (design/process/methods) type changes should contain, at a minimum, the following:
(a) Baseline Description -- A verifiable description of the current scope of work, cost, and schedule to be impacted by the initiative (must be discretely identifiable in the MYPPs).
(b) Proposed Contractual Arrangement -- A proposed contractual arrangement and the justification therefor.
(c) Estimated Cost and Supporting data -- A detailed cost estimate and supporting rationale. If the effort is proposed on an incentive basis, then minimum and maximum cost estimates must be included for any proposed sharing arrangements.
D. Evaluation and Decision
The Contractor shall perform a preliminary evaluation of each proposed cost reduction initiative and submit it for DOE approval. The Contractor may share in savings realized as a result of cost reduction initiatives implemented without prior DOE approval; however, any such sharing of savings shall be a unilateral decision by DOE and not subject to the contract clause of this contract entitled "Disputes - Alternate I (Clause I.65) or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
E. Calculation of Cost Savings
Estimated net savings shall be calculated by subtracting the total costs of the proposed CSP (New Method Costs + Contractor's Development Cost + Contractor's Implementation Costs + Administrative Costs [Optional] + DOE Costs [Optional]) from the total costs of the existing requirements.
F. Acceptance or Rejection of CSPs
The DOE Contracting Officer will notify the Contractor that a CSP will be accepted or rejected (or deferred) within 60 days of receipt.
The only CSPs that will be considered for acceptance are those that the Contractor can demonstrate will (1) result in a reduction in the total agreed upon estimated cost for authorized work in the sharing period, (2) not reappear as costs in subsequent periods, and (3) not result in any impairment of essential functions. Acceptance or rejection of the CSP is at the discretion of the Contracting Officer. The Contracting Officer's decision is not subject to the contract clause entitled "Disputes - Alternate I (Clause I.65) or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).
G. Sharing Rate
In general, if a CSP is accepted, the Contractor's share in net Measurable, Near-Term Savings shall not exceed 15% of the Measurable, Near-Term Savings realized by DOE during the defined sharing period. The Contractor agrees that not less than 15% of the Contractor's share of Measurable, Near Term savings shall be retained at the site to be distributed to those employees involved in identifying and/or achieving the cost reduction/savings. The specific share arrangement (targets, share lines, ceilings, etc.) for effort negotiated on an incentive basis will be set forth in the contractual document authorizing the effort.
H. Validation of Actual Savings
The DOE shall have the right to validate the actual costs of an accepted CSP, to determine the extent of actual Measurable, Near-Term Savings. If, in the opinion of the Contracting Officer, the actual Measurable, Near-Term Savings are significantly more or less than the estimated savings of the CSP or in the reduction of the estimated cost for the sharing period, the amount awarded under the CSP shall be adjusted. The Contracting Officer's decision on the significance of the actual savings and the adjusted fee amount are not subject to the contract clause entitled "Disputes - Alternate I" (Clause I.65) or otherwise subject to litigation under the Contract Disputes Act of 1978 (41 U.S.C. 601-613).
I. Relationship to Other Incentives
Only those benefits of an accepted CSP not rewardable under other clauses of this contract shall be rewarded under this clause.
J. Subcontracts
The Contractor may include an appropriate clause similar to this clause in any subcontract. In calculating any estimated net Measurable, Near-Term savings in a CSP under this contract, the Contractor's preparation, submission, testing, development, and implementation costs shall include any subcontractor's allowable costs, and any CSP incentive payments to a subcontractor clearly resulting from the acceptance of such CSP. The Contractor may choose any arrangement for subcontractor CSP incentive payments, provided that the payments shall not reduce the DOE's share of contract net Measurable, Near- Term Savings.
K. Termination
In the event of contract termination, this clause shall not apply. Termination settlements shall be in accordance with the contract clause entitled "Termination (Cost Reimbursement)" (Clause I.84).
The parties to this contract agree that the incentive fee arrangements under this contract which include incentive types (both cost and performance), number of expectations incentivized, amount available under the various incentives as well as the method for determining fees earned and method of payment are applicable to the existing work scope for the current fiscal year only (unless otherwise specifically stated). At a reasonable time prior to the Contracting Officer's unilateral establishment of the annual fee structure, the Government will examine the benefits received, if any, from the existing incentive fee arrangements and the mechanisms for implementation for effectiveness and ease of administration. The Government shall unilaterally determine if any or all of the incentive fees should continue at all, in part, or in their present form. At that time the Contracting Officer may enter into discussions with the Contractor to determine new or changed fee arrangements.
A. Conditional Payment of Fee or Incentives In order for the Contractor to receive a fee or profit payment or share of cost savings, in whole or in part, the following minimum requirements must be met and must have been performed at a satisfactory level. If the following conditions are not met and performed at a satisfactory level, the RL Manager may reduce the fee or profit payment or share of cost savings, in whole or in part, which has otherwise been determined to have been earned under the terms and conditions of this contract. Any determination under this clause is not subject to the contract clause entitled "Disputes - Alternate I" (Clause I-65) or otherwise subject to litigation under the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). This clause does not apply to any Base Fee included in the contract.
B. Minimum Requirements
(1) ES&H Program The Contractor shall develop, obtain DOE approval of, and implement a comprehensive ES&H Program across the appropriate ES&H functional areas. Such Program will be consistent with the annual ES&H Management Plan. The minimal performance requirements of the Program will be set forth in the DOE approved ES&H Management Plan. The Contractor must achieve the minimum performance requirements of the program in order to receive any otherwise earned fee, profit, or share of cost savings.
(2) Catastrophic Event If, in the performance of this contract, the Contractor should cause, through negligence or misconduct, a fatality or an event to occur that results in significant damage to the environment, and/or endangers the safety and health of workers and/or the public in excess of government (Federal, State and/or Local) regulated limits (if any), the Manager, Richland Operations Office, may reduce any otherwise earned fees (other than Base Fee,) in whole or in part.
(3) Specified Level of Performance The level of satisfactory performance associated with this contract is the completion of 76% or more of all individual performance expectations as set forth in Section J, Appendix D, or as modified during contract performance.
The evaluation of the Contractor's achievement of the level of performance shall be unilaterally determined by the Manager, RL. To the extent that the Contractor fails to achieve the above stipulated performance levels, the specific fee/incentive determination, may be reduced in whole or in part.
C. Cost Performance
1. In the case of a performance type fee/award fee/incentive fee, the specific work effort incentivized must be performed within the cost specified for it in the contract/modification which incorporates the incentivized effort. Further, the performance of such work shall not result in an adverse impact to the cost for all other unrelated work effort.
2. In the case of a specific cost savings type fee/award fee/incentive fee on a portion of the contract, the Contractor's performance of such work shall not result in an adverse impact to the cost for all other unrelated work effort. Such cost will be specific in the contract which incorporates the incentivized effort.
3. The Contractor's performance within the stipulated cost performance levels shall be determined by the RL Manager. To the extent that the Contractor fails to achieve the above stipulated cost performance levels, the associated fee/award fee/incentive fee determination may be reduced in whole, in part, or a negative fee may result.
A. Definition: For purposes of this clause, the word "fee" shall mean performance fee, award fee, base fee, or cost savings share.
B. If interim payments of fee are paid before the final determination of fee, those payments shall be provisional pending that final determination. Such provisional payments may be made at the discretion of the Contracting Officer on a monthly basis up to a maximum amount for the fiscal year not-to-exceed 60 percent of the performance fee pool.
C. DOE agrees to pay to the Contractor, at the discretion of the Contracting Officer, on a provisional basis an amount up to 10% of the annual performance fee pool in each of the first two calendar months of each Fiscal Year and 4% in each calendar month thereafter.
D. The final determination of fee will be made by the Contracting Officer or FDO, as appropriate, in accordance with the fee clauses of this contract. In the event that overpayment results from the payment of fee on a provisional basis, the Contractor shall reimburse such overpayment to the Government upon demand, payable with interest in accordance with the contract clause entitled "Interest" (Clause I.61).
In accordance with the clause entitled, "Contractor Use of Mandatory Sources of Supply" (Clause I.11), the following are to be purchased from the Committee for Purchase from People Who are Blind or Severely Disabled or from the Defense Logistics Agency, General Services Administration, or the Department of Veterans Affairs:
(The Government will identify these items following contract award.)
NOTE: Not applicable for FY 97. In future years, the use of this clause will be subject to approval of the DOE Contracting Officer.
Fluor Daniel Hanford and its Major Subcontractors will be rewarded for net cost savings benefits under the Cost Savings Program only if it is not rewardable under other clauses of this contract.
Fluor Daniel Hanford will establish a merit based employee fee sharing program for the prime contract and its Major Subcontractors. The fee sharing process will be described in a sitewide procedure. Fluor Daniel Hanford and its Major Subcontractors will set aside five percent of their earned fee to be provided to their employees as stipulated in the sitewide procedure.
The information contained in Clause H.52 is currently considered company proprietary. DOE and FDH are working to clear the information within 60-90 days of public release of the Contract (August 19, 1996).
For employees of the Contractor and its Major Subcontractors who receive corporate fringe benefits, the allowable costs of employee burdens and benefits will not exceed DELETED % as adjusted for changes in statutory payroll tax and insurance requirements.
For the base contract period and any extension thereof, allocations of home or corporate office general and administrative (G&A) expenses are unallowable for the Prime Contractor and Major Subcontractor. Such indirect costs may only be allowable when a directly benefiting relationship to the DOE program is demonstrated and approved by the Contracting Officer.
The following are ceiling indirect cost rates for Rust Federal Services Hanford during the transition period: home office fringe DELETED %, WTS fringe/overhead DELETED %, and SG&A DELETED%.
The following is a ceiling indirect cost rate for DynCorp during the transition period: G&A DELETED %.
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