05-11419. Safety and Health-Alternate 1 to Major Breach of Safety or Security Clause

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule amends the NASA FAR Supplement (NFS) to add an Alternate to the “Major Breach of Safety or Security Clause.” This Alternate deletes references to termination for default and makes other changes to be consistent with the FAR termination clauses prescribed for use with educational or nonprofit institutions performing research and development work on a nonprofit or no-fee basis, and in contracts for commercial items.

DATES:

Comments should be submitted on or before August 8, 2005.

ADDRESSES:

Interested parties may submit comments, identified by RIN number AD12, via the Federal eRulemaking Portal: http//www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to Carl Weber, NASA Headquarters, Office of Procurement, Contract Management Division (Mail Code 1940-D2), Washington, DC 20546. Comments may also be submitted by e-mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Carl Weber, [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

Since July 13, 2000, the NASA FAR Supplement has required the Major Breach of Safety or Security clause (1852.223-75) in new solicitations and contracts with an estimated value over $500,000. The clause declares the Government's right to terminate for default in the event of a major breach of safety or security. However, contracts for commercial items procured under FAR Part 12, and certain contracts for educational or nonprofit institutions do not provide the Government the right to “termination for default”. Rather, these contracts include a termination for cause or termination for convenience clause only.

NASA Procurement Information Circular (PIC 02-11) issued June 24, 2002, suggested an alternate to the clause which deleted references to termination for default, and provided a class deviation to use the alternate under certain circumstances.

This proposed rule would add Alternate I to the Major Breach of Safety or Security clause at 1852.223-75, eliminating the need for PIC 02-01 and the class deviation. Use of the clause with its Alternate in contracts for commercial items procured under FAR Part 12, and contracts for research and development work with educational or nonprofit institutions on a nonprofit or no-fee basis would then be consistent with FAR termination clauses prescribed for use in such contracts.

This proposed rule is not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

This proposed rule is not expected to have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., since it clarifies agency regulations so they are employed consistently with FAR termination provisions.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes do not impose any new recordkeeping or information collection requirements 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 1823 and 1852

• Government procurement

Tom Luedtke,

Assistant Administrator for Procurement.

Accordingly, 48 CFR parts 1823 and 1852 are proposed to be amended as follows:

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

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

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

2. Amend section 1823.7001 by revising paragraph (d) to read as follows:

1823.7001

NASA solicitation provisions and contract clauses.

* * * * *

(d)(1) The contracting officer shall insert the clause at 1852.223-75, Major Breach of Safety or Security, in all solicitations and contracts with estimated values of $500,000 or more, unless waived at a level above the contracting officer with the concurrence of the project manager and the installation official(s) responsible for matters of securi ty, export control, safety, and occupational health.

(2) Insert the clause with its Alternate I if—

(i) The solicitation or contract is with an educational or other nonprofit institution and contains the termination clause at FAR 52.249; or

(ii) The solicitation or contract is for commercial items and contains the termination provisions found in FAR 52.212-4

(3) For contracts with estimated values below $500,000, use of the clause is optional.

* * * * *

PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend section 1852.223-75 by adding Alternate I to read as follows:

1852.223-75

Major Breach of Safety or Security.

* * * * *

ALTERNATE I

(XX/XX)

As prescribed in 1823.7001(d)(ii), substitute the following paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:

(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. Safety is essential to NASA and is a material part of this contract. 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. A major breach of safety 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. A major breach of safety must b e 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 Occupation al Safety and Health Administration (OSHA) or by a state agency operating under an OSHA approved plan.

(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. 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.