[Federal Register Volume 62, Number 131 (Wednesday, July 9, 1997)]
[Rules and Regulations]
[Pages 36704-36738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17310]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815, 1816, 1819, 1822,
1824, 1825, 1827, 1832, 1836, 1837, 1839, 1842, 1844, 1845, 1852,
1853, and 1870
Rewrite of the NASA Far Supplement (NFS)
AGENCY: Office of Procurement, National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
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SUMMARY: In order to streamline and clarify our regulations, parts
1813, 1819, 1825, 1827, 1845, and 1853, and clauses affected by these
parts are revised in their entirety. Also included in this final rule
are changes to 1803, 1804, 1807, 1815, 1816, 1822, 1824, 1832, 1836,
1837, 1839, 1842, and 1852 to reflect the impact of the rewritten
parts, correct editorial errors, and accommodate changes to relate
coverage in the Federal Acquisition Regulation (FAR).
EFFECTIVE DATE: July 9, 1997.
FOR FURTHER INFORMATION CONTACT:
Tom O'Toole, (202) 358-0847.
SUPPLEMENTARY INFORMATION:
Background
The National Performance Review urged agencies to streamline and
clarify their regulations. The NFS rewrite initiative was established
to pursue these goals by conducting a section by section review of the
NFS to verity its accuracy, relevancy, and validity. The NFS will be
rewritten in blocks of parts. Upon completion of all parts, the NFS
will be reissued in a new edition.
Impact
NASA certifies that this regulation will not have a significant
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). This rule does not impose any
reporting or record keeping requirements subject to the Paperwork
Reduction Act.
List of Subjects in 48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815,
1816, 1819, 1822, 1824, 1825, 1827 1832, 1836, 1837, 1839, 1842, 1844,
1845, 1852, 1853, and 1870
Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815, 1816,
1819, 1822, 1824, 1925, 1827 1832, 1836, 1837, 1839, 1842, 1844, 1845,
1852, 1853, and 1870 are amended as follows.
1. The authority citation for 48 CFR parts 1803, 1804, 1807, 1809,
1813, 1815, 1816, 1819, 1822, 1824, 1825, 1827, 1832, 1836, 1837, 1839,
1842, 1844, 1845, 1852, 1853, and 1870 continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
1803.104 [Revised]
(2). Section 1803.104 is revised to read as follows:
1803.104 Procurement integrity.
1803.104-3 Definitions.
Agency ethics official means for Headquarters, the General Counsel
and the Associate General Counsel for General Law, and for each center,
the Chief Counsel.
1803.104-5 Disclosure, protection, and marking of proprietary and
source selection information. (NASA supplements paragraphs (a) and (c))
(a) Government employees serving in the following positions are
authorized access to proprietary or source selection information, but
only to the extent necessary to perform their official duties:
(i) Personnel participating in source evaluation board (SEB)
procedures (see 1815.612.70) or personnel evaluating an offeror's or
bidder's technical or cost proposal under other competitive procedures
and personnel evaluating protests.
(ii) Personnel assigned to the contracting office.
(iii) The initiator of the procurement request (to include the
official having principal technical cognizance over the requirement).
(iv) Small business specialists.
(v) Personnel assigned to counsel's office.
(vi) Personnel assigned to the Defense Contract Audit Agency and
contract administration offices of the Department of Defense.
(vii) Personnel responsible for the review and approval of
documents in accordance with the Master Buy Plan Procedure in Subpart
1807.71.
(viii) Other Government employees authorized by the contracting
officer.
(ix) Supervisors, at any level, of the personnel listed in
paragraphs 1803.104-5(a) (i) through (viii).
(x) Duly designated ombudsman.
(c)(i) The originator of information that may be source selection
information shall consult with the contracting officer or the
procurement officer, who shall determine whether the information is
source selection information. NASA personnel responsible for preparing
source selection information as defined in FAR 3.104-3 shall assure
that the material is marked with the legend in FAR 3.104-5(c) at the
time the material is prepared.
(ii) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 3.104,'' draft specifications, purchase descriptions, and
statements of work are not considered source selection information and
may be released during a market survey in order to determine the
capabilities of potential competitive sources (see FAR Subpart 7.1).
All documents, once released, must remain available to the public until
the conclusion of the acquisition.
1803.104-10 Violations or possible violations. (NASA supplements
paragraphs (a), (b) and (f))
(a)(1) The Procurement Officer is the individual designated to
receive the contracting officer's report of violations.
(b) The head of the contracting activity (HCA) or designee shall
refer all information describing an actual or possible violation to the
installation's counsel and inspector general staff and to the Associate
Administrator for Procurement (Code HS).
(f) When the HCA or designee determines that award is justified by
urgent and compelling circumstances or is otherwise in the interest of
the Government, then that official shall submit a copy of the
determination to the Associate Administrator for Procurement (Code HS)
simultaneous with transmittal to the Administrator.
[[Page 36705]]
PART 1804--ADMINISTRATIVE MATTERS
1804.470-3 [Redesignated]
3. Section 1804.470-3 is redesignated as section 1804.470-4, and a
new section 1804.470-3 is added to read as follows:
1804.470-3 Security Plan for Unclassified Federal Information
Technology Systems.
When considered appropriate for contract performance, the
contracting officer, with the concurrence of the requiring activity and
the center automated information security (AIS) manager, may require
the contractor to submit for post-award Government approval a detailed
Security Plan for Unclassified Federal Information Technology Systems.
The plan shall be required as a contract data deliverable that will be
subsequently incorporated into the contract as a compliance document
after Government approval. The plan shall demonstrate thorough
understanding of NMI 2410.7 and NHB 2410.9, and shall include, as a
minimum, the security measures and program safeguards to ensure that
the information technology resources acquired and used by contractor
and subcontractor personnel:
(a) Operate effectively and accurately;
(b) Are protected from unauthorized alteration, disclosure, or
misuse of information processed, stored, or transmitted;
(c) Can maintain the continuity of automated information support
for Government missions, programs, and functions;
(d) Incorporate management, general, and application controls
sufficient to provide cost-effective assurance of the system's
integrity and accuracy; and
(e) Have appropriate technical, personnel, administrative,
environmental, and access safeguards.
PART 1807--ACQUISITION PLANNING
4. In section 1807.105 a new paragraph (b)(1) is added to read as
follows:
1807.105 Contents of written acquisition plans. (NASA supplements
paragraphs (a) and (b))
* * * * *
(b)(1) If the acquisition represents a consolidation of efforts
previously contracted for separately, address the reasons for the
consolidation, the expected benefits, and any potential adverse impact
(including the effect on small, small disadvantaged, and women-owned
small business participation) and planned actions to mitigate the
impact (see (1819.202-170).
* * * * *
1807.70 [Added]
5. Subpart 1807.70 is added to read as follows:
Subpart 1807.70--Consolidated Contracting
1807.7000 General.
The Consolidated Contracting Initiative (CCI) is NASA's commitment
to the cooperative creation and utilization of contracts, whenever
practicable, to meet common Agency needs. CCI aims at improving
acquisition efficiency by identifying and logically combining similar
requirements. Complete information on the initiative, with its
implementation guidance, is available on the Internet (http://
msfcinfo.msfc.nasa.gov/cci/first.html).
PART 1809--CONTRACTOR QUALIFICATIONS
1809.106-3 [Amended]
6. In paragraph (a) to section 1809.106-3, the designation ``(a)''
is removed.
7. Part 1813 is revised to read as follows:
PART 1813--SIMPLIFIED ACQUISITION PROCEDURES
Sec.
1813.000 Scope of part.
Subpart 1813.1--General.
1813.103 Policy.
1813.106-2 Purchases exceeding the micro-purchase threshold.
Subpart 1813.2--Blanket Purchase Agreements
1813.202 Establishment of blanket purchase agreements (BPAs).
Subpart 1813.5--Purchase Orders
1813.501 General.
1813.501-70 Purchase orders under section 8(a) of the Small
Business Act.
1813.505 Purchase order and related forms.
Subpart 1813.70--Governmentwide Commercial Purchase Card
1813.7000 General.
1813.7001 Cardholders.
1813.7002 Purchase card documentation.
1813.7003 Approving official.
1813.7004 Program officials.
Authority: 42 U.S.C. 2473(c)(1).
1813.000 Scope of part.
FAR Part 13 and 1813 do not apply to NASA Research Announcements
and Announcements of Opportunity. These acquisitions shall be conducted
in accordance with the procedures in 1835.016-70 and 1872,
respectively.
Subpart 1813.1--General
1813.103 Policy. (NASA supplements paragraphs (e), (f), and (j))
(e) Except for purchases authorized by 1813.103(f), the
Governmentwide commercial purchase card may be used for purchases of
$25,000 or less. Purchases above the micro-purchase threshold shall
comply with all applicable statutory and regulatory requirements,
including the following:
(i) Small business set-aside (see FAR 13.105).
(ii) Representations and certifications. The applicable items from
the provision at FAR 52.212-3, Offeror Representations and
Certifications--Commercial Items shall be obtained for commercial or
noncommercial purchases. This information may be obtained orally from
vendors.
(iii) Maximum practicable competition (see FAR 13.106-2(a)(3)).
(iv) Implementation of the applicable contract clauses. This
requirement may be satisfied by forwarding a completed SF 1449,
appropriately modified to reflect purchase card terms, to the awardee
after placing the order via the card, provided that the awardee must be
notified of, and agree to, the applicability of the SF 1449 clauses
when the order is placed.
(f) For purchases up to the simplified acquisition threshold, the
Governmentwide commercial purchase card may be used to order and pay
for purchases under FAR Part 8 procedures and under the contracts
listed in FAR 13.103(f).
(j) Fixed-price purchase orders shall be used for all awards made
under simplified acquisition procedures except as provided under the
unpriced purchase order method in FAR 13.502.
1813.106-2 Purchases exceeding the micro-purchase threshold. (NASA
supplements paragraph (d))
(d)(2) For purchases up to $50,000, documentation shall be limited
to a brief notation in the file indicating the rationale for selecting
other than the lowest priced offer.
Subpart 1813.2--Blanket Purchase Agreements
1813.202 Establishment of blanket purchase agreements (BPAs). (NASA
supplements paragraph (e))
(e)(1)(v) Non-GS-1102 or -1105 personnel shall not be authorized to
place individual orders under a BPA in an amount greater than $5,000.
[[Page 36706]]
Subpart 1813.5--Purchase Orders
1813.501 General. (NASA supplements paragraph (a))
(a) See 1813.103(j).
1813.501-70 Purchase orders under section 8(a) of the Small Business
Act.
Fixed-price purchase orders made using simplified acquisition
procedures are authorized for 8(a) acquisitions under the simplified
acquisition threshold.
1813.505 Purchase order and related forms. (NASA supplements
paragraphs (a) and (b))
(a)(2) Installations may use locally prescribed forms.
(3) Installations may use locally prescribed forms.
(b)(1)(i) The SF 44 may be used for purchases of aviation fuel and
oil of $10,000 or less.
Subpart 1813.70--Governmentwide Commercial Purchase Card
1813.7000 General.
The General Services Administration (GSA) manages the
Governmentwide commercial purchase card program. Purchases made with
the card shall comply with the instructions and procedures issued by
GSA as well as the applicable parts of the FAR and the NFS. Centers
shall establish and maintain the administrative procedures and
management controls required by GSA.
1813.7001 Cardholders.
(a) The procurement officer shall designate individual cardholders
in accordance with center procedures, subject to the following
limitations:
(1) Cardholders for purchases greater than $2,500 shall be
contracting officers appointed in accordance with FAR 1.6 and 1801.603.
(2) Personnel other than contracting officers may be designated as
cardholders for purchases of $2,500 or less provided they complete
training adequate to ensure appropriate use of the purchase card.
(b) The procurement officer's designation shall be in writing and
shall specify the scope of the cardholder's authority.
1813.7002 Purchase card documentation.
Documentation of purchases shall be minimized. For transactions
below the mirco-purchase threshold, the card holder shall maintain a
brief log of purchases and a file of monthly purchase card statements
indicating whether item receipt has occurred. For purchases above the
micro-purchase threshold, see 1813.106-2(d)(2).
1813.7003 Approving official.
The approving official is the individual who reviews and approves a
chardholder's monthly statement of purchases. The approving official
shall be the cardholder's immediate or higher level supervisor; in no
case shall cardholders approve their own purchases. Unless center
procedures otherwise provide for their designation, the procurement
officer shall designate approving officials.
1813.7004 Program officials.
(a) The Headquarters Office of Procurement (Code HC) is the agency
program coordinator.
(b) The procurement officer shall identify the center program
coordinator and the center billing office point of contract, and
provide their names to the agency program coordinator.
PART 1815--CONTRACTING BY NEGOTIATION
8-9. In section 1815-508-70 the following sentence is added to the
end to read as follows:
1815.508-70 NASA prohibitions.
* * * Any other disclosure of such information concerning trade
secrets, processes, operations, style of work, apparatus, and other
matters, except as authorized by law, may result in criminal penalties
under 18 U.S.C. 1905.
1815.611 [Amended]
10. In paragraph (d)(iii) to section 1815.611, the citation
``1815.1004-70'' is revised to read ``1815.1006-70'', and in the last
sentence, the phrase ``to use in debriefing unsuccessful offerors'' is
revised to read ``to use in postaward debriefing of unsuccessful
offerors''.
1815.804-1 [Amended]
11. In section 1815.804-1, paragraph (b)(2)(iii) is removed.
1815.805-5 [Amended]
12. In section 1815.805-5, a new paragraph (a)(1)(E) is added to
read as follows:
1815.805.-5 Field pricing support.
(a)(1)(A) * * *
* * * * *
(E) Requests for field pricing assistance may be made on NASA Form
1434, Letter of Request for Pricing-Audit-Technical Evaluation
Services.
1815.1003 [Redesignated]
13. Section 1815.1003 is redesignated as section 1815.1004.
1815.1004 [Amended]
14. In the introductory text to the newly designated section
1815.1004, the citation ``FAR 15.1003'' is revised to read ``FAR
15.1004''.
1815.1004-70 [Redesignated]
15. Section 1815.1004-70 is redesignated as section 1815.1006-70,
and the heading is revised to read ``Debriefing of offerors--Major
System acquisitions''.
1815.1006 [Added]
16. Section 1815.1006 is added to read as follows:
1815.1006 Postaward debriefing offerors.
PART 1816--TYPES OF CONTRACTS
1816.404, 1816.404-2, 1816.404-270, 1816.404-271, 1816.404-272,
1816.404-273, 1816.404-274, 1816.404-275, 1816.405, 1816.405-
70 [Redesignated]
17-18. The following sections are redesignated as follows:
------------------------------------------------------------------------
Section Redesignation
------------------------------------------------------------------------
1816.404................................................ 1816.405
1816.404-2.............................................. 1816.405-2
1816.404-270............................................ 1816.405-270
1816.404-271............................................ 1816.405-271
1816.404-272............................................ 1816.405-272
1816.404-273............................................ 1816.405-273
1816.404-274............................................ 1816.405-274
1816.404-275............................................ 1816.405-275
1816.405................................................ 1816.406
1816.405-70............................................. 1816.406-70
------------------------------------------------------------------------
19. Paragraph (b)(2)(iii) of the newly designated section 1816.405-
270 is revised to read as follows:
1816.405-270 CPAF contracts.
(a) * * *
(b) * * *
(2) * * *
(iii) Under a performance-based contract when it is determined to
be necessary to motivate the contractor toward exceptional performance
(see FAR 16.405-2(b)(ii)) and the increased level of performance
justifies the additional administrative expense. When an award fee
incentive is used in this instance, the basic contract type shall be
other than CPAF (e.g., CPIF or FPIF). The potential award fee shall not
be used to incentivize cost performance.
* * * * *
1816.405-271 [Amended]
20. In paragraph (a) to the newly redesignated section 1816.405-
271, the citation ``1816.404-273(a)'' is revised to read ``1816.405-
273(a)'', and in paragraph (b), the citations ``1816.404-273'' and
``1816.404-275'' are revised to
[[Page 36707]]
read ``1816.405-273'' and ``1816.405-275'', respectively.
1816.405-273 [Amended]
21. In paragraph (c) to the newly redesignated section 1816.405-
273, the citation ``1816.404-275'' is revised to read ``1816.405-275'',
and a new paragraph (e) is added to read as follows:
1816.405-273 Award fee evaluation.
* * * * *
(e) Interim and final evaluations may be used to provide past
performance information during the source selection process and should
be marked and controlled as ``Source Selection Information.''
1816.405-274 [Amended]
22. In paragraph (d)(2) to the newly redesignated section 1816.405-
274, the citations ``1816.404-275'' and ``1816.404-274(d)(3)'' are
revised to read ``1816.405-275'' and ``1816.405-274(d)(3)'',
respectively; in paragraph (e), the citation ``1816.404-
270(b)(2)(iii)'' is revised to read ``1816.405-270(b)(2)(iii)''; the
designated paragraphs (f) and (g) are redesignated as paragraphs (g)
and (h); and a new paragraph (f) is added to read as follows:
1816.405-274 Award fee evaluation factors.
* * * * *
(f) The contractor's performance against the subcontracting plan
incorporated in the contract shall also be evaluated. Small
disadvantaged business utilization may be an area of particular
emphasis, including the contractor's achievements in subcontracting
high technology efforts as well as the contractor's performance under
the Mentor-Protege Program, if applicable. The evaluation weight given
to subcontracting plan performance should be significant (up to 15
percent of available award fee). It should motivate the contractor to
focus management attention to subcontracting with small, small
disadvantaged, and women-owned small business concerns to the maximum
extent practicable consistent with efficient contract performance.
1816.405-275 [Amended]
23. In paragraph (d) to the newly redesignated section 1816.405-
275, the citation ``1816.404-275(b)'' is revised to read ``1816.405-
275(b)''.
1816.406-70 [Amended]
24. In paragraphs (a) and (b) to the newly redesignated section
1816.406-70, the citation ``FAR 16.405(e)'' is revised to read ``FAR
16.406(e)''.
25-28. Part 1819 is revised to read as follows:
PART 1819--SMALL BUSINESS PROGRAMS
Sec.
1819.001 Definitions.
Subpart 1819.2--Policies
1819.201 General policy.
1819.202 Specific policies.
1819.202-1 Encouraging small business participation in
acquisitions.
1819.202-170 Contract consolidations.
Subpart 1819.3--Determination of Status as a Small Business Concern
1819.302 Protesting a small business representation.
Subpart 1819.5--Set-Asides for Small Business
1819.502 Setting aside acquisitions.
1819.502-70 Non-initiation of set-asides.
1819.502-3 Partial set-asides.
1819.502-370 NASA reporting requirements.
1819.505 Rejecting Small Business Administration recommendations.
1819.506 Withdrawing or modifying set-asides.
Subpart 1819.6--Certificates of Competency
1819.602 Procedures.
1819.602-1 Referral.
1819.602-3 Resolving differences between the agency and the Small
Business Administration.
1819.602-370 NASA procedures.
Subpart 1819.7--Subcontracting with Small Business, Small Disadvantaged
Business and Women-Owned Small Business and Women-Owned Small business
Concerns
1819.705-2 Determining the need for a subcontracting plan.
1819.705-4 Reviewing the subcontracting plan.
1819.705-470 Acquisition-specific subcontracting goals.
1819.708 Solicitation provisions and contract clauses.
1819.708-70 NASA solicitation provision and contract clause.
Subpart 1819.8--Contracting With the Small Business Administration (the
8(a) Program)
1819.804 Evaluation, offering, and acceptance.
1819.804-1 Agency evaluation.
Subpart 1819.10--Small Business Competitiveness Demonstration Program
1819.1005 Applicability.
Subpart 1819.70--NASA 8 Percent Goal
1819.7000 General.
1819.7001 Definitions.
1819.7002 Contracting officer responsibility.
1819.7003 Contract clause.
Subpart 1819.71--NASA Rural Area Small Business Plan
1819.7101 Definition.
1819.7102 General.
1819.7103 Solicitation provision and contract clause.
Subpart 1819.72--NASA Mentor-Protege Program
1819.7201 Scope of subpart.
1819.7202 Definitions.
1819.7203 Non-affiliation.
1819.7204 Transportatibility of features from the Department of
Defense (DOD) Mentor-Protege program to NASA contractors.
1819.7205 General policy.
1819.7206 Incentives for prime contractor participation.
1819.7207 Measurement of Program success.
1819.7208 Mentor firms.
1819.7209 Protege firms.
1819.7210 Selection of protege firms.
1819.7211 Application process for mentor firms to participate in
the Program.
1819.7212 OSDBU review and approval process of agreement.
1819.7213 Agreement contents.
1819.7214 Developmental assistance.
1819.7215 Obligation.
1819.7216 Internal controls.
1819.7217 Reports.
1819.7218 Program review.
1819.7219 Solicitation provision and contract clauses.
Authority: 42 U.S.C. 2473(c)(1).
1819.001 Definitions.
High-Tech as used in this part means research and/or development
efforts that are within or advance the state-of-the-art in a technology
discipline and are performed primarily by professional engineers,
scientists, and highly skilled and trained technicians or specialists.
Subpart 1819.2--Policies
1819.201 General policy. (NASA supplements paragraphs (a), (c), and
(d)
(a)(i) NASA is committed to providing to small, small
disadvantaged, and women-owned small business concerns, maximum
practicable opportunities to participate in Agency acquisitions at the
prime contract level. The participation of NASA prime contractors in
providing subcontracting opportunities to such entities is also an
essential part of the Agency's commitment. The participation of these
entities is particularly emphasized in high-technology areas where they
have not traditionally dominated.
(ii) Congress established an 8 percent goal for NASA as described
in 1819.7000. The Federal Acquisition Streamlining Act of 1994 has made
NASA subject to a 5 percent goal for prime and subcontract awards to
small disadvantaged business concerns, Historically Black Colleges and
[[Page 36708]]
Universities, and minority institutions. Unlike the NASA 8 percent
goal, the 5 percent goal does not include prime and subcontract awards
to women-owned small businesses. NASA also annually negotiates small,
small disadvantaged, and women-owned small business prime and
subcontracting goals with the Small Business Administration pursuant to
section 15(g) of the Small Business Act (15 U.S.C. 644). These goals
are Agencywide goals.
(c) The Associate Administrator for Small and Disadvantaged
Business Utilization (Code K) is the Agency official responsible for
carrying out the duties in FAR 19.201(c).
(d)(i) The center director shall designate a qualified individual
in the contracting office as a small business specialist to provide a
central point of contact to which small business concerns may direct
inquiries concerning small business matters and participation in NASA
acquisitions. The small business specialist shall also perform other
functions specifically set forth in this section 1819.201 or that the
procurement officer may prescribe, with the concurrence of the
Associate Administrator for Small and Disadvantaged Business
Utilization, for implementing the Small Business Program. When the
center director considers that the volume of acquisitions or the
functions relating to acquisitions at the center do not warrant a full-
time small business specialist, these duties may be assigned to
procurement personnel on a part-time basis.
(ii) Small business specialists appointed under paragraph (d)(i) of
this subsection shall perform the following duties, as the procurement
officer determines appropriate to the installation:
(A) Maintain a program designed to locate capable small business
sources, including those located in labor surplus areas, for current
and future acquisitions.
(B) Coordinate inquiries and requests for advice from small
business concerns on acquisition matters.
(C) Before issuance of solicitations or contract modifications for
additional supplies or services, determine that small business concerns
will receive adequate consideration, including making recommendations
for initiation of set-asides (see FAR 19.5 and 19.8) and for taking
action in accordance with FAR 19.506(b) and 1819.502-70. Participate
and provide input early in the acquisition planning phase of proposed
acquisitions, including acquisition strategy meetings.
(D) If small business concerns cannot be given an opportunity to
compete because adequate specifications or drawings are not available,
work with appropriate technical and contracting personnel to ensure
that necessary specifications or drawings for current or future
acquisitions will be available.
(E) Review acquisitions for possible breakout of items suitable for
acquisition from small business concerns.
(F) Advise small business concerns regarding financial assistance
available under laws and regulations, assist such concerns in applying
for such assistance, and ensure that small business concerns' requests
for financial assistance are not treated as a handicap in securing the
award of contracts.
(G) Participate in responsibility determinations (see FAR 9.103)
when small business concerns are involved.
(H) Participate in the evaluation of prime contractors' small
business subcontracting programs (see FAR 19.705-4).
(I) Review and make appropriate recommendations to the contracting
officer on any proposal to furnish Government-owned facilities to a
contractor if such action may hurt the Small Business Program.
(J) Ensure that participation of small business concerns is
accurately reported.
(K) Make available to SBA copies of solicitations when requested.
(L) Act as liaison between contracting officers and SBA area
offices and representatives in connection with set-asides, certificates
of competency, and any other matters in which the Small Business
Program may be involved.
(M) In cooperation with contracting officers and technical
personnel, seek and develop information on the technical competence of
small business concerns for research and development contracts.
Regularly bring to the attention of contracting officers and technical
personnel descriptive data, brochures, and other information regarding
small business concerns that are apparently competent to perform
research and development work in fields in which NASA is interested.
(N) When a small business concern's offer has been rejected for
nonresponsiveness or nonresponsibility, assist that concern, upon its
request, in understanding such requirements for future awards.
(O) Advise center personnel, as necessary, on new Governmentwide
and Agency-approved small business programs and initiatives.
1819.202 Specific policies.
1819.202-1 Encouraging small business participation in acquisitions.
1819.202-170 Contract consolidations.
Prior to effecting a contract consolidation valued at $5 million or
more, including options, which will not be exclusively reserved for
small or 8(a) firms, the contracting officer, with assistance from the
small business specialist and the cognizant technical office, shall
prepare an impact assessment of the effects of the consolidation on
present and future contracting and subcontracting opportunities for
small, small disadvantaged, and women-owned small business. The impact
assessment shall address the reasons for the proposed consolidation
(especially where apparently unrelated efforts are being combined), the
expected benefits, and any actions planned to mitigate or eliminate the
impact on small business entities. The impact assessment shall be
forwarded to the Associate Administrator for Procurement (Code HS) for
concurrence by cognizant Headquarters offices and approval by the
Associate Deputy Administrator (Technical).
Subpart 1819.3--Determination of Status as a Small Business Concern
1819.302 Protesting a small business representation. (NASA supplements
paragraph (d))
(d)(1) The contracting officer shall not make awards of small
business set-aside acquisitions before the expiration of the period for
receipt of a size standard protest.
Subpart 1819.5--Set-Asides for Small Business
1819.502 Setting aside acquisitions.
1819.502-70 Non-initiation of set-asides.
(a) All cases involving the non-initiation of a set-aside, whether
resulting from a joint decision of the small business specialist and
the contracting officer or a decision by the contracting officer alone,
require referral to the SBA representative (if one is assigned and
available) for review.
(b) If the small business specialist recommends that an individual
acquisition or a class of acquisition, or a portion thereof, be set
aside, the contracting officer shall promptly either concur in or
disapprove the recommendation, stating in writing the reasons for
disapproval.
(c) When an SBA representative is assigned and available and the
contracting officer disapproves the
[[Page 36709]]
small business specialist's recommendation, the contracting officer
shall promptly refer the case to the SBA representative for review. The
small business specialist shall take no further appeal action. The SBA
representative must either concur with the decision or appeal the case
to the procurement officer under FAR 19.505. If the procurement officer
approves the contracting officer's decision and the SBA appeals under
FAR 19.505(c), the procurement officer shall forward the required
written justification, including a history of discussions between the
center and the SBA and rationale for the decision, to the Headquarters
Office of Procurement (HS).
(d) When an SBA representative is not assigned or available and the
contracting officer disapproves the small business specialist's
recommendation, the small business specialist may appeal in writing to
the procurement officer. The procurement officer's decision shall be
final. The contracting officer shall place a memorandum of the
procurement officer's decision in the contract file. If the procurement
officer's decision approves the contracting officer's action, the small
business specialist shall forward complete documentation of the case to
the Headquarters Office of Small and Disadvantaged Business Utilization
(Code K).
(e) The contracting officer shall prepare, sign, and retain in the
contract file a memorandum of nonconcurrence in a recommended set-aside
action.
Sec. 1819.502-3 Partial set-asides.
Sec. 1819.502-370 NASA reporting requirements.
The contracting officer shall separately report, in accordance with
Subpart 1804.6, awards of the non-set-aside portions of small business
set-aside acquisitions.
1819.505 Rejecting Small Business Administration recommendations.
See 1819.502-70.
1819.506 Withdrawing or modifying set-asides. (NASA supplements
paragraph (b))
(b) If an SBA representative is not assigned or available, and the
small business specialist disagrees with the contracting officer's
written decision of withdrawal or modification of a set-aside
determination, the small business specialist may appeal to the
procurement officer in accordance with the procedures in 1819.502-
70(d).
Subpart 1819.6--Certificates of Competency
1819.602 Procedures.
1819.602-1 Referral. (NASA supplements paragraph (a))
(a) On proposed awards exceeding the simplified acquisition
threshold, the contracting officer should consider requesting a
preaward survey (see FAR 9.106) before determining that a responsive
small business firm is not responsible. The scope of the preaward
survey request should be limited to those elements of responsibility
that are questioned.
(2) The contracting officer shall forward a copy of the referral to
SBA through the procurement officer to the Headquarters Office of Small
and Disadvantaged Business Utilization (Code K).
1819.602-3 Resolving differences between the agency and the Small
Business Administration.
1819.602-370 NASA procedures.
(a) When agreement cannot be reached between the contracting
officer and the SBA Area Office, the contracting officer shall forward
to the Headquarters Office of Procurement (Code HS) on an expedited
basis, a complete case file with a request that the case be considered
for appeal to SBA Headquarters. The contracting officer shall include
the data already furnished to SBA, SBA's rationale for proposing to
issue a COC, and the contracting officer's comments. The contracting
officer shall suspend acquisition action until informed by Code HS of
the final decision in the case.
(b) If the Office of Procurement concludes that the referral to SBA
should be withdrawn and a contract awarded without benefit of a COC,
Code HS shall inform the contracting officer.
(c) If the Office of Procurement agrees with the contracting
officer's recommended appeal action, the Associate Administrator for
Procurement shall forward the appeal through the Office of Small and
Disadvantaged Business Utilization (Code K) to SBA Headquarters.
Subpart 1819.7--Subcontracting With Small Business, Small
Disadvantaged Business and Women-Owned Small Business Concerns
1819.705-2 Determining the need for a subcontracting plan. (NASA
supplements paragraph (d))
(d) Solicitations for competitive negotiated acquisitions shall
require proposed subcontracting plans with initial proposals (see
1819.708(b)(1)). For sole source negotiated acquisitions, the
contractor shall be required to submit a proposed subcontracting plan
with the proposal.
1819.705-4 Reviewing the subcontracting plan.
1819.705-470 Acquisition-specific subcontracting goals.
Section 1819.201 addresses Agencywide goals at the combined prime
and subcontract levels. Appropriate subcontracting goals for an
individual acquisition, however, are to be independently determined on
the basis of the specific circumstances of the acquisition, consistent
with FAR 19.705-4 and 1819.7002(b), and not on the basis of an
Agencywide or center goal. Acquisition-specific subcontracting goals
should reflect maximum practicable opportunities for all categories of
small business concerns to participate in NASA programs, consistent
with efficient performance. The methods outlined in NASA Policy
Directive (NPD) 5000.2, Uniform Methodology for Determination of Small
Disadvantaged Subcontracting Goals, may also be useful in establishing
reasonable subcontracting goals for small and women-owned small
business concerns.
1819.708 Solicitation provisions and contract clauses. (NASA
supplements paragraph (b))
(b)(1) The contracting officer shall use the clause at FAR 52.219-9
with its Alternate II when contracting by negotiation.
1819.708-70 NASA solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 1852.219-
73, Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Plan, in invitations for bids containing the clause at
FAR 52.219-9 with its Alternate I. Insert in the last sentence the
number of calendar days after request that the offeror must submit a
complete plan.
(b) The contracting officer shall insert the clause at 1852.219-75,
Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Reporting, in solicitations and contracts containing the
clause at FAR 52.219-9, except for contracts covered by an approved
commercial plan.
[[Page 36710]]
Subpart 1819.8--Contracting With the Small Business Administration
(the 8(a) Program)
1819.804 Evaluation, offering, and acceptance.
1819.804-1 Agency evaluation.
The small business specialist shall review and evaluate all
acquisition requirements to determine their suitability for offering to
SBA for 8(a) acceptance and make a recommendation to the contracting
officer concerning award to SBA.
Subpart 1819.10--Small Business Competitiveness Demonstration
Program
1819.1005 Applicability. (NASA supplements paragraph (b))
(b) The targeted industry categories for NASA and their Standard
Industrial Classification (SIC) codes are:
SIC--Industry
Code--Category
3571--Electronic Computers
3577--Computer Peripheral Equipment, not elsewhere classified
3663--Radio & TV Broadcasting and Communications Equipment
3764--Guided Missile and Space Vehicle Propulsion Units and Propulsion
Unit Parts
3769--Guided Missile and Space Vehicle Parts and Auxiliary Equipment,
not elsewhere classified
3812--Search, Detection, Navigation, Guidance, Aeronautical, and
Nautical Systems and Instruments
3827--Optical Instruments and Lenses
7371--Computer Programming Services
7373--Computer Integrated Systems Design
7379--Computer Related Services, not elsewhere classified.
Subpart 1819.70--NASA 8 Percent Goal
1819.7000 General.
Public Laws 101-144, 101-507, and 102-389 require the NASA
Administrator to ensure, to the fullest extent possible, that at least
8% of Federal funding for prime and subcontracts awarded in support of
authorized programs, including the space station by the time
operational status is obtained, be made available to small
disadvantaged business concerns, Historically Black Colleges and
Universities, minority institutions, and women-owned small business
concerns.
1819.7001 Definitions.
(a) Small Disadvantaged Business (SDB) concern and Women-Owned
Small Business (WOSB) concern are defined in FAR 19.001.
(b) Historically Black College or University (HBCU) and Minority
Institution (MI) are defined in FAR 26.301.
1819.7002 Contracting officer responsibility.
(a) Contracting officers must seek out as potential sources
entities identified in 1819.7001 and give full consideration to these
entities to satisfy NASA requirements. The participation of NASA prime
contractors is also essential to meeting the Agency's 8 percent goal.
(b) NASA Policy Directive (NPD) 5000.2, Uniform Methodology for
Determination of Small Disadvantaged Subcontracting Goals, contains
guidance on developing realistic goals. It is applicable to
acquisitions expected to exceed $50 million, including options. The
methodology may be used for lesser value acquisitions.
1819.7003 Contract clause.
The contracting officer shall insert the clause at 1852.219-76,
NASA 8 Percent Goal, in all solicitations and contracts other than
those below the simplified acquisition threshold or when the contract,
together with all its subcontracts, is to be performed entirely outside
of any State, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and the Trust
Territory of the Pacific Islands.
Subpart 1819.71--NASA Rural Area Small Business Plan
1819.7101 Definition.
Rural area means a county with a population of fewer than twenty
thousand individuals.
1819.7102 General.
Pursuant to Public Law 100-590, NASA established a Rural Area
Business Enterprise Development Plan, including methods for encouraging
prime and subcontractors to use small business concerns located in
rural areas as subcontractors and suppliers. One method is to encourage
the contractor to use its best efforts to comply with the intent of the
statute.
1819.7103 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 1852.219-74, Use
of Rural Area Small Businesses, in solicitations and contracts that
offer subcontracting possibilities or that are expected to exceed
$500,000 ($1,000,000 for construction of public facility) unless the
contract, together with all its subcontracts, is to be performed
entirely outside of any State, territory, or possession of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, and
the Trust Territory of the Pacific Islands.
Subpart 1819.72--NASA Mentor-Protege Program
1819.7201 Scope of subpart.
The NASA Mentor-Protege Program is designed to incentivize NASA
prime contractors to assist small disadvantaged business concerns,
Historically Black colleges and Universities, minority institutions,
and women-owned small business concerns, in enhancing their
capabilities to perform NASA contracts and subcontracts, foster the
establishment of long-term business relationships between these
entities and NASA prime contractors, and increase the overall number of
these entities that receive NASA contract and subcontract awards.
1819.7202 Definitions.
High-Tech is defined in 1819.001.
1819.7203. Non-affiliation.
For purposes of the Small Business Act, a protege firm may not be
considered an affiliate of a mentor firm solely on the basis that the
protege firm is receiving developmental assistance referred to in
1819.7214 from such mentor firm under the Program. In addition, NASA
shall not consider partial ownership, up to 10 percent, of a Department
of Defense (DOD)-sanctioned protege firm by its DOD mentor to
constitute affiliation.
1819.7204 Transportability of features from the Department of Defense
(DOD) Mentor-Protege program to NASA contractors.
(a) In accordance with the benefits authorized by the DOD Mentor-
Protege Program (Public Law 101-510, Section 831, as amended by Public
Law 102-190, Section 814), a NASA contractor who is also an approved
DOD mentor can transfer credit features to their NASA contracts.
(b) NASA prime contractors, who are approved DOD mentors, can award
subcontracts noncompetitively under their NASA contracts to the
proteges which they are assisting under the DOD Program (Public Law
101-510, Section 831(f)(2)).
(c) NASA prime contractors may count the costs of developmental
assistance provided of proteges being assisted under the DOD Program
toward meeting the goals in their subcontracting plans under their NASA
prime contracts (Public Law 102-190,
[[Page 36711]]
Section 814). Limitations which may reduce the value of this benefit
include:
(1) Credit toward attaining subcontracting goals is available only
to the extent that the developmental assistance costs have not been
reimbursed to the contractor by DOD as direct or indirect costs; or
(2) The credit is available to meet the goals of a NASA
subcontracting plan only to the extent that it has not been applied to
a DOD subcontracting plan. The same unreimbursed developmental
assistance costs cannot be counted toward meeting the subcontracting
goals of more than one prime contract. These costs would accrue from
credit for the multiples attributed to assistance provided by Small
Business Development Centers, Historically Black Colleges and
Universities and minority institutions.
(d) The features identified in paragraphs (a), (b) and (c) of this
section point out the portability of features from the DOD Mentor-
Protege Program to NASA prime contractors. NASA mentors will be held to
show ``good faith'' by providing actual developmental assistance beyond
transferring credit from activity in the DOD Program to NASA
subcontracting plans.
1819.7205 General policy.
(a) Eligible large business prime contractors, not included on the
``List of Parties Excluded from Federal Procurement and Nonprocurement
Programs'', who have at least one active subcontracting plan, and who
are approved as mentor firms may enter into agreements with eligible
entities (as defined in 1819.7209) as proteges to provide appropriate
developmental assistance to enhance the capabilities of proteges to
perform as subcontractors and suppliers. Eligible small business prime
contractors, not included on the ``List of Parties Excluded from
Federal Procurement and Nonprocurement Programs'', and that are capable
of providing developmental assistance to proteges, may also be approved
as mentors. An active mentor-protege arrangement requires the protege
to be a subcontractor under the mentor's prime contract with NASA.
(b) The pilot Program has a duration of three years commencing from
March 24, 1995. During this period, eligible mentor firms, which have
received approval by NASA to participate in the Program pursuant to
1819.7212, may enter into agreements with protege firms.
(c) For the pilot phase of the Program, mentor-protege activity
will be limited to cost-plus-award-fee contracts.
(d) Costs incurred by a mentor to provide developmental assistance,
technical or managerial assistance described in 1819.7214, are
allowable
1819.7206 Incentives for prime contractor participation.
(a) During source selection Mentor-Protege will be evaluated as
part of SDB utilization under the Mission Suitability factor. Under
Mission Suitability, SDB utilization will be either a subfactor or an
element under a subfactor.
(b) Under cost-plus-award fee contracts, approved mentor firms
shall be eligible to earn award fee associated with their performance
as a mentor by performance evaluation period. For purposes of earning
award fee, the mentor firm's performance shall be evaluated against the
criteria described in the clause at 1852.219-79, Mentor Requirements
and Evaluation.
1819.7207 Measurement of Program success.
The overall success of the NASA Mentor-Protege Program encompassing
all participating mentors and proteges will be measured by the extent
to which it results in:
(a) An increase in the number, dollar value and percentage of
subcontractors awarded to proteges by mentor firms under NASA contracts
since the date of entry into the Program;
(b) An increase in the number and dollar value of contract and
subcontract awards to protege firms since the time of their entry into
the Program (under NASA contracts, contracts awarded by other Federal
agencies and under commercial contracts);
(c) An increase in the number and dollar value of subcontracts
awarded to a protege firm by its mentor firm; and
(d) An increase in subcontracting with protege firms in industry
categories where they have not traditionally participating within the
mentor firm's activity.
1819.7208 Mentor firms.
(a) Eligibility:
(1) Contractors eligible for receipt of government contracts;
(2) Large prime contractors performing under contracts with at
least one negotiated subcontracting plan as required by FAR 19.7; and
(3) Small business prime contractors that can provide developmental
assistance to enhance the capabilities of proteges to perform as
subcontractors and suppliers.
(b) Mentors will be encouraged to identify and select as proteges:
(1) A broad base of firms including those defined as emerging firms
(e.g., a protege whose size is no greater than 50 percent of the size
standard applicable to the SIC code assigned to a contracting
opportunity);
(2) Firms in addition to those with whom they have established
business relationships; and
(3) High-tech firms.
1819.7209 Protege firms.
(a) For selection as a protege, a firm must be:
(1) An SDB, HBCU, MI, or WOSB;
(2) Certified as small in the SIC code for the services or
suppliers to be provided by the protege under its subcontract to the
mentor; and
(3) Eligible for receipt of government contracts.
(b) A protege firm may self-certify to a mentor firm that it meets
the requirements set forth in paragraph (a) of this section. Mentors
may rely in good faith on written representation by potential proteges
that they meet the specified eligibility requirements.
(c) Proteges may have multiple mentors. Proteges participating in
mentor-protege programs in addition to the NASA Program should maintain
a system for preparing separate reports of mentoring activity for each
agency's program.
1819.7210 Selection of protege firms.
(a) Mentor firms will be solely responsible for selecting protege
firms. The mentor is encouraged to identify and select the types of
protege firms listed in 1819.7208(b).
(b) Mentor firms may have more than one protege.
(c) The selection of protege firms by mentor firms may not be
protested, except as in paragraph (d) of this section.
(d) A protest regarding the size of eligibility status of an entity
selected by a mentor to be a protege shall be handled in accordance
with FAR 19.703(b). The contracting officer shall notify the
Headquarters Office of Small and Disadvantaged Business Utilization
(OSDBU) (Code K) of the protest.
1819.7211 Application process for mentor firms to participate in the
Program.
(a) Prime contractors interested in becoming a mentor firm must
submit a request to the NASA OSDBU to be approved under the Program.
The application will be evaluated on the extent to which the company
plans to provide developmental assistance. The information required in
paragraph (b) of this section must be submitted to be considered for
approval as a mentor firm.
[[Page 36712]]
(b) A proposed mentor must submit the following information to the
NASA OSDBU:
(1) A statement that the mentor firm is currently performing under
at least one active approved subcontracting plan (small business
exempted) and that they are eligible, as of the date of application,
for the award of Federal contracts;
(2) The cognizant NASA contract number(s), type of contract, period
of performance (including options), title of technical program effort,
name of NASA Program Manager (including contact information) and name
of the NASA field center where support is provided;
(3) The number of proposed mentor-protege arrangements;
(4) Data on all current NASA contracts and subcontracts to include
the contract/subcontract number(s), period of performance, awarding
NASA installation or contractor and contract/subcontract value(s)
including options;
(5) Data on total number and dollar value of subcontracts awarded
under NASA prime contracts within the past 2 years and the number and
dollar value of such subcontracts awarded to entities defined as
proteges.
(6) Information on the proposed types of developmental assistance.
For each proposed mentor-protege relationship include information on
the company's ability to provide developmental assistance to the
identified protege firm and how that assistance will potentially
increase subcontracting opportunities for the protege firm, including
subcontracting opportunities in industry categories where these
entities are not dominant in the company's current subcontractor base;
and
(7) A Letter of Intent signed by both parties. At a minimum, the
Letter of Intent must include the stated commitment that the parties
intend to enter into a mentor-protege agreement under the NASA Program,
that they intend to cooperate in the establishment of a suitable
developmental assistance program to meet their respective needs, and
that they agree to comply with the obligations in 1819.7215 and all
other provisions governing the Program.
1819.7212 OSDBU review and approval process of agreement.
(a) The information specified in 1819.7211(b) is reviewed by the
NASA OSDBU. This review will be completed no later than 30 days after
receipt by the OSDBU. The OSDBU will provide a copy of the submitted
information to the cognizant NASA technical program manager and
contracting officer for a parallel review and concurrence.
(b) If OSDBU approves the application, then the mentor
(1) Negotiates an agreement with the protege; and
(2) Submits an original and two (2) copies of the agreement to the
OSDBU for approval by the NASA Mentor-protege program manager, the NASA
technical program manager, and the contracting officer.
(c) Upon agreement approval, the mentor may implement a
developmental assistance program.
(d) An approved agreement will be incorporated into the mentor's
contract with NASA. It should be added to the subcontracting plan in
contracts which contain such a plan.
(e) If OSDBU disapproves the application, then the mentor may
provide additional information for reconsideration. The review of any
supplemental material will be completed within 30 days after receipt by
the OSDBU. Upon finding deficiencies that NASA considers correctable,
the OSDBU will notify the mentor and request information to be provided
within 30 days that may correct the deficiencies.
1819.7213 Agreement contents.
The contents of the agreement must contain:
(a) Names and addresses of mentor and protege firms and a point of
contact within both firms who will oversee the agreement;
(b) Procedures for the mentor firm to notify the protege firm,
OSDBU, and the contracting officer, in writing, at least 30 days in
advance of the mentor firm's intent to voluntarily withdraw from the
Program;
(c) Procedures for a protege firm to notify the mentor firm in
writing at least 30 days in advance of the protege firm's intent to
voluntarily terminate the mentor-protege agreement. The mentor shall
notify the OSDBU and the contracting officer immediately upon receipt
of such notice from the protege;
(d) A description of the type of developmental program that will be
provided by the mentor firm to the protege firm, to include a
description of the subcontract work, and a schedule for providing
assistance and criteria for evaluation of the protege developmental
success;
(e) A listing of the number and types of subcontracts to be awarded
to the protege firm;
(f) Program participation term;
(g) Termination procedures;
(h) Plan for accomplishing work should the agreement be terminated;
and
(i) Other terms and conditions, as appropriate.
1819.7214 Developmental assistance.
The forms of developmental assistance a mentor can provide to a
protege include:
(a) Management guidance relating to--
(1) Financial management,
(2) Organizational management,
(3) Overall business management/planning, and
(4) Business development;
(b) Engineering and other technical assistance;
(c) Noncompetitive award of subcontracts under NASA contracts;
(d) Progress payments based on costs. The customary progress
payment rate for all NASA contracts with small disadvantaged businesses
is 95 percent. This customary progress payment rate for small
disadvantaged businesses may be used by prime contractors;
(e) Advance payments. While a mentor can make advance payments to
its proteges who are performing as subcontractors, the mentor will only
be reimbursed by NASA for these costs if advance payments have been
authorized in accordance with statute and regulation;
(f) Loans;
(g) Rent-free use of facilities and/or equipment;
(h) Property; and
(i) Temporary assignment of personnel to the protege for purpose of
training.
1819.7215 Obligation.
(a) The mentor or protege may voluntarily withdraw from the Program
as mutually agreed by both mentor and protege.
(b) Mentor and protege firms will submit a ``lessons learned''
evaluation to the NASA OSDBU at the conclusion of the pilot program
period or the conclusion of their effort, whichever comes first.
1819.7216 Internal controls.
(a) The NASA OSDBU will manage the Program. Internal controls will
be established by the OSDBU to achieve the stated program objectives
(by serving as checks and balances against undesired actions or
consequences) such as:
(1) Reviewing and evaluating mentor applications for realism,
validity and accuracy of provided information;
(2) Reviewing semi-annual progress reports submitted by mentors and
proteges, if any, on protege development to measure protege progress
against the master plan contained in the approved agreement.
(3) Site visits to NASA installation where mentor-protege activity
is on-going.
[[Page 36713]]
(b) NASA may terminate mentor-protege agreements if NASA determines
that such actions are in NASA's interest. These actions shall be
approved by the NASA OSDBU. NASA will terminate an agreement or exclude
a particular entity by sending a written notice to the affected party
specifying the action being taken and the effective date of that
action. Termination of an agreement does not constitute a termination
of the subcontract between the mentor and the protege. A plan for
accomplishing the subcontract effort should the agreement be terminated
shall be submitted with the agreement, as required in 1819.7213(h).
1819.7217 Reports.
(a) Semi-annual reports shall be submitted by the mentor to the
NASA Mentor-Protege program manager, the NASA OSDBU, to include
information as outlined in 1852.219-79(b).
(b) Proteges are encouraged to submit semi-annual reports to the
OSDBU on Program progress pertaining to their mentor-protege agreement.
However, costs associated with the preparation of these reports are
unallowable costs under Government contracts and will not be reimbursed
by the Government.
(c) The NASA technical program manager shall include an assessment
of the prime contractor's (mentor's) performance in the Mentor-Protege
Program in his quarterly `Strengths and Weaknesses' evaluation report.
A copy of these comments, as pertains to the technical effort and
protege development, will be provided to the OSDBU and the contracting
officer.
(d) The NASA Mentor-Protege program manager will submit semi-annual
reports to the cognizant contracting officer regarding the
participating prime contractor's performance in the Program for use in
the award fee determination process.
1819.7218 Program review.
At the conclusion of each year in the Mentor-Protege Program, the
prime contractor and protege, as appropriate, will formally brief the
NASA OSDBU, the technical program manager, and the contracting officer
regarding Program accomplishments pertaining to the approved agreement.
This review will be incorporated into the normal program review, where
applicable. A separate review will be scheduled for other contracts to
be held at the NASA work site location.
1819.7219 Solicitation provision and contract clauses.
(a) The contracting officer shall insert the clause at 1852.219-77,
NASA Mentor-Protege Program, in all cost-plus-award-fee solicitations
and contracts with subcontracting plans or in the case of small
business set-asides exceeding $500,000 ($1,000,000 for construction)
that offer subcontracting opportunities.
(b) The contracting officer shall insert the clause at 1852.219-79,
Mentor Requirements and Evaluation, in contracts where the prime
contractor is a participant in the NASA Mentor-Protege Program.
PART 1822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
1822.604-2 [Amended]
29. In section 1822.604-2, paragraph (c) is redesignated as
paragraph (b).
1822.608, 1822.608-4 [Removed]
30. Sections 1822.608 and 1822.608-4 are removed.
PART 1824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
1824.202 [Redesignated]
31. Section 1824.202 is redesignated as 1824.203.
32. Part 1825 is revised to read as follows:
PART 1825--FOREIGN ACQUISITION
Sec.
1825.000 Scope of part.
1825.000-70 Definition.
Subpart 1825.1--Buy American Act--Supplies
1825.101 Definitions.
1825.101-70 NASA definition.
1825.102 Policy.
1825.103 Agreements with certain foreign governments.
1825.103-70 Canadian end products.
1825.105 Evaluating offers.
1825.108 Excepted articles, materials, and supplies.
Subpart 1825.2--Buy American Act--Construction Materials
1825.202 Policy.
1825.207 Solicitation provisions and contract clauses.
1825.207-70 NASA contract clause.
Subpart 1825.3--Balance of Payments Program
1825.304 Excess and near-excess foreign currencies.
Subpart 1825.4--Trade Agreements
1825.400 Scope of subpart.
1825.402 Policy.
1825.403 Exceptions.
1825.405 Procedures.
Subpart 1825.6--Customs and Duties
1825.602 Policy.
1825.603 Procedures.
1825.603-70 NASA procedures.
1825.605 Contract clause.
1825.605-70 NASA contract clause.
Subpart 1825.9--Additional Foreign Acquisition Clauses
1825.901 Omission of Audit clause.
Subpart 1825.70--Foreign Contracts
1825.7000 Scope of subpart.
1825.7001 Definition.
1825.7002 Policy.
1825.7003 Procedure.
Authority: 42 U.S.C. 2473(c)(1).
1825.000 Scope of part.
1825.000-70 Definition.
Agency head, for the purposes of this part, is the Associate
Administrator for Procurement unless specifically stated otherwise.
Subpart 1825.1--Buy American Act--Supplies
1825.101 Definitions.
1825.101-70 NASA definition.
Canadian end product, or an item with an estimated value of $25,000
or less, means an unmanufactured end product mined or produced in
Canada or an end product manufactured in Canada, if the cost of its
components mined, produced, or manufactured in Canada or the United
States exceeds 50 percent of the cost of all its components. The cost
of components includes transportation costs to the place of
incorporation into the end product. For an end product with an
estimated value in excess of $25,000, the definition at FAR 25.401
applies.
1825.102 Policy. (NASA supplements paragraphs (a) and (b))
(a)(3)(A) The procurement officer shall send proposed public
interest determinations to the Associate Administrator for Procurement
(Code HS) for approval.
(B) See 1825.103-70(A) for a blanket determination regarding
Canadian end products.
(a)(4) The items listed in FAR 25.108(d)(1) are not mined,
produced, or manufactured in the United States in sufficient and
reasonably available commercial quantities or a satisfactory quality.
(b)(1) Contracting officers may make determinations of
nonavailability both before entering into contracts and in the course
of contract administration; provided, however, that in the latter case
the Government receives adequate consideration. The following is the
format for nonavailability determinations:
[[Page 36714]]
Determination of Nonavailability
Pursuant to the authority contained in the Buy American Act (41
U.S.C. 10) and authority delegated to me by NFS 1825.102(b)(1), I
hereby make the following findings:
a. (Insert a description of the item or items to be acquired,
including unit, quantity, and estimated cost inclusive of duty and
transportation costs to destination.)
b. (Enter the name and address of the proposed contractor or
supplier and the country of origin of the items.)
c. (Include a brief statement of the necessity for the
acquisition.)
d. (Include a statement of facts establishing the
nonavailability of similar items of domestic origin. If there is no
known domestic item that can be used as a reasonable substitute,
make a statement to this effect.)
On the basis of these findings, I determine that the item(s)
described in paragraph a. above is/are not mined, produced, or
manufactured (or the articles, materials, or supplies from which the
item(s) is/are manufactured are not mined, produced, or
manufactured) in the United States in sufficient and reasonably
available quantities of a satisfactory quality.
Accordingly, the Buy American Act requirement that acquisition
be made from domestic sources and that the item(s) be of domestic
origin is not applicable to this acquisition, since the acquisition
is within the Buy American Act's nonavailability exception.
Authority is granted to acquire the above-described item(s) of
foreign origin (country or origin) at an estimated total cost of
$________, including duty and transportation costs to destination.
(Date)-----------------------------------------------------------------
Contracting Officer----------------------------------------------------
1825.103 Agreements with certain foreign governments.
1825.103-70 Canadian end products.
(a) The Associate Administrator for Procurement has determined that
it is inconsistent with the public interest to apply restrictions of
the Buy American Act to Canadian end products with estimated values of
$25,000 or less as defined in 1825.101-70. Accordingly, contracting
officers shall evaluate all offers for such Canadian end products on a
parity with offers for domestic and products, except that applicable
duty (whether or not a duty free entry certificate may be issued) shall
be included in evaluating offers for Canadian end products.
(b) See FAR 25.402(a)(3)(ii) for evaluation of Canadian end
products with values in excess of 25,000 as defined in FAR 25.401.
1825.105 Evaluating offers. (NASA supplements paragraphs (a) and (c))
(a) To make the price comparison between domestic and foreign
offers, the contracting officer shall increase the price of the foreign
offer by 6- or 12-percent, as applicable. If the application of the
differential results in a tie between the foreign and domestic offers,
award shall be made to the domestic offeror.
(c) The FAR requirement to apply both 6- and 12-percent factors
pertains only when the lowest acceptable domestic offer is from a small
business concern.
1825.108 Excepted articles, materials, and supplies. (NASA supplements
paragraph (a))
(a) See 1825.102(a)(4) and 1825.202(a)(3).
Subpart 1825.2--Buy American Act--Construction Materials
1825.202 Policy. (NASA supplements paragraph (a))
(a)(2) The construction materials listed in FAR 25.108(d)(1) are
not mined, produced, or manufactured in the United States in sufficient
and reasonably available commercial quantities of a satisfactory
quality. In addition, subject to the approval of the head of the
contracting activity when required, contracting officers may make
determinations of nonavailability both before entering into contracts
and in the course of contract administration; provided, however, that
in the latter case the Government receives adequate consideration. See
1825.102(b)(1) for the determination of nonavailability format.
1825.207 Solicitation provisions and contract clauses.
1825.207-70 NASA contract clause.
The contracting officer shall insert the clause at 1852.225-71,
Nondomestic Construction Materials, in all contracts for construction.
Subpart 1825.3--Balance of Payments Program
1825.304 Excess and near-excess foreign currencies. (NASA supplements
paragraph (c))
(c) The NASA Headquarters Comptroller (Code B) is the designated
official for making the determination of the feasibility of using
excess or near-excess currency.
Subpart 1825.4--Trade Agreements
1825.400 Scope of subpart. (NASA supplements paragraph (b))
(b) The Buy American Act and the Balance of Payments Program apply
to all acquisitions of Japanese end products or services in excess of
$2,500.
1825.402 Policy. (NASA supplements paragraph (c))
(c)(3) Waiver under the Trade Agreements Act is not applicable to
acquisitions of Japanese end products or services in excess of $2,500.
1825.403 Exceptions. (NASA supplements paragraph (c))
(c)(2) If a contracting officer considers an individual acquisition
to be a purchase ``indispensable for national security or for national
defense purposes'' and appropriate for exclusion from the provisions of
FAR 25.4 and of this Subpart 1825.4, the contracting officer shall
submit a request with supporting rationale to the Headquarters Office
of External Relations (Code I) for coordination with the Office of the
U.S. Trade Representative.
1825.405 Procedures.
Solicitations shall require that applicable duty charges be
included in the offered price of an eligible product, whether or not
duty-free certificates are obtained. Duty charges shall be included in
the price evaluation.
Subpart 1825.6--Customs and Duties
1825.602 Policy.
NASA has statutory authority to exempt certain articles from import
duties, including articles that will be launched into space, spare
parts for such articles, ground support equipment, and unique equipment
used in connection with an international program or launch service
agreement. This authority is fully described in 14 CFR 1217.
1825.603 Procedures.
1825.603-70 NASA procedures.
(a) The following officials are authorized to certify that articles
are eligible for duty free entry:
(1) Procurement officers, through delegation from the Associate
Administrator for Procurement, for articles imported into the United
States that are acquired by NASA or other U.S. Government agencies, or
by U.S. Government contractors or subcontractors when title to the
articles is, or will be, vested in the U.S. Government in accordance
with the terms of the contract or subcontract. All duty-free
certificates (see paragraph (b) of this section for format) shall be
coordinated with the center Chief Counsel. Procurement officers shall
maintain a record of each certification and make this record available
for periodic review by NASA Headquarters and the U.S. Customs Service.
[[Page 36715]]
(2) The Associate Administrator for External Relations (Code I) for
articles imported pursuant to international agreements.
(3) The Associate Administrator for Space Flight (Code M) for
articles imported under agreements other than those identified in
paragraph (a) (1) and (2) of this section, including launch service
agreements.
(b) Procurement officers shall complete Customs Service Form CF
7501 (Entry Summary) and an appropriate certification when approving
duty free exemption for articles acquired by NASA.
(1) For a single import, use the following certification format
specified in 14 CFR 1217.104(a):
Articles for the National Aeronautics and Space Administration
Item 9808.00.80, Harmonized Tariff Schedule of the United States
Program: (Insert name of NASA Program) ______________________
I hereby certify that the articles identified in [attached
invoice] are being imported for the use of the National Aeronautics
and Space Administration (NASA) in accordance with 9808.00.80,
Harmonized Tariff Schedule of the United States.
Name-------------------------------------------------------------------
Date-------------------------------------------------------------------
(2) For a series of imports under a specific acquisition, use the
certification format in paragraph (b)(1) of this section and add the
following paragraph specified in 14 CFR 1217.104(c) before the
signature block:
Before this certification is used to obtain duty-free entry of
these articles, a cognizant NASA official at the receiving NASA
Installation, who is designated by the Installation Director, shall
verify in writing that specifically identified articles to be
entered on a particular date are the articles described in this
certification or its attachments. This verification and this
certification shall be presented to the U.S. Customs-Service at the
time of entry for the particular articles is sought.
1825.605 Contract clause.
1825.605-70 NASA contract clause.
The contracting officer shall insert the clause at 1852.225-73,
Duty-Free Entry Supplies, in solicitations and contracts when the
supplies that will be accorded duty-free entry are identifiable before
award. Insert the supplies determined in accordance with FAR 25.604 and
1825.603.
Subpart 1825.9--Additional Foreign Acquisition Clauses
1825.901 Omission of Audit clause. (NASA supplements paragraph (c))
(c) The Administrator is the approval authority for waivers.The
contracting officer shall submit the waiver request, consisting of the
determination and findings prescribed in FAR 25.901(d) and any relevant
supporting information, to the Headquarters Office of Procurement (Code
HS).
Subpart 1825.70--Foreign Contracts
1825.7000 Scope of subpart.
This subpart prescribes policy and procedures for negotiating
foreign contracts.
1825.7001 Definition.
Foreign contract acquisition, as used in this subpart, means the
acquisition by negotiation of supplies or services, including
construction work and research and development when the work is to be
performed outside the United States, its possessions, and Puerto Rico
by a foreign government or instrumentality thereof or by a foreign
private contractor. The term does not include--
(a) Negotiation of government-to-government agreements;
(b) Negotiation of contracts with domestic concerns involving work
to be performed outside the United States, its possessions, and Puerto
Rico;
(c) Contracts with the Canadian Commercial Corporation; or
(d) Acquisition of books and periodicals from foreign sources of
supply.
1825.7002 Policy.
(a) Each contracting office (including NMO JPL) shall coordinate
with the Headquarters Office of External Relations (Code I), before
initiating any foreign contract acquisition if the acquisition is
valued above $100,000 or involves--
(1) Importing or exporting goods or technical data from or to a
country listed in 22 FR 126.1 (a) or (d) (Subchapter M, the
International Traffic in Arms Regulations);
(2) Importing or exporting Defense Articles or Defense Services on
the United States Munitions List at 22 CFR Part 121 which require NASA
to obtain a license from the State Department's Office of Defense Trade
Controls;
(3) Exporting goods or technical data on the Commerce Control List
at 15 CFR Part 744 and that require NASA to obtain either a Special or
an Individual Validated License;
(4) Importing and/or exporting goods or technical data from or to
an entity listed in 15 CFR Part 744, Supplements 1 through 3; or
(5) Exporting and/or importing of goods, technology, or services to
or from any entity subject to transaction control, embargo, or
sanctions pursuant to 31 CFR Chapter V.
(b) All coordination required between NASA and the Departments of
Commerce, State, and Treasury regarding foreign contract acquisitions
shall be accomplished through Headquarters Code I.
1825.7003 Procedure.
The Headquarters or field installation technical office requiring a
foreign contract acquisition meeting any of the criteria listed in
1825.7002 shall submit the following information to Headquarters Code
I--
(a) The name of the foreign entity, the country or countries
involved, and the purpose of the contract;
(b) The Space Act agreement(s) involved (pursuant to NMI 1050.9),
if any,
(c) A description of the goods or technical data requiring prior
written approval or the issuance of the license for their import or
export from the Departments of Commerce, State, or Treasury; and
(d) The reason why the acquisition is being placed with a foreign
entity.
33. Part 1827 is revised as set forth below:
PART 1927--PATENTS, DATA, AND COPYRIGHTS
Sec.
1827.000 Scope of part.
Subpart 1827.3--Patent Rights Under Government Contracts
1827.301 Definitions.
1827.302 Policy.
1827.303 Contract clauses.
1827.303-70 NASA solicitation provisions and contract clauses.
1827.304 Procedures.
1827.304-1 General.
1827.304-2 Contracts placed by or for other Government agencies.
1827.304-3 Contracts for construction work or architect-engineer
services.
1827.304-4 Subcontracts.
1827.304-5 Appeals.
1827.305 Administration of the patent rights clauses.
1827.305-3 Follow-up by Government.
1827.305-370 NASA patent rights and new technology follow-up
procedures.
1827.305-371 New technology reporting plan.
1827.305-4 Conveyance of invention rights acquired by the
Government.
Subpart 1827.4--Rights in Data and Copyrights
1827.404 Basic rights in data clause.
1827.405 Other data rights provisions.
1827.406 Acquisition of data.
1827.406-70 Report of work.
1827.408 Cosponsored research and development activities.
[[Page 36716]]
1827.409 Solicitation provisions and contract clauses.
1827.409-70 NASA contract clause.
Subpart 1827.6--Foreign License and Technical Assistance Agreements
1827.670 Space Station technical data and goods.
1827.670-1 Policy.
1827.670-2 Contract clause.
Authority: 42 U.S.C. 2473(c)(1).
1827.000 Scope of part.
This part prescribes NASA policies, procedures, and clauses
pertaining to patents, data, and copyrights. The provisions of FAR Part
27 apply to NASA acquisitions unless specifically excepted in this
part.
Subpart 1827.3--Patent Rights Under Government Contracts
1827.301 Definitions.
Administrator, as used in this subpart, means the Administrator of
NASA or a duly authorized representative.
Contract, as used in this subpart, means any actual or proposed
contract, agreement, understanding, or other arrangement, and includes
any assignment, substitution of parties, or subcontract executed or
entered into thereunder.
Made, in lieu of the definition in FAR 27.301, as used in this
subpart, means conceived or first actually reduced to practice;
provided that in the case of a variety of plant, the date of
determination (as defined in Section 41(d) of the Plant Variety
Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of
contract performance.
Reportable item, as used in this subpart, means any invention,
discovery, improvement, or innovation of the contractor, whether or not
patentable or otherwise protectible under Title 35 of the United States
Code, made in the performance of any work that is reimbursable under
any clause in any NASA contract providing for reimbursement of costs
incurred before the effective date of the contract.
Subject invention, in lieu of the definition in FAR 27.301, as used
in this subpart, means any reportable item that is or may be patentable
or otherwise protectible under Title 35 of the United States Code, or
any novel variety of plant that is or may be protectible under the
Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
1825.302 Policy. (NASA supplements paragraphs (a), (b), (c), (d), (e),
(f), (g), and (i)).
(a) Introduction.
(i) NASA policy with respect to any invention, discovery,
improvement, or innovation made in the performance of work under any
NASA contract or subcontract with other than a small business firm or a
nonprofit organization and the allocation to related property rights is
based upon Section 305 of the National Aeronautics and Space Act of
1958, as amended (42 U.S.C. 2457) (the Act); and, to the extent
consistent with this statute, the Presidential Memorandum or Government
Patent Policy to the Heads of Executive Departments and Agencies, dated
February 18, 1983, and Section 1(d)(4) of Executive Order 12591. NASA
policy with respect to any invention made in the performance of
experimental, developmental, or research work with a small business
firm or a nonprofit organization is based on 35 U.S.C. Chapter 18, as
amended.
(ii) NASA contracts subject to Section 305 of the Act shall ensure
the prompt reporting of reportable items in other to protect the
Government's interest and to provide widest practicable and appropriate
dissemination, early utilization, expeditious development, and
continued availability for the benefit of the scientific, industrial,
and commercial communities and the general public.
(b) Contractor right to elect title.
(i) For NASA contracts, the contractor right to elect title only
applies to contracts with small businesses and non-profit
organizations. For other business entities, see subdivision (ii) of
this paragraph.
(ii) Contractor right to request a waiver of title. For NASA
contracts with other than a small business firm or a nonprofit
organization (contracts subject to Section 305 of the Act), it is the
policy of NASA to waive the rights (to acquire title) of the United
States (with the reservation of a Government license set forth in FAR
27.302(c) and the march-in rights of FAR 27.302(f) and 1827.302(f)) in
and to any subject invention if the Administrator determines that the
interests of the United States will be served. This policy, as well as
the procedures and instructions for such waiver of rights, is stated in
the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.
Waiver may be requested in advance of contract award for any or all of
the subject inventions, or for individually identified subject
inventions reported under the contract. When waiver of rights is
granted, the contractor's right to title, the rights reserved by the
Government, and other conditions and obligations of the waiver shall be
included in an Instrument of Waiver executed by NASA and the party
receiving the waiver.
(iii) It is also a policy of NASA to consider for a monetary award,
when referred to the NASA Inventions and Contributions Board, any
subject invention reported to NASA in accordance with this subpart, and
for which an application for patent has been filed.
(c) Government license. For each subject invention made in the
performance of work under a NASA contract with other than a small
business firm or nonprofit organization and for which waiver of rights
has been granted in accordance with 14 CFR Section 1245, Subpart 1, the
Administrator shall reserve an irrevocable, nonexclusive,
nontransferable, royalty-free license for the practice of such
invention throughout the world by or on behalf of the United States or
any foreign Government in accordance with any treaty or agreement of
the United States.
(d) Government right to receive title. Under any NASA contract with
other than a small business or nonprofit organization (i.e., those
contracts subject to Section 305(a) of the Act), title to subject
inventions vests in NASA when the determinations of Section 305(a)(1)
or 305(a)(2) have been made. The Administrator may grant a waiver of
title in accordance with 14 CFR Section 1245.
(e) Utilization reports. For any NASA contract with other than a
small business firm or a nonprofit organization, the requirements for
utilization reports shall be as set forth in the NASA Patent Waiver
Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of
Waiver executed under those Regulations.
(f) March-in rights. For any NASA contract with other than a small
business firm or a nonprofit organization, the march-in rights shall be
as set forth in the NASA Patent Waiver Regulations, 14 CFR Section
1245, Subpart 1, and any Instrument of Waiver executed under those
Regulations.
(g) Preference for United States industry. Waiver of the
requirement for the agreement for any NASA contract with other than a
small business firm or a nonprofit organization shall be in accordance
with the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart
1.
(i) Minimum rights to contractor.
(1) For NASA contracts with other than a small business firm or a
nonprofit organization (i.e., those contracts subject to Section 305(a)
of the Act), where title to any subject inventions vests in NASA, the
contractor is normally granted, in accordance with 14 CFR
[[Page 36717]]
1245, a revocable, nonexclusive, royalty-free license in each patent
application filed in any country and in any resulting patent. The
license extends to any of the contractor's domestic subsidiaries and
affiliates within the corporate structure, and includes the right to
grant sublicenses of the same scope to the extent the contractor was
legally obligated to do so at the time the contract was awarded. The
license and right are transferable only with the approval of the
Administrator, except when transferred to the successor of that part of
the contractor's business to which the invention pertains.
(2) The Administrator is the approval authority for revoking or
modifying a license. The procedures for revocation or modification are
described in 37 CFR 404.10 and 14 CFR 1245.108.
1827.303 Contract clauses. (NASA supplements paragraphs (a), (b), (c)
and (d))
(a)1)(A) See 1827.303-70(a).
(B) To qualify for the clause at FAR 52.227-11, a prospective
contractor may be required to represent itself as either a small
business firm or a nonprofit organization. If there is reason to
question the status of the prospective contractor, the contracting
officer may file a protest in accordance with FAR 19.302 if small
business firm status is questioned, or require the prospective
contractor to furnish evidence of its status as nonprofit organization.
(b)(1)(ii) FAR 52.227-12 is not used in NASA contracts. See instead
1827.303-70(b).
(c)(1)(ii) When work is to be performed outside the United States,
its possessions, and Puerto Rico by contractors that are not domestic
firms, see 1827.303-70(f).
(2) See 1827.303-70 (b) and (f).
(d)(1) When one of the conditions in FAR 27.303(d)(1) (i) through
(iv) is met, the contracting officer shall consult with the
installation intellectual property counsel to determine the appropriate
clause.
1827.303-70 NASA solicitation provisions and contract clauses.
(a) When the clause at FAR 52.227-11 is included in a solicitation
or contract, it shall be modified as set forth at 1852.227-11.
(b) The contracting officer shall insert the clause at 1852.227-70,
New Technology, in all NASA solicitations and contracts with other than
a small business firm or a nonprofit organization (i.e., those subject
to section 305(a) of the Act), if the contract is to be performed in
the United States, its possessions, or Puerto Rico and has as a purpose
the performance of experimental, developmental, research, design, or
engineering work. Contracts for any of the following purposes may be
considered to involve the performance of work of the type described
above (these examples are illustrative and not limiting):
(1) Conduct of basic or applied research.
(2) Development, design, or manufacture for the first time of any
machine, article of manufacture, or composition of matter to satisfy
NASA's specifications or special requirements.
(3) Development of any process or technique for attaining a NASA
objective not readily attainable through the practice of a previously
developed process or technique.
(4) Testing of, evaluation of, or experimentation with a machine,
process, concept, or technique to determine whether it is suitable or
could be made suitable for a NASA objective.
(5) Construction work or architect-engineer services having as a
purpose the performance of experimental, developmental, or research
work or test and evaluation studies involving such work.
(6) The operation of facilities or the coordination and direction
of the work of others, if these activities involve performing work of
any of the types described in subparagraphs (a) through (e) of this
paragraph.
(c) The contracting officer shall insert the provision at 1852.227-
71, Requests for Waiver of Rights to Inventions, in all solicitations
that include the clause at 1852.227-70, New Technology (see paragraph
(b) of this section).
(d) The contracting officer shall insert the clause at 1852.227-72,
Designation of New Technology Representative and Patent Representative,
in all solicitations and contracts containing either of the clauses at
FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form)
or 1852.227-70, New Technology (see paragraph (c) of this section). It
may also be inserted, upon consultation with the installation
intellectual property counsel, in solicitations and contracts using
another patent rights clause. The New Technology Representative shall
be the Technology Utilization Officer or the Staff member (by titled
position) having cognizance of technology utilization matters for the
installation concerned. The Patent Representative shall be the
intellectual property counsel (by titled position) having cognizance of
patent matters for the installation concerned.
(e) The contracting officer shall insert the provision at 1852.227-
84, Patent Rights Clauses, in solicitations for experimental,
developmental, or research work to be performed in the United States,
its possessions, or Puerto Rico when the eventual awardee may be a
small business or a nonprofit organization.
(f) As authorized in FAR 27.303(c)(2), when work is to be performed
outside the United States, its possessions, and Puerto Rico by
contractors that are not domestic firms, the clause at 1852.227-85,
Invention Reporting and Rights--Foreign, shall be used unless the
contracting officer determines, with concurrence of the installation
intellectual property counsel, that the objectives of the contract
would be better served by use of the clause at FAR 52.227-13, Patent
Rights--Acquisition by the Government. For this purpose, the
contracting officer may presume that a contractor is not a domestic
firm unless it is known that the firm is not foreign owned, controlled,
or influenced. (See FAR 27.304-4(a) regarding subcontracts with U.S.
firms.)
1827.304 Procedures.
1827.304-1 General. (NASA supplements paragraphs (a), (b), (c), (f),
(g), and (h))
(a) Contractor appeals of exceptions. In any contract with other
than a small business firm or nonprofit organization, the NASA Patent
Waiver Regulations, 14 CFR Section 1245, Subpart 1, shall apply.
(b) Greater rights determinations. In any contract with other than
a small business firm or a nonprofit organization and with respect to
which advance waiver of rights has not been granted (see 1827.302(b)),
the contractor (or an employee-inventor of the contractor after
consultation with the contractor) may request waiver of title to an
individual identified subject invention pursuant to the NASA Patent
Waiver Regulations, 14 CFR Section 1245, Subpart 1.
(c) Retention of rights by inventor. The NASA Patent Waiver
Regulations, 14 CFR Section 1245, Subpart 1, apply for any invention
made in the performance of work under any contract with other than a
small business firm or a nonprofit organization.
(f) Revocation or modification of contractor's minimum rights.
Revocation or modification of the contractor's license rights (see
1827.302-(i)(2)) shall be in accordance with 37 CFR 404.10, for subject
inventions made and reported under any contract with other than a small
business firm or a nonprofit organization.
(g) Exercise of march-in rights. For contracts with other than a
small
[[Page 36718]]
business firm or a nonprofit organization, the procedures for the
exercise of march-in rights shall be as set forth in the NASA Patent
Waiver Regulations, 14 CFR Section 1245, Subpart 1.
(h) Licenses and assignments under contracts with nonprofit
organizations. The Headquarters Associate General Counsel (Intellectual
Property) (Code GP) is the approval authority for assignments.
Contractor requests should be made to the Patent Representative
designated in the clause at 1852.227-72 and forwarded, with
recommendation, to Code GP for approval.
1827.304-2 Contracts placed by or for other Government agencies. (NASA
supplements paragraph (a))
(a)(3) When a contract is placed for another agency and the agency
does not request the use of a specific patent rights clause, the
contracting officer, upon consultation with the installation
intellectual property counsel, may use the clause at FAR 52.227-11,
Patent Rights--Retention by the Contractor (Short Form) as modified by
1852.227-11 (see 1827.303-70(a)) or 1852.227-70, New Technology (see
1827.303-70(b)).
1827.304-3 Contracts for construction work or architect-engineer
services. (NASA supplements paragraph (a))
(a) For construction or architect-engineer services contracts with
other than a small business or nonprofit organization, see 1827.303-
70(b).
1827.304-4 Subcontracts. (NASA supplements paragraph (a))
(a)(i) Unless the contracting officer otherwise authorizes or
directs, contractors awarding subcontracts and subcontractors awarding
lower-tier subcontracts shall select and include one of the following
clauses, suitably modified to identify the parties, in the indicated
subcontracts:
(A) The clause at 1852.227-70, New Technology, in any subcontract
with other than a small business firm or a nonprofit organization if a
purpose of the subcontract is the performance of experimental,
developmental, research, design, or engineering work of any of the
types described in 1827.303-70(b) (1)-(6).
(B) The clause at FAR 52.227-11, Patent Rights--Retention by the
Contractor (Short Form), modified by 1852.227-11 (see 1827.303-70(a)),
in any subcontract with a small business firm or a nonprofit
organization if a purpose of the subcontract is the performance of
experimental, developmental, or research work.
(ii) Whenever a prime contractor or a subcontractor considers it
inappropriate to include one of the clauses discussed in paragraph (a)
of this section in a particular subcontract, or a subcontractor refuses
to accept the clause, the matter shall be resolved by the contracting
officer in consultation with the intellectual property counsel.
1827.304-5 Appeals.
FAR 27.304-5 shall apply unless otherwise provided in the NASA
Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.
1827.305 Administration of the patent rights clauses.
1827.305-3 Follow-up by Government.
1827.305-370 NASA patent rights and new technology follow-up
procedures.
(a) For each contract containing a patent rights clause or the
clause at 1852.227-70, New Technology, the contracting officer shall
take the following actions:
(1) Furnish, or require the contractor or furnish directly, the New
Technology Representative and the Patent Representative a copy of each
contract (and modifications thereto), and copies of the final technical
report, interim technical progress reports, and other pertinent
material provided under the contract, unless the representatives
indicate otherwise; and
(2) Notify the New Technology Representative as to which
installation organizational element has technical cognizance of the
contract.
(b) The New Technology Representative shall take the following
actions:
(1) Review the technical progress of work performed under the
contract to ascertain whether the contractor and its subcontractors are
complying with the clause's reporting and recordkeeping requirements;
(2) Forward to the Patent Representative copies of all contractor
and subcontractor written reports of reportable items and disclosures
of subject inventions, and a copy of the written statement, if any,
submitted with the reports.
(3) Consult with the Patent Representative whenever a question
arises as to whether a given reportable item is to be considered a
subject invention and whether it was made in the performance of work
under the contract.
(4) Forward to the Patent Representative all correspondence
relating to inventions and waivers under the New Technology clause or
election of title under the Patent Rights--Retention by the Contractor
(Short Form) clause.
(5) Upon receipt of any final report required by the clause, and
upon determination that the contract work is complete, determine
whether the contractor has complied with the clause's reporting
requirements. If so, the New Technology Representative shall certify
compliance, obtain the Patent Representative's concurrence, and forward
the certification to the contracting officer.
(c) The Patent Representative shall review each reportable item to
ascertain whether it is to be considered a subject invention, obtain
any determinations required by paragraph (b) of the clause at 1852.227-
70, New Technology, and notify the contractor. As to any subject
invention, the Patent Representative shall:
(1) Ensure that the contractor has provided sufficient information
to protect the Government's rights and interests in it and to permit
the preparation, filing, and prosecution of patent applications;
(2) Determine inventorship;
(3) Ensure the preparation of instruments establishing the
Government's rights' and
(4) Conduct selected reviews to ensure that subject inventions are
identified, adequately documented, and timely reported or disclosed.
(d) Either the New Technology Representative or the Patent
Representative, in consultation with the other, may prepare opinions,
make determinations, and otherwise advise the contracting officer with
respect to any withholding of payment under paragraph (g) of the clause
at 1852.227-70, New Technology. Either the New Technology
Representative or the Patent Representative may represent the
contracting officer for the purpose of examining the contractor's
books, records, and other documents in accordance with paragraph (f) of
the clause and take corrective action as appropriate. However, no
action may be taken by either the New Technology Representative or the
Patent Representative that would constitute a final decision under the
Disputes clause, involve any change or increase in the work required to
be performed under the contact that is inconsistent with any right of
appeal provided in FAR 27.304-5 or 14 CFR 1245, Subpart 1, or otherwise
be outside the scope of the contract.
(e) The contracting officer shall not approve release of final
payment under the contract and, if applicable, any reserve set aside
under the withholding provisions of the clause for deficiencies and
delinquent reporting not corrected as of the time of the submission of
the
[[Page 36719]]
final report by the contractor until receipt of the New Technology
Representative's certification of compliance, and the Patent
Representative's concurrence.
1827.305-371 New technology reporting plan.
In contracts with an estimated cost in excess of $2,500,000 (or
less when appropriate) that contain the clause at 1852.227-70, New
Technology, the contracting officer may require the contractor to
submit for post-award Government approval a detailed plan for new
technology reporting that demonstrates an adequate understanding of and
commitment to the reporting requirements of the clause.
1827.305-4 Conveyance of invention rights acquired by the Government.
(NASA supplements paragraph (a))
(a) When the Government acquires the entire right to, title to, and
interest in an invention under the clause at 1852.227-70, New
Technology, a determination of title is to be made in accordance with
Section 305(a) of the National Aeronautics and Space Act of 1958, as
amended (42 U.S.C. 2457(a)), and reflected in appropriate instruments
executed by NASA and forwarded to the contractor.
Subpart 1827.4--Rights in Data and Copyrights
1827.404 Basic rights in data clause. (NASA supplements paragraphs
(d), (e), (f), (g), (h), and (i))
(d) Protection of limited rights data specified for delivery. The
contracting officer shall consult with the installation patent or
intellectual property counsel regarding any questions concerning the
delivery of limited rights data and/or the use of Alternate II that may
arise from an offeror's response to the provision at FAR 52.227-15,
Representation of Limited Rights Data and Restricted Computer Software,
or during negotiations.
(e) Protection of restricted computer software specified for
delivery. The contracting officer shall consult with the installation
patent or intellectual property counsel regarding any questions
concerning the delivery of restricted computer software and/or the use
of Alternate III that may arise from an offeror's response to the
provision at FAR 52.227-15, Representation of Limited Rights Data and
Restricted Computer Software, or during negotiations.
(f) Copyrighted data.--(1)(ii) The contracting officer shall
consult with the installation patent or intellectual property counsel
before granting permission for a contractor to claim copyright
subsisting in data, other than computer software, first produced under
the contract.
(iv) The contracting officer, with the concurrence of the
installation intellectual property counsel, is the approval authority
for obtaining a copyright license of a different scope than set forth
in subparagraph (c)(1) of the clause at FAR 52.227-14, Rights in Data--
General, for any contract or class of contracts.
(2)(i) The procurement officer is the approval authority for
obtaining a copyright license of a different scope than that set forth
in subparagraph(c)(2) of the clause at FAR 52.227-14 for any contract
or class of contracts.
(g) Release, publication, and use of data.
(3)(A) NASA's intent is to ensure the most expeditious
dissemination of computer software developed by it or its contractor.
Accordingly, when the clause at FAR 52.227-14, Rights in Data-General,
is modified by 1852.227-14 (see 1827.409(a)), the contractor may not
assert claim to copyright, publish, or release to others computer
software first produced in the performance of a contract without the
contracting officer's prior written permission.
(B) The contracting officer may, in consultation with the
installation patent or intellectual property counsel, grant the
contractor permission to copyright, publish, or release to others
computer software first produced in the performance of a contract if:
(a) The contractor has identified an existing commercial computer
software product line or proposes a new one and states a positive
intention of incorporating any computer software first produced under
the contract into that line, either directly itself or through a
licensee;
(b) The contractor has made, or will be required to make,
significant contributions to the development of the computer software
by co-funding or by cost-sharing, or by contributing resources
(including but not limited to agreement to provide continuing
maintenance and update of the software at no cost for Governmental
use); or
(c) The concurrence of the Headquarters Office of Aeronautics
Commercial Technology Division (Code RW) is obtained.
(C)(a) The contractor's request for permission in accordance with
1827.404(g)(3)(A) may be made either before contract award or during
contract performance.
(b) Any permission granted in accordance with 1827.404(g)(3)(B) (a)
or (b) shall be by express contract provision (or amendment) overriding
subparagraph (d)(3) or FAR 52.227-14, Rights in Data--General, (as
modified by 1852.227-14), rather than by deleting it. The contract
provision may contain appropriate assurances that the computer software
will be incorporated into an existing or proposed new commercial
computer software product line within a reasonable time and/or that the
agreed contributions to the Government are fulfilled, with
contingencies enabling the Government to obtain the right to distribute
the software for commercial use, including the right to obtain
assignment of copyright where applicable, in order to prevent the
computer software from being suppressed or abandoned by the contractor.
(c) Any permission granted in accordance with 1827.404(g)(3)(B)(c)
may be either by deleting subparagraph (d)(3) or by special contract
provision, as appropriate.
(d) When any permission to copyright is granted, any copyright
license retained by the Government shall be of the same scope as set
forth in subparagraph (c)(1) of the clause at FAR 52.227-14 and without
any obligation of confidentiality on the part of the Government, unless
in accordance with 1827.404(g)(3)(B)(b) the contributions of the
Contractor may be considered ``substantial'' for the purposes of FAR
27.408 (i.e., approximately 50 percent), in which case rights
consistent with FAR 27.408 may be negotiated for the computer software
in question.
(D) If the contractor has not been granted permission to copyright,
paragraph (d)(3)(ii) of the clause at FAR 52.227-14, Rights in Data--
General (as modified by 1852.227-14) enables NASA to direct the
contractor to assert claim to copyright in computer software first
produced under the contract and to assign, or obtain the assignment of,
such copyright to the Government or its designee. The contracting
officer may, in consultation with the installation intellectual
property counsel, so direct the contractor in situations where
copyright protection is considered necessary in furtherance of Agency
mission objectives, needed to support specific Agency programs, or
necessary to meet statutory requirements.
(h) Unauthorized marking of data. The contracting officer shall
consult with the installation patent or intellectual property counsel
before taking any action regarding unauthorized markings of data under
paragraph (e) of the clause at FAR 52.227-14, Rights in Data--General.
[[Page 36720]]
(i) Omitted or incorrect notices. The contracting officer shall
consult with the installation patent or intellectual property counsel
before agreeing to add or correct any markings on data under paragraph
(f) of the clause at FAR 52.227-14, Rights in Data--General.
Sec. 1827.405 Other data rights provisions. (NASA supplements
paragraphs (b) and (c))
(b)(2) Acquisition of existing computer software. See 1827.409(k)
(i)-(ii) and 1827.409-70 for modifications and alternatives to the
clause at 52.227-19.
(c) Contracts awarded under the Small Business Innovative Research
(SBIR) Program. If, during the performance of an SBIR contract (Phase I
or Phase II), the need arises for NASA to obtain delivery of restricted
computer software as defined in the clause at FAR 52.227-20, Rights in
Data--SBIR Program, and the contractor agrees to such delivery, the
restricted computer software may be required with restricted rights by
modification of the contract or under an agreement incorporated in and
made part of the contract, using the restricted rights set forth in FAR
27.404(e) and the related restrictions as a guide.
1827.406 Acquisition of data. (NASA supplements paragraph (a))
(a) General. Requirements for delivering technical data relating to
standard commercial items, components, or processes should be kept to
the absolute minimum consistent with the purpose for which they are
being procured. Normally, a vendor's manuals for installation,
operation, or maintenance and repair and/or form, fit, and function
data are adequate.
1827.406-70 Reports of work.
(a) When considered necessary for monitoring contract performance,
contracting officers shall require contractors to furnish reports of
work performed under research and development contracts (fixed-price
and cost reimbursement) or in cost-reimbursement supply contracts. This
purpose may be achieved by including the following general
requirements, modified as needed to meet the particular requirements of
the contract, in the section of the contract specifying data delivery
requirements:
(1) Monthly progress reports. Reports should be in narrative form,
brief, and informal. They should include a quantitative description of
progress, an indication of any current problems that may impede
performance, proposed corrective action, and a discussion of the work
to be performed during the next monthly reporting period. (Normally,
this requirement should not be used in contracts with nonprofit
organizations.)
(2) Quarterly progress reports. In addition to factual data, these
reports should include a separate analysis section interpreting the
results obtained, recommending further action, and relating occurrences
to the ultimate objectives of the contract. Sufficient diagrams,
sketches, curves, photographs, and drawings should be included to
convey the intended meaning.
(3) Final report. This report should summarize the results of the
entire contract, including recommendations and conclusions based on the
experience and results obtained. The final report should include
tables, graphs, diagrams, curves, sketches, photographs, and drawings
in sufficient detail to explain comprehensively the results achieved
under the contract.
(4) Report Documentation Page. The contractor should include a
completed Report Documentation Page (SF 298) as the final page of each
report submitted.
(b) The contracting officer shall consider the desirability of
providing reports on the completion of significant units or phases of
work, in addition to periodic reports and reports on the completion of
the contract.
(c) A reproducible copy and a printed, or reproduced, copy of the
reports shall be sent to the NASA Center for AeroSpace Information
(CASI), Attn: Accessioning Department, 800 Elkridge Landing Road,
Linthicum Heights, MD 21090-2934 (see 1835.070(a)).
1827.408 Cosponsored research and development activities.
The contracting officer shall consult with the installation patent
or intellectual property counsel before limiting the acquisition of or
acquiring less than unlimited rights to any data developed under
contracts involving cosponsored research and development activities.
1827.409 Solicitation provisions and contract clauses. (NASA
supplements paragraph (a), (b), (c), (d), (e), (i), and (k))
(a) The contracting officer shall add subparagraph (3) set forth in
1852.277-14 to paragraph (d) of the clause at FAR 52.227-14, Rights in
Data--General, except in solicitations and contracts for basic or
applied research with universities or colleges.
(b) The contracting officer, with the concurrence of the
installation intellectual property counsel, is the approval authority
for use of Alternate I. An example of its use is where the principal
purpose of the contract (such as a contract for basic or applied
research) does not involve the development, use, or delivery of items,
components, or processes that are intended to be acquired for use by or
for the Government (either under the contract in question or under any
anticipated follow-on contracts relating to the same subject matter).
(c) The contracting officer shall normally add the disclosure
purposes listed in FAR 27.404(d)(1) (i)-(v) to subparagraph (g)(2).
However, the contracting officer may, upon consultation with the
installation patent or intellectual property counsel, make deletions
from the specific purposes listed. If all are deleted, the word
``None'' must be inserted. Additions to those specific purposes listed
may be made only with the approval of the procurement officer and
concurrence of the installation patent or intellectual property
counsel.
(d) The contracting officer shall consult with the installation
patent or intellectual property counsel regarding the acquisition of
restricted computer software with greater or lesser rights than those
set forth in Alternate III. Where it is impractical to actually modify
the notice of Alternate III, this may be done by express reference in a
separate clause in the contract or by a collateral agreement that
addresses the change in the restricted rights.
(e) The contracting officer, with the concurrence of the
installation intellectual property counsel, is the approval authority
for the use of Alternate IV in any contract other than a contract for
basic or applied research to be performed solely by a college or
university on campus (but not for the management or operation of
Government facilities).
(i) The contract officer shall modify the clause at FAR 52.227-17,
Rights in Data--Special Works by adding paragraph (f) as set forth in
1852.227-17.
(k)(i) The contracting officer shall add paragraph (e) as set forth
in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer
Software--Restricted Rights, when it is contemplated that updates,
correction notices, consultation information, and other similar items
of information relating to commercial computer software delivered under
a purchase order or contract are available and their receipt can be
facilitated by signing a vendor supplied agreement, registration forms,
or cards and returning them directly to the vendor.
[[Page 36721]]
(ii) The contracting officer shall add paragraph (f) as set forth
at 1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer
Software--Restricted Rights, when portions of a contractor's standard
commercial license or lease agreement consistent with the clause,
Federal laws, standard industry practices, and the FAR are to be
incorporated into the purchase order or contract.
(iii) See 1827.409-70.
1827.409-70 NASA contract clause.
The contracting officer shall use the clause at 1852.227-86,
Commercial Computer Software--Licensing, in lieu of FAR 52.227-19,
Commercial Computer Software--Restricted Rights, when it is considered
appropriate for the acquisition of existing computer software in
accordance with FAR 27.405(b)(2).
Subpart 1827.6--Foreign License and Technical Assistance Agreements
1827.670 Space Station technical data and goods.
1827.670-1 Policy.
NASA and its contractors shall comply will all applicable export
control laws, including the International Traffic in Arms Regulations
(ITAR), 22 CFR Parts 120-130, and the Export Administration Regulations
(EAR), 15 CFR Parts 730-799, with respect to the transfer of technical
data and goods to any International Space Station program multilateral
partner or contractor. When authorized, certain technical data in
support of the International Space Station program may be exported to a
foreign recipient specified in writing by the contracting officer.
Contracting officers, or designees, will assure that any transfer of
data to a foreign recipient will be in compliance with all applicable
directives, including the NASA Export Control Program.
1827.670-2 Contract clause.
The contracting officer shall insert the clause at 1852.227-87,
Transfer of Technical Data Under Space Station International
Agreements, in all solicitations, contracts, and purchase orders in
support of Space Station program activities that may involve transfer
of technical data subject to the International Traffic in Arms
Regulations, 22 CFR Parts 120-130, or the Export Administration
Regulations (EAR), 15 CFR Parts 730-799 in accordance with the NASA
Export Control Program.
PART 1832--CONTRACT FINANCING
1832.409-170 [Amended]
34-35. In section 1832.409-170, paragraph (5) is redesignated as
paragraph (e).
1832.412 [Amended]
36. In paragraph (a)(i) of section 1832.412, the phrase ``(either
paragraph (d) or (e))'' is revised to read ``(either paragraph (e) of
the basic clause and Alternate II, or paragraph (d) of Alternate V)''.
1832.903 [Removed]
37. Section 1832.903 is removed.
38. In section 1832.908, paragraph (c) is revised to read as
follows:
1832.908 Contract clauses.
(c) When the clause at FAR 52.232-25, Prompt Payment, is used in
contracting with the CCC subject to the conditions at 1832.970, make
the following modifications:
(i) Insert ``17th'' in lieu of ``30th'' in paragraphs (a)(1)(i)(A),
(a)(1)(i)(B), and (a)(1)(ii); and
(ii) Annotate the clause ``as modified by NASA (DATE)''.
39. Section 1832.970 is revised to read as follows:
1832.970 Payments to Canadian Commercial Corporation.
Pursuant to the authority of FAR 32.904(a)(3), invoice and
contractor financing payments for contracts (other than Fixed-Price
Architect-Engineer Contracts, Construction Contracts, and contracts for
meats, perishables and dairy products) with the Canadian Commercial
Corporation (CCC) shall be made earlier than the standard contract
payment due dates. Accordingly, the phrase ``the 17th day'' shall be
used in lieu of the ``the 30th day'' at FAR 32.905(a)(1) and 32.906(a).
PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
1836.213, 1836.213-3, 18213-70, 1836.213-7 [Added]
40. Sections 1836.213, 1836.213-3, 1836.213-70, and 1836.213-4 are
added to read as follows:
1836.213 Special procedures for sealed bidding in construction
contracting.
1836.213-3 Invitations for bids.
1836.213-70 Additive and deductive items.
When it appears that funds available for a project may be
insufficient for all the desired features of construction, the
contracting officer may provide in the invitation for bids for a first
or base bid item covering the work generally as specified and one or
more additive or deductive bid items progressively adding or omitting
specified features of the work in a stated order of priority. In such
case, the contracting officer, before the opening of bids, shall record
in the contract file the amount of funds available for the project and
determine the low bidder and the items to be awarded in accordance with
the provision at 1852.236-71, Additive or Deductive Items.
1836.213-4 Notice of Award. (NASA supplements paragraph (e))
(e) Contract delivery or performance schedules, commencement of
work, or notices to proceed shall not be expressed in terms of a notice
of award. (See 1814.408-1).
Subpart 1836.3--[Removed]
41. Subpart 1836.3 is removed.
PART 1837--SERVICE CONTRACTING
1837.110-70 [Amended]
42-43. In paragraph (c) to section 1837.110-70, delete the words
``level-of-effort''.
PART 1839--ACQUISITION OF INFORMATION TECHNOLOGY
1839.106, 1836.106-70 [Redesignated]
44. Sections 1839.106 and 1839.106-70 are redesignated as 1839.107
and 1839.107-70, respectively.
PART 1842--CONTRACT ADMINISTRATION
1842.7202 [Revised]
45. Section 1842.7202 is revised to read as follows:
1842.7202 Contract clause.
The contracting officer shall insert the clause at 1852.242-73,
NASA Contractor Financial Management Reporting, in solicitations and
contracts when any of the NASA Form 533 series of reports is required
from the contractor.
PART 1844--SUBCONTRACTING POLICIES AND PROCEDURES
1844.302-70 [Amended]
46. Paragraph (a) to section 1844.302-70 is revised to read as
follows:
1844.302-70 DCMC-conducted contractor purchasing system reviews.
* * * * *
(a) Verifying that CPSRs are being conducted in accordance with FAR
44.302.
* * * * *
[[Page 36722]]
47. Part 1845 is revised to read as follows:
PART 1845--GOVERNMENT PROPERTY
Subpart 1845.1--General
Sec.
1845.102 Policy.
1845.102-70 NASA policy.
1845.102-71 Solicitation and review procedures.
1845.104 Review and correction of contractors' property control
systems.
1845.106 Government property clauses.
1845.106-70 NASA contract clauses and solicitation provision.
1845.106-71 Plant reconversion and plant clearance.
Subpart 1845.3--Providing Government Property to Contractors
1845.301 Definitions.
1845.302 Providing facilities.
1845.302-1 Policy.
1845.302-2 Facilities contracts.
1845.302-70 Securing approval of facilities projects.
1845.302-71 Determination and findings.
Subpart 1845.4--Contractor Use and Rental of Government Property
1845.402 Authorizing use of Government production and research
property.
1845.403 Rental--Use and Charges clause.
1845.405 Contracts with foreign governments or international
organizations.
1845.405-70 NASA procedures.
1845.406 Use of Government production and research property on
independent research and development programs.
1845.406-70 NASA policy.
1845.407 Non-Government use of plant equipment.
Subpart 1845.5--Management of Government Property in the Possession of
Contractors
1845.502 Contractor responsibility.
1845.502-1 Receipts for Government property.
1845.502-70 Contractor-acquired property.
1845.505 Records and reports of Government property.
1845.505-14 Reports of Government property.
1845.508 Physical inventories.
Subpart 1845.6--Reporting, Redistribution, and Disposal of Contractor
Inventory
1845.604 Restrictions on purchase or retention of contractor
inventory.
1845.606 Inventory schedules.
1845.606-1 Submission.
1845.607 Scrap.
1845.607-1 General.
1845.607-170 Contractor's approved scrap procedure.
1845.607-2 Recovering precious metals.
1845.608 Screening of contractor inventory.
1845.608-1 General
1845.608-6 Waiver of screening requirements.
1845.610 Sale of surplus contractor inventory.
1845.610-3 Proceeds of sale.
1845.610-4 Contractor inventory in foreign countries.
1845.613 Property disposal determinations.
1845.615 Accounting for contractor inventory.
Subpart 1845.70--[Reserved]
Subpart 1845.71--Forms Preparation
1845.7101 Instructions for preparing NASA Form 1018.
1845.7101-1 Property classification.
1845.7101-2 Transfers of property.
1845.7101-3 Computing costs of fabricated special tooling, special
test equipment, agency-peculiar property and contract work in
process.
1845.7101-4 Types of deletions from contractors property records.
1845.7101-5--Contractor's privileged financial and business
information.
1845.7102 Instructions for preparing DD Form 1419.
Subpart 1845.72--Contract Property Management
1845.7201 Definitions.
1845.7202 General.
1845.7203 Delegations of property administration and plant
clearance.
1845.7204 Retention of property administration and plant clearance.
1845.7205 Functional oversight of property administration and plant
clearance.
1845.7206 Responsibilities of property administrators and plant
clearance officers.
1845.7206-1 Property administrators.
1845.7206-2 Plant clearance officers.
1845.7207 Declaration of excess property.
1845.7208 Closure of contracts.
1845.7208-1 Completion or termination.
1845.7208-2 Final review and closing of contracts.
1845.7209 Special subjects.
1845.7209-1 Government property at alternate locations of the
prime contractor and subcontractor plants.
1845.7209-2 Loss, damage, or destruction of Government property.
1845.7209-3 Loss, damage, or destruction of Government property
while in contractor's possession or control.
1845.7209-4 Financial reports.
1845.7210 Contractor utilization of Government property.
1845.7210-1 Utilization surveys.
1845.7210-2 Records of surveys.
Authority: 42 U.S.C. 2473(c)(1).
Subpart 1845.1--General
1845.102 Policy.
1845.102-70 NASA policy.
Government property shall not be provided to contractors unless all
other alternatives are not feasible. The decision to provide Government
property to contractors (whether Government-furnished or contractor-
acquired) shall be made only after careful consideration of all
relevant factors. Among these factors are the following:
(a) Providing Government property to contractors increases the
Government's administrative burden and requires recordkeeping and
personnel.
(b) Providing property may dilute the contractor's overall
responsibility and weaken guarantees, end-item delivery requirements,
and other contract terms.
(c) Providing property may make NASA responsible for delays in that
the Agency assumes responsibility for scheduling delivery of the
property.
1845.102-71 Solicitation and review procedures.
(a) Each solicitation, as applicable, shall include the following:
(1) A list of any Government property available to be furnished,
quantities, locations, conditions, and any related information.
(2) A requirement that offerors identify any Government property in
their possession proposed for use during contract performance. The
items, quantities, locations, acquisition costs, and proposed rental
terms must be provided, along with identification of the Government
contract under which the property is accountable.
(3) A requirement that requested Government provided facilities be
described and identified by the classifications in 1845.7101-1.
(4) A requirement that offerors provide, if applicable, the date of
the last Government property control system review, a summary of the
findings and recommendations, and contractor corrective actions taken.
(b) The contracting officer shall provide a copy of the
solicitation (or contract if no solicitation is used) to the center
supply and equipment management officer (SEMO) for review for
acquisitions with an estimated cost greater than $1,000,000, or for
acquisitions over $50,000 when work is to be performed at the center,
existing Government property is being furnished, or contract
acquisition of Government property is required or permitted.
1845.104 Review and correction of contractors' property control
systems. (NASA supplements paragraph (a))
(a) Property administration is normally delegated to DOD. When
property administration is not delegated to DOD, NASA shall conduct the
review of the contractor's property administration system in accordance
with DOD 4161.2-M, Manual for the Performance of Contract Property
Administration.
[[Page 36723]]
1845.106 Government property clauses. (NASA supplements paragraph (b))
(b) If NASA contemplates taking title to contractor acquired
property under paragraph (c) of the clause at FAR 52.245-2, Government
Property (Fixed-Price Contracts), the contracting officer shall list
the applicable property in the contract as deliverable items.
1845.106-70 NASA contract clauses and solicitation provision.
(a) The contracting officer shall insert the clause at 1852.245-70,
Contractor Requests for Government-Owned Equipment, in all
solicitations and contracts that have the potential for contractor
acquisition of equipment for the account of the Government that is not
listed as a specific contract deliverable. See 1845.7102 for
instructions on preparing DD Form 1419.
(b)(1) The contracting officer shall insert the clause at 1852.245-
71, Installation-Accountable Government Property, in solicitations and
contracts when Government property is to be made available to a
contractor working on a NASA installation, and the Government will
maintain accountability for the property. The contracting officer shall
list in the clause the applicable property user responsibilities. For
purposes of this clause, NASA installations include local off-site
buildings owned or directly leased by NASA when the contractor does not
have authority to acquire property for the account of the Government.
(2) Use of this clause is subject to the SEMO's concurrence that
adequate installation property management resources are available for
oversight of the property in accordance with all applicable NASA
installation property management directives.
(3) The contracting officer shall identify in the contract the
nature, quantity, and acquisition cost of such property and make the
property available on a no-charge basis.
(4) The contracting officer shall use the clause with its Alternate
I if the SEMO requests that the contractor be restricted from use of
the center central receiving facility for the purposes of receiving
contractor-acquired property.
(5) Contracting officers shall list separately in the contract any
property provided under a FAR 52.245 Government property clause that
remains accountable to the contractor during its use on the contract
(such as property used at the contractor's or a subcontractor's off-
site facility) and which is not also subject to the clause at 1852.245-
71. The contracting officer shall address any specific maintenance
considerations (e.g., requiring or precluding use of an installation
calibration or repair facility) elsewhere in the contract.
(6) See 1845.106-70(e).
(c) The contracting officer shall insert the clause at 1852.245-72,
Liability for Government Property Furnished for Repair and Services, in
fixed-price solicitations and contracts (except for experimental,
developmental, or research work with educational or nonprofit
institutions, where no profit is contemplated) for repair,
modification, rehabilitation, or other servicing of Government
property, if such property is to be furnished to a contractor for that
purpose and no other Government property is to be furnished. The
contracting officer shall not require additional insurance under the
clause unless the circumstances clearly indicate advantages to the
Government.
(d) The contracting officer shall insert the clause at 1852.245-73,
Financial Reporting of NASA Property in the Custody of Contractors, in
cost reimbursement contracts unless all property to be provided is
subject to the clause at 1852.245-71, Installation-Accountable
Government Property. The clause shall also be included in other types
of contracts when it is known at award that property will be provided
to the contractor or that the contractor will acquire property title to
which will vest in the Government prior to delivery.
(e) When approved by the Logistics Management Office of the
Headquarters Office of Management Systems and Facilities (Code JLG),
the contracting officer shall insert the clause at 1852.245-74,
Contractor Accountable On-Site Government Property, in lieu of the
clause at 1852.245-71, in solicitations and contracts when
accountability rests with an on-site contractor. The contracting
officer's written request for approval shall include a determination of
costs that will be (1) avoided (e.g., additional costs to the
installation's property management systems and staffing) and (2)
incurred (e.g., reimbursable costs of the contractor to implement,
staff, and operate separate property management systems on-site, and
resources needed for performance of, or reimbursement for, property
administration) under contractor accountability.
(f) The contracting officer shall insert the clause at 1852.245-75,
Title to Equipment, in solicitations and contracts where the clause at
FAR 52.245-2 with its Alternate II or 52.245-5, with its Alternate I is
used.
(g) The contracting officer shall insert the clause at 1852.245-76,
List of Government-Furnished Property, in solicitations and contracts
if the contractor is to be accountable under the contract for
Government property.
(h) The contracting officer shall insert the clause at 1852.245-77,
List of Installation-Accountable Property and Services, in
solicitations and contracts that require performance at the center and
authorize contractor use of property within the physical borders of the
center.
(1) The contracting officer shall insert the provision at 1852.245-
79, Use of Government-Owned Property, in all solicitations when
Government property may be used by the contractor.
(j) The contracting officer shall insert the clause at 1852.245-80,
Use of Government Production and Research Property on a No-Charge
Basis, in solicitations and contracts when government property (real
property, commercially available equipment, special test equipment, or
special tooling) accountable under another contract(s) is authorized
for use.
1845.106-71 Plant reconversion and plant clearance.
The Associate Administrator for Procurement (Code HS) is the
approval authority for any solicitation provision or contract clause
that would defer negotiation of costs for plant reconversion plant
clearance until after award.
Subpart 1845.3--Providing Government Property to Contractors
1845.301 Definitions.
Facilities, as defined in the FAR, also include real property and
commercially available equipment, whether owned or leased by NASA or
reimbursed as a cost under the contract.
Provide, as used in this subpart in such phrases as ``Government
property provided to the contractor'' and ``Government-provided
property,'' means either to furnish, as in ``Government-furnished
property,'' or to permit to be acquired, as in ``contractor-acquired
property.'' See FAR 45.101 for definitions of ``contractor-acquired
property'' and ``Government-furnished property.''
1845.302 Providing facilities.
1845.302-1 Policy. (NASA supplements paragraph (a))
(a) In addition to the exceptions listed in FAR 45.302-1(a),
existing NASA-owned facilities (whether contractor acquired or
government furnished) being used by a contractor may be retained for
the remainder of the contract period and furnished under any
[[Page 36724]]
follow-on contract for the same effort if the contracting officer
determines that to do so would be in the best interest of the
Government, provided that:
(i) The facilities are required to accomplish the purpose of the
contract;
(ii) The contract contains a provision requiring the contractor to
replace any of the facilities that reach the end of their useful life
during the contract period, or which are beyond economical repair, if
the facilities are still needed for contract performance. Such
replacements shall be made with contractor-owned facilities. The
contract provision shall also expressly prohibit contractor
acquisitions of facility items for the Government, unless specifically
authorized by the contract or consent has been obtained in writing from
the contracting officer pursuant to FAR 45.302-1(a);
(iii) Consideration has been given to any alternative uses by
Government personnel within the agency, in consultation with the center
industrial property officer; and
(iv) The contracting officer documents the file with a detailed
explanation of why continued furnishing of the facilities is in the
best interest of the Government.
(a)(4)(A) The procurement officer is designated to make the
determinations and findings (D&F) authorizing the use of Government
facilities. See 1845.302-71 for D&F format.
(B) The requirements for a D&F and a prospective contractor's
written statement asserting inability to obtain facilities are not
applicable in the circumstances listed under FAR 45.302-1(d). In these
cases, the contracting officer shall document the contract file with
the rationale for providing the facilities, including the reason for
not requiring the contractor to provide them.
1845.302-2 Facilities contracts.
Unless termination would be detrimental to the Government's
interests, contracting officers shall terminate facilities contracts
when the Government property is no longer required for the performance
of Government contracts or subcontracts. Contracting officers shall not
grant the contractor the unilateral right to extend the time during
which it is entitled to use the property provided under the facilities
contract.
1845.302-70 Securing approval of facilities projects.
(a) Pursuant to NMI 7330.1, Delegation of Authority--Approval
Authorities for Facility Projects, the contracting officer must approve
facilities projects involving leasing, construction, expansion,
modification, rehabilitation, repair, or replacement of real property.
(b) The contracting officer's written authorization is required
before any change is made in the scope or estimated cost of any
facilities project.
1845.302-71 Determination and findings.
(a) Procedure. Determination and findings (D&F) required under FAR
45.302-1(a)(4) and 1845.302-1(a)(4) shall be prepared by the
contracting officer and approved by the procurement officer. Prior to
approval, concurrence must be obtained from the SEMO to ensure
agreement on the use of the government facilities by the contractor.
D&Fs shall address individual types of facilities to be provided to the
contractor. Reference to specific variations in quantities of items to
be provided should be included in the D&F if additional requirements
are anticipated. A separate D&F is required before adding new types of
items or significant changes in quantity or before adding any new work
to the contract that requires additional Government facilities.
(b) Format. A sample format follows:
National Aeronautics and Space Administration, Washington, DC 20546
Determination and Findings
Decision To Provide Government Facilities
On the basis of the following findings and determinations,
Government-owned facilities may be provided to [insert the name of
the contractor] pursuant to the authority of FAR 45.302-1(a)(4).
Findings
1. The [insert the name of the contracting activity] and the
contractor (have entered)/(proposed to enter) into Contract No.
[Insert the contract number]. (Include the following information:
Type of contract, contract value, and a brief description of the
scope of work performed under the contract.)
2. (Justify that Government facilities are needed for
performance under the contract. The justification shall demonstrate
either (i) that the contract cannot be fulfilled by any other means,
or (ii) that it is in the public interest to provide the facilities.
It is imperative that the justification be fully substantiated by
evidence.)
3. (If the contract effort cannot be fulfilled by any other
means, indicate why the contractor cannot provide the facilities.
For example, due to financial constraints, the contractor will
replace the Government facilities with contractor-owned facilities.
Address leadtime, validate the contractor's claims, and state that
private financing was sought and either not available or not
advantageous to the Government. If private financing was not
advantageous to the Government, provide justification. Indicate
other alternatives considered and reasons for rejection.)
4. (Describe the types of facilities to be provided and any
variation in quantities of items based on functional requirements.
Explain how these facilities pertain to the scope of work to be
completed. State that the contract cannot be accomplished without
the specified facility items being provided. Include an estimate of
the value of the facilities and a statement that no facilities items
under $10,000 unit cost will be provided unless the contractor is a
nonprofit, on-site, or the facilities are only available from the
Government.
5. (Indicate whether the property will be accountable under this
contract or a separate facilities contract.)
Determination
For the reasons set forth above, it is hereby determined that
the Government-owned facilities identified herein will be provided
to the contractor.
Procurement Officer __________
Date __________
Subpart 1845.4--Contractor Use and Rental of Government Property
1845.402 Authorizing use of Government production and research
property. (NASA supplements paragraph (a))
(a)(i) A NASA contracting officer desiring to authorize use of
Government property under the cognizance of another contracting officer
shall obtain that contracting officer's concurrence.
(ii) NASA contracting officers having cognizance over NASA property
may authorize its use on contracts of other agencies if such use will
not interfere with NASA's primary purpose for the property and will not
extend beyond the expected expiration or completion date of the NASA
contract.
1845.403 Rental--Use and Charges clause. (NASA supplements paragraph
(a))
(a) The Center Director is designated as the authority to make the
determinations on modified rental rates.
1845.405 Contracts with foreign governments or international
organizations.
1845.405-70 NASA procedures.
(a) NASA policy is to recover a fair share of the cost of
Government production and research property if such property is used in
performing services or manufacturing articles for foreign countries or
for international organizations.
(b) The prior written approval of the Associate Administrator for
Procurement (Code H) is required for the use of Government production
and research property on work for foreign
[[Page 36725]]
countries or for international organizations. The Logistics Management
Office of the Headquarters Offices of Management Systems and Facilities
(Code JLG), the Office of General Counsel (Code G), and the
International Planning and Programs Branch of the Headquarters Office
of External Relations (Code IRD) are required concurrences.
(c) Contracting officers shall forward requests for approval to
Code HS, along with a summary of the circumstances involved, including
as a minimum--
(1) The name of the requesting contractor;
(2) The number of the contract under which the equipment is
controlled;
(3) A description of the equipment;
(4) The name of the foreign contractor and the relationship of the
foreign contractor to its government or to any international
organization;
(5) A description of the articles to be manufactured or services to
be performed;
(6) A statement that the intended use will not interfere with the
current or foreseeable requirements of the United States or require use
of the equipment beyond the expected expiration or completion date of
the NASA contract;
(7) A statement that the use of Government property is consistent
with the best interests of the United States;
(8) A statement that such use is legally authorized; and
(9) Any evidence of endorsement by another agency of the U.S.
Government based on national security or foreign policy of the United
States.
(d) Use, if approved, shall be subject to rent in accordance with
FAR 45.403.
1845.407 Use of Government production and research property on
independent research and development programs.
1845.406-70 NASA policy.
The contracting officer should not authorize contractor use of
Government property for independent research and development on a rent-
free basis except in unusual circumstances when it has been determined
by the contracting officer that--
(a) Such use is clearly in the best interests of the Government
(for example, the project can reasonably be expected to be of value in
specific Government programs); and
(b) No competitive advantage will accrue to the contractor through
such use (see FAR 45.201).
1845.406 Non-Government use of plant equipment. (NASA supplements
paragraph (a)).
For NASA, the coverage in FAR 45.407, applies to all equipment, not
just plant equipment.
(a)(i) The Associate Administrator for Procurement (Code HS) is the
approval authority for non-Government use of equipment exceeding 25
percent.
(ii) The percentage of Government and non-Government use shall be
computed on the basis of time available for use. For this purpose, the
contractor's normal work schedule, as represented by scheduled
production shift hours, shall be used. All equipment having a unit
acquisition cost of less than $25,000 at any single location may be
averaged over a quarterly period. Equipment having a unit acquisition
cost of $25,000 or more shall be considered on an item-by-item basis.
(iii) Approval for non-Government use of less than 25 percent shall
be for a period not exceeding 1 year. Approval for non-Government use
in excess of 25 percent shall not be for less than 3 months.
(iv) Requests for the approval shall be submitted to Code HS at
least 6 weeks in advance of the projected use and shall include--
(A) The number of equipment items involved and their total
acquisition cost; and
(B) An itemized listing of equipment having an acquisition cost of
$25,000 or more, showing for each item the nomenclature, year of
manufacture, and acquisition cost.
Subpart 1845.5--Management of Government Property in the Possession
of Contractors
1845.502 Contractor responsibility.
1845.502-1 Receipts for Government property.
Receipts for Government property shall comply with the instructions
for preparing NASA Form 1018, NASA Property in the Custody of
Contractors (see 1845.7101).
1845.502-70 Contractor-acquired property.
All contractor-acquired property must be authorized by the contract
and is subject to a determination by the contracting officer that it is
allocable to the contract and reasonably necessary. The acquisition
(and fabrication) of Government property is further subject to the
following conditions, depending on category of property:
(a) Facilities.
(1) Prior contracting officer approval, if the facilities are not
already specifically described in the contract as contractor-acquired.
(2) Submission of DD Form 1419, DOD Industrial Plant Requisition,
or equivalent format, and return of Certificate of Nonavailability.
(3) Submission of the written statement prescribed by FAR 45.302-
1(a)(4).
(b) Special test equipment.
(1) Contracting officer approval 30 days in advance if the
equipment is not identified in the solicitation or contract.
(2) Submission of DD Form 1419, or equivalent format, and return of
Certificate of Nonavailability.
(c) Special tooling.
(1) If the contract contains a Subcontracts clause, advance
notification to the contracting officer and contracting officer consent
if required by that clause.
(2) If the contract is a fixed-price contract, submission of the
list to the contracting officer within 60 days after delivery of the
first production end items (or later as prescribed by the contracting
officer), unless the tooling is already identified in the solicitation.
(3) Submission of DD Form 1419 or equivalent format and return of
Certificate of Nonavailability.
(d) Material. If the contract contains a Subcontracts clause,
advance notification to the contracting officer and contracting office
consent if required by that clause.
(e) Agency-peculiar property.
(1) If the contract contains a Subcontracts clause, advance
notification to the contracting officer and contracting officer consent
if required by that clause.
(2) Submission of DD Form 1419, or equivalent format, and return of
Certificate of Nonavailability.
1845.505 Records and reports of Government property.
1845.505-14 Reports of Government property. (NASA supplements
paragraphs (b))
(b) When the clause at 1852.245-73, Financial Reporting of NASA
Property in the Custody of Contractors, is included in the contract,
the contractor shall submit NASA Form 1018, NASA Property in the
Custody of Contractors, in accordance with the instructions on the form
and 1845.71. Contractor property control systems shall distinguish
between Government furnished and contractor acquired property for
purposes of reporting the acquisition cost in the property
classifications shown in FAR 45.505-14(a) (1) through (5).
1845.508 Physical inventories.
NASA contractors shall reconcile inventories with the official
property records and submit reports to the property administrator
within 30 days
[[Page 36726]]
after inventory completion. The contractor shall investigate all losses
of property and discoveries of unrecorded property to determine the
causes of the discrepancy and actions needed to prevent its recurrence.
Subpart 1845.6--Reporting, Redistribution, and Disposal of
Contractor Inventory
1845.604 Restrictions on purchase or retention of contractor
inventory.
(1) No contractor may sell contractor inventory to persons known by
it to be NASA or DOD personnel who have been engaged in administering
or terminating NASA contracts.
(2)(i) The contractor's or subcontractor's authority to approve the
sale, purchase, or retention of Government property on a contract which
is excess to needs after Government reutilization screening at less
than cost by a subcontractor, and the subcontractor's authority to
sell, purchase, or retain such property at less than cost with the
approval of the contractor or next higher-tier subcontractor does not
include authority to approve--
(A) A sale by a subcontractor to the contractor, the next higher-
tier subcontractor, or their affiliates; or
(B) A sale, purchase, or retention by a subcontractor affiliated
with the contractor or next higher-tier subcontractor.
(ii) Each excluded sale, purchase, or retention requires the
written approval of the plant clearance officer.
1845.606 Inventory schedules.
1845.606-1 Submission.
See 1845.608 for intra-agency screening of excess contractor-held
property.
1845.607 Scrap.
1845.607-1 General.
1845.607-170 Contractor's approved scrap procedure.
(a) When a contractor has an approved scrap procedure, certain
property may be routinely disposed of in accordance with that procedure
and not processed under this section.
(b) The center property administrator is authorized to approve the
contractor's scrap procedure. Before approval, the plant clearance
officer shall review the procedure, particularly regarding sales. The
plant clearance officer shall ensure that the procedure contains
adequate requirements for inspecting and examining items to be disposed
of as scrap. When the contractor's procedure does not require physical
segregation of Government-owned scrap from contractor-owned scrap and
separate disposal, care shall be exercised to ensure that a contract
change that generates a large quantity of property does not result in
an inequitable return to the Government. In such a case, the property
administrator shall make a determination as to whether separate
disposition of Government scrap would be appropriate.
(c) A plant clearance case shall not be established for property
disposed of through the contractor's approved scrap procedure.
(d) Property in scrap condition, other than that disposed of
through the contractor's approved scrap procedure, shall be reported on
appropriate inventory schedules for disposition in accordance with the
provisions of FAR Part 45 and 1845.
1845.607-2 Recovering precious metals. (NASA supplements paragraph
(b)).
(b) Silver, gold, platinum, palladium, rhodium, iridium, osmium,
and ruthenium; scrap bearing such metals; and items containing
recoverable quantities of them shall be reported to the Defense
Reutilization and Marketing Service, DRMS-R, Federal Center, Battle
Creek, MI 49017-3092, for instructions regarding disposition.
1845.608 Screening of contractor inventory.
1845.608-1 General. (NASA supplements paragraphs (a))
(a) Property Disposal Officers (PDOs) are the center focal points
for intra-agency reutilization screening. PDOs shall acknowledge
receipt of inventory schedules within 30 days and simultaneously
provide the plant clearance officer a NASA screening completion/release
date. Screening shall be accomplished in accordance with NHB 4300.1.
1845.608-6 Waiver of screening requirements.
The Director of the Logistics Management Office of the Headquarters
Office of Management Systems and Facilities (Code JLG) is designated to
authorize exceptions to intra-agency screening requirements.
1845.610 Sale of surplus contractor inventory.
1845.610-3 Proceeds of sale.
The plant clearance officer shall maintain an open suspense record
until verifying that credit has been applied, unless another Government
representative has specifically assumed this responsibility.
1845.610-4 Contractor inventory in foreign countries.
NASA procedures for disposal are in NHB 4300.1.
1845.613 Property disposal determinations.
The center property disposal officer (PDO) shall review the
determinations in accordance with NHB 4300.1.
1845.615 Accounting for contractor inventory.
A copy of Standard Form 1424, Inventory Disposal Report, shall be
provided to the center industrial property officer or the PDO.
Subpart 1845.70--[Reserved]
Subpart 1845.71--Forms Preparation
1845.7101 Instructions for preparing NASA Form 1018.
NASA Form 1018 (see 1853.3) provides information for NASA financial
statements and property management. Accuracy and timeliness of the
report are, therefore, very important. Contractors shall retain
documents which support the data reported on NF 1018 in accordance with
FAR subpart 4.7, Contractor Records Retention. Classifications of
property, related costs to be reported, and reporting requirements are
set forth in this subpart.
1845.7101-1 Property classification.
(a) Contractors shall report costs in the classifications required
on NF 1018, as described in this section. For Land, Buildings, Other
Structures and Facilities, and Leasehold Improvements, contractors
shall report the amount for all items with a unit cost of $5,000 or
more and a useful life of 2 years or more. For Plant Equipment, Special
Tooling, Special Test Equipment and Agency-Peculiar Property,
contractors shall separately report:
(1) the amount for all items with a unit cost of $5,000 or more and
a useful life of 2 years or more, and
(2) all items under $5,000, regardless of useful life.
(b) Contractors shall report the amount for all Materials,
regardless of unit costs.
(c) Land. Includes costs of land, improvements to land, and
associated costs incidental to acquiring and preparing land for use.
(for example; appraisal fees, clearing costs, drainage, grading,
landscaping, plats and surveys, removal and relocation of the property
of others as part of a land purchase, removal or destruction of
structures or facilities purchased but not used, and legal expenses).
[[Page 36727]]
(d) Buildings. Includes costs of buildings, improvements to
buildings, and fixed equipment required for the operation of a building
which is permanently attached to and a part of the building and cannot
be removed without cutting into the walls, ceilings, or floors.
Examples of fixed equipment required for the functioning of a building
include plumbing, heating and lighting equipment, elevators, central
air conditioning systems, and built-in safes and vaults.
(e) Other structures and facilities. Includes costs of acquisitions
and improvements of structures and facilities other than buildings; for
example, airfield pavements, harbor and port facilities, power
production facilities and distribution systems, reclamation and
irrigation facilities, flood control and navigation aids, utility
systems (heating, sewage, water and electrical) when they serve several
buildings or structures, communication systems, traffic aids, roads and
bridges, railroads, monuments and memorials, and nonstructural
improvements, such as sidewalks, parking areas, and fences.
(f) Leasehold improvements. Includes costs of improvements to
leased buildings, structures, and facilities, as well as easements and
right-of-way, where NASA is the lessee or the cost is charged to a NASA
contract.
(g) Equipment. Includes cost of commercially available personal
property for use in manufacturing supplies, performing services, or any
general or administrative purpose (for example, machine tools,
furniture, vehicles, computers, accessory or auxiliary items, and test
equipment).
(h) Construction in Progress. Includes costs for work in process
for the construction of Buildings, Other Structures and Facilities, and
Leasehold Improvements to which NASA has title.
(i) Special Tooling. Includes costs of equipment and manufacturing
aids (and components and replacements of these items) that are of such
a specialized nature that, without substantial modification or
alteration, their use is limited to the development or production of
particular supplies or parts, or to the performance of particular
services. Examples include jigs, dies, fixtures, molds, patterns, taps
and gauges.
(j) Special Test Equipment. Includes costs of equipment used to
accomplish special purpose testing in performing a contract, and items
or assemblies of equipment.
(k) Material. Includes costs of NASA owned property held in
inventory that may become a part of an end item or be expended in
performing a contract. Examples include raw and processed material,
parts, assemblies, small tools and supplies. Does not include material
that is part of work in process.
(l) Agency-Peculiar Property. Includes actual or estimated costs of
completed items, systems and subsystems, spare parts and components
unique to NASA aeronautical and space programs. Examples include
aircraft, engines, satellites, instruments, rockets, prototypes and
mock-ups. The amount of property, title to which vests in the
Government as a result of progress payments to fixed price
subcontractors, shall be included to reflect the pro rata cost of
undelivered agency-peculiar property.
(m) Contract Work-in-Process. Includes the costs of all work-in-
process and excludes the costs of completed items reported in other
categories.
1845.7101-2 Transfers of property.
A transfer is a change in accountability between and among prime
contracts, centers, and other Government agencies (e.g., between
contracts of the same installation, contracts of different
installation, a contract of one installation to that of another
installation, an installation to a contract of another installation,
and a contract to another Government agency or its contract). So that
NASA may properly control and account for transfers, they shall be
adequately documented. Therefore, procurement, property, and financial
organizations at NASA Centers must effect all transfers of
accountability, although physical shipment and receipt of property may
be made directly by contractors. The procedures described in this
section shall be followed in all cases, to provide an administrative
and audit trail, even if property is physically shipped directly from
one contractor to another. Property shipped between September 1 and
September 30, inclusively, shall be reported by the shipping
contractor, regardless of the method of shipment, unless written
evidence of receipt at destination has been received. Repairables
provided under fixed price repair contracts that include the clause at
1852.245-72, Liability for Government Property Furnished for Repair or
Other Services, remain accountable to the cognizant center and are not
reportable on NF 1018; repairables provided under a cost-reimbursement
contract, however, are accountable to the contractor and reportable on
NF 1018. All materials provided or conduct repairs are reportable,
regardless of contract type.
(a) Approval and Notification. The contractor must obtain the
approval of the contracting officer or designee for transfers of
property before shipment. Each shipping document must contain contract
numbers, shipping references, property classifications in which the
items are recorded, unit prices, and any other appropriate identifying
or descriptive data. Unit prices shall be obtained from records
maintained pursuant to FAR part 45 and 1845. Shipping contractors shall
furnish a copy of the shipping document to the cognizant property
administrator. Shipping and receiving contractors shall promptly notify
the financial management office of the NASA center responsible for
their respective contracts when accountability for Government property
is transferred to, or received from, other contracts, contractors, NASA
centers or Government agencies. Copies of shipping or receiving
documents will suffice as notification in most instances.
(b) Reclassification. If property is transferred to another
contract or contractor, the receiving contractor shall record the
property in the same property classification and amount appearing on
the shipping document. For example, when a contractor receives an item
from another contractor that is identified on the shipping document as
equipment, but that the recipient intendes to incorporate into special
test equipment, the recipient shall first record the item in the
equipment account and subsequently reclassify it as special test
equipment. Reclassification of equipment, special tooling, special test
equipment, or agency-peculiar property requires prior approval of the
contracting officer or a designee.
(c) Incomplete documentation. If contractors receive transfer
documents having insufficient detail to properly record the transfer
(e.g., omission of property classification, unit prices, etc.) they
shall request the omitted data directly from the shipping contractor or
through the property administrator as provided in FAR 45.505-2.
1845.7101-3 Computing costs of fabricated special tooling, special
test equipment, agency-peculiar property and contract work in process
(a) Costs of fabricated special tooling, special test equipment,
agency-peculiar property and contract work in process shall be computed
in accordance with accepted accounting principles, be reasonably
accurate, and be the product of any one or a combination of, the
following:
(1) Abstracts of cost data from contractor property or financial
records.
(2) Computations based on engineering and financial data.
[[Page 36728]]
(3) Estimates based on NASA Form 533 reports.
(4) Formula procedures (e.g., using a 50 percent factor for work in
process items, on the basis of updated Standard Form 1411 estimates or
the contractor's approved estimating and pricing system).
(5) Other approved methods.
(b) Contractors shall report costs using records that are part of
the prescribed property or financial control system as provided in this
section. Fabrication costs shall be based on approved systems or
procedures and shall include all direct and indirect costs of
fabricating Government property.
(c) The contractor shall redetermine the costs of items returned
for modification or rehabilitation.
(d) The computation of work in process shall include the costs of
associated systems, subsystems, and spare parts and components
furnished or acquired and charged to work in process pending
incorporation into a finished item. These types of items make up what
is sometimes called production inventory and include programmed extra
units to cover replacement during the fabrication process (production
spares). Also included are deliverable items on which the contractor or
a subcontractor has begun work, and materials that have been issued
from inventory.
1845.7101-4 Type of deletions from contractor property records.
Contractors shall report the types of deletions from contract
property records as described in this section.
(a) Adjusted. Changes in the deletion amounts, if any, that result
from mathematical errors in the previous report.
(b) Lost, Damaged or Destroyed. Deletion amounts as a result of
relief from responsibility under FAR 45.503 granted during the
reporting period.
(c) Transferred in Place. Deletion amounts that result from a
transfer of property to a follow-up contract with same contractor.
(d) Transferred to Center Accountability. Deletion amounts that
result from transfer of accountability to the center responsible for
the contract, whether or not the items are physically moved.
(e) Transferred to Another NASA Center. Deletion amounts caused by
transfer of accountability to a center other than the one responsible
for the contract, whether or not the items are physically moved.
(f) Transferred to Another Government Agency. Deletion amounts that
result from transfer of property to another Government agency.
(g) Purchased at Cost/Returned for Credit. Deletion amounts due to
contractor purchase or retention of contractor acquired property as
provided in FAR 45.605-1; or to contractor returns to suppliers under
FAR 45.605-2.
(h) Disposal Through Plant Clearance Process. Deletions other than
transfers; e.g., donations to eligible recipients, sold at less than
cost, or abandoned/directed destruction.
1845.7101-5 Contractor's privileged financial and business
information.
If a transfer of property between contractors will involve
disclosing costs of a proprietary nature, the contractor shall furnish
unit prices only on those copies of the shipping documents that are
sent to the shipping and receiving NASA installations. Transfer of the
property to the receiving contractor shall be on a no-cost basis.
1845.7102 Instructions for preparing DD Form 1419.
(a) The contractor shall enter the essential information covering
Sections I and II before submission of DD Form 1419, DOD Industrial
Plant Equipment Requisition, to the Industrial Property Officer (IPO).
The IPO shall review each submission for completeness and authenticity.
Incomplete or invalid requests shall be returned for correction.
(b) When a suitable item is allocated in Section IV, inspection of
the equipment is recommended. Notification of acceptance or rejection
of the item offered must reach NASA within 30 days after allocation. A
copy of the DD Form 1419, or equivalent format, will serve as the
clearance document to inspect the equipment at the storage site. Note
acceptance or rejection of the item, without inspection or after
inspection in Section VI. If the item is acceptable, execute Section
VII. Cite the NASA appropriation symbol where applicable in Section
VII.
(c) The IPO shall assign a requisition number to each DD Form 1419,
or equivalent format request.
(d) Next will be a four-digit entry comprised of the last digit of
the current calendar year and the Julian date of the year. For example,
April 15, 1997, would be written as 7095 (April 15 being the 95th day
of the year). The last entry will be a four-digit number from 0001 to
9999 to sequentially number requisition forms prepared on the same
date. For example, the ninth requisition prepared on April 15, 1997,
would be 7095-0009, preceded by the FEDSTRIP/MILSTRIP Activity Address
Code. When submitting subsequent DD Forms 1419, or equivalent format,
related to the item requested, the IPO shall use the same requisition
number and add the alpha code to the end of the requisition number to
indicate a second or third action on the basic request. Alpha ``A''
would indicate a second request, ``B'' a third, etc. In this manner,
all actions, correspondence, etc., relative to a given request can be
identified at all levels of processing by the use of the requisition
number.
(e) Detailed directions for completing the DD Form 1419 follow. The
contractor may elect to provide the required data in an equivalent
format, which complies with these directions.
Section I
Item Description. To ensure adequate screening, the item
description must be complete. For single-purpose equipment or
general-purpose equipment with special features, requests must
contain detailed descriptive data as to size and capacities, setting
forth special operating features or particular operations required
to be performed by the item.
Block 1. Not applicable.
Block 2. Enter the manufacturer's name and Federal Supply Code
for manufacturer (Cataloging Handbook H4-1) of the item requested.
Block 3. Enter the manufacturer's model style, or catalog number
assigned to the equipment being requisitioned. Always use the model
number, if available. The style number is the next preference. Enter
``None'' in this block if the model, style or catalog number is not
known.
Block 4. Enter the first four digits of the National Stock
Number, if known.
Block 5. Not applicable.
Block 6. Self-explanatory.
Block 7. Place an ``X'' in the applicable block to indicate
whether you desire to physically inspect the item before acceptance.
Block 8. Self-explanatory.
Block 9. Enter the complete description of the item. Continue
the description in Block 53 if additional space is needed.
Section II
Block 10. Enter the contractor's name, street address, city,
state, and zip code from which the requisition is being initiated.
The address should be the one to which inquiries of a technical
nature will be referred. Specify the telephone number of an
individual who will respond to inquiries concerning the request.
Block 11. Enter the contract number or document number
authorizing acquisition of the items shown in Section I. This
normally will be a facility contract number. Otherwise, it should be
a purchase order or procurement request number.
Block 12. Self-explanatory.
Block 13. Not applicable.
Block 14. Disregard the ``Military'' block. Show the NASA
contract number and program for which the item is to be used.
Block 15. Enter the specific function to be performed by the
equipment. When applicable, enter the tolerances, capacities,
[[Page 36729]]
specifications, etc., that the equipment must satisfy.
Block 16. Determine the date the item must be installed to meet
production requirements. From this date deduct the estimated number
of days required for installation. Enter the adjusted date in this
block.
Block 17. Enter the date by which NASA must issue a Certificate
of Nonavailability. Determine the date by subtracting the
acquisition lead time and 30 days administrative lead time from the
date shown in Block 16.
Block 18. Enter the Defense Priority and Allocations System
(DPAS) rating assigned to the contract or anticipated purchase
order, if applicable.
Block 19. Place an ``X'' in the appropriate box. If for
replacement, identify the item being replaced and the reason for
replacement.
Block 20. Place an ``X'' in the appropriate box. Show the
appropriate symbol if the answer is ``yes.''
Block 21. Not applicable.
Blocks 22 and 23. In addition to the official's title and
signature, type the signing official's name, office symbol or name,
and telephone number plus extension. The company representative who
prepares and submits the requirement to the cognizant NASA
certifying office should sign.
Block 24. Self-explanatory.
Block 25a. Not applicable.
Block 25b. Enter the name and address of the installation
certifying the requirement.
Block 25c. This block is for signature of the property
administrator or contracting officer at plant level.
Block 25d. Self-explanatory.
Block 25e. This block is for the signature of NASA installation
official certifying the requirement.
Block 25f. Self-explanatory.
Section III
Blocks 26-29. Self-explanatory.
Section IV
N/A
Section V
Complete this section if equipment is unavailable.
Section VI
Blocks 44-47. The requesting official signing Section II, Block
23, shall complete Section VI and shall list reasons for non-
acceptance in Section VIII, Remarks, or on a separate document
attached to the DD Form 1419.
Section VII
Block 48. Enter the complete name, street address, city, state,
and zip code of the contractor or installation to which the item is
to be shipped. Indicate railhead and truck delivery points when
other than the address named.
Blocks 49 and 50. Self-explanatory.
Blocks 51 a. and b. Ensure that NASA appropriation symbols are
included with the work order number.
Block 51c. Enter the NASA appropriation symbol chargeable for
any special work ordered (e.g., rebuild, repair, or accessory
replacement).
Block 51d. Enter the NASA installation and office symbol for the
organization that will make payment for transportation and packing,
crating, and handling.
Block 52. Self-explanatory.
Section VIII
Block 53. This block can be used to expand or explain entries
made in Blocks 1 through 52. When requisitioning equipment from
excess listings, identify the issuing office, list number, date,
control number, and item number assigned to the equipment. When
requesting equipment from DOD inventories, refer to DOD
instructions.
Subpart 1845.72--Contract Property Management
1845.7201 Definitions.
Supporting responsibility, as used in this subpart, relates to the
assignment of a subcontract, or a portion of a prime contract being
performed at a secondary location of the prime contractor, to a
property administrator other than the individual assigned to the prime
location.
Property control system, as used in this subpart, identifies a
contractor's internal management program encompassing the protection
of, preservation of, accounting for, and control of property from its
acquisition through disposition.
1845.7202 General.
This subpart describes major elements of the NASA Contract Property
Management Program. It provides guidance to NASA installation personnel
responsible for NASA contract property (NASA personal property in the
possession of contractors). It applies to all NASA installation
personnel charged with this responsibility, including industrial
property officers and specialists, property administrators, and plant
clearance officers. It also provides detailed procedures for property
administration. The NASA Contract Property Management Program includes
the following three major elements:
(a) Performance of property administration and plant clearance by
DOD under delegations from NASA, pursuant to 1842.101.
(b) Performance of property administration and plant clearance by
NASA under certain situations, pursuant to 1842.203.
(c) Maintenance of property administration and plant clearance
functional oversight, regardless of delegations.
1845.7203 Delegations of property administration and plant clearance.
When delegated to DOD, property administration and plant clearance
are performed in accordance with DOD's regulations and procedures, as
amended by the NASA Letter of Contract Administration Delegation,
Special Instructions on Property Administration and Plant Clearance.
These Special Instructions are developed by the Headquarters Office of
Management Systems and Facilities Logistics Management Office (Code
JLG), and are available from that office upon request. The contracting
officer shall issue the Special Instructions with delegations whenever
Government property will be involved. Additional or more tailored
property instructions are not proscribed but must be coordinated with
Code JLG before issuance.
1845.7204 Retention of property administration and plant clearance.
NASA may occasionally retain the property administration and plant
clearance function, such as for contract work performed at the
installation awarding the contract and not subject to the clause at
1852.245-71, Installation-Accountable Government Property. In these
cases, property administration shall be performed in accordance with
1845.3 through 1845.6, and plant clearance shall be performed in
accordance with FAR Subpart 45.6 and 1845.6. Under the clause at
1852.245-71, property administration and plant clearance are neither
delegated nor retained; they are simply not required because the
property is treated as installation rather than contract property.
1845.7205 Functional oversight of property administration and plant
clearance.
NASA contracting officers retain functional management
responsibility for their contracts. Utilization of the contract
administration services of another Government agency in no way relieves
NASA contracting officers of their ultimate responsibility for the
proper and effective management of contracts. The functional management
responsibility for contract property is described in this section.
Beyond individual contracting officers, each NASA installation has
designated an industrial property officer to manage and coordinate
property matters among the various contracting officers, technical
officials, contractor officials, and delegated property administrators
and plant clearance officers. Generally, that individual is responsible
for the entire contract property management function outlined below;
the installation is responsible for the entire function regardless of
how it is organized and distributed. The responsibilities are:
[[Page 36730]]
(a) Provide a focal point for all management of contract property,
including Government property (Government-furnished and contractor-
acquired) provided to universities as well as to industry.
(b) Provide guidance to contracting and other personnel on the NASA
property provisions.
(c) To the extent feasible, review property provisions of
acquisition plans, solicitations, contracts, and modifications for
potential problems. Propose changes as necessary.
(d) To the extent feasible, participate in pre-award surveys/post-
award orientations when significant amounts of Government property will
be involved.
(e) Ensure that vesting-of-title determinations are made and
documented pursuant to FAR 35.014(b).
(f) Maintain effective communications with delegated property
administrators and plant clearance officers to keep fully informed
about contractor performance and progress on any property control
problems.
(1) Obtain and review property control system survey summaries for
all contracts for which property administration has been delegated.
Advise Code JLG of any severe or continuing problems.
(2) Provide property administrators copies of all pertinent
contract property documentation.
(g) Review and analyze NASA Form 1018, NASA Property in the Custody
of Contractors.
(h) Negotiate, or ensure the negotiation of, facilities contracts
when required by FAR 45.302 and 1845.302. Advise Code JLG annually of
new and completed facilities contracts.
(i) Review property administrators' approvals of relief of
responsibility for lost, damaged, and destroyed property and question
any excessive or repetitive approvals.
(j) When appropriate, make recommendations to source and
performance evaluation boards regarding property management and award
fee criteria and evaluations regarding property management.
(k) Monitor plant clearance status to preclude delays in contract
closeout.
(l) Maintain contract property files for all transactions and
correspondence associated with each contract. Upon receipt of Standard
Form 1424, Inventory Disposal Report, and DD Form 1593, Contract
Administration Completion Record, or equivalents, merge all property
records for the contract and forward for inclusion with the official
completed file.
(m) Perform on-site property administration and plant clearance
when they are not delegated to DOD and the property is not subject to
the clause at 1852.245-71.
1845.7206 Responsibilities of property administrators and plant
clearance officers.
1845.7206-1 Property administrators.
(a) When property administration is not delegated to DOD, the
property administrator shall evaluate the contractor's management and
control of Government property and ascertain whether the contractor is
effectively complying with the contract provisions. The property
administrator's responsibilities include--
(1) Developing and applying a system survey program for each
contractor under the property administrator's cognizance;
(2) Evaluating the contractor's property control system and
approving or recommending disapproval;
(3) Advising the contracting officer of any (i) contractor
noncompliance with approved procedures and (ii) other significant
problems the property administrator cannot resolve, and recommending
appropriate action, which may include disapproval of the contractor's
property control system;
(4) Resolving property administration matters as necessary with the
contractor's management, personnel from Government procurement and
logistics activities, and representatives of the NASA Headquarters
Office of the Inspector General, the Defense Contract Audit Agency
(DCAA), and other Government agencies; and
(5) Recognizing the functions of other Government personnel having
cognizance of Government property and obtaining their assistance when
required. (These functions include, but are not limited to, contract
audit, quality assurance, engineering, pricing, and other technical
areas. Assistance and advice on matters involving analyses of the
contractor's books and accounting records and on any other audit
matters deemed appropriate shall be obtained from the cognizant
auditor.)
(b) The participation of property administrators (or other
Government industrial property personnel) in pre-award surveys/post-
award orientations is required whenever significant amounts of
Government property will be involved, in order to reveal and resolve
property management problems early in the acquisition cycle.
1845.7206-2 Plant clearance officers.
When plant clearance is not delegated to DOD, NASA plant clearance
officers shall be responsible for--
(a) Providing the contractor with instructions and advice regarding
the proper preparation of inventory schedules;
(b) Accepting or rejecting inventory schedules;
(c) Conducting or arranging for inventory verification;
(d) Initiating prescribed screening and effecting resulting
actions;
(e) Final plant clearance of contractor inventory;
(f) Pre-inventory scrap determinations, as appropriate;
(g) Evaluating the adequacy of the contractor's procedures for
property disposal;
(h) Determining the method of disposal;
(i) Surveillance of any contractor-conducted sales;
(j) Accounting for all contractor inventory reported by the
contractor;
(k) Advising and assisting, as appropriate, the contractor, the
Supply and Equipment Management Officer (SEMO) and other Federal
agencies in all actions relating to the proper and timely disposal of
contractor inventory;
(l) Approving the method of sale, evaluating bids, and approving
sale prices for any contractor-conducted sales;
(m) Recommending the reasonableness of selling expenses related to
any contractor-conducted sales;
(n) Securing antitrust clearance, as required; and
(o) Advising the contracting officer on all property disposal
matters.
1845.7207 Declaration of excess property.
A problem often disclosed by system analysis is the failure of a
contractor to report Government property not needed in performance of
the contract (excess). The property administrator shall fully document
and report any such finding to the administrative contracting officer.
After a report of excess received from a contractor has been referred
to the plant clearance officer for screening and ultimate disposition,
the property administrator shall ensure prompt disposition. For
centrally reportable plant equipment, the property administrator
shall--
(a) Assure the preparation and submission of individual reports
required of the contractor;
(b) Verify the permit certifications required by the forms; and
(c) Transmit the report to the NASA Industrial Property Officer.
[[Page 36731]]
1845.7208 Closure of contracts.
1845.7208-1 Completion or termination.
Upon completion or termination of a contract, the property
administrator shall--
(a) Monitor the actions of the contractor in returning excess
Government property not referred to the plant clearance officer; and
(b) Advise the cognizant plant clearance officer as to the
existence at a contractor's plant of residual property requiring
disposal.
1845.7208-2 Final review and closing of contracts.
(a) When informed that disposition of Government property under a
contract has been completed, the property administrator shall perform a
final review and sign a determination that--
(1) Disposition of Government property has been properly
accomplished and documented;
(2) Adjustment documents, including any request of the contractor
for relief from responsibility, have been processed to completion;
(3) Proceeds from disposals or other property transactions,
including adjustments, have been properly credited to the contract or
paid to the Government as directed by the contracting officer;
(4) All questions regarding title to property fabricated or
acquired under the contract have been resolved and appropriately
documented; and
(5) The contract property control record file is complete and ready
for retirement.
(b) When final review pursuant to paragraph (a) of this section
reveals that such action is proper, the property administrator shall
accomplish and sign a DD Form 1593, Contract Administration Completion
Record, or equivalent.
(c) The executed DD Form 1593 shall be forwarded to the contracting
officer, the Property Summary Data Record shall be so annotated, and
the contracting officer shall include it in the contract file.
1845.7209 Special subjects.
1845.7209-1 Government property at alternate locations of the prime
contractor and subcontractor plants.
(a) Government property provided to a prime contractor may be
located at other plants of the prime contractor or at subcontractor
locations. The prime contractor is accountable and responsible to the
Government for this property.
(b) A Government property administrator cognizant of the location
of the property shall normally be designated to (1) perform required
surveys of the property control system and (2) exercise surveillance
over the property as a supporting responsibility.
(c) If the property administrator determines that supporting
property administration is required, he or she shall write the
cognizant contract administration office asking that a property
administrator be assigned. The request for supporting property
administration shall include--
(1) The name and address of the prime contractor;
(2) The prime contract number;
(3) The name and address of the alternate location of the prime
contractor, or of the subcontractor where the property will be located;
(4) A listing of the property being furnished, or, if property is
being acquired locally, a statement to this effect; and
(5) A copy of the subcontract or other document under which the
property will be furnished or acquired.
(d) Concurrent with the action cited in paragraph (c) of this
section, the property administrator shall ascertain whether the prime
contractor will perform the necessary reviews and surveillance with the
contractor's own personnel, or elect to rely upon the system approval
and continuing surveillance by a supporting property administrator of
the property control system at the alternate location or subcontractor
plant. If the prime contractor advises that it will accept the findings
of a supporting property administrator, a statement in writing to that
effect shall be obtained. If the prime contractor does not so elect, it
will be required to perform the requisite reviews and surveillance and
document its actions and findings.
(e) If a single item or limited quantities of property will be
located at an alternate location or subcontractor plant, the property
administrator may determine that supporting property administration is
unnecessary, provided--
(1) The prime contractor's records adequately reflect the location
and use of the property;
(2) The nature of the property is such that the possibility of its
use for unauthorized purposes is unlikely; and
(3) The nature of the property is such that a program of preventive
maintenance is not required.
(f) When supporting property administration will not be requested,
the services of a property administrator in the contract administration
office cognizant of the site where the property is located may be
requested on an occasional basis of special reviews or such other
support as may be necessary. Repeated requests for assistance indicate
a requirement for requesting supporting property administration.
1845.7209-2 Loss, damage, or destruction of Government property.
(a) Normally, contract provisions provide for assumption of risk of
loss, damage, or destruction of Government property as described by the
following:
(1) Sealed-bid and certain negotiated fixed-price contracts provide
that the contractor assumes the risk for all Government property
provided under the contract (see the clause at FAR 52.245-2, Government
Property (Fixed-Price Contracts)).
(2) Other negotiated fixed-price contracts provide that the
contractor assumes the risk for all Government property provided under
the contract, with the exceptions set forth in the clause at FAR
52.245-2, Alternate I and Alternate II.
(3) Cost-reimbursement contracts (see the clause at FAR 52.245-5,
Government Property (Cost-Reimbursement, Time-and-Material, or Labor-
Hour Contracts)) provide that the Government assumes the risk for all
Government property provided under the contract when there is no
willful misconduct or lack of good faith of any of the contractor's
managerial personnel as defined in the contract.
(4) There are certain events for which the Government does not
assume the risk of loss, damage, or destruction of Government property,
such as risks the contract expressly requires the contractor to insure
against. Therefore, before reaching a conclusion or making a
determination, the contracting officer shall obtain property
administrator review of the contract clause and shall obtain advice
from appropriate legal counsel on questions of legal meaning or intent.
(5) ``Willful misconduct'' may involve any intentional or
deliberate act or failure to act causing, or resulting in, loss,
damage, or destruction of Government property.
(6) ``Lack of good faith'' may involve gross neglect or disregard
of the terms of the contract or of appropriate directions of the
contracting officer or the contracting officer's authorized
representatives. Examples of lack of good faith may be demonstrated by
the failure of the contractor's managerial personnel to establish and
maintain proper training and supervision of employees and proper
application of controls in compliance with instructions issued by
authorized Government personnel.
[[Page 36732]]
(b) If part of the contractor's system is found to be
unsatisfactory, the property administrator shall increase surveillance
of that part to prevent, to the extent possible, any loss, damage, or
destruction of Government property. The property administrator shall
give special attention to reasonably ensuring that any loss, damage, or
destruction occurring during a period when a contractor's system is not
approved is identified before approval or reinstatement of approval.
1845.7209-3 Loss, damage, or destruction of Government property while
in contractor's possession or control.
(a) The property administrator shall require the contractor to
report any loss, damage, or destruction of Government property in its
possession or control (including property in the possession or control
of subcontractors) as soon as it becomes known.
(b) When physical inventories, consumption analyses, or other
actions disclose consumption of Government property considered
unreasonable by the property administrator or loss, damage, or
destruction of Government property not reported by the contractor, the
property administrator shall prepare a statement of the items and
amount involved. This statement shall be furnished to the contractor
for investigation and submission of a written report to the property
administrator relative to the incidents reported.
(c) The contractor's reports referenced in paragraphs (a) and (b)
of this section shall contain factual data as to the circumstances
surrounding the loss, damage, destruction, or excessive consumption,
including--
(1) The contractor's name and the contract number;
(2) A description of items lost, damaged, destroyed, or
unreasonably consumed;
(3) The cost of property lost, damaged, destroyed, or unreasonably
consumed and cost of repairs in instances of damage (in event actual
cost is not known, use a reasonable estimate);
(4) The date, time (if pertinent), and cause or origin of the loss,
damage, destruction, or consumption;
(5) Known interests in any commingled property of which the
Government property lost, damaged, destroyed, or unreasonably consumed
is (or was) a part;
(6) Insurance, if any, covering the Government property or any part
or interest in any commingled property;
(7) Actions taken by the contractor to prevent further loss,
damage, destruction, or unreasonable consumption and to prevent
repetition of similar incidents; and
(8) Other facts or circumstances relevant to determining liability
and responsibility for repair or replacement.
(d) The property administrator shall investigate the incident to
the degree required to reach a valid and supportable conclusion as to
the contractor's liability for the loss, damage, destruction, or
unreasonable consumption under the terms of the contract, and the
course of action required to conclude the adjustment action. When
required, the assistance of the quality assurance representative,
industrial specialist, insurance officer, legal counsel, or other
technician will be secured. When the contractor acknowledges liability,
the property administrator shall forward a copy of the credit
memorandum or other adjusting document to the administrative
contracting officer and auditor, if appropriate, to assure proper
credit. If analysis of contract provisions and circumstances
establishes that the loss, damage, destruction, or consumption
constitutes a risk assumed by the Government, the property
administrator shall so advise the contractor in writing, thereby
relieving the contractor of responsibility for the property. A copy of
the documentation and notification to the contractor shall be retained
in the Contract Property Control Data File for the contract.
(e)(1) If the property administrator concludes that the contractor
is liable for the loss, damage, destruction, or unreasonable
consumption of Government property, he or she shall forward the
complete file with conclusions and recommendations to the contracting
officer for review and determination. The file shall contain--
(i) A statement of facts as supported by investigation;
(ii) Recommendations as to the contractor's liability and its
amount;
(iii) Recommendations as to action to be taken with regard to third
party liability, if appropriate;
(iv) Requirements for disposition, repair, or replacement of
damaged property; and
(v) Other pertinent comments.
(2) A copy of the contracting officer's determination shall be
furnished to the contractor and the property administrator, and a copy
shall be retained in the contracting officer's files. The property
administrator's copy shall be filed in the Contract Property Control
Data File for the contract when all pertinent actions, such as
compensation to the Government or repair or replacement of the
property, have been completed.
1845.7209-4 Financial reports.
The property administrator is responsible for obtaining financial
reports as prescribed in 1845.505-14 for all assigned contracts.
Reports shall be accumulated, reviewed and distributed as required.
Contractors are required to submit separate reports on each contract
that contains the property reporting clause (see 1852.245-73) except as
noted in 1845.7101-4(c).
1845.7210 Contractor utilization of Government property.
1845.7210-1 Utilization surveys.
(a) The property administrator is responsible for ensuring that the
contractor has effective procedures for evaluating Government property
utilization. However, when necessary, the contract administration
office shall provide specialists qualified to perform the technical
portion of utilization surveys to assist the property administrator in
determining the adequacy of these procedures.
(b) Upon assignment of an initial contract under which Government-
owned plant equipment in particular will be provided to a contractor,
the property administrator shall ensure that the contractor has
established effective procedures and techniques for controlling its
utilization. The property administrator, with the assistance of
technical specialists, if necessary, shall evaluate these procedures. A
record of the evaluation shall be prepared and become a part of the
property administration file. If the procedures are determined
inadequate, the record shall identify the deficiencies and the
corrective actions necessary. If the deficiencies are not corrected by
the contractor, the property administrator shall promptly refer the
matter to the contracting officer.
(c) The property administrator shall perform annual surveys of the
contractor's procedures related to utilization of Government-owned
plant equipment. At contractor facilities having a substantial quantity
of plant equipment, the surveys should normally be conducted on a
continual basis, reviewing equipment utilization records and physically
observing a group of preselected items during each portion of the
survey. Surveys shall be conducted to the degree determined necessary,
considering the findings of prior surveys and the contractor's
performance history in identifying and declaring equipment excess to
authorized requirements. The contractor shall be required to justify,
by specific Government programs, the retention of all Government-owned
plant equipment. The property
[[Page 36733]]
administrator shall make maximum use of contractor's machine loading
data, order boards, production planning records, machine time records,
and other production control methods.
(d) The property administrator shall conduct a special survey when
a significant change occurs in the contractor's production schedules,
such as a termination, completion of a contract, or a major adjustment
in a program. Special surveys may be limited to a given department,
activity, or division of a contractor's operation.
(e) In the absence of adequate justification for retention, the
contractor shall identify and report Government-owned plant equipment
in accordance with FAR 45.502(g) and 45.509-2(b)(4). Items that are
part of approved inactive package plants or standby lines are exempted
from utilization surveys. The contracting officer shall ascertain
periodically whether existing authorizations for standby or lay-away
requirements are current.
1845.7210-2 Records of surveys.
The property administrator shall prepare a record incorporating
written findings, conclusions, and recommendations at the conclusion of
each survey. If appropriate, the property administrator's record may be
limited to a statement expressing concurrence with the reports of other
specialists. The property administrator shall retain one copy of each
record in the property administration file.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1852.204-76 [Amended]
48-49. In the introductory text to section 1852.204-76, the
citation ``1804.470-3'' is revised to read ``1804.470-4''.
1852.216-76 [Amended]
50. In the introductory text to section 1852.216-76, the citation
``1816.405-70(a)'' is revised to read ``1816.406-70(a)''.
51. In the asterisked brackets within the clause to section
1852.216-76, the citation ``1816.404-272(a)'' is revised to read
``1816.405-272(a)''.
52. In the introductory text of ALTERNATE I to the clause to
section 1852.216-76, the citation ``1816.405-70(a)'' is revised to read
``1816.406-70(a)''.
1852.216-77 [Amended]
53. In the introductory text to section 1852.216-77, the citation
``1816.405-70(b)'' is revised to read ``1816.406-70(b)''.
54. In the asterisked brackets within the clause to section
1852.216-77, the citation ``1816.404-272(a)'' is revised to read
``1816.405-272(a)''.
1852.216-83 [Amended]
55. In the introductory text to section 1852.216-83, the citation
``1816.405-70(c)'' is revised to read ``1816.406-70(c)''.
1852.216-84 [Amended]
56. In the introductory text to section 1852.216-84, the citation
``1816.405-70(d)'' is revised to read ``1816.406-70(d)''.
1852.216-85 [Amended]
57. In the introductory text to section 1852.216-85, the citation
``1816.405-70(e)'' is revised to read ``1816.406-70(e)''.
1852.216-88 [Amended]
58. In the introductory text to section 1852.216-88, the citation
``1816.405-70(f)'' is revised to read ``1816.406-70(f)''.
59. Section 1852.216-89 is revised to read as follows:
1855.216-89 Assignment and Release Forms.
As prescribed in 1816.307-70(f), insert the following clause:
Assignment and Release Forms
(Date of Publication)
The Contractor shall use the following forms to fulfill the
assignment and release requirements of FAR clause 52.216-7,
Allowable Cost and Payment, and FAR clause 52.216-13, Allowable Cost
and Payment (Facilities):
NASA Form 778, Contractor's Release;
NASA Form 779, Assignee's Release;
NASA Form 780, Contractor's Assignment of Refunds, Rebates,
Credits, and Other Amounts; and
NASA Form 781, Assignee's Assignment of Refunds, Rebates,
Credits, and Other Amounts.
Computer generated forms are acceptable, provided that they
comply with FAR clause 52.253-1, Computer Generated Forms.
(End of clause)
60. Sections 1852.219-73, 1852.219-75, 1852.219-76, and 1852.219-77
are revised to read as follows:
1852.219-73 Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Plan.
As prescribed in 1819.708-70(a), insert the following provision:
Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan
(Date of Publication)
(a) This provision is not applicable to small business concerns.
(b) The contract expected to result from this solicitation will
contain FAR clause 52.219-9, ``Small, Small Disadvantaged, and
Women-Owned Small Business Subcontracting Plan.'' The apparent low
bidder must submit the complete plan within [Insert number of days]
calendar days after request by the Contracting Officer.
(End of provision)
* * * * *
1852.219-75 Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Reporting.
As prescribed in 1819.708-70(b), insert the following clause:
Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Reporting
(Date of Publication)
(a) The Contractor shall submit the Summary Subcontract Report
(Standard Form (SF) 295) semiannually for the reporting periods
specified in block 4 of the form. All other instructions for SF 295
remain in effect.
(b) The Contractor shall include this clause in all subcontracts
that include the clause at FAR 52.219-9.
(End of clause)
1852.219-76 NASA 8 Percent Goal.
As prescribed in 1819.7003 insert the following clause:
NASA 8 Percent Goal
(Date of Publication)
(a) Definitions.
Historically Black Colleges or University, as used in this
clause means an institution determined by the Secretary of Education
to meet the requirements of 34 CFR Section 608.2. The term also
includes any nonprofit research institution that was an integral
part of such a college or university before November 14, 1986.
Minority institutions, as used in this clause, means an
institution of higher education meeting the requirements of section
1046(3) of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3))
which for the purposes of this clause includes a Hispanic-serving
institution of higher education as defined in section 316(b)(1) of
the Act (20 U.S.C. 1059c(b)(1)).
Small disadvantaged business concern, as used in this clause,
means a small business concern that (1) is at least 51 percent
unconditionally owned by one or more individuals who are both
socially and economically disadvantaged, or a publicly owned
business having at least 51 percent of its stock unconditionally
owned by one or more socially and economically disadvantaged
individuals, and (2) has its management and daily business
controlled by one or more such individuals. This term also means a
small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native
Hawaiian Organization, or a publicly owned business having at least
51 percent of its stock unconditionally owned by one or more of
these entities, which has
[[Page 36734]]
its management and daily business controlled by members of an
economically disadvantaged Indian tribe or Native Hawaiian
Organization, and which meets the requirements of 13 CFR 124.
Women-owned small business concern, as used in this clause,
means a small business concern (1) which is at least 51 percent
owned by one or more women or, in the case of any publicly owned
business, at least 51 percent of the stock of which is owned by one
or more women, and (2) whose management and daily business
operations are controlled by one or more women.
(b) The NASA Administrator is required by statute to establish
annually a goal to make available to small disadvantaged business
concerns, Historically Black Colleges and Universities, minority
institutions, and women-owned small business concerns, at least 8
percent of NASA's procurement dollars under prime contracts or
subcontracts awarded in support of authorized programs, including
the space station by the time operational status is obtained.
(c) The contractor hereby agrees to assist NASA in achieving
this goal by using its best efforts to award subcontracts to such
entities to the fullest extent consistent with efficient contract
performance.
(d) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as
small disadvantaged business concerns, Historically Black Colleges
and Universities, minority institutions, and women-owned small
business concerns.
(End of clause)
1852.219-77 NASA Mentor-Protege Program.
As prescribed in 1819.7219(a), insert the following clause:
NASA Mentor-Protege Program
(Date of Publication)
(a) Prime contractors, including certain small businesses, are
encouraged to participate in the NASA pilot Mentor-Protege Program
for the purpose of providing developmental assistance to eligible
protege entities to enhance their capabilities and increase their
participation in NASA contracts.
(b) The pilot Program consists of:
(1) Mentor firms, which are large prime contractors with at
least one active subcontracting plan or eligible small businesses;
(2) Proteges, which are subcontractors to the prime contractor,
include small disadvantaged business concerns, women-owned small
business concerns, Historically Black Colleges and Universities, and
minority institutions meeting the qualifications specified in NASA
FAR Supplement (NFS) 1819.7209.
(3) Mentor-protege agreements, approved by the NASA Office of
Small and Disadvantaged Business Utilization (OSDBU);
(4) Potential for payment of additional award fee for voluntary
participation and successful performance in the Mentor-Protege
Program.
(c) Mentor participation in the Program, described in NFS
1819.72, means providing technical, managerial and financial
assistance to aid proteges in developing requisite high-tech
expertise and business systems to compete for and successfully
perform NASA contracts and subcontracts.
(d) Contractors interested in participating in the pilot program
are encouraged to contact the NASA OSDBU, Washington, DC 20546,
(202) 358-2088, for further information.
(End of clause)
1852.219-78 [Removed]
61. Section 1852.219-78 is removed.
62. Section 1852.219-79 is revised to read as follows:
1852.219-79 Mentor Requirements and Evaluation.
As prescribed in 1819.7219(b), insert the following clause:
Mentor Requirements and Evaluation
(Date of Publication)
(a) The purpose of the NASA Mentor-Protege Program is for a NASA
prime contractor to provide developmental assistance to certain
subcontractors qualifying as proteges. Eligible proteges include
small disadvantaged business concerns, women-owned small business
concerns, Historically Black Colleges and Universities, and minority
institutions meeting the qualifications specified in NASA FAR
Supplement (NFS) 1819.7209.
(b) NASA will evaluate the contractor's performance through the
Performance Evaluation process. The evaluation will consider the
following:
(1) Specific actions taken by the contractor, during the
evaluation period, to increase the participation of proteges as
subcontractors and suppliers;
(2) Specific actions taken by the contractor during this
evaluation period to develop the technical and corporate
administrative expertise of a protege as defined in the agreement;
(3) To what extent the protege has met the developmental
objectives in the agreement; and
(4) To what extent the firm's participation in the Mentor-
Protege Program resulted in the protege receiving competitive
contract(s) and subcontract(s) from private firms and agencies other
than the mentor.
(c) Semi-annual reports shall be submitted by the mentor to the
NASA Mentor-Protege program manager, NASA Headquarters OSDBU, to
include information as outlined in paragraph (b).
(d) The mentor will notify the OSDBU and the contracting
officer, in writing, as least 30 days in advance of the mentor
firm's intent to voluntarily withdraw from the program or upon
receipt of a protege's notice to withdraw from the Program;
(e) Mentor and protege firms will submit a ``lessons learned''
evaluation to the NASA OSDBU at the conclusion of the pilot Program
period or the conclusion of their effort whichever comes first. At
the conclusion of each year in the Mentor-Protege Program, the
mentor and protege, as appropriate, will formally brief the NASA
Mentor-Protege program manager, the technical program manager, and
the contracting officer during a formal program review regarding
Program accomplishments as pertains to the approved agreement.
(f) NASA may terminate mentor-protege agreements and exclude
mentor or protege firms from participating in the NASA program if
NASA determines that such actions are in NASA's interest. These
actions shall be approved by the NASA OSDBU. NASA shall terminate an
agreement by delivering to the contractor a Notice specifying the
reason for termination and the effective date. Termination of an
agreement does not constitute a termination of the subcontract
between the mentor and the protege. A plan for accomplishing the
subcontract effort should the agreement be terminated shall be
submitted with the agreement as required in NFS 1819.7213(h).
(End of clause)
1852.222-70 [Removed]
63. Section 1852.222-70 is removed.
1852.225-71 [Amended]
64. In the introductory text to section 1852.225-71, the citation
``1825.205-70'' is revised to read ``1825.207-70''.
1852.227-11 [Amended]
65. In the introductory text to section 1852.227-11, the citation
``1827.373(a)'' is revised to read ``1827.303-70(a)''.
1852.227-14 [Amended]
66. In the introductory text to section 1852.227-14, the citation
``1827.409(e)'' is revised to read ``1827.409(a)''.
1852.227-17 [Amended]
67. In the introductory text to section 1852.227-17, the citation
``1827.405(c)'' is revised to read ``1827.409(i)''.
1852.227-19 [Amended]
68. In paragraph (a) to section 1852.227-19, the citation
``1827.409(f)'' is revised to read ``1827.409(k)(i)''.
69. In paragraph (b) to section 1852.227-19, the citation
``1827.409(g)'' is revised to read ``1827.409(k)(ii)''.
1852.227-70 [Amended]
70. In the introductory text to section 1852.227-70, the citation
``1827.373(b)'' is revised to read ``1827.303-70(b)''.
1852.227-71 [Amended]
71. In the introductory text to section 1852.227-71, the citation
``1827.373(d) is revised to read ``1827.303-70(c)''.
1852.227-72 [Amended]
72. In the introductory text to section 1852.227-72, the citation
``1827.373(e)'' is revised to read ``1827.303-70(d)''.
73. In section 1852.227-72, the date of the clause ``(APR 1984)''
is revised to read ``(Insert date of publication), and in
[[Page 36735]]
paragraph (b) of the clause, the citation ``1827.375-3'' is revised to
read 1827.305-370''.
1852.227-84 [Amended]
74. In the introductory text to section 1852.227-84, the citation
``1827.373(f)'' is revised to read ``1827.303-70(e)''.
1852.227-85 [Amended]
75. In the introductory text to section ``1852.227-85, the citation
``1827.373(c)(1)'' is revised to read ``1827.303-70(f)''.
1852.227-86 [Amended]
76. In the introductory text to section 1852.227-86, the citation
``1827.409(h)'' is revised to read ``1827.409-70''.
1852.239-70 [Amended]
77. In the introductory text to section 1852.239-70, the citation
``1836.106(a)(1)'' is revised to read ``1839.106-70(a)(1)''.
1852.242-70 [Amended]
78. In the introductory text to section 1852.242-70, the citation
``1842.7001'' is revised to read ``1842.271''.
1852.242-72 [Amended]
79-80. In the introductory text to section 1852.242-72, the
citation ``1842.7003(a)'' is revised to read ``1842.7001(a)''.
81. In the introductory text to ALTERNATE I within the clause to
section 1852.242-72, the citation ``1842.7003(b)'' is revised to read
``1842.7001(b)''.
82. In the introductory text to ALTERNATE II within the clause to
section 1852.242-72, the citation ``1842.7003(c)'' is revised to read
``1842.7001(c)''.
83. Section 1852.242-73 is revised to read as follows:
1852.242-73 NASA Contractor Financial Management Reporting.
As prescribed in 1842.7202, insert the following clause:
NASA Contractor Financial Management Reporting
(Date of Publication)
(a) The Contractor shall submit NASA Contractor Financial
Management Reports on NASA Forms 533 in accordance with the
instructions in NASA Policy Guidance (NPG) 9501.2, NASA Contractor
Financial Management Reporting, and on the reverse side of the
forms, as supplemented in the Schedule of this contract. The
detailed reporting categories to be used, which shall correlate with
technical and schedule reporting, shall be set forth in the
Schedule. Contractor implementation of reporting requirements under
this clause shall include NASA approval of the definitions of the
content of each reporting category and give due regard to the
Contractor's established financial management information system.
(b) Lower level detail used by the Contractor for its own
management purposes to validate information provided to NASA shall
be compatible with NASA requirements.
(c) Reports shall be submitted in the number of copies, at the
time, and in the manner set forth in the Schedule or as designated
in writing by the Contractor Officer. Upon completion and acceptance
by NASA of all contract line items, the Contracting Officer may
direct the Contractor to submit Form 533 reports on a quarterly
basis only, report only when changes in actual cost incur, or
suspend reporting altogether.
(d) The Contractor shall ensure that its Form 533 reports
include accurate subcontractor cost data, in the proper reporting
categories, for the reporting period.
(e) If during the performance of this contract NASA requires a
change in the information or reporting requirements specified in the
Schedule, or as provided for in paragraph (a) or (c) of this clause,
the Contracting Officer shall effect that change in accordance with
the Changes clause of this contract.
(End of clause)
1852.242-74 [Removed]
84. Section 1852.242-74 is removed.
85. Alternate I within the clause of section 1852.243-70 is revised
to read as follows:
1852.243-70 Engineering change proposals.
* * * * *
Alternate I
(Date of Publication)
As prescribed in 1843.205-70(b), add the following paragraph
(f), modified to suit contract type, to the basic clause:
(f) If the ____ [price or estimated cost] adjustment proposed
for any contractor-originated ECP is ____ [insert a percent or
dollar amount of the contract price or estimated cost] or less, the
ECP shall be executed with no adjustment to the contract ____ [price
or estimated cost].
86. Sections 1852.245-70, 1852.245-71, 1852.245-77, and 1852.245-79
are revised to read as follows:
1852.245-70 Contractor Requests for Government-Owned Equipment.
As prescribed in 1845.106-70(a), insert the following clause:
Contractor Requests for Government-Owned Equipment
(Date of Publication)
(a) ``Equipment,'' as used in this clause, means commercially
available items capable of stand-alone use, including those to be
acquired for incorporation into special test equipment or special
tooling.
(b)(1) Upon determination of need for any Government-owned
equipment item for performance of this contract, the contractor
shall provide to the contracting officer a written request
justifying the need for the equipment and the reasons why
contractor-owned property cannot be used, citing the applicable FAR
or contract authority for use of Government-owned equipment.
Equipment being acquired as a deliverable end item listed in the
contract or as a component for incorporation into a deliverable end
item listed in the contract is exempt from this requirement.
(2) The contractor's request shall include a description of the
item in sufficient detail to enable the Government to screen its
inventories for available equipment or to purchase equipment. For
this purpose, the contractor shall (i) prepare a separate DD Form
1419, DOD Industrial Plant Equipment Requisition, or equivalent
format, for each item requested and (ii) forward it through the
contracting officer to the Industrial Property Officer at the
cognizant NASA installation at least 30 days in advance of the date
the contractor intends to acquire the item. Multiple units of
identical items may be requested on a single form. Instructions for
preparing the DD Form 1419 are contained in NASA FAR Supplement
1845.7102. If a certificate of nonavailability is not received
within that period, the contractor may proceed to acquire the item,
subject to having obtained contracting officer consent, if required,
and having complied with any other applicable provisions of this
contract.
(c) Contractors who are authorized to conduct their own
screening using the NASA Equipment Management System (NEMS) and
other Government sources of excess property shall provide the
evidence of screening results with their request for contracting
officer consent. Requests to purchase based on unsuitability of
items found shall include rationale for the determined
unsuitability.
(End of clause)
1852.245-71 Installation-Accountable Government Property.
As prescribed in 1845.106-70(b), insert the following clause:
Installation-Accountable Government Property
(Date of Publication)
(a) The Government property described in the clause at 1852.245-
77, List of Installation-Provided Property and Services, shall be
made available to the contractor on a no-charge basis for use in
performance of this contract. This property shall be utilized only
within the physical confines of the NASA installation that provided
the property. Under this clause, the Government retains
accountability for, and title to, the property, and the contractor
assumes the following user responsibilities: [Insert contractor user
responsibilities].
The contractor shall establish and adhere to a system of written
procedures for compliance with these user responsibilities. Such
procedures must include holding employees liable, when appropriate,
for loss, damage, or destruction of Government property.
(b)(1) The official accountable recordkeeping, physical
inventory, financial
[[Page 36736]]
control, and reporting of the property subject to this clause shall
be retained by the Government and accomplished by the installation
Supply and Equipment Management Officer (SEMO) and Financial
Management Officer. If this contract provides for the contractor to
acquire property, title to which will vest in the Government, the
following additional procedures apply:
(i) The contractor's purchase order shall require the vendor to
deliver the property to the installation central receiving area;
(ii) The contractor shall furnish a copy of each purchase order,
prior to delivery by the vendor, to the installation central
receiving area;
(iii) The contractor shall establish a record of the property as
required by FAR 45.5 and 1845.5 and furnish to the Industrial
Property Officer a DD Form 1149 Requisition and Invoice/Shipping
Document (or installation equivalent) to transfer accountability to
the Government within 5 working days after receipt of the property
by the contractor. The contractor is accountable for all contractor-
acquired property until the property is transferred to the
Government's accountability.
(iv) Contractor use of Government property at an off-site
location and off-site subcontractor use require advance approval of
the contracting officer and notification of the SEMO. The contractor
shall assume accountability and financial reporting responsibility
for such property. The contractor shall establish records and
property control procedures and maintain the property in accordance
with the requirements of FAR Part 45.5 until its return to the
installation.
(2) After transfer of accountability to the Government, the
contractor shall continue to maintain such internal records as are
necessary to execute the user responsibilities identified in
paragraph (a) and document the acquisition, billing, and disposition
of the property. These records and supporting documentation shall be
made available, upon request, to the SEMO and any other authorized
representatives of the contracting officer.
(End of clause)
Alternate I
(March 1989)
As prescribed in 1845.106-70(b)(2), insert the following as
subparagraph (b)(3) of the basic clause:
(3) The contractor shall not utilize the installation's central
receiving facility for receipt of Contractor-acquired property.
However, the Contractor shall provide listings suitable for
establishing accountable records of all such property received, on a
quarterly basis, to the Contracting Officer and the Supply and
Equipment Management Officer.
* * * * *
1852.245-77 List of Installation-Accountable Property and Services.
As prescribed in 1845.106-70(h), insert the following clause:
List of Installation-Accountable Property and Services
(Date of Publication)
In accordance with the clause at 1852.245-71, Installation-
Accountable Government Property, the Contractor is authorized use of
the types of property and services listed below, to the extent they
are available, in the performance of this contract within the
physical borders of the installation which may include buildings and
space owned or directly leased by NASA in close proximity to the
installation, if so designated by the Contracting Officer.
(a) Office space, work area space, and utilities. Government
telephones are available for official purposes only; pay telephones
are available for contractor employees for unofficial calls.
(b) General- and special-purpose equipment, including office
furniture.
(1) Equipment to be made available is listed in Attachment ____
[Insert attachment number or ``not applicable'' if no equipment is
provided]. The Government retains accountability for this property
under the clause at 1852.245-71, Installation-Accountable Government
Property, regardless of its authorized location.
(2) If the Contractor acquires property, title to which vests in
the Government pursuant to other provisions of this contract, this
property also shall become accountable to the Government upon its
entry into Government records as required by the clause at 1852.245-
71, Installation-Accountable Government Property.
(3) The Contractor shall not bring to the installation for use
under this contract any property owned or leased by the Contractor,
or other property that the Contractor is accountable for under any
other Government contract, without the Contracting Officer's prior
written approval.
(c) Supplies from stores stock.
(d) Publications and blank forms stocked by the installation.
(e) Safety and fire protection for Contractor personnel and
facilities.
(f) Installation service facilities: ______ [Insert the name of
the facilities or ``None'']
(g) Medical treatment of a first-aid nature for Contractor
personnel injuries or illnesses sustained during on-site duty.
(h) Cafeteria privileges for Contractor employees during normal
operating hours.
(i) Building maintenance for facilities occupied by Contractor
personnel.
(j) Moving and hauling for office moves, movement of large
equipment, and delivery of supplies. Moving services shall be
provided on-site, as approved by the Contracting Officer.
(k) The user responsibilities of the Contractor are defined in
paragraph (a) of the clause at 1852.245-71, Installation-Accountable
Government Property.
(End of clause)
1852.245-79 Use of Government-Owned Property.
As prescribed in 1845.106-70(j), insert the following provision:
Use of Government-Owned Property
(Date of Publication)
(a) The offeror ( ) does, ( ) does not intend to use in
performance of any contract awarded as a result of this solicitation
existing Government-owned facilities (real property or plant
equipment), special test equipment, or special tooling (including
any property offered by this solicitation). The offeror shall
identify any offered property not intended to be used. If the
offeror does intend to use any of the above items, the offeror must
furnish the following information required by Federal Acquisition
Regulation (FAR) 45.205(b), and NASA FAR Supplement (NFS) 1845.102-
71:
(1) Identification and quantity of each item. Include the item's
acquisition cost if it is not property offered by this solicitation.
(2) For property not offered by this solicitation,
identification of the Government contract under which the property
is accountable and written permission for its use from the cognizant
Contracting Officer.
(3) Amount of rent, calculated in accordance with FAR 45.403 and
the clause at FAR 52.245-9, Use and Charges, unless the property has
been offered on a rent-free basis by this solicitation.
(4) The dates during which the property will be available for
use, and if it is to be used in more than one contract, the amounts
of respective uses in sufficient detail to support proration of the
rent. This information is not required for property offered by this
solicitation.
(b) The offeror ( ) does, ( ) does not request additional
Government-provided property for use in performing any contract
awarded as a result of this solicitation. If the offeror requests
additional Government-provided property, the offeror must furnish--
(1) Identification of the property, quantity, and estimated
acquisition cost of each item; and
(2) The offeror's written statement of its inability to obtain
facilities as prescribed by FAR 45.302-1(a)(4).
(c) If the offeror intends to use any Government property
(paragraph (a) or (b) of this provision), the offer must also
furnish the following:
(1) The date of the last Government review of the offeror's
property control and accounting system, actions taken to correct any
deficiencies found, and the name and telephone number of the
cognizant property administrator.
(2) A statement that the offeror has reviewed, understands, and
can comply with all property management and accounting procedures in
the solicitation, FAR Subpart 45.5, and NFS Subparts 1845.5 and
1845.71.
(3) A statement indicating whether or not the costs associated
with paragraph (c)(2) of this provision, including plant clearance
and/or plant reconversion costs, are included in its cost proposal.
(End of provision)
87. Part 1853 is revised to read as follows:
[[Page 36737]]
PART 1853--FORMS
Subpart 1853.1--General
Sec.
1853.100 Scope of subpart.
1853.101 Requirements for use of forms.
1853.103 Exceptions.
1853.105 Computer generation.
1853.107 Obtaining forms.
1853.108 Recommendations concerning forms.
Subpart 1853.2--Prescription of Forms
1853.200 Scope of subpart.
1853.204 Administrative matters.
1853.204-70 General (NASA Forms 507, 507A, 507B, 507G, 507M, 531,
533M, 533Q, 1098, 1356, 1611, 1612, and Department of Defense Form
1593).
1853.208 Required sources of supplies and services.
1853.208-70 Other Government sources (Standard Form 1080, Air Force
Form 858, Department of Energy Form 5400.3, Nuclear Regulatory
Commission Form 313).
1853.215 Contracting by negotiation.
1853.215-2 Price negotiation (NASA Form 634 and Department of
Defense Form 1861).
1853.216 Types of contracts.
1853.216-70 Assignees under cost-reimbursement contracts (NASA
Forms 778, 779, 780, and 781).
1853.217 Special contracting methods (NASA Form 523).
1853.232 Contract financing (Standard Forms 272, 272A).
1853.242 Contract administration.
1853.242-70 Delegation (NASA Forms 1430, 1430A, 1431, 1432, 1433,
and 1634) and service request (NASA Form 1434).
1853.242-71 Notifications (NASA Form 456).
1853.245 Property (NASA Form 1018, Department of Defense Form
1419).
1853.246 Quality assurance (Department of Defense Forms 250 and
250c).
1853.249 Termination of contracts (NASA Forms 1412, 1413).
Subpart 1853.3--Illustrations of Forms
1853.300 Scope of subpart.
1853.301 Standard forms.
1853.303 Agency forms.
Authority: 42 U.S.C. 2473(c)(1).
Subpart 1853.1--General
1853.100 Scope of subpart.
This subpart contains information regarding the forms prescribed in
this Regulation. Unless specified otherwise, the policies in FAR Part
53 apply to NASA-prescribed forms.
1853.101 Requirements for use of forms.
The requirements for use of the forms in this part are contained in
Parts 1801 through 1852 where the subject matter applicable to each
form is addressed. The specific location of each form's prescription is
identified in subpart 1853.2.
1853.103 Exceptions.
(1) Requests for exceptions to standard or optional forms shall be
forwarded through the center forms manager to the Headquarters Office
of Procurement (Code HK).
(2) Alteration of any form in this part is prohibited unless prior
approval has been obtained from the Headquarters Office of Management
Systems and Facilities, Information Resources Management Division (Code
JT). Requests for alteration shall be coordinated with the center forms
manager before transmittal to Code JT.
(3) Use for the same purpose of any form other than one prescribed
by this Regulation requires prior approval of Code HK.
1853.105 Computer generation.
Forms prescribed by this Regulation may be adapted for computer
preparation providing there is no change to the name, content, or
sequence of the data elements, and the form carries the form number and
edition date.
1853.107 Obtaining forms. (NASA supplements paragraph (c))
(c)(i) NASA centers and offices may obtain forms prescribed in the
FAR or in this Regulation from Goddard Space Flight Center, Code 239.
Orders should be placed on a NASA Form 2, Request for Blank Forms,
Publications and Issuances.
(ii) Contracting officers, at the time of contract award, shall
ensure that contractors are notified of the procedures for obtaining
NASA forms required for performance under the contract.
1853.108 Recommendations concerning forms.
Code HK is the office responsible for submitting form
recommendations.
Subpart 1853.2--Prescription of Forms
1853.200 Scope of subpart.
This subpart summarizes the prescriptions of NASA forms and other
forms adopted by NASA for use in acquisition.
1853.204 Administrative matters.
1853.204-70 General (NASA Forms 507, 507A, 507B, 507G, 507M, 531,
533M, 533Q, 1098, 1356, 1611, 1612 and Department of Defense Form
1593).
(a) The following forms are prescribed in 1804.670-3:
(1) NASA Form 507, Individual Procurement Action Report (New
Awards).
(2) NASA Form 507A, Individual Procurement Action Report (New
Awards) Supplement A.
(3) NASA Form 507B, Individual Procurement Action Report Supplement
B.
(4) NASA Form 507G, Individual Procurement Action Report (Grants/
Orders).
(5) NASA Form 507M, Individual Procurement Action Report
(Modifications).
(b) NASA Form 531, Name Check Request. Prescribed in 1852.204-76.
(c) The following forms are prescribed in 1842.72:
(1) NASA Form 533M, Monthly Contractor Financial Management Report.
(2) NASA Form 533Q, Quarterly Contractor Financial Management
Report.
(d) NASA Form 1098, Checklist for Contract Award File Content.
Prescribed in 1804.803-70.
(e) NASA Form 1356, C.A.S.E. Report on College and University
Projects. Prescribed in 1804.671.
(f) NASA Form 1611, Contract Completion Statement. Prescribed in
1804.804-2 and 1804.804-5.
(g) The following forms are prescribed in 1804.804-5:
(1) NASA Form 1612, Contract Closeout Checklist.
(2) DD Form 1593, Contract Administration Completion Record.
1853.208 Required sources of supplies and services.
1853.208-70 Other Government sources (Standard Form 1080, Air Force
Form 858, Department of Energy Form 5400.3, Nuclear Regulatory
Commission Form 313).
(a) SF 1080, Voucher for Transfers Between Appropriations and/or
Funds (Disbursement). Prescribed in 1808.002-72(e).
(b) Air Force Form 858, Forecast of Requirements (Missile
Propellants and Pressurants). Prescribed in 1808.002-72(f).
(c) Department of Energy Form 5400.3, Isotope Order Blank.
Prescribed in 1808.002-70(a).
(d) Nuclear Regulatory Commission Form 313, Application for
Material License. Prescribed in 1808.002-70(a).
1853.215 Contracting by negotiation.
1853.215-2 Price negotiation (NASA Form 634 and Department of Defense
Form 1861).
(a) NASA Form 634, Structured Approach--Profit/Fee Objective.
Prescribed in 1815.970-1(a).
(b) DD Form 1861, Contract Facilities Capital Cost of Money.
Prescribed in 1830.70, and instructions for completion are in
1830.7001-2.
[[Page 36738]]
1853.216 Types of contracts.
1853.216-70 Assignees under cost-reimbursement contracts (NASA Forms
778, 779, 780, and 781).
The following forms are prescribed in 1852.216-89:
(a) NASA Form 778, Contractor's Release.
(b) NASA Form 779, Assignee's Release.
(c) NASA Form 780, Contractor's Assignment of Refunds, Rebates,
Credits, and Other Amounts.
(d) NASA Form 781, Assignee's Assignment of Refunds, Rebates,
Credits, and Other Amounts.
1853.217 Special contracting methods (NASA Forms 523).
NASA Form 523, NASA-Defense Purchase Request. Prescribed in
1808.002-72(b) and 1817.7002.
1853.232 Contract financing (Standard Forms 272, 272A).
The following forms are prescribed in 1832.412(a)(ii):
(a) SF 272, Federal Cash Transactions Report.
(b) SF 272A, Federal Cash Transactions Report Continuation.
1853.242 Contract administration.
1853.242-70 Delegation (NASA Forms 1430, 1430A, 1431, 1432, 1433, and
1634) and service request (NASA Form 1434).
(a) NASA Form 1430, Letter of Contract Administration Delegation,
General. Prescribed in 1842.202(d)(ii).
(b) NASA Form 1430A, Letter of Contract Administration Delegation,
Special Instructions. Prescribed in 1842.202(d)(ii).
(c) NASA Form 1431, Letter of Acceptance of Contract Administration
Delegation. Prescribed in 1842.202(d)(iii).
(d) NASA Form 1432, Letter of Contract Administration Delegation,
Termination. Prescribed in 1842.202(b)(1)(G).
(e) NASA Form 1433, Letter of Audit Delegation. Prescribed in
1842.202(d)(iv).
(f) NASA Form 1634, Contracting Officer Technical Representative
(COTR) Delegation. Prescribed in 1842.270(b).
(g) NASA Form 1434, Letter of Request for Pricing-Audit Technical
Evaluation Services. Prescribed in 1815.805-5(a)(1)(E).
1853.242-71 Notifications (NASA Form 456).
NASA Form 456, Notice of Contract Costs Suspended and/or
Disapproved. Prescribed in 1842.803(b)(2).
1853.245 Property (NASA Form 1018, Department of Defense Form 1419).
(a) NASA Form 1018, NASA Property in the Custody of Contractors.
Prescribed in 1845.505-14. Instructions for form completion are in
1845.7101.
(b) DD Form 1419, DOD Industrial Plant Equipment Requisition.
Prescribed in 1852.245-70. Instructions for form completion are in
1845.7102.
1853.246 Quality assurance (Department of Defense Forms 250 and 250c).
The following forms are prescribed in 1846.670. Instructions for
form completion are in 1846.670:
(a) DD Form 250, Material Inspection and Receiving Report
(b) DD Form 250c, Material Inspection and Receiving Report-
Continuation Sheet.
1853.249 Termination of contracts (NASA Forms 1412, 1413).
(a) NASA Form 1412, Termination Authority. Prescribed in 1849.101-
71.
(b) NASA Form 1413, Termination Docket Checklist. Prescribed in
1849.105-70.
Subpart 1853.3--Illustrations of Forms
1853.300 Scope of subpart.
This subpart contains illustrations of NASA forms and others forms
used by NASA in acquisitions and not prescribed in the FAR.
1853.301 Standard forms.
This section illustrates standard forms (SFs) specified for use in
acquisitions.
1853.303 Agency forms.
This section illustrates NASA and other agency forms specified for
use in acquisitions. The other agency forms are arranged numerically by
agency following the NASA forms.
PART 1870--NASA SUPPLEMENTARY REGULATIONS
Part 1870 [Removed]
88. Part 1870, NASA Supplementary Regulations, is removed.
[FR Doc. 97-17310 Filed 7-8-97; 8:45 am]
BILLING CODE 7510-01-M
