01-8394. Safety and Health (Short Form)

AGENCY:

National Aeronautics and Space Administration (NASA).

ACTION:

Interim rule.

SUMMARY:

This interim rule amends the NASA FAR Supplement (NFS) to add a new Safety and Health (Short Form) clause which requires contractors to take all reasonable safety and occupational health measures in contracts above the micro-purchase threshold; amends other existing safety and health clauses to make them consistent with the new NASA Safety and Health (Short Form) clause; and adds an Alternate I, Safety and Health Plan, to address submission of safety and health plans under Invitations for Bids (IFBs).

DATES:

Effective Date: This rule is effective May 7, 2001.

Applicability Date: This rule applies to solicitations issued on or after May 7, 2001.

Comment Date: Comments should be submitted to NASA at the address below on or before June 4, 2001.

ADDRESSES:

Interested parties should submit written comments to Jeff Cullen, NASA Headquarters Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546. Comments may also be submitted by e-mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Jeff Cullen, [phone].

SUPPLEMENTARY INFORMATION:

A. Background

Emphasizing safety and occupational health can result in reductions in the number of incidents involving injury or death to personnel, and in a reduction in lost or restricted workdays. These reductions enhance the probability of mission success by decreasing development time, cycle times, operational delays and costs. Since NASA contracts account for approximately 80 percent of its budget, NASA recognizes that for it to achieve mission success, it is critically important that NASA contractors also emphasize safety and occupational health. While the existing NASA Safety and Health clause (1852.223-70) applies to many high dollar value and high-risk contracts, NASA has many more contracts that it does not apply to that are also critical to the agency achieving its mission. This interim rule implements a Safety and Health (Short Form) clause to address safety and occupational health in all of its contracts above the micro-purchase threshold where 1852.223-70 does not apply. This clause will hold contractors accountable for the safety and occupational health measures consistent with standard industry practice in performing the contract. It also defines NASA's safety priority to protect: (1) The public, (2) astronauts and pilots, (3) the NASA workforce, and (4) high-value equipment and property. This will help lead to mission success for NASA and its contractors. Additionally, this interim rule amends the NASA Safety and Health clause (1852.223-70), the Safety and Health Plan clause (1852.223-73), and the Major Breach of Safety or Security clause (1852.223-75) to make them consistent with the new NASA Safety and Health (Short Form) clause (1852.223-72) by adding the safety priority; and adds an Alternate I to 1852.223-73, Safety and Health Plan, to address submission of safety and health plans under IFBs.

B. Regulatory Flexibility Act

NASA certifies that this interim rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because this interim rule focuses attention on safety and occupational health, and does not impose any significant new requirements which might have an economic impact.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose any 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 41 U.S.C. 3501, et seq.

D. Determination to Issue an Interim Rule

In accordance with 41 U.S.C. 418b(d), NASA has determined that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. The basis of this determination is that many ongoing NASA activities, such as advanced research, aeronautics and space flight involve safety and occupational health risks. Requiring contractors to immediately take all reasonable safety and occupational health measures is necessary to reduce these risks, and should result in reductions in the number of incidents involving injury or death to personnel, and in lost or restricted workdays.

List of Subjects in 48 CFR Parts 1812, 1823, and 1852

• Government procurement

Lynn Bailets,

Acting Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1812, 1823, and 1852 are amended as follows:

1. The authority citation for 48 CFR Parts 1812, 1823, and 1852 continues to read as follows:

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

PART 1812—ACQUISITION OF COMMERCIAL ITEMS

2. In section 1812.301, amend paragraph (f)(i) by redesignating paragraphs (I) through (N) as (J) through (O) respectively and adding new paragraph (I) to read as follows:

1812.301

Solicitation provisions and contract clauses for the acquisition of commercial items.

(f)(i) * * *

(I) 1852.223-72, Safety and Health (Short Form).

* * * * *

PART 1823—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

3. Amend section 1823.7001 by adding paragraph (e) to read as follows:

1823.7001

NASA solicitation provisions and contract clauses.

* * * * *

(e) For all solicitations and contracts exceeding the micro-purchase threshold that do not include the clause at 1852.223-70, Safety and Health, the contracting officer shall insert the clause at 1852.223-72, Safety and Health (Short Form).

PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Amend section 1852.223-70 by revising the date of the clause, redesignating paragraphs (a) through (h) as (b) through (i) respectively, adding a new paragraph (a), and revising newly designated paragraphs (f)(2) and (g) to read as follows:

1852.223-70

Safety and Health.

* * * * *

Safety and Health—May 2001

(a) Safety is the freedom from those conditions that can cause death, injury, occupational illness, damage to or loss of equipment or property, or damage to the environment. NASA's safety priority is to protect: (1) The public, (2) astronauts and pilots, (3) the NASA workforce (including contractor employees working on NASA contracts), and (4) high-value equipment and property.

* * * * *

(f)(1) * * *

(2) If the Contractor fails or refuses to institute prompt corrective action in accordance with subparagraph (f)(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.

(g) The Contractor (or subcontractor or supplier) shall insert the substance of this clause, including this paragraph (g) 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, after consultation with installation safety and health representatives, 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.

* * * * *

5. Add section 1852.223-72 to read as follows:

1852.223-72

Safety and Health (Short Form).

As prescribed in 1823.7001(e), insert the following clause:

Safety and Health (Short Form)—May 2001

(a) Safety is the freedom from those conditions that can cause death, injury, occupational illness; damage to or loss of equipment or property, or damage to the environment. NASA's safety priority is to protect: (1) The public, (2) astronauts and pilots, (3) the NASA workforce (including contractor employees working on NASA contracts), and (4) high-value equipment and property.

(b) The Contractor shall take all reasonable safety and occupational health measures consistent with standard industry practice in performing this contract. The Contractor shall comply with all Federal, State, and local laws applicable to safety and occupational health and with the safety and occupational health standards, specifications, reporting requirements, and any other relevant requirements of this contract.

(c) The Contractor shall take, or cause to be taken, any other safety, and occupational 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 clause of the contract.

(d) 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. The Government may pursue appropriate remedies in the event the contractor fails to promptly take the necessary corrective action.

(e) The Contractor (or subcontractor or supplier) shall insert the substance of this clause, including this paragraph (d) and any applicable Schedule provisions, with appropriate changes of designations of the parties, in subcontracts of every tier that exceed the micro-purchase threshold.

(End of clause)

6. Amend section 1852.223-73 by revising the date of the clause and the next to last sentence to read as follows:

1852.223-73

Safety and Health Plan.

* * * * *

Safety and Health Plan—May 2001

* * * Also, when applicable, the plan must address the policies, procedures, and techniques that will be used to ensure the safety and occupational health of: (1) The public, (2) astronauts and pilots, (3) the NASA workforce (including other contractor employees working on NASA contracts), and (4) high-value equipment and property.

* * * * *

7. In section 1852.223-73, add Alternate I to read as follows:

1852.223-73

Safety and Health Plan.

* * * * *

Alternate I—May 2001

In Invitations for Bids, delete the first sentence of the basic provision and substitute the following:

The apparently successful offeror shall submit a detailed safety and occupational health plan (see NPG 8715.3, NASA Safety Manual, Appendix H) after notification of selection but before award.

8. Amend section 1852.223-75 by revising the date of the clause and adding a sentence between the second and third sentence in paragraph (a) to read as follows:

1852.223-75

Major Breach of Safety or Security.

* * * * *

Major Breach of Safety or Security—May 2001

(a) * * * NASA's safety priority is to protect: (1) The public; (2) astronauts and pilots; (3) the NASA workforce (including contractor employees working on NASA contracts); and (4) high-value equipment and property. * * *

* * * * *