02-4077. Major Breach of Safety or Security

AGENCY:

National Aeronautics and Space Administration (NASA).

ACTION:

Final rule.

SUMMARY:

This final rule amends the NASA FAR Supplement (NFS) by revising the Major Breach of Safety or Security clause to more clearly state that a major breach of security is an act or omission by the contractor that results in various outcomes (compromise of classified information; illegal technology transfer, etc.); to clarify that two of the outcomes are equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000; and to correctly identify the Occupational Safety and Health Administration (OSHA). In addition, the guidance for award fee evaluation factors is revised to be consistent with the Major Breach of Safety or Security clause.

EFFECTIVE DATE:

February 20, 2002.

FOR FURTHER INFORMATION CONTACT:

Jeff Cullen, NASA Headquarters Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546; 202-358-1784; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

This final rule revises 1852.223-75, Major Breach of Safety or Security. The current major breach of security description contained in paragraph (b) of the clause includes outcomes that may result in a major breach of security. However, the description does not clearly state that to be a major breach of security, the outcomes must result from an act or omission by the contractor. Revising the clause to clearly state that a major breach of security is an act or omission by the contractor that results in the various outcomes (compromise of classified information, illegal technology transfer, etc.) would make the major breach of security paragraph consistent with paragraph (a) (major breach of safety) of the clause.

Additionally, the clause states that a major breach of security may arise from damage or loss greater than $250,000 to the Government, but it is not clear if this outcome is a standalone provision or if it applies to other outcomes in the clause (e.g., does a major breach occur if illegal technology transfer or theft occurs, and the result is damage or loss greater than $250,000 to the Government). This revision will remove the reference to damage or loss greater than $250,000 to the Government, but also clarify that two of the outcomes are equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000.

Also, the definition of major breach of safety or security in 1816.405-274, Award Fee Evaluation Factors, will be revised to make it consistent with the revised 1852.223-75, Major Breach of Safety or Security definition.

Lastly, OSHA is corrected to read as the Occupational Safety and Health Administration in 1852.223-75, Major Breach of Safety or Security clause and in 1816.405-274, Award Fee Evaluation Factors.

B. Regulatory Flexibility Act

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comment is not required. However, NASA will consider comments from small entities concerning the affected NFS Parts 1816 and 1852 in accordance with 5 U.S.C. 610.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose recordkeeping or information collection requirements, or collections of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1816 and 1852

• Government procurement

Tom Luedtke,

Assistant Administrator for Procurement.

Accordingly, 48 CFR parts 1816 and 1852 are amended as follows:

1. The authority citation for 48 CFR parts 1816 and 1852 continues to read as follows:

Authority: 42 U.S.C. 2473 (c)(1).

PART 1816—TYPES OF CONTRACTS

2. In section 1816.405-274, revise paragraphs (c)(2) and (c)(3) to read as follows:

1816.405-274

Award fee evaluation factors.

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(c) * * *

(2) A major breach of safety must be related directly to the work on the contract. A major breach of safety is an act or omission of the Contractor that consists of an accident, incident, or exposure resulting in a fatality or mission failure; or in damage to equipment or property equal to or greater than $1 million; or in any “willful” or “repeat” violation cited by the Occupational Safety and Health Administration (OSHA) or by a state agency operating under an OSHA approved plan.

(3) A major breach of security may occur on or off Government installations, but must be directly related to the work on the contract. A major breach of security is an act or omission by the contractor that results in compromise of classified information, illegal technology transfer, workplace violence resulting in criminal conviction, sabotage, compromise or denial of information technology services, equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000.

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PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Section 1852.223-75 is amended by revising the clause date; deleting “Occupational Health and Safety Administration” and adding “Occupational Safety and Health Administration” in its place in the last sentence of paragraph (a); and revising paragraph (b) to read as follows:

1852.223-75

Major Breach of Safety or Security.

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Major Breach of Safety or Security (February 2002)

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(b) Security is the condition of safeguarding against espionage, sabotage, crime (including computer crime), or attack. A major breach of security may constitute a breach of contract that entitles the Government to exercise any of its rights and remedies applicable to material parts of this contract, including termination for default. A major breach of security may occur on or off Government installations, but must be related directly to the work on the contract. A major breach of security is an act or omission by the Contractor that results in compromise of classified information, illegal technology transfer, workplace violence resulting in criminal conviction, sabotage, compromise or denial of information technology services, equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000.

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