48 CFR Part 904 — Administrative Matters

PART 904—ADMINISTRATIVE MATTERS Authority: 42 U.S.C. 7101 et seq. et seq. Source: 49 FR 11941, Mar. 28, 1984, unless otherwise noted. Subpart 904.4—Safeguarding Classified Information Within Industry 904.401 Definitions. Access authorization Applicant Classified information Classified National Security Information Counterintelligence Facility clearance Restricted data Review or background review [67 FR 14875, Mar. 28, 2002, as amended at 74 FR 23124, May 18, 2009; 89 FR 89747, Nov. 13, 2024] 904.402 General. (b) The basis of Department of Energy's (DOE) industrial security requirements is the Atomic Energy Act of 1954, as amended, the DOE Organization Act of 1977, as amended, and Executive Orders 13526 and 12829. (3) DOE has established a counterintelligence program. All DOE elements and contractors managing DOE-owned or leased facilities that require access authorizations, should undertake the necessary precautions to ensure that DOE and covered contractor personnel, programs and resources are properly protected from foreign intelligence threats and activities. (4) DOE security regulations concerning restricted data are codified at 10 CFR part 1045. (5) Section 234B of the Atomic Energy Act (42 U.S.C. 2282b) requires that DOE contracts include a clause providing for appropriate reductions in fees or amounts paid to the contractor under the contract in the event of violations of any rule, regulation, or order relating to the safeguarding or security of Restricted Data or other classified information. The clause is required for all DOE prime contracts that involve any possibility of contractor access to Restricted Data or other classified information. The clause specifies various degrees of violations and the amount of reduction attributable to each degree. The clause at 952.242-71, Conditional Payment of Fee, Profit, or Other Incentives, shall be used to comply with 42 U.S.C. 2282b (unless the clause at 970.5215-3, Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts is used). See 942.71(d) for the clause's prescription. (e) Part 927 contains policies and procedures for safeguarding classified information in patent applications and patents. [89 FR 89747, Nov. 13, 2024] 904.404 Solicitation provision and contract clause. (d) The security clauses to be used in DOE contracts are found at 952.204. They are: (1) Security, 952.204-2. (2) Classification/Declassification, 952.204-70. (3) Sensitive foreign nation controls, 952.204-71. (4) Disclosure of information, 952.204-72. (5) Facility Clearance, 952.204-73. (6) Computer Security, 952.204-77. (7) Counterintelligence. [49 FR 11941, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended at 54 FR 27646, June 30, 1989; 59 FR 24358, May 11, 1994; 67 FR 14871, Mar. 28, 2002; 67 FR 14876, Mar. 28, 2002; 68 FR 68777, Dec. 10, 2003; 71 FR 40885, July 19, 2006; 74 FR 23124, May 18, 2009; 74 FR 36361, July 22, 2009; 76 FR 7690, Feb. 11, 2011; 89 FR 89747, Nov. 13, 2024] Subpart 904.6 [Reserved] Subpart 904.7—Contractor Records Retention 904.702 Applicability. (b) Contracts containing the Integration of Environment, Safety and Health into Work Planning and Execution Radiation Protection and Nuclear Criticality Preservation of Individual Occupational Radiation Exposure Records Access to and Ownership of Records [79 FR 56285, Sept. 19, 2014] Subpart 904.8—Government Contract Files 904.803 Contents of contract files. (a) (29) The record copy of the Individual Acquisition Action Report shall be included in the file section containing procurement management reports. [49 FR 11941, Mar. 28, 1984, as amended at 74 FR 36361, July 22, 2009] 904.804 Closeout of contract files. 904.804-1 Closeout by the office administering the contract. (a) The Head of the Contracting Activity (HCA) shall ensure that necessary procedures and milestone schedules are established to meet the requirements of 48 CFR 4.804-1, and that resources are applied to effect the earliest practicable deobligation of excess funds and the timely closeout of all contract files which are physically completed or otherwise eligible for closeout action. (b) Quick closeout procedures for cost reimbursable and other than firm fixed price type contracts are covered under 48 CFR 42.708. [49 FR 11941, Mar. 28, 1984, as amended at 62 FR 53757, Oct. 16, 1997; 74 FR 36361, July 22, 2009; 76 FR 7690, Feb. 11, 2011] 904.805 Storage, handling, and disposal of contract files. Contract files shall be disposed of in accordance with applicable DOE Order 243.1. (See current version.) [74 FR 36361, July 22, 2009] Subpart 904.70—Facility Clearance 904.7000 Scope of subpart. This subpart sets forth the Department of Energy policies and procedures regarding Facility Clearances for contractors and subcontractors that require access to classified information or special nuclear material. A Facility Clearance is based upon a determination that satisfactory safeguards and security measures are carried out for classified activities being performed at the facility and upon a favorable foreign ownership, control, or influence (FOCI) determination. [67 FR 14876, Mar. 28, 2002] 904.7001 Applicability. The provisions of this subpart shall apply to all offeror(s), contractors, and subcontractors who will or do have access to classified information or a significant quantity of special nuclear material. [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 76 FR 7690, Feb. 11, 2011] 904.7002 Definitions. Contract Contracting officer Contractor Facility clearance Foreign interest (1) Foreign government or foreign government agency or instrumentality thereof; (2) Any form of business enterprise organized under the laws of any country other than the United States or its possessions; (3) Any form of business enterprise organized or incorporated under the laws of the U.S., or a State or other jurisdiction within the U.S. which is owned, controlled, or influenced by a foreign government, agency, firm, corporation, or person; or (4) Any person who is not a U.S. citizen. Foreign ownership, control, or influence Special nuclear material [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 67 FR 14876, Mar. 28, 2002; 74 FR 36361, July 22, 2009; 76 FR 7690, Feb. 11, 2011] 904.7003 Disclosure of foreign ownership, control, or influence. (a) If a contract requires a contractor to have a Facility Clearance, DOE must determine whether the contractor is or may be subject to foreign ownership, control or influence before a contract can be awarded. (b) If, during the performance of a contract, the contractor comes under FOCI, then the DOE must determine whether a continuation of the Facility Clearance may pose an undue risk to the common defense and security through the possible compromise of that information or material. If the DOE determines that such a threat or potential threat exists, the contracting officer shall consider the alternatives of negotiating an acceptable method of isolating the foreign interest which owns, controls, or influences the contractor or terminating the contract. (c) It is essential for the DOE to obtain information about FOCI which is sufficient to help the Department determine whether award of a contract to a person or firm, or the continued performance of a contract by a person or firm, may pose undue risk to the common defense and security. Therefore, the provision specified at 952.204-73 Facility Clearance, shall be included in solicitations that involve offeror(s) or contractors that are subject to 904.7001. (d) The contracting officer shall not award or extend any contract subject to this subpart, exercise any options under a contract, modify any contracts subject to this subpart, or approve or consent to a subcontract subject to this subpart unless— (1) The contractor provides the information required by the solicitation provision at 952.204-73 Facility Clearance, and (2) The contracting officer has made a positive determination in accordance with 904.7004. [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 62 FR 42073, Aug. 5, 1997; 67 FR 14876, Mar. 28, 2002; 74 FR 36362, July 22, 2009] 904.7004 Findings, determination, and contract award or termination. (a) Based on the information disclosed by the offeror(s) or contractor, and after consulting with the DOE Office of Environment, Health, Safety and Security, the contracting officer must determine that award of a contract to an offeror(s) or continued performance of a contract by a contractor will not pose an undue risk to the common defense and security.

The contracting officer need not prepare a separate finding and determination addressing FOCI; however, the memorandum of negotiation shall include a discussion of the applicability of this subpart and the resulting determination. (b) In those cases where FOCI does exist, and the DOE determines that an undue risk to the common defense and security may exist, the offeror(s) or contractor shall be requested to propose within a prescribed period of time a plan of action to avoid or mitigate the foreign influences by isolation of the foreign interest. (c) The types of plans that a contractor can propose are: measures which provide for physical or organizational separation of the facility or organizational component containing the classified information or special nuclear material; modification or termination of agreements with foreign interests; diversification or reduction of foreign source income; assignment of specific security duties and responsibilities to board members or special executive level committees; or any other actions to negate or reduce FOCI to acceptable levels. The plan of action may vary with the type of foreign interest involved, degree of ownership, and information involved so that each plan must be negotiated on a case by case basis. If the offeror(s) or contractor and the DOE cannot negotiate a plan of action that isolates the offeror(s) or contractor from FOCI satisfactory to the DOE, then the offeror(s) shall not be considered for contract award and affected existing contracts with a contractor shall be terminated. [49 FR 11941, Mar. 28, 1984, as amended at 59 FR 9104, Feb. 25, 1994; 89 FR 89747, Nov. 13, 2024] Subpart 904.71—Prohibition on Contracting (National Security Program Contracts) Source: 58 FR 59684, Nov. 10, 1993, unless otherwise noted. 904.7100 Scope of subpart. This subpart implements section 836 of the Fiscal Year 1993 Defense Authorization Act (Pub. L. 102-484) which prohibits the award of a Department of Energy contract under the national security program to an entity controlled by a foreign government if it is necessary for that entity to be given access to information in a proscribed category of information in order to perform the contract. [58 FR 59684, Nov. 10, 1993, as amended at 67 FR 14876, Mar. 28, 2002] 904.7101 Definitions. Effectively owned or controlled Entity controlled by a foreign government Foreign government Proscribed information (1) Top Secret information; (2) Communications Security (COMSEC) information, except classified keys used to operate secure telephone units (STU IIIs); (3) Restricted Data, as defined in the Atomic Energy Act of 1954, as amended; (4) Special Access Program (SAP) information; or (5) Sensitive Compartmented Information (SCI). [58 FR 59684, Nov. 10, 1993, as amended at 74 FR 36362, July 22, 2009] 904.7102 Waiver by the Secretary. (a) 10 U.S.C. 2536(b)(1)(A) allows the Secretary of Energy to waive the prohibition on the award of contracts set forth in 10 U.S.C. 2536(a) if the Secretary determines that a waiver is essential to the national security interests of the United States. Any request for a waiver regarding award of a contract or execution of a novation agreement shall address— (1) Identification of the proposed awardee and description of the control by a foreign government; (2) Description of the procurement and performance requirements; (3) Description of why a waiver is essential to the national security interests of the United States; (4) The availability of other entities to perform the work; and (5) A description of alternate means available to satisfy the requirement. (b) 10 U.S.C. 2536(b)(1)(B) allows the Secretary of Energy to waive the prohibition on the award of contracts set forth in 10 U.S.C. 2536(a) for environmental restoration, remediation or waste management contracts at a DOE facility if the Secretary determines that a waiver will advance the environmental restoration, remediation or waste management objectives of DOE; will not harm the national security interests of the United States; and may be authorized because the entity to which the contract is to be awarded is controlled by a foreign government with which the Secretary is authorized to exchange Restricted Data under Section 144.c. of the Atomic Energy Act of 1954 (42 U.S.C. 2164(c)). Any request for such a waiver regarding award of a contract or execution of a novation agreement shall address— (1) Identification of the proposed awardee and description of the control by a foreign government; (2) Description of the procurement and performance requirements; (3) A description of how the Department's environmental restoration, remediation, or waste management objectives will be advanced; (4) A description of why a waiver will not harm the national security interests of the United States; (5) The availability of other entities to perform the work; (6) A description of alternate means available to satisfy the requirement; and (7) Evidence that the entity to which a contract is to be awarded is controlled by a foreign government with which the Secretary is authorized to exchange Restricted Data under Section 144.c. of the Atomic Energy Act of 1954 (42 U.S.C. 2164(c)). (c) Any request for a waiver under paragraph (a) or (b) of this section shall be forwarded by the Head of the Contracting Activity to the Office of Contract Management within the Headquarters procurement organization. (d) If the Secretary decides to grant a waiver for an environmental restoration, remediation, or waste management contract, the Secretary shall notify Congress of this decision. The contract may be awarded or the novation agreement executed only after the end of the 45-day period beginning on the date notification is received by the Senate Committee on Armed Services and the House Committee on National Security. (e) Any request for a waiver under this subpart shall be accompanied by the information required by the clause at 952.204-73, Facility Clearance. [67 FR 14876, Mar. 28, 2002, as amended at 74 FR 36362, July 22, 2009; 89 FR 89748, Nov. 13, 2024] 904.7103 Solicitation provision and contract clause. (a) Any solicitation, including those under simplified acquisition procedures, for a contract under the national security program which will require acess to proscribed information shall include the provision at 952.204-73, Facility Clearance. (b) Any contract, including those awarded under simplified acquisition procedures, under the national security program which require access to proscribed information to enable performance, shall include the clause at 952.204-2, Security. [58 FR 59684, Nov. 10, 1993, as amended at 61 FR 21976, May 13, 1996; 62 FR 42074, Aug. 5, 1997; 67 FR 14877, Mar. 28, 2002; 74 FR 36362, July 22, 2009] Subpart 904.72—Public Affairs Source: 65 FR 81006, Dec. 22, 2000, unless otherwise noted. 904.7200 Purpose. It is the policy of the Department of Energy to provide to the public and the news media, accurate and timely unclassified information on Departmental policies, programs, and activities. The Department's contractors share the responsibility for releasing unclassified information related to efforts under their contracts and must coordinate the release of unclassified information with the cognizant contracting officer and appropriate DOE Public Affairs personnel. 904.7201 Contract clause. The contracting officer shall insert the clause at 952.204-75, Public Affairs, in solicitations and contracts that require the contractor to release unclassified information related to efforts under its contract regarding DOE policies, programs, and activities. [49 FR 11941, Mar. 28, 1984, as amended at 74 FR 36362, July 22, 2009] Subpart 904.73—Department of Energy Directives Source: 89 FR 89748, Nov. 13, 2024, unless otherwise noted. 904.7300 General. The contractor is required to comply with the requirements of applicable Federal, State, and local laws and regulations, unless relief has been granted by the appropriate authority. Additionally, the Department of Energy (DOE) Directives Program is a system of instructions, including orders, notices, manuals, guides, and standards, for DOE elements. In certain circumstances, DOE will apply requirements contained in these directives to a contract. In these circumstances, program and requirements personnel will be responsible for identifying the requirements that are applicable to the contract and for providing a list of applicable requirements to the Contracting Officer for inclusion in the contract. 904.7301 Contract clause. The Contracting Officer shall insert the clause at 952.204-78, DOE Directives, in non-management and operating contracts where the work will be performed on a DOE site and the contract will be subject to the requirements of DOE Directives. This includes information technology or cybersecurity work, as well as other work program officials identify as requiring the clause.

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