48 CFR Part 2009 — Contractor Qualifications

PART 2009—CONTRACTOR QUALIFICATIONS Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C 418(b). Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted. Subpart 2009.1—Responsible Prospective Contractors 2009.100 NRC policy. (a) It is NRC policy that only competitively awarded contracts shall be placed with an individual who was employed by the NRC within two years from the date of the Request for Procurement Action. This policy also applies to: (1) The noncompetitive award of contracts to organizations where former NRC employees have dominant ownership interests in the organization, such as partners or majority stockholders; (2) The noncompetitive award of contracts to organizations where former NRC employees have dominant management interests, such as principal officers, or where the organization is predominantly staffed by former NRC employees; and (3) The noncompetitive award of contracts, task orders or other NRC work assignments where the particular assignment is to be performed by designated former NRC employees, including principal investigators, key personnel, and others who will perform more than a nominal amount of the work in question. (b) The following procurement actions are considered noncompetitive for the purposes of this policy: (1) Contracts awarded noncompetitively under the Small Business Administration's 8(a) Program; (2) Individual task orders if the former employee was not identified as “key personnel” in a proposal which was evaluated under competitive procedures; (3) Unsolicited proposals; (4) Subcontracts that require review for the purpose of granting consent under NRC prime contracts. (c) The term NRC employee (1) The contract arises directly out of the individual's activity as a special employee; (2) The individual is in a position to influence the award of the contract; or (3) The Contracting Officer determines that another conflict of interest exists. (d) A justification explaining why it is in the best interest of the Government to contract with an individual or firm described in paragraphs (a) and (b) of this section on a noncompetitive basis may be approved by the Senior Procurement Executive after consulting with the Executive Director for Operations. This is in addition to any justification and approvals which may be required by the FAR for use of other than full and open competition. (e) Nothing in this policy statement relieves former employees from obligations prescribed by law, such as 18 U.S.C. 207, Restrictions on Former Officers, Employees, and Elected Officials of the Executive and Legislative Branches. 2009.105-70 Contract provisions. The contracting officer shall insert the following provisions in all solicitations: (a) Section 2052.209-70 Current/Former Agency Employee Involvement. Subpart 2009.4—Debarment, Suspension, and Ineligibility 2009.403 Definitions. As used in 2009.4: Debarring official Suspending official 2009.404 Consolidated list of parties excluded from Federal procurement or non-procurement programs. The contracting officer responsible for the contract affected by the debarment or suspension shall perform the actions required by FAR 9.404(c) (1) through (6). 2009.405 Effect of listing. Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency's programs and prevent accomplishment of mission requirements. The Senior Procurement Executive is authorized to make the determinations under FAR 9.405. Requests for these determinations must be submitted from the Head of the Contracting Activity, through the Director, Office of Administration, to the Senior Procurement Executive. 2009.405-1 Continuation of current contracts. The Head of the Contracting Activity is authorized to make the determination to continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, or proposed for debarment in accordance with FAR 9.405-1. 2009.405-2 Restrictions on subcontracting. The Head of the Contracting Activity is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2. 2009.406 Debarment. 2009.406-3 Procedures. (a) Investigation and referral. (2) To the extent the Head of the Contracting Activity believes that sufficient grounds for debarment exist, independent of any pending investigation by the Inspector General, the Head of the Contracting Activity shall immediately forward the case, without reference to any pending investigation, and a recommendation for action to the Senior Procurement Executive for review. In such circumstances, the Head of the Contracting Activity will take no additional action in regard to a specific matter of misconduct referred to the Inspector General prior to consulting with the Inspector General. (b) Decision-making process. (c) Fact-finding proceedings. 2009.407 Suspension. 2009.407-3 Procedures. (a) Investigation and referral. (2) To the extent the Head of the Contracting Activity believes that sufficient grounds for debarment exist, independent of any pending investigation by the Inspector General, the Head of the Contracting Activity shall immediately forward the case, without reference to any pending investigation, and a recommendation for action to the Senior Procurement Executive for review. In such circumstances, the Head of the Contracting Activity will take no additional action in regard to a specific matter of misconduct referred to the Inspector General prior to consulting with the Inspector General. (b) Decision-making process. 2009.470 Appeals. A debarred or suspended contractor may appeal the debarring/suspending official's decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the Executive Director for Operations. A copy of the notice of appeal must be furnished to the debarring/suspending official. Subpart 2009.5—Organizational Conflicts of Interest 2009.500 Scope of subpart. In accordance with 42 U.S.C. 2210a., NRC acquisitions are processed in accordance with 2009.570, which takes precedence over FAR 9.5 with respect to organizational conflicts of interest. Where non-conflicting guidance appears in FAR 9.5, that guidance must be followed. 2009.570 NRC organizational conflicts of interest. 2009.570-1 Scope of policy. (a) It is the policy of NRC to avoid, eliminate, or neutralize contractor organizational conflicts of interest. The NRC achieves this objective by requiring all prospective contractors to submit information describing relationships, if any, with organizations or persons (including those regulated by the NRC) which may give rise to actual or potential conflicts of interest in the event of contract award. (b) Contractor conflict of interest determinations cannot be made automatically or routinely. The application of sound judgment on virtually a case-by-case basis is necessary if the policy is to be applied to satisfy the overall public interest. It is not possible to prescribe in advance a specific method or set of criteria which would serve to identify and resolve all of the contractor conflict of interest situations that might arise. However, examples are provided in the regulations in this chapter to guide application of this policy guidance. The ultimate test is as follows: Might the contractor, if awarded the contract, be placed in a position where its judgment may be biased, or where it may have an unfair competitive advantage? (c) The conflict of interest rule contained in this subpart applies to contractors and offerors only. Individuals or firms who have other relationships with the NRC (e.g., parties to a licensing proceeding) are not covered by the regulations in this chapter. This rule does not apply to the acquisition of consulting services through the personnel appointment process. NRC agreements with other Govern ment agencies, international organizations, or state, local, or foreign Governments. Separate procedures for avoiding conflicts of interest will be employed in these agreements, as appropriate. 2009.570-2 Definitions. Affiliates Contract Contractor Evaluation activities Offeror prospective contractor Organizational conflicts of interest (1) May diminish its capacity to give impartial, technically sound, objective assistance and advice, or may otherwise result in a biased work product; or (2) May result in its being given an unfair competitive advantage. Potential conflict of interest potential conflict of interest (1) Merit investigation before contract award to ascertain whether award would give rise to an actual conflict; or (2) Must be reported to the contracting officer for investigation if they arise during contract performance. Research Subcontractor Technical consulting and management support services 2009.570-3 Criteria for recognizing contractor organizational conflicts of interest. (a) General. (i) Are there conflicting roles which might bias an offeror's or contractor's judgment in relation to its work for the NRC? (ii) May the offeror or contractor be given an unfair competitive advantage based on the performance of the contract? (2) NRC's ultimate determination that organizational conflicts of interest exist will be made in light of common sense and good business judgment based upon the relevant facts. While it is difficult to identify and to prescribe in advance a specific method for avoiding all of the various situations or relationships that might involve potential organizational conflicts of interest, NRC personnel will pay particular attention to proposed contractual requirements that call for the rendering of advice, consultation or evaluation activities, or similar activities that directly lay the groundwork for the NRC's decisions on regulatory activities, future procurements, and research programs. Any work performed at an applicant or licensee site will also be closely scrutinized by the NRC staff. (b) Situations or relationships. (1) The offeror or contractor shall disclose information that may give rise to organizational conflicts of interest under the following circumstances. The information may include the scope of work or specification for the requirement being performed, the period of performance, and the name and telephone number for a point of contact at the organization knowledgeable about the commercial contract. (i) Where the offeror or contractor provides advice and recommendations to the NRC in the same technical area where it is also providing consulting assistance to any organization regulated by the NRC. (ii) Where the offeror or contractor provides advice to the NRC on the same or similar matter on which it is also providing assistance to any organization regulated by the NRC. (iii) Where the offeror or contractor evaluates its own products or services, or has been substantially involved in the development or marketing of the products or services of another entity. (iv) Where the award of a contract would result in placing the offeror or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC, or would result in an unfair competitive advantage for the offeror or contractor. (v) Where the offeror or contractor solicits or performs work at an applicant or licensee site while performing work in the same technical area for the NRC at the same site. (2) The contracting officer may request specific information from an offeror or contractor or may require special contract clauses such as provided in 2009.570-5(b) in the following circumstances: (i) Where the offeror or contractor prepares specifications that are to be used in competitive procurements of products or services covered by the specifications. (ii) Where the offeror or contractor prepares plans for specific approaches or methodologies that are to be incorporated into competitive procurements using the approaches or methodologies. (iii) Where the offeror or contractor is granted access to information not available to the public concerning NRC plans, policies, or programs that could form the basis for a later procurement action. (iv) Where the offeror or contractor is granted access to proprietary information of its competitors. (v) Where the award of a contract might result in placing the offeror or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC or might result in an unfair competitive advantage for the offeror or contractor. (c) Policy application guidance. (1)(i) Example. (ii) Guidance. (2)(i) Example. (ii) Guidance. (3)(i) Example. (ii) Guidance. (4)(i) Example. (ii) Guidance. (5)(i) Example. (ii) Guidance. (6)(i) Example. (ii) Guidance. (7)(i) Example. (ii) Guidance. (8)(i) Example. (ii) Guidance. (9)(i) Example. (ii) Guidance. (d) Other considerations. (2) It is not relevant that the contractor has the professional reputation of being able to resist temptations which arise from organizational conflicts of interest, or that a follow-on procurement is not involved, or that a contract is awarded on a competitive or a sole source basis. 2009.570-4 Representation. (a) The following procedures are designed to assist the NRC contracting officer in determining whether situations or relationships exist which may constitute organizational conflicts of interest with respect to a particular offeror or contractor. The procedures apply to small purchases meeting the criteria stated in the following paragraph (b) of this section. (b) The organizational conflicts of interest representation provision at 2052.209-71 must be included in solicitations and contracts resulting from unsolicited proposals. The contracting officer must also include this provision for task orders and contract modifications for new work for: (1) Evaluation services or activities; (2) Technical consulting and management support services; (3) Research; and (4) Other contractual situations where special organizational conflicts of interest provisions are noted in the solicitation and would be included in the resulting contract. This representation requirement also applies to all modifications for additional effort under the contract except those issued under the “Changes” clause. Where, however, a statement of the type required by the organizational conflicts of interest representation provisions has previously been submitted with regard to the contract being modified, only an updating of the statement is required. (c) The offeror may, because of actual or potential organizational conflicts of interest, propose to exclude specific kinds of work contained in a RFP unless the RFP specifically prohibits the exclusion. Any such proposed exclusion by an offeror will be considered by the NRC in the evaluation of proposals. If the NRC considers the proposed excluded work to be an essential or integral part of the required work and its exclusion would be to the detriment of the competitive posture of the other offerors, the NRC shall reject the proposal as unacceptable. (d) The offeror's failure to execute the representation required by paragraph (b) of this section with respect to an invitation for bids is considered to be a minor informality. The offeror will be permitted to correct the omission. 2009.570-5 Contract clauses. (a) General contract clause. (b) Other special contract clauses. (1) Hardware exclusion clauses which prohibit the acceptance of production contracts following a related non-production contract previously performed by the contractor; (2) Software exclusion clauses; (3) Clauses which require the contractor (and certain of its key personnel) to avoid certain organizational conflicts of interest; and (4) Clauses which provide for protection of confidential data and guard against its unauthorized use. 2009.570-6 Evaluation, findings, and contract award. The contracting officer shall evaluate all relevant facts submitted by an offeror and other relevant information. After evaluating this information against the criteria of 2009.570-3, the contracting officer shall make a finding of whether organizational conflicts of interest exist with respect to a particular offeror. If it has been determined that real or potential conflicts of interest exist, the contracting officer shall: (a) Disqualify the offeror from award; (b) Avoid or eliminate such conflicts by appropriate measures; or (c) Award the contract under the waiver provision of 2009.570-9. 2009.570-7 Conflicts identified after award. If potential organizational conflicts of interest are identified after award with respect to a particular contractor and the contracting officer determines that conflicts do exist and that it would not be in the best interest of the Government to terminate the contract, as provided in the clauses required by 2009.570-5, the contracting officer shall take every reasonable action to avoid, eliminate, or, after obtaining a waiver in accordance with 2009.570-9, neutralize the effects of the identified conflict. 2009.570-8 Subcontracts. The contracting officer shall require offerors and contractors to submit a representation statement from all subcontractors (other than a supply subcontractor) and consultants performing services in excess of $10,000 in accordance with 2009.570-4(b). The contracting officer shall require the contractor to include contract clauses in accordance with 2009.570-5 in consultant agreements or subcontracts involving performance of work under a prime contract. 2009.570-9 Waiver. (a) The contracting officer determines the need to seek a waiver for specific contract awards with the advice and concurrence of the program office director and legal counsel. Upon the recommendation of the Senior Procurement Executive, and after consultation with legal counsel, the Executive Director for Operations may waive the policy in specific cases if he determines that it is in the best interest of the United States to do so. (b) Waiver action is strictly limited to those situations in which: (1) The work to be performed under contract is vital to the NRC program; (2) The work cannot be satisfactorily performed except by a contractor whose interests give rise to a question of conflict of interest. (3) Contractual and/or technical review and surveillance methods can be employed by the NRC to neutralize the conflict. (c) The justification and approval documents for any waivers must be placed in the NRC Public Document Room. 2009.570-10 Remedies. In addition to other remedies permitted by law or contract for a breach of the restrictions in this subpart or for any intentional misrepresentation or intentional nondisclosure of any relevant interest required to be provided for this section, the NRC may debar the contractor from subsequent NRC contracts.

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