NASA Seeks Comments on Supplement Regulatory Review

Targeted News Service

Targeted News Service

WASHINGTON, Sept. 24 -- The U.S. National Aeronautics & Space Administration published the following proposed rule in the Federal Register:

NASA FAR Supplement Regulatory Review No. 2

A Proposed Rule by the National Aeronautics and Space Administration on 09/24/2014

Publication Date: Wednesday, September 24, 2014

Agency: National Aeronautics and Space Administration

Entry Type: Proposed Rule

Action: Proposed rule.

Document Citation: 79 FR 57015

Page: 57015 -57032 (18 pages)

CFR: 48 CFR 1809

48 CFR 1815

48 CFR 1816

48 CFR 1817

48 CFR 1819

48 CFR 1823

48 CFR 1827

48 CFR 1828

48 CFR 1831

48 CFR 1832

48 CFR 1837

48 CFR 1842

48 CFR 1849

48 CFR 1852

RIN: 2700-AE09

Document Number: 2014-21476

Shorter URL: https://federalregister.gov/a/2014-21476

Action

Proposed Rule.

Summary

NASA is updating the NASA FAR Supplement (NFS) with the goal of eliminating unnecessary regulation, streamlining overly-burdensome regulation, clarifying language, and simplifying processes where possible. This proposed rule is the second in a series and includes updates and revisions to 14 parts of the NFS. On January 18, 2011, President Obama signed Executive Order (E.O.) 13563, Improving Regulations and Regulatory Review, directing agencies to develop a plan for a retrospective analysis of existing regulations. The revisions to this proposed rule are part of NASA's retrospective plan under E.O. 13563 completed in August 2011.

DATES:

Interested parties should submit comments to NASA at the address below on or before November 24, 2014 to be considered in formulation of the final rule.

ADDRESSES:

Interested parties may submit comments, identified by RIN number 2700-AE09 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to Leigh Pomponio via email at [email protected].

FOR FURTHER INFORMATION CONTACT:

Leigh Pomponio, NASA, Office of Procurement, (202) 358-0592, email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

The NASA FAR Supplement (NFS) is codified at 48 CFR part 1800. Periodically, NASA performs a comprehensive review and analysis of the regulation, makes updates and corrections, and reissues the NASA FAR Supplement. The last reissue was in 2004. The goal of the review and analysis is to reduce regulatory burden where justified and appropriate and make the NFS content and processes more efficient and effective, faster and simpler, in support of NASA's mission. Consistent with Executive Order (E.O.) 13563, Improving Regulations and Regulatory Review, NASA is currently reviewing and revising the NFS with an emphasis on streamlining it and reducing associated burdens. Due to the volume of the NFS, these revisions are being made in increments. This proposed rule is the second of three expected rules which together will constitute the NFS update and reissue. This proposed rule includes regulatory revisions to the following 14 parts of the NFS:

1809--Contractor Qualifications

1815--Subpart 1815.4, Contract Pricing (Changes to other subparts proposed in Rule no. 1)

1816--Types of Contracts

1817--Special Contracting Methods

1819--Small Business Programs

1823--Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace

1827--Patents, Data, and Copyrights

1828--Bonds and Insurance

1831--Contract Cost Principles and Procedures

1832--Contract Financing

1837--Service Contracting

1842--Contract Administration and Audit Services

1849--Terminations

1852--Solicitation Provisions and Contract Clauses

Further, this proposed rule provides notice that no regulatory changes will be made to the following eight parts of the NFS:

1806--Competition

1810--Market Research

1826--Socio-Economic Programs

1829--Taxes

1830--Cost Accounting Standards Administration

1836--Construction and A&E Contracts

1838--Federal Supply Schedule

1844--Subcontracting

NASA analyzed the existing regulation to determine whether any portions should be modified, streamlined, expanded, or repealed in order to make the regulation more efficient and effective. Special emphasis was placed on identifying and eliminating or simplifying overly burdensome processes that could be streamlined without jeopardizing Agency mission effectiveness. Additionally, NASA sought to identify current regulatory coverage that is not regulatory in nature, and to remove or relocate such coverage to internal guidance. In addition to substantive changes, this proposed rule includes administrative changes necessary to make minor corrections and updates.

Specifically, the major changes in this proposed rule are summarized as follows:

Part 1809--Contractor Qualifications:

--1809.206-70, Small businesses, is deleted. FAR 19.6 adequately addresses small business participation and requirements and NASA supplementation is not needed.

--The prescription at 1809.206-71 and the clause at 1852.209-70, Product Removal from Qualified Products List, are deleted. The clause is not necessary as FAR 52.209-1, Qualification Requirements, sufficiently covers product removal from Qualified Products Lists.

--Contractor Team Arrangements in 1809.6, the prescription at 1809.607, and the clause at 1852.209-72, Composition of the Contractor, are removed. FAR 9.6 adequately addresses teaming arrangements and NASA supplementation is not needed.

Subpart 1815.4--Contract Pricing:

--To conform to FAR, "cost or pricing data" terminology is changed throughout the subpart to clearly distinguish between "certified cost or pricing data" and "data other than certified cost or pricing data." These changes are consistent with changes made to FAR, 15.4, by FAC 2005-45, FAR Case 2005-036, Definition of Cost or Pricing Data.

Part 1816--Types of Contracts:

--NASA technical performance initiatives at 1816.402-270, and the corresponding clause at 1852.216-88, are revised to change "non-hardware contracts" to "supply and service contracts" to conform to the FAR terminology and to broaden application to include services.

1816.405-274(g)(1)and (2), Award Fee evaluation factors, is revised to reflect current small business subcategories by adding small disadvantaged business (SDB), and Historically Black Colleges and Universities (HBCU) and to delete the requirement to evaluate performance against small businesses in specified NAICS groups consistent with the ruling in Rothe Dev. Corp. v. Dept. of Defense, 545 F.3d (Fed. Cir 2008).

--1816.405-274(g)(4), to add specificity, award fee evaluation factors, is revised to specify that 10 percent, in lieu of the currently specified `up to 15 percent', of available award fee shall be assigned to the contractor's performance against the subcontracting plan.

--Award fee evaluation, at 1816.405-275, is revised to indicate that contacting officers may supplement, but not alter, the FAR adjectival rating descriptions. The FAR gives COs this authority; it is reiterated here because the NFS instructions may otherwise appear to override the FAR authority.

--Part 1817--Special Contracting Methods:

--1817.71, Exchange or sale of personal property, is deleted from this part, and will be relocated to part 1845, and be proposed as part of Rule #3 in the NFS Rewrite series.

--The clause 1852.217-70, Property Administration and Reporting, is deleted as unnecessary. The appropriate FAR 45 and NFS 1845 property clauses should be used for interagency acquisitions.

--In the clause 1852.217-71, Phased Acquisition Using Down-Selection Procedures, paragraph (e) is revised to delete the last sentence. NASA no longer provides paper copies of solicitations because solicitations are electronically available via the internet (NASA Acquisition Internet Service, FedBizOps, etc.)

Part 1819--Small Business Programs:

--The policy at 1819.201 is revised to clarify an annual goal of five percent for prime and subcontract awards to SDBs and to set forth a three percent goal for HUBZone and service-disabled, veteran-owned small business (SDVOSB) concerns.

--1819.201 is revised to remove the phrase "not traditionally dominated" and replace it with "had low involvement level" to better describe the past participation level of small businesses in high-technology area. It is also revised to clarify NASA's annual goal of 5 percent of prime and subcontract awards to small SDBs and women-owned small businesses (WOSBs), and a three percent goal for HubZone and SDVOSB concerns.

--Protesting a small business representation at 1819.302 is revised to include `rerepresentation' in the title, to conform to FAR, and to establish a notification requirement to the Agency Small Business Office and the Small Business Administration (SBA)when the contracting officer (CO) determines that an award must be made to protect the public interest.

--Clause prescriptions are added at 1819.811-3.

--Subpart 1819.10, Small Business Competitiveness Demonstration Program, is removed in its entirety, to conform to FAR.

--At Subpart 1819.70, the eight percent goal is removed. This is an administrative reporting requirement that does not require regulatory coverage.

--Subpart 1819.71, NASA Rural area small business plan, is removed. NASA is required to create an internal plan addressing this requirement, but there is no need for regulatory coverage.

--Subpart 1819.72, NASA Mentor-Protege Program, is updated to clarify policy and program requirements, such as indicating the program goal is not only to develop viable suppliers for NASA, but also for other Government and commercial entities, specify that required subcontracting plan cannot be a commercial plan, clarify the office to which applications should be submitted, specify that a protege many be an active SBIR/STTR or AbilityOne Program participant. Further, sections 1819.7203, Mentor Approval Process, 1819.7204, Protege Selection, and 1819.7205, Mentor-protege agreements, are deleted in their entirety because they are not regulatory in nature and are now covered in the NASA Mentor-Protege Guidance at http://osbp.nasa.mpp/index.html. A note about advance payments that was previously under 1819.7205 is retained, renumbered 1819.7203, and cross referenced to FAR subpart 32.4 to clarify that there are not special considerations for Mentor-Protege entities with respect to advance payments.

--1819.7302(c),(d), and (e) are revised to allow the contracting officer to deviate from certain SBIR/STTR program requirements after coordination with the NASA SBIR Program Manager/Coordinator in accordance with SBA's SBIR Program Directive which can be found at http://sbir.gov/sites/default/files/sbir_pd_1-8-14_amendments_2-24-14.pdf.

--Clause 1852.219-11, Special 8(a) Contracting Conditions, and Provision 1852.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, are added to implement NASA's Partnership Agreement with SBA. The provision and clause are currently used under authority of a NASA class deviation, PIC 12-08, dated Nov. 28, 2012, and provide NASA-specific instructions and requirements for 8(a) contracts.

--The clause at 1852.219-75 is retitled as `Individual Subcontracting Reports' and a requirement is added for contractors to enter goals as a percentage of total contract value as well as a percentage of total subcontract dollars.

--1852.219-76, NASA's eight percent goal is deleted. This is an internal NASA reporting requirement and a clause is not necessary.

--1852.219-79, Mentor Requirements and Evaluation, is revised to advise contractors that their evaluation will include consideration of the extent to which the mentor has contributed to advancing the protege's technical readiness level.

Part 1823--Environment, Energy and Water Efficiency, Renewable Technologies, Occupational Safety, and Drug-Free Workplace:

--Subpart 1823.10, Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements, is deleted because E. O. 13423, as implemented in the FAR, now requires contractors to comply with the Agency's environmental management system.

--The prescription at 1823.71 and corresponding clause at 1852.223-71 are clarified to specifically address radio frequency rather than just generic frequency.

Part 1827--Patents, Data, and Copyrights:

--The entire part has been revised and renumbered to conform to the FAR and the recodification of the National Aeronautics and Space Act (Space Act).

--1827.302(a), the second sentence has been removed as it is not necessary. For inventions made under contracts with small businesses and nonprofit organizations, NASA follows FAR 27.302.

--1827.302(b)(2)(v) (formerly at 1827.301(d)) provides clarifying language specifying that under NASA contracts, with entities other than a small business or nonprofit organizations, title to subject inventions may vest in NASA in accordance with its authority under the Space Act.

--1827.302(b)(3) was revised to conform to the language regarding waivers in the Space Act (51 U.S.C. 20135). Additionally, the changes provide clarifying guidance on NASA's requirements for meeting the statutory standard of "any invention or class of inventions."

--1827.302(g) is revised to clarify the language, and to reference the legal authority underlying the preference for products resulting from subject inventions to be manufactured substantially in the United States.

--1827.302(k) adds coverage on NASA policy regarding monetary awards for inventions in accordance with 14 CFR 1240.105.

--1827.303(b)(1)(i)(formerly at 1827.303(a)(1)(B)) has been modified to clarify the process for a contracting officer to determine status of a contractor that claims to be a small business concern or nonprofit organization.

--1827.303(b)(1)(iii) adds new Agency instructions on completing FAR 52.227-11(j), as directed by that clause.

--1827.303(b)(7) prescribes use of Alternate V of FAR 52.227-11 when a contractor is directed to fulfill the Government's obligations under a Cooperative Research and Development Agreement (CRADA).

--1827.303(d)(formerly 1827.303-70(d)) reflects changes in identifying installation Patent Representatives.

--1827.304-2(a)(3)adds clarifying guidance on use of NFS clauses when issuing contracts for other agencies. When the funding agency does not specify a patent rights clause to be used, NFS clauses will be used.

--1827.304-3 (formerly at 1827.304-4) clarifies flow down of applicable patent rights clauses in subcontracts.

--Section 1827.404-4(b)(1) clarifies requirements related to release of software to others under NFS clause 1852.227-14.

--1827.404-4(b)(2)(ii)adds open source software release as a basis for granting the contractor's request to assert copyright in software developed under the contract.

--1827.405-4 and 1827.409-70 are revised to address Government property requirements. In accordance with FAR 45.000, the FAR Government-furnished-property provisions do not apply to software and intellectual property. Accordingly, NFS clause 1852.227-88, Government-Furnished Computer Software and Related Technical Data, was added and was modeled, in part, after the Defense Federal Acquisition Regulation Supplement(DFARS) Clause 252.227-7025(c), Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

--1827.409(d) is revised to provide consistency and protect the Government's rights and option for deferred ordering of data; it also provides additional guidance on the use of the clause at FAR 52.227-16, Additional Data Requirements.

--Clause 1852.227-11 is renamed and renumbered to conform with FAR.

--Clause 1852.227-14(c)(1)(iv) adds a requirement for contractors to include a Government rights notice in their publications, in order to protect the Government's license in a scientific and technical article, based on or containing data first produced in the performance of the subject contract, and submitted for publication in academic, technical or professional journals, symposia proceedings or similar works. This requirement is modeled after the Department of Energy Acquisition Regulation (DEAR) clause (48 CFR Part 970.5227-2(d)(2)).

Part 1828--Bonds and Insurance:

The following are removed from subpart 1828.1 because no supplementation is required by NASA. FAR coverage on bid guarantees and payment and performance bonds is adequate.

--1828.101, Bid guarantees

--1828.101-70, NASA solicitation provision

--1828.103, Performance and payment bonds and alternatives.

--1828.103-70, Subcontractors performing construction work under non-construction contracts.

--1828.103-71, Solicitation requirements and contract clauses.

--The clause prescription at 1828.311-1 is revised to delete "must" and replace it with "shall", and to delete "as prescribed in FAR 28.311-1" and replace it with "in solicitations and contracts, other than those for construction contracts and those for architect-engineer services, when a cost-reimbursement contract is contemplated", for clarification because FAR 28.311-1 requires use "in accordance with agency policy."

--The clause at 1852.228-73, Bid Bond, is deleted because it is redundant. FAR clause 52.228-1 already provides fill-ins for the percent or dollar amount of the bid bond.

Part 1831--Contract Cost Principles and Procedures:

--The prescription at 1831.205-671, Solicitation provision, and the provision at 1852.231-71, Determination of Compensation Reasonableness, are revised to delete the $500,000 threshold and replace it with the "threshold for obtaining certified cost or pricing data (FAR 15.403-4)", to conform with the FAR and to ensure that periodic inflationary adjustments made in the FAR also apply to the NFS.

Part 1832--Contract Financing:

--The prescription at 1832.705-270(a), NASA clauses for limitation of cost or funds, is revised to require the clause be included in all fixed-price, incrementally-funded contracts and task orders, rather than just those for research and development. All fixed-price, incrementally-funded contracts should include the requirements at 1852.232-77.

--1832.1110, Solicitation provision and contract clauses, is revised to indicate that NASA utilizes the System for Award Management (SAM) and it is not necessary for contractors to register separately with NASA for electronic funds transfer.

Part 1837--Service Contracting:

--Coverage on access to sensitive information is deleted at 1837.203 as well as the clauses at 1852.237-72, Access to Sensitive Information, 1852.237-73, Release of Sensitive Information.

The NFS addresses protection and handling of sensitive information in 1827.

Part 1842--Contract Administration and Audit Services:

--Because coverage addressing delegation to Contracting Officer's Representatives (CORs) is being relocated to NFS Part 1801 to conform with the FAR, the prescription at 1842.271 and the clause at 1852.242-70, Technical Direction, are proposed for deletion from 1842. These sections will be proposed for addition to 1801 with the next NFS rewrite rule, #3 in the series.

PART 1849--Terminations

--The prescription at 1849.505-70, NASA contract clause, and the clause at 1852.249.72, Termination (Utilities), are deleted because the FAR termination clauses do not require supplementation by NASA.

[*Federal RegisterVJ 2014-09-24]

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