[Code of Federal Regulations]
[Title 48, Volume 5]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR952.204-73]

[Page 382-384]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                     CHAPTER 9--DEPARTMENT OF ENERGY
 
Sec. 952.204-73  Facility clearance.

    As prescribed in 904.404(d)(5), insert the following provision in 
all solicitations which require the use of Standard Form 328, 
Certificate Pertaining to Foreign Interests for contracts or 
subcontracts subject to the provisions of 904.70.

                      Facility Clearance (MAY 2002)

                                 Notices

    Section 2536 of title 10, United States Code, prohibits the award of 
a contract under a 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 unless a waiver is granted by the Secretary of 
Energy. In addition, a Facility Clearance and foreign ownership, control 
and influence (FOCI) information are required when the contract or 
subcontract to be awarded is expected to require employees to have 
access authorizations.
    Offerors who have either a Department of Defense or a Department of 
Energy Facility Clearance generally need not resubmit the following 
foreign ownership information unless specifically requested to do so. 
Instead, provide your DOE Facility Clearance code or your DOD assigned 
commercial and government entity (CAGE) code. If uncertain, consult the 
office which issued this solicitation.
    (a) Use of Certificate Pertaining to Foreign Interests, Standard 
Form 328.
    (1) The contract work anticipated by this solicitation will require 
access to classified information or special nuclear material. Such 
access will require a Facility Clearance for the Contractor organization 
and access authorizations (security clearances) for Contractor personnel 
working with the classified information or special nuclear material. To

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obtain a Facility Clearance the offeror must submit a Certificate 
Pertaining to Foreign Interests, Standard Form 328, and all required 
supporting documents to form a complete Foreign Ownership, Control or 
Influence (FOCI) Package.
    (2) Information submitted by the offeror in response to the Standard 
Form 328 will be used solely for the purposes of evaluating foreign 
ownership, control or influence and will be treated by DOE, to the 
extent permitted by law, as business or financial information submitted 
in confidence.
    (3) Following submission of a Standard Form 328 and prior to 
contract award, the Contractor shall immediately submit to the 
Contracting Officer written notification of any changes in the extent 
and nature of FOCI which could affect the offeror's answers to the 
questions in Standard Form 328. Following award of a contract, the 
Contractor must immediately submit to the cognizant security office 
written notification of any changes in the extent and nature of FOCI 
which could affect the offeror's answers to the questions in Standard 
Form 328. Notice of changes in ownership or control which are required 
to be reported to the Securities and Exchange Commission, the Federal 
Trade Commission, or the Department of Justice must also be furnished 
concurrently to the cognizant security office.
    (b) Definitions.
    (1) Foreign Interest means any of the following:
    (i) A foreign government, foreign government agency, or 
representative of a foreign government;
    (ii) Any form of business enterprise or legal entity organized, 
chartered or incorporated under the laws of any country other than the 
United States or its possessions and trust territories; and
    (iii) Any person who is not a citizen or national of the United 
States.
    (2) Foreign Ownership, Control, or Influence (FOCI) means the 
situation where the degree of ownership, control, or influence over a 
Contractor by a foreign interest is such that a reasonable basis exists 
for concluding that compromise of classified information or special 
nuclear material may result.
    (c) Facility Clearance means an administrative determination that a 
facility is eligible to access, produce, use or store classified 
information, or special nuclear material. A Facility Clearance is based 
upon a determination that satisfactory safeguards and security measures 
are carried out for the activities being performed at the facility. It 
is DOE policy that all Contractors or Subcontractors requiring access 
authorizations be processed for a Facility Clearance at the level 
appropriate to the activities being performed under the contract. 
Approval for a Facility Clearance shall be based upon:
    (1) A favorable foreign ownership, control, or influence (FOCI) 
determination based upon the Contractor's response to the ten questions 
in Standard Form 328 and any required, supporting data provided by the 
Contractor;
    (2) A contract or proposed contract containing the appropriate 
security clauses;
    (3) Approved safeguards and security plans which describe protective 
measures appropriate to the activities being performed at the facility;
    (4) An established Reporting Identification Symbol code for the 
Nuclear Materials Management and Safeguards Reporting System if access 
to nuclear materials is involved;
    (5) A survey conducted no more than 6 months before the Facility 
Clearance date, with a composite facility rating of satisfactory, if the 
facility is to possess classified matter or special nuclear material at 
its location;
    (6) Appointment of a Facility Security Officer, who must possess or 
be in the process of obtaining an access authorization equivalent to the 
Facility Clearance; and, if applicable, appointment of a Materials 
Control and Accountability Representative; and
    (7) Access authorizations for key management personnel who will be 
determined on a case-by-case basis, and must possess or be in the 
process of obtaining access authorizations equivalent to the level of 
the Facility Clearance.
    (d) A Facility Clearance is required prior to the award of a 
contract requiring access to classified information and the granting of 
any access authorizations under a contract. Prior to award of a 
contract, the DOE must determine that award of the contract to the 
offeror will not pose an undue risk to the common defense and security 
as a result of its access to classified information or special nuclear 
material in the performance of the contract. The Contracting Officer may 
require the offeror to submit such additional information as deemed 
pertinent to this determination.
    (e) A Facility Clearance is required even for contracts that do not 
require the Contractor's corporate offices to receive, process, 
reproduce, store, transmit, or handle classified information or special 
nuclear material, but which require DOE access authorizations for the 
Contractor's employees to perform work at a DOE location. This type 
facility is identified as a non-possessing facility.
    (f) Except as otherwise authorized in writing by the Contracting 
Officer, the provisions of any resulting contract must require that the 
contractor insert provisions similar to the foregoing in all 
subcontracts and purchase orders. Any Subcontractors requiring access 
authorizations for access to classified information or special nuclear 
material shall

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be directed to provide responses to the questions in Standard Form 328, 
Certificate Pertaining to Foreign Interests, directly to the prime 
contractor or the Contracting Officer for the prime contract.

  Notice to Offerors--Contents Review (Please Review Before Submitting)

    Prior to submitting the Standard Form 328, required by paragraph 
(a)(1) of this clause, the offeror should review the FOCI submission to 
ensure that:
    (1) The Standard Form 328 has been signed and dated by an authorized 
official of the company;
    (2) If publicly owned, the Contractor's most recent annual report, 
and its most recent proxy statement for its annual meeting of 
stockholders have been attached; or, if privately owned, the audited, 
consolidated financial information for the most recently closed 
accounting year has been attached;
    (3) A copy of the company's articles of incorporation and an 
attested copy of the company's by-laws, or similar documents filed for 
the company's existence and management, and all amendments to those 
documents;
    (4) A list identifying the organization's owners, officers, 
directors, and executive personnel, including their names, social 
security numbers, citizenship, titles of all positions they hold within 
the organization, and what clearances, if any, they possess or are in 
the process of obtaining, and identification of the government 
agency(ies) that granted or will be granting those clearances; and
    (5) A summary FOCI data sheet.
    Note: A FOCI submission must be attached for each tier parent 
organization (i.e. ultimate parent and any intervening levels of 
ownership). If any of these documents are missing, award of the contract 
cannot be completed.

[67 FR 14877, Mar. 28, 2002]