00-10281. Insurance-Partial or Total Immunity from Tort Liability for State Agencies and Charitable Institutions

AGENCY:

National Aeronautics and Space Administration (NASA).

ACTION:

Proposed rule.

SUMMARY:

This is a proposed rule amending the NASA FAR Supplement (NFS) to allow State agencies and charitable institutions partial or total immunity from tort liability on NASA contracts.

DATES:

Comments should be submitted on or before June 26, 2000.

ADDRESSES:

Interested parties should submit written comments to Richard Kall, 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:

Richard Kall, NASA, Office of Procurement, Contract Management Division (Code HK), [phone].

SUPPLEMENTARY INFORMATION:

A. Background

The 1990 edition of the Federal Acquisition Regulation (FAR) provided in Subpart 28.311-2, Contract clause, the use of Alternates I and II to clause 52.228-7, Insurance—Liability to Third Persons, to allow State agencies and charitable institutions partial or total immunity from tort liability. The appropriate alternate could be used when provision 52.228-6, Insurance—Immunity From Tort Liability, was included in the solicitation. However, the 1997 edition of the FAR deleted all references in 28.311-2 relating to tort liability, and also deleted the provision and clause alternates. NASA now finds that the Agency has a need for these clauses and provision.

B. Regulatory Flexibility Act

NASA certifies that this proposed 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 it does not impose any new requirements.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the NFS do not impose any record keeping or information collection requirements, or collections of information from offerors, contractors, or members of the public 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 Parts 1828 and 1852

• Government procurement

Tom Luedtke,

Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1828 and 1852 are proposed to be amended as follows:

1. The authority citation for 48 CFR Parts 1828 and 1852 continues to read as follows:

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

PART 1828—BONDS AND INSURANCE

2. Revise sections 1828.311-1 and 1828.311-2, and add section 1828.311-270 to read as follows:

1828.311-1

Contract clause.

The contracting officer must insert the clause at FAR 52.228-7, Insurance—Liability to Third Persons, as prescribed in FAR 28.311-1, unless—

(a) Waived by the procurement officer; or

(b) The successful offeror represents in its offer that it is totally immune from tort liability as a State agency or as a charitable institution.

1828.311-2

Agency solicitation provisions and contract clauses.

1828.311-270

NASA solicitation provisions and contract clauses.

(a) The contracting officer must insert the clause at 1852.228-71, Aircraft Flight Risks, in all cost-reimbursement contracts for the development, production, modification, maintenance, or overhaul of aircraft, or otherwise involving the furnishing of aircraft to the contractor, except when the aircraft are covered by a separate bailment.

(b) The contracting officer must insert the provision at 1852.228-80, Insurance—Immunity from Tort Liability, in solicitations for research and development when a cost-reimbursement contract is contemplated.

(c) The contracting officer must insert FAR clause 52.228-7 and the associated clause at 1852.228-81, Insurance—Partial Immunity From Tort Liability, when the successful offeror represents in its offer that the offeror is partially immune from tort liability as a State agency or as a charitable institution.

(d) The contracting officer must insert the clause at 1852.228-82, Insurance—Total Immunity From Tort Liability, when the successful offeror represents in its offer that the offeror is totally immune from tort liability as a State agency or as a charitable institution.

PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend Part 1852 by adding sections 1852.228-80, 1852.228-81, and 1852.228-82 to read as follows:

1852.228-80

Insurance—Immunity From Tort Liability.

As prescribed in 1828.311-270(b), insert the following provision:

INSURANCE—IMMUNITY FROM TORT LIABILITY

(XXX)

If the offeror is partially or totally immune from tort liability to third persons as a State agency or as a charitable institution, the offeror will include in its offer a representation to that effect. When the successful offeror represented in its offer that it is immune from tort liability, the following clause(s) will be included in the resulting contract:

(a) When the offeror represents that it is partially immune from tort liability to third persons as a State agency or as a charitable institution, the clause at FAR 52.228-7, Insurance—Liability To Third Persons, and the associated clause 1852.22881, Insurance—Partial Immunity From Tort Liability, will be included in the contract.

(b) When the offeror represents that it is totally immune from tort liability to third persons as a State agency or as a charitable institution. The clause at 1852.228-82 Insurance—Total Immunity From Tort Liability, will be included in the contract.

(End of provision)

1852.228-81

Insurance—Partial Immunity From Tort Liability.

As prescribed in 1828.311-270(c), insert the following clause:

INSURANCE—PARTIAL IMMUNITY FROM TORT LIABILITY

(XXX)

(a) Except as provided for in paragraph (b) of this clause, the Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for its liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract.

(b) The Contractor need not provide or maintain insurance coverage as required by paragraph (a) of FAR clause 52.228-7, Insurance—Liability To Third Persons, provided that the Contractor may obtain any insurance coverage deemed necessary, subject to approval by the Contracting Officer as to form, amount, and duration. The Contractor shall be reimbursed for the cost of such insurance and, to the extent provided in paragraph (c) of FAR clause 52.228-7, for liabilities to third person for which the Contractor has obtained insurance coverage as provided in this paragraph (b), but for which such coverage is insufficient in amount.

(End of clause)

1852.228-82

Insurance—Total Immunity From Tort Liability

As prescribed in 1828.311-270(d), insert the following clause:

INSURANCE—TOTAL IMMUNITY FROM TORT LIABILITY

(XXX)

(a) The Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for its liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract or any subcontract under this contract.

(b) If any suit or action is filed, or if any claim is made against the Contractor, the cost and expense of which may be reimbursable to the Contractor under this contract, the Contractor will immediately notify the Contracting Officer and promptly furnish copies of all pertinent papers received by the Contractor. The Contractor will, if required by the Government, authorize Government representatives to settle or defend the claim and to represent the Contractor in or take charge of any litigation. The Contractor may, at its own expense, be associated with the Government representatives in any such claim or litigation.

(End of clause)