[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: 48CFR952.209-72]

[Page 388-389]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                     CHAPTER 9--DEPARTMENT OF ENERGY
 
Sec. 952.209-72  Organizational conflicts of interest.

    As prescribed at 48 CFR 909.507-2, insert the following clause:

             Organizational Conflicts of Interest (JUN 1997)

    (a) Purpose. The purpose of this clause is to ensure that the 
contractor (1) is not biased because of its financial, contractual, 
organizational, or other interests which relate to the work under this 
contract, and (2) does not obtain any unfair competitive advantage over 
other parties by virtue of its performance of this contract.
    (b) Scope. The restrictions described herein shall apply to 
performance or participation by the contractor and any of its affiliates 
or their successors in interest (hereinafter collectively referred to as 
``contractor'') in the activities covered by this clause as a prime 
contractor, subcontractor, cosponsor, joint venturer, consultant, or in 
any similar capacity. For the purpose of this clause, affiliation occurs 
when a business concern is controlled by or has the power to control 
another or when a third party has the power to control both.
    (1) Use of Contractor's Work Product. (i) The contractor shall be 
ineligible to participate in any capacity in Department contracts, 
subcontracts, or proposals therefor (solicited and unsolicited) which 
stem directly from the contractor's performance of work under this 
contract for a period of (Contracting Officer see DEAR 9.507-2 and enter 
specific term) years after the completion of this contract. Furthermore, 
unless so directed in writing by the contracting officer, the Contractor 
shall not perform any advisory and assistance services work under this 
contract on any of its products or services or the products or services 
of another firm if the contractor is or has been substantially involved 
in their development or marketing. Nothing in this subparagraph shall 
preclude the contractor from competing for follow-on contracts for 
advisory and assistance services.
    (ii) If, under this contract, the contractor prepares a complete or 
essentially complete statement of work or specifications to be used in 
competitive acquisitions, the contractor shall be ineligible to perform 
or participate in any capacity in any contractual effort which is based 
on such statement of work or specifications. The contractor shall not 
incorporate its products or services in such statement of work or 
specifications unless so directed in writing by the contracting officer, 
in which case the restriction in this subparagraph shall not apply.
    (iii) Nothing in this paragraph shall preclude the contractor from 
offering or selling its standard and commercial items to the Government.
    (2) Access to and use of information. (i) If the contractor, in the 
performance of this contract, obtains access to information, such as 
Department plans, policies, reports, studies, financial plans, internal 
data protected by the Privacy Act of 1974 (5 U.S.C. 552a), or data which 
has not been released or otherwise made available to the public, the 
contractor agrees that without prior written approval of the contracting 
officer it shall not:

[[Page 389]]

    (A) use such information for any private purpose unless the 
information has been released or otherwise made available to the public;
    (B) compete for work for the Department based on such information 
for a period of six (6) months after either the completion of this 
contract or until such information is released or otherwise made 
available to the public, whichever is first;
    (C) submit an unsolicited proposal to the Government which is based 
on such information until one year after such information is released or 
otherwise made available to the public; and
    (D) release such information unless such information has previously 
been released or otherwise made available to the public by the 
Department.
    (ii) In addition, the contractor agrees that to the extent it 
receives or is given access to proprietary data, data protected by the 
Privacy Act of 1974 (5 U.S.C. 552a), or other confidential or privileged 
technical, business, or financial information under this contract, it 
shall treat such information in accordance with any restrictions imposed 
on such information.
    (iii) The contractor may use technical data it first produces under 
this contract for its private purposes consistent with paragraphs 
(b)(2)(i) (A) and (D) of this clause and the patent, rights in data, and 
security provisions of this contract.
    (c) Disclosure after award. (1) The contractor agrees that, if 
changes, including additions, to the facts disclosed by it prior to 
award of this contract, occur during the performance of this contract, 
it shall make an immediate and full disclosure of such changes in 
writing to the contracting officer. Such disclosure may include a 
description of any action which the contractor has taken or proposes to 
take to avoid, neutralize, or mitigate any resulting conflict of 
interest. The Department may, however, terminate the contract for 
convenience if it deems such termination to be in the best interest of 
the Government.
    (2) In the event that the contractor was aware of facts required to 
be disclosed or the existence of an actual or potential organizational 
conflict of interest and did not disclose such facts or such conflict of 
interest to the contracting officer, DOE may terminate this contract for 
default.
    (d) Remedies. For breach of any of the above restrictions or for 
nondisclosure or misrepresentation of any facts required to be disclosed 
concerning this contract, including the existence of an actual or 
potential organizational conflict of interest at the time of or after 
award, the Government may terminate the contract for default, disqualify 
the contractor from subsequent related contractual efforts, and pursue 
such other remedies as may be permitted by law or this contract.
    (e) Waiver. Requests for waiver under this clause shall be directed 
in writing to the contracting officer and shall include a full 
description of the requested waiver and the reasons in support thereof. 
If it is determined to be in the best interests of the Government, the 
contracting officer may grant such a waiver in writing.

                             (End of clause)

    Alternate I: In accordance with 909.507-2 and 970.0905, include the 
following alternate in the specified types of contracts.

    (f) Subcontracts. (1) The contractor shall include a clause, 
substantially similar to this clause, including this paragraph (f), in 
subcontracts expected to exceed the simplified acquisition threshold 
determined in accordance with FAR part 13 and involving the performance 
of advisory and assistance services as that term is defined at FAR 
37.201. The terms ``contract,'' ``contractor,'' and ``contracting 
officer'' shall be appropriately modified to preserve the Government's 
rights.
    (2) Prior to the award under this contract of any such subcontracts 
for advisory and assistance services, the contractor shall obtain from 
the proposed subcontractor or consultant the disclosure required by DEAR 
909.507-1, and shall determine in writing whether the interests 
disclosed present an actual or significant potential for an 
organizational conflict of interest. Where an actual or significant 
potential organizational conflict of interest is identified, the 
contractor shall take actions to avoid, neutralize, or mitigate the 
organizational conflict to the satisfaction of the contractor. If the 
conflict cannot be avoided or neutralized, the contractor must obtain 
the approval of the DOE contracting officer prior to entering into the 
subcontract.

                           (End of alternate)

[62 FR 40752, July 30, 1997]