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Foreign Ownership Control and Influence
Inclusion of Repository Construction Contract Work Scope
Inclusion of Repository Operations Contract Work Scope
Construction Management and Support Work Scope
Industry Questions (New)
Miscellaneous Questions
Conflict of Interest
Q. Will the awardee on this Management and Operating Contractor (M&O) contract be precluded from award of the follow-on construction work at the Yucca Mountain repository site?
A. As described in the draft Statement of Work (SOW) for the M&O contract, U.S. Department of Energy (DOE) intends to directly procure and award several contracts for repository construction. The timing of these contract awards has not been determined. However, it is likely that these contracts will be awarded prior to Nuclear Regulatory Commission (NRC) issuance of a Construction Authorization. Also as described in the draft SOW, DOE is procuring contractor support under this M&O for the completion of the design of the repository. Federal Acquisition Regulations (FAR) section 36.209 states the following: "No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates, except with the approval of the head of the agency or authorized representative." DOE does not intend to seek waiver of this requirement. Therefore, in compliance with this FAR provision, if awarded the M&O contract under this procurement action, the awardee will be precluded from award of any repository construction activities that were part of the design scope of this SOW. In practical matter, this would preclude award for any of the repository construction contracts DOE plans to competitively procure. Additionally, FAR section 9.505 is also applicable. This FAR section states the following: “If a contractor prepares and furnishes complete specifications covering non developmental items, to be used in a competitive acquisition, that contractor shall not be allowed to furnish these items, either as a prime contractor or as a subcontractor..”. As described in the draft SOW, DOE is procuring contractor support under this M&O for the development of specifications to be used by DOE for the competitive acquisition for repository construction contracts. Therefore, in compliance with this FAR provision, if awarded the M&O contract under this procurement action, the awardee will be precluded from the award of repository construction contracts that were prepared as specifications by the M&O contractor.
Q. Who would this preclusion for award be applied to?
A. It is DOE’s position that FAR section 36.209 applies to corporate entities that exist or may be created as part of proposal for this award, including Limited Liability Corporations, their affiliates, and their subsidiaries. Therefore, in compliance with this FAR provision, the awardee and its parent corporation, affiliates including teaming partners, and subsidiaries would be precluded from award of the DOE repository construction contracts.
Q. Are there other contracts that DOE intends to award that would result in the awardee from this M&O procurement activity also being precluded from a future award?
A. DOE has identified in the draft SOW a number of additional potential contracts, including repository operations support. DOE has not prepared detailed contractual strategies for these procurements and, therefore, is not in a position to comment on Conflict of Interest provisions as applied to these potential contracts.
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Foreign Ownership Control and Influence
Q. Will DOE identify and segregate areas of the SOW that could involve a Foreign Ownership Control and Influence issue?
A. No. At this time, DOE does not intend to segregate areas of the SOW. DOE will consider Foreign Ownership Control and Influence during review of information submitted under the Request for Proposal (RFP) in Section K.
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Inclusion of Repository Construction Contract Work Scope
Q. Will DOE consider incorporation of repository construction work scope into this M&O procurement action?
A. No. At this time DOE has determined in its multi-year acquisition strategy that repository construction work scope (i.e., construction of the nuclear facilities) will be separately contracted by DOE.
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Inclusion of Repository Operations Contract Work Scope
Q. Will DOE consider incorporation of repository operations work scope into this M&O procurement action?
A. No. At this time DOE has determined in its multi-year acquisition strategy that repository operations work scope will be separately contracted by DOE. However, based on industry comment, DOE has included work scope within Section 12 of the SOW that will require the M&O to provide overall cold start-up and isolated throughput testing of each repository facility following construction completion.
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Construction Management and Support Work Scope
Q. Will DOE assign contractual authority to the M&O for implementation of Section 10 of the SOW?
A. Section 10 of the SOW provides M&O work scope to support DOE in DOE’s role as Construction Manager. As discussed in Section 10, the M&O’s role will be to provide support to DOE. As such, the M&O will not be provided any contractual authority over the Office of Civilian Radioactive Waste Management (OCRWM) Construction Contractors. However, it is anticipated that provisions will be included within the OCRWM Construction Contracts requiring these contractors to supply information, grant access to work sites, etc., as necessary to allow the M&O to assist DOE.
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Industry Questions
Q.
We assume that the Awardee (including affiliates, subsidiaries and teaming partners) of the Management & Operating contract for OCRWM's Yucca Mountain Project will not be precluded through a conflict of interest from award(s) of DOE's anticipated Nevada Rail Project contract(s), including but not limited to the contracts for an 'Agency Construction Manager Award' or the 'Multiple Contractor Led Design-Build Contracts' identified in DOE's Yucca Mountain Project Procurement Notice issued on February 2, 2008? Please inform all potential M&O contract bidders if this assumption is incorrect. Also, please note that we make this assumption because under DOE's separate procurement approaches, the scopes of work for the design, construction preparation activities and/or construction for the Rail Project will not be included in the M&O contract?
A. The Office of Civilian Radioactive Waste Management (OCRWM) has not identified a conflict of interest position concerning the planned Management and Operating Contractor and the Nevada Rail Project potential contracts. The OCRWM has three key projects: the Yucca Mountain Project for development of the Repository; the Nevada Rail Project for developing a rail spur to Yucca Mountain; and the National Transportation Project for developing infrastructure including conveyances for safe transport of nuclear waste to Yucca Mountain. In February 2008 OCRWM published on this website a Procurement Notice for the Yucca Mountain Project and for the Nevada Rail Project. This Procurement Notice identified that OCRWM intends for the Nevada Rail Project to compete and award an Agency Construction Manager contract, and multiple design/build contracts for design and construction of the rail line. Of note, this Procurement Notice reflected OCRWM’s overall acquisition strategy subject to final agency decision making under the National Environmental Policy Act, other permits and approvals, and funding.
Reflecting the Procurement Notice, the February 2008 draft of the Statement of Work for a Management and Operating Contractor did not include any scope for support to the OCRWM Nevada Rail or National Transportation Projects. Based on further consideration by OCRWM including input by Industry, the draft DOE intends to publish with the Final Request for Proposal includes potential scope for support to OCRWM for both Nevada Rail and National Transportation Projects. Specifically, section 16 of the Statement of Work states: “It is OCRWM’s intention to award separate contract(s) for support of the Transportation Program. If OCRWM changes its decision regarding a separate contract for support of the Transportation Program, the M&O may be required to provide some or all of the following services.” The Statement of Work lists the following potential scope for the Nevada Rail Project: design (preliminary, final and ready for construction), route characterization and optimization of the Nevada Rail line; and, construction management services for the Nevada Rail line. For the National Transportation Project, the Statement of Work identifies the following potential scope: system analysis, strategy and procurement assistance for OCRMW for the development of the Cask Fleet; and, procurement and oversight assistance for acquisition of the rolling stock and rail equipment fleet.
These potential new scope items are not included in the contract cost estimate as it is DOE’s intention to separately contract these items. Should DOE decide it is in the best interest of the Government to authorize the Management and Operating Contractor to execute this additional scope, DOE will analyze and issue a conflict of interest position at that time.
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Miscellaneous Questions
Q. Will DOE issue a draft RFP?
A. No. DOE has determined not to issue a draft RFP. The Final RFP will allow for a proposal preparation time of approximately 60 days. DOE believes that this duration is proportionate with requirements identified in the Final RFP.
Q. What type of Contract will DOE issue under this procurement?
A. DOE will award a cost-plus-award fee contract with performance-based incentives.
Q. Will DOE disclose the names and background of Source Evaluation Board (SEB) members?
A. DOE will not identify the names of the SEB. However, the SEB’s background includes expertise in such disciplines as engineering, licensing, site operations, construction, environment, safety and health, project management, contracting and quality assurance (QA).
Q. Will Offerors have to provide detailed cost estimates (i.e., bottoms up) under this procurement?
A. No. The cost proposal will be limited and similar to other DOE M&O procurement actions.
Q. Will DOE’s anticipated funding levels impact this procurement action?
A. No. The DOE’s Congressional Budget Request for Fiscal Year 2009 includes funding for this procurement action.
Q. What is the current staffing of the incumbent M&O?
A. The head count report for the M&O for January 2008 indicated a total of 862 staff. It is anticipated that this headcount will continue to ramp down to a level of 628 by the end of fiscal year 2008.
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