CONTRACT 98, ARTICLE V

ARTICLE V: CONTRACT ADMINISTRATION

ARTICLE V, CL. 1 - APPROVAL OF CONTRACT AND SEVERABILITY OF PROVISIONS RELATING TO OTHER CONTRACTS (SPECIAL)

(a) This contract is subject to the written approval of the DOE Procurement Executive or designee and shall not be binding until so approved.

(b) This contract is subject to a vote of approval by The Regents of the University of California and shall not be binding until so approved.

(c) In the event that either the contract for management and operation of the Los Alamos National Laboratory (Contract No. W-7405-ENG-36) or the Lawrence Livermore National Laboratory (Contract No. W-7405-ENG-48), or both, are not approved for extension in the manner provided in paragraphs (a) and (b) of this clause for Contract No. DE-AC03-76SF00098, the following actions in severability shall occur:

(2) The Contract Administration CompensationsProgram Performance Fee in Article V, Clause 4, of this contract shall be equitably adjusted to reflect a changed total scope of work for the University.

(3) The Special Cost Agreement for the University's Laboratory Administrative Management and Oversight Unit in Article V, Clause 6, of this contract, shall be charged only to this contract, and not allocated to any of the other cited contracts as are not approved.

ARTICLE V, CL. 2 - ORDER OF PRECEDENCE (JAN 1986) * - FAR 52.215-33

(a) Order of precedence. Any disagreement between the parties as to their rights under this contract which flows from an asserted inconsistency between one or more provisions of this contract other than the provisions of Article VI shall be resolved by giving precedence to the disputed interpretations in the following order: (1) specially negotiated clauses and appendices, (2) the remaining clauses, and (3) other documents incorporated by reference into this contract. Any resolution of disputed interpretation of any clause of this contract, other than the provisions of Article VI, shall be consistent with the Principles of Operation set forth in Article VI.

(b) Contract construction. An appendix referred to in a clause shall provide an elaboration of the parties' understanding on the subject matter of the clause.

ARTICLE V, CL. 3 - CONTRACT ADMINISTRATION COMPENSATION_FIXED PAYMENT IN LIEU OF INDIRECT COSTS (SPECIAL)

(a) The University shall receive a fixed payment in lieu of indirect costs to be used in the sole discretion of the University.

(b) The amounts payable to the University for the fixed payment in lieu of indirect costs for Contracts W-7405-ENG-36, W-7405-ENG-48, and DE-AC03-76SF00098 shall be:

(c) The parties acknowledge that the above amount includes $5,727,150 to be provided annually for the State of California.

(d) The fixed payment in lieu of indirect costs shall be paid by the Laboratory to the University in equal monthly installments under Contract W-7405-ENG-36 and shall be allocated among the three identified contracts.

ARTICLE V, CL. 4 - CONTRACT ADMINISTRATION COMPENSATION_PROGRAM PERFORMANCE FEE (SPECIAL)

(a) The University shall receive a program performance fee, as set forth below, for its non-profit purposes:

(b) The program performance fee shall be paid by the Laboratory to the University in equal monthly installments under Contract W-7405-ENG-36 and shall be allocated among the three identified contracts. The parties agree that the University has the absolute right to expend the payment received under this clause at its sole discretion.

ARTICLE V, CL. 5 - GROUND LEASE PAYMENTS (SPECIAL)

(a) In consideration of the ground lease identified in Article IX, Clause 9, of Contract DE-AC03-76SF00098, the University will receive the following:

(b) The ground lease shall be paid by the Laboratory to the University in equal monthly installments under Contract W-7405-ENG-36 and shall be allocated among Contracts W-7405-ENG-36, W-7405-ENG-48, and DE-AC03-76SF00098. The parties agree that the University has the absolute right to expend the payments received under this clause at its sole discretion.

ARTICLE V, CL. 6 - SPECIAL COST AGREEMENT FOR THE UNIVERSITY'S LABORATORY ADMINISTRATIVE MANAGEMENT OVERSIGHT UNIT (SPECIAL)

The following provisions apply to the costs associated with the University's administrative unit providing management oversight in accordance with Article VI, Clause 5, "Enhanced University Management Efforts and Concomitant Restructuring of DOE On-Site Oversight at the Laboratories," of this contract:

(a) The cost and expense of the administrative unit responsible for management oversight of the Laboratory shall be a direct charge to the overhead component of Contracts W-7405-ENG-36, W-7405-ENG-48, and DE-AC03-76SF00098. The costs shall be paid by the Laboratory to the University in equal monthly installments under Contract W-7405-ENG-36 and allocated among the three identified contracts.

(b) Allowability of the costs under this clause shall be determined under OMB Circular A-21. However, any costs determined to be unallowable under OMB A-21 standards shall be processed in accordance with Article V, Clause 9, "Procedure to Disallow Costs."

(c) Each year, the University will furnish the Contracting Officer an estimate of costs for the administrative unit and such cost reports as the Contracting Officer may from time to time request. In additional to OMB Circular A-21, the administrative unit costs shall be subject to the provisions of Article V, Clause 10, "Procedure for Issuance of Prospective Contracting Officer Special Instructions."

(d) The estimated costs for the administrative unit during the first fiscal year of this Supplemental Agreement is $5,000,000.

(e) Transition costs. The costs of the following may be charged to the Government even though incurred prior to execution of this Supplemental Agreement:

(2) The compensation for the surrogate managers for their management activities related to the management oversight of the laboratories.

(3) The recruitment and hiring and compensation of the University personnel for the new administrative unit.

(4) To expedite the formation and operations of administrative unit responsible for management oversight of the Laboratory, the University is hereby authorized to purchase new equipment and to transfer property from the Laboratory to the administrative unit. A schedule of property transferred will be prepared by the University and submitted to the Contracting Officer.

(f) The parties agree that the activities of the University's Laboratory administrative oversight unit, to the extent they may involve discussions between University employees and (i) the Department of Energy concerning modifications which can be expected to occur during the course of this contract, (ii) employees of other federal agencies concerning administration of this contract; and (iii) members of Congress and Congressional staff where the University employees are responding to a Congressional inquiry, are not intended to be prohibited by Article VII, Clause 19, "Limitation on Payments to Influence Certain Federal Transactions," of this contract.

ARTICLE V, CL. 7 - INSPECTION OF RESEARCH & DEVELOPMENT (APR 1984) * - FAR 52.246-9

(a) The Government has the right to inspect and evaluate the work performed or being performed under the contract and the Laboratory premises where the work is being performed, at all reasonable times and in a manner that will not unduly delay the work or compromise safety. If the Government performs inspection or evaluation on the premises of the Laboratory or a subcontractor, the University shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these inspections and evaluations.

(b) The following is agreed to by the parties to be applicable to DOE inspection activities carried out under the authority of the Contracting Officer:

(2) Access to facilities (sites, buildings, property) is subject to site-specific requirements and will be provided by the facility manager at all reasonable times and in a manner which will not unduly delay work or compromise safety. As a general criterion, DOE personnel will be subject to the same access controls as regular Laboratory employees.

(3) Access to Laboratory employees will be on a non-interference basis and, except for suspending or stopping work when an imminent danger of death or physical harm to an individual is presented by an operation as provided for in Article V, Clause 8, of this contract, will not include authority to direct or change employee work assignments or otherwise manage University employees. Requests by DOE for policy decisions or interpretation of Laboratory policies shall be provided through established DOE/Laboratory management channels.

(4) Access to documents containing information concerning individuals, including personnel records, medical records, employee assistance records and other similar personnel records shall be given in accordance with Article VI, Clause 10, "Contract Records," of this contract.

(c) Any question with regard to DOE right of inspection or access to the Laboratory premises which has not been resolved after reasonable efforts to do so, shall promptly be referred to the Laboratory Director and the Contracting Officer for resolution. Access to information concerning individuals will be coordinated with the University.

ARTICLE V, CL. 8 - STOP WORK ORDERS (SPECIAL)

(a) It is the intent of the parties that work performed under this contract shall be conducted under the supervision of competent employees of the University who shall be responsible for the orderly performance of work hereunder in accordance with all of the provisions of this contract.

(b) In the event that any employee of the University or the DOE shall observe any activity under this contract which represents an imminent threat of danger to the life or health of any individual, the employee is authorized to direct that such work be immediately stopped. In the event such order is given by an employee, the fact of such a notice by either a University or DOE employee shall be immediately communicated to the Contracting Officer and the Laboratory Director for such further investigation or disposition as they may direct.

(c) Other notices by DOE employees to stop or discontinue an activity which does not represent an imminent threat to the life or health of an individual shall be communicated in writing to the senior University employee responsible for the work in question by the Contracting Officer or his designee.

ARTICLE V, CL. 9 - PROCEDURE TO DISALLOW COSTS (SPECIAL)

(a) General. The University and DOE agree that this contract is a government advance funded cost reimbursement contract. If either party believes that advanced payments have been used to pay for costs which are unallowable under this contract, the following procedure will be invoked.

(b) The party which initially identifies a cost of questionable allowability will inform the other party of the issue. If preliminary review leads the DOE to pursue the questionable allowability of the cost, the Contracting Officer will provide formal written notice to the University of its concerns. The notice will be provided to the University Point of Contact identified in Article XVI, Clause 2, "Issues Resolution Process," of this contract. The University will respond in writing to the Contracting Officer within 60 days of receipt of the notice.

(c) The Contracting Officer will provide a determination as to the allowability of the cost in question to the University within 60 days of receipt of the University's response.

(d) The following process will be followed for costs which may be contractually unallowable:

(ii) If the University seeks relief through the Issues Resolution Process, one of the following outcomes may occur: the University may pay the cost in question by check with University funds; the DOE may determine that the cost is allowable and the issue will not be further pursued; or either of the parties may seek relief through the formal contract disputes process provided for in Article XVI, Clause 3, of this contract.

(iii) Prior to the initiation of the formal contract disputes process, the University, at its sole discretion, has the right to pay the amount in question to the DOE by check. Also prior to the initiation of the formal contract disputes process, the DOE has the right to offset against future obligations to be paid the University the amount in question, if the University has not paid by check by a specified time.

(iv) Should the DOE prevail in the formal contract disputes process, one of the following outcomes may occur: the University will pay the amount in question by check if no payment was made previously; the DOE will retain the payment made earlier by the University; or the University will pay the DOE by check with University funds for the amount offset and the offset will be reversed.

(v) Should the University prevail in the formal contract disputes process, the DOE will refund by check any payment made by the University, or the DOE will reverse any offset that may have been made.

(e) Nothing in this clause will preclude either party from seeking legal remedy after the exhaustion of this procedure.

ARTICLE V, CL. 10 - PROCEDURE FOR ISSUANCE OF PROSPECTIVE CONTRACTING OFFICER SPECIAL INSTRUCTIONS (SPECIAL)

(a) The Contracting Officer reserves the right to notify the University in writing as to a specific practice or activity and instruct the University to refrain from the specific practice or activity as of a specified date 90 days in the future. If the Contracting Officer so specifies in the written notice to the University, the costs of the specific practice or activity incurred after the future date identified in the written notice will be unallowable under the contract. Such unallowable costs will be payable by the University from its funds, without recourse to funds advanced for performance of work under this contract.

(b) This clause will be interpreted and applied consistent with the provisions of Clause 3 of Article VI of this contract and with principles of fair notice and opportunity to act within the time specified in the Contracting Officer's notice and will be utilized by the Contracting Officer in a prospective manner in order to preserve the University's no gain/no loss status hereunder. Actions of the Contracting Officer under this clause shall be subject to the Issues Resolution Process (IRP) as provided in Article XVI, Clause 2, of this contract. In the event the Issues Resolution Process set forth in Article XVI, Clause 2 of this contract is resorted to in connection with such a Contracting Officer's suggestion, said instruction shall not be held in abeyance except as set forth in paragraph (c) below.

(c) In extraordinary circumstances, upon request of the President of the University to the Secretary of Energy, the Contracting Officer's instructions will be held in abeyance during the pendency of the Issues Resolution Process. The parties agree that the Issues Resolution Process will be expedited to be completed within 60 days.

(d) Authority under this clause shall not be delegated by the Contracting Officer nor shall it be applied so as to limit or control individual salary actions or the decisions of the University with respect to the employment or retention of individual employees under this contract.

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