FOREIGN OWNERSHIP, CONTROL, OR INFLUENCE (FOCI) DETERMINATION DOCUMENTS (5-99)
DEAR 952.204-73 FACILITY CLEARANCE [Deviation] (AL 99-3)
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.
Offerors 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.
Use of Certificate Pertaining to Foreign Interests, Standard Form 328
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 of 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 the 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.
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
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.
A contract containing the appropriate security clauses.
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.