2011-10917. Commercial Acquisition; Anchor Tenancy

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Proposed rule with request for comments.

SUMMARY:

NASA proposes to revise the NASA FAR Supplement (NFS) to include guidance consistent with NASA's authority under Section 401 of the Commercial Space Competitiveness Act (CSCA) of 1992. NASA may enter into multi-year anchor tenancy contracts for commercial space goods or services. Anchor Tenancy means “an arrangement in which the United States Government agrees to procure sufficient quantities of a commercial space product or service needed to meet Government mission requirements so that a commercial venture is made viable.”

DATES:

Interested parties should submit comments to NASA at the address below on or before July 25, 2011 to be considered in formulation of the final rule.

ADDRESSES:

You may submit comments, identified by RIN 2007-AD64, using either of the following methods: (1) Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting RIN 2007-AD64 under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “RIN 2007-AD64.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “RIN 2700-AD64” on your attached document. (2) E-mail: [e-mail]. Include RIN 2007-AD64 in the subject line of the message.

Comments received generally will be posted without change to http://www.regulations.gov,, including any personal information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT:

Leigh Pomponio, NASA, Office of Procurement, Contract Management Division (Suite 5G84); [phone]; facsimile 202-358-3083; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

NASA's FAR Supplement currently includes an incorrect statement that anchor tenancy contracts are not permitted. This proposed rule removes that statement, consistent with NASA's authority under Section 401 of the Commercial Space Competitiveness Act (CSCA) of 1992 (15 U.S.C. 5806) which provides authorization for NASA to enter into multi-year anchor tenancy contracts for commercial space goods or services.

B. Executive Orders 12866 and 13563

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. In accordance with Executive Order 13563, Improving Regulation and Regulatory Review, dated January 18, 2011, NASA determined that this rule is not excessively burdensome to the public, and is consistent with the administrative nature of rule. This is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

This proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because it does not impose any new requirements on small entities.

D. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 1812

• Government procurement

William P. McNally,

Assistant Administrator for Procurement.

Accordingly, 48 CFR part 1812 is proposed to be amended as follows:

1. The authority citation for 48 CFR parts 1812.

Authority: 42 U.S.C. 2455(a), 2473(c)(1).

PART 1812—ACQUISITION OF COMMERCIAL ITEMS

2. Section 1812.7000 is revised to read as follows.

1812.7000

Anchor tenancy contracts.

(a) Section 401 of the Commercial Space Competitiveness Act, 15 U.S.C. 5806, allows NASA, subject to appropriations, to enter into multi-year anchor tenancy contracts for the purchase of a good or service if the Administrator determines that—

(1) The good or service meets the mission requirements of the National Aeronautics and Space Administration;

(2) The commercially procured good or service is cost effective;

(3) The good or service is procured through a competitive process;

(4) Existing or potential customers for the good or service other than the United States Government have been specifically identified;

(5) The long-term viability of the venture is not dependent upon a continued Government market or other nonreimbursable Government support; and

(6) Private capital is at risk in the venture.

(b) Section 401 of the Commercial Space Competitiveness Act, 15 U.S.C. 5806, allows for contracts entered into under paragraph (a) of this section to provide for the payment of termination liability in the event that the Government terminates such contracts for is convenience.

(1) Contracts that provide for this payment of termination liability shall include a fixed schedule of such termination liability payments. Liability under such contracts shall not exceed the total payments which the Government would have made after the date of termination to purchase the good or service if the contract were not terminated.

(2) Subject to appropriations, funds available for such termination liability payments may be used for purchase of the good or service upon successful delivery of the good or service pursuant to the contract. In such case, sufficient funds shall remain available to cover any remaining termination liability.

(c) Limitations—

(1) Contracts entered into under this section shall not exceed 10 years in duration.

(2) Such contracts shall provide for delivery of the good or service on a firm, fixed price basis.

(3) To the extent practicable, reasonable performance specifications shall be used to define technical requirements in such contracts.

(4) In any such contract, the Administrator shall reserve the right to completely or partially terminate the contract without payment of such termination liability because of the contractor's actual or anticipated failure to perform its contractual obligations.