04-4760. Performance Period Limitations

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Final rule.

SUMMARY:

This final rule amends the NASA FAR Supplement (NFS) by clarifying that the five-year limitation on contracts applies to all procurement award instruments including agreements, orders under a Federal Supply Schedule, or other indefinite delivery/indefinite quantity contracts awarded by other agencies. The current NFS language has been interpreted to exclude certain types of award instruments, such as basic ordering agreements or blanket purchase agreements, from the five-year limitation. This change will ensure consistent application of the five-year performance period limitation and the waiver process for all award instruments.

EFFECTIVE DATE:

March 3, 2004.

FOR FURTHER INFORMATION CONTACT:

Eugene Johnson, NASA, Office of Procurement, Program Operations Division (Code HS), Washington, DC 20546; [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

The NFS at 1817.204(e)(i) currently states that the five-year limitation (basic plus option periods) applies to all NASA contracts regardless of type. This has been interpreted to mean that the limitation does not apply to agreements such as basic ordering agreements and blanket purchase agreements. This interpretation is not consistent with the intent of the limitation and does not support NASA's efforts to maximize opportunities for competition. This final rule clarifies that the limitation is applicable to all award instruments. This change to the NFS is being issued as a final rule since it does not have a significant effect beyond the internal operating procedures of NASA. Comments may be submitted to the above address.

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 Part 1817 in accordance with 5 U.S.C. 610.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes do not impose 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 Part 1817

• Government procurement

Tom Luedtke,

Assistant Administrator for Procurement.

Accordingly, 48 CFR Part 1817 is amended as follows:

1. The authority citation for 48 CFR Part 1817 continues to read as follows:

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

PART 1817—SPECIAL CONTRACTING METHODS

2. Revise section 1817.204 to read as follows:

1817.204

Contracts.

(e)(i) The 5-year limitation (basic plus option periods) applies to all NASA contracts regardless of type and other procurement award instruments. This includes agreements (e.g. basic ordering agreements, blanket purchase agreements), interagency acquisitions, and orders placed under agreements or awarded under a Federal Supply Schedule or other indefinite delivery/indefinite quantity contracts awarded by other agencies.

(ii) When the performance period exceeds 5 years (exclusive of options), the program/project office and the contracting officer shall review the requirement at the mid-point of the performance period to ensure that the products or services continue to fulfill NASA's mission needs and that the procurement award instrument continues to provide the best means of satisfying the requirement.

(iii) Requests for deviations from the 5-year limitation policy shall be sent to the Assistant Administrator for Procurement (Code HS) and shall include justification for exceeding five years. The justification shall discuss planned future assessment of continued performance either prior to exercise of options or at the mid-term of a basic contract with no options. Evidence shall also be included showing that the extended years can be reasonably priced.