[Federal Register Volume 59, Number 88 (Monday, May 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11018]
[[Page Unknown]]
[Federal Register: May 9, 1994]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1843
[NFS Case 933704]
NASA FAR Supplement; Undefinitized Contract Action
AGENCY: Office of Procurement, Procurement Policy Division, National
Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: NASA contracting activities are instructed that contract
modifications and task orders generally must be fully negotiated and
priced (``definitized'') prior to issuance. If circumstances require
issuance prior to definitization, actions with an estimated cost over
$1,000,000 must be approved by the head of the contracting activity,
except that for actions under Space Station contracts, the threshold is
$10,000,000 and the approving authority is the Headquarters official
responsible for the Space Station program. These approval levels cannot
be delegated. Undefinitized actions should be issued as bilateral
agreements, should contain a cost ceiling or not-to-exceed price, and
should be definitized within 180 days. Certain exceptions apply.
DATES: This interim rule is effective May 9, 1994. NASA will accept
written comments until July 8, 1994.
ADDRESSES: Comments regarding this rule should be addressed as follows:
National Aeronautics and Space Administration, Procurement Policy
Division (Code HP), Washington, DC 20546. Please cite HP number 933704
in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: Roger Wilson, (202) 358-0486, or
William T. Childs, (202) 358-0454.
SUPPLEMENTARY INFORMATION:
Availability of NASA FAR Supplement
The NASA FAR Supplement, of which this rule is a part, is available
in its entirety on a subscription basis from the Superintendent of
Documents, Government Printing Office, Washington, DC 20402, telephone
number (202) 783-3238. Cite GPO Subscription Stock Number 933-003-
00000-1. It is not distributed to the public, either in whole or in
part, directly by NASA.
Background
Many NASA contracts involve research and development where
discoveries made during performance dictate a change in the work, and
it is more efficient to issue an unpriced change than to allow the work
to proceed in a direction that is obviously no longer desirable.
However, the too-frequent use of undefinitized contract actions has
contributed to a perception that the agency lacks discipline in the
management of changes and the control of contract costs. Without full
definitization, there is a risk of misunderstanding as to what effort
is planned and what the programmatic and cost impacts are.
Regulatory Flexibility Act
The interim 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 this
rule is limited to a change in internal agency procedures. An Initial
Regulatory Flexibility Analysis has, therefore, not been performed.
Comments from small entities concerning the affected NASA FAR
Supplement subparts will be considered in accordance with 5 U.S.C. 601.
Such comments must be submitted separately and cite 5 U.S.C 601, et
seq.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the NASA FAR Supplement do not impose any new recordkeeping
or information collection requirements, or new collections of
information from offerors, contractors, or members of the public which
require the approval of the Office of Management and Budget (OMB) under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 1843
Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR part 1843 is amended as follows.
1. The authority citation for 48 CFR part 1843 continues to read as
follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1843--CONTRACT MODIFICATIONS
2. Subpart 1843.1 is added as follows:
Subpart 1843.1--General
Sec.
1843.101 Definitions.
1843.102 Policy.
1843.103 Procedures.
1843.104 Exceptions.
1843.105 Definitization.
Subpart 1843.1--General
1843.101 Definitions.
Undefinitized contract action (UCA) means a unilateral or bilateral
contract modification or work/task order in which the final price or
estimated cost and fee have not been negotiated and mutually agreed to
by NASA and the contractor. (Issuance of letter contracts and
modifications to letter contracts are governed by subpart 1816.6.)
1843.102 Policy.
Undefinitized contract actions shall be executed by contracting
officers on an exception basis and shall be limited to the Agency's
minimum urgent requirements. The contract file for all UCAs shall be
documented to justify issuance and shall include a Government estimate
for the changed requirements.
1843.103 Procedures.
(a) Issuance of undefinitized contract actions with a Government
estimated cost or price over $1,000,000 must be approved in writing by
the Center Director, except that Space Station undefinitized contract
actions with a Government estimate over $10,000,000 must be approved in
writing by the Deputy Associate Administrator for Space Flight (Space
Station). These approval authorities are not delegable. Issuance of
undefinitized contract actions with a Government estimated cost or
price less than or equal to $1,000,000 shall also be minimized but may
be approved on an exception basis in accordance with Center procedures.
(b) (1) Undefinitized contract actions exceeding $1,000,000
approved by the Center Director shall be issued as bilateral agreements
duly executed by an authorized representative of the contractor. These
bilateral agreements shall set forth a ceiling price or ``not to
exceed'' estimated cost figure for the changed contractual
requirements. For fixed price contracts the negotiated price for the
changed contract requirements shall not exceed the established ceiling
price. In the case of cost type contracts any costs eventually
negotiated for the changed requirements in excess of the ``not to
exceed'' estimated cost figure shall be non-fee bearing. The ceiling
price or ``not to exceed'' estimated cost figures shall be separately
identified in the UCA instrument from any increases in the estimated
cost or Limitation of Government Liability.
(2) The Center Director or Deputy Associate Administrator for Space
Flight (Space Station) may waive the ceiling price or ``not to exceed''
estimated cost figure and bilateral agreement requirements prior to UCA
issuance on the basis of urgency. This waiver authority is not
delegable. Any waivers shall be documented in the contract file.
(c) The changed contractual requirements set forth in the UCA shall
be clearly defined and shall be limited to the minimum effort required
to satisfy urgent program requirements while a cost proposal is
prepared, analyzed and negotiated.
(d) For undefinitized contract actions with a Government estimate
greater than $1,000,000 and not excepted under subpart 1843.104, a 180
day funding profile shall be obtained from the contractor and reviewed
by the cognizant NASA personnel prior to execution of the undefinitized
contract action.
(e) Undefinitized contract actions with a Government estimated cost
or price greater than $1,000,000 shall include a requirement that the
change shall be separately accounted for by the contractor to the
degree necessary to provide the Contracting Officer visibility into
actual costs incurred pending definitization. The Contracting Officer
may waive this requirement for individual actions if there is a
documented finding that such accounting procedures would not be cost
effective. Any such waiver shall not affect existing NASA Form 533 or
other financial reporting requirements set forth in the contract.
1843.104 Exceptions.
(a) Exceptions to the requirement for Center Director or Deputy
Associate Administrator for Space Flight (Space Station) approval for
issuance of undefinitized contract actions as specified in 1843.103(a)
are--
(1) Modifications to facilities contracts;
(2) Modifications to construction contracts using Construction of
Facilities funding;
(3) Urgent modifications resulting from Shuttle manifest changes or
that involve immediate issues of safety or damage/loss of property;
(4) Modifications to decrease the contract value; or
(5) Modifications to letter contracts.
(b) The contract file for any of the above modifications shall be
documented to justify UCA issuance in addition to citing the
appropriate exception to Center Director or Deputy Associate
Administrator for Space Flight (Space Station) approval.
1843.105 Definitization.
(a) Undefinitized contract actions should be sufficiently complete
and detailed as to enable the contractor to begin immediate preparation
of a cost proposal for the changed requirement. The NASA goal is to
definitize UCAs within 180 days from date of issuance. This goal in no
way compromises the Agency's continuing requirement for sound cost
analysis, arms-length negotiations, and fair and reasonable
settlements.
(b) Whenever possible, pre-change study efforts or engineering
change proposals (ECPs) shall be utilized to negotiate and definitize
changes prior to issuance.
[FR Doc. 94-11018 Filed 5-6-94; 8:45 am]
BILLING CODE 7510-01-P
