DEAR 952.204-73
Facility Clearance (Deviation)

NOTICES:

Statute prohibits the award of a contract under a national security program to a company owned by an entity controlled by a foreign government unless a waiver is granted by the Secretary of Energy.

Offertory who have either a Department of Defense or a Department of Energy facility clearance, generally need not resubmit the following FOCI 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 obtain a facility clearance the offeror must submit a Certificate Pertaining to Foreign Interests, Standard Form 328.

2. Information submitted by the offeror in response to the Standard Form 328 shall be used solely for the purposes of evaluating FOCI and shall be treated by the DOE, to the extent permitted by law, as business or financial information submitted in confidence.

3. Following submission of a Standard Form 328, 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. 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 shall also be furnished concurrently to the contracting officer.

(b) Definitions

(1)  A foreign interest is defined as any of the following:

• A foreign government, foreign government agency, or representative of a foreign government.

• 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

• 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) A facility clearance is an administrative determination that a facility is eligible for access to classified information or special nuclear materials. A Facility Clearance shall be based upon a determination that satisfactory safeguards and security measures are afforded the activities being performed at the facility. It is DOE policy that all contractors or subcontractors requiring access to classified information or special nuclear material be processed for a Facility Clearance at the level appropriate to the activities being performed at the facility. Approval for a Facility Clearance shall be based upon;

1. A favorable foreign ownership, control, or influence (FOCI) determination. This determination will be based upon the contractor’s response to the ten questions in Standard Form 328 and any supporting data provided by the contractor. 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.

2. A contract containing the appropriate security clauses.

3. Approved safeguards and security plans which describe protective measures appropriate to the classified activities being performed at the facility.

4. If access to nuclear materials is involved, an established Reporting Identification Symbol code for the Nuclear Materials Management and Safeguards Reporting System.

5. For a facility to possess classified matter or special nuclear material at its location, a survey conducted no more than 6 months before the facility clearance date, with a composite facility rating of satisfactory.

6. Appointment of a Facility Security Officer, and, if applicable, a Materials Control and Accountability Representative. The Facility Security Officer must possess an access authorization equivalent to the Facility Clearance.

7. Access authorization for key management personnel. Key management personnel, who will be determined on a case-by-case basis, must possess access authorizations equivalent to the level of the Facility Clearance.

(d) A Facility Clearance is required even for contracts which do not require contractor’s 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 DOE location. This type facility is identified as a non-possessing facility.

(e) Facility Clearances are required prior to the granting of an access authorization under a contract.

(f)  Except as otherwise authorized in writing by the contracting officer, the provisions of any resulting contract shall 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 be directed to provide responses to the questions in Standard Form 328 of this provision directly to the local Office of Safeguards and Security cognizant of the prime contract,

NOTICE TO OFFERORS – CONTENTS REVIEW – Please Review Before Submitting

Prior to submitting the Standard Form 328, required by paragraph (a)(1) above, the offeror should review the FOCI submission to ensure that:

1. The SF328 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;

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;

5. A consolidated financial information report has been attached;

6. A FOCI submission has been attached for each tier parent organization (i.e. ultimate parent and any intervening levels of ownership; and,

7. A summary FOCI data sheet.

NOTE. If any of these documents are missing, the contracting officer cannot complete award of the contract.

 

One of ten national laboratories overseen and primarily funded by the Office of Science of the U.S. Department of Energy (DOE), Brookhaven National Laboratory conducts research in the physical, biomedical, and environmental sciences, as well as in energy technologies and national security. Brookhaven Lab also builds and operates major scientific facilities available to university, industry and government researchers. Brookhaven is operated and managed for DOE's Office of Science by Brookhaven Science Associates, a limited-liability company founded by the Research Foundation for the State University of New York on behalf of Stony Brook University, the largest academic user of Laboratory facilities, and Battelle, a nonprofit, applied science and technology organization.

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