[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Proposed Rules]
[Pages 66643-66646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31985]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1819, 1834, 1845, 1852 and 1870
Revision to the NASA FAR Supplement to Eliminate Non-Statutory
Certification Requirements
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Aeronautics and Space Administration is
publishing a notice of proposed rulemaking to amend the NASA FAR
Supplement (NFS) to eliminate all non-statutory imposed contractor and
offeror certification requirements.
DATES: Written comments on the proposed rulemakig must be received on
or before February 18, 1997.
ADDRESSES: Comments (3 copies) should be addressed to Donald G. Abrams,
Office of Procurement, Contract Management Division, Code HK, NASA
Headquarters, Washington DC 20546.
FOR FURTHER INFORMATION CONTACT:
Donald G. Abrams, telephone (202) 358-0512; facsimile (202) 358-3083;
or electronic mail donald.abrams@hq.nasa.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 4301(b)(1)(B) of the Federal Acquisition Reform Act of 1996
(FARA), Pub. L. 104-106, requires agencies that have procurement
regulations containing one or more certification requirements for
contractors and offerors that are not specifically imposed by statute
to issue for public comment a proposal to amend their regulations to
remove the certification requirements. Such certification requirements
may be omitted from the agency proposal if (i) the senior procurement
executive for the executive agency provides the head of the executive
agency with a written justification for the requirement and a
determination that there is no less burdensome means for administering
and enforcing the particular regulation that contains the certification
requirement; and (ii) the head of the executive agency approves in
writing the retention of such certification requirement.
The proposed rule constitutes NASA's proposal for the elimination
of all non-statutory imposed contractor and offeror certification
requirements from the NFS pursuant to section 430(b)(1)(B) of FARA.
NASA has not identified any regulatory certification requirement
contained in the NFS which it has determined should be proposed for
retention. Consequently, the Agency is not pursuing approval from the
Administrator of NASA to retain any certification requirement not
specifically imposed by statute. The Agency invites public comment on
its proposal to eliminate all regulatory certification requirements
from the NFS and on its determination that there are no certification
requirements which should be proposed for retention.
Agency Proposal to Eliminate Non-Statutory Certification
Requirements
The following is the Agency's proposal pertaining to each
contractor and offeror certification requirement contained in the NFS.
1. 1816.303 Cost Sharing Contracts
This requirement, which dealt with the certification requested from
a university to the fact that it has ``no commercial, production,
educational, or service activities on which to use the results of the
research and no means of recovering any cost sharing on such
projects'', has been deleted from the rewrite of the NFS.
2. 1819.7211 Application Process for Mentor Firms to Participate in the
Program
This section, which required that ``a proposed mentor must submit
the following information (1) certification that the mentor firm is
currently performing under at least one active approved subcontracting
plan * * *'' will be rewritten to require simply a statement to the
same effect.
3. 1832.7002 Responsibility
This section has been removed due to the rewrite of the NFS
(effective October 29, 1996, 61 FR 55765-55774).
4. 1832.7004(b) Contractual Implementation (Milestone Billing)
The section has been removed due to the rewrite of the NFS
(effective October 29, 1996, 61 FR 55765-55774).
5. 1834-005-1 Competition (Major Systems Acquisition)
The passing reference under ``(4) Phase D, Development, involves
final detailed design, fabrication, certification, and delivery of an
operational system that meets program requirements,'' will be deleted
from the rewrite to the NFS.
6. 1845.302-73 Determination and Findings (Decision to Provide
Government Property)
Whereas the previous section was worded, ``contractor has certified
inability to acquire the facilities'', this will be rewritten to have
the contractor ``demonstrate inability to acquire* * *''.
7. 1852.223-70 Safety and Health
Previously, the clause required the contractor to submit a
certification program for personnel involved in hazardous operations as
required by the contract schedule or the contracting officer.'' This
will be rewritten to require ``qualification standards for personnel* *
*''. This clause was published in the Federal Register October 29, 1996
(61 FR 55753-55764).
8. 1852-247-73 Shipment by Government Bills of Lading
This optional transportation clause for use in f.o.b. Origin
contracts instructs the contractor to certify on his/her invoices that
the material has been shipped. It will be rewritten to require simply a
statement that the material has been shipped.
9. 1870.102-703 VI Proposal Submission Information (Investigation
Acquisition System)
Section 2.6, entitled Certification, previously required that ``the
proposal must be signed by an institutional official authorized to
certify institutional support * * *''. It will be rewritten to be
entitled ``Signatory'' and require ``signed by institutional official
authorized to ensure* * *''.
Public Comments
NASA invites interested persons to participated by submitting data,
views, or arguments with respect to the NFS amendments set forth in
this proposed rule. Three copies of written comments should be
submitted to the address indicated in the ADDRESSES section of this
rule. All comments received will be available for public inspection
during normal work hours. All written comments received by the date
indicated in the DATES section of this notice will be carefully
assessed and full considered prior to the effective date of these
amendments as a final rule. Any information considered to be
confidential must be so identified and submitted in writing, one copy
only. NASA reserves the right to determine the confidential status of
the information and to treat it according to
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its determination in accordance with 10 CFR 1004.11.
Impact
NASA certified that this rule will not have a significant economic
impact on a substantial number of small entities and, therefore, no
regulatory flexibility analysis has been prepared.
NASA has concluded that this proposed rule does not involve any
significant issues of law or fact. Therefore, consistent with 5 U.S.C.
553, NASA has not scheduled a public hearing.
List of Subjects in 48 CFR Parts 1819, 1834, 1845, 1852 and 1870
Government Procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR 1819, 1834, 1845, 1852 and 1870 are proposed to
be amended as follows:
1. The authority citation for 48 CFR 1819, 1834, 1845, 1852 and
1870 continues to read as follows:
Authority: U.S.C. 2473(c)(1).
PART 1819--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
1819.7211 [Amended]
2. Section 1819.7211 is revised to read as follows:
1819.7211 Application process for mentor firms to participate in the
program.
(a) Prime contractors interested in becoming a mentor firm must
submit a request to the NASA OSDBU to be approved under the program.
The application will be evaluated on the extent to which the company
plans to provide developmental assistance. The information required in
paragraph (b) of this section must be submitted to be considered for
approval as a mentor firm.
(b) A proposed mentor must submit the following information to the
NASA OSDBU:
(1) A statement that the mentor firm is currently performing under
at least one active approved subcontracting plan (small business
exempted) and that they are eligible, as of the date of application,
for the award of Federal contracts;
(2) The cognizant NASA contract number(s), type of contract, period
of performance (including options), title of technical program effort,
name of NASA Program Manager (including contact information) and name
of NASA field center where support is provided;
(3) The number of proposed Mentor-Protege arrangements;
(4) Data on all current NASA contracts and subcontracts to include
the contract/subcontract number(s), period of performance, awarding
NASA installation or contractor and contract/subcontract value(s)
including options;
(5) Data on total number and dollar amount of subcontracts awarded
under NASA prime contracts within the past 2 years and the number of
dollar value of such subcontracts awarded to entities defined as
proteges.
(6) Information on the proposed types of developmental assistance.
For each proposed Mentor-Protege relationship include information on
the company's ability to provide developmental assistance to the
identified protege firm and how that assistance will potentially
increase subcontracting opportunities for the protege firm, including
subcontracting opportunities in industry categories where these
entities are not dominant in the company's current subcontractor base;
and
(7) A Letter of Intent signed by both parties. At a minimum, the
Letter of Intent must include the stated commitment that the parties
intend to enter into a mentor-protege agreement under the NASA program,
that they intend to cooperate in the development of a suitable
developmental assistance program to meet their respective needs, and
that they agree to comply with the obligations in section 1819.7215 and
all other provisions governing the program.
PART 1834--MAJOR SYSTEM ACQUISITION
1834.005-1 [Amended]
3. In section 1834.005-1, the existing paragraph (b)(4) is removed
and paragraph (b)(5) is redesignated as paragraph (b)(4).
PART 1845--GOVERNMENT PROPERTY
1845.302-73 [Amended]
4. Section 1845.302-73 is revised to read as follows:
1845.302-73 Determination and findings.
(a) Procedure. Determination and findings (D&F) required under FAR
45.302-1(a)(4) shall be prepared by the contracting officer and
approved by the procurement officer. Prior to approval of the D&F by
the procurement officer, concurrence must be obtained from the Director
of Administration or equivalent, to ensure that the requiring activity
and the installation supply and equipment management officer agree to
the use of the Government facilities by the contractor. D&Fs shall
address individual types of facilities to be provided to the
contractor. Reference to specific variations in quantities of items to
be provided should be included in the D&F if additional requirements
are anticipated. A separated D&F is required before adding new types of
items or significant changes in quantity. A separate D&F is also
required before adding any new work to the contract that requires
additional Government facilities.
(b) Format. A sample format follows:
(Format) National Aeronautics and Space Administration, Washington, DC
20546
Determination and Findings
Decision To Provide Government Facilities
On the basis of the following findings and determinations,
Government-owned facilities may be provided to [insert the name of
the contractor] pursuant to the authority of FAR 45.302-1(a) (4).
Findings
1. The [insert the name of the contracting activity] and the
contractor (have entered)/(proposed to enter) into Contract No.
[insert the contract number]. (Include the following information:
Type of contract, contract value, and a brief description of the
scope of work performed under the contract.)
2. (Justify that Government facilities are needed for
performance under the contract. The justification shall demonstrate
either (i) that the contract cannot be fulfilled by any other means,
or (ii) that it is in the public interest to provide the facilities.
It is imperative that the justification be fully substantiated by
evidence.)
3. (If the contract effort cannot be fulfilled by any other
means, indicate why the contractor cannot provide the facilities.
For example, due to financial constraints, the contractor has
demonstrated inability to acquire the facilities; or, even though
the contractor is willing and financially able to acquire these
facilities for its own account, the contractor has stated that time
will not permit making arrangements to obtain timely delivery to
meet NASA requirements. If timely delivery is the problem, state
when the contractor will replace the Government facilities with
contractor-owned facilities. Address leadtime, validate the
contractor's claims, and state that private financing was sought and
either not available or not advantageous to the Government. If
private financing was not advantageous to the Government, provide
justification. Indicate other alternatives considered and reasons
for rejection.)
4. (Give a general description of the types of facilities to be
provided and indicate the variation in quantities of items based on
functional requirements. Explain how these facilities pertain to the
scope of work to be completed. State that the contract cannot be
accomplished without the specified facility items being provided.
Include an estimate of the value of the facilities and a statement
that no facilities items under $10,000 unit cost will be provided
unless the contractor is a nonprofit, on-site, or the facilities are
only available from the Government.)
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5. (Indicate whether the property will be accountable under this
contract or a separate facilities contract.)
Determination
For the reasons set forth above, it is hereby determined that
the Government-owned facilities identified herein will be provided
to the contractor.
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Procurement Officer
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Date
(End of format)
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Part 1852 is amended as set forth below:
1852.223-70 [Amended]
6. Section 1852.223-70 is revised to read as follows: 1852.223-70
Safety and Health.
As prescribed in 1823.7001(a), insert the following clause:
Safety and Health
(February 1996)
(a) The Contractor shall take all reasonable safety and health
measures in performing under this contract. The Contractor shall
comply with all Federal, State, and local laws applicable to safety
and health in effect on the date of this contract and with the
safety and health standards, specifications, reporting requirements,
and provisions set forth in the contract Schedule.
(b) The Contractor shall take or cause to be taken any other
safety and health measures the Contracting Officer may reasonably
direct. To the extent that the Contractor may be entitled to an
equitable adjustment for those measures under the terms and
conditions of this contract, the equitable adjustment shall be
determined pursuant to the procedures of the changes clause of this
contract; provided, that no adjustment shall be made under this
Safety and Health clause for any change for which an equitable
adjustment is expressly provided under any other provision of the
contract.
(c) The Contractor shall immediately notify and promptly report
to the Contracting Officer or a designee any accident, incident, or
exposure resulting in fatality, lost-time occupations injury,
occupational disease, contamination of property beyond any stated
acceptable limits set forth in the contract Schedule, or property
loss of $25,000 or more arising out of work performed under this
contract. The Contractor is not required to include in any report an
expression of opinion as to the fault or negligence of any employee.
Service contractors (excluding construction contracts) shall provide
quarterly reports specifying lost-time frequency rate, number of
lost-time injuries, exposure, and accident/incident dollar losses as
specified in the contract Schedule. The Contractor shall investigate
all work-related incidents or accidents to the extent necessary to
determine their causes and furnish the Contracting Officer a report,
in such form as the Contracting Office may require, of the
investigative findings and proposed or completed corrective actions.
(d) (1) The Contracting Officer may notify the Contractor in
writing of any noncompliance with this clause and specify corrective
actions to be taken. The Contractor shall promptly take and report
any necessary corrective action.
(2) If the Contractor fails or refuses to institute prompt
corrective action in accordance with subparagraph (d) (1) of this
clause, the Contracting Officer may invoke the stop-work order
clause in this contract or any other remedy available to the
Government in the event of such failure or refusal.
(e) The Contractor (or subcontractor or supplier) shall insert
the substance of this clause, including this paragraph (e) and any
applicable Schedule provisions, with appropriate changes of
designations of the parties, in subcontracts of every tier that (1)
amount to $1,000,000 or more (unless the Contracting Officer makes a
written determination that this is not required), (2) require
construction, repair, or alteration in excess of $25,000, or (3)
regardless of dollar amount, involve the use of hazardous materials
or operations.
(f) Authorized Government representatives of the Contracting
Officer shall have access to and the right to examine the sites or
areas where work under this contract is being performed in order to
determine the adequacy of the Contractor's safety and health
measures under this clause.
(g) As a part of the Contractor's safety plan (and health plan,
when applicable) and to the extent required by the Schedule, the
Contractor shall furnish a list of all hazardous operations to be
performed, including operations indicated in paragraphs (a) and (b)
of this clause, and a list of other major or key operations required
or planned in the performance of the contract, even though not
deemed hazardous by the Contractor. NASA and the Contractor shall
jointly decide which operations are to be considered hazardous, with
NASA as the final authority. Before hazardous operations commence,
the Contractor shall submit for NASA concurrence either or both of
the following, as required by the contract Schedule or by the
Contracting Officer:
(1) Written hazardous operating procedures for all hazardous
operations.
(2) A certification program for personnel involved in hazardous
operations.
(End of clause)
Sec. 1852.247-73 [Amended]
7. Section 1852.247--73 is revised to read as follows:
Sec. 1852.247-73 Shipment by Government bills of lading.
As prescribed in 1847.305-70(c), insert the following clause:
Shipment by Government Bills of Lading
(March 1989)
(a) The Contractor shall ship items deliverable under this
contract, if the transportation cost per shipment exceeds $100, by
Government bills of lading (GBLs). At least 15 days before shipment,
the Contractor shall request in writing GBLs from: ____________
[Insert name, title, and mailing address of designated
transportation officer or other official delegated responsibility
for GBLs]. If time is limited, requests may be by telephone:
____________ [Insert appropriate telephone number]. Requests for
GBLs shall include the following information.
(1) Item identification/description.
(2) Origin and destination.
(3) Individual and total weights.
(4) Dimensions and total cubic footage.
(5) Total number of pieces.
(6) Total dollar value.
(7) Other pertinent data.
(b) The Contractor shall prepay transportation charges of $100
or less per shipment. The Government shall reimburse the Contractor
for these charges if they are added to the invoice as a separate
line item supported by the paid freight receipts. If paid receipts
in support of the invoice are not obtainable, a statement as
described below must be completed, signed by an authorized company
representative, and attached to the invoice. The shipments
identified below have been made, transportation charges have been
paid by (company name), and paid freight or comparable receipts are
not obtainable.
Contract or Order Number:
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Destination:
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(End of clause)
PART 1870--NASA SUPPLEMENTARY REGULATIONS
Sec. 1870.102, Appendix I Chapter 7-- [Amended]
8. In Appendix I to 1870.102, Chapter 7, section 703, paragraph VI
is revised to read as follows:
APPENDIX I TO 1870.102--GUIDELINES FOR ACQUISITION OF INVESTIGATIONS
* * * * *
CHAPTER 7--PROCUREMENT AND OTHER CONSIDERATIONS
703. Other Administrative and Functional Requirements
* * * * *
VI. Proposal Submission Information
1. Preproposal Activities--In this section, the AO will indicate
requirements and activities such as the following:
a. Submittal of ``Notice of Intent'' to propose (if desired),
date for submission, and any additional required data to be
submitted. Indicate whether there are information packages which
will only be sent to those who submit ``Notice of Intent.''
b. Attendance at the preproposal conference (if held).
Information should be provided as to time, place, whether attendance
will be restricted in number from
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each institution, and whether prior notice of intention to attend is
required. If desired, a request may be included that questions be
submitted in writing several days before the conference in order to
prepare replies.
c. The name and address of the scientific or technical contact
for questions or inquiries.
d. Any other preproposal data considered necessary.
2. Format of Proposals--This section should provide the
investigator with the information necessary to enable an effective
evaluation of the proposal. The information is as follows:
a. Proposal--The AO should indicate how the proposal should be
submitted to facilitate evaluation. The proposal should be submitted
in at least two sections; (1) Investigation and Technical Section;
and (2) Management and Cost Section.
b. Signatory--The proposal must be signed by an institutional
official authorized to ensure institutional support, sponsorship of
the investigation, management, and financial aspects of the
proposal.
c. Quantity--The number of copies of the proposal should be
specified. One copy should be clear black and white, and on white
paper of quality suitable for reproduction.
d. Submittal Address--Proposals from domestic sources should be
mailed to arrive not later than the time indicated for receipt of
proposals to:
National Aeronautics and Space Administration, Office of (Program)
Code ________ AO No. ________
Washington, DC 20546
e. Format--To aid in proposal evaluation, and to facilitate
comparative analysis, a uniform proposal format will be required for
each AO. The number of pages, page size, and restriction on photo
reduction, etc., may be included. The format contained in Appendix C
can be used as a guide. Proposers may be requested to respond to all
of the items or the AO may indicate that only selected items need be
addressed. Using the Appendix format as a guide, specific guidelines
may be prepared for the AO or an appropriate form developed.
3. Additional Information--This section may be used to request
or furnish data necessary to obtain clear proposals that should not
require further discussions with the proposer by the evaluators.
Other pertinent data could also be included, such as significant
milestones.
4. Foreign Proposals--The procedures for submission of proposals
from outside the U.S. are contained in Appendix B, ``General
Instructions and Provisions.'' This section will describe any
additional requirements, for example, if information copies of
proposals are required to be furnished by the proposer to other
organizations at the same time the proposal is submitted.
5. Cost Proposals (U.S. Investigators Only)--This section
defines any special requirements regarding cost proposals of
domestic investigators. Reference then should be made to the cost
proposal certifications indicated in Appendix B, ``General
Instructions and Provisions''.
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[FR Doc. 96-31985 Filed 12-17-96; 8:45 am]
BILLING CODE 7510-01-M
