NASA Seeks Comments on Federal Acquisition Regulations Supplement Regulatory Review
NASA FAR Supplement Regulatory Review No. 3
A Proposed Rule by the
Publication Date:
Agency:
Entry Type: Proposed Rule
Action: Proposed rule.
Document Citation: 80 FR 18580
Page: 18580 -18584 (5 pages)
CFR: 48 CFR 1801
48 CFR 1802
48 CFR 1805
48 CFR 1807
48 CFR 1812
48 CFR 1813
48 CFR 1823
48 CFR 1833
48 CFR 1836
48 CFR 1847
48 CFR 1850
48 CFR 1852
RIN: 2700-AE19
Document Number: 2015-07737
Shorter URL: https://federalregister.gov/a/2015-07737
Action
Proposed Rule.
Summary
DATES:
Interested parties should submit comments to
ADDRESSES:
Interested parties may submit comments, identified by RIN number 2700-AE19 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
A. Background
The NASA FAR Supplement (NFS) is codified at 48 CFR part 1800. Periodically,
1801--Federal Acquisition Regulations Systems
1802--Definitions
1805--Publicizing Contract Actions
1807--Acquisition Planning
1812--Acquisition of Commercial Items
1813--Simplified Acquisition Procedures
1823--Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace
1833--Protests, Disputes and Appeals
1836--Construction and Architect-Engineer Contracts
1847--Transportation
1850--Extraordinary Contractual Actions and the Safety Act
1852--Solicitation Provisions and Contract Clauses
Further, this proposed rule provides notice that no regulatory changes will be made to the following ten parts of the NFS:
1803--Improper Business Practices and Personal Conflicts of Interest
1804--Administrative Matters
1808--Required Sources of Supplies and Services
1811--Describing Agency Needs
1825--Foreign Acquisition
1839--Acquisition of Information Technology
1835--Research and
1845--Government Property
1848--Value Engineering
1872--Acquisition of Investigations
Specifically, the changes in this proposed rule are summarized as follows:
1801.106 is revised to reflect currently approved OMB Information Collection Requests
1802.101 is revised to update the definition of Head of Contracting Activity to reflect internal organizational changes.
1805.303(a)(i) is revised to delete the dollar figure of
1807.107 and 1807.107-70 are deleted from the regulation. These sections provide
1807.7200 is revised to reflect a change to a Web site address.
1807.7201, the definition of "contract opportunity" is revised to delete "
1812.301, the list of NFS clauses authorized for use in acquisition of commercial items updated through additions and deletions to reflect the list of currently approved clauses.
1813.000 is deleted. This section is internal guidance. This cite stated that simplified acquisition procedures were not applicable to R&D contracts for which proposals were solicited via a NASA Research Announcement (NRA) or an Announcement of Opportunity (OA). Removing the text from the regulation removes unnecessary regulation and it permits
1823.7001,
1833.103 is revised to clarify that bidders or offerors may either protest directly to the contracting officer, or alternatively, request an independent review by the Assistant Administrator of Procurement, consistent with FAR 33.103.
Likewise, the corresponding clause at 1852.233 is revised to reflect the same clarification.
1833.106-70 and 1833.215 are revised to correct capitalization and lower case usage, consistent with FAR convention.
1836.513, Accident prevention, is revised to allow the use of FAR clause 52.236-13, Accident Prevention in certain circumstances, as specified at 1823.7001, when a safety and health plan is required under the contract but will not be evaluated with proposals.
1847, The clause at 1852.247-71, Protection of the Florida Manatee, is revised to reflect current technical requirements and organizational points of contact in order to ensure that information essential to protecting the endangered manatee will be properly conveyed to contractors working on-site at
1850.104, Several administrative changes are made to the processing of contractor requests under the Safety Act. Although most of these changes involve internal
1850.104-70 is deleted. This section assigned cognizance for indemnification applications to the
B. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is not a "significant regulatory action" under section 3(f) of E.O. 12866. This proposed rule is not a major rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
The proposed rule contains no new information collection requirements that require the approval of the
List of Subjects in 48 CFR 1801, 1802, 1805, 1807, 1812, 1813, 1823, 1833, 1836, 1847, 1850, and 1852
Government procurement
Alternate Federal Register Liaison.
Accordingly, 48 CFR parts 1801, 1802, 1805, 1807, 1812, 1813, 1823, 1833, 1836, 1847, 1850, and 1852 are proposed to be amended as follows:
PART 1801--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.The authority citation for part 1801 is revised to read as follows
Authority:
51 U.S.C. 20113(a).
2.Section 1801.106 is revised to read as follows:
1801.106 OMB approval under the Paperwork Reduction Act.
(1) NFS requirements. The following OMB control numbers apply:
NFS Segment .....OMB Control No.
1823 .....2700-0089
1827 .....2700-0052
1843 .....2700-0054
NF 533 .....2700-0003
NF 1018 .....2700-0017
PART 1802--DEFINITIONS OF WORDS AND TERMS
3.The authority citation for part 1802 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
4.In section 1802.101, the definition for "Head of the contracting activity (HCA)" is revised to read as follow:
1802.101 Definitions.
Head of the contracting activity (HCA) means, for field installations, the Director or other head, and for NASA Headquarters, the Director for Headquarters Operations. For
PART 1805 --PUBLICIZING CONTRACT ACTIONS
5.The authority citation for part 1805 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
6.Section 1805.303 is revised to read as follows:
1805.303 Announcement of contract awards.
(a)(i) In lieu of the threshold cited in FAR 5.303(a), a NASA Headquarters public announcement is required for award of contract actions that have a total anticipated value, including unexercised options, of
PART 1807--ACQUISITION PLANNING
7.The authority citation for part 1807 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
Subpart 1807.1 [Removed]
8.Subpart 1807.01, consisting of sections 1807.107 and 1807.107-70, is removed.
9.In section 1807.7200, paragraph (b) is revised to read as follows: 1807.7200 Policy.
(b) The annual forecast and semiannual update are available on the NASA Acquisition Internet Service (http://www.hq.nasa.gov/office/procurement/forecast/index.html).
10.In section 1807.7201, the definition for "Contract opportunity" is revised to read as follows:
1807.7201 Definitions.
Contract opportunity means planned new contract awards exceeding the simplified acquisition threshold (SAT).
PART 1812--ACQUISITION OF COMMERCIAL ITEMS
11.The authority citation for part 1812 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
12.Section 1812.301 is revised to read as follows:
1812.301 Solicitation provisions and contract clauses for the acquisition of commercial items.
(f)(i) The following clauses are authorized for use in acquisitions of commercial items when required by the clause prescription:
(A) 1852.204-75, Security Classification Requirements.
(B) 1852.204-76, Security Requirements for Unclassified Information Technology Resources.
(C) 1852.215-84, Ombudsman.
(D) 1852.216-80, Task Order Procedures (Alternate I).
(E) 1852.216-88, Performance Incentive.
(F) 1852.219-73, Small Business Subcontracting Plan.
(G) 1852.219-75, Small Business Subcontracting Reporting.
(H) 1852.223-70, Safety and Health.
(I) 1852.223-71, Frequency Authorization.
(J) 1852.223-72, Safety and Health (Short Form).
(K) 1852.223-73, Safety and Health Plan.
(L) 1852.223-75,
(M) 1852.225-70, Export Licenses.
(N) 1852.228-76, Cross-Waiver of Liability for International Space Station Activities.
(O) 1852.228-78, Cross-Waiver of Liability for Science or Space Exploration Activities Unrelated to the
(P) 1852.237-70, Emergency Evacuation Procedures.
(Q) 1852.237-72, Access to Sensitive Information.
(R) 1852.237-73, Release of Sensitive Information.
(S) 1852.246-72, Material Inspection and Receiving Report.
(T) 1852.247.71, Protection of the Florida Manatee.
13.In section 1812.7000:
a. Paragraphs (d) is removed;
b. Paragraphs (a), (b), and (c) are redesignated as paragraph (b), (c), and (d), respectively; and
c. Paragraph (a) is added.
The addition reads as follows:
1812.7000 Anchor tenancy contracts.
(a) The term "anchor tenancy" means an arrangement in which the
PART 1813--SIMPLIFIED ACQUISITION PROCEDURES
14.The authority citation for part 1813 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
1813.000 [Removed]
15.Section 1813.000 is removed.
PART 1823 --ENVIROMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
16.The authority citation for part 1823 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
17.In section 1823.7001:
a. Paragraph (c) is revised;
b. Paragraphs (d) and (e) are redesignated as paragraphs (e) and (f), respectively, and newly redesignated paragraph (f) is revised; and
c. Paragraph (d) is added.
The revisions and addition read as follows:
1823.7001
(c) The contracting officer shall insert the clause at 1852.223-73, Safety and Health Plan, in solicitations above the simplified acquisition threshold when the work will be conducted completely or partly on a Federally-controlled facility and the safety and health plan will be evaluated in source selection as approved by the source selection authority. This clause may be modified to identify specific information that is to be included in the plan. After receiving the concurrence of the center safety and occupational health official(s), the contracting officer shall incorporate the plan as an attachment into any resulting contract. The contracting officer shall insert the clause, with its Alternate I, in Invitations for Bid.
(d) The contracting officer shall insert FAR clause at 52.236-13 with its Alternate I in solicitations and contracts when the work will be conducted completely or partly on a Federally-controlled facility and a Safety and Health Plan will be reviewed after award as a contract deliverable. The contracting officer may modify the wording in paragraph (f) of Alternate I to specify:
(1) When the proposed plan is due; and
(2) Whether the contractor may commence work prior to approval of the plan; or
(3) To what extent the contractor may commence work before the plan is approved.
The requiring activity, in consultation with the cognizant health and safety official(s), will identify the data deliverable requirements for the safety and health plan. After receiving the concurrence of the center safety and occupational health official(s), the contracting officer shall incorporate the plan as an attachment into the contract.
(f) The contracting officer shall insert the clause at 1852.223-72, Safety and Health (Short Form) in solicitations and contracts above the simplified acquisition threshold when work will be conducted completely or partly on Federally-controlled facilities and that do not contain the clause at 1852.223-73 or the FAR clause at 52.236-13 with its Alternate I.
PART 1833--PROTESTS, DISPUTES, AND APPEALS
18.The authority citation for part 1833 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
19.Section 1833.103 is revised to read as follows:
1833.103 Protests to the agency.
(d)(4) The provision at 1852.233-70 provides for an alternative to a protest to the United States Government Accountability Office (GAO). This alternative gives bidders or offerors the ability to protest directly to the contracting officer (CO) or to request an independent review by the Assistant Administrator for Procurement (or designee). The Agency review shall be deemed to be at the CO level when the request is silent as to the level of review desired. The Agency review shall be deemed to be at the level of the Assistant Administrator for Procurement (or designee) when the request specifies a level above the CO, even if the request doesn't specifically request an independent review by the Assistant Administrator for Procurement. Such reviews are separate and distinct from the Ombudsman Program described at 1815.7001.
(e)
(4) When a bidder or offeror submits an Agency protest to the CO or alternatively requests an independent review by the Assistant Administrator for Procurement, the decision of the CO or the Assistant Administrator for Procurement shall be final and is not subject to any appeal or reconsideration within
1833.106-70 [Amended]
20.In section 1833.106-70, remove the words "Contracting officers" and add in their place the words "The contracting officer".
1833.215 [Amended]
21.In section 1833.215, remove the word "agency" and add in its place the word "Agency".
PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
22.The authority citation for part 1836 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
23.Section 1836.513 is revised to read as follows:
1836.513 Accident prevention.
For additional guidance on the use of FAR clause 52.236-13, Accident Prevention, and its Alternate I in
PART 1850--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
24.The authority citation for part 1850 is added to read as follows:
Authority:
51 U.S.C. 20113(a).
1850.103-570 [Amended]
25.In section 1850.103-570, paragraph (a), remove the words "Associate General Counsel for
1850.103-670 [Amended]
26.In section 1850.103-670, paragraph (b), remove the words "Associate General Counsel for
27.Section 1850.104-2 is added to read as follows:
1850.104-2 General.
(a) Requests for the exercise of residual powers shall be sent to the
28.Section 1850.104-3 is revised to read as follows:
1850.104-3 Special procedures for unusually hazardous or nuclear risks.
(a) Indemnification requests. (1) Contractor indemnification requests must be submitted to the cognizant contracting officer for the contract for which the indemnification clause is requested. The request shall be submitted six (6) months in advance of the desired effective date of the requested indemnification in order to allow sufficient time for the request to be reviewed, analyzed, and approved by the Agency. Contractors shall submit a single request and shall ensure that duplicate requests are not submitted by associated divisions, subsidiaries, or central offices of the contractor.
(ii) The Contractor's request for indemnification must identify a sufficient factual basis for indemnification by explaining specifically what work activities under the contract create the unusually hazardous or nuclear risk and identifying the timeframes in which the risk would be incurred.
(iii) The contractor shall also provide evidence, such as a certificate of insurance or other customary proof of insurance, that such insurance is either in force or is available and will be in force during the indemnified period.
(b) Action on indemnification requests. (1) If recommending approval, the contracting officer shall forward the required information to the
(i) For contracts of five years duration or longer, a determination, with supporting rationale, whether the indemnification approval and insurance coverage and premiums should be reviewed for adequacy and continued validity at points in time within the extended contract period.
(ii) The specific definition of the unusually hazardous risk to which the contractor is exposed in the performance of the contract(s), including specificity about which activities present such risk and the anticipated timeframes in which the risk will be incurred;
(iv) A complete discussion of the contractor's financial protection program; and
(vi) The extent to, and conditions under, which indemnification is being approved for subcontracts.
(2) The NASA Administrator is the approval authority for using the indemnification clause in a contract by a Memorandum of Decision.
(4)(ii) If approving subcontractor indemnification, the contracting officer shall document the file with a memorandum for record addressing the items set forth in FAR 50.104-3(b) and include an analysis of the subcontractor's financial protection program. In performing this analysis, the contracting officer shall take into consideration the availability, cost, terms and conditions of insurance in relation to the unusually hazardous risk.
29.Section 1850.104-4 is added to read as follows:
1850.104-4 Contract clause.
The contracting officer shall obtain the NASA Administrator's approval prior to including clause 52.250-1 in a contract.
1850.104-70 [Removed]
30.Section 1850.104-70 is removed.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
31.The authority citation for part 1852 is revised to read as follows:
Authority:
51 U.S.C. 20113(a).
32.Sections 1852.223-72 and 1852.223-73 are revised to read as follows: 1852.223-72 Safety and Health (Short Form).
As prescribed in 1823.7001(f), insert the following clause:
SAFETY AND HEALTH (SHORT FORM) (XX/XX)
(a) Safety is the freedom from those conditions that can cause death, injury, occupational illness; damage to or loss of equipment or property, or damage to the environment.
(b) The Contractor shall have a documented, comprehensive and effective health and safety program with a proactive process to identify, assess, and control hazards and take all reasonable safety and occupational health measures consistent with standard industry practice in performing this contract
(c) The Contractor shall insert the substance of this clause, including this paragraph (c) in subcontracts that exceed the simplified acquisition threshold where work will be conducted completely or partly on Federally-controlled facilities.
1852.223-73 Safety and Health Plan.
As prescribed in 1823.7001(c), insert the following clause:
SAFETY AND HEALTH PLAN (XX/XX)
(a) The offeror shall submit a detailed safety and occupational health plan as part of its proposal. The plan shall include a detailed discussion of the policies, procedures, and techniques that will be used to ensure the safety and occupational health of Contractor employees and to ensure the safety of all working conditions throughout the performance of the contract.
(b) The plan shall similarly address subcontractor employee safety and occupational health for those proposed subcontracts or subcontract effort where the work will be conducted completely or partly on a Federally-controlled facility
(d) This plan, as approved by the Contracting Officer, will be incorporated into any resulting contract.
ALTERNATE I (XX/XX)
As prescribed in 1823.7001(c)(1), delete the first sentence in paragraph (a) of the basic provision and substitute the following:
The apparent low bidder, upon request by the Contracting Officer, shall submit a detailed safety and occupational health plan. The plan shall be submitted within the time specified by the Contracting Officer. Failure to submit an acceptable plan shall make the bidder ineligible for the award of a contract.
33.Section 1852.233-70 is revised to read as follows:
1852.233-70 Protests to
As prescribed in 1833.106-70, insert the following provision:
PROTESTS TO NASA (XX/XX)
(a) In lieu of a protest to the United States Government Accountability Office (GAO), bidders or offerors may submit a protest under 48 CFR part 33 (FAR part 33) directly to the Contracting Officer for consideration by the Agency. Alternatively, bidders or offerors may request an independent review by the Assistant Administrator for Procurement, who will serve as or designate the official responsible for conducting an independent review. Such reviews are separate and distinct from the Ombudsman Program described at 1815.7001.
(b) Bidders or offerors shall specify whether they are submitting a protest to the Contracting Officer or requesting an independent review by the Assistant Administrator for Procurement.
(c) Protests to the Contracting Officer shall be submitted to the address or email specified in the solicitation (email is an acceptable means for submitting a protest to the Contracting Officer). Alternatively, requests for independent review by the Assistant Administrator for Procurement shall be addressed to the Assistant Administrator for Procurement, NASA Headquarters,
34.Section 1852.247-71 is revised to read as follows:
1852.247-71 Protection of the Florida Manatee.
As prescribed in 1847.7001, insert the following clause:
PROTECTION OF THE
(a) Pursuant to the Endangered Species Act of 1973 (Pub. L. 93-205), as amended, and the Marine Mammals Protection Act of 1972 (Pub. L. 92-522), the Florida Manatee (Trichechus Manatus) has been designated an endangered species, and the
(b) All contractor personnel shall be responsible for complying with all applicable Federal and/or state permits (e.g.,
(c) The Contractor shall incorporate the provisions of this clause in applicable subcontracts.
[FR Doc. 2015-07737 Filed 4-6-15;
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