Current legislation to prevent work stoppage at DOE sites

DEPARTMENT OF ENERGY

48 CFR Parts 904, 952 and 970

Acquisition Regulation:  Security Clause

RIN:  1991-AB71

 Background.

             Many DOE contractor and subcontractor employees require access authorizations (security clearances) for access to classified information (Restricted Data, Formerly Restricted Data, or National Security Information) or certain quantities of special nuclear material in order to perform official duties.  Section 904.404 is being revised to add a requirement in paragraph (d)(1) that the security clause is required in any contract that will involve access to special nuclear material.  That requirement reflects past DOE practice and is being added to make the instruction clear and complete.  Section 952.204-2, Security requirements, is revised by changing the title of the section to "Security" and by revising its introductory text to conform to the more recent Federal Acquisition Regulation format.  Some of the requirements at 970.2201-1-2 are appropriate to other types of contracts if access authorizations are required, so language at 970.2201-1-2 is being restated in the security clause.  DOE has always advised its contractors that their bargaining agreements must still allow them to comply with security requirements and that they must assure continuity of operations.  This policy is being restated in the security clause under a continuity of operations paragraph.  The policy includes a provision designed to ensure continuity of operations by requiring management and labor to include provisions in their collective bargaining agreements to avoid strikes or lockouts through other means such as binding arbitration to settle differences.

II.  Section-by-Section Analysis.

            The Department proposes to amend the DEAR as follows.

            Section 904.404, Solicitation provision and contract clause, is amended by adding "or access to special nuclear materials" after "classified information" at the end of the first sentence of paragraph (d)(1).

            Section 922.103-5 is revised by deleting the final sentence referencing 937.70.

            Section 937.7040, Contract clauses, is revised at the first sentence by deleting "952.237-70 entitled "Collective bargaining agreements - protective services" and inserting "952.204-2 entitled Security".

            Section 952.204-2, Security requirements, is amended by changing its title to "Security"; by updating the definitions in paragraphs (c) through (g); by revising the title of paragraph (h) from "Security clearances of personnel" to "Access authorizations for personnel" and redesignating its text as paragraph (h)(1); by adding new paragraphs (h)(2) and (i); by redesignating existing paragraphs (i) and (j) as (j) and (k); and by adding new paragraphs (l) and (m).  Paragraphs (h)(2), (i), and (i)(1) contain language similar to that found in management and operating contract  policy guidance at 970.2201-1-2(a)(1) and (2).  The language in (h)(2) has been augmented by referencing the criteria at 10 CFR 710.8 that is used to grant or deny  access authorizations, by adding language invoking prudent business practices, and by directing contractors to select for employment only those who they believe can pass the rigorous background investigation required for such positions.   New paragraph (i)(2) prohibits strikes or lockouts and commits the parties, i.e., the contractor and the union, to binding arbitration in lieu of strikes or lockouts under contracts for operation of a facility where continuity of operations must be assured.  Paragraph (j), Criminal liability [formerly paragraph (i)],  is amended to add "special nuclear material, and other Government property" to "classified information" as items the contractor must protect.  Paragraph (k), Foreign Ownership, Control or Influence [formerly paragraph (j)], is amended by moving the flow down to subcontracts requirement of (j)(4) to (m) and redesignating paragraph (j)(5) as (k)(4).  New paragraph (l), Employment announcements, requires that contractors include a notice in vacancy announcements for positions requiring access authorizations that background checks and drug tests will be performed, and that the federal government may conduct a background investigation, subsequent reinvestigations, and, in the case of counterintelligence positions, (as designated in 10 CFR 709.3), a counterintelligence evaluation, which may include a polygraph examination.  In addition to the subject matter from paragraph (j)(4), new paragraph (m), Flow down to subcontracts, addresses the flow down to subcontracts by incorporating the subject matter from the final sentence of 970.2201-1-2(a)(1)(ii). 

            Section 952.237-70, Collective bargaining agreements - protective services, is removed and reserved.  Its content is restated in the new paragraph (i) of the Security clause being revised at 952.204-2.

            Subsection 970.2201-1-2, Policies, is revised at paragraph (a)(1)(ii).  The first sentence is revised by changing "personnel investigations" to "background checks" in the first and second sentences; in the third sentence, changing "pre-employment" to "background," "applicant's" to "uncleared employment applicant's or uncleared employee," and "applicant" to "individual"; adding a new fourth sentence to require a drug test; in the sixth sentence, changing "applicant's" to "uncleared employment applicant's or uncleared employee"; in the seventh sentence, rewriting the sentence to address "employee" rather than "applicant"; in the eighth sentence, changing the first usage of "applicant" to "uncleared employee" and the second to "employee";  and in the last sentence, changing "may" to "shall" in order to make it imperative that subcontractors perform background checks on subcontract employee applicants or employees if they will require access authorizations to perform their duties.