Free Statement of Facts - District Court of Federal Claims - federal

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EXHIBIT 1

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PUBLIC LAW 95-91--AUG.

4,

1977

91 STAT. 565

Public Law 95-91 95th Congress An Act

Be it enacted 3y the Sea,ate and, House of 2~epresen%~tlves a/the United States of America in Cong~ ass assembled That this Act may Department of Energy be cited as ~he "Department of Energy3" Organization .4_c~ .

TITLE I--DECLARATION OF FINDINGS AND PURPOSES Sac. 101. Findings. See, 102. Purposes. Sac. 103. Relationship with States. See. 201. Sac. 202. 8ec. 203. Sec. 204. ~ec. 205. 8ec.2(}6. TITLE II--ESTABLISHMENT OF THE DEPARTMENT Establishment. Prtacipai officers. Assistant S~cretaries. Federal Energy Regulatory Commission, EnergYInformation Administration. EconomicRegulatory Administration.

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PUBLIC LAW95-91--AUG. 4, 1977 coordhmted to ~lems oaling with thenational ~t, and man-~search and }search and neetthose eveloplneut nservndon ; 1 such pro:lear, solar, -~chnolo~es (140 to assure, to the ~naximum extent practicable, that tl~e }~roductive capacity of private enterprise shall be utilized in the aevelopment and achievement of the policies and purposes of this Act; (15) to provide for, encourag%and assist public participation in the development and enforcement of national energy programs; (16) to create an awareness of, and responsibility for, the fuel and ener~-y needs of rm'a] and urban residents as such needs pertain to homoheating and cooling transportation~ agricultural ~roduction, electrical generation~ conservation, and research and evel,.o.pment; (1~) to foster insofar as possible the continued good health of the Nation's small business firms, public utility districts, municipal utilities, and private cooperatives involved in energy production, transportation, research, development, demo-nst-ration, marketing, and merchandising; 'and (18) to provide for the administration of the functions of the Energy Research and Development Administration related to nuclear weaponsand national security which are transferred to fhe Department. by thisAct.

91 STAT. 569

gy for dis~ly and to ~ slopply e provision eat reasonrtment, in d Defense, re a direct nd conseractivities ly relatin~ cal advice zen er~.~ ~es, except primaLT to energy ines estab, and local f national s engaged mtal proof ~tin~, ealth and

SEC.103. Whenever any proposed action by the Department conflicts USC7113. 42 witl~ the energy plan of any State, the l~epartment shall give due consideration k~ the ueeds of such State, and where practicable, shall attempt to resolve such conflict through consultations with a~proprlatc State,officiMs. Nothing in this Act shall affect the autlmr[ty of any State o~ er matters exch|sively within its jurisdiction. TITLE It--ESTABLISHMENT OF THE DEPARTMENT

~Ec. z01. Ihere mhereby established at the seat of government an 42 U$C7131. executive department to be lmown as the Dep~artment of Energy. There shall be at the head of the Department a Secretary of Energy Secretar~ of (hereinafter in this Act referred to as the "Secretary"), whoshall~e Ener~, and appointed by the President by and with the advice and consent of the appointment Senate. ~ he Department shall be admmmtercd,m accordance w~th the provisions of this A-ct, under tlle supervision and direction of the Nec~ etary. S~c. 202. (a) There shall be in tile Departmenta Deputy Secretary, who shall be appointed by the President by and with the advice and consent of the Senate~ aud who shall be compensated at the rate provided for level II of the Executive Schedule nnder section 5313of title 5, United States Code. The Deputy Secretary shall act for and exercise the functions of the Secretary during the abseuce or disability of the Secretary or in the event tile once of Secretary becomesvac~-nt. Tile Secretary shall designate the order in which the Under Secretary and other officials shaB act fox" and perform the functions of the Secretary , during the absence or disability of botll the Secretary and Deput~, " Secretary or in tile event of vacanciesin both of those offices. (b) There shall be in the Department an Under Secretary and General Counsel, whoshall be apj, minted by the President, by and with the advice and consent of the Senate, a~id who shall perform such Deputy
Secretary, appolntmem~ and

eonfmnation. 42 U$C 7132.

Under Secretary ~d Ge~crM Counsel, appointment and confirmation.

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UNITED

STATES
1982 EDITION
AND PE~NT LAWS

CONT~G

TEE

GEIVERAL

OF THE UNITED STATES, IN FORCE ON JANUARY 14, 1983
Prepared and published under authority of Tkle 2, U.S. Code, Sec6on285b by ~:he O,~ce o[ ~be LawR~Ms~on Cunmsel the Houseof Representatives of

VOLU~
TITLE 42--THE

SIXTEEN

PUBLIC HEALTH AND ~ELFARE § 1981-END

U~ITED STATES GOVERN~IENT P~G OFFICE

WASHINGTON : 198a

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Document 195-2
42--THE PUBLIC OF

Filed 07/27/2006
~ WELF~I~E

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HF~TH

advice and consent of the Senate; who shal compensated at the rate provided for at IV of the Executive Schedule under 5315 of title 5; and who shah perform, eord~nee ~th applicable law, such of the tions trsmsferred delegated or vested or to, the Secretary8s he shRH prescribe~ ance ~th the Dro~o~ of this chapter. ' Thereis established the seat of govern- f~ctio~ at w~ch the Secretly sh~ ~si~ the ~s~t~t 8ecret~ms ~clude. bu~ ~e ~ted to, the foHo~g: the Department of Energy. There shall be at (i) Ener~ reso~ce app~catio~, the head of the Department a Secretary of f~ctio~ de~g with management of Energy (hereins~fter in this chapter referred to for~ of ener~ production ~d utfl~atio~ as the "Secretary"), who shall be appointed by the President by and with the advice and con~clu~g fuel supply, electric power sent of the Senate.The Departmentshal~ be e~che~ ~ production administered, accordance in v~th the prov~sions o~ pro~a~, ~d the m~agement of energy of this chapter,under the super~sion Knd (2} Ener~ rose.oh ~d deveiopment tio~, ~clud~g ~he respo~ib~ty for (Pub. 95-91, L. title If,§ 201,Aug.4, 19q7, 91 Star. 569.) ........ merit for ~ ~pec~ of~ (A) solar ener~ reso~ces; SI~-BCH~DPTEI% II--ESTABLIS~ THeE DEPA1%Tq~ENT (C) recycl~g energy reso~ces; (D) the fuel cycle for fossil ener~ so.cos; ~d (E) the fuel cycle for nuclear energy (3) (a) There shs/1 be in the Department Deputy Secretory, who shs/l he appointedby the P~esident, and ~th the advices/id conby sated therateprovided level of the Exat for II ecutive Sehedu/e undersection 5813 of title The Deputy Secret~ry shs/lact for and exercise the functions the Secretary of duringthe absenceor d/sabiEty the Secretory in the of or The Secretaryshall designatethe order in whichthe UnderSecretary and otherofficials shs/lact for and perform the functions the of Secretary duringthe absence disability or of (b) There shah be in the Department shs/l be appointedby the President, and by v~th the advices~nd consent the Senate, ef and who shallperform such flmetioDs and dutiesas tary shall bear primsry responsib~ty for be compensated the rate provided at for level III of the ExecutiveScheduleunder section 5314 of title5, and the ~eneral Counsel sh~ll IV of the ExecutiveSchedule under section 5315 title of 5. (Pub. 95-91, L. title II, § 203,Aug.4, 1977, 91 Stat. 559.) ~o~ent~ respo~ib~ties ~d f~c-

respect to the co~o~ce of the ment's actiAties to en~o~entA laws ~d pr~ciples, and conduct~g a com~rehe~ive on the env~o~ental effec~ of energy nolo~es and pro~. (4) Inte~ational pro~ams al percy f~ctio~, ~clu~g w~ch ~ in c~g ou~ ~he ~te~ation~ energy p~poses described ~ section 7112 of t~ title. (5) National security f~ctfo~ those tr~fe~ed to the Dep~tment from the Energy Rese~ch ~d Development ~ation w~ch relate to m~agement ~ ~ ~d other national sec~ity

(6) ~ergove~en~ policies tio~, ~chi~g respo~ib~ties for that nation~ ener~ policies ~e and res~e~ihle to the nee~ of State

and

other componen~ of the Department hate the~ acti~ties with State ~d loc~ e~en~, where appropriate, ~d develop ~ tergove~ental co~catio~ with State (7) Competition ~d co~er affa~s, clung respo~bfli~es for ~he promotion of competition ~ the ener~ ~d~try ~d for the protection of the co~g public ~ the the Secretary ~ the fom~ation ~d ~alys~ of policies, r~es, ~d re~atio~ relat~g to competition ~d co~er (8) Nuclear w~te m~agement respo~ibfl~ ities, ~clud~g--

(a) There shall be in the Deportment eight

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§ 7218

TITLE

42--TH~

PUBLIC

~TH AND WELFAP~E

Page

Fag, sore and nel for tion (e)

(c) Findingsand waiversfile; availability to public The Secretary shall maintain a file containing all findings and waivers made by him pursuant to section 7212(c), 7213(c), 7215(a), 7216(c) of th£s title and all such findings and waivers shall be available for public inspection and copying at all times during regular working hours in accordance with the procedures of this section. (Pub. L. 95-91, title VI, § 607, Aug. 4, 1977, 91 Star. 596; 1978 l~eorg. Plan No. 2, § 102, ell Jan. 1, 1979, 43 F.I~. 36037, 92 Stat. 3784.)

cluding attorneys, as may be necessary to carry out such functions. Except as otherwise provided in this section, such officers and employ, ees shall be appointed in accordance with the civil service laws and their compensation fixed in accordance with title 5. (b) Appointmentof scientific, engineering, etc., sonnel without regard to civil service laws; corn: pensation; termination of authority (1) Subject to the limitations provided paragraph (2) and to the extent the Secretary deems such action necessary to the discharge of h~s functions, he may appoint not more than three hundred eleven of the scientific, engineering, professional, and administrative personnel of the department without regard to the civil service laws, a~d may fix the compensation o£ such personnel not in excess of the maximum rate payable for GS-18 of the General Schedule under section 5332 of title 5. (2) The Secretary's authority under this sub: section to appoint an individual to such a position without regard to the civil service laws shall cease(A) when a person appointed, within fou~ years after October 1, 1977, to fi~ such posi~ tion under paragraph (1) leaves such positioni
or

be I tior tior of t 25

Any individual who is subject to, and knowingly violates, section 7213 of this title shall be fined not more than $2,500 or imprisoned not more than one year, or both. Any individual who violates section 7212, 7213, 7214, 7215, or 7216 of this title shall be any d~trict court of the United States, exceed $10,000 for each violation. not to

subsection (a) of this section, any violation section 7215(a) of this title shall be taken into Department proceeding in connection with

Nothing in this title

shall be deemed to limit

title 18. Nor shall any waiver issued pursuant to section 7212(c) of this title constitute a waiver (Pub, L. 95-91, title star. 596.) VI, § 608, Aug. 4, 1977, 91

In the performance of his functions the Secretary is authorized to appoint and fix the com-

(B) on the day which is four years such date, whichever is later. (c) Placement of GS-16, GS-17, and GS-18 positi~ withoutregardto section 3324of title 5; termination of authority (1) Subject to the provisions of chapter 51 title 5 but notwithstanding the last two sentences of section 5108(a) of such title, the rotary may place at GS-16, GS-17, and C~S-18, not to exceed one hundred seventy-eight positions of the positions subject to the limitati6n of the first sentence of section 5108(a) of such title. (2) Appointments under this subsection may be made without regard to the provisions of sections 3324 of title 5, relating to the approval by the Director of the Office of Persormel Management of appointments under GS-16 GS-17, and GS-18 if the individual placed in such position is an individual who is transferred in connection with a transfer of functions under this chapter and who, immediately before October 1, 1977, held a position and duties comparable to those of such position. (3) The Secretary's authority under this subsection with respect to any position shall cease when the person first appointed to fi~ such position leaves such position. (d) Appointmentof additional scientific, engineering, etc., personnel without regard to civil service laws; compensation In addition to the number of positions which may be placed at GS-16, GS-17, and GS-10 under section 5108 of title 5, under existing law, or under th~ chapter, and to the extent the Secretary deems such action necessary to the discharge of his functions, he may appoint n~t ~more than two hundred of the scientLfic, eng neering, professional, and administrative per-

rio sta

m~

7251 TITLE 42--TH~ 195-2 Case §1:91-cv-01362-CFL DocumentPUBLIC status, office, rm~k, or grade which officers or enlisted men may occupy or hold or any emolument, perquisite, right, privilege, or benefit incident to, or arising out of, such status, office. rank, or grade. A member so detailed shaD. not be subject to direction or control by his armed force, or any officer thereof, directly or indirectly, with respect to the responsibilities exercised in the position to which detailed. (Pub. L. 95-91, title VI, § 625, Aug. 4, 1977, 91 Stat. 598; Pub. L. 95-509, title II, § 210, Oct, 24, 1978, 92 Staf. 1779.) 1978--Subsec. (bl, ~ub. L, 95-509 deleted requirement that a detailed member charged to the limitabe tions applicable to the Department and prohibition of other limitation or strengths applicable to the Armed

HEALTH AND V/ELF~RE Filed 07/27/2006 § 7255. Subpoena

Page 7 of 27
andif withi~ Iutur~ tien Decer Thi title. §725' r purc cons tain faci] pat~ tar~ trac nec, of ti0r the Sta T~

For the purpose of carrying out the sions of this chapter, the Secretary, or his ~ authorized agent or agents, shall have the powers and authorities as the Federal Commission under section 49 of title 15 with spect to all functions vested in, or transferred or delegated to, the Secretary or such agents by this chapter. For purposes of carrying out its responsibilities under the Natural Gas Policy Act of 1978 [15 U.S.C. 3301 et seq.], the Corn mission shah have the same powers and author ity as the Secretary has under this section, (Pub. L. 95-91, tit~e VI, § 645, Aug. 4, 1977, star. 599; Pub. L. 95-621, title V, § 508(a),

The Natural Gas Policy Act of 1978, referred to ~ text, is Pub. L. 95-621, Nov. 9, 1978, 92 Star, 3350, which is classified generally to chapter 60 (§ 3201 et seq.) of Title 15, Commerce Trade. For complete and classification of this Actto the Code, see Short Title note set out under section 3391of Title 15 and Tables: 1973--Pub. L. 95-621 added provision giviug the Commission the same powers and authority as the Secretary under this section for purposes of carrying out its responsibilities under the Natural Gas Policy § 7256. Contracts, leases, etc., with public agencie~ and private organizations and persons (a) The Secretary is authorized to enter in~ and perform such contracts, leases, cooperative agreements, or other similar transactions with public agencies and private organizations and persons, and to make such payments (in lump sum or installments, and by way of advance or reimbursement) as he may deem to be necessary or appropriate to carry out functions now or hereafter vested in the Secretary. (b) Notwithstanding any other provision of this subchapter, no authority to enter into con= tracts or to make payments under this sub= chapter shah be effective except to such extent or in such amounts as are provided in advance in appropriation Acts. (Pub. L. 95-91, title V'i, § 646, Aug. 4, 1977, 91 Stat. 599.)

part thereof available by law, including appropriation Acts, to the official or agency from (Pub. L. 95-91, title star. 598.) :Except as otherwise chapter, the Secretary VI, § 641, Aug. 4, 1977, 91

: ::

II p rer ln~

expressly

prohibited

by

may delegate

any of his

functions

within

the

Department

as he may

(Pub. L. 95-91, title Stat. 599.) The Secretary tional units

VI, § 642, Aug. 4, 1977, 91

is authorized

to establish,

or components within the Depart-

priate. Such authority shall not extend to the abolition of organizational units or components established by this chapter, or to the transfer (Pub. L. 95-91, title Star. 599.) The Secretary VI, § 643, Aug. 4, 1977, 91 Pub. L. 95-238,title II, § 204, Feb. 25, 1978, 92 Star. 59, as amended Pub. L. 96~70,title II, § 203(f), Oct. by 19, 1980, 94 St!~t. 2243,providedthat:

is authorized

to prescribe

such

hereafter vested in him. (Pub. L. 95-91, title VI, § 644, Aug. 4, 1977, 91 Staf. 599.)

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EXHIBIT 2

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DELEGATION ORDER NO: 0204-98 TO THE ASSISTANT SECRETARY, MANAGEMENT ADMINISTRATION AND Pursuantto the authority vestedin me as Secretary Energy of (~S~retary") and Section642 of the Department Energy Organization of Act (P.L. 95-91)there is herebydelegated the Assistant to Secretary, Management and Administration, a non-exclusive on basis,the authority to: I. Establish hours of duty and administrative work week for

Department of Energy (DOE) Headquarters and for field organizations that do not have such authority.

2. ApproveFederalLabor-Management Agreements. actionsinvolving positions the GS-15 at 3. Approvepersonnel level and belowor equivalent levels. 4. Approvepersonnel actionsrelating the appointment experts to of and consultants pursuant Section3109 df title 5 of the to United States Code (Schedule A Authority). to of or 5. Approveactionsrelating the establishment confidential policydetermining positions (Schedule Authority). C 6. Serve as Executive Secretary the Executive of Personnel Board. ApproveHeadquarters organization changesat the third and fourth level Iofficesand divisions equivalent) or and approvefield organization changesat the secondlevel (Assistant Managers or equivalent).

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Enter into, approve,administer, modify,close-out, terminate, and take such other action as may be necessary and appropriate with respect to any procurement contract, sales contract, interagency agreement, financial assistance agreement, financial incentive agreement or other similaraction bindingthe Department Energy to the of obligation and expenditure publicfunds or to the sale of products of and services.Such action shall includethe renderingof approvals, determinations decisions, and exceptthose requiredby law or regulation be made by other authority. to Serve as the SeniorProcurement Official, Headquarters, whom to authority for extraordinary contractual actionsto facilitate the nationaldefensepursuantto P.L. 85-804and Executive Order 10789, as amended,is delegatedby 41CFR 9-17.101(b)(1). 10. Establish dollarthreshold amountsor other limitations for DOE Headquarters and field activities observewhen entering to into and approving procurement contracts, interagency agreements, financial assistance agreements, financial incentive agreements, sales contracts similaragreements. or 11. 12. Designate contracting officers. Acquire,manageand disposeof personalproperty held by the Department for official use by its employees contractors. or 13. Sign applications for permitsto procuretax-freespiritsfrom a distilled spiritsplant for nonbeverage purposesfor use by the Department, authorized 26 USC 5271 and 27 CFR 213.142. as by

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Designate the Treasury to Department those DOE employees who will serve as certifying officersand agent/imprest fund cashiers. authorized certifyfinancial to statementi to 15. Appointofficials Treasury other Federalagenciesand to Congressas requiredby , law or regulation. This authoritymay not be redelegated. approveand issue financial plans and allotments for 16. Establish, all components, DOE and make disbursements of pursuant thereto. approveand implement systemsof administrative financial 17. Establish, controlsto restrictexpenditure obligations components DOE of of to the amountof apportionments such components, to and to establish, approveand implement systemsof administrative financial controls to ascertain responsibility the creationof all such expenditure for obligations. to recoverypricingpolicy. 18. Approveexceptions the full-cost and take such other actionas may be necessary 19. Sign all documents and appropriate for the submission for publication the Federal to Register, where the authority sign such documents to has not otherwise been delegated other officers the Department Energy. to of of of Act 20. Reportviolations the Anti-Deficiency (31 U.S.C.665) and act the name of the Secretary for the purposeof enforcing the Anti-Deficiency Act withinthe Department.

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4

that utilization the authority of contained Section101(c) in 21. Determine of the DefenseProduction Act of 1950, as amended,will "maximize domestic energysupplies," contemplated Section2(b) of Defense as by Mobilization Order 13. This determination will be made after consultation with the GeneralCounseland the Director Policy, of Planning, and Analysis. of or are critical 22. Find that certainsupplies material equipment and essential maintain to increaseexploration to or for energy suppliesor their production, refining, transportation or conservation to construct or and to maintainenergyfacilities, as described Sectioni01(c)(3)(A) the DefenseProduction in of Act of 1950,as amended. Directives. 23. ApproveDepartmental of requestfrom the 24. With the concurrence the GeneralCounsel, GeneralServices Administration ("GSA")that the Secretary Energybe authorized intervene proceedings to in relating to utilitymattersbeforeany Federalor State regulatory agency or commission order to represent in the consumerinterests of Executive Agencies the FederalGovernment such proceedings; of in and to intervene such proceedings in pursuant an authorization to receivedfrom GSA, subjectto the concurrence and with the assistance the GeneralCounsel. of of data processing and telecommunications 25. Approveacquisitions automatic equipment. 26. Designate the DOE Freedomof Information Act and PrivacyAct Officers.

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5

actionsto acquire, purchase, by lease,or otherwise, 27. Take all necessary real propertyand interests therein;take necessary additional actions following the initiation condemnation of proceedings and the execution of declarations taking;and exerciseall authority the Secretary of of regarding the management and disposal Departmental of real estate. This authority does not extendto initiation condemnation of proceedings execution declarations taking. or of of 28. Issue rules and regulations necessary as and appropriate carry out to the authorities this delegation in exceptthat this authority may be redelegated only to the heads of organizations reporting the to Assistant Secretary and may not be furtherredelegated. or delegate(s) 29. Take such other actionas the Secretary his authorized may, from time to time, director authorize. The authority delegated the Assistant to Secretary, Management and Administration be furtherdelegated, whole or in part, as may be may in appropriate, except as specifically prohibited this delegation. in In exercising the authority delegated this Order the delegateshall be by governed the rules and regulations DOE and the policies by of and procedures prescribed the Secretary his delegate. by or The authorities limitation Assistant written delegated in this Order are in addition to, and not in assigned to the

of, any authorities Secretary,

delegated or responsibilities

Managementand Administration

by any other DOEdelegation, regulation, or other issuance.

or oral,

or by any Departmental Directive,

All actionspursuant any authority to delegated prior to this Order or pursuant any authority to delegated this Order taken prior to and in effect by on the date of this Order are herebyconfirmed and ratified, and shall remain in full force and effectas if taken under this Order,unlessor until rescinded, amendedor superseded.

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Nothingin this Order shall precludethe Setretary from exercising any of the authority delegated so whenever his judgmentthe exercise such in of authority necessary appropriate administer is or to the functions vestedin him. ~elegation Orders No. 0204-5, 0204-6, 0204-7, 0204-9, 0204-73, and 0204-74

are hereby rescinded. This order is effective June 14, 1982.

James~."Edwards Secretary Energy of

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EXHIBIT 3

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DEPARTMENT ENERGY OF ASSISTANT SECRETARY, MANAGEMENT ADMINISTRATION AND REDELEGATION ORDER NO: 0204-98.1 TO THE DIRECTOR, PROCUREMENT ASSISTANCE AND MANAGEMENT Pursuantto the authorityvestedin me by the Secretary Energy of there is herebydelegatedto the Director, Procurement and Assistance Management (the Senior Procurement Official) the following specific authorities: I. Enter into, approve,administer, modify,close-out, terminate, and take such other actionas may be necessary and appropriate with respectto any procurement contract, sales contract,interagency agreement, financial assistance agreement, financial incentive agreement other similaractionbindingthe Department Energyto or of the obligation and expenditure publicfunds or to the sale of proof ducts and services.Such action shall includethe renderingof approvals, determinations decisions, and except those requiredby law or regulation be made by other authority to and the issuance of regulations carry out the functions to and authorities this deleof gation. Serve as the Senior Procurement Official,Headquarters, whom to authority for extraordinary contractual actionsto facilitate the nationaldefensepursuantto P.L. 85-B04 and Executive Order 10789, as amended,is delegatedby 41 CFR 9-17.101(b)(1). The authority conferred this paragraphshall not be used to obligatethe by UnitedStatesin an amountin excessof $50,000withoutapprovalof the Assistant Secretary, Management and Administration.

o

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Establish dollar threshold amountsor other limitations for DOE Headquarters and field activities observe~nen enteringinto and to approving procurement contracts, interagency agreements, financial assistBnce agreements, financial incentive agreements, sales contractsor similaractions. Designate contracting officers. Acquire,manageand disposeof.personal property held by the Department for officialuse by its employees contractors. or Sign applications for permitsto procuretax-free spiritsfrom a distilled spiritsplant for nonbeverage purposesfor use by the Department, authorized 26 U.S.C.5271 and 27 C.F.Ro213.142. as by Determine that utilization the authority of contained Sectioni01(c) in of the DefenseProduction Act of 1950, as amended,will "maximize domesticenergysupplies", contemplated Section2(b) of Defense as by Mobilization Order 13. This determination will be made after consultation with the GeneralCounseland the Director Policy, of Planning, and Analysis. Find that certainsuppliesof materialor equipment are critical and essential maintainor to increaseexploration to for energy supplies their production, or refining, transportation or conservation to construct or and to maintainenergyfacilities, as described SectionI01(c)(3)(A) the DefenseProduction in of Act of 1950, as amended. .

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3

Sign all documents relatingto procurement contracts, sales contracts~ interagency agreements, financial assistance agreements, financial incentive agreements and similaragreements and relatedregu]atlons and take such other action as may be necessary aRd appropriate for the submission for publication the FederalRegister° to Take such other actionas the Assistant Secretary° Management and Administration his authorized or delegate(s) may, from time time,director authorize. The authority delegated the Director, to Procurement and Assistance Management may be furtherdelegated, whole or in part, as may be appropriate. in In exercising the authority delegated this Order the delegateshall be by governedby the rules and regulations DOE and the policiesand procedures of prescribed the Assistant by Secretary, Management and Administration his or delegate. The authorities delegatedin this order are in additionto, and not in limitation of, any authorities delegated responsibilities or assignedto the Director, Procurement and Assistance Management any other DOE delegation, by writtenor oral, or by any Departmental Directive, regulation, other or issuance. All actionspursuantto any authority delegated prior to this Order or pursuantto any authority delegated this Order taken prior to and in effect by on the date of this Order are herebyconfirmed and ratified, and shall remain in full force and effect as if taken under this Order,unlessor until rescinded, amendedor superseded.

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Nothingin this Order shall preclude the Assistant S~cretary, Management and Administration from exercising any of the authority delegated so whenever in his judgmentthe exercise such authority necessary appropriate of is or to administer the functions vestedin him. This order is effective June 14, 1982.

WilliamS. Heffe]finger Assistant Secretary Management and Administration

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EXHIBIT 4

, United States1:91-cv-01362-CFL Case Government

Document 195-2

Filed 07/27/2006 Department27 Energy Page 21 of of

OATE: 0 $ lgBB JUL
_v'ro H~-441
¯TN OF;

SUBJECT: Delegation Authority/Designation of Contracting of Head Activity (HCA)
TO:

Manager, Albuquerque Operations Office Department Energy(DOE)Redelegation of Order0204-98.1 sets forth various authorities delegated the Director, to Procurement and Assistance Management Directorate (Director), provides and that these authorities be furtherredelegated wholeor in part as may be may in deemedappropriate. This memorandum servesto redelegate you the to specific authority to: ACQUISITION Approve, enter into (award/execute), administer, modify, close out, terminate, and take such other actions as may be necessary and appropriate with respect to any contractual arrangement (including interagency and other funds-out agreements) committing the DOEto the obligation and expenditure of public funds: provided, the execution of such actions conforms with applicable laws, regulations, orders, and procedures including those determinations and decisions as required or described in the Department of Energy Acquisition Regulation; provided further, any such action (other than a funding modification) $I0,000,000 or more, including the value of all priced options or estimates of unpriced options and any contractor cost share or in-kind contributions shall have the prior approval, or waiver thereof, of the Director or designee except that in the case of a subcontract consent/approval action this amount shall be $25,000,000; provided further, that any competitive solicitation intended to result in award of a contract or multiple contracts having a total value of $I0,000,000 or more shall also have the prior approval, or waiver thereof, of the Director or designee. This authority may be redelegated, with the power of further redelegation. Designate Competition Advocates for each installation that has been delegated contracting authority and reports to you as HCAto perform those duties required by the Competition in Contracting Act of 1984, 98 Stat 1175 et. seq. (Public Law 98-369), provided such designation, if below the GM-15level, shall be approved by me. This authority may not be redelegated.

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Exercise the determination required the FederalAcquisition by Regulations, the case of Mistakein Bids allegedafteropening in of bids and beforeaward,and make all administrative determinations regarding withdrawal bids.This authority of may not be redelegated. ASSISTANCE Approve, enterinto (award), administer, modify,closeout, terminate, and take such otheractionsas may be necessary and appropriate regarding financial assistance and financial incentive instruments, including but not limitedto grants, cooperative agreements, loansand loan guarantees, pricesupport and guaranteed marketagreements, committing the Department to the obligation and expenditure publicfunds;provided of such actionsconformwith applicable laws,policies, regulations and procedures; provided further, any grantor cooperative agreement actionof $5,000,000 more including or any performer cost share or in-kindcontribution all actionsfor loansand loan and guarantees, pricesupportagreements, all othersuch and financial incentive actionsirrespective amount,shallhave of the priorapproval, a waiverthereof, the Director or of or designee exceptthat in the case of thosestatutorily required grantawards(formula grantsincluding the institutional awards underthe Institutional Conservation Program) the priorapproval amountshallbe $I0,000,000; provided further, any solicitation document whichmay resultin a financial assistance incentive or awardor multiple awardswith a collective valueof $5,000,000 or more shallalso have the priorapproval, waiverthereof, or of the Director designee. or This authority may be redelegated, with the powerof furtherredelegation. Submit to the Federal ~ for publication all notices of financial assi~ solicitations.This authority may be redelegated levelbelowthat of the HCA, withoutthe powerof one further redelegation. SALES Approve, enterinto,and take such other actionsas may be necessary and appropriate, withrespectto agreements com~nitting the Department the sale of products to and services, including funds-in interagency agreements and other agreements providing for reimbursable work for others;provided, such agreements are made pursuant any applicable to laws,Executive orders, regulations, directives and governing policies and procedures; provided further, all reimbursable work for othersshallhave been authorized the designated by official responsible such for work,and statutory, otherlegal,and regulatory authority to performthe reimbursable work exists.This authorization be may redelegated with powerof furtherredelegation provided such redelegation otherthan contracting to officers no more than is two leve~sbelowthat of the HCA.

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PROPERTY Manageand disposeconsistent with applicable laws,regulations, policies and procedures, personal all property held by DOE for official use by Departmental employees, contractors, and recipients. This authority may be redelegated. CONTRACTING OFFICERS AppointContracting Officers for acquisition, assistance and salesactionsin accordance with DOE Order4200.4. Havingbeen delegated the authorities prescribed abovefor the awardof acquisition, assistance, sales instruments, well as appoint and as contracting officers help carry out theseauthorities, are also to you designated an HCA for performance thosefunctions as of and duties specifically reserved an HCA or designee may be appropriate. to as The following DOE organizations designated are Contracting Activities and shallreportto you as HCA: Albuquerque Operations Office DallasSupportOffice KansasCity SupportOffice DaytonAreaOffice Amarillo Area Office ~ ,Kansas City AreaOffice Pinellas Area Office RockyFlatsArea Office Los AlamosArea Office The authorities redelegated this memorandum by are in addition to, and not in limitation of, any otherauthorities delegated or responsibilities assigned your officeorallyor in writing, to or by any Departmental directive, regulation, otherissuance. or All actionspursuant any authority to delegated priorto this redelegation pursuant any authority or to redelegated hereintaken priorto and in effecton the date of this redelegation hereby are confirmed and ratified, and shallremainin full forceand effectas if takenunderthis redelegation, unlessor untilrescinded, amendedor superseded. Nothingin this redelegation shallpreclude the Director, Procurement and Assistance Management Directorate, from exercising any of the Director's authority whenever the Director's in judgment the exercise of such authority necessary appropriate administer is or to the functions vestedin that position.

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This delegation effective is immediately, supersedes and all previous delegation 9emoranda issuedto your officeby this officeon the above authorities.

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EXHIBIT 5

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48 CFR Ch. I (10-I-05
3.503~2 Contract clause. Subpart 3.6--Contracts With Employeesor Organlzations ~ Controlled by Them 3.601Policy. 3.602 Exceptions. 3.603 Responsibilities d marking Subpart 3,7--Voldiog and Contracts regarding 3.700 Scope of subpart. 3.701 Purpose. 3.702 Definition.

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3.103-2

Regulation

tions implementing Public Law 95-521, ~vhich amended 18 U.S.C. 207. 3.102 3.103 shall be conabove reproach [Reserved] Independent pricing.

o the exrequire the strictly any

funds avoid

Subpart 3.8--Umltation on the ~tles to

est in Govern' ~elationships. While i and regulations the actions of their official addition, be such that of their actions.

3.103-1 Soliclta~ion provision. The contracting officer shah insert the provision at 52.203-2, Certificate of Independent Price Determination, in solicitations when a firm-fixed-price contract or fixed-price contract with economic price adjustment is contemplated, unless(a) The acquisition is to be made under the simplified acquisition procedures in part 1~; (h) [Reserved] (c) The solici~ation is a request for technical proposals under two-step sealed bidding procedures; or (d) The solicitation is for utility services for which rates are set by law or regulation.

and acceptance of Government per~d Antitrust employee or in~d3.103-2 J~valuat4.ng ~he c er ~ca~ion. ~ gkft, favor, enter(a) Evaluation guidelines. (1) None of mone(a) has or Government busiparagraph (a)(2) of the Certificate agency, (b) that are regulated (hereafter, the certificate): I has in(i) The fact that a firm has published ~be snbstanflia/ly official exceptions are

Contractor Employees 3.900 Scope of subp~rt. 3.901 Deiflnitlons.

(~i)

The fact

that

a firm has informed

required by Execu8, 19~5, and 5 Standards e/ ency standards con3.000 Scope of part, This part prescribes policies a exceptions to

(iii)

The fac~ t~ha~ a £firm has sold the

retest and for dealing with their] ent or actual occurrence.

measures for persons of conduct. 9mployee finanon priformer Governin Offlce of Pergency regulla-

(b)(2) sible if--

of the certificate, for detezmiuing

an individual prices

the offered

4O

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1,60~3 , Supshall e ASinure~ed in m. 1.501 Solicitation of agency and : revisions. also be givento for revi5~en submitted writin data and rationale evaluation. may be appropriate amend, or dei is likely to benefit from additional views and discusshall receive from the appointing authority (see 1.60~-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers' authority shall be readily available to the public and agency personnel. (b) No contract shall be entered into ~mless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met. 1.602-2 Responsibilities. Contracting officers are responsible for ensuring performance of all necessary actions for effective con~ tracting, ensaring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall~ (a) Ensare that the requirements 1.602-1(b) have been met, and that sufficient funds are available for obligation; (b) F~nsare that contractors receive impartial, fair, and equitable treatment; and (c) Request and consider the advice specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate. [48 FR42103.Sept. 1983, asamended 70 19, at FR57451, 50, 2005] Sept. 1.602-3 R~tification of unauthorized commi~nents. (a) Definitions. Ratification, as used in this subsection, means the act of approving an unauthorized condiment by an officialwho has the aukhority to do so. Unauthorized commitment, as used in this subsection, means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Gow (b) Policy. (I) Agencies shouldtake

1.501-1 Definition. Significanl revisions, as used subpart, means revisions that a substantive i the FAP, System having a t at 56 cost or a~strative impact on :ch 19, tractors or offerars 13053, fect beyond the internal operatin~ cedures of the issuing agency. This pression, for example, reties editorial, stylistic, or other that have no impact on the basic n ~d in ing of the coverage being revised. ~t-to1.501-2 Opportunity for public lding ments, gani(a) Views of agencies s is a mental parties or organizations considered in formulating ~ repoficies and procedures. y to (b) The opportunity to submit ty is ~ould ten comments on proposed ~rage revisions shall be provided by ]~EGISTER. ~eCu= notice in the FEDERAL of these notices shall include(l) The text of the revision ~ reimpracticable to publish the full t ltive a summary of the proposal; ~ de(2) The address a.ud tele with of the individual from whom the revision, in full text, can than quested and to whom t au- on should be addressed; and 3) of (3) W]nen 1.501-3(b) is applicable * the statement that the r on a temporary basis ~tral tion of the public comment period. (c) A minimum of 30 days and, ;hart ~om- mally, at least 60 days will be given the receipt of comments. .tive ara1.501-3 Exceptions. the seed (a) Comments need not be ~ Ci- when the proposed coverage does constitute a significant revision. (b) Advance comments need solicited when argent and circumstances make solicitation comments impracticable prior to effective date of the ~ when a new statute must be merited in a relatively short time. In such case, the coverage be issued on a temporary basis shall provide for at least a 30 day lic comment period. 16

1.6--Career ibilities

DevelopAuthority,

prohibited by authority and to contract for authorand services are vested in The agency head may contracting activities and authority to manage contracting functions to contracting activities. may be entered into and signed on behalf of the Government 0~by contracting officers. In some agencies, a relatively small number of high ~evel officials are designated contra~ting officers solely by virtue of their positions. Contracting officers ~eI0w the level of a head of a contracting activity shall be selected and appointed under 1.603. (b) Agency heads may mutually agree (1) Assign contracting functions and r~0nsibilities from one agency to anOthe~and (fi) Create joint or combined offices t~ ek~rcise acquisition functions and r~spofi~ibfliMes. [60FR 4972i,Sept. 26, 1995] L602 Contracting officers. 1:602-1 Authority. (a) Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting ofricers may bind the Government only to the extent of the authority delegated to them. Contracting officers

specifically

imum extent possible, the need for ratification actions. A~though procedures are provided in this section for

17