[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    48


          Chapters 15 to 28

                         Revised as of October 1, 2002

Federal Acquisition Regulations System





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 48:
          Chapter 15--Environmental Protection Agency                3
          Chapter 16--Office of Personnel Management Federal 
          Employees Health Benefits Acquisition Regulation         117
          Chapter 17--Office of Personnel Management               171
          Chapter 18--National Aeronautics and Space 
          Administration                                           175
          Chapter 19--Broadcasting Board of Governors              495
          Chapter 20--Nuclear Regulatory Commission                507
          Chapter 21--Office of Personnel Management, Federal 
          Employees Group Life Insurance Federal Acquisition 
          Regulation                                               559
          Chapter 23--Social Security Administration               593
          Chapter 24--Department of Housing and Urban 
          Development                                              597
          Chapter 25--National Science Foundation                  639
          Chapter 28--Department of Justice                        649
  Finding Aids:
      Table of CFR Titles and Chapters........................     691
      Alphabetical List of Agencies Appearing in the CFR......     709
      List of CFR Sections Affected...........................     719



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  48 CFR 1501.000 
                       refers to title 48, part 
                       1501, section 000.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2002), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (''GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2002.



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                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
eight volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2002.

    The Federal acquisition regulations in chapter 1 are those 
government-wide acquisition regulations jointly issued by the General 
Services Administration, the Department of Defense, and the National 
Aeronautics and Space Administration. Chapters 2 through 99 are 
acquisition regulations issued by individual government agencies. Parts 
1 to 69 in each of chapters 2 through 99 are reserved for agency 
regulations implementing the Federal acquisition regulations in chapter 
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 
through 99 contain agency regulations supplementing the Federal 
acquisition regulations.

    The OMB control numbers for the Federal Acquisition Regulations 
System appear in section 1.106 of chapter 1. For the convenience of the 
user section 1.106 is reprinted in the Finding Aids section of the 
second volume containing chapter 1 (parts 52 to 99).

    The first volume, containing chapter 1 (parts 1 to 51), includes an 
index to the Federal acquisition regulations.

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

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            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                 (This book contains chapters 15 to 28)

  --------------------------------------------------------------------
                                                                    Part

chapter 15--Environmental Protection Agency.................        1501

chapter 16--Office of Personnel Management Federal Employees 
  Health Benefits Acquisition Regulation....................        1601

chapter 17--Office of Personnel Management..................        1733

chapter 18--National Aeronautics and Space Administration...        1801

chapter 19--United States Information Agency................        1901

chapter 20--Nuclear Regulatory Commission...................        2001

chapter 21--Office of Personnel Management, Federal 
  Employees Group Life Insurance Federal Acquisition 
  Regulation................................................        2101

chapter 23--Social Security Administration..................        2301

chapter 24--Department of Housing and Urban Development.....        2401

chapter 25--National Science Foundation.....................        2501

chapter 28--Department of Justice...........................        2801

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               CHAPTER 15--ENVIRONMENTAL PROTECTION AGENCY




                          (Parts 1500 to 1599)

  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter 15 appear at 65 FR 
47325, Aug. 2, 2000.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1501            General.....................................           5
1502            Definition of words and terms...............           8
1503            Improper business practices and personal 
                    conflicts of interest...................           8
1504            Administrative matters......................          11
                   SUBCHAPTER B--ACQUISITION PLANNING
1505            Publicizing contract actions................          13
1506            Competition requirements....................          13
1508            Required sources of supply..................          14
1509            Debarment, suspension, and ineligibility....          15
1511            Describing agency needs.....................          21
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1513            Simplified acquisition procedures...........          23
1514            Sealed bidding..............................          23
1515            Contracting by negotiation..................          24
1516            Types of contracts..........................          31
1517            Special contracting methods.................          38
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1519            Small business programs.....................          39
1520            Labor surplus area concerns.................          42
1522            Application of labor laws to government 
                    acquisitions............................          42
1523            Environmental, conservation, occupational 
                    safety, and drug-free workplace.........          43
1524            Protection of privacy and freedom of 
                    information.............................          44

[[Page 4]]

1525            Foreign acquisition.........................          45
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1527            Patents, data, and copyrights...............          46
1529            Taxes.......................................          46
1530            Cost accounting standards...................          47
1531            Contract cost principles and procedures.....          47
1532            Contract financing..........................          47
1533            Protests, disputes and appeals..............          48
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1535            Research and development contracting........          50
1536            Construction and architect-engineer 
                    contracts...............................          51
1537            Service contracting.........................          53
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1542            Contract administration.....................          54
1545            Government property.........................          55
1546            Quality assurance...........................          56
1548

Value engineering [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
1552            Solicitation provisions and contract clauses          57
1553            Forms.......................................         113
                Appendix I to chapter 15....................         115

[[Page 5]]

                          SUBCHAPTER A--GENERAL

                           PART 1501--GENERAL

Sec.

Sec. 1501.000  Scope of part.

              Subpart 1501.1--Purpose, Authority, Issuance


Sec. 1501.101  Purpose.

Sec. 1501.104  Applicability.

Sec. 1501.105  Issuance.

Sec. 1501.105-1  Publication and code arrangement.

Sec. 1501.105-2  Arrangement of regulations.

Sec. 1501.105-3  Copies.

             Subpart 1501.3--Agency Acquisition Regulations


Sec. 1501.301  Policy.

Sec. 1501.370  OMB approvals under the Paperwork Reduction Act.

                       Subpart 1501.4--Deviations


Sec. 1501.401  Definition.

Sec. 1501.403  Individual deviations.

Sec. 1501.404  Class deviations

       Subpart 1501.6--Contracting Authority and Responsibilities


Sec. 1501.602-3  Ratification of unauthorized commitments.

Sec. 1501.603  Selection, appointment, and termination of appointment.

Sec. 1501.603-1  General.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8835, Mar. 8, 1984, unless otherwise noted.



Sec. 1501.000  Scope of part.

    The Federal Acquisition Regulation System brings together, in title 
48 of the Code of Federal Regulations, the acquisition regulations 
applicable to all executive agencies of the Government. This part 
establishes a system of Environmental Protection Agency (EPA) 
acquisition regulations, referred to as the EPAAR, for the codification 
and publication of policies and procedures of EPA which implement and 
supplement the Federal Acquisition Regulation (FAR).

              Subpart 1501.1--Purpose, Authority, Issuance



Sec. 1501.101  Purpose.

    This subpart establishes Chapter 15, the Environmental Protection 
Agency Acquisition Regulation (EPAAR), within Title 48, the Federal 
Acquisition Regulations System.

[60 FR 38505, July 27, 1995]



Sec. 1501.104  Applicability.

    The FAR (48 CFR chapter 1) and the EPAAR (48 CFR chapter 15) apply 
to all EPA acquisitions as defined in part 2 of the FAR, except where 
expressly excluded.

[62 FR 33572, June 20, 1997]



Sec. 1501.105  Issuance.



Sec. 1501.105-1  Publication and code arrangement.

    The EPAAR will be published in: (a) The Federal Register, (b) 
cumulated form in the Code of Federal Regulations (CFR), and (c) a 
separate loose-leaf form in a distinctive light blue color.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]



Sec. 1501.105-2  Arrangement of regulations.

    (a) References and citations. This regulation may be referred to as 
the Environmental Protection Agency Acquisition Regulation or the EPAAR. 
References to EPAAR materials shall be made in a manner similar to that 
prescribed by FAR 1.105-2(c).

[49 FR 8835, Mar. 8, 1984. Redesignated and amended at 62 FR 33572, June 
20, 1997]



Sec. 1501.105-3  Copies.

    Copies of the EPAAR in Federal Register and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office (GPO), Washington, DC 20402. Copies of loose-leaf EPAAR are 
distributed within EPA and may be obtained from

[[Page 6]]

the EPA Facilities and Support Services Division.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]

             Subpart 1503.3--Agency Acquisition Regulations



Sec. 1501.301  Policy.

    The EPAAR is prescribed by the Director, Office of Acquisition 
Management.

[49 FR 8835, Mar. 8, 1984, as amended at 59 FR 18976, Apr. 21, 1994]



Sec. Sec. 1501.370  OMB approvals under the Paperwork Reduction Act.

    The information collection activities contained in the EPAAR 
sections listed below have been approved by the Office of Management and 
Budget (OMB) and have been issued OMB numbers in accordance with section 
3504(h) of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et seq.

------------------------------------------------------------------------
                                                             OMB control
                      48 CFR citation                            No.
------------------------------------------------------------------------
  Specification, Standards and other Purchase Descriptions
 
1510.011-70 through 1510.011-72............................    2030-0005
1510.011-80 through 1510.011-81............................    2030-0023
Contract delivery or performance 1512.104..................    2030-0023
 
  Small Purchase and Other Simplified Purchase Procedures
 
1513.505 through 1513.570..................................    2030-0007
 
                     Contract Financing
 
1532.170(a)................................................    2030-0016
 
        Solicitation Provisions and Contract Clauses
 
1552.209-71................................................    2030-0023
1552.209-73 through 1552.209-74............................    2030-0023
1552.210-72................................................    2030-0005
1552.210-80................................................    2030-0023
1552.212-71................................................    2030-0023
1552.215-72 through 1552.215-76............................    2030-0006
1552.227-76................................................    2030-0023
------------------------------------------------------------------------


[59 FR 18619, Apr. 19, 1994, as amended at 59 FR 32134, June 22, 1994; 
61 FR 29316, June 10, 1996]

                       Subpart 1501.4--Deviations



Sec. 1501.401  Definition.

    A deviation to the EPAAR is defined in the same manner as a 
deviation to the FAR (see FAR 1.401).

[49 FR 8835, Mar. 9, 1984; 49 FR 24734, June 15, 1984]



Sec. 1501.403  Individual deviations.

    Requests for individual deviations from the FAR and the EPAAR shall 
be submitted to the Head of the Contracting Activity (HCA) for approval. 
Requests submitted shall cite the specific part of the FAR or EPAAR from 
which it is desired to deviate, shall set forth the nature of the 
deviation(s), and shall give the reasons for the action requested.

[65 FR 37291, June 14, 2000]



Sec. 1501.404  Class deviations.

    Requests for class deviations to the FAR and the EPAAR shall be 
submitted to the HCA for processing in accordance with FAR 1.404 and 
this section. Requests shall include the same type of information 
prescribed in 1501.403 for individual deviations.

[67 FR 5072, Feb. 4, 2002]

       Subpart 1501.6--Contracting Authority and Responsibilities



Sec. 1501.602-3  Ratification of unauthorized commitments.

    (a) Applicability. The provisions of this section apply to all 
unauthorized commitments, whether oral or written and without regard to 
dollar value. Examples of unauthorized commitments are;
    (1) Ordering supplies or services by an individual without 
contracting authority;
    (2) Unauthorized direction of work through assignment of orders or 
tasks;
    (3) Unauthorized addition of new work;
    (4) Unauthorized direction of contractors to subcontract with 
particular firms; or
    (5) Any other unauthorized direction which changed the terms and 
conditions of the contract.
    (b)(1) Ratification Approval. The Chief of the Contracting Office 
(CCO) is delegated authority to be the ratifying official. In order to 
act as the ratifying official, a CCO must have delegated contracting 
officer authority. A CCO cannot approve a ratification if he/she acted 
as a contracting officer in preparing the determination and findings

[[Page 7]]

required under paragraph (c)(3) of this section.
    (2) The CCOs defined in 1502.100 for purposes of ratification 
authority only must meet the following criteria:
    (i) Must possess a contracting officer's warrant and be in the 1102 
job series;
    (ii) Are prohibited from re-delegating their ratification authority;
    (iii) Must submit copies of ratification actions to the cognizant 
Office of Acquisition Management Division Director at Headquarters; and
    (iv) As with other ratifying officials, must abide by the other 
limitations on ratification of unauthorized commitments set forth in FAR 
1.602-3(c) and the EPAAR.
    (c) Procedures. (1) The program office shall notify the cognizant 
contracting office by memorandum of the circumstances surrounding an 
unauthorized commitment. The notification shall include:
    (i) All relevant documents and records;
    (ii) Documentation of the necessity for the work and benefit derived 
by the Government;
    (iii) A statement of the delivery status of the supplies or services 
associated with the unauthorized commitment;
    (iv) A list of the procurement sources solicited (if any) and the 
rationale for the source selected;
    (v) If only one source was solicited, a justification for other than 
full and open competition (JOFOC) as required by FAR 6.302, FAR 6.303, 
and 1506.303, or for simplified acquisition procedures exceeding the 
competition threshold in FAR 13.106, a sole source justification as 
required by 1513.170;
    (vi) A statement of steps taken or proposed to prevent reoccurrence 
of any unauthorized commitment.
    (2) The Division Director (or equivalent) of the responsible office 
shall approve the memorandum. If expenditure of funds is involved, the 
program office shall include a Procurement Request/Order, EPA Form 1900-
8, with funding sufficient to cover the action. The appropriation data 
cited on the 1900-8 shall be valid for the period in which the 
unauthorized commitment was made.
    (3) Upon receiving the notification, the Contracting Officer shall 
prepare a determination and findings regarding ratification of the 
unauthorized commitment for the ratifying official. The determination 
and findings shall include sufficient detail to support the recommended 
action. If ratification of the unauthorized commitment is recommended, 
the determination and findings shall include a determination that the 
price is fair and reasonable. To document the determination, additional 
information may be required from the Contractor. Concurrence by the 
Office of General Counsel is not mandatory, but shall be sought in 
difficult or unusual cases.
    (4) The ratifying official may inform the Inspector General (IG) of 
the action by memorandum through the Head of the Contracting Activity 
(HCA). For ratification actions exceeding the small purchase limitation, 
the ratifying official shall submit a memorandum to the Assistant 
Administrator for Administration and Resources Management through the 
HCA for transmittal to the Assistant, Associate, or Regional 
Administrator (or equivalent level) of the person responsible for the 
unauthorized commitment. This memorandum should contain a brief 
description of the circumstances surrounding the unauthorized 
commitment, recommend corrective action, and include a copy of any 
memorandum sent to the IG. Submission of a memorandum to the appropriate 
Assistant, Associate, or Regional Administrator for unauthorized 
commitments at or below the small purchase limitation is optional and 
may be accomplished at the discretion of the ratifying official.
    (d) Paid Advertisements. (1) EPA is generally not authorized to 
ratify improperly ordered paid advertisements. The ratifying official, 
however, may determine payment is proper subject to the limitations in 
FAR 1.602-3(c) if the individual responsible for the unauthorized 
commitment acted in good faith to comply with Agency acquisition 
policies and procedures.
    (2) The paying office shall forward invoice claims received in its 
office for improper paid advertisements to the

[[Page 8]]

cognizant ratifying official for a determination regarding ratification 
of the action.
    (3) If the ratifying official determines that an unauthorized 
commitment cannot be ratified by the Agency, the ratifying official 
shall instruct the submitter to present its claim to the General 
Accounting Office in accordance with the instructions contained in 4 CFR 
part 31, Claims Against the United States, General Procedures.
    (e) Payment of Properly Ratified Claims. After the unauthorized 
commitment is ratified, the Contractor must submit an invoice (or 
resubmit an invoice if one was previously submitted) citing the 
appropriate contract or purchase order number.

[55 FR 18340, May 2, 1990, as amended at 59 FR 18976, Apr. 21, 1994; 60 
FR 38505, July 27, 1995; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 
20, 1997; 65 FR 37291, June 14, 2000; 65 FR 80792, Dec. 22, 2000; 67 FR 
5072, Feb. 4, 2002]



Sec. 1501.603  Selection, appointment, and termination of appointment.



Sec. 1501.603-1  General.

    EPA Contracting Officers shall be selected and appointed and their 
appointments terminated in accordance with the Contracting Officer 
warrant program specified in chapter 8 of the EPA ``Contracts Management 
Manual.''

                PART 1502--DEFINITION OF WORDS AND TERMS

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

                       Subpart 1502.1--Definitions



Sec. 1502.100  Definitions.

    Chief of the Contracting Office (CCO) means the Office of 
Acquisition Management Division Directors at Headquarters, Research 
Triangle Park and Cincinnati. For purposes of ratification authority 
only, CCO is also defined as Regional Contracting Officer Supervisors 
and Office of Acquisition Management Service Center Managers. (See 
1501.602-3(b)(2) for the criteria for this ratification authority).
    Head of the Contracting Activity (HCA) means the Director, Office of 
Acquisition Management.
    Senior Procurement Executive (SPE) means the Director, Office of 
Acquisition Management.

[67 FR 5072, Feb. 4, 2002]

    PART 1503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

Sec.

Sec. 1503.000  Scope of part.

                       Subpart 1503.1--Safeguards


Sec. 1503.101-370  Personal conflicts of interest.

Sec. 1503.104-5  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]

                     Subpart 1503.4--Contingent Fees


Sec. 1503.408  Evaluation of the SF 119.

  Subpart 1503.5--Contractor Responsibility to Avoid Improper Business 
                                Practices


Sec. 1503.500-70  Policy.

Sec. 1503.500-71  Procedures.

Sec. 1503.500-72  Contract clause.

  Subpart 1503.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 1503.600-70  Scope of subpart.

Sec. 1503.600-71  Definitions.

Sec. 1503.601  Policy.

Sec. 1503.602  Exceptions.

Sec. 1503.670  Solicitation disclosure provision.

   Subpart 1503.9--Whistle Blower Protections for Contractor Employees


Sec. 1503.905  Procedures for investigating complaints.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8837, Mar. 8, 1984, unless otherwise noted.



Sec. 1503.000  Scope of part.

    This part implements FAR part 3, cites EPA regulations on employee 
responsibilities and conduct, establishes

[[Page 9]]

responsibility for reporting violations and related actions, and 
provides for authorization of exceptions to policy.

                       Subpart 1503.1--Safeguards

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



Sec. 1503.101-370  Personal conflicts of interest.

    (a) Each EPA employee (including special employees) engaged in 
source evaluation and selection is required to be familiar with the 
provisions of 40 CFR part 3 regarding personal conflicts of interest. 
The employee shall inform the Source Selection Authority (SSA) in 
writing if his/her participation in the source evaluation and selection 
process could be interpreted as a possible or apparent conflict of 
interest. The SSA will consult with appropriate Agency officials prior 
to the SSA's determination. The SSA shall relieve any EPA employee who 
has a conflict of interest of further duties in connection with the 
evaluation and selection process.
    (b) Each EPA employee (including special employees, as defined by 
1503.600-71(b)) involved in source evaluation and selection is required 
to comply with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.



Sec. 1503.104-5  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

    (a)(1) The Chief of the Contracting Office (CCO) is the designated 
official to make the decision whether support contractors are used in 
proposal evaluation (as authorized at FAR 15.305(c) and as restricted at 
FAR 37.203(d)).
    (2) The following written certification and agreement shall be 
obtained from the non-Government evaluator prior to the release of any 
proposal to that evaluator:

        ``Certification on the Use and Disclosure of Proposals''

RFP :__________________________________________________________
Offeror:________________________________________________________________
    1. I hereby certify that to the best of my knowledge and belief, no 
conflict of interest exists that may diminish my capacity to perform an 
impartial, technically sound, objective review of this proposal(s) or 
otherwise result in a biased opinion or unfair competitive advantage.
    2. I agree to use any proposal information only for evaluation 
purposes. I agree not to copy any information from the proposal(s), to 
use my best effort to safeguard such information physically, and not to 
disclose the contents of nor release any information relating to the 
proposal(s) to anyone outside of the evaluation team assembled for this 
acquisition or individuals designated by the contracting officer.
    3. I agree to return to the Government all copies of proposals, as 
well as any abstracts, upon completion of the evaluation.

________________________________________________________________________
Name and Organization)

________________________________________________________________________
(Date of Execution)

                          (End of Certificate)

    (b) Information contained in proposals will be protected and 
disclosed to the extent permitted by law, and in accordance with FAR 
3.104-5, 15.207, and Agency procedures at 40 CFR part 2.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]

                     Subpart 1503.4--Contingent Fees



Sec. 1503.408  Evaluation of the SF 119.

  Subpart 1503.5--Contractor Responsibility to Avoid Improper Business 
                                Practices

    Source: 65 FR 57103, Sept. 21, 2000, unless otherwise noted.



Sec. 1503.500-70  Policy.

    Government contractors must conduct themselves with the highest 
degree of integrity and honesty. Contractors should have standards of 
conduct and internal control systems that:
    (a) Are suitable to the size of the company and the extent of their 
involvement in Government contracting.
    (b) Promote such standards.

[[Page 10]]

    (c) Facilitate timely discovery and disclosure of improper conduct 
in connection with Government contracts, and
    (d) Ensure corrective measures are promptly instituted and carried 
out.



Sec. 1503.500-71  Procedures.

    (a) A contractor's system of management controls should provide for:
    (1) A written code of business ethics and conduct and an ethics 
training program for all employees;
    (2) Periodic reviews of company business practices, procedures, 
policies and internal controls for compliance with standards of conduct 
and the special requirements of Government contracting;
    (3) A mechanism, such as a hotline, by which employees may support 
suspected instances of improper conduct, and instructions that encourage 
employees to make such reports;
    (4) Internal and/or external audits, as appropriate.
    (5) Disciplinary action for improper conduct;
    (6) Timely reporting to appropriate Government officials of any 
suspected or possible violation of law in connection with Government 
contracts or any other irregularities in connection with such contracts; 
and
    (7) Full cooperation with any Government agencies responsible for 
either investigation or corrective actions.
    (b) Contractors who are awarded an EPA contract of $1 million or 
more must display EPA Office of Inspector General Hotline Posters unless 
the contractor has established an internal reporting mechanism and 
program, as described in paragraph (a) of this section.



Sec. 1503.500-72  Contract clause.

    As required by EPAAR 1503.500-71(b), the contracting officer shall 
insert the clause at 1552.203-71, Display of EPA Office of Inspector 
General Hotline Poster, in all contracts valued at $1,000,000 or more, 
including all contract options.

  Subpart 1503.6--Contracts with Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1503.600-70  Scope of subpart.

    This subpart implements and supplements FAR subpart 3.6 and sets 
forth EPA policy and procedures for identifying and dealing with 
conflicts of interest and improper influence or favoritism in connection 
with contracts involving current or former EPA employees. This subpart 
does not apply to agreements with other departments or agencies of the 
Federal Government, nor to contracts awarded to State or local units of 
Government.



Sec. 1503.600-71  Definitions.

    (a) Regular employee means any officer or employee of EPA who is 
employed or appointed, with or without compensation, to serve more than 
130 days during any period of 365 consecutive days, including regular 
officers of the Public Health Service Commissioned Corps and reserve 
officers of the Public Health Service Commissioned Corps while on active 
duty.
    (b) Special employee means an officer or employee of EPA who is 
retained, designated, appointed or employed to perform, with or without 
compensation, temporary duties either on a full-time or intermittent 
basis for not more that 130 days during any period of 365 consecutive 
days and who actually served more than 60 days during such 365-day 
period.



Sec. 1503.601  Policy.

    (a) No contract may be awarded without competition to a former 
regular or special EPA employee (or to a business concern or other 
organization owned or substantially owned or controlled by a former 
employee) whose employment terminated within 365 calendar days before 
submission of a proposal to EPA.
    (b) No contract shall be awarded without competition to a firm which 
employs, or proposes to employ, a current regular or special EPA 
employee

[[Page 11]]

or a former EPA regular or special employee whose employment terminated 
within 365 calendar days before submission of a proposal to EPA, if 
either of the following conditions exits:
    (1) The current or former EPA regular or special employee is or was 
involved in development or negotiating the proposal for the prospective 
contractor.
    (2) The current or former EPA regular or special employee will be 
involved directly or indirectly in the management, administration, or 
performance of the contract.



Sec. 1503.602  Exceptions.

    The Assistant Administrator for Administration and Resources 
Management may authorize an exception, in writing, to the policy in FAR 
3.601 and 1503.601 for the reasons stated in FAR 3.602, if the exception 
would not involve a violation of 18 U.S.C. 203, 18 U.S.C. 205, 18 U.S.C. 
207, 18 U.S.C. 208, or EPA regulations at 40 CFR part 3. The Assistant 
Administrator shall consult with the Designated Agency Ethics Official 
before authorizing any exceptions.

[60 FR 38505, July 27, 1995]



Sec. 1503.670  Solicitation of disclosure provision.

    The Contracting Officer shall insert the provision at 1552.203-70, 
Current/Former Agency Employee Involvement Certification, in all 
solicitations for sole source acquisitions.

[50 FR 14357, Apr. 11, 1985]

   Subpart 1503.9--Whistle Blower Protections for Contractor Employees



Sec. 1503.905  Procedures for investigating complaints.

    The Assistant Administrator for Administration and Resources 
Management is designated as the recipient of the written report of 
findings by the Inspector General. The Assistant Administrator shall 
ensure that the report of findings is disseminated in accordance with 
FAR 3.905(c).

[61 FR 57337, Nov. 6, 1996]

                    PART 1504--ADMINISTRATIVE MATTERS

                   Subpart 1504.6--Contract Reporting


Sec. 1504.670  Business ownership representation.

                     Subpart 1504.8--Contract Files

Sec.

Sec. 1504.804  Closeout of contract files.

Sec. 1504.804-5  Detailed procedures for closing out contract files.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); 41 U.S.C. 418b.

    Source: 49 FR 28246, July 11, 1984, unless otherwise noted.

                   Subpart 1504.6--Contract Reporting



Sec. 1504.670  Business Ownership Representation.

    Contracting officers shall insert the clause at 1552.204-70, 
Business Ownership Representation, in solicitations and contracts with 
an estimated dollar value greater than the simplified acquisition 
threshold. Completion of the clause by the successful awardee is 
voluntary.

[65 FR 75866, Dec. 5, 2000]

                     Subpart 1504.8--Contract Files



Sec. 1504.804  Closeout of contract files.



Sec. 1504.804-5  Detailed procedures for closing out contract files.

    In addition to those procedures set forth in FAR 4.804-5, the 
contracting office shall, before final payment is made under a cost 
reimbursement type contract, verify the allowability, allocability, and 
reasonableness of costs claimed. Verification of total costs incurred 
should be obtained from the Office of Audit through the cost advisory 
group at the contracting office in the form of a final audit report. 
Similar verification of actual costs shall be made for other contracts 
when cost incentives, price redeterminations, or cost-reimbursement 
elements are involved. Termination settlement proposals shall be 
submitted to the cost advisory group at the contracting office for 
review by the Office of Audit

[[Page 12]]

as prescribed by FAR 49.107. All such audits will be coordinated through 
the cost advisory group in the contracting office. Exceptions to these 
procedures are the quick close-out procedures as described in FAR 42.708 
and Unit 2 of the EPA Acquisition Handbook.

[49 FR 28246, July 11, 1984, as amended at 63 FR 46899, Sept. 3, 1998]

[[Page 13]]

                   SUBCHAPTER B--ACQUISITION PLANNING

                 PART 1505--PUBLICIZING CONTRACT ACTIONS

Sec.

Sec. 1505.000  Scope of part.

          Subpart 1505.2--Synopses of Proposed Contract Actions


Sec. 1505.202  Exceptions.

Sec. 1505.203  Publicizing and response time.

Sec. 1505.271  [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8838, Mar. 8, 1984, unless otherwise noted.



Sec. 1505.000  Scope of part.

    This part provides instructions on publicizing contract 
opportunities and response time, instructions on information to include 
in the synopses of proposed contracts, instructions on publicizing 
orders under GSA schedule contracts, policy references relative to 
release of information, and procedures for obtaining information on 
previous Government contracts.

[50 FR 14357, Apr. 11, 1985]

          Subpart 1505.2--Synopses of Proposed Contract Actions



Sec. 1505.202  Exceptions.

    The Contracting Officer need not submit the notice required by FAR 
5.201 when the Contracting Officer determines in writing that the 
contract is for the services of experts for use in preparing or 
prosecuting a civil or criminal action under the Superfund Amendments 
and Reauthorization Act of 1986.

[60 FR 38505, July 27, 1995]



Sec. 1505.203  Publicizing and response time.

    (a) The Contracting Officer may, at his/her discretion under certain 
circumstances, elect to transmit a synopsis to the Commerce Business 
Daily (CBD) of a proposed contract action that falls within an exception 
to the synopsis requirement in FAR 5.202(a). For those contract actions, 
the Contracting Officer may provide for a lesser time period than the 15 
days required by FAR 5.203(a) and the 30 days required by FAR 5.203 (c) 
or (d), and the 45 days required by FAR 5.203(e). The Contracting 
Officer must identify the basis for the lesser time periods for response 
in the synopsis.
    (b) The authority for paragraph (a) does not extend to the synopsis 
of contract actions falling within the exception in FAR 5.202(a)(7), if 
to do so would disclose the originality of thought or innovativeness of 
the proposed research.

[50 FR 14357, Apr. 11, 1985, as amended at 62 FR 33572, June 20, 1997]



Sec. 1505.271  [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]

                   PART 1506--COMPETITION REQUIREMENTS

Sec.

Sec. 1506.000  Scope of part.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]

          Subpart 1506.3--Other Than Full and Open Competition


Sec. 1506.302-5  Authorized or required by statute.

Sec. 1506.303-2  Content.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 50 FR 14357, Apr. 11, 1985, unless otherwise noted.



Sec. 1506.000  Scope of part.

    This part implements FAR part 6. It prescribes the Environmental 
Protection Agency policies and procedures in

[[Page 14]]

obtaining full and open competition in the acquisition process.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]

          Subpart 1506.3--Other Than Full and Open Competition



Sec. 1506.302-5  Authorized or required by statute.

    (a) Authority. Section 109(e) of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA) is cited as authority.
    (b) Application. (1) The contracting officer may use other than full 
and open competition to acquire the services of experts for use in 
preparing or prosecuting a civil or criminal action under SARA whether 
or not the expert is expected to testify at trial. The contracting 
officer need not prepare the written justification under FAR 6.303 when 
acquiring expert services under the authority of section 109(e) of SARA. 
The contracting officer shall document the official contract file when 
using this authority.
    (2) The contracting officer shall give notice to the Agency's 
Competition Advocate whenever a contract award is made using other than 
full and open competitition under this authority. The notice shall 
contain a copy of the contract and the summary of negotiations.

[53 FR 31872, Aug. 22, 1988]



Sec. 1506.303-2  Content.

    The documentation requirements in this section apply only to 
acquisitions processed using other than small purchase procedures. 
(Refer to 1513.170 for documentation for small purchase acquisitions).
    (a) The initiating office shall prepare a written justification for 
other than full and open competition (JOFOC) that documents the facts 
and circumstances substantiating the infeasibility of full and open 
competition for each recommended limited sources or sole source 
acquisition when required by FAR 6.302.
    (b) The recommendation shall be entitled ``Justification for Other 
Than Full and Open Competition'' and shall be signed at the programmatic 
Division Director or comparable office level prior to submission with 
the procurement request. The JOFOC shall contain the information 
prescribed in FAR 6.303-2 (a) and (b).
    (c) If unusual and compelling urgency (see FAR 6.303-2) is a basis 
for the JOFOC, then the following applies. Explain the circumstances 
that led to the need for an urgent contractual action. Explain why the 
requirement could not have been processed in sufficient time to permit 
full and open competition. It should be noted that the existence of 
legislation, court order, or Presidential mandate is not, of itself, a 
sufficient basis for a JOFOC. However, the circumstances necessitating 
legislation, court order, or Presidential mandate may justify 
contractual action on an other than full and open competition basis.
    (d) If the proposed acquisition has been synopsized in accordance 
with the applicable requirements in FAR subpart 5.2, the Contracting 
Officer must incorporate the evaluation of responses to the synopsis in 
the JOFOC. (See 1506.371(d) for contents of the evaluation document).

[50 FR 14357, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985]

                  PART 1508--REQUIRED SOURCES OF SUPPLY

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

      Subpart 1508.8--Acquisition of Printing and Related Supplies



Sec. 1508.870  Contract clause.

    Contracting Officers shall insert the contract clause at 1552.208-
70, Printing, in all contracts which require printing, duplication, 
binding, reproduction, and related services and are subject to the 
provisions of the Government Printing and Binding Regulations published 
by the Joint Committee on Printing, Congress of the United States.

[49 FR 8838, Mar. 8, 1984]

[[Page 15]]

                  PART 1509--CONTRACTOR QUALIFICATIONS

Sec.

Sec. 1509.000  Scope of part.

           Subpart 1509.1--Responsible Prospective Contractors


Sec. 1509.105  Procedures.

          Subpart 1509.170--Contractor Performance Evaluations


Sec. 1509.170-1  Scope of subpart.

Sec. 1509.170-2  Purpose.

Sec. 1509.170-3  Applicability.

Sec. 1509.170-4  Definitions.

Sec. 1509.170-5  Policy.

Sec. 1509.170-6  Filing of forms.

Sec. 1509.170-7  Release of ratings.

Sec. 1509.170-8  Contractor Performance Report.

         Subpart 1509.4--Debarment, Suspension and Ineligibility


Sec. 1509.403  Definitions.

Sec. 1509.406  Debarment.

Sec. 1509.406-3  Procedures.

Sec. 1509.407  Suspension.

Sec. 1509.407-3  Procedures.

          Subpart 1509.5--Organizational Conflicts of Interest


Sec. 1509.500  Scope of subpart.

Sec. 1509.502  Applicability.

Sec. 1509.503  Waiver.

Sec. 1509.505-4  Obtaining access to proprietary information.

Sec. 1509.505-70  Information sources.

Sec. 1509.507-1  Solicitation provisions.

Sec. 1509.507-2  Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8839, Mar. 8, 1984, unless otherwise noted.



Sec. 1509.000  Scope of part.

    This part implements FAR part 9 and provides policy and procedures 
pertaining to contractor's responsibility; debarment, suspension, and 
ineligibility; and organizational conflicts of interest.

           Subpart 1509.1--Responsible Prospective Contractors



Sec. 1509.105  Procedures.

          Subpart 1509.170--Contractor Performance Evaluations



Sec. 1509.170-1  Scope of subpart.

    This subpart establishes EPA policy and procedures for evaluation of 
contractor performance. Contracting officers shall insert the contract 
clause at 1552.209-76 in all solicitations and contracts with an 
estimated dollar value in excess of $100,000. For acquisitions involving 
options, the total estimated value of the acquisition shall include the 
estimated base amount plus the option(s) amount(s).

[49 FR 8839, Mar. 8, 1984, as amended at 64 FR 20202, Apr. 26, 1999]



Sec. 1509.170-2  Purpose.

    This subpart provides guidance to program and contracting personnel 
regarding the evaluation of contractor performance. It establishes a 
uniform method for determining and recording the effectiveness of 
contractors in meeting contractual obligations. Additionally, this 
subpart details a systematic approach for identifying and maintaining 
records of contractors' performance histories.

[64 FR 20203, Apr. 26, 1999]



Sec. 1509.170-3  Applicability.

    (a) This subpart applies to all EPA acquisitions in excess of 
$100,000, except for construction acquisitions, architect-engineer 
acquisitions, acquisitions awarded under the Federal Acquisition 
Regulation (FAR) Subpart 8.6, Acquisitions from Federal Prison 
Industries, Incorporated, FAR Subpart 8.7, Acquisitions from Nonprofit 
Agencies Employing People Who Are Blind or Severely Disabled, and FAR 
13.5, Test Program for Certain Commercial Items. FAR 36.201 and 36.604 
provide detailed instructions for construction

[[Page 16]]

and architect-engineer contractor performance evaluations.
    (b) The acquisition of commercial items in accordance with FAR 
13.106 is not applicable to this subpart because simplified acquisition 
procedures do not require the creation or existence of a formal database 
for past performance evaluations. In cases where simplified acquisition 
procedures are not used to acquire commercial items (see FAR 12.203), 
this subpart is applicable to acquiring commercial items in excess of 
$100,000.
    (c) EPA Form 1900-26, Contracting Officer's Evaluation of Contractor 
Performance, and EPA Form 1900-27, Project Officer's Evaluation of 
Contractor Performance, shall apply to all performance evaluations 
completed prior to the effective date of this subpart. However, on the 
effective date of this rule, EPA Forms 1900-26 and 1900-27 are obsolete, 
and contracting officers shall complete all contractor performance 
evaluations by use of the National Institutes of Health's Contractor 
Performance System.

[64 FR 20203, Apr. 26, 1999]



Sec. 1509.170-4  Definitions.

    (a) Contractor Performance Report is an evaluation of a contractor's 
performance for a specified period of time.
    (b) Interim Report refers to a Contractor Performance Report that 
covers each 12 month period after the effective date of contract.
    (c) Final Report refers to a Contractor Performance Report that 
covers the last 12 months (or less) of contract performance.
    (d) Ratings refer to the numerical scores for each performance 
category. Ratings are defined as follows: 0 = unsatisfactory, 1 = poor, 
2 = fair, 3 = good, 4 = excellent, and 5 = outstanding.
    (e) Summary ratings refer to the ratings determined by one level 
above the contracting officer regarding disagreements between the 
contractor and the contracting officer. Summary ratings reflect the 
Agency's ultimate conclusion for the performance period being evaluated.
    (f) Performance Categories refer to the measures used to evaluate a 
contractor's performance. Performance categories are defined as quality, 
cost control, timeliness of performance, and business relations.

[64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999]



Sec. 1509.170-5  Policy.

    (a) Contracting officers are responsible for the timely completion 
of contractors' performance evaluations. The National Institutes of 
Health Contractor Performance System shall be used to record individual 
contractor performance histories on EPA contracts and to obtain 
contractor past performance information for use in EPA's source 
selection process.
    (b) Contracting officers are required to use the National Institutes 
of Health Contractor Performance System to record evaluations for all 
contract performance periods expiring after the effective date of this 
subpart.
    (c) Contractor evaluation information shall be recorded in 
Contractor Performance Reports (Report) which are generated by the 
National Institutes of Health system. Reports shall cover individual 
contractor evaluations at the contract level, which includes all work 
assignments, task orders, or delivery orders associated with the 12 
month period being evaluated (interim Report) or the last 12 months (or 
less) of contract performance (final Report).
    (d) The contracting officer must complete interim Reports covering 
each 12 month period after the effective date of contract for all 
contracts in excess of $100,000, except those acquisitions identified in 
1509.170-3, Applicability. In addition to interim Reports, the 
contracting officer must complete a final Report which covers the last 
12 months (or less) of contract performance.
    (e) The contracting officer shall initiate the process for 
completing interim Reports within five (5) business days after the end 
of each 12 months of contract performance. The contracting officer shall 
initiate the process for completing a final Report within five (5) 
business days after the end of the last 12 months (or less) of contract 
performance. Final Reports must be completed prior to contract closeout.
    (f) The contracting officer must complete interim and final Reports, 
including the project officer's evaluation of

[[Page 17]]

contractor performance, receipt of any contractor input, and resolution 
of summary ratings (if any) within 90 business days from the date the 
contracting officer initiates the evaluation.
    (g) Reports shall be used to inform other agencies and departments 
(upon request) about a contractor's performance on an EPA contract, and 
to assist the contracting officer and the Technical Evaluation Panel 
with evaluating past performance for future EPA acquisitions.
    (h) When evaluating proposals, contracting officers shall use the 
National Institutes of Health system to access Reports from other 
agencies or departments that are available in the National Institutes of 
Health database. Contracting Officers may need to access past 
performance information from other than the National Institutes of 
Health system if the National Institutes of Health system does not 
include applicable information.
    (i) In accordance with FAR 42.1503(b), the ultimate conclusion on 
the performance evaluation is the decision of the Agency. The 
contracting officer must ensure the accuracy of ratings for each 
performance category by verifying that information in the contract file 
corresponds with the project officer's designated ratings. A 
contractor's performance evaluation should closely parallel award fee 
determinations made under the contract.
    (j) In cases of novations involving successors-in-interest, a final 
evaluation of the predecessor contractor must be completed within five 
(5) business days after the end of the predecessor contractor's 
performance, and an interim evaluation of the successor contractor must 
be completed within five (5) business days after the end of each 12 
months of contract performance after the successor began performing. In 
cases of change-of-name agreements, the system shall be changed to 
reflect the new contractor's name.
    (k) Contracting officers must inform the Office of Debarment and 
Suspension of any repetitive unsatisfactory or poor (a score of 0 or 1) 
ratings encountered by the contractor.

[64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999]



Sec. 1509.170-6  Filing of forms.

    The original copy of completed Contractor Performance Reports 
(interim and final) shall be filed in each individual contractor's 
official contract file. The National Institutes of Health Contractor 
Performance System will retain all reports for three (3) years after 
contract completion.

[64 FR 20204, Apr. 26, 1999]



Sec. 1509.170-7  Release of ratings.

    (a) Agencies and departments who subscribe to the National 
Institutes of Health's Contractor Performance System will have direct 
access to all Reports, including those of EPA, in the National 
Institutes of Health's database. Information on EPA contractors' 
performance ratings may also be obtained by contacting the EPA 
contracting officer responsible for the evaluation.
    (b) Contractors' performance ratings may be released to other 
Federal, State, and local Governments upon written request. The release 
to other Federal, State, and local Governments must stipulate that the 
information provided shall not be released outside of the requesting 
Government agency. In cases where the Federal agency is part of the 
National Institutes of Health Contract Performance System, a written 
request is not applicable.
    (c) Freedom of Information Act requests shall be processed by the 
EPA Freedom of Information Act office where the contract is located. 
Requests for past performance evaluations during the period the 
information may be used to provide source selection information shall be 
rejected if the requests are made by other than the Government personnel 
and the contractor whose performance is being evaluated.

[64 FR 20204, Apr. 26, 1999]



Sec. 1509.170-8  Contractor Performance Report.

    (a) Contractor Performance Reports (interim and final) must be 
prepared electronically by use of the National Institutes of Health's 
Contractor Performance System. Hard copy preparation of Reports shall 
not be used unless specifically instructed by the National

[[Page 18]]

Institutes of Health. The National Institutes of Health will provide 
EPA's Office of Acquisition Management Internal Oversight Service Center 
with specific instructions if hard copy use becomes necessary.
    (b) A copy of the National Institutes of Health Contractor 
Performance Report (including instructions) shall be included in each 
solicitation and contract with an estimated value in excess of $100,000.

[64 FR 20204, Apr. 26, 1999]

         Subpart 1509.4--Debarment, Suspension and Ineligibility

    Source: 65 FR 37291, June 14, 2000, unless otherwise noted.



Sec. 1509.403  Definitions.

    The ``Debarring Official'' and the ``Suspending Official'' as 
defined in FAR 9.403 is a designated individual located in the Office of 
Grants and Debarment. This Agency official is authorized to make the 
determinations and provide the notifications required under FAR subpart 
9.4 or this subpart, except for the determinations required by FAR 
9.405-1(a) which are to be made by the Head of the Contracting Activity. 
All compelling reason determinations to be made by the Debarring or 
Suspending Official under FAR subpart 9.4 or this subpart will be made 
only after coordination and consultation with the Head of the 
Contracting Activity. See also 40 CFR part 32.



Sec. 1509.406  Debarment.



Sec. 1509.406-3  Procedures.

    (a) Investigation and referral--(1) Contracting officer 
responsibility. (i) When contracting personnel discover information 
which indicates that a cause for debarment may exist, they shall 
promptly report such information to the cognizant Chief of the 
Contracting Office (CCO). Purchasing agents in simplified acquisition 
activities which do not come under the direct cognizance of a CCO shall 
report such information by memorandum, through their immediate 
supervisor, and addressed to the cognizant CCO responsible for their 
office's contract acquisitions.
    (ii) Contracting officers shall review ``The List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' to 
ensure that the Agency does not solicit offers from, award contracts to, 
or consent to subcontracts with listed contractors.
    (2) Chief of the Contracting Office responsibility. When the Chief 
of the Contracting Office determines that sufficient information is 
available to indicate that a cause for debarment may exist, such 
information shall be promptly reported by memorandum to the HCA. The 
memorandum provides the Chief of the Contracting Office's assessment of 
the information, any investigative report or audit, and any additional 
information he/she has discovered.
    (3) HCA responsibility. Upon receipt of a report of a suspected 
debarment situation, the HCA shall take the following actions:
    (i) Notify the Director, Suspension and Debarment Division, that 
investigation of a potential debarment has been initiated.
    (ii) Review the reported information.
    (iii) Investigate as necessary to verify or develop additional 
information.
    (iv) Refer the matter through the Suspension and Debarment Division 
to the Debarring Official for consideration of debarment; request that 
the Suspension and Debarment Division evaluate the information and, if 
appropriate, refer the matter to the Debarring Official for 
consideration of debarment; or recommend to the Suspension and Debarment 
Division that the matter be closed without further action because the 
facts do not warrant debarment.
    (v) Obtain legal counsel's opinion on referrals or recommendations 
made to the Debarring Official.
    (vi) Notify EPA Contracting Officers of those Contractors who are 
ineligible for solicitation, award, or subcontracting but who do not 
appear on the GSA Consolidated List; e.g., those who are ineligible 
based on a settlement reached by the Debarring Official under which the 
Contractor has agreed to

[[Page 19]]

voluntarily exclude itself from participation in Government contracting/
subcontracting for a specified period or because of a Notice of Proposal 
to Debar.
    (4) Any official. When information is discovered which may indicate 
potential criminal or civil fraud activity, such information must be 
referred promptly to the EPA Office of Inspector General.
    (5) Debarring Official's responsibility. The Debarring Official 
shall:
    (i) Review referrals from the HCA together with the HCA's 
recommendations, if any, and determine whether further consideration by 
the Debarring Official is warranted and take such actions as are 
required by FAR subpart 9.4;
    (ii) Obtain the HCA's recommendation prior to reaching a voluntary 
exclusion settlement with a Contractor in lieu of debarment;
    (iii) Promptly notify the HCA of Contractors with whom a settlement 
in lieu of debarment has been reached under which the Contractor 
voluntarily excludes itself from or restricts its participation in 
Government contracting/subcontracting for a specified period; and of 
Contractors who have received a Notice of Proposal to Debar.
    (b) [Reserved]



Sec. 1509.407  Suspension.



Sec. 1509.407-3  Procedures.

    The procedures prescribed in 1509.406-3(a) shall be followed under 
conditions which appear to warrant suspension of a Contractor.

          Subpart 1509.5--Organizational Conflicts of Interests



Sec. 1509.500  Scope of subpart.

    This subpart establishes EPA policy and procedures for identifying, 
evaluating, and resolving organizational conflicts of interest. EPA's 
policy is to avoid, neutralize, or mitigate organizational conflicts of 
interest. If EPA is unable to neutralize or mitigate the effects of a 
potential conflict of interest, EPA will disqualify the prospective 
contractor or will terminate the contract when potential or actual 
conflicts are identified after award.

[49 FR 8839, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1509.502  Applicability.

    This subpart applies to all EPA contracts except agreements with 
other Federal agencies. However, this subpart applies to contracts with 
the Small Business Administration (SBA) under the 8(a) program.



Sec. 1509.503  Waiver.

    The Head of the Contracting Activity may waive any general rule or 
procedure of this subpart by determining that its application in a 
particular situation would not be in the Government's interest. Any 
request for waiver must be in accordance with FAR 9.503. The Assistant 
General Counsel for Contracts and Information Law shall be consulted on 
such waiver requests.

[49 FR 8839, Mar. 8, 1984, as amended at 61 FR 29316, June 10, 1996]



Sec. 1509.505-4  Obtaining access to proprietary information.

    Contractors gaining access to confidential business information of 
other companies in performing advisory services for EPA shall comply 
with the special requirements of 40 CFR part 2 and the provisions of 
their contracts relating to the treatment of confidential business 
information.



Sec. 1509.505-70  Information sources.

    (a) Disclosure. Prospective EPA Contractors responding to 
solicitations or submitting unsolicited proposals shall provide 
information to the Contracting Officer for use in identifying, 
evaluating, or resolving potential organizational conflicts of interest. 
The submittal may be a certification or a disclosure, pursuant to 
paragraph (a) (1) or (2) of this section.
    (1) If the prospective contractor is not aware of any information 
bearing on the existence of any organizational conflict of interest, it 
may so certify.
    (2) Prospective contractors not certifying in accordance with 
paragraph (a)(1) of this section must provide a disclosure statement 
which describes concisely all relevant facts concerning any

[[Page 20]]

past, present, or planned interests relating to the work to be performed 
and bearing on whether they, including their chief executives, 
directors, or any proposed consultant or subcontractor, may have a 
potential organizational conflict of interest.
    (b) Failure to disclose information. Any prospective contractor 
failing to provide full disclosure, certification, or other required 
information will not be eligible for award. Nondisclosure or 
misrepresentation of any relevant information may also result in 
disqualification from award, termination of the contract for default, or 
debarment from Government contracts, as well as other legal action or 
prosecution. In response to solicitations, EPA will consider any 
inadvertent failure to provide disclosure certification as a ``minor 
informality'' (as explained in FAR 14.405); however, the prospective 
contractor must correct the omission promptly.
    (c) Exception. Where the Contractor has previously submitted a 
conflict of interest certification or disclosure for a contract, only an 
update of such statement is required when the contract is modified.

[49 FR 8839, Mar. 8, 1994. Redesignated at 59 FR 18619, Apr. 19, 1994]



Sec. 1509.507-1  Solicitation provisions.

    (a) Advance notice of limitations. The Contracting Officer shall 
alert prospective contractors by placing a notice in the solicitation 
whenever a particular acquisition might create an organizational 
conflict of interest. The notice will:
    (1) Include the information prescribed in (FAR) 48 CFR 9.507-1;
    (2) Refer prospective contractors to this subpart; and
    (3) Require proposers to disclose relevant facts concerning any 
past, present, or currently planned interests relating to the work 
described in the solicitation.
    (b) Required solicitation provision. The Contracting Officer shall 
include the provisions at 1552.209-70 and 1552.209-72 in all 
solicitations, except where the following applies:
    (1) An Organizational Conflict of Interest provision is drafted for 
a particular acquisition (see Section 1509.507-1(a));
    (2) When the procurement is with another Federal agency (however, 
the provision is included in solicitations issued under the Small 
Business Administration's (SBA) 8(a) program); and
    (3) When the procurement is accomplished through simplified 
acquisition procedures, use of the provision is optional.

[49 FR 8839, Mar. 8, 1994. Redesignated and amended at 59 FR 18619, Apr. 
19, 1994; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 20, 1997]



Sec. 1509.507-2  Contract clause.

    (a) The Contracting Officer shall include the clause at 1552.209-71 
in all contracts in excess of the simplified acquisition threshold and, 
as appropriate, in simplified acquisition procedures. Contracts for 
other than Superfund work shall include Alternate I in this clause in 
lieu of paragraph (e).
    (b) The Contracting Officer shall include the clause at 1552.209-73 
in all solicitations and contracts for Superfund work in excess of the 
simplified acquisition threshold and, as appropriate, in small purchases 
for Superfund work.
    (c) The Contracting Officer shall include the clause at 1552.209-74 
or its alternates in the following solicitations and contracts for 
Superfund work in excess of the simplified acquisition threshold and, as 
appropriate, in simplified acquisition procedures for Superfund work. 
The Contracting Officer shall include the clause at 1552.209-74 in all 
Alternative Remedial Contracting Strategy (ARCS) solicitations and 
contracts, except Site Specific solicitations and contracts. Alternate I 
shall be used in all Time Critical Rapid Response (TCRR) solicitations 
and contracts, except site specific solicitations and contracts. The 
term ``TCRR'' in the Limitation of Future Contracting clauses includes 
not only TCRR solicitations and contracts but Emergency Response Cleanup 
Services (ERCS) and other emergency type solicitations and contracts. 
TCRR pilot scale studies are included in the term ``treatability 
studies''. Alternate II shall be used in all Technical Assistance Team 
(TAT) solicitations and contracts. Alternate III shall be used in all 
Environmental

[[Page 21]]

Services Assistance Team (ESAT) solicitations and contracts. Alternate 
IV shall be used in all Technical Enforcement Support (TES) 
solicitations and contracts. Alternate V shall be used in all Superfund 
Headquarters Support solicitations and contracts. The Contracting 
Officer is authorized to modify paragraph (c) of Alternate V to reflect 
any unique limitations applicable to the program requirements. Alternate 
VI shall be used in all Site Specific solicitations and contracts.
    (d) The Contracting Officer shall insert the clause at 1552.209-75 
in Superfund solicitations and contracts in excess of the simplified 
acquisition threshold, where the solicitation or contract does not 
include (EPAAR) 48 CFR 1552.211-74, Work Assignments, Alternate I, or a 
similar clause requiring conflict of interest certifications during 
contract performance. This clause requires an annual conflict of 
interest certification from contractors when the contract does not 
require the submission of other conflict of interest certifications 
during contract performance. Contracts requiring annual certifications 
include: Site Specific contracts, the Contract Laboratory Program (CLP), 
and the Sample Management Office (SMO) contracts. The annual 
certification requires a contractor to certify that all organizational 
conflicts of interest have been reported, and that its personnel 
performing work under EPA contracts or relating to EPA contracts have 
been informed of their obligation to report personal and organizational 
conflicts of interest to the Contractor. The annual certification shall 
cover the one-year period from the date of contract award for the 
initial certification, and a one-year period starting from the previous 
certification for subsequent certifications. The certification must be 
received by the Contracting Officer no later than 45 days after the 
close of the certification period covered.

[59 FR 18619, Apr. 19, 1994, as amended at 61 FR 57337, Nov. 6, 1996]

                   PART 1511--DESCRIBING AGENCY NEEDS

Sec.

Sec. 1511.000  Scope of part.

Sec. 1511.011  Solicitation Provisions and Contract Clauses.

Sec. 1511.011-70   Reports of work.

Sec. 1511.011-71  [Reserved]

Sec. 1511.011-72  Monthly progress report.

Sec. 1511.011-73  Level of effort.

Sec. 1511.011-74  Work assignments.

Sec. 1511.011-75  Working files.

Sec. 1511.011-76  Legal analysis.

Sec. 1511.011-77  Final reports.

Sec. 1511.011-78  Advisory and assistance services.

Sec. 1511.011-79  Information resources management.

Sec. 1511.011-80  Data standards for the transmission of laboratory 
          measurement results.

    Authority: Sec. 205(c), 63 Sta. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57337, Nov. 6, 1996, unless otherwise noted.



Sec. 1511.000  Scope of part.

    This part implements FAR part 11 and provides policy and procedures 
for describing Agency needs.



Sec. 1511.011  Solicitation Provisions and Contract Clauses.



Sec. 1511.011-70  Reports of work.

    Contracting officers shall insert one of the contract clauses at 
1552.211-70 when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. Alternate I 
should be used to specify reports in contract schedule, whereas the 
basic clause should be used when reports are specified in a contract 
attachment.

[63 FR 10549, Mar. 4, 1998]



Sec. 1511.011-71  [Reserved]



Sec. 1511.011-72  Monthly progress report.

    Contracting Officers shall insert a contract clause substantially 
the same as the clause at 1552.211-72 when monthly progress reports are 
required.



Sec. 1511.011-73  Level of effort.

    The Contracting Officer shall insert the clause at 1552.211-73, 
Level of Effort, in term form contracts.



Sec. 1511.011-74  Work assignments.

    The Contracting Officer shall insert the contract clause at 
1552.211-74, Work Assignments, in cost-reimbursement type term form 
contracts when work

[[Page 22]]

assignments are used. For Superfund contracts, except for contracts 
which require annual conflict of interest certificates (e.g., Site 
Specific contracts, the Contract Laboratory Program (CLP), and Sample 
Management Office (SMO) contracts), the Contracting Officer shall use 
the clause with either Alternate I or Alternate II. Alternate I shall be 
used for contractors who have at least 3 years of records that may be 
searched for certification purposes. Alternate II shall be used for 
contractors who do not have at least three years of records that may be 
searched.



Sec. 1511.011-75  Working files.

    Contracting Officers shall insert the contract clause at 1552.211-75 
in all applicable EPA contracts where accurate working files on all work 
documentation is required in the performance of the contract.



Sec. 1511.011-76  Legal analysis.

    Contracting Officers shall insert the clause at 1552.211-76 when it 
is determined that the contract involves legal analysis.



Sec. 1511.011-77  Final reports.

    Contracting Officers shall insert the contract clause at 1552.211-77 
when a contract requires both a draft and a final report.



Sec. 1511.011-78  Advisory and assistance services.

    Contracting Officers shall insert the contract clause at 1552.211-78 
in all contracts for advisory and assistance services.



Sec. 1511.011-79  Information resources management.

    The Contracting Officer shall insert the clause at 1552.211-79, 
Compliance with EPA Policies for Information Resource Management, in all 
solicitations and contracts.



Sec. 1511.011-80  Data standards for the transmission of laboratory 
          measurement results.

    The contracting officer shall insert the clause at 1552.211-80 in 
all solicitations and contracts when the contract requires the 
electronic transmission of environmental measurements from laboratories 
to the Environmental Protection Agency (EPA).

[65 FR 58923, Oct. 3, 2000]

[[Page 23]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

              PART 1513--SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 1513.000  Scope of part.

                         Subpart 1513.1--General


Sec. 1513.170  Competition exceptions and justification for sole source 
          simplified acquisition procedures.

Sec. 1513.170-1  Contents of sole source justifications.

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5--Purchase Orders


Sec. 1513.505  Purchase order and related forms.

Sec. 1513.507  Clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57338, Nov. 6, 1996, unless otherwise noted.



Sec. 1513.000  Scope of part.

    This part prescribes EPA policies and procedures for the acquisition 
of supplies, nonpersonal services, and construction from commercial 
sources, the aggregate amount of which does not exceed the simplified 
acquisition threshold.

                         Subpart 1513.1--General



Sec. 1513.170  Competition exceptions and justification for sole source 
          simplified acquisition procedures.



Sec. 1513.170-1  Contents of sole source justifications.

    The program office submitting the procurement request must submit, 
as a separate attachment, a brief written statement in support of sole 
source acquisitions exceeding the micro-purchase threshold. The 
statement must cite one or more of the circumstances in FAR 6.302 and 
the necessary facts to support each circumstance. Although program 
offices may not cite the authority in FAR 6.302-7, the public interest 
may be used as a basis to support a sole source acquisition. If the 
acquisition has been synopsized as a notice of proposed sole source 
acquisition, the statement must include the results of the evaluation of 
responses to the synopsis.

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5--Purchase Orders



Sec. 1513.505  Purchase order and related forms.

    Contracting Officers may use the EPA Form 1900-8, Procurement 
Request/Order, in lieu of Optional Forms 347 and 348 for individual 
purchases prepared in accordance with the instructions printed on the 
reverse thereof (see 1553.213-70).

[61 FR 57338, Nov. 6, 1996. Redesignated at 62 FR 33572, June 20, 1997]



Sec. 1513.507  Clauses.

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment shall not be executed.
    (b) The Contracting Officer shall, where appropriate, insert the 
clause at 1552.213-70, Notice to Suppliers of Equipment, in orders for 
purchases or leases of automatic data processing equipment, word 
processing, and similar types of commercially available equipment for 
which vendors, as a matter of routine commercial practice, have 
developed their own leases and/or customer service maintenance 
agreements.

                        PART 1514--SEALED BIDDING

                  Subpart 1514.2--Solicitation of Bids

Sec.

Sec. 1514.201  Preparation of invitations for bids.

Sec. 1514.201-6  Solicitation provisions.

Sec. 1514.201-7  Contract clauses.

Sec. 1514.205  Solicitation mailing lists.

          Subpart 1514.4--Opening of Bids and Award of Contract


Sec. 1514.404  Rejection of bids.

[[Page 24]]


Sec. 1514.406  Mistakes in bids.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8843, Mar. 8, 1984, unless otherwise noted.

                  Subpart 1514.2--Solicitation of Bids



Sec. 1514.201  Preparation of invitations for bids.



Sec. 1514.201-6  Solicitation provisions.

    The Contracting Officer shall insert the solicitation provision at 
1552.214-71, Contract Award-Other Factors-Sealed Bidding, in invitations 
for bids when it is appropriate to describe other factors that will be 
used in evaluating bids for award.

[50 FR 14359, Apr. 11, 1985, as amended at 61 FR 55118, Oct. 24, 1996]



Sec. 1514.201-7  Contract clauses.

    The CCO is authorized to waive the inclusion of the clauses at FAR 
52.214-27 and 52.214-28, in accordance with FAR 14.201-7.

[55 FR 24579, June 18, 1990, as amended at 58 FR 18976, Apr. 21, 1994]



Sec. 1514.205  Solicitation mailing lists.

    When a solicitation and all amendments are posted on the Internet 
with a synopsis providing information as to how to access the 
solicitation and all amendments, the CO will need to maintain a mailing 
list of only those individuals requesting paper copies from the contract 
service center/branch. When possible, the CO should also build an 
electronic ``mailing list'' of companies downloading the solicitation 
from the Internet.

[49 FR 8843, Mar. 8, 1984, as amended at 62 FR 37148, July 11, 1997]

          Subpart 1514.4--Opening of Bids and Award of Contract



Sec. 1514.404  Rejection of bids.



Sec. 1514.406  Mistakes in bids.

                  PART 1515--CONTRACTING BY NEGOTIATION

Sec.

Sec. 1515.000  Scope of part.

  Subpart 1515.2--Solicitation and Receipt of Proposals and Information


Sec. 1515.209  Solicitation provisions and contract clauses.

                    Subpart 1515.3--Source Selection


Sec. 1515.302  Applicability.

Sec. 1515.303  Responsibilities.

Sec. 1515.305  Proposal evaluation.

Sec. 1515.305-70  Scoring plans.

Sec. 1515.305-71  Documentation of proposal evaluation.

Sec. 1515.305-72  Release of cost information.

                    Subpart 1515.4--Contract Pricing


Sec. 1515.404-4  Profit.

Sec. 1515.404-470  Policy.

Sec. 1515.404-471  EPA structured approach for developing profit or fee 
          objectives.

Sec. 1515.404-472  Other methods.

Sec. 1515.404-473  Limitations.

Sec. 1515.404-474  Waivers.

Sec. 1515.404-475  Cost realism.

Sec. 1515.408  Solicitation provisions and contract clauses.

                  Subpart 1515.6--Unsolicited Proposals


Sec. 1515.604  Agency points of contact.

Sec. 1515.606-70  Contracting methods.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



Sec. 1515.000  Scope of part.

    This part implements and supplements FAR part 15. It prescribes the 
Environmental Protection Agency policies and procedures for contracting 
for supplies and services by negotiation.

[[Page 25]]

  Subpart 1515.2--Solicitation and Receipt of Proposals and Information



Sec. 1515.209  Solicitation provisions and contract clauses.

    In addition to those provisions prescribed at FAR 15.209 and in 
accordance with FAR 15.203(a)(4), the contracting officer shall identify 
and include the evaluation factors that will be considered in making the 
source selection and their relative importance in each solicitation.
    (a) The contracting officer shall insert the provisions at 1552.215-
70, ``EPA Source Evaluation and Selection Procedures--Negotiated 
Procurement'' and either: the provision at 1552.215-71, ``Evaluation 
Factors for Award,'' where all evaluation factors other than cost or 
price when combined are significantly more important than cost or price; 
or the provision in Alternate I to 1552.215-71, where all evaluation 
factors other than cost or price when combined are significantly less 
important than cost or price; or the provision in Alternate II to 
1552.215-71, where all evaluation factors other than cost or price when 
combined are approximately equal to cost or price; or Alternate III to 
1552.215-71 where award will be made to the offeror with the lowest-
evaluated cost or price whose proposal meets or exceeds the 
acceptability standards for non-cost factors.
    (b) Evaluation factors and significant subfactors should be prepared 
in accordance with FAR 15.305 and inserted into paragraph (b) of the 
provision at 1552.215-71, Alternate I, Alternate II, and if used, in 
Alternate III.
    (c) The contracting officer shall insert the clause at 1552.215-75, 
Past Performance Information, or a clause substantially the same as 
1552.215-75, in all competitively negotiated acquisitions with an 
estimated value in excess of $100,000.

[64 FR 47410, Aug. 31, 1999, as amended at 65 FR 58923, Oct. 3, 2000]

                    Subpart 1515.3--Source Selection



Sec. 1515.302  Applicability.

    FAR subpart 15.3 and this subpart apply to the selection of source 
or sources in competitive negotiation acquisitions in excess of the 
simplified acquisition threshold, except architect-engineering services 
which are covered in 1536.6.



Sec. 1515.303  Responsibilities.

    The Source Selection Authority (SSA) is established as follows:
    (a) Acquisitions having a potential value of $25,000,000 or more: 
Service Center Manager (SCM). This authority is not redelegable.
    (b) Acquisitions having a potential value of less than $25,000,000, 
but more than $10,000,000: SCM, who has the authority to redelegate SSA 
authority to a warranted 1102. If redelegated, review by another 
warranted 1102 designated by the SCM is also required. A Regional 
Contracting Officer Supervisor may act as the SSA, as determined on a 
case-by-case basis, by the Director, Superfund/RCRA Regional Procurement 
Operations Division (SRRPOD).
    (c) Acquisitions having a potential value of $10,000,000 or less: 
The contracting officer.

[67 FR 5072, Feb. 4, 2002]



Sec. 1515.305  Proposal evaluation.



Sec. 1515.305-70  Scoring plans.

    When trade-offs are performed (in accordance with FAR 15.101-1), the 
evaluation of technical and past performance shall be accomplished using 
the following scoring plan or one specifically developed for the 
solicitation, e.g., other numeric, adjectival, color rating systems, 
etc.

                              Scoring Plan
------------------------------------------------------------------------
            Value                        Descriptive statement
------------------------------------------------------------------------
0............................  The factor is not addressed, or is
                                totally deficient and without merit.

[[Page 26]]

 
1............................  The factor is addressed, but contains
                                deficiencies and/or weaknesses that can
                                be corrected only by major or
                                significant changes to relevant portions
                                of the proposal, or the factor is
                                addressed so minimally or vaguely that
                                there are widespread information gaps.
                                In addition, because of the
                                deficiencies, weaknesses, and/or
                                information gaps, serious concerns exist
                                on the part of the technical evaluation
                                team about the offeror's ability to
                                perform the required work.
2............................  Information related to the factor is
                                incomplete, unclear, or indicates an
                                inadequate approach to, or understanding
                                of the factor. The technical evaluation
                                team believes there is question as to
                                whether the offeror would be able to
                                perform satisfactorily.
3............................  The response to the factor is adequate.
                                Overall, it meets the specifications and
                                requirements, such that the technical
                                evaluation team believes that the
                                offeror could perform to meet the
                                Government's minimum requirements.
4............................  The response to the factor is good with
                                some superior features. Information
                                provided is generally clear, and the
                                demonstrated ability to accomplish the
                                technical requirements is acceptable
                                with the possibility of more than
                                adequate performance.
5............................  The response to the factor is superior in
                                most features.
------------------------------------------------------------------------



Sec. 1515.305-71  Documentation of proposal evaluation.

    In addition to the information required by FAR 15.305(a)(3), the 
technical evaluation documentation shall include:
    (a) Score sheets prepared by each individual team member must be 
made available upon the contracting officer's request. For contracts 
valued at $10,000,000 or less, the technical evaluation may be recorded 
on the short form technical evaluation format (EPA Form 1900-61) or 
another form specifically developed for the solicitation; and
    (b) A statement that the respective team members are free from 
actual or potential personal conflicts of interest, and are in 
compliance with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.
    (c) Any information which might reveal that an offeror has an actual 
or potential organizational conflict of interest.
    (d) Any documentation related to exchanges with individual offerors.



Sec. 1515.305-72  Release of cost information.

    (a) In accordance with FAR 15.305(a)(4), the contracting officer may 
release the cost/price proposals to those members of the evaluation team 
who are evaluating proposals at his/her discretion.
    (b) These individuals would then use this information to perform a 
cost realism analysis as described in FAR 15.404-1(d). Any 
inconsistencies between the proposals and the solicitation requirements 
and/or any inconsistencies between the cost/price and other than cost/
price proposals should be identified.

                    Subpart 1515.4--Contract Pricing



Sec. 1515.404-4  Profit.

    This section implements FAR 15.404-4 and prescribes the EPA 
structured approach for establishing profit or fee prenegotiation 
objectives.



Sec. 1515.404-470  Policy.

    (a) The Agency's policy is to utilize profit to attract contractors 
who possess talents and skills necessary to the accomplishment of the 
objectives of the Agency, and to stimulate efficient contract 
performance. In negotiating profit/fee, it is necessary that all 
relevant factors be considered, and that fair and reasonable amounts be 
negotiated which give the contractor a profit objective commensurate 
with the nature of the work to be performed, the contractor's input to 
the total performance, and the risks assumed by the contractor.
    (b) The purpose of EPA's structured approach is:
    (1) To provide a standard method of evaluation;
    (2) To ensure consideration of all relevant factors;
    (3) To provide a basis for documentation and explanation of the 
profit or fee negotiation objective; and

[[Page 27]]

    (4) To allow contractors to earn profits commensurate with the 
assumption of risk.
    (c) The profit-analysis factors prescribed in the EPA structured 
approach for analyzing profit or fee include those prescribed by FAR 
15.404(d)(1), and additional factors authorized by FAR 15.404(d)(2) to 
foster achievement of program objectives. These profit or fee factors 
are prescribed in 1515.404-471.



Sec. 1515.404-471  EPA structured approach for developing profit or fee 
          objectives.

    (a) General. To properly reflect differences among contracts, and to 
select an appropriate relative profit/fee in consideration of these 
differences, weightings have been developed for application by the 
contracting officer to standard measurement bases representative of the 
prescribed profit factors cited in FAR 15.404(d) and EPAAR 1515.404-
471(b)(1). Each profit factor or subfactor, or its components, has been 
assigned weights relative to their value to the contract's overall 
effort, and the range of weights to be applied to each profit factor.
    (b)(1) Profit/fee factors. The factors set forth in this paragraph, 
and the weighted ranges listed after each factor, shall be used in all 
instances where the profit/fee is negotiated.

                 Contractor's Input to Total Performance
------------------------------------------------------------------------
                                               Weight Range  (Percent)
------------------------------------------------------------------------
Direct material............................  1 to 4.
Professional/technical labor...............  8 to 15.
Professional/technical overhead............  6 to 9.
General labor..............................  5 to 9.
General overhead...........................  4 to 7.
Subcontractors.............................  1 to 4.
Other direct costs.........................  1 to 3.
General and administrative expenses........  5 to 8.
Contractor's assumption of contract cost     0 to 6.
 risk.
------------------------------------------------------------------------

    (2) The contracting officer shall first measure the ``Contractor's 
Input to Total Performance'' by the assignment of a profit percentage 
within the designated weight ranges to each element of contract cost. 
Such costs are multiplied by the specific percentages to arrive at a 
specific dollar profit or fee.
    (3) The amount calculated for facilities capital cost of money 
(FCCM) shall not be included as part of the cost base for computation of 
profit or fee. The profit or fee objective shall be reduced by an amount 
equal to the amount of facilities capital cost of money allowed. A 
complete discussion of the determination of facilities capital cost of 
money and its application and administration is set forth in FAR 31.205-
10, and the Appendix to the FAR (see 48 CFR 9904.414).
    (4) After computing a total dollar profit or fee for the 
Contractor's Input to Total Performance, the contracting officer shall 
calculate the specific profit dollars assigned for cost risk and 
performance. This is accomplished by multiplying the total Government 
cost objective, exclusive of any FCCM, by the specific weight assigned 
to cost risk and performance. The contracting officer shall then 
determine the profit or fee objective by adding the total profit dollars 
for the Contractor's Input to Total Performance to the specific dollar 
profits assigned to cost risk and performance. The contracting officer 
shall use EPA Form 1900-2 in hardcopy or electronic copy equivalent to 
facilitate the calculation of the profit or fee objective.
    (5) The weight factors discussed in this section are designed for 
arriving at profit or fee objectives for other than nonprofit and not-
for-profit organizations. Nonprofit and not-for-profit organizations are 
addressed as follows:
    (i) Nonprofit and not-for-profit organizations are defined as those 
business entities organized and operated:
    (A) Exclusively for charitable, scientific, or educational purposes;
    (B) Where no part of the net earnings inure to the benefit of any 
private shareholder or individual;
    (C) Where no substantial part of the activities is for propaganda or 
otherwise attempting to influence legislation or participating in any 
political campaign on behalf of any candidate for public office; and
    (D) Which are exempt from Federal income taxation under Section 51 
of the Internal Revenue Code. (26 U.S.C.)
    (ii) For contracts with nonprofit and not-for-profit organizations 
where fees are involved, special factor of -3 percent shall be assigned 
in all cases.
    (c) Assignment of values to specific factors--(1) General. In making 
a judgment

[[Page 28]]

on the value of each factor, the contracting officer should be governed 
by the definition, description, and purpose of the factors, together 
with considerations for evaluation set forth in this paragraph.
    (2) Contractor's input to total performance. This factor is a 
measure of how much the contractor is expected to contribute to the 
overall effort necessary to meet the contract performance requirements 
in an efficient manner. This factor, which is separate from the 
contractor's responsibility for contract performance, takes into account 
what resources are necessary, and the creativity and ingenuity needed 
for the contractor to perform the statement of work successfully. This 
is a recognition that within a given performance output, or within a 
given sales dollar figure, necessary efforts on the part of individual 
contractors can vary widely in both value, quantity, and quality, and 
that the profit or fee objective should reflect the extent and nature of 
the contractor's contribution to total performance. Greater profit 
opportunity should be provided under contracts requiring a high degree 
of professional and managerial skill and to prospective contractors 
whose skills, facilities, and technical assets can be expected to lead 
to efficient and economical contract performance. The evaluation of this 
factor requires an analysis of the cost content of the proposed contract 
as follows:
    (i) Direct material (purchased parts and other material). (A) 
Analysis of these cost items shall include an evaluation of the 
managerial and technical effort necessary to obtain the required 
material. This evaluation shall include consideration of the number of 
orders and suppliers, and whether established sources are available or 
new sources must be developed. The contracting officer shall also 
determine whether the contractor will, for example, obtain the materials 
by routine orders or readily available supplies (particularly those of 
substantial value in relation to the total contract costs), or by 
detailed subcontracts for which the prime contractor will be required to 
develop complex specifications involving creative design.
    (B) Consideration should be given to the managerial and technical 
efforts necessary for the prime contractor to administer subcontracts, 
and to select subcontractors, including efforts to break out 
subcontracts from sole sources, through the introduction of competition.
    (C) Recognized costs proposed as direct material costs such as scrap 
charges shall be treated as material for profit evaluation.
    (D) If intracompany transfers are accepted at price, in accordance 
with FAR 31.205-26(e), they should be excluded from the profit or fee 
computation. Other intracompany transfers shall be evaluated by 
individual components of cost, i.e., material, labor, and overhead.
    (ii) Professional/technical and general labor. Analysis of labor 
should include evaluation of the comparative quality and level of the 
talents and experience to be employed. In evaluating labor for the 
purpose of assigning profit dollars, consideration should be given to 
the amount of notable scientific talent or unusual or scarce talent 
needed, in contrast to journeyman effort or supporting personnel. The 
diversity, or lack thereof, of scientific and engineering specialties 
required for contract performance, and the corresponding need for 
supervision and coordination, should also be evaluated.
    (iii) Overhead and general and administrative expenses. (A) Where 
practicable, analysis of these overhead items of cost should include the 
evaluation of the individual elements of these expenses, and how much 
they contribute to contract performance. This analysis should include a 
determination of the amount of labor within these overhead pools, and 
how this labor would be treated if it were considered as direct labor 
under the contract. The allocable labor elements should be given the 
same profit consideration as if they were direct labor. The other 
elements of indirect cost pools should be evaluated to determine whether 
they are routine expenses such as utilities, depreciation, and 
maintenance, and therefore given less profit consideration.
    (B) The contractor's accounting system need not break down its 
overhead

[[Page 29]]

expenses within the classification of professional/technical overhead, 
general overhead and general and administrative expenses.
    (iv) Subcontractors. (A) Subcontract costs should be analyzed from 
the standpoint of the talents and skills of the subcontractors. The 
analysis should consider if the prime contractor normally should be 
expected to have people with comparable expertise employed as full-time 
staff, or if the contract requires skills not normally available in an 
employer-employee relationship. Where the prime contractor is using 
subcontractors to perform labor which would normally be expected to be 
done in-house, the rating factor should generally be at or near 1 
percent. Where exceptional expertise is retained, or the prime 
contractor is participating in the mentor-protege program, the assigned 
weight should be nearer to the high end of the range.
    (v) Other direct costs. The analysis of these costs should be 
similar to the analysis of direct material.
    (3) Contractor's assumption of contract cost risk. (i) The risk of 
contract costs should be shifted to the fullest extent practicable to 
contractors, and the Government should assign a rating that reflects the 
degree of risk assumption. Evaluation of this risk requires a 
determination of the degree of cost responsibility the contractor 
assumes, the reliability of the cost estimates in relation to the task 
assumed, and the chance of the contractor's success or failure. This 
factor is specifically limited to the risk of contract costs. Thus, such 
risks of losing potential profits in other fields are not within the 
scope of this factor.
    (ii) The first determination of the degree of cost responsibility 
assumed by the contractor is related to the sharing of total risk of 
contract cost by the Government and the contractor, depending on 
selection of contract type. The extremes are a cost-plus-fixed-fee 
contract requiring only that the contractor use its best efforts to 
perform a task, and a firm-fixed-price contract for a complex item. A 
cost-plus-fixed-fee contract would reflect a minimum assumption of cost 
responsibility by the contractor, whereas a firm-fixed-price contract 
would reflect a complete assumption of cost responsibility by the 
contractor. Therefore, in the first step of determining the value given 
for the contractor's assumption of contract cost risk, a lower rating 
would be assigned to a proposed cost-plus-fixed-fee best efforts 
contract, and a higher rating would be assigned to a firm-fixed-price 
contract.
    (iii) The second determination is that of the reliability of the 
cost estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. An excessive cost estimate 
reduces the possibility that the cost of performance will exceed the 
contract price, thereby reducing the contractor's assumption of contract 
cost risk.
    (iv) The third determination is that of the difficulty of the 
contractor's task. The contractor's task may be difficult or easy, 
regardless of the type of contract.
    (v) Contractors are likely to assume greater cost risks only if the 
contracting officer objectively analyzes the risk incident to the 
proposed contract, and is willing to compensate contractors for it. 
Generally, a cost-plus-fixed-fee contract would not justify a reward for 
risk in excess of 1 percent, nor would a firm-fixed-price contract 
normally justify a reward of less than 4 percent. Where proper contract 
type selection has been made, the reward for risk by contract type would 
usually fall into the following percentage ranges:

------------------------------------------------------------------------
              Type of contract                    Percentage ranges
------------------------------------------------------------------------
Cost-plus-fixed-fee........................  0 to 1.
Prospective price determination............  4 to 5.
Firm-fixed-price...........................  4 to 6.
------------------------------------------------------------------------

    (A) These ranges may not be appropriate for all acquisitions. The 
contracting officer might determine that a basis exists for high 
confidence in the reasonableness of the estimate, and that little 
opportunity exists for cost reduction without extraordinary efforts. The 
contractor's willingness to accept ceilings on their burden rates should 
be considered as a risk factor for cost-plus-fixed-fee contracts.

[[Page 30]]

    (B) In making a contract cost risk evaluation in an acquisition that 
involves definitization of a letter contract, consideration should be 
given to the effect on total contract cost risk as a result of partial 
performance under a letter contract. Under some circumstances, the total 
amount of cost risk may have been effectively reduced by the existence 
of a letter contract. Under other circumstances, it may be apparent that 
the contractor's cost risk remained substantially as great as though a 
letter contract had not been used. Where a contractor has begun work 
under an anticipatory cost letter, the risk assumed is greater than 
normal. To be equitable, the determination of a profit weight for 
application to the total of all recognized costs, both those incurred 
and those yet to be expended, must be made with consideration to all 
relevant circumstances, not just to the portion of costs incurred or 
percentage of work completed prior to definitization.



Sec. 1515.404-472  Other methods.

    (a) Contracting officers may use methods other than those prescribed 
in 1515.404-470 for establishing profit or fee objectives under the 
following types of contracts and circumstances:
    (1) Architect-engineering contracts;
    (2) Personal service contracts;
    (3) Management contracts, e.g., for maintenance or operation of 
Government facilities;
    (4) Termination settlements;
    (5) Services under labor-hour and time and material contracts which 
provide for payment on an hourly, daily, or monthly basis, and where the 
contractor's contribution constitutes the furnishing of personnel.
    (6) Construction contracts; and
    (7) Cost-plus-award-fee contracts.
    (b) Generally, it is expected that such methods will:
    (1) Provide the contracting officer with a technique that will 
ensure consideration of the relative value of the appropriate profit 
factors described under ``Profit Factors,'' in FAR 15.404-4(d) and
    (2) Serve as a basis for documentation of the profit or fee 
objective.



Sec. 1515.404-473  Limitations.

    (a) In addition to the limitations established by statute (see FAR 
15.404-4(b)(4)(i)), no administrative ceilings on profits or fees shall 
be established, except those identified in EPAAR (48 CFR) 1516.404-
273(b).
    (b) The contracting officer shall not consider any known 
subcontractor profit/fee as part of the basis for determining the 
contractor profit/fee.



Sec. 1515.404-474  Waivers.

    Under unusual circumstances, the SCM may specifically waive the 
requirement for the use of the guidelines. Such exceptions shall be 
justified in writing, and authorized only in situations where the 
guidelines method is unsuitable.

[64 FR 47410, Aug. 31, 1999, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1515.404-475  Cost realism.

    The EPA structured approach is not required when the contracting 
officer is evaluating cost realism in a competitive acquisition.



Sec. 1515.408  Solicitation provisions and contract clauses.

    (a) In addition to those provisions and clauses prescribed in FAR 
15.408, when an exception to FAR 15.403-1 does not apply and no other 
means available can be used to ascertain whether a fair and reasonable 
price can be determined, the contracting officer may insert in 
negotiated solicitations the provisions at--
    (1) 1552.215-72 when requesting information other than cost or 
pricing data, for cost-reimbursable, level-of-effort-contracts. Use 
Alternate I for cost-reimbursable, level-of-effort contracts when the 
Government's requirement is for fully dedicated staff for a twelve month 
period(s) of performance and performance is on a Government facility; 
Alternate II for acquisitions for cost-reimbursable, level-of-effort 
contracts when the Government's requirement is for fully dedicated staff 
for a twelve month period(s) of performance and performance is not on a 
Government facility; and Alternate III if the Government's requirement 
is for the acquisition of supplies or equipment.

[[Page 31]]

The contracting officer may make revisions, deletions, or additions to 
1552.215-72 and its Alternates I-III as needed to fit an individual 
acquisition, and
    (2) 1552.215-73, General Financial and Organizational Information.
    (b) If uncompensated overtime is proposed, the resultant contract 
shall include the provisions at FAR 52.237-10 and include the provision 
at 1552.215-74. The contracting officer may use provisions substantially 
the same as 1552.215-74 without requesting a deviation to the EPAAR.

                  Subpart 1515.6--Unsolicited Proposals



Sec. 1515.604  Agency points of contact.

    The Director, Grants Administration Division (3903R), EPA, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, is the Agency contact 
point established to coordinate the receipt and handling of unsolicited 
proposals.

[64 FR 47410, Aug. 31, 1999, 65 FR 47325, Aug. 2, 2000]



Sec. 1515.606-70  Contracting methods.

    The Department of Housing and Urban Development-Independent Agencies 
Appropriation Act contains a requirement that none of the funds provided 
in the Act may be used for payment through grants or contracts to 
recipients that do not share in the cost of conducting research 
resulting from proposals that are not specifically solicited by the 
Government. Accordingly, contracts for research which result from 
unsolicited proposals shall provide for the contractor to bear a portion 
of the cost of performance for work subject to the Act. The extent of 
the cost sharing shall reflect the mutuality of interest of the 
contractor and the Government. Therefore, where there is no measurable 
gain to the performing organization, cost sharing is not required.

                      PART 1516--TYPES OF CONTRACTS

              Subpart 1516.3--Cost-Reimbursement Contracts

Sec.

Sec. 1516.301-70  Payment of fee.

Sec. 1516.303  Cost-sharing contracts.

Sec. 1516.303-71  Definition.

Sec. 1516.303-72  Policy.

Sec. 1516.303-73  Types of cost-sharing.

Sec. 1516.303-74  Determining the value of in-kind contributions.

Sec. 1516.303-75  Amount of cost-sharing.

Sec. 1516.303-76  Fee on cost-sharing contracts by subcontractors.

Sec. 1516.303-77  Administrative requirements.

Sec. 1516.307  Contract clauses.

Sec. 1516.370  Solicitation provision.

                   Subpart 1516.4--Incentive Contracts


Sec. 1516.404-2  Cost-plus-award-fee contracts.

Sec. 1516.404-272  Definitions.

Sec. 1516.404-273  Limitations.

Sec. 1516.404-274  Waiver.

Sec. 1516.405  Contract clauses.

              Subpart 1516.5--Indefinite-Delivery Contracts


Sec. 1516.505  Contract clauses.

  Subpart 1516.6--Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 1516.603  Letter Contracts.

Sec. 1516.603-1  What is a Notice to Proceed?

Sec. 1516.603-2  What are the requirements for use of an NTP?

Sec. 1516.603-3  Limitations.

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 
41 U.S.C. 418b.

    Source: 49 FR 8852, Mar. 8, 1984, unless otherwise noted.

              Subpart 1516.3--Cost-Reimbursement Contracts



Sec. 1516.301-70  Payment of fee.

    The policy of EPA for cost-reimbursement, term form contracts is to 
make provisional payment of fee (i.e. the fixed fee on cost-plus-fixed-
fee type contracts or the base fee on cost-plus-award-fee type 
contracts) on a percentage of work completed basis, when such a method 
will not prove detrimental to proper contract performance. Percentage of 
work completed is the ratio of the direct labor hours performed in 
relation to the direct labor hours set forth in the contract in clause 
1552.212-70, ``Level of Effort--Cost Reimbursement Term Contract.'' 
Provisional payment of fee will remain subject to

[[Page 32]]

withholding provisions, such as 48 CFR 52.216-8, Fixed Fee.

[56 FR 43711, Sept. 4, 1991]



Sec. 1516.303  Cost-sharing contracts.



Sec. 1516.303-71  Definition.

    Cost-sharing is a generic term denoting any situation where the 
Government does not fully reimburse a contractor for all allowable costs 
necessary to accomplish the project under the contract. This term 
encompasses cost-matching and cost-limitations, in addition to cost-
sharing. Cost-sharing does not include usual contractual limitations 
such as indirect cost ceilings in accordance with FAR 42.707, or 
ceilings on travel or other direct costs. Cost-sharing contracts may be 
required as a result of Congressional mandate.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-72  Policy.

    (a) The Agency shall use cost-sharing contracts where the principal 
purpose is ultimate commercialization and utilization of technologies by 
the private sector. There should also be a reasonable expectation of 
future economic benefits for the contractor and the Government beyond 
the Government's contract.
    (b) Cost-sharing may be accomplished by a contribution to either 
direct or indirect costs, provided such costs are reasonable, allocable 
and allowable in accordance with the cost principles of the contract. 
Allowable costs which are absorbed by the contractor as its share of 
contract costs may not be charged directly or indirectly to the Agency 
or the Federal Government.
    (c) Unsolicited proposals will be considered on a case-by-case basis 
by the Contracting Officer as to the appropriateness of cost-sharing.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-73  Types of cost-sharing.

    (a) Cost-sharing may be accomplished in various forms or 
combinations. These include, but are not limited to: cash outlays, real 
property or interest therein, personal property or services, cost 
matching, or other in-kind contributions.
    (b) In-kind contributions represent non-cash contributions provided 
by the performing contractor which would normally be a charge against 
the contract. While in-kind contributions are an acceptable method of 
cost-sharing, should the booked costs of property appear unrealistic, 
the fair market value of the property shall be determined pursuant to 
1516.303-74 of this chapter.
    (c) In-kind contributions may be in the form of personal property 
(equipment or supplies) or services which are directly beneficial, 
specifically identifiable and necessary for the performance of the 
contract. In-kind contributions must meet all of the following criteria 
before acceptance.
    (1) Be verifiable from the contractor's books and records;
    (2) Not be included as contributions under any other Federal 
contract;
    (3) Be necessary to accomplish project objectives;
    (4) Provide for types of charges that would otherwise be allowable 
under applicable Federal cost principles appropriate to the contractor's 
organization; and
    (5) Not be paid for by the Federal Government under any contract, 
agreement or grant.

[61 FR 14504, Apr. 2, 1996]



Sec. 1516.303-74  Determining the value of in-kind contributions.

    In-kind contributions accepted from a contractor will be addressed 
on a case-by-case basis provided the established values do not exceed 
fair market values.
    (a) Where the Agency receives title to donated land, building, 
equipment or supplies and the property is not fully consumed during 
performance of the contract, the Contracting Officer should establish 
the property's value based on the contractor's booked costs (i.e., 
acquisition cost less depreciation, if any) at the time of donation. If 
the booked costs reflect unrealistic values when compared to current 
market conditions, the Contracting Officer may establish another 
appropriate value if supported by an independent appraisal of the fair 
market value of the donated property or property in similar condition 
and circumstances.

[[Page 33]]

    (b) The Contracting Officer will monitor reports of in-kind costs as 
they are incurred or recognized during the contract period of 
performance to determine that the value of in-kind services does not 
exceed fair market values.
    (c) The value of any services or the use of personal or real 
property donated by a contractor should be established when necessary in 
accordance with generally accepted accounting policies and Federal cost 
principles.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-75  Amount of cost-sharing.

    (a) Contractors should contribute a reasonable amount of the total 
project cost covered under the contract. The ratio of cost participation 
should correlate to the apparent advantages available to performers and 
the proximity of implementing commercialization, i.e., the higher the 
potential for future profits, the higher the contractor's share should 
be.
    (b) Fee will not be paid to the contractor or any member of the 
contractor team (subcontractors and consultants) which has a substantial 
and direct interest in the contract, or is in a position to gain long 
term benefits from the contract. A vulnerability the Contracting Officer 
should consider in reviewing a prime contractor's request for consent to 
subcontract is whether subcontractors under prime cost-sharing contracts 
have a significant direct interest in the contract to gain long-term 
benefits from the contract.
    (c) The Contracting Officer, with the input of technical experts, 
may consider the following factors in determining reasonable levels of 
cost sharing:
    (1) The availability of the technology to competitors;
    (2) Improvements in the contractor's market share position;
    (3) The time and risk necessary to achieve success;
    (4) If the results of the project involve patent rights which could 
be sold or licensed;
    (5) If the contractor has non-Federal sources of funds to include as 
cost participation; and
    (6) If the contractor has the production and other capabilities to 
capitalize the results of the project.
    (d) A contractor's cost participation can be provided by other 
subcontractors with which it has contractual arrangements to perform the 
contract as long as the contractor's cost-sharing goal is met.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-76  Fee on cost-sharing contracts by subcontractors.

    (a) Subcontractors under prime cost-sharing contracts who do not 
have a significant direct interest in the contract or who are not in a 
position to gain long-term benefits from the contract may earn a fee.
    (b) Contracting Officers should be alert to a potential 
vulnerability for the Government under cost-sharing contracts when 
evaluating proposed subcontractors or consenting to a subcontract during 
contract administration, where the subcontractor is a wholly-owned 
subsidiary of the prime. The vulnerability consists of the subsidiary 
earning a large amount of fee, which could be returned to the prime 
through stock dividends or other intercompany transactions. This could 
circumvent the objective of a cost-sharing contract.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.303-77  Administrative requirements.

    (a) The initial Procurement Request shall reflect the total 
estimated cost of the cost-sharing contract. The face page of the 
contract award shall indicate the total estimated cost of the contract, 
the Contractor's share of the cost, and the Government's share of the 
cost.
    (b) The manner of cost-sharing and how it is to be accomplished 
shall be set forth in the contract. Additionally, contracts which 
provide for cost-sharing shall require the contractor to maintain 
records adequate to reflect the nature and extent of their cost-sharing 
as well as those costs charged the Agency. Such records may be subject 
to an Agency audit.

[61 FR 14505, Apr. 2, 1996]



Sec. 1516.307  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-71, 
Date of

[[Page 34]]

Incurrence of Cost, in cost-reimbursement contracts when an anticipatory 
cost letter has been issued on the project.
    (b) The Contracting Officer shall insert the clause at 1552.216-74, 
Payment of Fee, in solicitations and contracts where a cost-
reimbursement term form contract is contemplated, unless the Contracting 
Officer determines that such a provision would be detrimental to 
ensuring proper contract performance.
    (c) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.216-76, Estimated Cost and Cost-Sharing, in 
solicitations and contracts where the total incurred costs are shared by 
the contractor on a straight percentage basis. The Contracting Officer 
may develop other clauses, as appropriate, following the same approach, 
but reflecting different cost-sharing arrangements negotiated on 
specific contract actions.

[49 FR 8852, Mar. 8, 1984, as amended at 56 FR 43711, Sept. 4, 1991; 61 
FR 14505, Apr. 2, 1996; 61 FR 57338, Nov. 6, 1996]



Sec. 1516.370  Solicitation provision.

    The solicitation document shall state whether any cost-sharing is 
required, and may set forth a target level of cost-sharing. Although 
technical considerations are normally most important, the degree of 
cost-sharing may be considered in a selection decision when cost becomes 
a determinative factor in a selection decision.

[61 FR 14505, Apr. 2, 1996]

                   Subpart 1516.4--Incentive Contracts



Sec. 1516.404-2  Cost-plus-award-fee contracts.



Sec. 1516.404-272  Definitions.

    (a) Performance Evaluation Board (PEB). Group of Government 
officials responsible for assessing the quality of contract performance 
and recommending the appropriate fee.
    (b) Fee Determination Official. Individual responsible for reviewing 
the recommendations of the PEB and making the final determination of the 
amount of award fee to be awarded to the contractor.

[60 FR 43404, Aug. 21, 1995]



Sec. 1516.404-273  Limitations.

    (a) No award fee may be earned if the Fee Determination Official 
determines that contractor performance has been satisfactory or less 
than satisfactory. A contractor may earn award fee only for performance 
rated above satisfactory or excellent. All award fee plans shall 
disclose to offerors the numerical rating necessary to be deemed ``above 
satisfactory'' or ``excellent'' for award fee purposes.
    (b) The base fee shall not exceed three percent of the estimated 
cost of the contract, exclusive of the fee.
    (c) Unearned award fee may not be carried forward from one 
performance period into a subsequent performance period unless approved 
by the FDO.
    (d) The payment of award fee on a provisional basis is not 
authorized.

[60 FR 43404, Aug. 21, 1995]



Sec. 1516.404-274  Waiver.

    The Chief of the Contracting Office may waive the limitations in 
paragraphs (a), (b), and (d) of 1516.404-273 on a case-by-case basis 
when unusual or compelling circumstances exist. The waiver shall be 
supported by a justification and coordinated with the Procurement Policy 
Branch in the Office of Acquisition Management.

[60 FR 43404, Aug. 21, 1995]



Sec. 1516.405  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.216-70, 
Award fee (May 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
    (b) The Contracting Officer shall insert the clause at 1552.216-75, 
Base Fee and Award Fee Proposal (SEPT 1995), in all solicitations which 
contemplate the award of cost-plus-award-fee contracts. The Contracting 
Officer shall insert the appropriate percentages.

[60 FR 43404, Aug. 21, 1995, as amended at 64 FR 3876, Jan. 26, 1999; 65 
FR 31500, May 18, 2000]

[[Page 35]]

              Subpart 1516.5--Indefinite-Delivery Contracts



Sec. 1516.505  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-72, 
Ordering--By Designated Ordering Officers, in indefinite delivery/
indefinite quantity type solicitations and contracts.
    (b) The Contracting Officer shall insert the clause in 1552.216-73, 
Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
Contract, in solicitations and contracts to specify fixed rates for 
services.

  Subpart 1516.6--Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 1516.603  Letter Contracts.



Sec. 1516.603-1  What is a Notice to Proceed?

    (a) A Notice to Proceed (NTP) is a type of letter contract issued 
pursuant to FAR 16.603 under which an EPA Federal Classification Series 
1102 (FCS) contracting officer or a duly authorized EPA on-scene 
coordinator with delegated procurement authority may initiate, in 
certain defined situations and subject to certain limitations and 
conditions, contracting actions to respond to certain situations as 
described in CERCLA section 104(a)(1) (42 U.S.C. 9604(a)(1)) and the 
Clean Water Act sections 311(c)(2) and (e)(1)(B) (33 U.S.C. 1321(c)(2) 
and (e)(1)(B)). An NTP may be utilized as a contractual instrument for 
certain--
    (1) Actions that EPA is authorized to undertake under CERCLA section 
104(a)(1), 42 U.S.C. 9604(a)(1), and the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300), to respond to 
situations where any hazardous substance has been released or there is a 
substantial threat of such a release into the environment, or there is a 
release or substantial threat of release into the environment of any 
pollutant or contaminant which may present an imminent and substantial 
danger to the public health or welfare, and
    (2) Actions that EPA is authorized to undertake under sections 
311(c)(2) and (e)(1)(B) of the Clean Water Act, 33 U.S.C. 1321(c)(2) and 
(e)(1)(B), and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR part 300), to respond when there is a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, onshore 
facility, or offshore facility that is a substantial threat to the 
public health or welfare. Pursuant to a class Justification For Other 
Than Full and Open Competition executed under the authority of FAR 
6.302-2 and 6.303-1(c), an NTP may be issued on a non-competitive basis.
    (b) What do subsections 1516.603-1 and 1516.603-2 cover? EPAAR 
1516.603-1 and 1516.603-2 contain information and procedures relating to 
issuance and definitization of an NTP. An NTP is subject to, and must 
comply with, the applicable requirements for letter contracts in FAR 
16.603 and the requirements in this section, and be definitized by an 
EPA FCS 1102 contracting officer.

[66 FR 12900, Mar. 1, 2001]



Sec. 1516.603-2  What are the requirements for use of an NTP?

    (a) An EPA FCS 1102 contracting officer or a duly authorized EPA on-
scene coordinator with a delegation of procurement authority may issue 
an NTP so long as it does not exceed the limits of his or her 
procurement authority and only when all of the following conditions have 
been met:
    (1) A written determination has been made by the Federal on-scene 
coordinator that--
    (i) As authorized by and consistent with CERCLA section 104(a)(1), 
42 U.S.C. 9604(a)(1), and the National Oil and Hazardous Substances 
Pollution Contingency Plan (40 CFR part 300), the EPA must take action 
to respond to a hazardous substance release or substantial threat of 
such a release into the environment, or a release or substantial threat 
of a release into the environment of any pollutant or contaminant which 
may present an imminent and substantial danger to the public health or 
welfare, or

[[Page 36]]

    (ii) As authorized by and consistent with the Clean Water Act 
sections 311(c)(2) and (e)(1)(B), 33 U.S.C. 1321(c)(2) and (e)(1)(B), 
and the National Oil and Hazardous Substances Pollution Contingency Plan 
(40 CFR part 300), the EPA must take action to respond to a discharge, 
or a substantial threat of a discharge (to or upon navigable waters, 
adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, offshore 
facility, or onshore facility that is of such a size and character as to 
pose a substantial threat to the public health or welfare of the United 
States; and
    (2) Before a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority may issue an NTP, he or she must 
confirm that an EPA FCS 1102 contracting officer is not available to 
provide the required contracting support by the time the Federal on-
scene coordinator requires the response action to be undertaken; and
    (3) A written determination is made by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority that there is no other existing contracting 
mechanism available to provide the required contracting support by the 
time required, including the inability of an existing emergency response 
contractor or other existing contract vehicle to respond in the required 
time frame. These conditions, as well as any other requirements 
applicable to NTPs or letter contracts contained in the FAR or EPAAR , 
must be met before an NTP can be issued by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority.
    (b) What should be included in an NTP? (1) Since an NTP is a type of 
letter contract, it is subject to the requirements of FAR 16.603. All of 
the relevant requirements of FAR 16.603 apply to NTP's including FAR 
16.603-2, 16.603-3, and 16.603-4, and an NTP will include all 
appropriate FAR and EPAAR contract clauses. An NTP should also include 
an overall price ceiling and be as complete and definite as possible 
under the circumstances. To the extent NTPs require modification of any 
FAR or EPAAR prescribed procedures or clauses, an appropriate FAR or 
EPAAR deviation will be prepared.
    (2) The EPA FCS 1102 contracting officer or duly authorized EPA on-
scene coordinator with a delegation of procurement authority shall 
include in each NTP the clauses required by the FAR or EPAAR for the 
type of definitive contract contemplated and any additional clauses 
known to be appropriate for it. In addition, the following clauses must 
be inserted in the solicitation (if one is issued) and the NTP when an 
NTP is used:
    (i) The clause at FAR 52.216-23, Execution and Commencement of Work, 
except that the term on-scene coordinator may be used in place of the 
term contracting officer;
    (ii) The clause at FAR 52.216-24, Limitation of Government 
Liability, with dollar amounts completed in a manner consistent with FAR 
16.603-2(d); and
    (iii) The clause at FAR 52.216-25, Contract Definitization, with its 
paragraph (b) completed in a manner consistent with FAR 16.603-2(c) or 
any applicable FAR deviation. The clause at FAR 52.216-26, Payment of 
Allowable Costs Before Definitization, shall also be included in a 
solicitation (if one is issued) and NTPs if a cost-reimbursement 
definitive contract is contemplated.
    (3) Each NTP shall, as required by the clause at FAR 52.216-25, 
Contract Definitization, contain a negotiated definitization schedule 
that includes:
    (i) Dates for submission of the contractor's price proposal, 
required cost and pricing data, and if required, make-or-buy and 
subcontracting plans;
    (ii) The date for the start of negotiations; and
    (iii) A target date for definitization which shall be the earliest 
practicable date for definitization (an NTP must be definitized by an 
EPA FCS 1102 contracting officer). The schedule will provide for 
definitization of the NTP within 90 calendar days after the date of the 
NTP award. However, the EPA FCS 1102 contracting officer may, in extreme 
cases and according to agency

[[Page 37]]

procedures, authorize an additional period. If, after exhausting all 
reasonable efforts, the EPA FCS 1102 contracting officer and the 
contractor cannot negotiate a definitive contract because of failure to 
reach agreement as to price or fee, the clause at 52.216-25 requires the 
contractor to proceed with the work and provides that the contracting 
officer may, with the approval of the head of the contracting activity, 
determine a reasonable price or fee in accordance with subpart 15.4 and 
part 31 of the FAR, subject to appeal as provided in the Disputes 
clause.
    (4) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall, as approved by 
the official who authorized the NTP, be the estimated amount necessary 
to cover the contractor's requirements for funds to complete the work to 
be performed under the NTP. However, it shall not exceed the estimated 
cost of the definitive contract.
    (c) Are there any financial or monetary limitations on the use of an 
NTP? In addition to the requirements for issuance of an NTP set forth 
elsewhere in this subpart--
    (1) The total definitized dollar value of an individual NTP shall 
not exceed $200,000.00, and
    (2) The applicable Program Office must commit and make available 
appropriate funding for the emergency response action taken under the 
NTP prior to NTP issuance.
    (d) Are there any other procedural requirements for issuance of an 
NTP? An NTP must be issued in writing by the EPA FCS 1102 contracting 
officer or the duly authorized EPA on-scene coordinator with a 
delegation of procurement authority using a Standard Form 33. In 
addition, the EPA FCS 1102 contracting officer or the EPA on-scene 
coordinator awarding the NTP must ensure that the NTP complies with all 
applicable requirements for letter contracts set forth in the FAR and 
the requirements of this section, includes all relevant provisions and 
clauses, and that all actual or potential conflict of interest or other 
contracting issues are identified and resolved prior to NTP issuance. To 
assist the EPA on-scene coordinator and EPA FCS 1102 contracting officer 
in their responsibilities regarding NTP award, an NTP checklist will be 
completed by the EPA FCS 1102 contracting officer or EPA on-scene 
coordinator prior to issuance of the NTP.
    (e) What happens after an NTP is awarded to a contractor? (1) If an 
NTP is issued by a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, he or she must notify the cognizant 
EPA FCS 1102 contracting officer of the NTP award, and provide the NTP 
checklist to the contracting officer, as soon as possible but in no 
event later than the next working day after NTP issuance.
    (2) Within 5 working days of the EPA on-scene coordinator's award of 
an NTP, the on-scene coordinator shall provide to the cognizant EPA FCS 
1102 contracting officer all NTP documents, materials, and information 
necessary for the contracting officer to definitize the contract, and 
should retain a copy for his/her records. An EPA FCS 1102 contracting 
officer will be responsible for definitization of the NTP consistent 
with the definitization procedures set forth in this subpart. During the 
process of definitizing the NTP, the EPA FCS 1102 contracting officer 
will send the contractor the ``Representations, Certifications, and 
Other Statements of Offerors'' for completion. The contractor will 
complete this information, and any other required information, and 
submit it to the EPA FCS 1102 contracting officer prior to 
definitization of the NTP.
    (f) The CCO, who is authorized by EPAAR 1516.603-3 to make the 
determination to use a letter contract, shall make a class determination 
and findings authorizing EPA FCS 1102 contracting officers and duly 
authorized EPA on-scene coordinators with delegations of procurement 
authority to award NTPs pursuant to the conditions set forth in this 
subpart.

[66 FR 12900, Mar. 1, 2001]



Sec. 1516.603-3  Limitations.

    The CCO is authorized to make the determination in FAR 16.603-3.

[55 FR 24580, June 18, 1990, as amended at 59 FR 18976, Apr. 21, 1994]

[[Page 38]]

                 PART 1517--SPECIAL CONTRACTING METHODS

                         Subpart 1517.2--Options

Sec.

Sec. 1517.204  Contracts.

Sec. 1517.207  Exercise of options.

Sec. 1517.208  Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8854, Mar. 8, 1984, unless otherwise noted.

                         Subpart 1517.2--Options



Sec. 1517.204  Contracts.

    The SCM may approve a contract with a base contract period and 
option periods which total in excess of five (5) years, unless otherwise 
prohibited by statute.

[60 FR 12713, Mar. 8, 1995, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1517.207  Exercise of options.

    (a) Unless otherwise approved by the Chief of the Contracting 
Office, contracts for services employing option periods shall require 
that a preliminary written notice of the Government's intention to 
exercise the option be furnished to the Contractor a minimum of sixty 
(60) calendar days prior to the date for the exercise of the option. 
Failure to provide such preliminary notice within the timeframe 
established in the contract waives the Government's right to 
unilaterally exercise the option and requires the negotiation of a 
bilateral contract modification in order to extend the period of 
performance, where such an extension is authorized.
    (b) When the term of the service contract coincides with the fiscal 
year and delays in receipt of authority to obligate funds for the new 
fiscal year are anticipated, the Contracting Officer, if the contract so 
provides (see FAR 17.204(d)), may, within 60 days after the end of the 
fiscal year, unilaterally exercise an option to extend the term of the 
contract. The option may be exercised only if funds become available 
within the 60-day period. In the event that sufficient funding is not 
available within the 60 day period, the Government waives the right to 
exercise the option, thereby rendering any additional requirements 
subject to full and open competition requirements.
    (c) The Contracting Officer, if the contract so provides, may, 
subject to the conditions in FAR 17.204(d), 32.703-2, and 32.705-1(a), 
exercise an option contingent upon the availability of funds. To 
exercise such an option, the contract must contain the clause in FAR 
52.232-18, Availability of Funds. Under no circumstances shall any 
action be taken which could be construed as creating a legal liability 
on the part of the Government until a formal notice of availability of 
funds in the form of a contract modification has been issued by the 
Contracting Officer.

[49 FR 8854, Mar. 8, 1984, as amended at 50 FR 14359, Apr. 11, 1985]



Sec. 1517.208  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.217-71, 
Option To Extend the Term of the Contract--Cost-Type Contract, when 
applicable.
    (b) The Contracting Officer shall insert the clause at 1552.217-72, 
Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract, 
when applicable.
    (c) The Contracting Officer shall insert the clause at 1552.217-73, 
Option for Increased Quantity--Cost-Type Contract, when applicable.
    (d) The Contracting Officer shall insert the clause at 1552.217-74, 
Option for Increased Quantity--Cost-Plus-Award-Fee Contract, when 
applicable.
    (e) The Contracting Officer shall insert the clause at 1552.217-75, 
Option To Extend the Effective Period of the Contract--Time and 
Materials or Labor Hour Contract, when applicable.
    (f) The Contracting Officer shall insert the clause at 1552.217-76, 
Option To Extend the Effective Period of the Contract--Indefinite 
Delivery/Indefinite Quantity Contract, when applicable.
    (g) The Contracting officer shall insert the clause at 1552.217-77, 
Option to Extend the Term of the Contract--Fixed Price, when applicable.

[49 FR 8854, Mar. 8, 1984, as amended at 65 FR 58923, Oct. 3, 2000]

[[Page 39]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

                   PART 1519--SMALL BUSINESS PROGRAMS

                        Subpart 1519.2--Policies

Sec.

Sec. 1519.201  Policy.

Sec. 1519.201-71  Director of Small and Disadvantaged Business 
          Utilization.

Sec. 1519.201-72  Small and disadvantaged business utilization 
          specialists.

Sec. 1519.202-5  Data collection and reporting requirements.

Sec. 1519.203  Mentor-protege.

Sec. 1519.204  Small disadvantaged business participation.

              Subpart 1519.5--Set-Asides for Small Business


Sec. 1519.501  Review of acquisitions.

Sec. 1519.503  Class set-aside for construction.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

      Subpart 1519.7--Subcontracting with Small Business and Small 
                     Disadvantaged Business Concerns


Sec. 1519.705-2  Determining the need for a subcontract plan.

Sec. 1519.705-4  Reviewing the subcontracting plan.

Sec. 1519.705-70  Synopsis of contracts containing Pub. L. 95-507 
          subcontracting plans and goals.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8855, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1519 appear at 61 FR 
57338, Nov. 6, 1996.

                        Subpart 1519.2--Policies



Sec. 1519.201  Policy.

    Each program's Assistant or Associate Administrator shall be 
responsible for developing its socioeconomic goals on a fiscal year 
basis. The goals shall be developed in collaboration with the supporting 
Chiefs of Contracting Offices and the local Small Business Specialist 
(SBS), and the Office of Small and Disadvantaged Business Utilization 
(OSDBU). The goals will be based on advance procurement plans and past 
performance. The goals shall be submitted to the Director, OSDBU, at 
least thirty (30) days prior to the start of the fiscal year.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



Sec. 1519.201-71  Director of Small and Disadvantaged Business 
          Utilization.

    The Director, OSDBU, provides guidance and advice, as appropriate, 
to Agency program and contracts officials on small and small 
disadvantaged business programs. The Director, OSDBU, is the central 
point of contact for inquiries concerning the small and disadvantaged 
business programs from industry, the Small Business Administration 
(SBA), and the Congress, and shall advise the Administrator and staff of 
such inquiries as required. The Director, OSDBU, shall represent the 
Agency in the negotiations with the other Government agencies on small 
and small disadvantaged business matters.

[49 FR 8855, Mar. 8, 1984. Redesignated at 62 FR 57338, 57339, Nov. 6, 
1997]



Sec. 1519.201-72  Small and disadvantaged business utilization 
          specialists.

    (a) Small Business Specialists (SBS) shall be appointed in writing 
for each contracting office. The SBS will normally be appointed from 
members of staffs of the appointing authority. The SBS is 
administratively responsible directly to the appointing authority and, 
on matters relating to small and small disadvantaged business program 
activities, receives technical guidance from the Director, OSDBU. The 
appointing authorities are the Chiefs of the Contracting Offices.
    (b) A copy of each appointment and termination of all SBS 
specialists shall be forwarded to the Director, OSDBU. In addition to 
performing the duties outlined in paragraph (c) of this section that are 
normally performed in the activity to which assigned, the SBS shall 
perform such additional functions as may be prescribed from time to time 
in furtherance of overall small and

[[Page 40]]

small disadvantaged business utilization program goals. The SBS may be 
appointed on either a full- or part-time basis; however, when appointed 
on a part-time basis, the small business duty shall take precedence over 
collateral responsibilities.
    (c) The SBS appointed pursuant to paragraph (a) of this section, 
shall perform the following duties as appropriate:
    (1) Maintain a program designed to locate capable small business 
sources for current and future acquisitions;
    (2) Coordinate inquiries and requests for advice from small and 
small disadvantaged business concerns on acquisition matters;
    (3) Review all proposed solicitations in excess of the simplified 
acquisition threshold, assure that small business concerns will be 
afforded an equitable opportunity to compete, and, as appropriate, 
initiate recommendations for small business set-asides, or offers of 
requirements to the SBA for the 8(a) program, and complete EPA Form 
1900-37, ``Record of Procurement Request Review,'' as appropriate:
    (4) Take action to assure the availability of adequate 
specifications and drawings, when necessary, to obtain small business 
participation in an acquisition. When small business concerns cannot be 
given an opportunity on a current acquisition, initiate action, in 
writing, with appropriate technical and contracting personnel to ensure 
that necessary specifications and/or drawings for future acquisitions 
are available.
    (5) Review proposed contracts for possible breakout of items or 
services suitable for acquisition from small business and small 
disadvantaged business concerns;
    (6) Advise small businesses with respect to the financial assistance 
available under existing laws and regulations and assist such concerns 
in applying for financial assistance;
    (7) Participate in the evaluation of a prime contractor's small 
business subcontracting programs;
    (8) Assure that adequate records are maintained, and accurate 
reports prepared, concerning small business participation in acquisition 
programs (see 1519.202-5);
    (9) Make available to SBA copies of solicitations when so requested;
    (10) Act as liaison with the appropriate SBA office or 
representative in connection with set-asides, certificates of 
competency, size classification, and any other matter concerning the 
small or small disadvantaged business programs.

[49 FR 8855, Mar. 8, 1984, as amended at 55 FR 24579, June 18, 1990. 
Redesignated and amended at 61 FR 57338, 57339, Nov. 6, 1996]



Sec. 1519.202-5  Data collection and reporting requirements.

    (a) As required, monthly reports of factual information, covering 
acquisition actions and dollars awarded to small businesses, small 
disadvantaged businesses, women-owned small businesses, the Small 
Business Administration under the authority of section 8(a) of the Small 
Business Act, and information on actions and dollars made under small 
business set-asides shall be submitted by the Procurement and Contracts 
Management Division, to the Director, OSDBU.
    (b) The Financial Management Division will submit to the Director, 
OSDBU, a copy of the Small Purchase Activity Report that shows by each 
EPA purchasing activity the following information (cumulative monthly) 
for small purchases:
    (1) Total actions and dollar value of awards;
    (2) Total actions and dollar value of awards to all businesses;
    (3) Total actions and dollar value of awards to small businesses;
    (4) Total actions and dollar value of construction awards to small 
businesses made by set-aside;
    (5) Total actions and dollar value of small business awards made by 
set-asides, excluding set-asides for construction;
    (6) Total actions and dollar value of awards made to the Small 
Business Administration pursuant to section 8(a) of the Small Business 
Act; and
    (7) Total actions and dollar value of awards made to small 
disadvantaged businesses.
    (c) The reports identified in paragraphs (a) and (b) of this section 
are to be submitted to the Director, OSDBU, no later than the 20th day 
following

[[Page 41]]

the end of the reporting period with the exception of the last report of 
the fiscal year which shall be submitted no later than the 30th day 
following the end of the fiscal year.



Sec. Sec. 1519.203  Mentor-protege.

    (a) The Contracting officer shall insert the clause at 1552.219-70, 
Mentor-Protege Program, in all contracts under which the Contractor has 
been approved to participate in the EPA Mentor-Protege Program.
    (b) The Contracting officer shall insert the provision at 1552.219-
71, Procedures for Participation in the EPA Mentor-Protege Program, in 
all solicitations valued at $500,000 or more which will be cost-plus-
award-fee or cost-plus fixed-fee contracts.

[65 FR 58923, Oct. 3, 2000]



Sec. Sec. 1519.204  Small disadvantaged business participation.

    (a) The Contracting officer shall insert the provision at 1552.219-
72, Small Disadvantaged Business Participation Program, or a provision 
substantially the same as 1552.219-72, in solicitations for acquisitions 
subject to FAR 19.12 that will evaluate the extent of the participation 
of Small Disadvantaged Business (SDB) concerns in the performance of a 
resulting contract.
    (b) The Contracting officer shall insert the clause at 1552.219-73, 
Small Disadvantaged Business Targets, or one substantially the same as 
1552.219-73, in solicitations and contracts for acquisitions subject to 
FAR 19.12 that evaluate the extent of participation of SDB concerns in 
the performance of the contract and which included solicitation 
provision 1552.219-72.
    (c) The Contracting officer shall insert the evaluation provision at 
1552.219-74, Small Disadvantaged Business Participation Evaluation 
Factor, (and assign a value to it), or one substantially the same as 
1552.219-74, in solicitations for acquisitions subject to FAR 19.12 that 
include the provision at 1552.219-72 and will evaluate the extent of 
participation of SDB concerns in the performance of the contract.

[65 FR 58923, Oct. 3, 2000]

              Subpart 1519.5--Set-Asides for Small Business



Sec. 1519.501  Review of acquisitions.

    (a) If no Small Business Administration (SBA) representative is 
available, the Small Business Specialist (SBS) shall initiate 
recommendations to the Contracting Officer for small business set-asides 
with respect to individual acquisitions or classes of acquisitions or 
portions thereof.
    (b) When the SBS has recommended that all, or a portion, of an 
individual acquisition or class of acquisitions be set aside for small 
business, the Contracting Officer shall promptly either: (1) Concur in 
the recommendation or (2) disapprove the recommendation, stating in 
writing the reasons for disapproval. If the Contracting Officer 
disapproves the recommendation of the SBS, the SBS may appeal to the 
appropriate appointing authority, whose decision shall be final.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



Sec. 1519.503  Class set-aside for construction.

    (a) Each proposed acquisition for construction estimated to cost 
between $10,000 and $1,000,000 shall be set-aside for exclusive small 
business participation. Such set-asides shall be considered to be 
unilateral small business set-asides, and shall be withdrawn in 
accordance with the procedure of FAR 19.506 only if found not to serve 
the best interest of the Government.
    (b) Small business set-aside preferences for construction 
acquisitions in excess of $1,000,000 shall be considered on a case-by-
case basis.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

[[Page 42]]

      Subpart 1519.7--Subcontracting With Small Business and Small 
                     Disadvantaged Business Concerns



Sec. 1519.705-2  Determining the need for a subcontract plan.

    One copy of the determination required by FAR 19.705-2(c) shall be 
placed in the contract file and one copy provided the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU).



Sec. 1519.705-4  Reviewing the subcontracting plan.

    In determining the acceptability of a proposed subcontracting plan, 
the Contracting Officer shall obtain advice and recommendations from the 
OSDBU, which shall in turn coordinate review by the Small Business 
Administration Procurement Center Representative (if any).



Sec. 1519.705-70  Synopsis of contracts containing Pub. L. 95-507 
          subcontracting plans and goals.

    The synopsis of contract award, where applicable, shall include a 
statement identifying the contract as one containing Pub. L. 95-507 
subcontracting plans and goals.

[49 FR 8855, Mar. 8, 1984; 49 FR 24734, June 15, 1984]

                 PART 1520--LABOR SURPLUS AREA CONCERNS

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

Subpart 1520.1--General [Reserved]

Subpart 1520.3--Labor Surplus Area Subcontracting Program [Reserved]

     PART 1522--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                  Subpart 1522.1--Basic Labor Policies

Sec.

Sec. 1522.103  Overtime.

            Subpart 1522.6--Walsh-Healey Public Contracts Act


Sec. 1522.608  Procedures.

              Subpart 1522.8--Equal Employment Opportunity


Sec. 1522.803  Responsibilities.

Sec. 1522.804  Affirmative action programs.

Sec. 1522.804-2  Construction.

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, June 15, 1984, unless otherwise noted.

                  Subpart 1522.1--Basic Labor Policies



Sec. 1522.103  Overtime.

            Subpart 1522.6--Walsh-Healey Public Contracts Act



Sec. 1522.608  Procedures.

              Subpart 1522.8--Equal Employment Opportunity



Sec. 1522.803  Responsibilities.

    If the applicability of E.O. 11246 and implementing regulations are 
questioned, the Contracting Officer shall route the matter through the 
CCO to the EPA Office of Civil Rights.

[49 FR 8857, June 15, 1984, as amended at 55 FR 24579, June 18, 1990; 59 
FR 18976, Apr. 21, 1994]



Sec. 1522.804  Affirmative action programs.



Sec. 1522.804-2  Construction.

    Each contracting office having construction contract responsibility 
shall maintain a list of geographical areas subject to affirmative 
action requirements. The list can be obtained from

[[Page 43]]

the Office of Contract Compliance Programs, U.S. Department of Labor.

[49 FR 8857, Mar. 8, 1984; 49 FR 24734, June 15, 1984]

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]

 PART 1523--ENVIRONMENTAL, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
                             FREE WORKPLACE

       Subpart 1523.3--Hazardous Material and Material Safety Data

Sec.

Sec. 1523.303  Contract clause.

Sec. 1523.303-70  Protection of human subjects.

Sec. 1523.303-71  Decontamination of Government-furnished property.

Sec. 1523.303-72  Care of laboratory animals.

          Subpart 1523.70--Energy-Efficient Computer Equipment


Sec. 1523.7000  Background.

Sec. 1523.7001  Policy.

Sec. 1523.7002  Waivers.

Sec. 1523.7003  Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, Mar. 8, 1984, unless otherwise noted.

       Subpart 1523.3--Hazardous Material and Material Safety Data



Sec. 1523.303  Contract clause.



Sec. 1523.303-70  Protection of human subjects.

    Contracting Officers shall insert the contract clause at 1552.223-70 
when the contract involves human test subjects.



Sec. 1523.303-71  Decontamination of Government-furnished property.

    Contracting Officers shall insert the contract clause at 1552.245-
70, Decontamination of Government-Furnished Property, when it is 
anticipated that a Contractor will use Government-furnished or 
Contractor-acquired property in the clean-up of hazardous or toxic 
substances in the environment.



Sec. Sec. 1523.303-72  Care of laboratory animals.

    Contracting officers shall insert the clause at 1552.223-72, Care of 
Laboratory Animals, in all contracts involving the use of experimental 
animals.

[65 FR 58923, Oct. 3, 2000]

          Subpart 1523.70--Energy-Efficient Computer Equipment

    Source: 61 FR 14506, Apr. 2, 1996, unless otherwise noted.



Sec. 1523.7000  Background.

    (a) Executive Order 12845 requires the Federal Government to 
purchase only microcomputers, including personal computers, monitors and 
printers, which meet ``EPA Energy Star'' requirements for energy 
efficiency. This equipment is often identified by the Energy 
StarTM logo and is capable of entering and recovering from an 
energy-efficient low power state.
    (b) The EPA Energy Star Computer Program is a voluntary partnership 
effort with the computer industry to promote the introduction of energy-
efficient personal computers, monitors, and printers which can reduce 
air pollution caused by utility power generation, and ease the burden on 
building air conditioning and electrical systems. The Energy Star 
Program is designed to be a self-certifying computer industry program, 
policed informally by the computer industry itself.
    (c) FIRMR Bulletin C-35 (dated 11/19/93) describes procedures that 
will promote the acquisition of energy-efficient microcomputers and 
associated computer equipment.



Sec. 1523.7001  Policy.

    (a) The ``Energy Star'' Executive Order (E.O. 12845) applies to the 
following equipment:
    (1) Personal Computers (stand-alone).
    (2) Personal Computers (end-user on network).
    (3) Notebook and other portable computers.

[[Page 44]]

    (4) PC printers - laser, inkjet or dot matrix (stand-alone or 
networked).
    (5) High-speed printers used on a PC network (less than 
approximately 20 pages per minute).
    (6) Monitors (CRT or Flat-panel LCD).
    (b) ``Energy Star'' requirements do not apply to the following 
equipment:
    (1) Workstations.
    (2) File servers.
    (3) Mainframe equipment.
    (4) Minicomputers.
    (5) High-speed printers used with mainframe computers (30 or more 
pages per minute).
    (6) Mainframe or ``dumb'' terminals.
    (7) X-terminals.
    (c) All new acquisitions for microcomputers, including personal 
computers, monitors, and printers, shall contain specifications which 
meet EPA Energy Star requirements for energy efficiency unless a waiver 
has been obtained in accordance with internal Agency procedures. The EPA 
Energy Star requirement applies in instances where the Contracting 
Officer authorizes the contractor to acquire property in accordance with 
FAR 45.302-1.
    (d) The Energy Star requirement also applies to all applicable 
equipment ordered from GSA Schedule Contracts, open market buys, and 
Bankcard purchases.



Sec. 1523.7002  Waivers.

    (a) There are several types of computer equipment which technically 
fall under the current Energy Star Program, but for which EPA 
established blanket waivers because Energy Star compliant versions of 
this equipment were unavailable in the marketplace. Blanket waivers 
apply to the following types of equipment:
    (1) LAN servers, including file servers; application servers; 
communication servers; including bridges and routers;
    (2) UNIX RISC based processors with their high-end monitors;
    (3) Large LAN printers (greater than 19 pages/minute output); and
    (4) Scientific computing equipment which is used for real-time data 
acquisition and which, if subjected to a power down mode, would 
jeopardize the research project.
    (b) It is anticipated that there will be Energy Star models of this 
equipment in the future, but in the near term EPA will not specify 
Energy Star qualifications when purchasing the items listed in this 
section.



Sec. 1523.7003  Contract clause.

    (a) Rehabilitation Act Notice.
    Contracting officers shall insert the clause at 1552.239-70, 
Rehabilitation Act Notice, or one substantially the same as this clause, 
in all solicitations and contracts where the contractor may be required 
to provide any type of support to EPA in connection with EPA programs 
and activities, including conferences, symposia, workgroups, meetings, 
etc.
    (b) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.239-103, Acquisition of Energy Star Compliant 
Microcomputers, Including Personal Computers, Monitors, and Printers, in 
all solicitations and contracts for the acquisition of microcomputers, 
including personal computers, monitors and printers. The Contracting 
Officer shall also insert the clause in solicitations and contracts 
where the Contracting Officer authorizes the contractor to acquire 
property in accordance with FAR 45.302-1.

[61 FR 14506, Apr. 2, 1996, as amended at 65 FR 58923, Oct. 3, 2000]

       PART 1524--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 1524.1--Protection of Individual Privacy

Sec.

Sec. 1524.104  Solicitation provisions.

Subpart 1524.2--Freedom of Information Act [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

[[Page 45]]

            Subpart 1524.1--Protection of Individual Privacy



Sec. 1524.104  Solicitation provisions.

    The Contracting Officer shall insert the provision at 1552.224-70, 
Social Security Numbers of Consultants and Certain Sole Proprietors and 
Privacy Act Statement, in all solicitations.

[49 FR 8858, Mar. 8, 1984]

Subpart 1524.2--Freedom of Information Act [Reserved]

                     PART 1525--FOREIGN ACQUISITION

Subpart 1525.1--Buy American Act--Supplies [Reserved]

[[Page 46]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                PART 1527--PATENTS, DATA, AND COPYRIGHTS

              Subpart 1527.4--Rights in Data and Copyrights

Sec.

Sec. 1527.404  Basic rights in data clause.

Sec. 1527.409  Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

              Subpart 1527.4--Rights in Data and Copyrights



Sec. 1527.404  Basic rights in data clause.

    The Contracting Officer shall insert in the Limited Rights Notice 
when using Alternate II of FAR 52.227-14 the following purposes for 
disclosure of limited data outside the Government.
    (a) Use (except for manufacture) by support service contractors;
    (b) Evaluation by nongovernment evaluators;
    (c) Use (except for manufacture) by other contractors participating 
in the Government's program of which the specific contract is a part, 
for information and use in connection with the work performed under each 
contract;
    (d) Emergency repairs or overhaul work;
    (e) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government.

[55 FR 48623, Nov. 21, 1990]



Sec. 1527.409  Solicitation provisions and contract clauses.

    The Contracting Officer shall insert the clause in 1552.227-76 in 
all Superfund solicitations and contracts in excess of the simplified 
acquisition threshold and, as appropriate, in simplified acquisition 
procedures. The clause may be used in other contracts if considered 
necessary by the Contracting Officer.

[59 FR 18620, Apr. 19, 1994, as amended at 61 FR 57339, Nov. 6, 1996]

                          PART 1528--INSURANCE

                        Subpart 1528.1--Insurance



Sec. 1528.101  Insurance liability to third persons.

    Contracting officers shall insert the clause at 1552,228-70, 
Insurance Liability to Third Persons, in cost-reimbursement 
solicitations and contracts, except those for construction and 
architect-engineer services. Note: This clause may be used in contracts 
awarded utilizing architect-engineer services such as requirements for 
Superfund cleanups (e.g., response action contracts). The clause does 
not apply to Superfund indemnification for third party pollution 
liability or coverage for commercial pollution liability insurance as 
prescribed by section 119 of CERCLA as amended by SARA.

[65 FR 58923, Oct. 3, 2000]

                            PART 1529--TAXES

                  Subpart 1529.3--State and Local Taxes


Sec. 1529.303  Application of State and local taxes to Government 
          contractors and subcontractors.

                    Subpart 1529.4--Contract Clauses


Sec. 1529.401  Domestic contracts.

Sec. 1529.401-70  Cost-reimbursable type contracts.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 54 FR 49998, Dec. 4, 1989, unless otherwise noted.

                  Subpart 1529.3--State and Local Taxes



Sec. 1529.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    Contractors are responsible for determining the availability of 
State and local tax exemptions and obtaining such exemptions, if 
available, unless the Contracting Officer determines

[[Page 47]]

under FAR 31.205-41(b)(3) that the administrative burden outweighs the 
corresponding benefit. Contractors are responsible for ensuring that 
subcontractors also seek and obtain such exemptions, if available.

                    Subpart 1529.4--Contract Clauses



Sec. 1529.401  Domestic contracts.



Sec. 1529.401-70  Cost-reimbursable type contracts.

    Contracting Officers shall insert the clause at 1552.229-70 in all 
solicitations and contracts when it is anticipated a cost-reimbursable 
type contract shall be used or a contractor or subcontractor shall be 
reimbursed for materials at cost.

                  PART 1530--COST ACCOUNTING STANDARDS

Subpart 1530.3--CAS Contract Requirements [Reserved]

           PART 1531--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 1531.1--Applicability [Reserved]

                      PART 1532--CONTRACT FINANCING

Sec.

Sec. 1532.006  Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 1532.006-1  General.

Sec. 1532.006-2  Definitions.

Sec. 1532.006-3  Responsibilities.

                         Subpart 1532.1--General


Sec. 1532.102  Description of contract financing methods.

Sec. 1532.111  Contract clauses.

Sec. 1532.170  Forms.

           Subpart 1532.2--Commercial Item Purchase Financing


Sec. 1532.201  Statutory authority.

Subpart 1532.4--Advance Payments [Reserved]

                  Subpart 1532.8--Assignment of Claims


Sec. 1532.805  Procedure.

Sec. 1532.805-70  Forms.

                     Subpart 1532.9--Prompt Payment


Sec. 1532.908  Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8858, Mar. 8, 1984, unless otherwise noted.



Sec. 1532.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 1532.006-1  General.

    (a)-(b) [Reserved]
    (c) Agency responsibilities and determinations under FAR 32.006 are, 
consistent with FAR 32.006-1(c), delegated to the Head of the 
Contracting Activity, if that individual is not below Level IV of the 
Executive Schedule. If the Head of the Contracting Activity is below 
Level IV of the Executive Schedule, then Agency responsibilities and 
determinations under FAR 32.006 are delegated to the Assistant 
Administrator for Administration and Resources Management.

[65 FR 37292, June 14, 2000]



Sec. 1532.006-2  Definitions.

    The Remedy Coordination Official for EPA is the Assistant Inspector 
General for Investigations.

[65 FR 37292, June 14, 2000]



Sec. 1532.006-3  Responsibilities.

    (a) EPA shall use the procedures in FAR 32.006-4 when determining 
whether to reduce or suspend further payments to a contractor when there 
is a report from the Remedy Coordination Official finding substantial 
evidence that the contractor's request for advance, partial or progress 
payments is based on fraud and recommending that the Agency reduce or 
suspend such payments to the contractor.
    (b) [Reserved]

[65 FR 37292, June 14, 2000]

[[Page 48]]

                         Subpart 1532.1--General



Sec. 1532.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under EPA contracts or 
subcontracts for construction and alteration or repair of buildings, 
structures, or other real property.

[60 FR 38505, July 27, 1995]



Sec. 1532.111  Contract clauses.

    The Contracting Officer shall insert the clause at 1552.232-73, 
Payments--Fixed Rate Services Contract, in solicitations and indefinite 
delivery/indefinite quantity contracts when services are being acquired 
on a fixed-rate basis.



Sec. 1532.170  Forms.

    (a) EPA Form 1900-10 Contractor's Cumulative Claim and 
Reconciliation, at 1553.232-74, shall be used for an accounting of the 
cumulative charges and costs for cost-reimbursement contracts from 
inception of the contract to completion. It shall be submitted by the 
Contractor upon submission of the completion voucher.
    (b) EPA Form 1900-68, Notice of Contract Costs Suspended and/or 
Disallowed, at 1553.232-75, shall be inserted in all cost-reimbursement 
type and fixed-rate type contracts.

[49 FR 8858, Mar. 8, 1984, as amended at 61 FR 29317, June 10, 1996]

           Subpart 1532.2--Commercial Item Purchase Financing



Sec. 1532.201  Statutory authority.

    Authority for making the determination under FAR 32.201 is delegated 
to a level above the Contracting Officer.

[61 FR 57339, Nov. 6, 1996]

Subpart 1532.4--Advance Payments [Reserved]

                  Subpart 1532.8--Assignment of Claims



Sec. 1532.805  Procedure.



Sec. 1532.805-70  Forms.

    (a) EPA Form 1900-3, Assignee's Release, at 1553.232-70 is required 
to be submitted by the assignee for cost-reimbursement contracts prior 
to final payment under the contract.
    (b) EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, 
Credits, and Other Amounts, at 1553.232-71 must accompany the assignee's 
release prior to final payment under cost-reimbursement contracts.
    (c) EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates and 
Credits, at 1553.232-72 must be prepared by the Contractor prior to 
final payment under cost-reimbursement contracts and must accompany the 
Contractor's Release.
    (d) EPA Form 1900-6, Contractor's Release, at 1553.232-73 must be 
submitted by the Contractor prior to final payment under cost-
reimbursement contracts.

                     Subpart 1532.9--Prompt Payment



Sec. 1532.908  Contract clauses.

    The Contracting Officer shall insert a clause substantially the same 
as that at 1552.232-70 in all solicitations and contracts for cost 
reimbursable acquisitions. If a fixed-rate type contract is 
contemplated, the Contracting Officer shall use the clause with its 
Alternate I.

[61 FR 29317, June 10, 1996]

                PART 1533--PROTESTS, DISPUTES AND APPEALS

                        Subpart 1533.1--Protests

Sec.

Sec. 1533.103  Protests to the Agency.

                  Subpart 1533.2--Disputes and Appeals


Sec. 1533.203  Applicability.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 50 FR 14359, Apr. 11, 1985, unless otherwise noted.

[[Page 49]]

                        Subpart 1533.1--Protests



Sec. 1533.103  Protests to the Agency.

    Protests to the Agency are processed pursuant to the requirements of 
FAR 33.103. Contracting Officers must include in every solicitation the 
provision at 1552.233-70, Notice of Filing Requirements for Agency 
Protests.

[64 FR 17110, Apr. 8, 1999]

                  Subpart 1533.2--Disputes and Appeals



Sec. 1533.203  Applicability.

    Pursuant to an interagency agreement between the EPA and the 
Department of the Interior Board of Contract Appeals (IBCA), the IBCA 
will hear appeals from final decisions of EPA Contracting Officers 
issued pursuant to the Contract Disputes Act. The rules and regulations 
of the IBCA appear in 43 CFR part 4.

[[Page 50]]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

             PART 1535--RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1535.007  Solicitations.

Sec. 1535.007-70  Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).



Sec. 1535.007  Solicitations.

    (a) Contracting officers shall insert 48 CFR 1552.235-73, Access to 
Federal Insecticide, Fungicide, and Rodenticide Act Confidential 
Business Information, in all solicitations when the contracting officer 
has determined that EPA may furnish the contractor with confidential 
business information which EPA had obtained from third parties under the 
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et 
seq.).
    (b) Contracting officers shall insert 48 CFR 1552.235-75, Access to 
Toxic Substances Control Act Confidential Business Information, in all 
solicitations when the contracting officer has determined that EPA may 
furnish the contractor with confidential business information which EPA 
had obtained from third parties under the Toxic Substances Control Act 
(15 U.S.C. 2601 et seq.).

[62 FR 38477, July 18, 1997]



Sec. 1535.007-70  Contract clauses.

    The following clauses are prescribed for research and development 
(R&D) contracts. They may also be used in other than R&D contracts when 
applicable (see 1537.110).
    (a) The Contracting Officer shall insert the contract clause at 
1552.235-70, Screening Business Information for Claims of 
Confidentiality, in contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information.
    (b) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-71, Treatment of Confidential Business Information, in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish confidential 
business information to the contractor obtained from third parties under 
the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act (42 
U.S.C. 300f et seq.), the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 301 et seq.), the Resource Conservation and Recovery Act (42 
U.S.C. 301 et seq.), the Federal Insecticide, Fungicide and Rodenticide 
Act (7 U.S.C. 136 et seq.), the Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.), and the 
provision at 48 CFR 1552.235-70, Release of Contractor Confidential 
Business Information. EPA regulations on confidentiality of business 
information in 40 CFR part 2, subpart B require that the contractor 
agree to the clause entitled ``Treatment of Confidential Business 
Information'' before any confidential business information may be 
furnished to the contractor.
    (c) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-76, Treatment of Confidential Business Information (TSCA), in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish the contractor 
with confidential business information obtained from third parties under 
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.). EPA 
regulations on confidentiality of business information in 40 CFR part 2, 
subpart B require that the contractor agree to the clause entitled 
``Treatment of Confidential Business Information'' before any 
confidential business information may be furnished to the contractor.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-77, Data Security for Federal Insecticide,

[[Page 51]]

Fungicide, and Rodenticide Act, Confidential Business Information, when 
the contract involves access to confidential business information 
related to the Federal Insecticide, Fungicide, and Rodenticide Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-71) and the Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-78, Data Security for Toxic Substances Control Act Confidential 
Business Information, when the contract involves access to confidential 
business information related to the Toxic Substances Control Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-76) and Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (f) Contracting Officers shall insert the clause 48 CFR 1552.235-79, 
Release of Contractor Confidential Business Information, in all 
solicitations and contracts in order to authorize the Agency to release 
confidential business information under certain circumstances.
    (g) Contracting officers shall insert the clause at 1552.235-80, 
Access to Confidential Business Information (CBI), in all types of 
contracts when it is possible that it will be necessary for the 
contractor to have access to CBI during the performance of tasks 
required under the contract.

[49 FR 8862, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 61 
FR 14265, Apr. 1, 1996; 61 FR 57339, Nov. 6, 1996; 65 FR 58923, Oct. 3, 
2000]

        PART 1536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

     Subpart 1536.2--Special Aspects of Contracting for Construction

Sec.

Sec. 1536.201  Evaluation of contracting performance.

Sec. 1536.209  Construction contracts with architect-engineer firms.

                    Subpart 1536.5--Contract Clauses


Sec. 1536.521  Specifications and drawings for construction.

               Subpart 1536.6--Architect-Engineer Services


Sec. 1536.602  Selection of firms for architect-engineer contracts.

Sec. 1536.602-2  Establishment of evaluation boards.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8863, Mar. 8, 1984, unless otherwise noted.

     Subpart 1536.2--Special Aspects of Contracting for Construction



Sec. 1536.201  Evaluation of contracting performance.

    (a) The Contracting Officer will obtain input from the Project 
Officer on the contractor's performance. The Contracting Officer will 
prepare the contractor performance report as prescribed in FAR 36.201 
within two weeks after final acceptance of the work or contract 
termination.
    (b) Prior to submitting any report or unsatisfactory performance to 
the reviewing official, the Contracting Officer will advise the 
contractor of any proposed unsatisfactory rating (see FAR 36.201(a)(3)).
    (c) The official at one level above the Contracting Officer will 
review each performance report.
    (d) The Contracting Officer will forward the original of the 
performance report to the Quality Assurance Branch, Office of 
Acquisition Management. The Quality Assurance Section will file the form 
in the contractor performance evaluation files which it maintains.
    (e) The Quality Assurance Branch will review the report when it is 
received and compare it with recent evaluations of that contractor. If 
the Quality Assurance Section discerns a pattern of unsatisfactory 
performance, it will notify the Contracting Officer for possible action, 
which may include referral of the matter to the Compliance Staff or to 
the Inspector General for investigation.
    (f) Information from the performance report shall not be released 
outside of the Agency, except to other Government agencies at their 
written request, and on condition that the information

[[Page 52]]

will not be made available outside the Government. Requests from non-
Government sources for information from performance reports shall be 
processed in accordance with EPA's Freedom of Information Act procedures 
at 40 CFR part 2.

[49 FR 8863, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]



Sec. 1536.209  Construction contracts with architect-engineer firms.

    (a) The provisions of FAR 36.209 do not apply to subcontractors 
performing treatability studies.
    (b) The provisions of FAR 36.209 also do not apply to subcontractors 
whose input during the design phase does not substantially affect the 
course of the design work.
    (c) Approval under FAR 36.209 is not required for subcontractors 
under paragraph (a) or (b) of this section. Approval for all other 
subcontractors and prime contractors may be granted by the CCO. In 
reviewing requests for approval, the RAD shall consider factors such as 
the availability of other firms to perform the necessary construction or 
Superfund remedial action work, the estimated cost to the Government, 
and the policy of the Agency to promote the use of innovative 
technology.

[55 FR 49283, Nov. 27, 1990, as amended at 59 FR 18977, Apr. 21, 1994]

                    Subpart 1536.5--Contract Clauses



Sec. 1536.521  Specifications and drawings for construction.

    The Contracting Officer shall insert the clause at 1552.236-70, 
Samples and Certificates, in soliciations and contracts when a fixed 
price construction contract is expected to exceed the small purchase 
limitation. The clause may be inserted in solicitations and contracts 
when the contract is expected to be within the small purchase 
limitation.

               Subpart 1536.6--Architect-Engineer Services



Sec. 1536.602  Selection of firms for architect-engineer contracts.



Sec. 1536.602-2  Establishment of evaluation boards.

    (a) The Environmental Protection Agency Architect-Engineer 
Evaluation Board is established as a central permanent Board located at 
Headquarters EPA under authority delegated to the Director, Office of 
Acquisition Management. The Board shall perform all architect-engineer 
evaluations on an agency-wide basis. The Agency Board shall be composed 
of not less than three nor more than five voting members and one non-
voting advisory member from the contracting office. The following 
constitutes the minimum composition of the Architect-Engineer Evaluation 
Board:
    (1) Member and Chairperson. Chief, Engineering, Planning, and 
Architecture Branch, Facilities Management and Services Division or his/
her designee;
    (2) Member. A professional engineer or architect from EPA to be 
designated by the Chairperson;
    (3) Member. A program official initiating the requirement or a 
designated representative; and
    (4) Advisory Member. A Contracting Officer or his/her 
representative.
    (b) The Service Center Manager (SCM) is delegated the authority to 
appoint either one or two additional voting members as may be 
appropriate for a particular project.
    (c) In the event of an emergency or extended absence, a member may 
designate, in writing, with the concurrence of the Chairperson, an 
alternate experienced in architecture, engineering, or construction to 
serve in his/her absence.
    (d) The duties of the advisory member shall include, but not be 
limited to, the following:
    (1) Assuring that the criteria set forth in the public notice are 
applied in the evaluation process; and

[[Page 53]]

    (2) Assuring that actions taken during the evaluation process do not 
compromise subsequent procurement actions.

[59 FR 18977, Apr. 21, 1994, as amended at 67 FR 5052, Feb. 4, 2002]

                     PART 1537--SERVICE CONTRACTING

               Subpart 1537.1--Service Contracts--General

Sec.

Sec. 1537.110  Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8864, Mar. 8, 1984, unless otherwise noted.

               Subpart 1537.1--Service Contracts--General



Sec. 1537.110  Solicitation provisions and contract clauses.

    The following clauses are prescribed for service contracts. They may 
also be used in research and development contracts when applicable (see 
1535.007-70).
    (a) The Contracting Officer shall insert the clause at 1552.237-70, 
Contract Publication Review Procedures, in solicitations and contracts 
when the products of the contract are subject to contract publication 
review.
    (b) The Contracting Officer shall insert the clause at 1552.237-71, 
Technical Direction, in cost-reimbursement type solicitations and 
contracts.
    (c) The Contracting Officer shall insert the clause at 1552.237-72, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor key personnel.
    (d) The Contracting Officer shall insert the clause at 1552.237-73, 
Consultant Services and Consent, in solicitations and contracts where 
the services of consultants are required.
    (e) The Contracting Officer shall insert the clause at 1552.237-74, 
Publicity, in solicitations and contracts pertaining to the removal or 
remedial activities under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA).
    (f) The Contracting Officer shall insert the clause at 1552.237-75, 
Paperwork Reduction Act, in solicitations and contracts requiring the 
collection of identical information from (10) or more public 
respondents.
    (g) To ensure that Agency contracts are administered so as to avoid 
creating an improper employer-employee relationship, contracting 
officers shall insert the contract clause at 48 CFR 1552.237-76, 
``Government-Contractor Relations'', in all solicitations and contracts 
for non-personal services that exceed the simplified acquisition 
threshold.

[49 FR 8864, Mar. 8, 1984, as amended at 64 FR 30444, June 8, 1999]

[[Page 54]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                   PART 1542--CONTRACT ADMINISTRATION

                   Subpart 1542.7--Indirect Cost Rates

Sec.

Sec. 1542.703-2  Certificate of indirect costs.

Sec. 1542.705  Final indirect cost rates.

Sec. 1542.705-70  Solicitation and contract clause.

         Subpart 1542.12--Novation and Change of Name Agreements


Sec. 1542.1200  Scope of subpart.

Sec. 1542.1202  Responsibility for executing agreements.

Sec. 1542.1203  Processing agreements.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8865, Mar. 8, 1984, unless otherwise noted.

                   Subpart 1542.7--Indirect Cost Rates



Sec. 1542.703-2  Certificate of indirect costs.

    The Head of the Contracting Activity may waive the certification 
requirement set forth in FAR 42.703-2.

[61 FR 57339, Nov. 6, 1996]



Sec. 1542.705  Final indirect cost rates.

    (a) The EPA shall use the Contracting Officer determination 
procedure for all business units for which it shall be required to 
negotiate final indirect cost rates.
    (b) Contracting officers shall insert the clause at 1552.242-72, 
Financial Administrative Contracting officers (FACO), in cost-
reimbursement contracts when the Environmental Protection Agency (EPA) 
is the cognizant federal agency and a FACO will be assigned.

[49 FR 8865, Mar. 8, 1984, as amended at 65 FR 58924, Oct. 3, 2000]



Sec. 1542.705-70  Solicitation and contract clause.

    The Contracting Officer shall insert the clause in 1552.242-70, 
Indirect Costs, in solicitations and contracts where indirect costs 
apply, unless contracting with an educational institution where there 
are approved predetermined final indirect cost rates.

[62 FR 33573, June 20, 1997]

         Subpart 1542.12--Novation and Change of Name Agreements



Sec. 1542.1200  Scope of subpart.

    This subpart implements FAR subpart 42.12 and provides policies and 
procedures for executing and processing novation and change-of-name 
agreements.



Sec. 1542.1202  Responsibility for executing agreements.

    (a) Any EPA contracting office upon being notified of a successor in 
interest to, or change of name of, one of its Contractors shall promptly 
report such information by memorandum to the Director, Policy, Training 
and Oversight Division (POTD).
    (b) To avoid duplication of effort on the part of EPA contracting 
offices in preparing and executing agreements to recognize a change of 
name or successor in interest, only one supplemental agreement will be 
prepared to effect necessary changes for all contracts between EPA and 
the Contractor involved. The Chief of the Procurement Policy Branch, 
Policy, Training and Oversight Division (PTOD), will, in each case, 
designate the Contracting Office responsible for taking all necessary 
and appropriate action with respect to either recognizing or not 
recognizing a successor in interest, or recognizing a change of name 
agreement.

[49 FR 8865, Mar. 8, 1984, as amended at 55 FR 24580, June 18, 1990; 59 
FR 18977, Apr. 21, 1994]



Sec. 1542.1203  Processing agreements.

    (a) The responsible contracting office shall:
    (1) Obtain from the Contractor a list of all affected contracts, the 
names and addresses of the contracting offices responsible for these 
contracts, and the required documentary evidence.
    (2) Verify the accuracy of the list of contracts through the 
Contract Information System.

[[Page 55]]

    (3) Draft and execute a supplemental agreement to one of the 
contracts affected but covering all applicable outstanding and 
incomplete contracts affected by the transfer of assets or change of 
name. A supplemental agreement number need not be obtained for contracts 
other than for the one under which the supplemental agreement is 
written. The supplemental agreement will contain a list of the contracts 
affected and, for distribution purposes, the names and addresses of the 
contracting offices having contracts subject to the supplemental 
agreement.
    (b) Agreements and supporting documents covering successors in 
interest shall be reviewed for legal sufficiency by legal counsel.
    (c) After execution of the supplemental agreement, the designated 
office shall forward an authenticated copy of the supplemental agreement 
to the Director, Policy, Training and Oversight Division, and to each 
affected contract office.

[49 FR 8865, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]

                     PART 1545--GOVERNMENT PROPERTY

                         Subpart 1545.1--General

Sec.

Sec. 1545.106  Government property clauses.

      Subpart 1545.3--Providing Government Property to Contractors


Sec. 1545.309  Providing Government production and research property 
          under special restrictions.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8866, Mar. 8, 1984, unless otherwise noted.

                         Subpart 1545.1--General



Sec. 1545.106  Government property clauses.

    (a) In accordance with 1523.303-71, the Contracting Officer shall 
insert the contract clause at 1552.245-70 when it is anticipated that a 
Contractor will use Government-furnished or Contractor-acquired property 
in the cleanup of hazardous or toxic substances in the environment.
    (b) The Contracting Officer shall insert the contract clause at 
1552.245-71, Government-Furnished Data, in any contract in which the 
Government is to furnish data to the Contractor. The data to be provided 
shall be identified in the clause.
    (c) The Contracting Officer shall insert the contract clause at 
1552.245-72, Fabrication or Acquisition of Nonexpendable Property, in 
all cost-reimbursement type contracts or contracts with cost-
reimbursement portions.
    (d) Contracting officers shall insert the clause at 1552.245-73, 
Government Property, in all cost-type solicitations and contracts 
regardless of whether Government Property is initially provided, and in 
all fixed-price solicitations and contracts whenever Government 
furnished property is provided.

[49 FR 8866, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 65 
FR 58924, Oct. 3, 2000]

      Subpart 1545.3--Providing Government Property to Contractors



Sec. 1545.309  Providing Government production and research property 
          under special restrictions.

    Government production and research property, other than foundations 
and similar improvements necessary for installing special tooling, 
special test equipment, or plant equipment, shall not be installed or 
constructed on land not owned by the Government in such fashion as to be 
nonseverable unless the contract under which the property is provided 
contains--
    (a) One of the provisions in FAR 45.309(a);
    (b) A requirement that the Government will have the right to abandon 
in place all nonseverable Government property provided; and
    (c) A requirement that the Government will not have any obligation 
to disassemble or remove the property or to restore or to rehabilitate 
the premises on which the property is located.

[[Page 56]]

                      PART 1546--QUALITY ASSURANCE

                       Subpart 1546.7--Warranties


Sec. 1546.704  Authority for use of warranties.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); 
and 41 U.S.C. 418b.

                       Subpart 1546.7--Warranties



Sec. 1546.704  Authority for use of warranties.

    The Contracting Officer shall ensure that the use of a warranty 
clause in a contract has the concurrence of the Project Officer.

[49 FR 8867, Mar. 8, 1984]

                 PART 1548--VALUE ENGINEERING [RESERVED]

[[Page 57]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

             Subpart 1552.2--Texts of Provisions and Clauses

Sec.

Sec. 1552.203-70  Current/former agency employee involvement 
          certification.

Sec. 1552.203-71  Display of EPA Office of Inspector General Hotline 
          Poster.

Sec. 1552.204-70  Business ownership representation.

Sec. 1552.208-70  Printing.

Sec. 1552.209-70  Organizational conflict of interest notification.

Sec. 1552.209-71  Organizational conflicts of interest.

Sec. 1552.209-72  Organizational conflict of interest certification.

Sec. 1552.209-73  Notification of conflicts of interest regarding 
          personnel.

Sec. 1552.209-74  Limitation of future contracting.

Sec. 1552.209-75  Annual certification.

Sec. 1552.209-76  Contractor performance evaluations.

Sec. 1552.210-71  [Reserved]

Sec. 1552.210-73--1552.210-74  [Reserved]

Sec. 1552.211-70  Reports of work.

Sec. 1552.211-72  Monthly progress report.

Sec. 1552.211-73  Level of effort--cost-reimbursement term contract.

Sec. 1552.211-74  Work assignments.

Sec. 1552.211-75  Working files.

Sec. 1552.211-76  Legal analysis.

Sec. 1552.211-77  Final reports.

Sec. 1552.211-78  Management consulting services.

Sec. 1552.211-79  Compliance with EPA Policies for Information Resources 
          Management.

Sec. 1552.211-80  Data standards for the transmission of laboratory 
          measurement results.

Sec. 1552.213-70  Notice to suppliers of equipment.

Sec. 1552.214-71  Contract award--other factors--formal advertising.

Sec. 1552.215-70  EPA source evaluation and selection procedures--
          negotiated procurements.

Sec. 1552.215-71  Evaluation factors for award.

Sec. 1552.215-72  Instructions for the preparation of proposals.

Sec. 1552.215-73  General financial and organizational information.

Sec. 1552.215-74  Advanced understanding--uncompensated time.

Sec. 1552.215-75  Past performance information.

Sec. 1552.215-76  General financial and organizational information.

Sec. 1552.216-70  Award fee.

Sec. 1552.216-71  Date of incurrence of cost.

Sec. 1552.216-72  Ordering--by designated ordering officers.

Sec. 1552.216-73  Fixed rates for services--indefinite delivery/
          indefinite quantity contract.

Sec. 1552.216-74  Payment of fee.

Sec. 1552.216-75  Base fee and award fee proposal.

Sec. 1552.216-76  Estimated cost and cost-sharing.

Sec. 1552.217-70  Evaluation of contract options.

Sec. 1552.217-71  Option to extend the term of the contract--cost-type 
          contract.

Sec. 1552.217-72  Option to extend the term of the contract--cost-plus-
          award-fee contract.

Sec. 1552.217-73  Option for increased quantity--cost-type contract.

Sec. 1552.217-74  Option for increased quantity--cost-plus-award-fee 
          contract.

Sec. 1552.217-75  Option to extend the effective period of the contract-
          -time and materials or labor hour contract.

Sec. 1552.217-76  Option to extend the effective period of the contract-
          -indefinite delivery/indefinite quantity contract.

Sec. 1552.217-77  Option to extend the term of the contract fixed price.

Sec. 1552.219-70  Mentor-Protege Program.

Sec. 1552.219-71  Procedures for participation in the EPA Mentor-Protege 
          Program.

Sec. 1552.219-72  Small disadvantaged business participation program.

Sec. 1552.219-73  Small disadvantaged business targets.

Sec. 1552.219-74  Small disadvantaged business participation evaluation 
          factor.

Sec. 1552.223-70  Protection of human subjects.

Sec. 1552.223-72  Care of laboratory animals.

Sec. 1552.224-70  Social security numbers of consultants and certain 
          sole proprietors and Privacy Act statement.

Sec. 1552.227-76  Project employee confidentiality agreement.

Sec. 1552.228-70  Insurance liability to third persons.

Sec. 1552.229-70  State and local taxes.

Sec. 1552.232-70  Submission of invoices.

Sec. 1552.232-71--1552.232-72  [Reserved]

Sec. 1552.232-73  Payments--fixed rate services contract.

Sec. 1552.233-70  Notice of filing requirements for agency protests.

Sec. 1552.235-70  Screening business information for claims of 
          confidentiality.

Sec. 1552.235-71  Treatment of confidential business information.

Sec. 1552.235-72  [Reserved]

Sec. 1552.235-73  Access to Federal Insecticide, Fungicide, and 
          Rodenticide Act Confidential business information (Apr 1996).

Sec. 1552.235-74  [Reserved]

Sec. 1552.235-75  Access to Toxic Substances Control Act confidential 
          business information (Apr 1996).

Sec. 1552.235-76  Treatment of confidential business information (Apr 
          1996).

[[Page 58]]


Sec. 1552.235-77  Data Security for Federal Insecticide, Fungicide and 
          Rodenticide Act Confidential Business Information (December 
          1997).

Sec. 1552.235-78  Data Security for Toxic Substances Control Act 
          Confidential Business Information (December 1997).

Sec. 1552.235-79  Release of contractor confidential business 
          information (Apr 1996).

Sec. 1552.235-80  Access to confidential business information.

Sec. 1552.236-70  Samples and certificates.

Sec. 1552.237-70  Contract publication review procedure.

Sec. 1552.237-71  Technical direction.

Sec. 1552.237-72  Key personnel.

Sec. 1552.237-73  Consultant services and consent.

Sec. 1552.237-74  Publicity.

Sec. 1552.237-75  Paperwork Reduction Act.

Sec. 1552.237-76  Government-Contractor Relations.

Sec. 1552.239-70  Rehabilitation Act notice.

Sec. 1552.239-103  Acquisition of Energy Star compliant microcomputers, 
          including personal computers, monitors and printers.

Sec. 1552.242-70  Indirect costs.

Sec. 1552.242-72  Financial administrative contracting officer.

Sec. 1552.245-70  Decontamination of government property.

Sec. 1552.245-71  Government-furnished data.

Sec. 1552.245-72  Fabrication or acquisition of nonexpendable property.

Sec. 1552.245-73  Government property.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8867, Mar. 8, 1984, unless otherwise noted.

             Subpart 1552.2--Texts of Provisions and Clauses



Sec. 1552.203-70  Current/former agency employee involvement 
          certification.

    As prescribed in 1503.670, insert the following solicitation 
provision in all EPA solicitation documents for sole source 
acquisitions.

   Current/Former Agency Employee Involvement Certification (APR 1984)

    The offeror (quoter) hereby certifies that:
    (a) He is [  ] is not [  ] a former regular or special EPA employee 
whose EPA employment terminated within one year prior to submission of 
this offer (quote).
    (b) He does [  ] does not [  ] employ or propose to employ a 
current/former regular or special EPA employee whose EPA employment 
terminated within one year prior to submission of this offer (quote) and 
who has been or will be involved, directly or indirectly, in developing 
or negotiating this offer (quote) for the offeror (quoter), or in the 
management, administration or performance of any contract resulting from 
this offer (quote).
    (c) He does [  ] does not [  ] employ or propose to employ as a 
consultant or subcontractor under any contract resulting from this offer 
(quote) a current/former regular or special EPA employee whose EPA 
employment terminated within one year prior to submission of this offer 
(quote).
    (d) A former regular or special EPA employee whose EPA employment 
terminated within one year prior to submission of this offer (quote) or 
such former employee's spouse or minor child does [  ] does not [  ] own 
or substantially own or control the offeror's (quoter's) firm.
    (e) See EPAAR part 1503 for definitions of the terms ``regular'' and 
``special employee.''

                           (End of provision)

[49 FR 8867, Mar. 8, 1984, as amended at 50 FR 14360, Apr. 11, 1985; 65 
FR 79784, Dec. 20, 2001]



Sec. 1552.203-71  Display of EPA Office of Inspector General Hotline 
          poster.

    As prescribed in 1503.500-72, insert the following clause in all 
contracts valued at $1,000,000 or more including all contract options.

  Display of EPA Office of Inspector General Hotline Poster (AUG 2000)

    (a) For EPA contracts valued at $1,000,000 or more including all 
contract options, the contractor shall prominently display EPA Office of 
Inspector General Hotline posters in contractor facilities where the 
work is performed under the contract.
    (b) Office of Inspector General hotline posters may be obtained from 
the EPA Office of Inspector General, ATTN: OIG Hotline (2443), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, or by calling (202) 260-
5113.
    (c) The Contractor need not comply with paragraph (a) of this clause 
if it has established a mechanism, such as a hotline, by which employees 
may report suspected instances of improper conduct, and provided 
instructions that encourage employees to make such reports.

[65 FR 57103, Sept. 21, 2000]



Sec. 1552.204-70  Business Ownership Representation.

    As prescribed in 1504.670, insert the following clause in 
solicitations and contracts:

              Business Ownership Representation (JAN 2001)

    The successful awardee should check one or more of the categories 
below that represents its business ownership and return

[[Page 59]]

this information to the contracting officer within ten (10) calendar 
days after award. Completion of this clause by the successful awardee is 
voluntary.
    ``Ownership,'' as used in this clause, means: (a) At least 51 
percent of the concern is owned by one or more individuals from a 
category listed below; or, in the case of any publicly owned business, 
at least 51 percent of the stock of the concern is owned by one or more 
such individuals; and (b) The management and daily business operations 
of the concern are controlled by one or more such individuals.

                                Ethnicity

    [ ] Hispanic or Latino.
    [ ] Not Hispanic or Latino.

                                  Race

    [ ] American Indian, Eskimo, or Aleut.
    [ ] Asian or Pacific Islander.
    [ ] Black or African American.
    [ ] White.

                             (End of clause)

[65 FR 75866, Dec. 5, 2000]



Sec. 1552.208-70  Printing.

    As prescribed in 1508.870, insert the following clause:

                           Printing (OCT 2000)

    (a) Definitions.
    ``Printing'' is the process of composition, plate making, presswork, 
binding and microform; or the end items produced by such processes and 
equipment. Printing services include newsletter production and 
periodicals which are prohibited under EPA contracts.
    ``Composition'' applies to the setting of type by hot-metal casting, 
photo typesetting, or electronic character generating devices for the 
purpose of producing camera copy, negatives, a plate or image to be used 
in the production of printing or microform.
    ``Camera copy'' (or ``camera-ready copy'') is a final document 
suitable for printing/duplication.
    ``Desktop Publishing'' is a method of composition using computers 
with the final output or generation of camera copy done by a color 
inkjet or color laser printer. This is not considered ``printing.'' 
However, if the output from desktop publishing is being sent to a 
typesetting device (i.e., Linotronic) with camera copy being produced in 
either paper or negative format, these services are considered 
``printing''.
    ``Microform'' is any product produced in a miniaturized image 
format, for mass or general distribution and as a substitute for 
conventionally printed material. Microform services are classified as 
printing services and includes microfiche and microfilm. The contractor 
may make up to two sets of microform files for archival purposes at the 
end of the contract period of performance.
    ``Duplication'' means the making of copies on photocopy machines 
employing electrostatic, thermal, or other processes without using an 
intermediary such as a negative or plate.
    ``Requirement'' means an individual photocopying task. (There may be 
multiple requirements under a Work Assignment or Delivery Order. Each 
requirement would be subject to the photocopying limitation of 5,000 
copies of one page or 25,000 copies of multiple pages in the aggregate 
per requirement).
    (b) Prohibition.
    The contractor shall not engage in, nor subcontract for, any 
printing in connection with the performance of work under this contract. 
Duplication of more than 5,000 copies of one page or more than 25,000 
copies of multiple pages in the aggregate per requirement constitutes 
printing. The intent of the limitation is not to allow the duplication 
of final documents for use by the Agency. In compliance with EPA Order 
2200.4a, EPA Publication Review Procedure, the Office of Communications, 
Education, and Media Relations is responsible for the review of 
materials generated under a contract published or issued by the Agency 
under a contract intended for release to the public.
    (c) Affirmative Requirements.
    (1) Unless otherwise directed by the contracting officer, the 
contractor shall use double-sided copying to produce any progress 
report, draft report or final report.
    (2) Unless otherwise directed by the contracting officer, the 
contractor shall use recycled paper for reports delivered to the Agency 
which meet the minimum content standards for paper and paper products as 
set forth in EPA's Web site for the Comprehensive Procurement Guidelines 
at: http://www.epa.gov/cpg/.
    (d) Permitted Contractor Activities.
    (1) The prohibitions contained in paragraph (b) do not preclude 
writing, editing, or preparing manuscript copy, or preparing related 
illustrative material to a final document (camera-ready copy) using 
desktop publishing.
    (2) The contractor may perform a requirement involving the 
duplication of less than 5,000 copies of only one page, or less than 
25,000 copies of multiple pages in the aggregate, using one color 
(black), so long as such pages do not exceed the maximum image size of 
10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication services 
below these thresholds are not considered printing. If performance of 
the contract will require duplication in excess of these limits, 
contractors must immediately notify the contracting officer in

[[Page 60]]

writing. EPA may then seek a waiver from the Joint Committee on 
Printing, U. S. Congress. The intent of the limitation is to allow 
``incidental'' duplication (drafts, proofs) under a contract. The intent 
of the limitation is not to allow the duplication of copies of final 
documents for use by the Agency or as distributed as instructed by the 
Agency.
    (3) The contractor may perform a requirement involving the multi-
color duplication of no more than 100 pages in the aggregate using color 
copier technology, so long as such pages do not exceed the maximum image 
size of 10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication 
services below these thresholds are not considered printing. If 
performance of the contract will require duplication in excess of these 
limits, contractors must immediately notify the contracting officer in 
writing. EPA may then seek a waiver from the Joint Committee on 
Printing, U. S. Congress.
    (4) The contractor may perform the duplication of no more than a 
total of 100 diskettes or CD-ROM's. Duplication services below these 
thresholds are not considered printing. If performance of the contract 
will require duplication in excess of these limits, contractors must 
immediately notify the contracting officer in writing. EPA may then seek 
a waiver from the Joint Committee on Printing, U. S. Congress.
    (e) Violations.
    The contractor may not engage in, nor subcontract for, any printing 
in connection with the performance of work under the contract. The cost 
of any printing services in violation of this clause will be disallowed, 
or not accepted by the Government.
    (f) Flowdown Provision.
    The contractor shall include in each subcontract which may involve a 
requirement for any printing/duplicating/copying a provision 
substantially the same as this clause.

                            (End of clause )

[65 FR 58924, Oct. 3, 2000]



Sec. 1552.209-70  Organizational conflict of interest notification.

    As prescribed in 1509.507-1(b) insert the following solicitation 
provision in all solicitations.

       Organizational Conflict of Interest Notification (APR 1984)

    (a) The prospective Contractor certifies, to the best of its 
knowledge and belief, that it is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the prospective Contractor cannot so certify, it shall provide a 
disclosure statement in its proposal which describes all relevant 
information concerning any past, present, or planned interests bearing 
on whether it (including its chief executives and directors, or any 
proposed consultant or subcontractor) may have a potential 
organizational conflict of interest.
    (b) Prospective Contractors should refer to FAR subpart 9.5 and 
EPAAR part 1509 for policies and procedures for avoiding, neutralizing, 
or mitigating organizational conflicts of interest.
    (c) If the Contracting Officer determines that a potential conflict 
exists, the prospective Contractor shall not receive an award unless the 
conflict can be avoided or otherwise resolved through the inclusion of a 
special contract clause or other appropriate means. The terms of any 
special clause are subject to negotiation.

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 62 
FR 33573, June 20, 1997]



Sec. 1552.209-71  Organizational conflicts of interest.

    As prescribed in 1509.507-2, insert the following contract clause in 
all contracts except:
    (a) When specific clauses are required per EPAAR part 1509;
    (b) When the procurement is with another Federal agency (however, 
the provision is included in contracts with SBA and its subcontractor 
under the 8(a) program); and
    (c) When the procurement is accomplished through simplified 
acquisition procedures, use of the clause is optional.

             Organizational Conflicts of Interest (MAY 1994)

    (a) The Contractor warrants that, to the best of the Contractor's 
knowledge and belief, there are no relevant facts or circumstances which 
could give rise to an organizational conflict of interest, as defined in 
FAR subpart 9.5, or that the Contractor has disclosed all such relevant 
information.
    (b) Prior to commencement of any work, the Contractor agrees to 
notify the Contracting Officer immediately that, to the best of its 
knowledge and belief, no actual or potential conflict of interest exists 
or to identify to the Contracting Officer any actual or potential 
conflict of interest the firm may have. In emergency situations, 
however, work may begin but notification shall be made within five (5) 
working days.
    (c) The Contractor agrees that if an actual or potential 
organizational conflict of interest is identified during performance, 
the

[[Page 61]]

Contractor will immediately make a full disclosure in writing to the 
Contracting Officer. This disclosure shall include a description of 
actions which the Contractor has taken or proposes to take, after 
consultation with the Contracting Officer, to avoid, mitigate, or 
neutralize the actual or potential conflict of interest. The Contractor 
shall continue performance until notified by the Contracting Officer of 
any contrary action to be taken.
    (d) Remedies--The EPA may terminate this contract for convenience, 
in whole or in part, if it deems such termination necessary to avoid an 
organizational conflict of interest. If the Contractor was aware of a 
potential organizational conflict of interest prior to award or 
discovered an actual or potential conflict after award and did not 
disclose it or misprepresented relevant information to the Contracting 
officer, the Government may terminate the contract for default, debar 
the Contractor from Government contracting, or pursue such other 
remedies as may be permitted by law or this contract.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (e), unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

    Alternate I. Contracts for other than Superfund work shall include 
Alternate I in this clause in lieu of paragraph (e).

    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this paragraph, 
unless otherwise authorized by the contracting officer.

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 61 
FR 57339, Nov. 6, 1996; 63 FR 46899, Sept. 3, 1998]



Sec. 1552.209-72  Organizational conflict of interest certification.

    As prescribed in 1509.507-1(b), insert the following provision in 
all solicitation documents when applicable.

      Organizational Conflict of Interest Certification (APR 1984)

    The offeror [  ] is [  ] is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the offeror is aware of information bearing on whether a potential 
conflict may exist, the offeror shall provide a disclosure statement 
describing this information. (See section L of the solicitation for 
further information.)

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994]



Sec. 1552.209-73  Notification of conflicts of interest regarding 
          personnel.

    As prescribed in 1509.507-2(b) insert the following clause:

  Notification of Conflicts of Interest Regarding Personnel (MAY 1994)

    (a) In addition to the requirements of the contract clause entitled 
``Organizational Conflicts of Interest,'' the following provisions with 
regard to employee personnel performing under this contract shall apply 
until the earlier of the following two dates: the termination date of 
the affected employee(s) or the expiration date of the contract.
    (b) The Contractor agrees to notify immediately the EPA Project 
Officer and the Contracting Officer of (1) any actual or potential 
personal conflict of interest with regard to any of its employees 
working on or having access to information regarding this contract, or 
(2) any such conflicts concerning subcontractor employees or consultants 
working on or having access to information regarding this contract, when 
such conflicts have been reported to the Contractor. A personal conflict 
of interest is defined as a relationship of an employee, subcontractor 
employee, or consultant with an entity that may impair the objectivity 
of the employee, subcontractor employee, or consultant in performing the 
contract work.
    (c) The Contractor agrees to notify each Project Officer and 
Contracting Officer prior to incurring costs for that employee's work 
when an employee may have a personal conflict of interest. In the event 
that the personal conflict of interest does not become known until after 
performance on the contract begins, the Contractor shall immediately 
notify the Contracting Officer of the personal conflict of interest. The 
Contractor shall continue performance of this contract until notified by 
the Contracting Officer of the appropriate action to be taken.
    (d) The Contractor agrees to insert in any subcontract or consultant 
agreement placed hereunder, except for subcontracts or consultant 
agreements for well drilling, fence erecting, plumbing, utility hookups, 
security guard services, or electrical services, provisions which shall 
conform substantially to the language of this clause, including this 
paragraph (d), unless otherwise authorized by the Contracting Officer.

[[Page 62]]

                             (End of clause)

[59 FR 18620, Apr. 19, 1994]



Sec. 1552.209-74  Limitation of future contracting.

    As prescribed in 1509.507-2(c), insert the following clause or 
alternate:

           Limitation of Future Contracting (ARCS) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) The Contractor will be ineligible to enter into a contract for 
remedial action projects for which the Contractor has developed the 
statement of work or the solicitation package.
    (c) The following applies when ARCS work is performed under this 
contract and when both ARCS work and Field Investigative Team (FIT) work 
are performed on the same site under this contract: Unless prior written 
approval is obtained from the cognizant EPA Contracting Officer, the 
Contractor, during the life of the work assignment and for a period of 
five (5) years after the completion of the work assignment, agrees not 
to enter into a contract with or to represent any party, other than EPA, 
with respect to: (1) any work relating to CERCLA activities which 
pertain to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (d) The following applies to FIT work at sites under this contract 
where only FIT work is performed, except for those sites where EPA has 
made a determination of ``no further remedial action planned'' (NFRAP): 
Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of three (3) years after the completion of 
the work assignment, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.

[[Page 63]]

    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting Alternate I (TCRR) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the delivery 
order or tasking document and for a period of five (5) years after the 
completion of the delivery order or tasking document, agrees not to 
enter into a contract with or to represent any party, other than EPA, 
with respect to: (1) any work relating to CERCLA activities which 
pertain to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA within the Contractor's Time 
Critical Rapid Response (TCRR) assigned geographical area(s), either as 
a prime contractor, subcontractor, or consultant.
    (2) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA as a prime contractor, 
subcontractor or consultant at a site where it has performed or plans to 
perform TCRR work.
    (3) It will be ineligible for award of TAT type activities contracts 
for sites within its respective TCRR assigned geographical area(s) which 
result from a CERCLA administrative order, a CERCLA or RCRA consent 
decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit

[[Page 64]]

its request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting, Alternate II (TAT) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the technical 
direction document and for a period of five (5) years after the 
completion of the technical direction document, agrees not to enter into 
a contract with or to represent any party, other than EPA, with respect 
to: (1) Any work relating to CERCLA activities which pertain to a site 
where the Contractor previously performed work for EPA under this 
contract; or (2) any work that may jeopardize CERCLA enforcement actions 
which pertain to a site where the Contractor previously performed work 
for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide to EPA cleanup services (e.g., Time Critical 
Rapid Response (TCRR) contracts) within the Contractor's Technical 
Assistance Team (TAT) assigned geographical area(s), either as a prime 
Contractor, subcontractor, or consultant.
    (2) Unless an individual design for the site has been prepared by a 
third party, it will not provide to EPA as a prime contractor, 
subcontractor or consultant any remedial construction services at a site 
where it has performed or plans to perform TAT work. This clause will 
not preclude TAT contractors from performing construction management 
services under other EPA contracts.
    (3) It will be ineligible for award of TCRR type activities 
contracts for sites within its respective TAT assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer

[[Page 65]]

will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

    Limitation of Future Contracting; Alternate III (ESAT) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (d) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (e) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (f) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (g) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting, Alternate IV (TES) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) During the performance period of this contract, the Contractor 
will be ineligible to enter into any contract for remedial planning and/
or implementation projects for sites within the assigned geographical 
area(s) covered by this contract without the prior written approval of 
the EPA Contracting Officer.
    (c) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required

[[Page 66]]

to develop specifications or statements of work and such specifications 
or statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (d) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of seven (7) years after the completion of 
the work assignment, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting, Alternate V (Headquarters Support) 
                               (MAY 1994)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor, during the life of this contract, will be 
ineligible to enter into a contract with EPA to perform response action 
work (e.g., Alternative Remedial Contracting Strategy (ARCS), Time 
Critical Rapid Response (TCRR), Technical Assistance Team (TAT), and 
Technical Enforcement Support (TES) contracts), unless otherwise 
authorized by the Contracting Officer.
    (d) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering

[[Page 67]]

into a contract subject to the restrictions of this clause, then the 
bids/proposals are submitted at the Contractor's own risk. Therefore, no 
claim shall be made against the Government to recover bid/proposal costs 
as a direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (e) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (f) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (f) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (g) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (h) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting; Alternate VI (Site Specific) (DEC 
                                  1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the contract and 
for a period of five (5) years after the expiration of the contract 
agrees not to enter into a contract with or to represent any party, 
other than EPA, with respect to: (1) any work relating to CERCLA 
activities which pertain to the site where the Contractor previously 
performed work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to the site where 
the Contractor previously performed work for the EPA under this 
contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA on the site either as a prime 
contractor, subcontractor, or consultant.
    (2) It will be ineligible for award of contracts pertaining to this 
site which result from a CERCLA administrative order, a CERCLA or RCRA 
consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of

[[Page 68]]

this clause, then the bids/proposals are submitted at the Contractor's 
own risk. Therefore, no claim shall be made against the Government to 
recover bid/proposal costs as a direct cost whether the request for 
authorization to enter into the contract is denied or approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) Contractors who are performing nondiscretionary technical or 
engineering services, including construction work, may request a waiver 
from or modification to this clause by submitting a written request to 
the Contracting Officer. The Contracting Officer shall make the 
determination regarding whether to waive or modify the clause on a case-
by-case basis.
    (i) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (i) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (j) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (k) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994, as amended at 62 FR 5348, Feb. 5, 1997; 63 
FR 692, Jan. 7, 1998; 65 FR 37292, June 14, 2000]



Sec. 1552.209-75  Annual certification.

    As prescribed in 1509.507-2(d), insert the following clause:

                     Annual Certification (MAY 1994)

    The Contractor shall submit an annual conflict of interest 
certification to the Contracting Officer. In this certification, the 
Contractor shall certify annually that, to the best of the Contractor's 
knowledge and belief, all actual or potential organizational conflicts 
of interest have been reported to EPA. In addition, in this annual 
certification, the Contractor shall certify that it has informed its 
personnel who perform work under EPA contracts or relating to EPA 
contracts of their obligation to report personal and organizational 
conflicts of interest to the Contractor. Such certification must be 
signed by a senior executive of the company and submitted in accordance 
with instructions provided by the Contracting Officer. The initial 
certification shall cover the one-year period from the date of contract 
award, and all subsequent certifications shall cover successive annual 
periods thereafter, until expiration or termination of the contract. The 
certification must be received by the Contracting Officer no later than 
45 days after the close of the certification period covered.

                             (End of clause)

[59 FR 18623, Apr. 19, 1994. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.209-76  Contractor performance evaluations.

    As prescribed in section 1509.170-1, insert the following clause in 
all applicable solicitations and contracts.

              Contractor Performance Evaluations (MAY 1999)

    The contracting officer shall complete a Contractor Performance 
Report (Report) within ninety (90) business days after the end of each 
12 months of contract performance (interim Report) or after the last 12 
months (or less) of contract performance (final Report) in accordance 
with EPAAR 1509.170-5. The contractor shall be evaluated based on the 
following ratings and performance categories:
    Ratings: 0 = unsatisfactory, 1 = poor, 2 = fair, 3 = good, 4 = 
excellent, 5 = outstanding.

[[Page 69]]

    Performance Categories:
    Quality: Compliance with contract requirements; accuracy of reports; 
effectiveness of personnel; and technical excellence.

                                 Rating

0--Contractor is not in compliance and is jeopardizing achievement of 
contract objectives
1--Major problems have been encountered
2--Some problems have been encountered
3--Minor inefficiencies/errors have been identified
4--Contractor is in compliance with contract requirements and/or 
delivers quality products/services
5--The contractor has demonstrated an outstanding performance level that 
justifies adding a point to the score. It is expected that this rating 
will be used in those circumstances when contractor performance clearly 
exceeds the performance level described as ``Excellent.''

    Cost Control: Record of forecasting and controlling target costs; 
current, accurate and complete billings; relationship of negotiated 
costs to actuals; cost efficiencies.

                                 Rating

0--Contractor is unable to manage costs effectively
1--Contractor is having major difficulty managing costs effectively
2--Contractor is having some problems managing costs effectively
3--Contractor is usually effective in managing costs
4--Contractor is effective in managing costs and submits current, 
accurate, and complete billings
5--The contractor has demonstrated an outstanding performance level that 
justifies adding a point to the score. It is expected that this rating 
will be used in those circumstances when contractor performance clearly 
exceeds the performance level described as ``Excellent.''
    Timeliness of Performance: Met interim milestones; reliability; 
responsive to technical direction; completed on time, including wrap-up 
and contract administration; met delivery schedules; no liquidated 
damages assessed.

                                 Rating

0--Contractor delays are jeopardizing performance of contract objectives
1--Contractor is having major difficulty meeting milestones and delivery 
schedule
2--Contractor is having some problems meeting milestones and delivery 
schedule
3--Contractor is usually effective in meeting milestones and delivery 
schedule
4--Contractor is effective in meeting milestones and delivery schedule
5--The contractor has demonstrated an outstanding performance level that 
justifies adding a point to the score. It is expected that this rating 
will be used in those circumstances when contractor performance clearly 
exceeds the performance level described as ``Excellent.''
    Business Relations: Effective management, including subcontracts; 
reasonable/cooperative behavior; responsive to contract requirements; 
notification of problems; flexibility; pro-active versus reactive; 
effective small/small disadvantage business subcontracting program.

                                 Rating

0--Response to inquiries, technical/service/administrative issues is not 
effective
1--Response to inquiries, technical/service/administrative issues is 
marginally effective
2--Response to inquiries, technical/service/administrative issues is 
somewhat effective
3--Response to inquiries, technical/service/administrative issues is 
usually effective
4--Response to inquiries, technical/service/administrative issues is 
effective
5--The contractor has demonstrated an outstanding performance level that 
justifies adding a point to the score. It is expected that this rating 
will be used in those circumstances when contractor performance clearly 
exceeds the performance level described as ``Excellent.''
    (a) The contracting officer shall initiate the process for 
completing interim Reports within five (5) business days after the end 
of each 12 months of contract performance by requesting the project 
officer to evaluate contractor performance for the interim Report. In 
addition, the contracting officer shall initiate the process for 
completing final Reports within five (5) business days after the last 12 
months (or less) of contract performance by requesting the project 
officer to evaluate contractor performance for the final Report. The 
final Report shall cover the last 12 months (or less) of contract 
performance. Within thirty (30) business days after the project officer 
receives a request from the contracting officer to complete an 
evaluation, the project officer shall:
    (1) Complete a description of the contract requirements;
    (2) Evaluate contractor performance and assign a rating for quality, 
cost control, and timeliness of performance categories (including a 
narrative for each rating);
    (3) Provide any information regarding subcontracts, key personnel, 
and customer satisfaction;
    (4) Assign a recommended rating for the business relations 
performance category (including a narrative for the rating); and

[[Page 70]]

    (5) Provide additional information appropriate for the evaluation or 
future evaluations.
    (b) The contracting officer shall:
    (1) Ensure the accuracy of the project officer's evaluation by 
verifying that the information in the contract file corresponds with the 
designated project officer's ratings;
    (2) Assign a rating for the business relations performance category 
(including a narrative for the rating);
    (3) Concur with or revise the project officer's ratings after 
consultation with the project officer;
    (4) Provide any additional information concerning the quality, cost 
control, and timeliness of performance categories if deemed appropriate 
for the evaluation or future evaluations (if any), and provide any 
information regarding subcontracts, key personnel, and customer 
satisfaction; and
    (5) Forward the Report to the contractor within ten (10) business 
days after the contracting officer receives the project officer's 
evaluation.
    (c) The contractor shall be granted thirty (30) business days from 
the date of the contractor's receipt of the Report to review and provide 
a response to the contracting officer regarding the contents of the 
Report. The contractor shall:
    (1) Review the Report;
    (2) Provide a response (if any) to the contracting officer on 
company letter head or electronically;
    (3) Complete contractor representation information; and
    (4) Forward the Report to the contracting officer within the 
designated thirty (30) business days.
    (d) The contractor's response to the Report may include written 
comments, rebuttals (disagreements), or additional information. If the 
contractor does not respond to the Report within the designated thirty 
(30) business days, the specified ratings in the Report are deemed 
appropriate for the evaluation period. In this instance, the contracting 
officer shall complete the Agency review and sign the Report within 
three (3) business days after expiration of the specified 30 business 
days.
    (e) If the contractor submits comments, rebuttals (disagreements), 
or additional information to the contracting officer which contests the 
ratings, the contracting officer, in consultation with the project 
officer, shall initially try to resolve the disagreement(s) with the 
contractor.
    (f) If the disagreement(s) is (are) not resolved between the 
contractor and the contracting officer, the contracting officer shall 
provide a written recommendation to one level above the contracting 
officer for resolution as promptly as possible, but no later than five 
(5) business days after the contracting officer is made aware that the 
disagreement(s) has (have) not been resolved with the contractor. The 
individual who is one level above the contracting officer shall:
    (1) Review the contracting officer's written recommendation; and
    (2) Provide a written determination to the contracting officer for 
summary ratings (ultimate conclusion for ratings pertaining to the 
performance period being evaluated) within five (5) business days after 
the individual one level above the contracting officer receives the 
contracting officer's written recommendation.
    (g) If the disagreement is resolved, the contracting officer shall 
complete the Agency review and sign the Report within three (3) business 
days after consultation.
    (h) The contracting officer shall complete the Agency review and 
sign the Report within three (3) business days after the contracting 
officer receives a written determination for summary ratings from one 
level above the contracting officer.
    (i) An interim or final Report is considered completed after the 
contracting officer signs the Report. The contracting officer must 
provide a copy of completed Reports (interim and final) to the 
contractor within two (2) business days after completion.

[64 FR 20204, Apr. 26, 1999]



Sec. 1552.210-71  [Reserved]



Sec. 1552.210-73--1552.210-74  [Reserved]



Sec. 1552.211-70  Reports of work.

    As prescribed in 1511.011-70, insert one of the contract clauses in 
this subsection when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. The basic 
clause should be used when reports are specified in a contract 
attachment. Alternate I is to be used to specify reports in the contract 
schedule.

                       Reports of Work (OCT 2000)

    The Contractor shall prepare and deliver reports, including plans, 
evaluations, studies, analyses and manuals in accordance with Attachment 
--------------------. Each report shall cite the contract number, 
identify the U.S. Environmental Protection Agency as the sponsoring 
agency, and identify the name of the contractor preparing the report.
    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005 with an expiration date of February 28, 2003.

                             (End of clause)

    Alternate I (OCT 2000). The Contractor shall prepare and deliver the 
below

[[Page 71]]

listed reports, including plans, evaluations, studies, analyses and 
manuals to the designated addressees. Each report shall cite the 
contract number, identify the U.S. Environmental Protection Agency as 
the sponsoring agency, and identify the name of the contractor preparing 
the report.
    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005 with an expiration date of February 28, 2003. 
Required reports are:

------------------------------------------------------------------------
           Reports description              No. copies     Addressees
------------------------------------------------------------------------
                                           ...........  ................
                                           ...........  ................
                                           ...........  ................
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997; 63 FR 10549, Mar. 4, 1998; 63 FR 
46899, Sept. 3, 1998; 65 FR 58924, Oct. 3, 2000; 66 FR 28674, May 24, 
2001]



Sec. 1552.211-72  Monthly progress report.

    As prescribed in 1511.011-72, insert the following clause:

                   Monthly Progress Report (JUN 1996)

    (a) The Contractor shall furnish ------ copies of the combined 
monthly technical and financial progress report stating the progress 
made, including the percentage of the project completed, and a 
description of the work accomplished to support the cost. If the work is 
ordered using work assignments or delivery orders, include the estimated 
percentage of task completed during the reporting period for each work 
assignment or delivery order.
    (b) Specific discussions shall include difficulties encountered and 
remedial action taken during the reporting period, and anticipated 
activity with a schedule of deliverables for the subsequent reporting 
period.
    (c) The Contractor shall provide a list of outstanding actions 
awaiting Contracting Officer authorization, noted with the corresponding 
work assignment, such as subcontractor/consultant consents, overtime 
approvals, and work plan approvals.
    (d) The report shall specify financial status at the contract level 
as follows:
    (1) For the current reporting period, display the amount claimed.
    (2) For the cumulative period and the cumulative contract life 
display: the amount obligated, amount originally invoiced, amount paid, 
amount suspended, amount disallowed, and remaining approved amount. The 
remaining approved amount is defined as the total obligated amount, less 
the total amount originally invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the numbers of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.
    (iii) For the cumulative contract period and the cumulative contract 
life display: the negotiated, expended and remaining direct labor hours 
and costs broken out by EPA contract labor hour category for the prime 
contractor, and each subcontractor and consultant.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (4) Display the current dollar ceilings in the contract, net amount 
invoiced, and remaining amounts for the following categories: Direct 
labor hours, total estimated cost, award fee pool (if applicable), 
subcontracts by individual subcontractor, travel, program management, 
and Other Direct Costs (ODCs).
    (5) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the 
contract.
    (6) Average cost of direct labor. Compare the actual average cost 
per hour to date with the average cost per hour of the approved work 
plans for the current contract period.
    (e) The report shall specify financial status at the work assignment 
or delivery order level as follows:
    (1) For the current period, display the amount claimed.
    (2) For the cumulative period display: amount shown on workplan, or 
latest work assignment/delivery order amendment amount (whichever is 
later); amount currently claimed; amount paid; amount suspended; amount 
disallowed; and remaining approved amount. The remaining approved amount 
is defined as: the workplan amount or latest work assignment or delivery 
order amount (whichever is later), less total amounts originally 
invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the number of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.

[[Page 72]]

    (iii) For the current reporting period, cumulative contract period, 
and the cumulative contract life display: the negotiated, expended and 
remaining direct labor hours and costs broken out by EPA contract labor 
hour category for the prime contractor and each subcontractor and 
consultant.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (v) Display the estimates of remaining direct labor hours and costs 
required to complete the work assignment or delivery order.
    (4) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the work 
assignment.
    (5) Average cost of direct labor. Display the actual average cost 
per hour with the cost per hour estimated in the workplan.
    (6) A list of deliverables for each work assignment or delivery 
order during the reporting period.
    (f) This submission does not change the notification requirements of 
the ``Limitation of Cost'' or ``Limitation of Funds'' clauses requiring 
separate written notice to the Contracting Officer.
    (g) The reports shall be submitted to the following addresses on or 
before the ------ of each month following the first complete reporting 
period of the contract. See EPAAR 1552.232-70, Submission of Invoices, 
paragraph (e), for details on the timing of submittals. Distribute 
reports as follows:

------------------------------------------------------------------------
               No. of copies                          Addressee
------------------------------------------------------------------------
------------..............................  Project Officer.
------------..............................  Contracting Officer.
------------------------------------------------------------------------


[61 FR 29317, June 10, 1996. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-73  Level of effort--cost-reimbursement term contract.

    As prescribed in 1511.011-73, insert the following contract clause 
in cost-reimbursement term contracts including cost contracts without 
fee, cost-sharing contracts, cost-plus-fixed-fee (CPFF) contracts, cost-
plus-incentive-fee contracts (CPIF), and cost-plus-award-fee contracts 
(CPAF).

      Level of Effort--Cost-Reimbursement Term Contract (APR 1984)

    (a) The Contractor shall perform all work and provide all required 
reports within the level of effort specified below. The Government 
hereby orders----direct labor hours for the base period, which 
represents the Government's best estimate of the level of effort to 
fulfill these requirements.
    (b) Direct labor includes personnel such as engineers, scientists, 
draftsmen, technicians, statisticians, and programmers and not support 
personnel such as company management, typists, and key punch operators 
even though such support personnel are normally treated as direct labor 
by the Contractor. The level of effort specified in paragraph (a) 
includes Contractor, subcontractor, and consultant labor hours.
    (c) If the Contractor provides less than 90 percent of the level of 
effort specified for the base period or any optional period ordered, an 
equitable downward adjustment of the fixed fee, if any, for that period 
will be made. The Government may require the Contractor to provide 
additional effort up to 110 percent of the level of effort for any 
period until the estimated cost for that period has been reached. 
However, this additional effort shall not result in any increase in the 
fixed fee, if any. If this is a cost-plus-incentive-fee (CPIF) contract, 
the term ``fee'' in this paragraph means ``base fee and incentive fee.'' 
If this is a cost-plus-award-fee (CPAF) contract, the term ``fee'' in 
this paragraph means ``base fee and award fee.''
    (d) If the level of effort specified to be ordered during a given 
base or option period is not ordered during that period, that level of 
effort may not be acumulated and ordered during a subsequent period.
    (e) These terms and conditions do not supersede the requirements of 
either the ``Limitation of Cost'' or ``Limitation of Funds'' clauses.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-74  Work assignments.

    As prescribed in 1511.011-74, insert the following contract clause 
in cost-reimbursement type term form contracts when work assignments are 
to be used.

                       Work Assignments (APR 1984)

    (a) The contractor shall perform work under this contract as 
specified in written work assignments issued by the Contracting Officer.
    (b) Each work assignment will include (1) a numerical designation, 
(2) the estimate of required labor hours, (3) the period of performance 
and schedule of deliverables, and (4) the description of the work.
    (c) The Contractor shall acknowledge receipt of each work assignment 
by returning to the Contracting Officer a signed copy of the work 
assignment within ---- calendar days after its receipt. The Contractor 
shall begin work immediately upon receipt of a

[[Page 73]]

work assignment. Within ---- calendar days after receipt of a work 
assignment, the Contractor shall submit ---- copies of a work plan to 
the Project Officer and ---- copies to the Contracting Officer. The work 
plan shall include a detailed technical and staffing plan and a detailed 
cost estimate. Within ---- calendar days after receipt of the work plan, 
the Contracting Officer will provide written approval or disapproval of 
it to the Contractor. If the Contractor has not received approval on a 
work plan within ---- calendar days after its submission, the Contractor 
shall stop work on that work assignment. Also, if the Contracting 
Officer disapproves a work plan, the Contractor shall stop work until 
the problem causing the disapproval is resolved. In either case, the 
Contractor shall resume work only when the Contracting Officer finally 
approves the work plan.
    (d) This clause does not change the requirements of the ``Level of 
Effort'' clause, nor the notification requirements of either the 
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
    (e) Work assignments shall not allow for any change to the terms or 
conditions of the contract. Where any language in the work assignment 
may suggest a change to the terms or conditions, the Contractor shall 
immediately notify the Contracting Officer.

                             (End of clause)

    Alternate I. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall search its records accumulated, at a minimum, over the 
past three years immediately prior to the receipt of the work assignment 
or similar tasking document. In the COI certification, the Contractor 
must certify to the best of the Contractor's knowledge and belief, that 
all actual or potential organizational conflicts of interest have been 
reported to the Contracting Officer or that to the best of the 
Contractor's knowledge and belief, no actual or potential organizational 
conflicts of interest exist. In addition, the Contractor must certify 
that its personnel who perform work under this work assignment or 
relating to this work assignment have been informed of their obligation 
to report personal and organizational conflicts of interest to the 
Contractor. The certification shall also include a statement that the 
Contractor recognizes its continuing obligation to identify and report 
any actual or potential conflicts of interest arising during performance 
of this work assignment or other work related to this site.
    Alternate II. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall initially search through all of its available records 
to identify any actual or potential conflicts of interest. During the 
first three years of this contract, the contractor shall search through 
all records created since the beginning of the contract plus the records 
of the contractor prior to the award of the contract until a minimum of 
three years of records are accumulated. Once three years of records have 
accumulated, prior to certifying, the contractor shall search its 
records accumulated, at a minimum, over the past three years immediately 
prior to the receipt of the work assignment or similar tasking document. 
In the certification, the Contractor must certify to the best of the 
Contractor's knowledge and belief, that all actual or potential 
organizational conflicts of interest have been reported to the 
Contracting Officer or that to the best of the Contractor's knowledge 
and belief, no actual or potential organizational conflicts of interest 
exist. In addition, the Contractor must certify that its personnel who 
perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal and 
organizational conflicts of interest to the Contractor. The 
certification shall also include a statement that the Contractor 
recognizes its continuing obligation to identify and report any

[[Page 74]]

actual or potential conflicts of interest arising during performance of 
this work assignment or other work related to this site.

                             (End of clause)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18624, Apr. 19, 1994. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997]



Sec. 1552.211-75  Working files.

    As prescribed in 1511.011-75, insert the following clause in all 
applicable EPA contracts.

                        Working Files (APR 1984)

    The Contractor shall maintain accurate working files (by task or 
work assignment) on all work documentation including calculations, 
assumptions, interpretations of regulations, sources of information, and 
other raw data required in the performance of this contract. The 
Contractor shall provide the information contained in its working files 
upon request of the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 21994, May 4, 1995. Redesignated at 61 FR 57339, Nov. 6, 
1996, as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-76  Legal analysis.

    As prescribed in 1511.011-76, insert this contract clause when it is 
determined that the contract involves legal analysis.

                        Legal Analysis (APR 1984)

    The Contractor shall furnish to the Project Officer one (1) copy of 
any draft legal analysis. The Government will provide a response to the 
Contractor within thirty (30) calendar days after receipt. The 
Contractor shall not finalize the analysis until the Government has 
given approval.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-77  Final reports.

    As prescribed in 1511.011-77, insert this contract clause when a 
contract requires a draft and a final report.

                        Final Reports (APR 1984)

    (a) ``Draft Report''--The Contractor shall submit to the Project 
Officer ---- copies of the draft final report on or before ---- (date) 
---- The Contractor shall furnish to the Contracting Officer a copy of 
the letter transmitting the draft. The draft shall be typed double-
spaced or space-and-a-half and shall include all pertinent material 
required in the final report. The Government will review for approval or 
disapproval the draft and provide a response to the Contractor within --
-- calendar days after receipt. If the Government does not provide a 
response within the allotted review time, the Contractor immediately 
shall notify the Contracting Officer in writing.
    (b) ``Final Report''--The Contractor shall deliver a final report on 
or before the last day of the period of performance specified in the 
contract. Distribution is as follows:

------------------------------------------------------------------------
             No. of copies                          Addressee
------------------------------------------------------------------------
1.....................................  EPA Library.
1.....................................  Contracting Officer.
1.....................................  Project Officer.
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997]



Sec. 1552.211-78  Management consulting services.

    As prescribed in 1511.011-78, insert the following contract clause 
in all contracts for management consulting services.

                Management Consulting Services (APR 1985)

    All reports containing recommendations to the Environmental 
Protection Agency shall include the following information on the cover 
of each report: (a) Name and business address of the contractor; (b) 
contract number; (c) contract dollar amount; (d) whether the contract 
was subject to full and open competition or a sole source acquisition; 
(e) name of the EPA Project Officer and the EPA Project Officer's office 
identification and location; and (f) date of report.

                             (End of clause)

[50 FR 14360, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985. Redesignated at 
55 FR 39622, Sept. 28, 1990, as amended at 60 FR 21994, May 4, 1995. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997]

[[Page 75]]



Sec. 1552.211-79  Compliance with EPA Policies for Information Resources 
          Management.

    As prescribed in 1511.011-79, insert the following clause:

 Compliance With EPA Policies for Information Resources Management (OCT 
                                  2000)

    (a) Definition. Information Resources Management (IRM) is defined as 
any planning, budgeting, organizing, directing, training, promoting, 
controlling, and managing activities associated with the burden, 
collection, creation, use and dissemination of information. IRM includes 
both information itself, and the management of information and related 
resources such as personnel, equipment, funds, and technology. Examples 
of these services include but are not limited to the following:
    (1) The acquisition, creation, or modification of a computer program 
or automated data base for delivery to EPA or use by EPA or contractors 
operating EPA programs.
    (2) The analysis of requirements for, study of the feasibility of, 
evaluation of alternatives for, or design and development of a computer 
program or automated data base for use by EPA or contractors operating 
EPA programs.
    (3) Services that provide EPA personnel access to or use of computer 
or word processing equipment, software, or related services.
    (4) Services that provide EPA personnel access to or use of: Data 
communications; electronic messaging services or capabilities; 
electronic bulletin boards, or other forms of electronic information 
dissemination; electronic record-keeping; or any other automated 
information services.
    (b) General. The Contractor shall perform any IRM related work under 
this contract in accordance with the IRM policies, standards and 
procedures set forth in this clause and noted below. Upon receipt of a 
work request (i.e. delivery order or work assignment), the Contractor 
shall check this listing of directives (see paragraph (d) for electronic 
access). The applicable directives for performance of the work request 
are those in effect on the date of issuance of the work request.
    (1) IRM Policies, Standards and Procedures. The 2100 Series (2100-
2199) of the Agency's Directive System contains the majority of the 
Agency's IRM policies, standards and procedures.
    (2) Groundwater Program IRM Requirement. A contractor performing any 
work related to collecting Groundwater data; or developing or enhancing 
data bases containing Groundwater quality data shall comply with EPA 
Order 7500.1A--Minimum Set of Data Elements for Groundwater. 
    (3) EPA Computing and Telecommunications Services. The Enterprise 
Technology Services Division (ETSD) Operational Directives Manual 
contains procedural information about the operation of the Agency's 
computing and telecommunications services. Contractors performing work 
for the Agency's National Computer Center or those who are developing 
systems which will be operating on the Agency's national platforms must 
comply with procedures established in the Manual. (This document may be 
found at: ).
    (c) Printed Documents. Documents listed in (b)(1) and (b)(2) may be 
obtained from: U.S. Environmental Protection Agency Office of 
Administration Facilities Management and Services Division Distribution 
Section Mail Code: 3204 1200 Pennsylvania Ave., NW., Washington, DC 
20460 Phone: (202) 260-5797
    (d) Electronic access. A complete listing, including full text, of 
documents included in the 2100 Series of the Agency's Directive System 
is maintained on the EPA Public Access Server on the Internet at http://
epa.gov/docs/irmpoli8/.

                             (End of clause)

[56 FR 42236, Aug. 27, 1991, as amended at 61 FR 33693, June 28, 1996. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997; 65 FR 47325, Aug. 2, 2000; 65 FR 58924, Oct. 3, 2000; 66 
FR 28674, May 24, 2001; 66 FR 34376, June 28, 2001; 67 FR 5072, Feb. 4, 
2002]



Sec. 1552.211-80  Data standards for the transmission of laboratory 
          measurement results.

    As prescribed in 1511.011-80, insert the following clause:

 Data Standards for the Transmission of Laboratory Measurement Results 
                               (OCT 2000)

    This contract requires the transmission of environmental 
measurements to EPA. The transmission of environmental measurements 
shall be in accordance with the provisions of EPA Order 2180.2, dated 
December 10, 1987, which is incorporated by reference in this contract. 
Copies of the Order may be obtained by written request to: Office of 
Information Resources Management, Information Management and Systems 
Division, Mail Code (3404), Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW, Washington, DC 20460.

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]

[[Page 76]]



Sec. 1552.213-70  Notice to suppliers of equipment.

    As prescribed in 1513.507(b), the Contracting Officer shall insert 
the following contract clause in orders for or lease of commercially 
available equipment.

               Notice to Suppliers of Equipment (APR 1984)

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment will NOT be executed.
    (b) Performance in accordance with the terms and conditions of the 
vendor's commercial lease, or customer service maintenance agreement, 
unless specified in the Schedule, may render the vendor's performance 
unacceptable, thereby permitting the Government to apply such 
contractual remedies as may be permitted by law, regulation, or the 
terms of this order.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.214-71  Contract award--other factors--formal advertising.

    As prescribed in 1514.201-6(b), insert the following solicitation 
provision in invitations for bids (IFB) when it is appropriate to 
describe other factors that will be used in evaluating bids for award. 
This provision is used to describe the other factors mentioned in the 
solicitation provisions ``Contract Award--Formal Advertising'' (FAR 
52.214-10), and ``Contract Award--Construction'' (FAR 52.214-19). All 
other evaluation provisions in the IFB (e.g., evaluation of options) 
should be cross-referenced in this provision. The other factors set 
forth in the provision should represent a consolidated statement of the 
exact basis upon which bids will be evaluated for award.

      Contract Award--Other Factors--Formal Advertising (APR 1984)

    The Government will award a contract resulting from this 
solicitation as stated in the ``Contract Award'' provision. The other 
factors that will be considered are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                           (End of provision)



Sec. 1552.215-70  EPA source evaluation and selection procedures--
          negotiated procurements.

    As prescribed in 1515.209(a), insert the following provision:

EPA Source Evaluation and Selection Procedures--Negotiated Procurements 
                               (AUG 1999)

    (a) The Government will perform source selection in accordance with 
FAR Part 15 and the EPA Source Evaluation and Selection Procedures in 
EPAAR Part 1515 (48 CFR Part 1515). The significant features of this 
procedure are:
    (1) The Government will perform either cost analysis or price 
analysis of the offeror's cost/business proposal in accordance with FAR 
Parts 15 and 31, as appropriate. In addition, the Government will also 
evaluate proposals to determine contract cost or price realism.
    Cost or price realism relates to an offeror's demonstrating that the 
proposed cost or price provides an adequate reflection of the offeror's 
understanding of the requirements of this solicitation, i.e., that the 
cost or price is not unrealistically low or unreasonably high.
    (2) The Government will evaluate technical proposals as specified in 
1552.215-71, Evaluation Factors for Award.
    (b) In addition to evaluation of the previously discussed elements, 
the Government will consider in any award decision the responsibility 
factors set forth in FAR Part 9.

                           (End of provision)

[61 FR 47067, Sept. 6, 1996, as amended at 61 FR 57339, Nov. 6, 1996; 64 
FR 47415, Aug. 31, 1999]



Sec. 1552.215-71  Evaluation factors for award.

    As prescribed in 1515.209(a), insert one of the following 
provisions.

                 Evaluation Factors for Award (AUG 1999)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly more important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

[[Page 77]]

                           (End of provision)

     Evaluation Factors for Award (AUG 1999)--Alternate I (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly less important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

                           (End of provision)

________________________________________________________________________

    Evaluation Factors for Award (AUG 1999)--Alternate II (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
approximately equal to cost or price.
    (b) Evaluation factors and significant subfactors to determine the 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

                           [End of provision]

    Evaluation Factors for Award (AUG 1999)--Alternate III (AUG 2000)

    (a) The Government will make award to the offeror with the lowest-
evaluated cost or price, whose proposal meets or exceeds the 
acceptability standards for non-cost factors. In the event that there 
are two or more technically acceptable, equal price (cost) offers, the 
Government will consider socioeconomic, environmental and other similar 
factors, as listed below in descending order of importance:

________________________________________________________________________

________________________________________________________________________

    (b) Factors and significant subfactors for technical acceptability 
evaluation:

________________________________________________________________________

________________________________________________________________________

    (c) Factors for past performance evaluation (optional):

________________________________________________________________________

________________________________________________________________________

                           [End of provision]

[64 FR 47415, Aug. 31, 1999]



Sec. 1552.215-72  Instructions for the Preparation of Proposals.

    As prescribed in 1515.408(a)(1) insert the following provision:

        Instructions for the Preparation of Proposals (AUG 1999)

    (a) Other than cost proposal instructions.
    (1) Submit proposal for than cost factors as a separate part of the 
total proposal package. Omit all cost or pricing details from this 
proposal.
    (2) Special proposal instructions:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (b) Cost or pricing proposal instructions. The offeror shall prepare 
and submit cost or pricing information data and supporting attachments 
in accordance with Table 15-2 of FAR 15.408. In addition to a hard copy 
of the information, to expedite review of the proposal, submit a 3.5'' 
high density IBM-compatible formatted computer disk containing the 
financial data required, if this information is available using a 
commercial spreadsheet program on a personal computer. Submit this 
information using LOTUS 1-2-3, if available. Identify which version of 
LOTUS used. If the offeror used another spreadsheet program, indicate 
the software program used to create this information. Offerors should 
include the formulas and factors used in calculating the financial data. 
Although submission of a computer disk will expedite review, failure to 
submit a disk will not affect consideration of the proposal.
    (1) General--Submit cost or pricing information prepared in 
accordance with FAR Table 15-2, Instructions for Submitting Cost/Price 
Proposals When Cost or Pricing Information Are Required and the 
following:
    (i) Clearly identify separate cost or pricing information associated 
with any:
    (A) Options to extend the term of the contract;
    (B) Options for the Government to order incremental quantities; and/
or
    (C) Major tasks, if required by the special instructions.
    (ii) If the contract schedule includes a ``Fixed Rate for Services'' 
clause, please provide in the cost proposal a schedule duplicating the 
format in the clause and include proposed fixed hourly rates per labor 
category for the base and any optional contract periods.
    (iii) If the contract includes the clause at EPAAR 1552.232-73 
``Payments--Fixed-Rate Services Contract,'' or the clause at FAR

[[Page 78]]

52.232-7, ``Payments Under Time and Materials and Labor-Hour 
Contracts,'' include in the cost proposal the estimated costs and burden 
rate to be applied to materials, other direct costs, or subcontracts. 
The Government will include these costs as part of its cost proposal 
evaluation.
    (iv) If other divisions, subsidiaries, a parent or affiliated 
companies will perform work, provide the name and location of such 
affiliate and offeror's intercompany pricing policy. Separately identify 
costs and supporting data for each entity proposed.
    (v) The realism of costs, including personnel compensation rates 
(including effective hourly rates due to uncompensated overtime) will be 
part of the proposal evaluation. Any reductions to proposed costs or 
differences between proposed and known EPA/DCAA recommended rates must 
be fully explained. If an offeror makes a reduction which makes its 
offer or portions of its offer below anticipated costs, the offeror 
shall identify where (i.e., which elements of costs) the proposed 
reductions will be made. Unsubstantiated rates may result in an upward 
or downward adjustment of the cost proposals to reflect more realistic 
costs. Based on this analysis, a projected cost for the offeror will be 
calculated to reflect the Government's estimate of the offeror's 
probable costs. Any inconsistency, whether real or apparent, between the 
promised performance and cost or price should be explained. The burden 
of proof for cost credibility rests with the offeror.
    (2) Direct Labor.
    (i) The direct technical labor hours (level-of-effort) appearing in 
the solicitation are for professional and technical labor only. These 
hours do not include management at a level higher than project 
management, e.g., corporate and day-to-day management, nor do they 
include clerical and support staff at a level lower than technician. If 
it is the offeror's normal practice to charge these types of costs as 
direct costs, include these costs along with an estimate of the directly 
chargeable labor-hours for these personnel. These direct charges are to 
be shown separately from the technical (level-of-effort) effort. If this 
type of effort is normally included in the offeror's indirect cost 
allocations, no estimate is required. However, direct charging of these 
on any resulting contract will not be allowed. Additionally the direct 
technical labor hours are the workable hours required by the Government 
and do not include release time (i.e., holidays, vacation, etc.) Submit 
the proposal utilizing the labor categories and distribution of the 
level-of-effort specified in the solicitation. These are approximate 
distribution levels and do not necessarily represent the actual levels 
which may be experienced during contract performance.
    (ii) Explain the basis of the proposed labor rates, including a 
complete justification for all judgmental factors used to develop 
weights applied to company's category or individual rates that comprise 
the rates for labor categories specified in the solicitation. This 
explanation should describe how technical approach coincides with the 
proposed costs. If the proposed direct labor rates are based on an 
average of the individuals proposed to work on the contract, provide a 
list of the individuals proposed and the hours associated with each 
individual in deriving the rates. If the proposed direct labor rates are 
based on an average of company category rates, identify and describe the 
labor categories and the percentages associated with each category in 
deriving the rates, explaining in detail the basis for the percentages 
assigned.
    (iii) Describe for each labor category proposed, the company's 
qualifications and experience requirements. If individual rates are 
used, provide the employee's name. If specific individuals are 
identified in the technical proposal, correlate these individuals with 
the labor categories specified in the solicitation.
    (iv) Provide a matrix summarizing the effort proposed, including the 
subcontracts, by professional and technical level specified in the 
solicitation.
    (v) Indicate whether current rates or escalated rates are used. If 
escalation is included, state the degree (percent) and methodology. The 
methodology shall include the effective date of the base rates and the 
policy on salary reviews (e.g. anniversary date of employee or salary 
reviews for all employees on a specific date).
    (vi) State whether any additional direct labor (new hire or 
temporary hires) will be required during the performance period of this 
acquisition. If so, state the number required, the professional or 
technical level and the methodology used to estimate proposed labor 
rates.
    (vii) With respect to educational institutions, include the 
following information for those professional staff members whose salary 
is expected to be covered by a stipulated salary support agreement 
pursuant to OMB Circular A-21.
    (A) Individual's name;
    (B) Annual salary and the period for which the salary is applicable;
    (C) List of other research Projects or proposals for which salaries 
are allocated, and the proportionate time charged to each; and
    (D) Other duties, such as teaching assignments, administrative 
assignments, and other institutional activities. Show the proportionate 
time charged to each. (Show proportionate time charges as a percentage 
of 100% of time for the entire academic year, exclusive of vacation or 
sabbatical leave.)

[[Page 79]]

    (viii) Uncompensated overtime. The decision to propose uncompensated 
overtime is the offeror's decision. Should the offeror, however, elect 
to propose uncompensated overtime, the offeror must propose a 
methodology that is consistent with their cost accounting practices and 
company policy. If proposed, provide an estimate of any uncompensated 
overtime proposed for exempt personnel working at the offeror's 
facilities. This estimate should identify the number of uncompensated 
labor hours and the percentage of compensated labor. Uncompensated labor 
hours are defined as hours for exempt personnel in excess of regular 
hours for a pay period which are actually worked and recorded in 
accordance with company policy. Provide a copy of the company policy on 
uncompensated overtime. Provide historical percentages of uncompensated 
overtime for the past three years. If proposed for subcontractors, 
provide separately with subcontractor information.
    (ix) For labor rate contracts, for each fixed labor rate, offerors 
shall identify the basis for for the loaded fixed hourly rate for each 
contract period for example, the rate might consist of the following 
cost elements: raw wage or salary rate, plus fringe benefits (if 
applicable), plus overhead rate (if applicable), plus G&A expense rate 
(if applicable), plus profit.
    When determining the composite raw wage for a labor category, the 
offeror shall:
    (A) provide in narrative form the basis for the raw wage for each 
labor category. If actual wages of current employees are used, the basis 
for the projections should be explained.
    (B) If employees are subject to the Service Contract Act or Davis 
Bacon Act, they must be compensated at least at the minimum wage rate 
required by the applicable Wage Determination.
    (3) Indirect costs (fringe, overhead, general, and administrative 
expenses).
    (i) If the rates have been recently approved, include a copy of the 
rate agreement. If the agreement does not cover the projected 
performance period of the proposed effort, provide the rationale and any 
estimated rate calculations for the proposed performance period.
    (ii) Submit supporting documentation for rates which have not been 
approved or audited. Indicate whether computations are based upon 
historical or projected data.
    (iii) Provide actual pool expenses, base dollars, or hours (as 
applicable for the past five years). Include the actual indirect rates 
for the past five years including the indirect rates proposed, the 
actual indirect rates experienced and, if available, the final 
negotiated rate. Indicate the amount of unallowable costs included in 
the historical data.
    (iv) Offerors who propose indirect rates for new or substantially 
reorganized cost centers should consider offering to accept ceilings on 
the indirect rates at the proposed rates. Similarly, offerors whose 
subcontractors propose indirect rates for new or substantially 
reorganized cost centers should likewise consider offering to accept 
ceilings on the subcontractors' indirect rates at the proposed rates.

    Note to paragraph (b)(3)(iv): The Government reserves the right to 
adjust an offeror's or its subcontractor's estimated indirect costs for 
evaluation purposes based on the Agency's judgment of the most probable 
costs up to the amount of any stated ceiling.
    (v) If the employees are subject to the Service Contract Act or 
Davis Bacon Act, employees must receive the minimum level of benefits 
stated in the applicable Wage Determination.
    (4) Travel expense.
    (i) If the solicitation specifies the amount of travel costs, this 
amount is exclusive of any applicable indirect costs and fee.
    (ii) If the solicitation does not specify the amount of travel 
costs, attach a schedule illustrating how travel was computed. Include a 
breakdown indicating number of trips, number of travelers, destinations 
from and to, purpose and cost, e.g., mileage, transportation costs, 
subsistence rates.
    (5) Equipment, facilities and special equipment, including tooling.
    (i) If direct charges for use of existing contractor equipment are 
proposed, provide a description of these items, including estimated 
usage hours, rates, and total costs.
    (ii) If equipment purchases are proposed, provide a description of 
these items, and a justification as to why the Government should furnish 
the equipment or allow its purchase with contract funds. (Unless 
specified elsewhere in this solicitation, FAR 45.302-1 requires 
contractors to furnish all facilities in performance of contracts with 
certain limited exceptions.)
    (iii) Identify Government-owned property in the possession of the 
offeror or proposed to be used in the performance of the contract, and 
the Government agency which has cognizance over the property.
    (iv) Submit proposed rates or use charges for equipment, along with 
documentation to support those rates.
    (v) If special purposes facilities or equipment are being proposed, 
provide a description of these items, details for the proposed costs 
including competitive prices, and justification as to why the Government 
should furnish the equipment or allow its purchase with contract funds.
    (vi) If fabrication by the prime contractor is contemplated, include 
details of material, labor, and overhead.
    (6) Other Direct Costs (ODC).

[[Page 80]]

    (i) If the solicitation specifies the amount of other direct costs, 
this amount is exclusive of any applicable indirect cost and fee.
    (ii) If the amount is not specified in the solicitation, attach a 
schedule detailing how other direct costs were computed. Identify the 
major ODC items that under the accounting system would be a direct 
charge on any resulting contract.
    (iii) If any of the cost elements identified as part of the 
specified other direct costs are recovered as an indirect cost, in 
accordance with the offeror's accounting system, those costs should not 
be included as a direct cost. Complete explanation of this adjustment 
and the contractor's practice should be provided.
    (iv) Provide historical other direct costs dollars per level of 
effort hour on similar contracts or work assignments.
    (7) Team Subcontracts. When the cost of a subcontract is substantial 
(5 percent of the total estimated contract dollar value or $100,000, 
whichever is less), the offeror shall include the following 
subcontractor information:
    (i) Provide details of subcontract costs in the same format as the 
prime contractor's costs. This detailed information may be provided 
separately to the EPA if the subcontractor does not wish to provide this 
data to the prime contractor. Cost data provided separately by a 
contractor must be received by the time, date and at the location 
specified for the receipt of proposals. The subcontractor's package 
should be clearly marked with the RFP number, the name of the prime 
offeror, and a statement that the package is subcontractor data relevant 
to the proposal from the prime offeror. If submitted with the prime 
contractor's proposal, identify the subcontractors. State the amount of 
service estimated to be required and the quoted daily or hourly rate. 
Offerors are encouraged to provide letters of intent, signed by 
subcontractors, agreeing to a specified rate for life of the contract. 
Include a cost or price analysis of the subcontractor cost showing the 
reasons why the costs are considered reasonable;
    (ii) Describe how the prospective team subcontractors were chosen as 
part of the offeror's proposed team; and rationale for selection;
    (iii) Describe the necessity for the subcontractor's effort as 
either a supplement or complement to the offeror's in-house expertise;
    (iv) Identify the areas of the scope of work and the level of effort 
the subcontractors are anticipated to perform. Provide a reconciliation 
summary of the proposed hours and ODCs for the prime contractor and 
proposed subcontractor(s).
    (v) Describe the prime contractor's management structure and 
internal controls to ensure efficient and quality performance of team 
subcontractors.
    (8) Facilities Capital Cost of Money (FCCM). When an offeror elects 
to claim FCCM as an allowable cost, the offeror must submit Form CASB-
CNF and show calculation of the proposed amount. FCCM will be an 
allowable cost under the contemplated contract, if the criteria for 
allowability at FAR 31.205-10(a)(2) are met.

                           [End of provision]

    Alternate I (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is on a Government facility, add the following 
paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per week x 52 weeks per year=2080 
hours). The proposal must identify proposed work years and clearly 
identify how many hours in each work year are direct (i.e., productive 
working hours) and how many are indirect (i.e., paid absences). If the 
company policy includes a different base work week, the total available 
hours would be different. For example, if the company's policy calls for 
a 37.5 hour work week, offeror would deduct paid absences from 1950 hour 
(37.5 hours/week x 52 weeks/year=1950 hours). Offeror should clearly 
identify the paid absences as to how many hours are for holiday and how 
many hours are for vacation and sick leave. The amount of indirect time 
(paid absences) identified in the proposal must be consistent with 
company policy and must allow for the ten Federal government holidays.

    Alternate II (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is not on a Government facility; add the 
following paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per week x 52 weeks per year=2080 
hours). The proposal must identify proposed work years and clearly 
identify how many hours in each work year are direct (i.e., productive 
working hours) and how many are indirect (i.e., paid absences). If the 
company policy includes a different base work week, the total available 
hours would be different. For example, if the company's policy calls for 
a 37.5 hour work week, offeror would deduct paid absences from 1950 hour 
(37.5 hours/week x 52

[[Page 81]]

weeks/year=1950 hours). Offeror should clearly identify the paid 
absences as to how many hours are for holiday and how many hours are for 
vacation and sick leave.

    Alternate III (AUG 1999). If the requirement is for the acquisition 
of supplies or equipment, substitute the following paragraphs (a)(iv)--
(viii) and add (a)(ix) and (b).

    (iv) Provide information as to how the proposed supplies or 
equipment meet the salient characteristics required by the contract line 
item;
    (v) Provide published brochures, catalogs, or other technical 
literature by contract line item;
    (vi) Meet any interface or compatibility requirements by contract 
line item;
    (vii) Describe warranty services and how delivered by contract line 
item;
    (viii) Assumptions, deviations and exceptions (as necessary); and
    (ix) Additional information.
    (b) Supplies--Provide unit pricing by contract line items for:
    (i) each line item;
    (ii) delivery;
    (iii) installation;
    (iv) sets of operating manuals;
    (v) training;
    (vi) warranty;
    (vii) maintenance; and
    (viii) volume discounts.

[64 FR 47415, Aug. 31, 1999]



Sec. 1552.215-73  General financial and organizational information.

    As prescribed in 1515.408(a)(2), insert the following provision:

      General Financial and Organizational Information: (AUG 1999)

    Offerors or quoters are requested to provide information regarding 
the following items in sufficient detail to allow a full and complete 
business evaluation. If the question indicated is not applicable or the 
answer is none, it should be annotated. If the offeror has previously 
submitted the information, it should certify the validity of that data 
currently on file at EPA and to whom and where it was submitted or 
update all outdated information on file.
  (a) Contractor's Name:________________________________________________
    (b) Address (If financial records are maintained at some other 
location, show the address of the place where the records are kept):

________________________________________________________________________
________________________________________________________________________
  (c) Telephone Number:_________________________________________________
  (d) Individual(s) to contact re. this proposal:_______________________
________________________________________________________________________
    (e) Cognizant Government:

Audit Agency:___________________________________________________________
Address:________________________________________________________________
Auditor:________________________________________________________________
    (f)(1) Work Distribution for the Last Completed Fiscal Accounting 
Period:

Sales:
  Government cost-reimbursement type prime contracts           $--------
   and subcontracts.................................
  Government fixed-price prime contracts and                   $--------
   subcontracts.....................................
  Commercial Sales..................................           $--------
    Total Sales.....................................           $--------
  (2) Total Sales for first and second fiscal years
  immediately preceding last completed fiscal year.
 


Total Sales for First Preceding Fiscal Year.........           $--------
Total Sales for Second Preceding Fiscal Year........           $--------
(g) Is company a separate rate entity or division?..
Yes--------
No--------
 
 

    If a division or subsidiary corporation, name parent company:
________________________________________________________________________

  (h) Date Company Organized:___________________________________________

    (i) Manpower:

Total Employees:________________________________________________________

Direct:_________________________________________________________________

Indirect:_______________________________________________________________

Standard Work Week (Hours):_____________________________________________

  (j) Commercial Products:______________________________________________

    (k) Attach a current organizational chart of the company.
    (l) Description of Contractor's system of estimating and 
accumulating costs under Government contracts. (Check appropriate 
blocks.)

------------------------------------------------------------------------
                                                 Estimated/    Standard
                                                actual cost      cost
------------------------------------------------------------------------
Estimating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
 
Accumulating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
------------------------------------------------------------------------

    Has your cost estimating system been approved by any Government 
agency?
Yes -------- No --------

    If yes, give name, date or approval, and location of agency:

________________________________________________________________________
________________________________________________________________________


[[Page 82]]

________________________________________________________________________
    Has your cost accumulation system been approved by any Government 
agency?
Yes -------- No --------
    If yes, give name, date of approval, and address of agency:
________________________________________________________________________
________________________________________________________________________

    (m) What is your fiscal year period? (Give month-to-month dates):

________________________________________________________________________
________________________________________________________________________
    What were the indirect cost rates for your last completed fiscal 
year?

------------------------------------------------------------------------
                                                   Indirect    Basis of
                   Fiscal year                     cost rate  allocation
------------------------------------------------------------------------
Fringe Benefits.................................      ------      ------
Overhead........................................      ------      ------
G&A Expense.....................................      ------      ------
Other...........................................      ------      ------
------------------------------------------------------------------------

    (n) Have the proposed indirect cost rate(s) been evaluated and 
accepted by any Government agency?
Yes -------- No --------
    If yes, give name, date of approval, and location of the Government 
agency:
________________________________________________________________________

    Date of last preaward audit review by a Government agency:
________________________________________________________________________

    If the answer is no, data supporting the proposed rates must 
accompany the cost or price proposal. A breakdown of the items 
comprising overhead and G&A must be furnished.
    (o) Cost estimating is performed by:

Accounting Department___________________________________________________
Contracting Department__________________________________________________
Other (describe)________________________________________________________
    (p) Has system of control of Government property been approved by a 
Government agency?
Yes -------- No --------
    If yes, give name, date of approval, and location of the Government 
agency:

________________________________________________________________________
________________________________________________________________________

    (q) Purchasing System: FAR 44.302 requires EPA, where it is the 
cognizant Government agency, to conduct a Contractor Purchasing System 
Review for each contractor whose sales to the Government, using other 
than sealed bid procedures, are expected to exceed $25 million (annual 
billings) during the next twelve months. The $25 million sales threshold 
is comprised of prime contracts, subcontractors under Government prime 
contracts, and modifications (except when the negotiated price is based 
on established catalog or market prices or is set by law or regulation).
    Has your purchasing system been approved by a Government agency?
Yes -------- No --------

    If yes, name and location of the Government agency:
________________________________________________________________________
Period of Approval:_____________________________________________________

    If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $25 million threshold? Yes 
-------- No --------
    If you responded yes to the $25 million threshold question, is EPA 
the cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes -------- No --------
    If EPA is not your cognizant Government agency, provide the name and 
location of the cognizant agency ------------
________________________________________________________________________
    Are your purchasing policies and procedures written?
Yes -------- No --------
    (r) Does your firm have an established written incentive 
compensation or bonus plan?
Yes -------- No --------
    (s) Additionally, offerors shall submit current financial 
statements, including a Balance Sheet, Statement of Income (Loss), and 
Cash Flow for the last two completed fiscal years. Specify resources 
available to perform the contract without assistance from any outside 
source. If sufficient resources are not available, indicate in proposal 
the amount required and the anticipated source (i.e., bank loans, letter 
or lines of credit, etc.).

                           (End of provision)

[64 FR 47417, Aug. 31, 1999]



Sec. 1552.215-74  Advanced understanding--uncompensated time.

    As prescribed in 1515.408(b), insert the following provision or one 
substantially the same as the following provision:

          Advanced Understanding--Uncompensated Time (AUG 1999)

    (a) The estimated cost of this contract is based upon the 
Contractor's proposal which specified that exempt personnel identified 
to work at the Contractor's facilities will provide uncompensated labor 
hours to the contract totaling -------- percent of compensated labor. 
(Note: the commitment for uncompensated time, and the formula elements 
in paragraph (b) below, apply only to exempt personnel working at the 
Contractor's facilities and does not include non-exempt personnel or 
exempt personnel working at other facilities.) Uncompensated labor hours 
are defined as hours of exempt personnel in excess of regular hours for 
a -------- pay period which are actually

[[Page 83]]

worked and recorded in accordance with the company policy, entitled, --
--------------.
    (b) Recognizing that the probable cost to the Government for the 
labor provided under this contract is calculated assuming a proposed 
level of uncompensated labor hours, it is hereby agreed that in the 
event the proposed level of uncompensated labor hours are not provided, 
an adjustment, calculated in accordance with the following formula will 
be made to the contract amount.
    Formula:
    Adjustment equals estimated value of uncompensated time hours not 
provided.
    Target uncompensated time percent minus ------ percent.
    Shortage of uncompensated time percent minus actual cost percent.
    Estimated value of uncompensated time hours not provided equals 
shortage of uncompensated time percent times total exempt applicable 
direct labor costs (including applicable indirect costs).
    (c) Within three weeks after the end of the contract, the Contractor 
shall submit a statement concerning the amount of uncompensated time 
hours delivered during the contract. In the event there is a shortage of 
uncompensated time hours provided, a calculation, utilizing the above 
formula will be made and this calculation will be the basis for an 
adjustment in the contract amount.
    (d) In the event adjustments are made to the contract, the adjusted 
amounts shall not be allowable as a direct or indirect cost to this or 
any other Government contract.

                             (End of clause)

[64 FR 47418, Aug. 31, 1999]



Sec. 1552.215-75  Past performance information.

    As prescribed in 1515.209(c), insert the following clause:

                 Past Performance Information (OCT 2000)

    (a) Offerors shall submit the information requested below as part of 
their proposal for both the offeror and any proposed subcontractors for 
subcontracts expected to exceed $  *  . The information may be submitted 
prior to other parts of the proposal in order to assist the Government 
in reducing the evaluation period.
    (b) Offerors shall submit a list of all or at least   *   contracts 
and subcontracts completed in the last   *   years, and all contracts 
and subcontracts currently in process, which are similar in nature to 
this requirement.
    (1) The contracts and subcontracts listed may include those entered 
into with Federal, State and local governments, and commercial 
businesses, which are of similar scope, magnitude, relevance, and 
complexity to the requirement which is described in the RFP. Include the 
following information for each contract and subcontract listed:
    (a) Name of contracting activity.
    (b) Contract number.
    (c) Contract title.
    (d) Contract type.
    (e) Brief description of contract or subcontract and relevance to 
this requirement.
    (f) Total contract value.
    (g) Period of performance.
    (h) Contracting officer, telephone number, and E-mail address (if 
available).
    (i) Program manager/project officer, telephone number, and E-mail 
address (if available).
    (j) Administrative Contracting officer, if different from (h) above, 
telephone number, and E-mail address (if available).
    (k) List of subcontractors (if applicable).
    (l) Compliance with subcontracting plan goals for small 
disadvantaged business concerns, monetary targets for small 
disadvantaged business participation, and the notifications submitted 
under FAR 19.1202-4 (b), if applicable.
    (c) Offerors should not provide general information on their 
performance on the identified contracts and subcontracts. General 
performance information will be obtained from the references.
    (1) Offerors may provide information on problems encountered and 
corrective actions taken on the identified contracts and subcontracts.
    (2) References that may be contacted by the Government include the 
contracting officer, program manager/project officer, or the 
administrative contracting officer identified above.
    (3) If no response is received from a reference, the Government will 
make an attempt to contact another reference identified by the offeror, 
to contact a reference not identified by the offeror, or to complete the 
evaluation with those references who responded. The Government shall 
consider the information provided by the references, and may also 
consider information obtained from other sources, when evaluating an 
offeror's past performance.
    (4) Attempts to obtain responses from references will generally not 
go beyond two telephonic messages and/or written requests from the 
Government, unless otherwise stated in the solicitation. The Government 
is not obligated to contact all of the references identified by the 
offeror.
    (d) If negative feedback is received from an offeror's reference, 
the Government will compare the negative response to the responses from 
the offeror's other references to note differences. A score will be 
assigned appropriately to the offeror based on the information. The 
offeror will be given the opportunity to address adverse past 
performance information obtained from references on

[[Page 84]]

which the offeror has not had a previous opportunity to comment, if that 
information makes a difference in the Government's decision to include 
the offeror in or exclude the offeror from the competitive range. Any 
past performance deficiency or significant weakness will be discussed 
with offerors in the competitive range during discussions.
    (e) Offerors must send Client Authorization Letters (see Section J 
of the solicitation) to each reference listed in their proposal to 
assist in the timely processing of the past performance evaluation. 
Offerors are encouraged to consolidate requests whenever possible (i.e., 
if the same reference has several contracts, send that reference a 
single notice citing all applicable contracts). Offerors may send Client 
Authorization Letters electronically to references with copies forwarded 
to the contracting officer.
    (1) If an offeror has no relevant past performance history, an 
offeror must affirmatively state that it possesses no relevant past 
performance history.
    (2) Client Authorization Letters should be mailed or E-mailed to 
individual references no later than five (5) working days after proposal 
submission. The offeror should forward a copy of the Client 
Authorization Letter to the contracting officer simultaneously with 
mailing to references.
    (f) Each offeror may describe any quality awards or certifications 
that indicate the offeror possesses a high-quality process for 
developing and producing the product or service required. Such awards or 
certifications include, for example, the Malcolm Baldrige Quality Award, 
other Government quality awards, and private sector awards or 
certifications.
    (1) Identify the segment of the company (one division or the entire 
company) which received the award or certification.
    (2) Describe when the award or certification was bestowed. If the 
award or certification is over three years old, present evidence that 
the qualifications still apply.
    (g) Past performance information will be used for both 
responsibility determinations and as an evaluation factor for award. The 
Past Performance Questionnaire identified in section J will be used to 
collect information on an offeror's performance under existing and prior 
contracts/subcontracts for products or services similar in scope, 
magnitude, relevance, and complexity to this requirement in order to 
evaluate offerors consistent with the past performance evaluation factor 
set forth in section M. References other than those identified by the 
offeror may be contacted by the Government and used in the evaluation of 
the offeror's past performance.
    (h) Any information collected concerning an offeror's past 
performance will be maintained in the official contract file.
    (i) In accordance with FAR 15.305 (a) (2) (iv), offerors with no 
relevant past performance history, or for whom information on past 
performance is not available, will be evaluated neither favorably nor 
unfavorably on past performance.

* Indicates that the contracting officer inserts applicable dollar 
figure and number.

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



Sec. 1552.215-76  General financial and organizational information.

    As prescribed in 1515.407(a)(3), insert the following provisions:

       General Financial and Organizational Information (APR 1984)

    Offerors or quoters are requested to provide information regarding 
the following items in sufficient detail to allow a full and complete 
business evaluation. If the question indicated is not applicable or the 
answer is none, it should be annotated. If the offeror has previously 
submitted the information, it should certify the validity of that data 
currently on file at EPA or update all outdated information on file.
    (a) Contractor's Name: --------.
    (b) Address (If financial records are maintained at some other 
location, show the address of the place where the records are kept):
________________________________________________________________________
    (c) Telephone Number: --------.
    (d) Individual(s) to contact re this proposal:
________________________________________________________________________
    (e) Cognizant Government:
  Audit Agency:_________________________________________________________
  Address:______________________________________________________________
  Auditor:______________________________________________________________
    (f)(1) Work Distribution for the Last Completed Fiscal Accounting 
Period:

Sales:
  Government cost-reimbursement type prime contracts and       $........
   subcontracts............................................
  Government fixed-price prime contracts and subcontracts..    $........
  Commercial sales.........................................    $........
 
                                                            ------------
      Total sales..........................................    $........
 

    (2) Total sales for first and second fiscal years immediately 
preceding last completed fiscal year.

Total sales for first preceding fiscal year................    $........
Total sales for second preceding fiscal year...............    $........
 

    (g) Is company a separate entity or division?

[[Page 85]]

________________________________________________________________________
    If a division or subsidiary corporation, name parent company:
________________________________________________________________________
    (h) Date Company Organized: --------.
    (i) Manpower:
  Total Employer:_______________________________________________________
  Direct:_______________________________________________________________
  Indirect:_____________________________________________________________
  Standard Work Week (Hours):___________________________________________
    (j) Commercial Products: --------.
    (k) Attach a current organizational chart of the company.
    (l) Description of Contractor's system of estimating and 
accumulating costs under Government contracts. (Check appropriate 
blocks.)

------------------------------------------------------------------------
                                                 Estimated/     Standard
                                                actual cost       cost
------------------------------------------------------------------------
Estimating System:
  Job Order.................................  ...............  .........
  Process...................................  ...............  .........
Accumulating System:
  Job Order.................................  ...............  .........
  Process...................................  ...............  .........
------------------------------------------------------------------------

    Has your cost estimating system been approved by any Government 
agency?

Yes ----  No ----
    If yes, give name and address of agency:
________________________________________________________________________
    Has your cost accumulation system been approved by any Government 
agency?

Yes ----  No ----
    If yes, give name and address of agency:
________________________________________________________________________
    (m) What is your fiscal year period? (Give month-to-month dates):
________________________________________________________________________
What were the indirect cost rates for your last completed fiscal year?

------------------------------------------------------------------------
                                               Indirect cost   Basis of
                 Fiscal year                       rate       allocation
------------------------------------------------------------------------
Fringe Benefits.............................  ..............  ..........
Overhead....................................  ..............  ..........
G&A Expense.................................  ..............  ..........
Other.......................................  ..............  ..........
------------------------------------------------------------------------

    (n) Have the proposed indirect cost rate(s) been evaluated and 
accepted by any Government agency?

Yes ----  No ----
    If yes, name and location of the Government agency:
________________________________________________________________________
    Date of last preaward audit review by a Government agency: ------.
    (If the answer is no, data supporting the proposed rates must 
accompany the cost or price proposal. A breakdown of the items 
comprising overhead and G&A must be furnished.)
    (o) Cost estimating is performed by:
  Accounting Department_________________________________________________
  Contracting Department________________________________________________
  Other_________________________________________________________________

                                   (describe)

    (p) Has system of control of Government property been approved by a 
Government agency?

Yes ----  No ----
    If yes, name and location of the Government agency:
________________________________________________________________________
    (q) Purchasing System: FAR 44.302 requires EPA, where it is the 
cognizant Government agency, to conduct a Contractor Purchasing System 
Review for each contractor whose sales to the Government, using other 
than sealed bid procedures, are expected to exceed $10 million (annual 
billings) during the next twelve months. The $10 million sales threshold 
is comprised of prime contracts, subcontracts under Government prime 
contracts, and modifications (except when the negotiated price is based 
on established catalog or market prices or is set by law or regulation). 
Has your purchasing system been approved by a Government agency?

Yes ---- No ----
If yes, name and location of the Government agency:
________________________________________________________________________
Period of Approval:_____________________________________________________
If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $10 million threshold?
Yes ---- No ----
If you respond yes to the $10 million threshold question, is EPA the 
cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes ---- No ----
If EPA is not your cognizant Government agency, provide the name and 
location of the
cognizant agency________________________________________________________
________________________________________________________________________
Are your purchasing policies and procedures written?
Yes ---- No ----
    (r) Does your firm have an established written incentive competition 
or bonus plan?

Yes ----  No ----

                           (End of provision)

(Approved by the Office of Management and Budget under control number 
2030-0006)

[49 FR 8867, Mar. 8, 1984, as amended at 54 FR 36980, Sept. 6, 1989; 55 
FR 13535, Apr. 11, 1990]



Sec. 1552.216-70  Award Fee.

    As prescribed in 1516.405(a), insert the following clause:

[[Page 86]]

                          Award Fee (MAY 2000)

    (a) The Government shall pay the contractor a base fee, if any, and 
such additional fee as may be earned, as provided in the award fee plan 
incorporated into the Schedule.
    (b) Award fee determinations made by the Government under this 
contract are unilaterally determined by the Fee Determination Official 
(FDO). The amount of the award fee to be paid is determined by the 
Government's judgmental evaluation of the contractor's performance in 
terms of the criteria stated in the contract. This determination and the 
methodology for determining the award fee are unilateral decisions made 
solely at the discretion of the Government.
    (c) The Government may unilaterally change the award fee plan at any 
time, via contract modification, at least thirty (30) calendar days 
prior to the beginning of the applicable evaluation period. Changes 
issued in a unilateral modification are not subject to equitable 
adjustments, consideration, or any other renegotiation of the contract.

                             (End of clause)

[60 FR 43404, Aug. 21, 1995, as amended at 65 FR 31500, May 18, 2000]



Sec. 1552.216-71  Date of incurrence of cost.

    At prescribed in 1516.307, insert the following contract clause in 
cost-reimbursement contracts when an anticipatory cost letter has been 
issued on the project. The beginning dates and the not-to-exceed amount 
to be inserted in the clause should be those in the anticipatory cost 
letter.

                  Date of Incurrence of Cost (APR 1984)

    The Contractor is entitled to reimbursement for allowable, allocable 
costs incurred during the period of ------------ to the award date of 
this contract in an amount not to exceed
$_______________________________________________________________________
All terms and conditions of this contract are in effect from

________________________________________________________________________

                             (End of clause)



Sec. 1552.216-72  Ordering--by designated ordering officers.

    As prescribed in 1516.505(a), insert the following in indefinite 
delivery/indefinite quantity contracts.

          Ordering--By Designated Ordering Officers (APR 1984)

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing delivery orders on Optional 
Form 347, or any agency prescribed form, from ------ through ------. In 
addition to the Contracting Officer, the following individuals are 
authorized ordering officers.
________________________________________________________________________
________________________________________________________________________
    (b) A Standard Form 30 will be the method of amending delivery 
orders.
    (c) The Contractor shall acknowledge receipt of each order and shall 
prepare and forward to the Ordering Officer within ten (10) calendar 
days the proposed staffing plan for accomplishing the assigned task 
within the period specified.
    (d) If the Contractor considers the estimated labor hours or 
specified work completion date to be unreasonable, he/she shall promptly 
notify the Ordering Officer and Contracting Officer in writing within 10 
calendar days, stating why the estimated labor hours or specified 
completion date is considered unreasonable.
    (e) Each delivery order will have a ceiling price, which the 
Contractor may not exceed. When the Contractor has reason to believe 
that the labor payment and support costs for the order, which will 
accrue in the next thirty (30) days, will bring total cost to over 85 
percent of the ceiling price specified in the order, the Contractor 
shall notify the Ordering Officer.
    (f) Paragraphs (c), (d), and (e) of this clause apply only when 
services are being ordered.

                             (End of clause)



Sec. 1552.216-73  Fixed rates for services--indefinite delivery/
          indefinite quantity contract.

    As prescribed in 1516.505(b), insert the following clause to specify 
fixed rates for services in indefinite delivery/indefinite quantity 
contracts. When the contract contains options, the clause should be 
modified to reflect the information and data for the base period and any 
option periods.

   Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
                           Contract (APR 1984)

    The following fixed rates shall apply for payment purposes for the 
duration of the contact.

------------------------------------------------------------------------
                                             Estimated
                                    Skill     direct     Fixed
     Personnel classification       level      labor     hourly   Total
                                               hours      rate
------------------------------------------------------------------------
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......

[[Page 87]]

 
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
------------------------------------------------------------------------

    The rate, or rates, set forth above cover all expenses, including 
report preparation, salaries, overhead, general and administrative 
expenses, and profit.
    The Contractor shall voucher for only the time of the personnel 
whose services are applied directly to the work called for in individual 
Delivery Orders and accepted by the EPA Project Officer. The Government 
shall pay the Contractor for the life of a delivery order at rates in 
effect when the delivery order was issued, even if performance under the 
delivery order crosses into another period. The Contractor shall 
maintain time and labor distribution records for all employees who work 
under the contract. These records must document time worked and work 
performed by each individual on all Delivery Orders.

                             (End of clause)



Sec. 1552.216-74  Payment of fee.

    As prescribed in 1516.307(b), insert the following clause:

                        Payment of Fee (MAY 1991)

    (a) The term fee in this clause refers to either the fixed fee under 
a cost-plus-fixed-fee type contract, or the base fee under a cost-plus-
award-fee type contract.
    (b) The Government will make provisional fee payments on the basis 
of percentage of work completed. Percentage of work completed is the 
ratio of direct labor hours performed to the direct labor hours set 
forth in clause 1552.211-73, Level of Effort--Cost-Reimbursement Term 
Contract.

                             (End of clause)

[56 FR 43711, Sept. 4, 1991, as amended at 63 FR 46899, Sept. 3, 1998]



Sec. 1552.216-75  Base fee and award fee proposal.

    As prescribed in 1516.405(b), insert the following clause:

               Base Fee and Award Fee Proposal (FEB 1999)

    For the purpose of this solicitation, offerors shall propose a 
combination of base fee and award fee. Base fee shall not exceed 3% of 
the estimated cost, excluding fee, and the award fee shall not be less 
than ----% of the total estimated cost, excluding fee. The combined 
percentages of base and award fee shall not exceed ----% of the total 
estimated cost, excluding fee.

                             (End of clause)

[64 FR 3876, Jan. 26, 1999]



Sec. 1552.216-76  Estimated cost and cost-sharing.

    As prescribed in 1516.307(c), insert the following clause:

               Estimated Cost and Cost-Sharing (APR 1996)

    (a) The total estimated cost of performing the work under this 
contract is $--------. The Contractor's share of this cost shall not 
exceed $--------. The Government's share of this cost shall not exceed 
$--------.
    (b) For performance of the work under the contract, the Contractor 
shall be reimbursed for not more than ------ percent of the cost of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining balance of allowable cost shall constitute 
the Contractor's share.
    (c) Fee shall not be paid to the prime contractor under this cost-
sharing contract.
    (d) The Contractor shall maintain records of all costs incurred and 
claimed for reimbursement as well as any other costs claimed as part of 
its cost share. Those records shall be subject to audit by the 
Government.
    (e) Costs contributed by the Contractor shall not be charged to the 
Government under any other contract, grant or agreement (including 
allocation to other contracts as part of an independent research and 
development program) nor be included as contributions under any other 
Federal contract.

                             (End of clause)

[61 FR 14505, Apr. 2, 1996]



Sec. 1552.217-70  Evaluation of contract options.

    As prescribed in 1517.208(a), insert the following solicitation 
provision in Requests for Proposals when the solicitation contains 
options.

                Evaluation of Contract Options (APR 1984)

    For award purposes, in addition to an offeror's response to the 
basic requirement, the Government will evaluate its response to all 
options, both technical and cost. Evaluation of options will not 
obligate the Government to exercise the options. For this solicitation 
the options are as specified in section H.

[[Page 88]]

                           (End of provision)



Sec. 1552.217-71  Option to extend the term of the contract--cost-type 
          contract.

    As prescribed in 1517.208(b), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, the clause may be modified 
accordingly.

Option to Extend the Term of the Contract--Cost-Type Contract (APR 1984)

    The Government has the option to extend the term of this contract 
for ------ additional period(s). If more than 60 days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary 
notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ------ direct labor hours 
for the first option period and ------ for the second. Use of an option 
will result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended to cover a 
base period from ---- to ------ and option periods from ---- to ---- and 
---- to ----.
    (b) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ---- for the first 
option period and a new and separate level of effort of ---- for the 
second option period.
    (c) The ``Estimated Cost and Fixed Fee'' clause will be amended to 
reflect increased estimated costs and fixed fee for each option period 
as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Fixed fee.........................................  .........  .........
 
                                                   ---------------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (d) If the contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........
 
                                                   ---------------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)



Sec. 1552.217-72  Option to extend the term of the contract--cost-plus-
          award-fee contract.

    As prescribed in 1517.208(c), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, modify the clause accordingly.

Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract 
                               (APR 1984)

    (a) The Government has the option to extend the term of this 
contract for ------ additional periods. If more than 60 days remain in 
the contract period of performance, the Government, without prior 
written notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary 
notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ------ direct labor hours 
for the first option period and ------ for the second. Use of an option 
will result in the following contract modifications:
    (b) The ``Period of Performance'' clause will be amended to cover a 
base period from ---- to ---- and option periods from ---- to ---- and 
---- to ----.
    (c) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ---- for the first 
option period and a new and separate level of effort of ---- for the 
second option period.
    (d) The ``Estimated Cost Base Fee and Award Fee'' clause will be 
amended to reflect increased estimated costs and base fee and award fee 
pool for each option period as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Base fee..........................................  .........  .........
Award fee pool....................................  .........  .........
 
                                                   ---------------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (e) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........

[[Page 89]]

 
                                                    .........  .........
 
                                                   ---------------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.217-73  Option for increased quantity--cost-type contract.

    As prescribed in 1517.208(d), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, modify the clause accordingly.

      Option for Increased Quantity--Cost-Type Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ------ direct labor hours during the 
base period, ------ during the first option period, and ------ during 
the second option period. The Government may issue a maximum of ------ 
orders to increase the level of effort in blocks of ------ hours during 
any given period. The estimated cost and fixed fee of each block of 
hours is as follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Fixed fee....................................  .......  .......  .......
 
                                              --------------------------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost and Fixed Fee'' clause will 
be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODCs), those amounts will be increased as 
follows:

------------------------------------------------------------------------
     Other direct  cost item           Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



Sec. 1552.217-74  Option for increased quantity--cost-plus-award-fee 
          contract.

    As prescribed in 1517.208(e), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, the clause may be modified accordingly.

 Option for Increased Quantity--Cost-Plus-Award-Fee Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ------ direct labor hours during the 
base period, ------ during the first option period, and ------ during 
the second option period. The Government may issue a maximum of ------ 
orders to increase the level of effort in blocks of ------ hours during 
any given period. The estimated cost, base fee, and award fee pool of 
each block of hours is as follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Base fee.....................................  .......  .......  .......
Award fee pool...............................  .......  .......  .......
                                              ----------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost, Base Fee, and Award Fee'' 
clause will be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODCs), those amounts will be increased as 
follows:

------------------------------------------------------------------------
     Other direct  cost item           Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



Sec. 1552.217-75  Option to extend the effective period of the contract-
          -time and materials or labor hour contract.

    As prescribed in 1517.208(f), insert this clause in time and 
materials or labor hour type contracts when applicable. This clause will 
be modified to reflect the actual number of option periods for the 
acquisition. If only one

[[Page 90]]

option period is used, modify (c) accordingly.

    Option to Extend the Effective Period of the Contract--Time and 
               Materials or Labor Hour Contract (APR 1984)

    (a) The Government has the option to extend the effective period of 
this contract for ------ additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the option(s) are exercised, the ``Ceiling Price'' clause 
will be modified to reflect a new and separate ceiling price of $---- 
for the first option period and a new and seperate ceiling price of $--
-- for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from ------ to ------ and option periods from --
---- to ------ and ------ to ------.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



Sec. 1552.217-76  Option to extend the effective period of the contract-
          -indefinite delivery/indefinite quantity contract.

    As prescribed in 1517.208(g), the following is used in indefinite 
delivery/indefinite quantity type contracts with options to extend the 
effective period of the contract. The clause may be adjusted depending 
upon the number of options. If only one option period is used, modify 
(b) and (c) accordingly.

   Option to Extend the Effective Period of the Contract--Indefinite 
                  Delivery/Indefinite Quantity Contract

    (a) The Government has the option to extend the effective period of 
this contract for ------ additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the options are exercised, the ``Minimum and Maximum Contract 
Amount'' clause will be modified to reflect new and separate minimums of 
------ for the first option period and ------ for the second option 
period, and new and separate maximums of ------ for the first option 
period and ------ for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from ------ to ------ and option periods from --
---- to ------ and ------ to ------.

                             (End of clause)



Sec. 1552.217-77  Option to extend the term of the contract fixed price.

    As prescribed in 1517.208(g), insert the following clause:

    Option to Extend the Term of the Contract Fixed Price (OCT 2000)

    The Government has the option to extend the term of this contract 
for------additional period(s). If more than------days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last------days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last -------day period. This 
preliminary notification does not commit the Government to exercising 
the option. Use of an option will result in the following contract 
modifications:
    (a) The ``Period of Performance'' clause will be amended as follows 
to cover the Base and Option Periods:

------------------------------------------------------------------------
         Period                 Start date               End date
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------
                         .......................  ......................
------------------------------------------------------------------------

    (b) During the option period(s) the Contractor shall provide the 
services described below:

------------------------------------------------------------------------
               Period                             Attachment
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------


[[Page 91]]

    (c) The ``Consideration and Payment'' clause will be amended to 
reflect increased fixed prices for each option period as follows:

------------------------------------------------------------------------
            Fixed price                         Option period
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------
                                     ...................................
------------------------------------------------------------------------

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



Sec. 1552.219-70  Mentor-Protege Program.

    As prescribed in 1519.203(a), insert the following clause:

                     Mentor-Protege Program OCT 2000

    (a) The Contractor has been approved to participate in the EPA 
Mentor-Protege program. The purpose of the Program is to increase the 
participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; to 
establish a mutually beneficial relationship with SDB's and EPA's large 
business prime contractors (although small businesses may participate as 
Mentors); to develop the technical and corporate administrative 
expertise of SDBs which will ultimately lead to greater success in 
competition for contract opportunities; to promote the economic 
stability of SDBs; and to aid in the achievement of goals for the use of 
SDBs in subcontracting activities under EPA contracts.
    (b) The Contractor shall submit an executed Mentor-Protege agreement 
to the contracting officer, with a copy to the Office of Small and 
Disadvantaged Business Utilization or the Small Business Specialist, 
within thirty (30) calendar days after the effective date of the 
contract. The contracting officer will notify the Contractor within 
thirty (30) calendar days from its submission if the agreement is not 
accepted.
    (c) The Contractor as a Mentor under the Program agrees to fulfill 
the terms of its agreement(s) with the Protege firm(s).
    (d) If the Contractor or Protege firm is suspended or debarred while 
performing under an approved Mentor-Protege agreement, the Contractor 
shall promptly give notice of the suspension or debarment to the Office 
of Small and Disadvantaged Business Utilization and the contracting 
officer.
    (e) Costs incurred by the Contractor in fulfilling their 
agreement(s) with the Protege firm(s) are not reimbursable on a direct 
basis under this contract.
    (f) In an attachment to Standard Form 294, Subcontracts Report for 
Individual Contracts, the Contractor shall report on the progress made 
under their Mentor-Protege agreement(s), providing:
    (1) The number of agreements in effect; and
    (2) The progress in achieving the developmental assistance 
objectives under each agreement, including whether the objectives of the 
agreement have been met, problem areas encountered, and any other 
appropriate information.

                             (End of clause)

[66 FR 28674, May 24, 2001]



Sec. 1552.219-71  Procedures for Participation in the EPA Mentor-Protege 
          Program.

    As prescribed in 1519.203(b), insert the following provision:

  Procedures for Participation in the EPA Mentor-Protege Program (OCT 
                                  2000)

    (a) This provision sets forth the procedures for participation in 
the EPA Mentor-Protege Program (hereafter referred to as the Program). 
The purpose of the Program is to increase the participation of concerns 
owned and/or controlled by socially and economically disadvantaged 
individuals as subcontractors, suppliers, and ultimately as prime 
contractors; to establish a mutually beneficial relationship between 
these concerns and EPA's large business prime contractors (although 
small businesses may participate as Mentors); to develop the technical 
and corporate administrative expertise of these concerns, which will 
ultimately lead to greater success in competition for contract 
opportunities; to promote the economic stability of these concerns; and 
to aid in the achievement of goals for the use of these concerns in 
subcontracting activities under EPA contracts. If the successful offeror 
is accepted into the Program they shall serve as a Mentor to a Protege 
firm(s), providing developmental assistance in accordance with an 
agreement with the Protege firm(s).
    (b) To participate as a Mentor, the offeror must receive approval in 
accordance with paragraph (h) of this section.
    (c) A Protege must be a concern owned and/or controlled by socially 
and economically disadvantaged individuals within the meaning of section 
8(a)(5) and (6) of the Small Business Act (15 U.S.C. 673(a)(5) and (6)), 
including historically black colleges and universities. Further, in 
accordance with Public Law 102-389 (the 1993 Appropriation Act), for 
EPA's contracting purposes, economically and socially disadvantaged 
individuals shall be deemed to include women.
    (d) Where there may be a concern regarding the Protege firm's 
eligibility to participate in the program, the protege's eligibility

[[Page 92]]

will be determined by the contracting officer after the SBA has 
completed any formal determinations.
    (e) The offeror shall submit an application in accordance with 
paragraph (k) of this section as part of its proposal which shall 
include as a minimum the following information.
    (1) A statement and supporting documentation that the offeror is 
currently performing under at least one active Federal contract with an 
approved subcontracting plan and is eligible for the award of Federal 
contracts;
    (2) A summary of the offeror's historical and recent activities and 
accomplishments under any disadvantaged subcontracting programs. The 
offeror is encouraged to include any initiatives or outreach information 
believed pertinent to approval as a Mentor firm;
    (3) The total dollar amount (including the value of all option 
periods or quantities) of EPA contracts and subcontracts received by the 
offeror during its two preceding fiscal years. (Show prime contracts and 
subcontracts separately per year);
    (4) The total dollar amount and percentage of subcontract awards 
made to all concerns owned and/or controlled by disadvantaged 
individuals under EPA contracts during its two preceding fiscal years. 
If recently required to submit a SF 295, provide copies of the two 
preceding year's reports;
    (5) The number and total dollar amount of subcontract awards made to 
the identified Protege firm(s) during the two preceding fiscal years (if 
any).
    (f) In addition to the information required by paragraph (e) of this 
section, the offeror shall submit as a part of the application the 
following information for each proposed Mentor-Protege relationship:
    (1) Information on the offeror's ability to provide developmental 
assistance to the identified Protege firm and how the assistance will 
potentially increase contracting and subcontracting opportunities for 
the Protege firm.
    (2) A letter of intent indicating that both the Mentor firm and the 
Protege firm intend to enter into a contractual relationship under which 
the Protege will perform as a subcontractor under the contract resulting 
from this solicitation and that the firms will negotiate a Mentor-
Protege agreement. The letter of intent must be signed by both parties 
and contain the following information:
    (i) The name, address and phone number of both parties;
    (ii) The Protege firm's business classification, based upon the 
NAICS code(s) which represents the contemplated supplies or services to 
be provided by the Protege firm to the Mentor firm;
    (iii) A statement that the Protege firm meets the eligibility 
criteria;
    (iv) A preliminary assessment of the developmental needs of the 
Protege firm and the proposed developmental assistance the Mentor firm 
envisions providing the Protege. The offeror shall address those needs 
and how their assistance will enhance the Protege. The offeror shall 
develop a schedule to assess the needs of the Protege and establish 
criteria to evaluate the success in the Program;
    (v) A statement that if the offeror or Protege firm is suspended or 
debarred while performing under an approved Mentor-Protege agreement the 
offeror shall promptly give notice of the suspension or debarment to the 
EPA Office of Small Disadvantaged Business Utilization (OSDBU) and the 
contracting officer. The statement shall require the Protege firm to 
notify the Contractor if it is suspended or debarred.
    (g) The application will be evaluated on the extent to which the 
offeror's proposal addresses the items listed in paragraphs (e) and (f) 
of this section. To the maximum extent possible, the application should 
be limited to not more than 10 single pages, double spaced. The offeror 
may identify more than one Protege in its application.
    (h) If the offeror is determined to be in the competitive range, or 
is awarded a contract without discussions, the offeror will be advised 
by the contracting officer whether their application is approved or 
rejected. The contracting officer, if necessary, may request additional 
information in connection with the offeror's submission of its revised 
or best and final offer. If the successful offeror has submitted an 
approved application, they shall comply with the clause titled ``Mentor-
Protege Program.''
    (i) Subcontracts of $1,000,000 or less awarded to firms approved as 
Proteges under the Program are exempt from the requirements for 
competition set forth in FAR 44.202-2(a)(5), and 52.244-5(b). However, 
price reasonableness must still be determined and the requirements in 
FAR 44.202-2(a)(8) for cost and price analysis continue to apply.
    (j) Costs incurred by the offeror in fulfilling their agreement(s) 
with a Protege firm(s) are not reimbursable as a direct cost under the 
contract. Unless EPA is the responsible audit agency under FAR 42.703-1, 
offerors are encouraged to enter into an advance agreement with their 
responsible audit agency on the treatment of such costs when determining 
indirect cost rates. Where EPA is the responsible audit agency, these 
costs will be considered in determining indirect cost rates.
    (k) Submission of Application and Questions Concerning the Program.
    The application for the Program for Headquarters and Regional 
procurements shall be submitted to the contracting officer, and to the 
EPA OSDBU at the following address:

[[Page 93]]

Socioeconomic Business Program Officer, Office of Small and 
Disadvantaged Business Utilization, U.S. Environmental Protection 
Agency, Ariel Rios Building (1230A), 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460, Telephone: (202) 564-4322, Fax: (202) 565-2473.
    The application for the Program for RTP procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small Business Program Officer, RTP 
Procurement Operations Division (E105-02), U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, Telephone: (919) 541-2249, 
Fax: (919) 541-5539.
    The application for the Program for Cincinnati procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small and Disadvantaged Business 
Utilization Officer, Cincinnati Procurement Operations Division (CPOD-
Norwood), U.S. Environmental Protection Agency, 26 West Martin Luther 
King Drive, Cincinnati, OH 45268, Telephone: (513) 487-2024 Fax: (513) 
487-2004.

(End of provision)

[67 FR 11441, Mar. 14, 2002]



Sec. 1552.219-72  Small Disadvantaged Business Participation Program.

    As prescribed in 1519.204(a), insert the following clause:

      Small Disadvantaged Business Participation Program (OCT 2000)

    (a) Section M of this solicitation contains a source selection 
factor or subfactor related to the participation of small disadvantaged 
business (SDB) concerns in the performance of the contract. The nature 
of the evaluation of an SDB offeror under this evaluation factor or 
subfactor is dependent upon whether the SDB concern qualifies for the 
price evaluation adjustment under the clause at FAR 52.219-23, Notice of 
Price Evaluation Adjustment for Small Disadvantaged Business Concerns, 
and whether the SDB concern specifically waives this price evaluation 
adjustment.
    (b) In order to be evaluated under the source selection factor or 
subfactor, an offeror must provide, with its offer, the following 
information:
    (1) The extent of participation of SDB concerns in the performance 
of the contract in terms of the value of the total acquisition. 
Specifically, offerors must provide targets, expressed as dollars and 
percentages of the total contract value, for SDB participation in the 
applicable and authorized North American Industry Classification System 
(NAICS) Industry Subsectors as determined by the Department of Commerce. 
Total dollar and percentage targets must be provided for SDB 
participation by the prime contractor, including team members and joint 
venture partners. In addition, total dollar and percentage targets for 
SDB participation by subcontractors must be provided and listed 
separately;
    (2) The specific identification of SDB concerns to be involved in 
the performance of the contract;
    (3) The extent of commitment to use SDB concerns in the performance 
of the contract:
    (4) The complexity and variety of the work the SDB concerns are to 
perform; and
    (5) The realism of the proposal to use SDB concerns in the 
performance of the contract.
    (c) An SDB offeror who waives the price evaluation adjustment 
provided in FAR 52.219-23 shall provide, with their offer, targets, 
expressed as dollars and percentages of the total contract value, for 
the work that it intends to perform as the prime contractor in the 
applicable and authorized NAICS Industry Subsectors as determined by the 
Department of Commerce. All of the offeror's identified targets 
described in paragraphs (b) and (c) of this clause will be incorporated 
into and made part of any resulting contract.

                           (End of provision)

[66 FR 28676, May 24, 2001]



Sec. 1552.219-73  Small Disadvantaged Business Targets.

    As prescribed in 1519.204(b), insert the following clause:

             Small Disadvantaged Business Targets (OCT 2000)

    (a) In accordance with FAR 19.1202-4(a) and EPAAR 1552.219-72, the 
following small disadvantaged business (SDB) participation targets 
proposed by the contractor are hereby incorporated into and made part of 
the contract:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
              Contractor targets                   NAICS industry subsector(s)        Dollars     total contract
                                                                                                       value
----------------------------------------------------------------------------------------------------------------
Total Prime Contractor Targets (including
 joint venture partners and team members)
Total Subcontractor Targets
----------------------------------------------------------------------------------------------------------------


[[Page 94]]

    (b) The following specifically identified SDB(s) was (were) 
considered under the Section--SDB participation evaluation factor or 
subfactor (continue on separate sheet if more space is needed):

(1)_____________________________________________________________________
(2)_____________________________________________________________________
(3)_____________________________________________________________________
(4)_____________________________________________________________________
(5)_____________________________________________________________________

    The contractor shall promptly notify the contracting officer of any 
substitution of firms if the new firms are not SDB concerns.
    (c) In accordance with FAR 52.219-25, Small Disadvantaged Business 
Participation Program--Disadvantaged Status and Reporting, the 
contractor shall report on the participation of SDB concerns in the 
performance of the contract no less than thirty (30) calendar days prior 
to each annual contractor performance evaluation [contracting officer 
may insert the dates for each performance evaluation (i.e., every 12 
months after the effective date of contract)] or as otherwise directed 
by the contracting officer.

                           (End of provision)

[66 FR 28676, May 24, 2001, as amended at 67 FR 5072, Feb. 4, 2002]



Sec. 1552.219-74  Small disadvantaged business participation evaluation 
          factor.

    As prescribed in 1519.204(c), insert the following clause:

 Small Disadvantaged Business Participation Evaluation Factor (OCT 2000)

    Under this factor [or subfactor, if appropriate], offerors will be 
evaluated based on the demonstrated extent of participation of small 
disadvantaged business (SDB) concerns in the performance of the contract 
in each of the authorized and applicable North American Industry 
Classification System (NAICS) Industry Subsectors as determined by the 
Department of Commerce. As part of this evaluation, offerors will be 
evaluated based on:
    (1) The extent to which SDB concerns are specifically identified to 
participate in the performance of the contract;
    (2) The extent of the commitment to use SDB concerns in the 
performance of the contract (enforceable commitments will be weighed 
more heavily than nonenforceable commitments);
    (3) The complexity and variety of the work the SDB concerns are to 
perform under the contract;
    (4) The realism of the proposal to use SDB concerns in the 
performance of the contract; and
    (5) The extent of participation of SDB concerns, at the prime 
contractor and subcontractor level, in the performance of the contract 
(in the authorized and applicable NAICS Industry Subsectors in terms of 
dollars and percentages of the total contract value.

                           (End of provision)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.223-70  Protection of human subjects.

    As prescribed in 1523.303-70, insert the following contract clause 
when the contract involves human test subjects.

                 Protection of Human Subjects (APR 1984)

    (a) The Contractor shall protect the rights and welfare of human 
subjects in accordance with the procedures specified in its current 
Institutional Assurance on file with the Agency. The Contractor shall 
certify at least annually that an appropriate institutional committee 
has reviewed and approved the procedures which involve human subjects in 
accordance with the appliable Institutional Assurance accepted by the 
Agency.
    (b) The Contractor shall bear full responsibility for the proper and 
safe performance of all work and services involving the use of human 
subjects under this contract.

                             (End of clause)



Sec. 1552.223-72  Care of laboratory animals.

    As prescribed in 1523.303-72, insert the following clause:

                  Care of Laboratory Animals (OCT 2000)

    (a) Before undertaking performance of any contract involving the use 
of laboratory animals, the Contractor shall register with the Secretary 
of Agriculture of the United States in accordance with section 6, Public 
Law 89-544, Laboratory Animal Welfare Act, August 24, 1966, as amended 
by Public Law 91-579, Animal Welfare Act of 1970, December 24, 1970. The 
Contractor shall furnish evidence of such registration to the 
contracting officer.
    (b) The Contractor shall acquire animals used in research and 
development programs from a dealer licensed by the Secretary of 
Agriculture, or from exempted sources in accordance with the Public Laws 
enumerated in (a), above, of this provision.
    (c) In the care of any live animals used or intended for use in the 
performance of this contract, the Contractor shall adhere to the 
principles enunciated in the Guide for Care and Use of Laboratory 
Animals prepared by

[[Page 95]]

the Institute of Laboratory Animal Resources, National Academy of 
Sciences (NAS)--National Research Council (NRC), and the United States 
Department of Agriculture's (USDA) regulations and standards issued 
under Public Laws enumerated in (a) above. In case of conflict between 
standards, the higher standard shall be used. The Contractor's reports 
on portions of the contract in which animals were used shall contain a 
certificate stating that the animals were cared for in accordance with 
the principles enunciated in the Guide for Care and Use of Laboratory 
Animals prepared by the Institute of Laboratory Animals Resources (NAS-
NRC), and/or in the regulations and standards as promulgated by the 
Agricultural Research Service, USDA, pursuant to the Laboratory Animal 
Welfare Act of August 24, 1966 as amended (Public Law 89-544 and Public 
Law 91-579). NOTE: The Contractor may request registration of his 
facility and a current listing of licensed dealers from the Regional 
Office of the Animal and Plant Health Inspection Service (APHIS), USDA, 
for the region in which his research facility is located. The location 
of the appropriate APHIS Regional Office as well as information 
concerning this program may be obtained by contacting the Senior 
Veterinary, Animal Care Staff, USDA/APHIS, Federal Center Building, 
Hyattsville, MD 20782.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.224-70  Social security numbers of consultants and certain 
          sole proprietors and Privacy Act statement.

    As prescribed in 1524.104, insert the following provision in all 
solicitations.

Social Security Numbers of Consultants and Certain Sole Proprietors and 
                    Privacy Act Statement (APR 1984)

    (a) Section 6041 of title 26 of the U.S. Code requires EPA to file 
Internal Revenue Service (IRS) Form 1099 with respect to individuals who 
receive payments from EPA under purchase orders or contracts. Section 
6109 of title 26 of the U.S. Code authorizes collection by EPA of the 
social security numbers of such individuals for the purpose of filing 
IRS Form 1099. Social security numbers obtained for this purpose will be 
used by EPA for the sole purpose of filing IRS Form 1099 in compliance 
with section 6041 of title 26 of the U.S. Code.
    (b) If the offeror or quoter is an individual, consultant, or sole 
proprietor and has no Employer Identification Number, insert the 
offeror's or quoter's social security number on the following line.

                           (End of provision)



Sec. 1552.227-76  Project employee confidentiality agreement.

    As prescribed in 1527.409, insert the following clause:

          Project Employee Confidentiality Agreement (MAY 1994)

    (a) The Contractor recognizes that Contractor employees in 
performing this contract may have access to data, either provided by the 
Government or first generated during contract performance, of a 
sensitive nature which should not be released to the public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees to obtain confidentiality agreements from all of its 
employees working on requirements under this contract.
    (b) Such agreements shall contain provisions which stipulate that 
each employee agrees that the employee will not disclose, either in 
whole or in part, to any entity external to EPA, the Department of 
Justice, or the Contractor, any information or data (as defined in FAR 
Section 27.401) provided by the Government or first generated by the 
Contractor under this contract, any site-specific cost information, or 
any enforcement strategy without first obtaining the written permission 
of the EPA Contracting Officer. If a contractor, through an employee or 
otherwise, is subpoenaed to testify or produce documents, which could 
result in such disclosure, the Contractor must provide immediate advance 
notification to the EPA so that the EPA can authorize such disclosure or 
have the opportunity to take action to prevent such disclosure. Such 
agreements shall be effective for the life of the contract and for a 
period of five (5) years after completion of the contract.
    (c) The EPA may terminate this contract for convenience, in whole or 
in part, if it deems such termination necessary to prevent the 
unauthorized disclosure of information to outside entities. If such a 
disclosure occurs without the written permission of the EPA Contracting 
Officer, the Government may terminate the contract, for default or 
convenience, or pursue other remedies as may be permitted by law or this 
contract.
    (d) The Contractor further agrees to insert in any subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph, unless otherwise authorized by the 
Contracting Officer.

[[Page 96]]

                             (End of clause)

[59 FR 18624, Apr. 19, 1994]



Sec. 1552.228-70  Insurance liability to third persons.

    As prescribed in 1528.101, insert the following clause:

            Insurance--Liability to Third Persons (OCT 2000)

    (a)(1) Except as provided in subparagraph (2) below, the Contractor 
shall provide and maintain workers' compensation, employer's liability, 
comprehensive general liability (bodily injury), and comprehensive 
automobile liability (bodily injury and property damage) insurance, and 
such other insurance as the Contracting officer may require under this 
contract.
    (2) The Contractor may, with the approval of the Contracting 
officer, maintain a self-insurance program; provided that, with respect 
to workers' compensation, the Contractor is qualified pursuant to 
statutory authority.
    (3) All insurance required by this paragraph shall be in a form and 
amount and for those periods as the Contracting officer may require or 
approve and with insurers approved by the Contracting officer.
    (b) The Contractor agrees to submit for the Contracting officer's 
approval, to the extent and in the manner required by the Contracting 
officer, any other insurance that is maintained by the Contractor in 
connection with the performance of this contract and for which the 
Contractor seeks reimbursement.
    (c) The Contractor shall be reimbursed for that portion of the 
reasonable cost of insurance allocable to this contract, and required or 
approved under this clause, in accordance with its established cost 
accounting practices.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.229-70  State and local taxes.

    As prescribed in 1529.401-70, insert the following clause:

                    State and Local Taxes (NOV 1989)

    In accordance with FAR 29.303 and FAR 31.205-41, the Contractor or 
any subcontractor under this contract shall not be reimbursed for 
payment of any State and local taxes for which an exemption is 
available. The Contractor is responsible for determining the 
availability of State and local tax exemptions and obtaining such 
exemptions, if available. The Contractor shall include this clause, 
suitably modified to identify the parties, in all subcontracts at any 
tier. The Contractor shall notify the Contracting Officer if problems 
arise in obtaining a State and local tax exemption. The contractor may 
seek a waiver by the Contracting Officer from this requirement if the 
administrative burden of seeking an exemption appears to outweigh the 
potential savings to the Government.

                             (End of clause)

[54 FR 49998, Dec. 4, 1989]



Sec. 1552.232-70  Submission of invoices.

    As prescribed in 1532.908, insert the following clause:

                    Submission of Invoices (JUN 1996)

    In order to be considered properly submitted, an invoice or request 
for contract financing payment must meet the following contract 
requirements in addition to the requirements of FAR 32.905:
    (a) Unless otherwise specified in the contract, an invoice or 
request for contract financing payment shall be submitted as an original 
and five copies. The Contractor shall submit the invoice or request for 
contract financing payment to the following offices/individuals 
designated in the contract: the original and two copies to the 
Accounting Operations Office shown in Block ------ on the cover of the 
contract; two copies to the Project Officer (the Project Officer may 
direct one of these copies to a separate address); and one copy to the 
Contracting Officer.
    (b) The Contractor shall prepare its invoice or request for contract 
financing payment on the prescribed Government forms. Standard Forms 
Number 1034, Public Voucher for Purchases and Services other than 
Personal, shall be used by contractors to show the amount claimed for 
reimbursement. Standard Form 1035, Public Voucher for Purchases and 
Services other than Personal--Continuation Sheet, shall be used to 
furnish the necessary supporting detail or additional information 
required by the Contracting Officer. The Contractor may submit self-
designed forms which contain the required information.
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual work 
assignments, the invoice or request for contract financing payment shall 
also include a summary of the current and cumulative amounts claimed by 
cost element for each work assignment and for the contract total, as 
well as any supporting

[[Page 97]]

data for each work assignment as identified in the instructions.
    (2) The invoice or request for contract financing payment shall 
include current and cumulative charges by major cost element such as 
direct labor, overhead, travel, equipment, and other direct costs. For 
current costs, each major cost element shall include the appropriate 
supporting schedule identified in the invoice preparation instructions. 
Cumulative charges represent the net sum of current charges by cost 
element for the contract period.
    (3) The charges for subcontracts shall be further detailed in a 
supporting schedule showing the major cost elements for each 
subcontract. The degree of detail for any subcontract exceeding $5,000 
is to be the same as that set forth under (c)(2).
    (4) The charges for consultants shall be further detailed in the 
supporting schedule showing the major cost elements of each consultant. 
For current costs, each major cost element of the consulting agreement 
shall also include the supporting schedule identified in the invoice 
preparation instructions.
    (d) Invoices or requests for contract financing payment must clearly 
indicate the period of performance for which payment is requested. 
Separate invoices or requests for contract financing payment are 
required for charges applicable to the basic contract and each option 
period.
    (e)(1) Notwithstanding the provisions of the clause of this contract 
at FAR 52.216-7, Allowable Cost and Payment, invoices or requests for 
contract financing payment shall be submitted once per month unless 
there has been a demonstrated need and Contracting Officer approval for 
more frequent billings. When submitted on a monthly basis, the period 
covered by invoices or requests for contractor financing payments shall 
be the same as the period for monthly progress reports required under 
this contract.
    (2) If the Contracting Officer allows submissions more frequently 
than monthly, one submittal each month shall have the same ending period 
of performance as the monthly progress report.
    (3) Where cumulative amounts on the monthly progress report differ 
from the aggregate amounts claimed in the invoice(s) or request(s) for 
contract financing payments covering the same period, the contractor 
shall provide a reconciliation of the difference as part of the payment 
request. Alternate I (JUN 1996). If used in a fixed-rate type contract, 
substitute the following paragraphs (c)(1) and (2) for paragraphs (c)(1) 
and (2) of the basic clause:
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual delivery 
orders, the invoice or request for contract financing payment shall also 
include a summary of the current and cumulative amounts claimed by cost 
element for each delivery order and for the contract total, as well as 
any supporting data for each delivery order as identified in the 
instructions.
    (2) The invoice or request for contract financing payment that 
employs a fixed rate feature shall include current and cumulative 
charges by contract labor category and by other major cost elements such 
as travel, equipment, and other direct costs. For current costs, each 
cost element shall include the appropriate supporting schedules 
identified in the invoice preparation instructions.

[61 FR 29317, June 10, 1996]



Sec. 1552.232-71--1552.232-72  [Reserved]



Sec. 1552.232-73  Payments--fixed-rate services contract.

    As prescribed in 1532.111, insert the following in indefinite 
delivery/indefinite quantity contracts with fixed services rates.

            Payments--Fixed-Rate Services Contract (OCT 2000)

    The Government shall pay the Contractor as follows upon the 
submission of invoices or vouchers approved by the Contracting Officer:
    (a) Hourly rate. (1) The amounts shall be computed by multiplying 
the appropriate hourly rates prescribed in the Schedule by the number of 
direct labor hours performed. The rates shall include wages, indirect 
costs, general and administrative expenses, and profit. Fractional parts 
of an hour shall be payable on a prorated basis. Vouchers may be 
submitted once each month (or at more frequent intervals, if approved by 
the Contracting Officer) to the paying office. The Contractor shall 
substantiate vouchers by evidence of actual payment and by individual 
daily job, timecards, or other substantiation approved by the 
Contracting Officer. Promptly after receipt of each substantiated 
voucher, the Government shall, except as otherwise provided in this 
contract and subject to the terms of paragraph (e) of this contract, pay 
the voucher as approved by the Contracting Officer.
    (2) Unless otherwise prescribed in the Schedule, the Contracting 
Officer shall withhold 5 percent of the amounts due under this paragraph 
(a), but the total amount withheld shall not exceed $50,000. The amounts 
withheld shall be retained until the execution and delivery of a release 
by the Contractor as provided in paragraph (f) of this contract.

[[Page 98]]

    (3) Unless the Schedule prescribes otherwise, the hourly rates in 
the Schedule shall not be varied by virtue of the Contractor having 
performed work on an overtime basis. If no overtime rates are provided 
in the Schedule and overtime work is approved in advance by the 
Contracting Officer, overtime rates shall be negotiated. Failure to 
agree upon these overtime rates shall be treated as a dispute under the 
``Disputes'' clause of this contract. If the Schedule provides rates for 
overtime the premium portion of those rates will be reimbursable only to 
the extent the overtime is approved by the Contracting Officer.
    (b) Materials, other direct costs, and subcontracts. (1) The 
allowability of direct materials and other direct costs shall be 
determined by the Contracting Officer in accordance with subpart 31.2 of 
the Federal Acquisition Regulation (FAR) in effect on the date of this 
contract. Reasonable and allocable material handling costs or indirect 
costs may be included in the charge for material or other direct costs 
to the extent they are clearly excluded from the hourly rate. Material 
handling and/or indirect cost rates are specified in the ``Indirect 
Costs'' clause. Material handling costs are comprised of indirect costs, 
including, when appropriate, general and administrative expense 
allocated to direct materials in accordance with the Contractor's usual 
accounting practices consistent with subpart 31.2 of the FAR. The 
Contractor shall be reimbursed for items and services purchased directly 
for the contract only when cash, checks, or other forms of actual 
payment have been made for such purchased items or services. Direct 
materials or other direct costs, as used in this clause, are those items 
which enter directly into the end product, or which are used or consumed 
directly in connection with the furnishing of the end product.
    (2) Subcontracted effort may be included in the fixed hourly rates 
discussed in paragraph (a)(l) of this clause and will be reimbursed as 
discussed in that paragraph. Otherwise, the cost of subcontracts that 
are authorized under the subcontracts clause of this contract shall be 
reimbursable costs under this clause provided that the costs are 
consistent with paragraph (b)(3) of this clause. Reimbursable costs in 
connection with subcontracts shall be payable to subcontractors 
consistent with FAR 32.504 in the same manner as for services purchased 
directly for the contract under paragraph (a)(1) of this clause. 
Reimbursable costs shall not include any costs arising from the letting, 
administration, or supervision of performance of the subcontract, if the 
costs are included in the hourly rates payable under paragraph (a)(l) of 
this clause.
    (3) To the extent able, the Contractor shall (i) obtain materials at 
the most advantageous prices available with due regard to securing 
prompt delivery of satisfactory materials; and (ii) take all cash and 
trade discounts, rebates, allowances, credits, salvage, commissions, and 
other benefits. When unable to take advantage of the benefits, the 
Contractor shall promptly notify the Contracting Officer and give the 
reasons. Credit shall be given to the Government for cash and trade 
discounts, rebates, allowances, credits, salvage, the value of any 
appreciable scrap, commissions, and other amounts that have accrued to 
the benefit of the Contractor, or would have accrued except for the 
fault or neglect of the Contractor. The benefits lost without fault or 
neglect on the part of the Contractor, or lost through fault of the 
Government, shall not be deducted from gross costs.
    (4) If the nature of the work to be performed requires the 
Contractor to furnish material which is regularly sold to the general 
public in the normal course of business by the Contractor, the price to 
be paid for such material, notwithstanding paragraph (b)(1) of this 
contract, shall be on the basis of an established catalog or list price, 
in effect when the material is furnished, less all applicable discounts 
to the Government; provided, that in no event shall such price be in 
excess of the Contractor's sales price to its most favored customer for 
the same item in like quantity, or the current market price, whichever 
is lower.
    (c) Contracting Officer notification. For contract administration 
purposes, the Contractor shall notify the Contracting Officer in writing 
when the total value of all delivery orders issued exceeds 85 percent of 
the maximum price specified in the schedule.
    (d) Maximum amount. The Government shall not be obligated to pay the 
Contractor any amount in excess of the maximum amount in the Schedule, 
and the Contractor shall not be obligated to continue performance if to 
do so would exceed the maximum amount set forth in the Schedule, unless 
or until the Contracting Officer shall have notified the Contractor in 
writing that the maximum amount has been increased and shall have 
specified in the notice a revised maximum that shall constitute the 
maximum amount for performance under this contract. When and to the 
extent that the maximum amount set forth in the Schedule has been 
increased, any hours expended, and material or other direct costs 
incurred by the Contractor in excess of the maximum amount before the 
increase, shall be allowable to the same extent as if the hours expended 
and material costs had been incurred after the increase in the maximum 
amount.
    (e) Audit. At any time before final payment under this contract, the 
Contracting Officer may request audit of the invoices or vouchers and 
substantiating material. Each payment previously made shall be subject 
to

[[Page 99]]

reduction to the extent of amounts, on preceding invoices or vouchers, 
that are found by the Contracting Officer not to have been properly 
payable and shall also be subject to reduction for overpayments or to 
increase for underpayments. Upon receipt and approval of the voucher or 
invoice designated by the Contractor as the ``completion voucher'' or 
``completion invoice'' and substantiating material, and upon compliance 
by the Contractor with all terms of this contract (including, without 
limitation, terms relating to patents and the terms of paragraphs (f) 
and (g) of this clause), the Government shall promptly pay any balance 
due the Contractor. The completion invoice or voucher, and 
substantiating material, shall be submitted by the Contractor as 
promptly as practicable following completion of the work under this 
contract, but in no event, later than one year (or such longer period as 
the Contracting Officer may approve in writing) from the date of 
completion.
    (f) Assignment. The Contractor, and each assignee under an 
assignment entered into under this contract and in effect at the time of 
final payment under this contract, shall execute and deliver, at the 
time of and as a condition precedent to final payment under this 
contract, a release discharging the Government, its officers, agents, 
and employees of and from all liabilities, obligations, and claims 
arising out of or under this contract, subject only to the following 
exceptions:
    (1) Specified claims in stated amounts, or in estimated amounts if 
the amounts are not susceptible of exact statement by the Contractor.
    (2) Claims, together with reasonable incidental expenses, based upon 
the liabilities of the Contractor to third parties arising out of 
performing this contract, that are not known to the Contractor on the 
date of the execution of the release, and of which the Contractor gives 
notice in writing to the Contracting Officer not more than 6 years after 
the date of the release or the date of any notice to the Contractor that 
the Government is prepared to make final payment, whichever is earlier.
    (3) Claims for reimbursement of costs (other than expenses of the 
Contractor by reason of its indemnification of the Government against 
patent liability), including reasonable incidental expenses, incurred by 
the Contractor under the terms of this contract relating to patents.
    (g) Refunds. The Contractor agrees that any refunds, rebates, or 
credits (including any related interest) accruing to or received by the 
Contractor or any assignee, that arise under the materials portion of 
this contract and for which the Contractor has received reimbursement, 
shall be paid by the Contractor to the Government. The Contractor and 
each assignee, under an assignment entered into under this contract and 
in effect at the time of final payment under this contract, shall 
execute and deliver, at the time of and as a condition precedent to 
final payment under this contract, an assignment to the Government of 
such refunds, rebates, or credits (including any interest) in form and 
substance satisfactory to the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 65 FR 58928, Oct. 3, 2000; 66 
FR 28676, May 24, 2001; 67 FR 5073, Feb. 4, 2002]



Sec. 1552.233-70  Notice of filing requirements for agency protests.

    As prescribed in 1533.103, insert the following clause in all types 
of solicitations:

      Notice of Filing Requirements for Agency Protests (JUL 1999)

    Agency protests must be filed with the Contracting Officer in 
accordance with the requirements of FAR 33.103 (d) and (e). Within 10 
calendar days after receipt of an adverse Contracting Officer decision, 
the protester may submit a written request for an independent review by 
the Head of the Contracting Activity. This independent review is 
available only as an appeal of a Contracting Officer decision on a 
protest. Accordingly, as provided in 4 CFR 21.2(a)(3), any protest to 
the GAO must be filed within 10 days of knowledge of the initial adverse 
Agency action.

[64 FR 17110, Apr. 8, 1999]



Sec. 1552.235-70  Screening business information for claims of 
          confidentiality.

    As prescribed in 1535.007-70(a), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information. The following clause enables EPA to resolve any claims of 
confidentiality concerning the information that the Contractor will 
furnish under a contract. The clause entitled ``Treatment of 
Confidential Business Information'' shall also be included in the 
contract:

[[Page 100]]

 Screening Business Information for Claims of Confidentiality (APR 1984)

    (a) Whenever collecting information under this contract, the 
Contractor agrees to comply with the following requirements:
    (1) If the Contractor collects information from public sources, such 
as books, reports, journals, periodicals, public records, or other 
sources that are available to the public without restriction, the 
Contractor shall submit a list of these sources to the appropriate 
program office at the time the information is initially submitted to 
EPA. The Contractor shall identify the information according to source.
    (2) If the Contractor collects information from a State or local 
Government or from a Federal agency, the Contractor shall submit a list 
of these sources to the appropriate program office at the time the 
information is initially submitted to EPA. The Contractor shall identify 
the information according to source.
    (3) If the Contractor collects information directly from a business 
or from a source that represents a business or businesses, such as a 
trade association:
    (i) Before asking for the information, the Contractor shall identify 
itself, explain that it is performing contractual work for the U.S. 
Environmental Protection Agency, identify the information that it is 
seeking to collect, explain what will be done with the information, and 
give the following notice:
    (A) You may, if you desire, assert a business confidentiality claim 
covering part or all of the information. If you do assert a claim, the 
information will be disclosed by EPA only to the extent, and by means of 
the procedures, set forth in 40 CFR part 2, subpart B.
    (B) If no such claim is made at the time this information is 
received by the Contractor, it may be made available to the public by 
the Environmental Protection Agency without further notice to you.
    (C) The contractor shall, in accordance with FAR part 9, execute a 
written agreement regarding the limitations of the use of this 
information and forward a copy of the agreement to the Contracting 
Officer.
    (ii) Upon receiving the information, the Contractor shall make a 
written notation that the notice set out above was given to the source, 
by whom, in what form, and on what date.
    (iii) At the time the Contractor initially submits the information 
to the appropriate program office, the Contractor shall submit a list of 
these sources, identify the information according to source, and 
indicate whether the source made any confidentiality claim and the 
nature and extent of the claim.
    (b) The Contractor shall keep all information collected from 
nonpublic sources confidential in accordance with the clause in this 
contract entitled ``Treatment of Confidential Business Information'' as 
if it had been furnished to the Contractor by EPA.
    (c) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will require 
the subcontractor to collect information. The Contractor agrees to 
include this clause, including this paragraph (c), and the clause 
entitled ``Treatment of Confidential Business Information'' in all 
subcontracts awarded pursuant to this contract that require the 
subcontractor collect information.

                             (End of clause)



Sec. 1552.235-71  Treatment of confidential business information.

    As prescribed in 1535.007-70(b), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that in the performance of a contract, EPA may furnish 
confidential business information to the Contractor that EPA obtained 
under the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water 
Pollution Control Act (33 U.S.C. 1251, et seq.), the Safe Drinking Water 
Act (42 U.S.C. 300f et seq.), the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136 et seq.), the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 301 et seq.), the Resource Conservation and 
Recovery Act (42 U.S.C. 6901 et seq.), or the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.). EPA regulations on confidentiality of 
business information in 40 CFR part 2 subpart B require that the 
Contractor agree to the clause entitled ``Treatment of Confidential 
Business Information'' before any confidential business information may 
be furnished to the Contractor:

        Treatment of Confidential Business Information (APR 1984)

    (a) The Contracting Officer, after a written determination by the 
appropriate program office, may disclose confidential business 
information to the Contractor necessary to carry out the work required 
under this contract. The Contractor agrees to use the confidential 
information only under the following conditions:
    (1) The Contractor and Contractor's Employees shall: (i) use the 
confidential information only for the purposes of carrying out the work 
required by the contract; (ii) not disclose the information to anyone 
other

[[Page 101]]

than EPA employees without the prior written approval of the Assistant 
General Counsel for Contracts and Information Law; and (iii) return to 
the Contracting Officer all copies of the information, and any abstracts 
or excerpts therefrom, upon request by the Contracting Officer, whenever 
the information is no longer required by the Contractor for the 
performance of the work required by the contract, or upon completion of 
the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of confidential information are included for the 
benefit of, and shall be enforceable by, both EPA and any affected 
business having a proprietary interest in the information.
    (4) The Contractor shall not use any confidential information 
supplied by EPA or obtained during performance hereunder to compete with 
any business to which the confidential information relates.
    (b) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will involve 
the disclosure of confidential business information by the Contractor to 
the subcontractor. The Contractor agrees to include this clause, 
including this paragraph (b), in all subcontracts awarded, pursuant to 
this contract, that require the furnishing of confidential business 
information to the subcontractor.

                             (End of clause)



Sec. 1552.235-72  [Reserved]



Sec. 1552.235-73  Access to Federal Insecticide, Fungicide, and 
          Rodenticide Act Confidential Business Information (Apr 1996).

    As prescribed in 1535.007(a), insert the following provision:

     Access to Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI). The 
Contractor and all of its employees handling CBI while working under the 
contract will be required to follow the procedures contained in the 
security manual entitled ``FIFRA Information Security Manual.'' These 
procedures include applying for FIFRA CBI access authorization for each 
individual working under the contract who will have access to FIFRA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235- 71, and 1552.235-77 that are appropriate to the 
activities set forth in the contract.
    Until EPA has approved the Contractor's security plan, the 
Contractor may not be authorized for FIFRA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



Sec. 1552.235-74  [Reserved]



Sec. 1552.235-75  Access to Toxic Substances Control Act Confidential 
          Business Information (Apr 1996).

    As prescribed in 1535.007(b), insert the following provision:

Access to Toxic Substances Control Act Confidential Business Information 
                               (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Toxic Substances Control Act (TSCA) 
confidential business information (CBI). The Contractor and all of its 
employees handling CBI while working under the contract will be required 
to follow the procedures contained in the security manual entitled 
``TSCA Confidential Business Information Security Manual.'' These 
procedures include applying for TSCA CBI access authorization for each 
individual working under the contract who will have access to TSCA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235-71, and 1552.235-78 that are appropriate to the 
activities set forth in the contract.
    Until EPA has inspected and approved the Contractor's facilities, 
the Contractor may not be authorized for TSCA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



Sec. 1552.235-76  Treatment of Confidential Business Information (Apr 
          1996).

    As prescribed in 1535.007-70(c), insert the following clause:

[[Page 102]]

     Treatment of Confidential Business Information (TSCA)(APR 1996)

    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose 
confidential business information (CBI) to the Contractor necessary to 
carry out the work required under this contract. The Contractor agrees 
to use the CBI only under the following conditions:
    (1) The Contractor and Contractor's employees shall (i) use the CBI 
only for the purposes of carrying out the work required by the contract; 
(ii) not disclose the information to anyone other than properly cleared 
EPA employees without the prior written approval of the Assistant 
General Counsel for Information Law or his/her designee; and (iii) 
return the CBI to the PO or his/her designee, whenever the information 
is no longer required by the Contractor for performance of the work 
required by the contract, or upon completion of the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of CBI are included for the benefit of, and shall 
be enforceable by, both EPA and any affected businesses having a 
proprietary interest in the information.
    (4) The Contractor shall not use any CBI supplied by EPA or obtained 
during performance hereunder to compete with any business to which the 
CBI relates.
    (b) The Contractor agrees to obtain the written consent of the CO, 
after a written determination by the appropriate program office, prior 
to entering into any subcontract that will involve the disclosure of CBI 
by the Contractor to the subcontractor. The Contractor agrees to include 
this clause, including this paragraph (b), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 61 FR 57339, Nov. 6, 1996]



Sec. 1552.235-77  Data Security for Federal Insecticide, Fungicide and 
          Rodenticide Act Confidential Business Information (December 
          1997).

    As prescribed in 1535.007-70(d), insert the following clause:

 Data Security for Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (DEC 1997)

    The Contractor shall handle Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI) in 
accordance with the contract clause entitled ``Treatment of Confidential 
Business Information'' and ``Screening Business Information for Claims 
of Confidentiality,'' the provisions set forth below, and the 
Contractor's approved detailed security plan.
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose FIFRA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all FIFRA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the FIFRA Information Security Manual. 
The manual may be obtained from the Project Officer (PO) or the Chief, 
Information Services Branch (ISB), Program Management and Support 
Division, Office of Pesticide Programs (OPP) (H7502C), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    (2) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the Contractor's security plan(s) 
approved by EPA.
    (3) Prior to receipt of FIFRA CBI by the Contractor, the Contractor 
shall ensure that all employees who will be cleared for access to FIFRA 
CBI have been briefed on the handling, control, and security 
requirements set forth in the FIFRA Information Security Manual.
    (4) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of the FIFRA ``Contractor Employee Confidentiality 
Agreement'' from each of the Contractor's employees who will have access 
to the information before the employee is allowed access.
    (b) The Contractor agrees that these requirements concerning 
protection of FIFRA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under FIFRA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in FIFRA (7 U.S.C. 136h(f)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make

[[Page 103]]

are those set forth in the clause entitled ``Treatment of Confidential 
Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee all documents, 
logs, and magnetic media which contain FIFRA CBI. In addition, each 
Contractor employee who has received FIFRA CBI clearance will sign a 
``Confidentiality Agreement for Contractor Employees Upon Relinquishing 
FIFRA CBI Access Authority.'' The Contractor DCO will also forward those 
agreements to the EPA PO or his/her designee, with a copy to the CO, at 
the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



Sec. 1552.235-78  Data Security for Toxic Substances Control Act 
          Confidential Business Information (December 1997).

    As prescribed in 1535.007-70(e), insert the following clause:

  Data Security for Toxic Substances Control Act Confidential Business 
                         Information (DEC 1997)

    The Contractor shall handle Toxic Substances Control Act (TSCA) 
confidential business information (CBI) in accordance with the contract 
clause entitled ``Treatment of Confidential Business Information'' and 
``Screening Business Information for Claims of Confidentiality.''
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose TSCA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all TSCA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the TSCA CBI Security Manual. The 
manual may be obtained from the Director, Information Management 
Division (IMD), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency (EPA), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Prior to receipt of TSCA CBI by the Contractor, 
the Contractor shall ensure that all employees who will be cleared for 
access to TSCA CBI have been briefed on the handling, control, and 
security requirements set forth in the TSCA CBI Security Manual.
    (2) The Contractor shall permit access to and inspection of the 
Contractor's facilities in use under this contract by representatives of 
EPA's Assistant Administrator for Administration and Resources 
Management, and the TSCA Security Staff in the OPPT, or by the EPA 
Project Officer.
    (3) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of EPA Form 7740-6, ``TSCA CBI Access Request, Agreement, 
and Approval,'' from each of the Contractor's employees who will have 
access to the information before the employee is allowed access. In 
addition, the Contractor shall obtain from each employee who will be 
cleared for TSCA CBI access all information required by EPA or the U.S. 
Office of Personnel Management for EPA to conduct a Minimum Background 
Investigation.
    (b) The Contractor agrees that these requirements concerning 
protection of TSCA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under TSCA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in TSCA (15 U.S.C. 2613(d)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee, all 
documents, logs, and magnetic media which contain TSCA CBI. In addition, 
each Contractor employee who has received TSCA CBI clearance will sign 
EPA Form 7740-18, ``Confidentiality Agreement for Contractor Employees 
Upon Relinquishing TSCA CBI Access Authority.'' The Contractor DCO will 
also forward those agreements to the EPA

[[Page 104]]

OPPT/IMD, with a copy to the CO, at the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause, when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and,
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



Sec. 1552.235-79  Release of contractor confidential business 
          information (Apr 1996).

    As prescribed in 1535.007-70(f), insert the following clause:

   Release of Contractor Confidential Business Information (APR 1996)

    (a) The Environmental Protection Agency (EPA) may find it necessary 
to release information submitted by the Contractor either in response to 
this solicitation or pursuant to the provisions of this contract, to 
individuals not employed by EPA. Business information that is ordinarily 
entitled to confidential treatment under existing Agency regulations (40 
CFR Part 2) may be included in the information released to these 
individuals. Accordingly, by submission of this proposal or signature on 
this contract or other contracts, the Contractor hereby consents to a 
limited release of its confidential business information (CBI).
    (b) Possible circumstances where the Agency may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To other Agency contractors tasked with assisting the Agency in 
the recovery of Federal funds expended pursuant to the Comprehensive 
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 
9607, as amended, (CERCLA or Superfund);
    (2) To the U.S. Department of Justice (DOJ) and contractors employed 
by DOJ for use in advising the Agency and representing the Agency in 
procedures for the recovery of Superfund expenditures;
    (3) To parties liable, or potentially liable, for costs under CERCLA 
Sec. 107 (42 U.S.C. Sec. 9607), et al, and their insurers (Potentially 
Responsible Parties) for purposes of facilitating settlement or 
litigation of claims against such parties;
    (4) To other Agency contractors who, for purposes of performing the 
work required under the respective contracts, require access to 
information the Agency obtained under the Clean Air Act (42 U.S.C. 7401 
et seq.); the Federal Water Pollution Control Act (33 U.S.C.1251 et 
seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Federal 
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); the 
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.); or the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9601 et seq.);
    (5) To other Agency contractors tasked with assisting the Agency in 
handling and processing information and documents in the administration 
of Agency contracts, such as providing both preaward and post award 
audit support and specialized technical support to the Agency's 
technical evaluation panels;
    (6) To employees of grantees working at EPA under the Senior 
Environmental Employment (SEE) Program;
    (7) To Speaker of the House, President of the Senate, or Chairman of 
a Committee or Subcommittee;
    (8) To entities such as the General Accounting Office, boards of 
contract appeals, and the Courts in the resolution of solicitation or 
contract protests and disputes;
    (9) To Agency contractor employees engaged in information systems 
analysis, development, operation, and maintenance, including performing 
data processing and management functions for the Agency; and
    (10) Pursuant to a court order or court-supervised agreement.
    (c) The Agency recognizes an obligation to protect the contractor 
from competitive harm that may result from the release of such 
information to a competitor. (See also the clauses in this document 
entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, the Agency will 
permit the release of CBI under subparagraphs (1), (3), (4), (5), (6), 
or (9) only pursuant to a confidentiality agreement.
    (d) With respect to contractors, 1552.235-71 will be used as the 
confidentiality agreement. With respect to Potentially Responsible 
Parties, such confidentiality agreements may permit further disclosure 
to other entities where necessary to further settlement or litigation of 
claims under CERCLA. Such entities include, but are not limited to 
accounting firms and technical experts able to analyze the information, 
provided that they also agree to be bound by an appropriate 
confidentiality agreement.
    (e) This clause does not authorize the Agency to release the 
Contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing

[[Page 105]]

of confidential business information by the subcontractor.

                             (End of clause)

[61 FR 14267, Apr. 1, 1996]



Sec. 1552.235-80  Access to confidential business information.

    As prescribed in 1535.007-70(g), insert the following clause.

         Access to Confidential Business Information (OCT 2000)

    It is not anticipated that it will be necessary for the contractor 
to have access to confidential business information (CBI) during the 
performance of tasks required under this contract. However, the 
following applies to any and all tasks under which the contractor will 
or may have access to CBI:
    The contractor shall not have access to CBI submitted to EPA under 
any authority until the contractor obtains from the Project Officer a 
certification that the EPA has followed all necessary procedures under 
40 CFR part 2, subpart B (and any other applicable procedures), 
including providing, where necessary, prior notice to the submitters of 
disclosure to the contractor.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



Sec. 1552.236-70  Samples and certificates.

    As prescribed in 1536.521, insert the following contract clause in 
construction contracts.

                   Samples and Certificates (APR 1984)

    When required by the specifications or the Contracting Officer, 
samples, certificates, and test data shall be submitted after award of 
the contract, prepaid, in time for proper action by the Contracting 
Officer or his/her designated representative. Certificates and test data 
shall be submitted in triplicate to show compliance of materials and 
construction specified in the contract performance requirements. Samples 
shall be submitted in duplicate by the Contractor, except as otherwise 
specified, to show compliance with the contract requirements. Materials 
or equipment for which samples, certifications or test data are required 
shall not be used in the work until approved in writing by the 
Contracting Officer.

                             (End of clause)



Sec. 1552.237-70  Contract publication review procedures.

    As prescribed in 1537.110, insert the following contract clause when 
the products of the contract are subject to contract publication review.

            Contract Publication Review Procedures (APR 1984)

    (a) Material generated under this contract intended for release to 
the public is subject to the Agency's publication review process in 
accordance with the EPA Order on this subject and the following.
    (b) Except as indicated in paragraph (c) of this contract, the 
Contractor shall not independently publish or print material generated 
under this contract until after completion of the EPA review process. 
The Project Officer will notify the Contractor of review completion 
within ---- calendar days after the Contractor's transmittal to the 
Project Officer of material generated under this contract. If the 
Contractor does not receive Project Officer notification within this 
period, the Contractor shall immediately notify the Contracting Officer 
in writing.
    (c) The Contractor may publish, in a scientific journal, material 
resulting directly or indirectly from work performed under this 
contract, subject to the following:
    (1) The Contractor shall submit to the Contracting Officer and the 
Project Officer, at least 30 days prior to publication, a copy of any 
paper, article, or other dissemination of information intended for 
publication.
    (2) The Contractor shall include the following statement in a 
journal article which has not been subjected to EPA review: ``Although 
the research described in this article has been funded wholly or in part 
by the United States Environmental Protection Agency contract (number) 
to (Name of Contractor), it has not been subject to the Agency's review 
and therefore does not necessarily reflect the views of the Agency, and 
no official endorsement should be inferred.''
    (3) Following publication of the journal article, the Contractor 
shall submit five copies of the journal article to the Project Officer, 
and one copy to the Contracting Officer.
    (d) If the Government has completed the review process and agreed 
that the contract material may be attributed to EPA, the Contractor 
shall include the following statement in the document:
    This material has been funded wholly or in part by the United States 
Environmental Protection Agency under contract (number) to (name). It 
has been subject to the Agency's review, and it has been approved for

[[Page 106]]

publication as an EPA document. Mention of trade names or commercial 
products does not constitute endorsement or recommendation for use.
    (e) If the Government has completed the review process, but decides 
not to publish the material, the Contractor may independently publish 
and distribute the material for its own use and its own expense, and 
shall include the following statement in any independent publication:
    Although the information described in this article has been funded 
wholly or in part by the United States Environmental Protection Agency 
under contract (number) to (name), it does not necessarily reflect the 
views of the Agency and no official endorsement should be inferred.

                             (End of clause)



Sec. 1552.237-71  Technical direction.

    As prescribed in 1537.110, insert the following contract clause in 
cost-reimbursement contracts.

                     Technical Direction (APR 1984)

    (a) The Project Officer will provide technical direction on contract 
performance. Technical direction includes:
    (1) Direction to the Contractor which assists him in accomplishing 
the Statement of Work.
    (2) Comments on and approval of reports or other deliverables.
    (b) Technical direction must be within the contract Statement of 
Work. The Project Officer does not have the authority to issue technical 
direction which (1) institutes additional work outside the scope of the 
contract; (2) constitutes a change as defined in the ``Changes'' clause; 
(3) causes an increase or decrease in the estimated cost of the 
contract; (4) alters the period of performance; or (5) changes any of 
the other express terms or conditions of the contract.
    (c) Technical direction will be issued in writing by the Project 
Officer or confirmed by him in writing within five (5) calendar days 
after verbal issuance.

                             (End of clause)



Sec. 1552.237-72  Key personnel.

    As prescribed in 1537.110, insert the following contract clause when 
it is necessary for contract performance to identify Contractor key 
personnel.

                        Key Personnel (APR 1984)

    (a) The Contractor shall assign to this contract the following key 
personnel:
________________________________________________________________________
________________________________________________________________________
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) of this clause. After the initial 90-day 
period, the Contractor shall submit the information required by 
paragraph (c) to the Contracting Officer at least 15 days prior to 
making any permanent substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. This 
clause will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)



Sec. 1552.237-73  Consultant services and consent.

    As prescribed in 1537.110, insert the following contract clause in 
contracts where the services of consultants are required. Enter ``none'' 
in paragraph (b) if consent is not given for one or more consultants at 
the time of award.

               Consultant Services and Consent (APR 1984)

    (a) The Contractor shall obtain the consent of the Contracting 
Officer prior to using any consultant on this contract. The Contractor 
shall determine whether any consultant that is used has in effect an 
agreement with another Federal agency for similar or like services and, 
if so, shall notify the Contracting Officer.
    (b) The Contractor may use the following consultants for the period 
of time at the rate shown.

------------------------------------------------------------------------
                                                       Not to exceed the
                Name                    Number of      (daily) (hourly)
                                      (days) (hours)        rate of
------------------------------------------------------------------------
                                     ...............          $........
                                     ...............          $........
------------------------------------------------------------------------

                             (End of clause)



Sec. 1552.237-74  Publicity.

    As prescribed in 1537.110, insert the following contract clause in 
contracts

[[Page 107]]

pertaining to the removal or remedial activities under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) (``Super 
Fund'') program. The term ``on-scene coordinator'' may be substituted 
with ``Project Officer.''

                          Publicity (APR 1984)

    (a) The Contractor agrees to notify and obtain the verbal approval 
of the on-scene coordinator (or Project Officer) prior to releasing any 
information to the news media regarding the removal or remedial 
activities being conducted under this contract.
    (b) It is also agreed that the Contractor shall acknowledge EPA 
support whenever the work funded in whole or in part by this contract is 
publicized in any news media.

                             (End of clause)



Sec. 1552.237-75  Paperwork Reduction Act.

    As prescribed in 1537.110, insert this contract clause in any 
contract requiring the collection of identical information from ten (10) 
or more public respondents.

                   Paperwork Reduction Act (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten (10) or more 
public respondents, the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 
et seq. applies. In that event, the Contractor shall not take any action 
to solicit information from any of the public respondents until notified 
in writing by the Contracting officer that the required Office of 
Management and Budget (OMB) final clearance was received.

                             (End of clause)



Sec. 1552.237-76  Government-Contractor Relations.

    As prescribed in 1537.110(g), insert the following clause:

               Government-Contractor Relations (JUN 1999)

    (a) The Government and the Contractor understand and agree that the 
services to be delivered under this contract by the contractor to the 
Government are non-personal services and the parties recognize and agree 
that no employer-employee relationship exists or will exist under the 
contract between the Government and the Contractor's personnel. It is, 
therefore, in the best interest of the Government to afford both parties 
a full understanding of their respective obligations.
    (b) Contractor personnel under this contract shall not:
    (1) Be placed in a position where they are under the supervision, 
direction, or evaluation of a Government employee.
    (2) Be placed in a position of command, supervision, administration 
or control over Government personnel, or over personnel of other 
Contractors under other EPA contracts, or become a part of the 
Government organization.
    (3) Be used in administration or supervision of Government 
procurement activities.
    (c) Employee relationship. (1) The services to be performed under 
this contract do not require the Contractor or his/her personnel to 
exercise personal judgment and discretion on behalf of the Government. 
Rather the Contractor's personnel will act and exercise personal 
judgment and discretion on behalf of the Contractor.
    (2) Rules, regulations, directives, and requirements that are issued 
by the U.S. Environmental Protection Agency under its responsibility for 
good order, administration, and security are applicable to all personnel 
who enter the Government installation or who travel on Government 
transportation. This is not to be construed or interpreted to establish 
any degree of Government control that is inconsistent with a non-
personal services contract.
    (d) Inapplicability of employee benefits. This contract does not 
create an employer-employee relationship. Accordingly, entitlements and 
benefits applicable to such relationships do not apply.
    (1) Payments by the Government under this contract are not subject 
to Federal income tax withholdings.
    (2) Payments by the Government under this contract are not subject 
to the Federal Insurance Contributions Act.
    (3) The Contractor is not entitled to unemployment compensation 
benefits under the Social Security Act, as amended, by virtue of 
performance of this contract.
    (4) The Contractor is not entitled to workman's compensation 
benefits by virtue of this contract.
    (5) The entire consideration and benefits to the Contractor for 
performance of this contract is contained in the provisions for payment 
under this contract.
    (e) Notice. It is the Contractor's, as well as, the Government's 
responsibility to monitor contract activities and notify the Contracting 
Officer if the Contractor believes that the intent of this clause has 
been or may be violated.
    (1) The Contractor should notify the Contracting Officer in writing 
promptly, within -------- (to be negotiated and inserted into the basic 
contract at contract award) calendar days from the date of any incident 
that the Contractor considers to constitute a

[[Page 108]]

violation of this clause. The notice should include the date, nature and 
circumstance of the conduct, the name, function and activity of each 
Government employee or Contractor official or employee involved or 
knowledgeable about such conduct, identify any documents or substance of 
any oral communication involved in the conduct, and the estimate in time 
by which the Government must respond to this notice to minimize cost, 
delay or disruption of performance.
    (2) The Contracting Officer will promptly, within -------- (to be 
negotiated and inserted into the basic contract at contract award) 
calendar days after receipt of notice, respond to the notice in writing. 
In responding, the Contracting Officer will either:
    (i) Confirm that the conduct is in violation and when necessary 
direct the mode of further performance,
    (ii) Countermand any communication regarded as a violation,
    (iii) Deny that the conduct constitutes a violation and when 
necessary direct the mode of further performance; or
    (iv) In the event the notice is inadequate to make a decision, 
advise the Contractor what additional information is required, and 
establish the date by which it should be furnished by the Contractor and 
the date thereafter by which the Government will respond.

                             (End of clause)

[64 FR 30444, June 8, 1999]



Sec. 1552.239-70  Rehabilitation act notice.

    As prescribed in 1523.7003(a), insert the following clause.

                  Rehabilitation Act Notice (OCT 2000)

    (a) EPA has a legal obligation under the Rehabilitation Act of 1973, 
29 U.S.C. 791, to provide reasonable accommodation to persons with 
disabilities who wish to attend EPA programs and activities. Under this 
contract, the contractor may be required to provide support in 
connection with EPA programs and activities, including conferences, 
symposia, workshops, meetings, etc. In such cases, the contractor shall, 
as applicable, include in its draft and final meeting announcements (or 
similar documents) the following notice:
    It is EPA's policy to make reasonable accommodation to persons with 
disabilities wishing to participate in the agency's programs and 
activities, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. 791. 
Any request for accommodation should be made to the specified 
registration contact for a particular program or activity, preferably 
one month in advance of the registration deadline, so that EPA will have 
sufficient time to process the request.
    (b) Upon receipt of such a request for accommodation, the contractor 
shall immediately forward the request to the EPA contracting officer, 
and provide a copy to the appropriate EPA program office. The contractor 
may be required to provide any accommodation that EPA may approve. 
However, in no instance shall the contractor proceed to provide an 
accommodation prior to receiving written authorization from the 
contracting officer.
    (c) The contractor shall insert in each subcontract or consultant 
agreement placed hereunder provisions that shall conform substantially 
to the language of this clause, including this paragraph, unless 
otherwise authorized by the contracting officer.

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



Sec. 1552.239-103  Acquisition of Energy Star Compliant Microcomputers, 
          Including Personal Computers, Monitors and Printers.

    As prescribed in 1523.7003, insert the following clause:

Acquisition of Energy Star Compliant Microcomputers, Including Personal 
              Computers, Monitors, and Printers (APR 1996)

    (a) The Contractor shall provide computer products that meet EPA 
Energy Star requirements for energy efficiency. By acceptance of this 
contract, the Contractor certifies that all microcomputers, including 
personal computers, monitors, and printers to be provided under this 
contract meet EPA Energy Star requirements for energy efficiency.
    (b) The Contractor shall ship all products with the standby feature 
activated or enabled.
    (c) The Contractor shall provide models that have equivalent 
functionality to similar non-power managed models. This functionality 
should include as a minimum:
    (1) The ability to run commercial off-the-shelf software both before 
and after recovery from a low power state, including retention of files 
opened (with no loss of data) before the power management feature was 
activated.
    (2) If equipment will be used on a local area network (LAN), the 
contractor shall provide equipment that is fully compatible with network 
environments, e.g., personal computers resting in a low-power state 
should not be disconnected from the network.
    (d) The contractor shall provide monitors that are capable of being 
powered down when connected to the accompanying personal computer.

[[Page 109]]

                             (End of clause)

[61 FR 14507, Apr. 2, 1996]



Sec. 1552.242-70  Indirect costs.

    As prescribed in 1542.705-70, insert the following clause in all 
cost-reimbursement type contracts. If ceilings are not being 
established, enter ``not applicable'' in (c).

                        Indirect Costs (APR 1984)

    (a) In accordance with paragraph (d) of the ``Allowable Cost and 
Payment'' clause, the final indirect cost rates applicable to this 
contract shall be established between the Contractor and the appropriate 
Government representative (EPA, other Government agency, or auditor), as 
provided by FAR 42.703-1(a). EPA's procedures require a Contracting 
Officer determination of indirect cost rates for its contracts. In those 
cases where EPA is the cognizant agency (see FAR 42.705-1), the final 
rate proposal shall be submitted to the cognizant audit activity and to 
the following designated Contracting Officer: Environmental Protection 
Agency, Chief, Cost Policy and Rate Negotiation Branch (3804F), Cost 
Advisory and Financial Analysis Division, Washington, DC 20460.

Where EPA is not the cognizant agency, the final rate proposal shall be 
submitted to the above-cited address, to the cognizant audit agency, and 
to the designated Contracting Officer of the cognizant agency. Upon 
establishment of the final indirect cost rates, the Contractor shall 
submit an executed Certificate of Current Cost or Pricing Data (see FAR 
15.406-2) applicable to the data furnished in connection with the final 
rates to the cognizant audit agency. The final rates shall be contained 
in a written understanding between the Contractor and the appropriate 
Government representative. Pursuant to the ``Allowable Cost and 
Payment'' clause, the allowable indirect costs under this contract shall 
be obtained by applying the final agreed upon rate(s) to the appropriate 
bases.
    (b) Until final annual indirect cost rates are established for any 
period, the Government shall reimburse the contractor at billing rates 
established by the appropriate Government representative in accordance 
with FAR 42.704, subject to adjustment when the final rates are 
established. The established billing rates are currently as follows:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

    These billing rates may be prospectively or retroactively revised by 
mutual agreement, at the request of either the Government or the 
Contractor, to prevent substantial overpayment or underpayment.
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
clause, ceilings are hereby established on indirect costs reimbursable 
under this contract. The Government shall not be obligated to pay the 
Contractor any additional amount on account of indirect costs in excess 
of the ceiling rates listed below:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994; 64 
FR 3876, Jan. 26, 1999]



Sec. 1552.242-72  Financial administrative contracting officer.

    As prescribed in 1542.705 (b), insert the following clause:

         Financial Administrative Contracting Officer (OCT 2000)

    (a) A Financial Administrative Contracting Officer (FACO) is 
responsible for performing certain post-award functions related to the 
financial aspects of this contract when the EPA is the cognizant federal 
agency. These functions include the following duties:
    (1) Review the contractor's compensation structure and insurance 
plan.
    (2) Negotiate advance agreements applicable to treatment of costs 
and to Independent Research & Development/Bid and Proposal costs.
    (3) Negotiate changes to interim billing rates and establish final 
indirect cost rates and billing rates.
    (4) Prepare findings of fact and issue decisions related to 
financial matters under the Disputes clause, if appropriate.
    (5) In connection with Cost Accounting Standards:
    (A) Determine the adequacy of the contractor's disclosure 
statements;
    (B) Determine whether the disclosure statements are in compliance 
with Cost Accounting Standards and FAR Part 31;
    (C) Determine the contractor's compliance with Cost Accounting 
Standards and disclosure statements, if applicable; and
    (D) Negotiate price adjustments and execute supplemental agreements 
under the Cost Accounting Standards clauses at FAR 52.230-3, 52.230-4, 
and 52.230-5.
    (6) Review, approve or disapprove, and maintain surveillance of the 
contractor's purchasing system.

[[Page 110]]

    (7) Perform surveillance, resolve issues, and establish any 
necessary agreements related to the contractor's cost/schedule control 
system, including travel policies/procedures, allocation and cost 
charging methodology, timekeeping and labor distribution policies and 
procedures, subcontract payment practices, matters concerning 
relationships between the contractor and its affiliates and 
subsidiaries, and consistency between bid and accounting 
classifications.
    (8) Review, resolve issues, and establish any necessary agreements 
related to the contractor's estimating system.
    (b) The FACO shall consult with the contracting officer whenever 
necessary or appropriate and shall forward a copy of all agreements/
decisions to the contracting officer upon execution.
    (c) The FACO for this contract is:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



Sec. 1552.245-70  Decontamination of government property.

    As prescribed in 1545.106(a) and 1545.303-71, insert the following 
contract clause when it is anticipated that a Contractor will use 
Government-furnished or Contractor-acquired property in the cleanup of 
hazardous or toxic substances in the environment.

            Decontamination of Government Property (APR 1984)

    In addition to the requirements of the ``Government Property'' 
clause, the Contractor shall certify in writing that any Government-
furnished property or Contractor-acquired property is returned to the 
Government free from contamination by any hazardous or toxic substances.

                             (End of clause)



Sec. 1552.245-71  Government-furnished data.

    As prescribed in 1545.106(b), insert the following contract clause 
in any contract that the Government is to furnish the Contractor data. 
Identify in the clause the data to be provided.

                  Government-Furnished Data (APR 1984)

    (a) The Government shall deliver to the Contractor the Government-
furnished data described in the contract. If the data, suitable for its 
intended use, is not delivered to the Contractor, the Contracting 
Officer shall equitably adjust affected provisions of this contract in 
accordance with the ``Changes'' clause when:

    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.
    (b) Title to Government-furnished data shall remain in the 
Government.
    (c) The Contractor shall use the Government-furnished data only in 
connection with this contract.
    (d) The following data will be furnished to the Contractor on or 
about the time indicated:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)



Sec. 1552.245-72  Fabrication or acquisition of nonexpendable property.

    As prescribed in 1545.106(c), insert the following contract clause 
in all cost-reimbursement type contracts or contracts with cost-
reimbursement portions.

     Fabrication or Acquisition of Nonexpendable Property (APR 1984)

    The Contractor shall not fabricate nor acquire under this contract, 
either directly or indirectly through a subcontract, any item of 
nonexpendable property without written approval from the Contracting 
Officer.

                             (End of clause)



Sec. 1552.245-73  Government property.

    As prescribed in 1545.106(d), insert the following clause:

                     Government Property (OCT 2000)

    (a) The contractor shall not fabricate or acquire, on behalf of the 
Government, either directly or indirectly through a subcontract, any 
item of property without written approval from the Contracting officer.
    (b) In accordance with paragraph (a) above, the contractor is 
authorized to acquire and/or fabricate the equipment listed below for 
use in the performance of this contract. The equipment is subject to the 
provisions of the ``Government Property'' clause.
    (c) The Government will provide the following item(s) of Government 
property to the contractor for use in the performance of this contract. 
This property shall be used and maintained by the contractor in 
accordance with the provisions of the ``Government Property'' clause.

[[Page 111]]

    (d) The ``EPA Contract Property Administration Requirements'' 
provided below apply to this contract.

                  U.S. Environmental Protection Agency

               Property Administration Requirements (PAR)

    1. Purpose. This document sets forth the requirements for 
Environmental Protection Agency (EPA) contractors in the performance of 
their Government property management responsibilities under contracts 
with EPA. These requirements supplement those contained in the 
Government property clause(s) in this contract, and part 45 of the 
Federal Acquisition Regulation (FAR).
    2. Delegation of Contract Property Administration. EPA has delegated 
much of its contract property management oversight to the Defense 
Contract Management Command (DCMC). Shortly after award of a contract, 
the EPA contracting officer (CO) delegates the functions of property 
administration and plant clearance (disposal) for the contract to DCMC. 
Upon acceptance of that delegation, DCMC will provide notification to 
the contractor, identifying the assigned property administrator (PA) and 
plant clearance officer (PLCO). If the contract is not delegated to DCMC 
for administration, any reference to PA and PLCO throughout this 
document shall be construed to mean CO. The DCMC PA is available to the 
contractor for assistance in all matters of property administration. 
Notwithstanding the delegation, as necessary, the contractor may contact 
their EPA CO. In the event of disagreement between the contractor and 
the DCMC PA, the contractor should seek resolution from the CO. Unless 
otherwise directed in the contract, or this document, all originals of 
written information or reports, except direct correspondence between the 
contractor and the DCMC PA, relative to Government property, should be 
forwarded to the administrative CO assigned to this contract.
    3. Requests for Government Property.
    a. In accordance with FAR 45.102, the contractor shall furnish all 
property required for performing Government contracts. If a contractor 
believes that Government facilities are required for performance of the 
contract, the contractor shall submit a written request to the CO. At a 
minimum, the request shall contain the following elements:
    1. Contract number for which the facilities are required.
    2. An item(s) description, quantity and estimated cost.
    3. Certification that no like contractor facilities exist which 
could be utilized.
    4. A detailed description of the task-related purpose of the 
facilities.
    5. Explanation of negative impact if facilities are not provided by 
the Government.
    6. If applicable, recommend the exception under FAR 45.302-1(a) or 
any applicable EPA class deviation (available upon request), and provide 
any other information which would support the furnishing of facilities, 
including contractor-acquired property (CAP).
    7. Except when the request is for material, a lease versus purchase 
analysis shall be furnished with the request to acquire property on 
behalf of the Government. The contractor may not proceed with 
acquisition of facilities on behalf of the Government until receipt of 
written authorization from the EPA CO.
    4. Transfer of Government Property. When the contractor receives 
Government-furnished property (GFP), the contractor should receive, from 
the transferor, (either EPA or another contractor) all of the applicable 
data elements (Attachment 1 of this clause) needed to maintain the 
required records. If this information is not provided at the time of 
receipt of the property, the contractor shall request it from the EPA 
CO. The CO will attempt to obtain the data from the previous property 
holder, or, if data does not exist, will assist the current property 
holder in estimating the elements. Prior to signing an acceptance 
document for the property, the receiving contractor should perform a 
complete inventory of the property. Responsibility, as well as 
accountability, passes with the signed acceptance. When, at the written 
direction of the EPA CO, the contractor transfers GFP to another 
contractor, or another Agency, the contractor shall provide the 
applicable data elements (Attachment 1 of this clause). Upon return of 
the property to EPA, the same data must be provided by the contractor to 
the EPA CO.
    5. Records of Government Property.
    a. In accordance with FAR 45.505 and 45.505-1, the contractor shall 
establish and maintain adequate property records for all Government 
property, regardless of value, including property provided to and in the 
possession of a subcontractor. Material (supplies) provided by the 
Government or acquired by the contractor and billed as a direct charge 
to the Government is Government property and records must be established 
as such.
    b. The contractor shall establish and maintain the official 
Government property record. (If the contract contains the FAR Clause 
52.245-1, the Government will maintain the official Government property 
records.) Such records shall contain the applicable data elements 
(Attachment 1 of this clause) for all items of Government property 
regardless of cost.
    c. The Contractor shall identify all Superfund property and 
designate it as such both on the item and on the official Government 
property record. If it is not practicable to tag the item, the 
contractor shall write the

[[Page 112]]

ID number on a tag, card or other entity that may be kept with the item 
or in a file.
    d. Support documentation used for posting entries to the property 
record shall provide complete, current and auditable data. Entries shall 
be posted to the record in a timely manner following an action.
    e. For Government vehicles, in addition to the data elements 
required by EPA, the contractor shall also comply with the General 
Services Administration (GSA) and Department of Energy (DOE) record and 
report requirements supplied with all EPA provided motor vehicles. If 
the above requirements were not provided with the vehicle, the 
contractor shall notify the EPA CO.
    f. When Government property is disclosed to be in the possession or 
control of the contractor but not provided under any contract, the 
contractor shall record and report the property in accordance with FAR 
45.502(f) and (h).
    6. Inventories of Government Property. The contractor shall conduct 
a complete physical inventory of EPA property at least once per year, 
unless otherwise directed by the PA. Reconciliation shall be completed 
within 30 calendar days of inventory completion. The contractor shall 
report the results of the inventory, including any discrepancies, to the 
DCMC PA upon completion of the reconciliation. The contractor's records 
shall indicate the completion date of the inventory. See section 9 
herein, Contract Closeout, for information on final inventories.
    7. Reports of Government Property. In accordance with FAR 45.505-14, 
EPA requires an annual summary report, for each contract, by contract 
number, of Government property in the contractor's possession as of 
September 30 each year.
    a. For each classification listed in FAR 45.505-14(a), except 
material, the contractor shall provide the total acquisition cost and 
total quantity. If there are zero items in a classification, or if there 
is an ending balance of zero, the classification must be listed with 
zeros in the quantity and acquisition cost columns.
    b. For material, the contractor shall provide the total acquisition 
cost only.
    c. Property classified as facilities, special tooling, special test 
equipment, and agency peculiar must be reported on two separate lines. 
The first line shall include the total acquisition cost and quantity of 
all items or systems with a unit acquisition cost of $25,000 or more. 
The second line shall include the total acquisition cost and quantity of 
all items with a unit acquisition cost of less than $25,000.
    d. For items comprising a system, which is defined as ``a group of 
interacting items functioning as a complex whole,'' the contractor may 
maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the annual report of Government property the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.
    e. The reports are to be received at EPA and DCMC no later than 
October 31 of each year.
    f. Distribution shall be as follows:

Original to: EPA CO
1 copy: DCMC PA

    g. EPA Contractors are required to comply with GSA's and DOE's 
special reporting requirements for motor vehicles. A statement of these 
requirements will be provided by the EPA Facility Management and 
Services Division (FMSD) concurrent with receipt of each vehicle.
    h. The contractor shall provide detailed reports on an as-needed 
basis, as may be requested by the CO or the PA.
    8. Disposition of Government Property. The disposition process is 
composed of three distinct phases: identification of excess property, 
reporting of excess property, and final disposition.
    a. Identification of Excess Property. The disposition process begins 
with the contractor identifying Government property that is excess to 
its contract. Effective contractor property control systems provide for 
disclosing excesses as they occur. Once inactive Government property has 
been determined to be excess to the contract to which it is accountable, 
it must be screened against the contractor's other EPA contracts for 
further use. If the property may be reutilized, the contractor shall 
notify the CO in writing. Government property will be transferred to 
other contracts only when the COs on both the current contract and the 
receiving contract authorize such a transfer in writing.
    b. Reporting Excess Government Property. Excess Government property 
shall be reported in accordance with FAR Subpart 45.6. Inventory 
schedules A-E (SF Forms 1426-1434) provide the format for reporting of 
excess Government property. Instructions for completing the forms are 
located at FAR 45.606-5 and samples may be found in FAR 53.301-1426 thru 
1434. Inventory schedules shall be forwarded to the DCMC PLCO with a 
copy to the EPA CO. The cover letter, which accompanies the inventory 
schedules, must include the EPA CO's name, address and telephone number. 
Inventory schedules must also contain a notification if the property is 
Superfund property. If the property is Superfund property, the 
contractor must also prominently include the following language on the 
inventory schedule: ``Note to PLCO: Reimbursement to the EPA Superfund 
is required.'' When requested, by the PLCO or the CO, the contractor 
will provide the fair market value for those items requested.
    c. Disposition Instructions.

[[Page 113]]

    1. If directed in writing by the EPA CO, the contractor will retain 
all or part of the excess Government property under the current contract 
for possible future requirements. The contractor shall request, from the 
PLCO, withdrawal from the inventory schedule of those items to be 
retained.
    2. If directed in writing by the EPA CO, the contractor shall 
transfer the property to another EPA contractor. The contractor will 
transfer the property by shipping it in accordance with the instructions 
provided by the CO. The contractor shall request, from the PLCO, 
withdrawal from the inventory schedule of those items to be transferred. 
Further, the contractor shall notify the CO when the transfer is 
complete.
    3. If directed in writing by the EPA CO, the contractor shall 
transfer the property to EPA. The contractor shall ship/deliver the 
property in accordance with the instructions provided by the CO. The 
contractor will request, from the PLCO, withdrawal from the inventory 
schedule of those items to be transferred to EPA. Further, the 
contractor shall notify the CO when the transfer is complete.
    4. The contractor will ship the property elsewhere if directed, in 
writing, by the PLCO.
    5. The PLCO will either conduct the sale or instruct the contractor 
to conduct a sale of surplus property. The contractor will allow 
prospective bidders access to property offered for sale.
    6. Property abandoned by the PLCO on the contractor's site must be 
disposed of in a manner that does not endanger the health and safety of 
the public.
    7. To effect transfer of accountability, the contractor shall 
provide the recipient of the property with the applicable data elements 
set forth in Attachment 1 of this clause. The contractor shall also 
obtain either a signed receipt from the recipient, or proof of shipment. 
The contractor shall update the official Government property record to 
indicate the disposition of the item and to close the record.
    9. Contract Closeout. The contractor shall complete a physical 
inventory of all Government property at contract completion and the 
results, including any discrepancies, shall be reported to the DCMC PA. 
In the case of a terminated contract, the contractor shall comply with 
the inventory requirements set forth in the applicable termination 
clause. The results of the inventory, as well as a detailed inventory 
listing, must be forwarded to the CO. For terminated contracts, the 
contractor will conduct and report the inventory results as directed by 
the CO. However, in order to expedite the disposal process, contractors 
may be required to, or may elect to submit to the CO, an inventory 
schedule for disposal purposes up to six (6) months prior to contract 
completion. If such an inventory schedule is prepared, the contractor 
must indicate the earliest date that each item may be disposed. The 
contractor shall update all property records to show disposal action. 
The contractor shall notify the DCMC PA, in writing, when all work has 
been completed under the contract and all Government property 
accountable to the contract has been disposed.

                              Attachment 1

    Required Data Elements. Where applicable (all elements are not 
applicable to material) the contractor is required to maintain, at a 
minimum, the information related to the following data elements for EPA 
Government property: Contractor Identification/Tag Number; Description; 
Manufacturer; Model; Serial Number; Acquisition Date; Date received; 
Acquisition Cost*; Acquisition Document Number; Location; Contract 
Number; Account Number (if supplied); Superfund (Yes/No); Inventory 
Performance Date; Disposition Date.
    * Acquisition cost shall include the price of the item plus all 
taxes, transportation and installation charges allocable to that item.

    Note: For items comprising a system which is defined as, ``a group 
of interacting items functioning as a complex whole,'' the contractor 
may maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the Annual Report of Government Property, the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]

                            PART 1553--FORMS

Sec.

Sec. 1553.000  Scope of part.

                  Subpart 1553.2--Prescription of Forms


Sec. 1553.209  Contractor qualifications.

Sec. 1553.209-70  EPA Form 1900-26, Contracting Officer's Evaluation of 
          Contractor Performance.

Sec. 1553.209-71  EPA Form 1900-27, Project Officer's Evaluation of 
          Contractor Performance.

Sec. 1553.213  Small purchases and other simplified purchase procedures.

Sec. 1553.213-70  EPA Form 1900-8, Procurement Request/Order.

Sec. 1553.216  Types of contracts.

Sec. 1553.216-70  EPA Form 1900-41A, CPAF Contract Summary of 
          Significant Performance Observation.

[[Page 114]]


Sec. 1553.216-71  EPA Form 1900-41B, CPAF Contract Individual 
          Performance Event.

Sec. 1553.232  Contract financing.

Sec. 1553.232-70  EPA Form 1900-3, Assignee's Release.

Sec. 1553.232-71  EPA Form 1900-4, Assignee's Assignment of Refunds, 
          Rebates, Credits and Other Amounts.

Sec. 1553.232-72  EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.

Sec. 1553.232-73  EPA Form 1900-6, Contractor's Release.

Sec. 1553.232-74  EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.

Sec. 1553.232-75  EPA Form 1900-68, notice of contract costs suspended 
          and/or disallowed.

Sec. 1553.232-76  [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8886, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Forms referenced in part 1553 do not appear in the 
Code of Federal Regulations.



Sec. 1553.000  Scope of part.

    This part prescribes Agency forms for use in acquisitions and 
contains requirements and information generally applicable to the forms.

                  Subpart 1553.2--Prescription of Forms



Sec. 1553.209  Contractor qualifications.



Sec. 1553.209-70  EPA Form 1900-26, Contracting Officer's Evaluation of 
          Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-26 shall be used by 
the Contracting Officer to record his/her evaluation of Contractor 
performance.



Sec. 1553.209-71  EPA Form 1900-27, Project Officer's Evaluation of 
          Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-27 shall be used by 
the Project Officer to record his/her evaluation of Contractor 
performance.



Sec. 1553.213  Small purchases and other simplified purchase procedures.



Sec. 1553.213-70  EPA Form 1900-8, Procurement Request/Order.

    As prescribed in 1513.505-2, EPA Form 1900-8 may be used in lieu of 
Optional Forms 347 and 348 for individual purchases.



Sec. 1553.216  Types of contracts.



Sec. 1553.216-70  EPA Form 1900-41A, CPAF Contract Summary of 
          Significant Performance Observation.

    As prescribed in 1516.404-278, EPA Form 1900-41A shall be used to 
document significant performance observations under CPAF contracts.



Sec. 1553.216-71  EPA Form 1900-41B, CPAF Contract Individual 
          Performance Event.

    As prescribed in 1516.404-278, EPA Form 1900-41B shall be used to 
document individual performance events under CPAF contracts.



Sec. 1553.232  Contract financing.



Sec. 1553.232-70  EPA Form 1900-3, Assignee's Release.

    As prescribed in 1532.805-70(a), the EPA Form 1900-3 is required to 
be submitted by the assignee for cost-reimbursement contracts prior to 
final payment under the contract.



Sec. 1553.232-71  EPA Form 1900-4, Assignee's Assignment of Refunds, 
          Rebates, Credits and Other Amounts.

    As prescribed in 1532.805-70(b), the EPA Form 1900-4 must accompany 
the assignee's release prior to final payment under cost-reimbursement 
contracts.



Sec. 1553.232-72  EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.

    As prescribed in 1532.805-70(c), the EPA Form 1900-5 must be 
prepared by the Contractor prior to final payment under cost-
reimbursement contracts and must accompany the Contractor's release.



Sec. 1553.232-73  EPA Form 1900-6, Contractor's Release.

    As prescribed in 1532.805-70(d), the EPA Form 1900-6 must be 
submitted by the Contractor under cost-reimbursement contracts prior to 
final payment thereunder.

[[Page 115]]



Sec. 1553.232-74  EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.

    As prescribed in 1532.170(a), the EPA Form 1900-10 shall be used for 
an accounting of the cumulative charges and costs for cost-reimbursement 
contracts from the inception of the contract to completion. It shall be 
submitted by the Contractor along with the completion voucher.



Sec. 1553.232-75  EPA Form 1900-68, notice of contract costs suspended 
          and/or disallowed.

    As prescribed in 1532.170(b), the Contracting Officer shall insert 
EPA Form 1900-68 in all cost-reimbursement type and fixed-rate type 
contracts.

[61 FR 29318, June 10, 1996]



Sec. 1553.232-76  [Reserved]



 Sec. Appendix I to Chapter 15--Environmental Protection Agency; Class 
 Justification for Other Than Full and Open Competition in Acquisitions 
  From the Federal Prison Industries and the Government Printing Office

    1. The Environmental Protection Agency (EPA) anticipates the 
acquisition of supplies from the Federal Prison Industries (UNICOR) and 
the acquisition of Government printing and related supplies from the 
Government Printing Office (GPO) to meet the needs of the Agency.
    2. The Agency is authorized to make these acquisitions from the 
UNICOR and GPO without full and open competition under the authority in 
41 U.S.C. 253(c)(5) as sources required by statute, i.e., 18 U.S.C. 4124 
and 44 U.S.C. 501-504, 1121.
    3. The anticipated cost of these acquisitions to the Agency will be 
fair and reasonable.
    4. This class justification applies to any proposed acquisition made 
by the EPA from the UNICOR or GPO.
    5. This class justification will remain in effect until April 1, 
1988.
    6. The undersigned certifies that this class justification is 
accurate and complete to the best of his knowledge and belief.

[50 FR 14361, Apr. 11, 1985]

[[Page 117]]



  CHAPTER 16--OFFICE OF PERSONNEL MANAGEMENT FEDERAL EMPLOYEES HEALTH 
                     BENEFITS ACQUISITION REGULATION




                          (Parts 1600 to 1699)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1601            Federal Acquisition Regulations System......         119
1602            Definitions of words and terms..............         120
1603            Improper business practices and personal 
                    conflicts of interest...................         122
1604            Administrative matters......................         123
                   SUBCHAPTER B--ACQUISITION PLANNING
1605            Publicizing contract actions................         125
1606            Competition requirements....................         125
1609            Contractor qualifications...................         125
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1614            Sealed bidding..............................         130
1615            Contracting by negotiation..................         130
1616            Types of contracts..........................         134
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1622            Application of labor laws to Government 
                    acquisitions............................         135
1624            Protection of privacy and freedom of 
                    information.............................         135
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1629            Taxes.......................................         136
1631            Contract cost principles and procedures.....         136
1632            Contract financing..........................         139

[[Page 118]]

1633            Protests, disputes, and appeals.............         141
                  SUBCHAPTER G--CONTRACT ADMINISTRATION
1642            Contract administration.....................         142
1643            Contract modifications......................         145
1644            Subcontracting policies and procedures......         145
1645            Government property.........................         145
1646            Quality assurance...........................         145
1649            Termination of contracts....................         146
                     SUBCHAPTER H--CLAUSES AND FORMS
1652            Contract clauses............................         147
1653            Forms.......................................         169

[[Page 119]]

                          SUBCHAPTER A--GENERAL

            PART 1601--FEDERAL ACQUISITION REGULATIONS SYSTEM

              Subpart 1601.1--Purpose, Authority, Issuance

Sec.

Sec. 1601.101  Purpose.

Sec. 1601.102  Authority.

Sec. 1601.103  Applicability.

Sec. 1601.104  Issuance.

Sec. 1601.104-1  Publication and code arrangement.

Sec. 1601.104-2  Arrangement of regulation.

Sec. 1601.105  OMB approval under the Paperwork Reduction Act.

         Subpart 1601.3--Agency Acquisition Regulation (FEHBAR)


Sec. 1601.301  Policy.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16037, May 1, 1987, unless otherwise noted.

              Subpart 1601.1--Purpose, Authority, Issuance



Sec. 1601.101  Purpose.

    (a) This subpart establishes chapter 16, Office of Personnel 
Management Federal Employees Health Benefits Acquisition Regulation, 
within title 48, the Federal Acquisition Regulation System, of the Code 
of Federal Regulations. The short title of this regulation shall be 
FEHBAR.
    (b) The purpose of the FEHBAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering contracts with health insurance carriers in the Federal 
Employees Health Benefits Program (FEHBP).



Sec. 1601.102  Authority.

    (a) The FEHBAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. chapter 89 and 
other applicable law and regulation.
    (b) The FEHBAR does not replace or incorporate regulations found at 
5 CFR part 890, which provides the substantive policy guidance for 
administration of the FEHBP under 5 U.S.C. Chapter 89. The following is 
the order of precedence in interpreting a contract provision under the 
FEHBP:
    (1) 5 U.S.C. Chapter 89;
    (2) 5 CFR part 890;
    (3) 48 CFR Chapters 1 and 16;
    (4) The FEHBP contract.


[52 FR 16037, May 1, 1987, as amended at 59 FR 14764, Mar. 30, 1994]



Sec. 1601.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEHBP 
pursuant to 5 U.S.C. chapter 89. The FEHBAR implements and supplements 
the FAR where necessary to identify basic and significant acquisition 
policies unique to the FEHBP.



Sec. 1601.104  Issuance.



Sec. 1601.104-1  Publication and code arrangement.

    (a) The FEHBAR and its subsequent changes are published in
    (1) Daily issues of the Federal Register; and
    (2) Cumulative form of the Code of Federal Regulations.
    (b) The FEHBAR is issued as chapter 16 of title 48 of the Code of 
Federal Regulations.



Sec. 1601.104-2  Arrangement of regulation.

    (a) General. The FEHBAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104. However, when a FAR part or subpart is 
adequate for use without further OPM implementation or supplementation, 
there will be no corresponding FEHBAR part, subpart, etc. The FEHBAR is 
to be used in conjunction with the FAR and the order for use is:
    (1) FAR;
    (2) FEHBAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of chapter 16 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.
    (2) In informal documents, any section of chapter 16 may be 
identified as ``FEHBAR'' followed by the section number.

[[Page 120]]



Sec. 1601.105  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to obtain approval from the Office of Management and 
Budget (OMB) before collecting information from ten or more members of 
the public. The information collection and recordkeeping requirements 
contained in this regulation have been approved by the OMB. The 
following OMB control numbers apply.

------------------------------------------------------------------------
                         Provision                           Control No.
------------------------------------------------------------------------
FEHBAR 1604.705............................................    3206-0145
FAR 9.1....................................................    3206-0145
------------------------------------------------------------------------

         Subpart 1601.3--Agency Acquisition Regulation (FEHBAR)



Sec. 1601.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEHBP shall be consistent with 
the principles of the FAR. Changes to the FAR that are otherwise 
authorized by statute or applicable regulation, dictated by the 
practical realities associated with the unique nature of health care 
procurements, or necessary to satisfy specific needs of the Office of 
Personnel Management shall be implemented as amendments to the FEHBAR 
and published in the Federal Register, or as deviations to the FAR in 
accordance with FAR subpart 1.4.
    (b) Internal procedures, instructions, and guides that are necessary 
to clarify or implement the FEHBAR within OPM may be issued by agency 
officials specifically designated by the Director, OPM. Normally, such 
designations will be specified in the OPM Administrative Manual, which 
is routinely available to agency employees and will be made available to 
interested outside parties upon request. Clarifying or implementing 
procedures, instructions, and guides issued pursuant to this section of 
the FEHBAR must--
    (1) Be consistent with the policies and procedures contained in this 
regulation as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
regulation to the extent practicable.

                PART 1602--DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 1602.000-70  Scope of part.

               Subpart 1602.1--Definitions of FEHBP Terms


Sec. 1602.170  Definition of terms.

Sec. 1602.170-1  Carrier.

Sec. 1602.170-2  Community rate.

Sec. 1602.170-3  Comprehensive medical plan.

Sec. 1602.170-4  Contractor.

Sec. 1602.170-5  Cost or pricing data.

Sec. 1602.170-6  Director.

Sec. 1602.170-7  Experience rate.

Sec. 1602.170-8  FEHBP.

Sec. 1602.170-9  Health benefits plan.

Sec. 1602.170-10  Letter of credit.

Sec. 1602.170-11  Negotiated benefits contracts.

Sec. 1602.170-12  OPM.

Sec. 1602.170-13  Similarly sized subscriber groups.

Sec. 1602.170-14  Subcontractor.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16038, May 1, 1987, unless otherwise noted.



Sec. 1602.000-70  Scope of part.

    This part defines words and terms commonly used in this regulation.

               Subpart 1602.1--Definitions of FEHBP Terms



Sec. 1602.170  Definition of terms.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.



Sec. 1602.170-1  Carrier.

    Carrier means a voluntary association, corporation, partnership, or 
other nongovernmental organization which is lawfully engaged in 
providing, delivering, paying for, or reimbursing the cost of health 
care services under group insurance policies or contracts, medical or 
hospital service agreements, membership or subscription contracts, 
including a health maintenance organization, a nonprofit hospital and 
health service corporation, or any other entity providing a plan of 
health insurance, health benefits or

[[Page 121]]

health services, in consideration of premiums or other periodic charges 
payable to the carrier.

[62 FR 47573, Sept. 10, 1997]



Sec. 1602.170-2  Community rate.

    (a) Community rate means a rate of payment based on a per member per 
month capitation rate or its equivalent that applies to a combination of 
the subscriber groups for a comprehensive medical plan carrier. 
References in this subchapter to ``a combination of cost and price 
analysis'' relating to the applicability of policy and contract clauses 
refer to comprehensive medical plan carriers using community rates.
    (b) Adjusted community rate means a community rate which has been 
adjusted for expected use of medical resources of the FEHBP group. An 
adjusted community rate is a prospective rate and cannot be 
retroactively revised to reflect actual experience, utilization, or 
costs of the FEHBP group.

[55 FR 27414, July 2, 1990, as amended at 62 FR 47573, Sept. 10, 1997]



Sec. 1602.170-3  Comprehensive medical plan.

    Comprehensive Medical Plan means a plan as defined under 5 U.S.C. 
8903(4).



Sec. 1602.170-4  Contractor.

    Contractor means carrier.



Sec. 1602.170-5  Cost or pricing data.

    (a) Experience rated carriers. Cost or pricing data for experience 
rated carriers includes information such as claims data; actual or 
negotiated benefits payments made to providers of medical services for 
the provision of health care such as capitation not adjusted for 
specific groups, per diems, and Diagnostic Related Group (DRG) payments; 
cost data; utilization data; and administrative expenses and retentions.
    (b) Community rated carriers. Cost or pricing data for community 
rated carriers is the specialized rating data used by carriers in 
computing a rate that is appropriate for the Federal group and the 
similarly sized subscriber groups (SSSGs). Such data include, but are 
not limited to, capitation rates; prescription drug, hospital, and 
office visit benefits utilization data; trend data; actuarial data; 
rating methodologies for other groups; standardized presentation of the 
carrier's rating method (age, sex, etc.) showing that the factor 
predicts utilization; tiered rates information; ``step-up'' factors 
information; demographics such as family size; special benefit loading 
capitations; and adjustment factors for capitation.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-6  Director.

    Director means the Director of the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-7  Experience rate.

    Experience rate means a rate for a given group that is the result of 
that group's actual paid claims, administrative expenses, retentions, 
and estimated claims incurred but not reported, adjusted for benefit 
modifications, utilization trends, and economic trends. Actual paid 
claims include any actual or negotiated benefits payments made to 
providers of medical services for the provision of health care such as 
capitation not adjusted for specific groups, per diems, and Diagnostic 
Related Group (DRG) payments.

[54 FR 27414, July 2, 1990. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-8  FEHBP.

    FEHBP means the Federal Employees Health Benefits Program.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-9  Health benefits plan.

    Health benefits plan means a group insurance policy, contract, 
medical or hospital service agreement, membership or subscription 
contract, or similar group arrangements provided by a carrier for the 
purpose of providing, arranging for, delivering, paying for, or 
reimbursing any of the costs of health care services.

[62 FR 47574, Sept. 10, 1997]

[[Page 122]]



Sec. 1602.170-10  Letter of credit.

    Letter of credit means the method by which certain carriers, and 
their underwriters if authorized, receive recurring premium payments and 
contingency reserve payments by drawing against a commitment (certified 
by a responsible OPM official) which specifies a dollar amount 
available. For each carrier participating in the letter of credit 
arrangement for payment under this part, the terms ``carrier reserves,'' 
and ``special reserves'' include any balance in the carrier's letter of 
credit account.

[53 FR 51783, Dec. 23, 1988, as amended at 57 FR 14359, Apr. 20, 1992. 
Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-11  Negotiated benefits contracts.

    Negotiated benefits contracts are FEHBP contracts in which benefits 
provided and subscription income are based on either community rating or 
experience rating.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-12  OPM.

    OPM means the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988 
and further redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-13  Similarly sized subscriber groups.

    (a) Similarly sized subscriber groups (SSSGs) are a comprehensive 
medical plan carrier's two employer groups that:
    (1) As of the date specified by OPM in the rate instructions, have a 
subscriber enrollment closest to the FEHBP subscriber enrollment; and,
    (2) Use any rating method other than retrospective experience 
rating; and,
    (3) Meet the criteria specified in the rate instructions issued by 
OPM.
    (b) Any group with which an FEHB carrier enters into an agreement to 
provide health care services is a potential SSSG (including separate 
lines of business, government entities, groups that have multi-year 
contracts, and groups having point-of-service products).
    (c) Exceptions to the general rule stated in paragraph (b) of this 
section are (and the following groups must be excluded from SSSG 
consideration):
    (1) Groups the carrier rates by the method of retrospective 
experience rating;
    (2) Groups consisting of the carrier's own employees;
    (3) Medicaid groups, Medicare groups, and groups that have only a 
stand alone benefit (such as dental only);
    (4) A purchasing alliance whose rate-setting is mandated by the 
State or local government.
    (d) OPM shall determine the FEHBP rate by selecting the lower of the 
two rates derived by using rating methods consistent with those used to 
derive the SSSG rates.

[62 FR 47574, Sept. 10, 1997]



Sec. 1602.170-14  Subcontractor.

    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor, except for providers of direct medical services or 
supplies pursuant to the Carrier's health benefits plan.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988, 
and further redesignated at 55 FR 27414, July 2, 1990 and 62 FR 47574, 
Sept. 10, 1997]

    PART 1603--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

      Subpart 1603.70--Misleading, Deceptive, or Unfair Advertising

Sec.

Sec. 1603.7001  Policy.

Sec. 1603.7002  Additional guidelines.

Sec. 1603.7003  Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.

      Subpart 1603.70--Misleading, Deceptive, or Unfair Advertising



Sec. 1603.7001  Policy.

    (a) OPM prepares and distributes or makes available to Federal 
employees and annuitants a comparison booklet which presents summary 
information and a benefits brochure which details

[[Page 123]]

benefits, limitations, and premium rates for all participating plans. 
OPM does not encourage, support, or reimburse participating carriers for 
the costs of advertisements. However, while OPM believes that 
advertising is unnecessary, it recognizes that the decision to use 
advertising rests with each carrier.
    (b) OPM discourages advertising that is misleading or deceptive. 
This includes advertising that is directed at other carriers' plans 
participating in the Program and which uses incomplete or inappropriate 
comparisons or disparaging or minimizing techniques. Such unfair 
practices are prejudicial to the interests of the vast majority of 
carriers whose advertising is fair and accurate.
    (c) Failure to conform to the requirements of this subpart shall be 
a material breach of the contract and may result in withdrawal of 
approval to continue participation in the FEHB Program.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1603.7002  Additional guidelines.

    Any advertisements which identify a carrier's participation in the 
FEHBP shall--
    (a) Be limited to the merits of the carrier's FEHBP plan and shall 
be limited to factual statements of the benefits and rates offered by 
that plan. The official document for benefit and rate comparisons among 
FEHBP plans is the comparison chart issued by OPM.
    (b) Not use the FEHBP logo.
    (c) Recognize that the officially approved plan brochure is the sole 
contractual statement of benefits, limitations, and exclusions. All 
advertisements that in any way discuss plan benefits shall contain the 
following statement:

    This is a summary (or brief description) of the features of the 
(plan's name). Before making a final decision, please read the plan's 
officially approved brochure, (brochure number). All benefits are 
subject to the definitions, limitations, and exclusions set forth in the 
official brochure.
    (d) Set forth the rates for the plan, if the advertisements discuss 
benefits.
    (e) Not give instructions on enrollment. Statements on enrollment 
procedures, requirements, or eligibility shall be limited to those such 
as:
    To sign up, fill out a Health Benefits Registration Form (Standard 
Form 2809) from your personnel office indicating the enrollment you 
want:
    The enrollment codes for (plan's name) are:

      Self Only ------------ Enrollment Code------------

      Self and Family ------------ Enrollment Code ------------

    The form must then be returned to your personnel office before the 
(date) deadline. Your (plan's name) coverage will begin the first pay 
period in January, (year). If you are a retired Federal employee and 
need forms, contact the Office of Personnel Management at P.O. Box 809, 
Washington, DC 20044.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



Sec. 1603.7003  Contract clause.

    The clause at 1652.203-70 shall be inserted in all FEHBP contracts.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]

                    PART 1604--ADMINISTRATIVE MATTERS

              Subpart 1604.7--Contractor Records Retention

Sec.

Sec. 1604.703  Policy.

Sec. 1604.705  Specific retention periods.

             Subpart 1604.9--Taxpayer Identification Number


Sec. 1604.970  Taxpayer Identification Number.

                Subpart 1604.70--Coordination of Benefits


Sec. 1604.7001  Coordination of benefits clause.

             Subpart 1604.71--Disputed Health Benefit Claims


Sec. 1604.7101  Filing health benefit claims/court review of disputed 
          claims.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.

[[Page 124]]

              Subpart 1604.7--Contractor Records Retention



Sec. 1604.703  Policy.

    In view of the unique payment schedules of FEHBP contracts and the 
compelling need for records retention periods sufficient to protect the 
Government's interest, contractors shall be required to maintain records 
for periods determined in accordance with the provisions of FAR 
4.703(b)(1).



Sec. 1604.705  Specific retention periods.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2 ``Audit & Records--Negotiation,'' the contracting officer shall 
insert the clause at 1652.204-70 in all FEHBP contracts.

[52 FR 16039, May 1, 1987, as amended at 62 FR 47574, Sept. 10, 1997]

             Subpart 1604.9--Taxpayer Identification Number

    Source: 65 FR 36386, June 8, 2000, unless otherwise noted.



Sec. 1604.970  Taxpayer Identification Number.

    Insert the clause at section 1652.204-73 in all FEHBP contracts.

                Subpart 1604.70--Coordination of Benefits



Sec. 1604.7001  Coordination of benefits clause.

    OPM expects all FEHBP plans to coordinate benefits. Accordingly, the 
clause set forth at 1652.204-71 shall be inserted in all FEHBP 
contracts.

             Subpart 1604.71--Disputed Health Benefit Claims



Sec. Sec. 1604.7101  Filing health benefit claims/court review of 
          disputed claims.

    Guidelines for a Federal Employees Health Benefit (FEHB) Program 
covered individual to file a claim for payment or service and for legal 
actions on disputed health benefit claims are found at 5 CFR 890.105 and 
890.107, respectively. The contract clause at 1652.204-72 of this 
chapter, reflecting this guidance, must be inserted in all FEHB Program 
contracts.

[61 FR 15198, Apr. 5, 1996]

[[Page 125]]

                   SUBCHAPTER B--ACQUISITION PLANNING

                 PART 1605--PUBLICIZING CONTRACT ACTIONS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1605.000  Applicability.

    FAR part 5 has no practical application to the FEHBP because OPM 
does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.

[52 FR 16039, May 1, 1987]

                   PART 1606--COMPETITION REQUIREMENTS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1606.001  Applicability.

    FAR part 6 has no practical application to FEHBP contracts in view 
of the statutory exception provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]

                  PART 1609--CONTRACTOR QUALIFICATIONS

        Subpart 1609.4--Debarment, Suspension, and Ineligibility


Sec. 1609.470  Notification of Debarment, Suspension, and Ineligibility.

Sec. 1609.471  Contractor certification.

     Subpart 1609.70--Minimum Standards for Health Benefits Carriers


Sec. 1609.7001  Minimum standards for health benefits carriers.

                 Subpart 1609.71--Performance Evaluation


Sec. 1609.7101  Policy.

Sec. 1609.7101-1  Community-rated carrier incentive performance 
          elements.

Sec. 1609.7101-2  Community-rated carrier performance factors.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

        Subpart 1609.4--Debarment, Suspension, and Ineligibility

    Source: 59 FR 14764, Mar. 30, 1994, unless otherwise noted.



Sec. 1609.470  Notification of Debarment, Suspension, and Ineligibility.

    (FAR) 48 CFR, part 9, subpart 9.4 is supplemented as set out in the 
certification required in 1609.471 by converting the FAR ``offeror's'' 
certification at (FAR) 48 CFR 52.209-5 into a carrier's certification. 
This change reflects the FEHBP's statutory exemption from competitive 
bidding (5 U.S.C. 8902), which obviates the issuance of solicitations.



Sec. 1609.471  Contractor certification.

    All FEHBP carriers and applicant carriers are required to submit the 
following certification. Applicant carriers must submit the 
certification prior to OPM's determination on the application for 
approval to participate in the FEHBP. Current carriers must submit the 
certification once, along with their benefit and rate proposals for the 
1995 contract year.

  Debarment, Suspension, Proposed Debarment, and Other Responsibility 
                                 Matters

    The Carrier certifies, to the best of its knowledge and belief, 
that--
    (a) The Carrier and/or any of its Principals--
    (1) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (2) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (3) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of

[[Page 126]]

any of the offenses enumerated in subdivision (a)(2) of this clause.
    (4) The Carrier has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (b) Principals, for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the Carrier subject to prosecution 
under section 1001, title 18, United States Code.
    (c) The Carrier shall provide immediate written notice to the 
Contracting Officer if, at any time, the Carrier learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (d) A Carrier's certification that any of the actions mentioned in 
the certification exists will not necessarily result in termination of 
the contract. However, the certification, or the Carrier's failure to 
provide such additional information as requested by the Contracting 
Officer, will be considered in connection with a determination of the 
Carrier's responsibility under subpart 1609.70, Minimum Standards for 
Health Benefits Carriers.
    (e) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Carrier is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (f) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer. If it 
is later determined that the Carrier knowingly rendered an erroneous 
certification, in addition to other remedies available to the 
Government, the Contracting Officer may terminate the contract for 
default.

Carrier Name:___________________________________________________________
________________________________________________________________________

Name of Chief Executive Officer

Date signed:____________________________________________________________


(End of Certificate)

     Subpart 1609.70--Minimum Standards for Health Benefits Carriers



Sec. 1609.7001  Minimum standards for health benefits carriers.

    (a) The carrier of an approved health benefits plan shall meet the 
requirements of chapter 89 of title 5, United States Code; part 890 of 
title 5, Code of Federal Regulations; chapter 1 of title 48, Code of 
Federal Regulations, and the following standards. The carrier shall 
continue to meet the requirements of chapter 89 of title 5, United 
States Code, and the standards cited in this paragraph while under 
contract with OPM. Failure to meet these requirements and standards is 
cause for OPM's withdrawal of approval of the health benefits carrier 
and termination of the contract in accordance with 5 CFR 890.204.
    (1) It must be lawfully engaged in the business of supplying health 
benefits.
    (2) It must have, in the judgement of OPM, the financial resources 
and experience in the field of health benefits to carry out its 
obligations under the plan.
    (3) It must keep such reasonable financial and statistical records, 
and furnish such reasonable financial and statistical reports with 
respect to the plan, as may be requested by OPM.
    (4) It must permit representatives of OPM and of the General 
Accounting Office to audit and examine its records and accounts which 
pertain, directly or indirectly, to the plan at such reasonable times 
and places as may be designated by OPM or the General Accounting Office.
    (5) It must accept, subject to adjustment for error or fraud, in 
payment of its charges for health benefits for all enrollees in its 
plan, the enrollment charges received by the Employees Health Benefits 
(EHB) Fund less amounts set aside for the administrative and contingency 
reserves prescribed in 5 CFR 890.503. OPM makes available or pays the 
amounts within 30 days of receipt by the EHB Fund.
    (6) A carrier that is an employee organization must continue 
coverage, without requirement of membership, of

[[Page 127]]

any eligible survivor annuitants, former spouses continuing coverage 
with the carrier under 5 CFR 890.803, children temporarily continuing 
coverage with the carrier under 5 CFR 890.1103(a)(2), or former spouses 
temporarily continuing coverage with the carrier under 5 CFR 
890.1103(a)(3).
    (7) It must timely submit to OPM a properly completed and signed 
novation or change-of-name agreement in accordance with subpart 1642.12 
of this chapter.
    (b) In addition to the standards in paragraph (a) of this section, 
the carrier must perform the contract in accordance with prudent 
business practices. A carrier's sustained poor business practice in the 
management or administration of a health benefits plan is cause for 
OPM's withdrawal of approval of the health benefits carrier and 
termination of the carrier's contract. Prudent business practices 
include, but are not limited to, the following:
    (1) Timely compliance with OPM instructions and directives.
    (2) Legal and ethical business and health care practices.
    (3) Compliance with the terms of the FEHB contract, regulations and 
statutes.
    (4) Timely and accurate adjudication of claims or rendering of 
medical services.
    (5) A system for accounting for costs incurred under the contract, 
when required, which includes segregating and pricing FEHB medical 
utilization and allocating indirect and administrative costs in a 
reasonable and equitable manner.
    (6) Accurate accounting reports of actual, allowable, allocable, and 
reasonable costs incurred in the administration of the contract.
    (7) Application of performance standards for assuring contract 
quality as required by 1646.270(d).
    (8) Establishment and maintenance of a system of internal control 
that provides reasonable assurance that:
    (i) The provision and payments of benefits and other expenses are in 
compliance with legal, regulatory, and contractual guidelines;
    (ii) FEHB funds, property, and other assets are safeguarded against 
waste, loss, unauthorized use, or misappropriation; and,
    (iii) Data are accurately and fairly disclosed in all reports 
required by OPM.
    (c) The following types of activities are examples of poor business 
practices which adversely affect the health benefits carrier's 
responsibility under its contract. A pattern of poor conduct or evidence 
of misconduct in these areas is cause for OPM to withdraw approval of 
the carrier:
    (1) Presenting false claims by charging expenses to the contract 
which according to the contract terms are not chargeable to the 
contract;
    (2) Using fraudulent or unethical business or health care practices 
or otherwise displaying a lack of business integrity or honesty;
    (3) Repeatedly and knowingly providing false or misleading 
information in the rate setting process;
    (4) Repeated failure to comply with OPM instructions and directives;
    (5) Having an accounting system that is incapable of separately 
accounting for costs incurred under the contract and/or that lacks the 
internal controls necessary to fulfill the terms of the contract; and
    (6) Failure to assure that the plan provides properly paid or denied 
claims, or providing medical services which are inconsistent with 
standards of good medical practice.
    (7) Entering into contracts or employment agreements with providers, 
provider groups, or health care workers that include provisions or 
financial incentives that directly or indirectly create an inducement to 
limit or restrict communication about medically necessary services to 
any individual covered under the FEHB Program. Financial incentives are 
defined as bonuses, withholds, commissions, profit sharing or other 
similar adjustments to basic compensation (e.g., service fee, 
capitation, salary) which have the effect of limiting or reducing 
communication about appropriate medically necessary services. Providers, 
health care workers, or health plan sponsoring organizations are not 
required to discuss treatment options that they would not ordinarily 
discuss in their customary course of practice because such options

[[Page 128]]

are inconsistent with their professional judgment or ethical, moral or 
religious beliefs.
    (d) The Director or his or her designee will determine whether to 
propose withdrawal of approval and hold a hearing based on the 
seriousness of the carrier's actions and its proposed method to effect 
corrective action.

[57 FR 14359, Apr. 20, 1992. Redesignated and amended at 59 FR 14764, 
14765, Mar. 30, 1994; 63 FR 42586, Aug. 10, 1998]

                 Subpart 1609.71--Performance Evaluation

    Source: 63 FR 55337, Oct. 15, 1998, unless otherwise noted.



Sec. 1609.7101  Policy.

    At the end of each contract period, the contracting officer will 
determine each community-rated carrier's responsiveness to the Program 
requirements in 1609.7101-1.



Sec. 1609.7101-1  Community-rated carrier incentive performance 
          elements.

    (a) Customer Service. This element is intended to assist OPM in 
achieving the goal of providing customer service that meets or exceeds 
the expectations of Federal enrollees. The Customer Service category 
will represent 70 percent of the total calculation and will be based on 
the carrier's compliance with the following items:
    (1) Timely Closure on Rates and Benefits Consistent with Policy 
Guidelines. In order for information to be available to our customers in 
time for the annual Open Season, carriers must work with OPM to conclude 
benefits and rate negotiations by the established time frames. The 
contracting officer will evaluate this item based on the carrier's 
demonstrated record in providing its rate reconciliation and benefits 
information within the time frames prescribed by and in the format 
required by OPM.
    (2) Customer Information. Enrollees must have accurate information 
and adequate time to make informed Open Season choices in selecting a 
health plan. In evaluating this item, the contracting officer will 
consider the carrier's timeliness and accuracy of information.
    (3) Meeting Customer Service Performance Standards. Compliance with 
this item is essential so that OPM can ensure that the carrier is 
providing quality health care and other services to enrollees. The 
contracting officer will evaluate this item based on the carrier's 
submission of the Consumer Assessment of Health Plans Study (CAHPS) 
survey results and other measures as required contractually between OPM 
and the carrier. (This element will be implemented beginning with 
contract year 2000).
    (4) Cooperation in Surveys. FEHB enrollees rely on feedback from the 
consumer assessment survey in selecting a health plan. The contracting 
officer will evaluate this item based on the carrier's record in 
cooperating with OPM and/or its designated representative in 
administering a consumer assessment survey or providing comparable 
survey results as specified in the FEHB contract and OPM guidance.
    (5) Paperless Enrollment/Enrollment Reconciliation--(i) Paperless 
Enrollment. The requirement to cooperate in the OPM designated system 
for paperless enrollment is under the section entitled ``Enrollment 
Instructions'' in the FEHB Supplemental Literature Guidelines in the 
FEHB contract. The contracting officer will evaluate this item based on 
the carrier's ability to accept electronic data transmission from the 
OPM designated electronic enrollment system and issue ID cards timely.
    (ii) Enrollment Reconciliation. The requirement for carriers to 
reconcile their enrollment records on a quarterly basis with those 
provided by Federal Government agencies is in the Records and 
Information to be Furnished by OPM clause of the contract, as well as 5 
CFR 890.110 and 5 CFR 890.308. The contracting officer will evaluate 
this item based on the carrier's demonstrated record of initiating 
reconciliation procedures with applicable agency payroll offices on a 
quarterly basis in accordance with OPM guidance on reconciling 
enrollments and resolving enrollment discrepancies, as well as on the 
carrier's demonstrated record of following disenrollment procedures in 
accordance with 5 CFR 890.110 and 890.308.

[[Page 129]]

    (6) Reconsideration/Disputed Claims. The requirement for carriers to 
reconsider disputed health benefits claims is in 5 CFR 890.105. An 
incomplete explanation of denied benefits by the carrier places a burden 
on enrollees, causing them to seek reconsideration because the carrier 
did not fully explain its denial. Late carrier responses to OPM's 
requests for the carrier's reconsideration file delays OPM's response to 
enrollees. The contracting officer will evaluate this item based on 
whether the carrier provided OPM a complete reconciliation file within 
the time frame specified.
    (b) Critical Contract Compliance Requirements. This performance 
category will represent 30 percent of the total computation and will be 
based on the carrier's compliance with the following items:
    (1) Timely Submissions. The reports specified in the Statistics and 
Special Studies and FEHB Quality Assurance clauses of the contract and 
are essential for tracking enrollment, finances, rates, etc. In 
evaluating this item, the contracting officer will consider the 
carrier's timely submission of the contract, signed by the contracting 
official, to OPM, and on its demonstrated record in providing timely and 
accurate reports as required.
    (2) Notification of Changes in Contract Administrators. OPM must be 
able to reach the person responsible for managing the carrier's FEHB 
contract without delay when an enrollee calls OPM in need of urgent 
medical treatment, an ID card, or other service. Each carrier's 
designated contact must maintain telephone and electronic communications 
with OPM so that issues can be resolved quickly. The contracting officer 
will evaluate this item based on the carrier's compliance with the 
Notice clause and Contract Administration Data sheet in the contract, 
and will consider the carrier's record in notifying OPM promptly of 
changes in its carrier representative or contracting official, mailing 
or electronic address, telephone or FAX number.
    (3) Notification of Changes in Name or Ownership; or Transfer of 
Assets, and Notification of Other Significant Events. OPM must be able 
to assess the viability of the carrier and its ability to provide health 
care to enrollees so that they do not experience difficulty obtaining 
treatment and other services. Additionally, with regard to notification 
to OPM of other significant events, the carrier must notify OPM of such 
events as lawsuits, strikes, and natural disasters so that OPM can 
assess the carrier's ability to pay claims and provide services to 
enrollees. The contracting officer will evaluate this item based on the 
carrier's compliance with FEHBAR Subparts 1642.12, Novation and Change-
of-Name Agreements, 1642.70, Management Agreement (in Lieu of Novation 
Agreement), and 1652.222-70, including timely notification and 
explanation of all significant events that may have a material effect on 
the carrier's ability to perform the contract.



Sec. 1609.7101-2  Community-rated carrier performance factors.

    OPM will apply the Customer Service and Critical Contract Compliance 
Requirements percentage factors specified by the contracting officer 
when a community-rated carrier does not provide the information, 
payment, or service, perform the function, or otherwise meet its 
obligations as stated in 1609.7101-1. The total premium will be 
multiplied by the sum of all the factors and the resulting amount will 
be withheld from the carrier's periodic premium payments payable during 
the first quarter of the following contract period, unless an 
alternative payment arrangement is made with the carrier's contracting 
officer.
    The factors for each basic element are set forth as follows:

               Community-Rated Carrier Performance Factors
------------------------------------------------------------------------
                                                             Performance
                                                             factor (to
                                                                 be
                                                             multiplied
                          Element                            by premium
                                                            and withheld
                                                                from
                                                              carrier's
                                                              payments)
------------------------------------------------------------------------
I. Customer Service (70% of Total)........................          .007
II. Critical Contract Compliance Requirements (30% of               .003
 Total)...................................................
Maximum Aggregate Performance Factor......................          .01
------------------------------------------------------------------------


[[Page 130]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

                        PART 1614--SEALED BIDDING

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1614.000  Applicability.

    FAR part 14 has no practical application to FEHBP contracts in view 
of the statutory exemption provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]

                  PART 1615--CONTRACTING BY NEGOTIATION

          Subpart 1615.1--General Requirements for Negotiation

Sec.

Sec. 1615.170  Negotiation authority.

  Subpart 1615.4--Solicitations and Receipt of Proposals and Quotations


Sec. 1615.401  Applicability.

                    Subpart 1615.6--Source Selection


Sec. 1615.602  Applicability.

                    Subpart 1615.8--Price Negotiation


Sec. 1615.802  Policy.

Sec. 1615.804-70  Certificate of cost or pricing data for community 
          rated carriers.

Sec. 1615.804-71  [Reserved]

Sec. 1615.804-72  Rate reduction for defective pricing or defective cost 
          or pricing data.

Sec. 1615.805-70  Carrier investment of FEHB funds.

Sec. 1615.805-71  Investment income clause.

                         Subpart 1615.9--Profit


Sec. 1615.902  Policy.

Sec. 1615.905  Profit analysis factors.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16040, May 1, 1987, unless otherwise noted.

          Subpart 1615.1--General Requirements for Negotiation



Sec. 1615.170  Negotiation authority.

    The authority to negotiate FEHBP contracts is conferred by 5 U.S.C. 
8902.

  Subpart 1615.4--Solicitations and Receipt of Proposals and Quotations



Sec. 1615.401  Applicability.

    FAR subpart 15.4 has no practical application to the FEHBP because 
OPM does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.

                    Subpart 1615.6--Source Selection



Sec. 1615.602  Applicability.

    FAR subpart 15.6 has no practical application to the FEHBP because 
prospective contractors (carriers) are considered for inclusion in the 
FEHBP in accordance with criteria provided in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than on the basis of competition between prospective 
carriers.

                    Subpart 1615.8--Price Negotiation



Sec. 1615.802  Policy.

    Pricing of FEHB contracts is governed by 5 U.S.C. 8902(i), 5 U.S.C. 
8906, and other applicable law. FAR subpart 15.8 shall be implemented by 
applying the policies and procedures--to the extent practicable--as 
follows:
    (a) For both experience rated and community rated contracts for 
which the FEHBP premiums for the contract term will be less than 
$500,000, OPM shall not require the carrier to provide cost or pricing 
data in the rate proposal for the following contract term.
    (b) Cost analysis shall be used for contracts where premiums and 
subscription income are determined on the basis of experience rating.

[[Page 131]]

    (c)(1) A combination of cost and price analysis shall be used for 
contracts where premiums and subscription income are based on community 
rates. For contracts for which the FEHBP premiums for the contract term 
will be less than $500,000, OPM shall not require the carrier to provide 
cost or pricing data. The carrier must submit only a rate proposal and 
abbreviated utilization data for the applicable contract year. OPM will 
evaluate the proposed rates by performing a basic reasonableness test on 
the information submitted. Rates failing this test will be subject to 
further review.
    (2) For contracts with fewer than 1,500 enrollee contracts for which 
the FEHBP premiums for the contract term will be $500,000 or more, OPM 
shall require the carrier to submit its rate proposal, utilization data, 
and the certificate of accurate cost or pricing data required in 
1615.804-70. In addition, OPM shall require the carrier to complete the 
proposed rates form containing cost and pricing data, and the Community 
Rate Questionnaire, but shall not require the carrier to send these 
documents to OPM. The carrier shall keep the documents on file for 
periodic auditor and actuarial review in accordance with 1652.204-70. 
OPM shall perform a basic reasonableness test on the data submitted. 
Rates that do not pass this test shall be subject to further OPM review.
    (3) For contracts with 1,500 or more enrollee contracts for which 
the FEHBP premiums for the contract term will be at least $500,000, OPM 
shall require the carrier to provide the data and methodology used to 
determine the FEHBP rates. OPM shall also require the data and 
methodology used to determine the rates for the carrier's similarly 
sized subscriber groups. The carrier shall provide cost or pricing data 
required by OPM in its rate instructions for the applicable contract 
period. OPM shall evaluate the data to ensure that the rate is 
reasonable and consistent with the requirements in this chapter. If 
necessary, OPM may require the carrier to provide additional 
documentation.
    (4) Contracts shall be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the 
SSSGs. Such adjustments shall be based on the lower of the two rates 
determined by using the methodology (including discounts) the Carrier 
used for the two SSSGs.
    (5) FEHBP community rated carriers shall comply with SSSG criteria 
provided by OPM in the rate instructions for the applicable contract 
period.
    (d) The application of FAR 15.802(b)(2) should not be construed to 
prohibit the consideration of preceding year surpluses or deficits in 
carrier-held reserves in the rate adjustments for subsequent year 
renewals of contracts based, in whole or in part, on cost analysis.
    (e) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
will not be used to determine the reasonableness of a community-rated 
carrier's demonstration project premium rates. Carrier premium rates 
will not be adjusted for equivalency with SSSG rating methodologies. 
Carriers will benchmark premiums against adjusted community rates if 
available, Medigap offerings, or other similar products.
    (2) Community-rated carriers must propose premium rates with cost or 
pricing data and rating methodology, and experience-rated carriers must 
propose premium rates with cost data and rating methodology regardless 
of group size or annual premiums.

[62 FR 47574, Sept. 10, 1997, as amended at 64 FR 36272, July 6, 1999; 
65 FR 36386, June 8, 2000]



Sec. 1615.804-70  Certificate of cost or pricing data for community 
          rated carriers.

    The contracting officer shall require a carrier with a contract 
meeting the requirements in 1615.802(c)(2) or 1615.802(c)(3) to execute 
the Certificate of Accurate Cost or Pricing Data contained in this 
section. A carrier with a contract meeting the requirements in 
1615.802(c)(2) shall complete the Certificate and keep it on file at the 
carrier's place of business in accordance with 1652.204-70. A carrier 
with a contract meeting the requirements in

[[Page 132]]

1615.802(c)(3) shall submit the Certificate to OPM along with its rate 
reconciliation, which is submitted during the first quarter of the 
applicable contract year.

    Certificate of Accurate Cost or Pricing Data for Community Rated 
                                Carriers

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting Officer or the Contracting Officer's representative or 
designee, in support of the ----------* FEHBP rates were developed in 
accordance with the requirements of 48 CFR Chapter 16 and the FEHBP 
contract and are accurate, complete, and current as of the date this 
certificate is executed; and (2) the methodology used to determine the 
FEHBP rates is consistent with the methodology used to determine the 
rates for the carrier's Similarly Sized Subscriber Groups.
Firm:___________________________________________________________________
Name:___________________________________________________________________
Signature:______________________________________________________________
Date of Execution:______________________________________________________
    * Insert the year for which the rates apply. Normally, this will be 
the year for which the rates are being reconciled.

(End of Certificate)

[62 FR 47575, Sept. 10, 1997]



Sec. 1615.804-71  [Reserved]



Sec. 1615.804-72  Rate reduction for defective pricing or defective cost 
          or pricing data.

    The clause set forth in section 1652.215-70 shall be inserted in 
FEHBP contracts for $500,000 or more that are based on a combination of 
cost and price analysis (community rated).

[62 FR 47575, Sept. 10, 1997]



Sec. 1615.805-70  Carrier investment of FEHB funds.

    (a) This paragraph does not apply to contracts based on a 
combination of cost and price analysis (community rated).
    (b) The carrier is required to invest and reinvest all funds on 
hand, including any attributable to the special reserve or the reserve 
for incurred but unpaid claims, exceeding the funds needed to discharge 
promptly the obligations incurred under the contract.
    (c) The carrier is required to credit income earned from its 
investment of FEHB funds to the special reserve on behalf of the FEHB 
Program. If a carrier fails to invest excess FEHB funds or to credit any 
income due the contract, for whatever reason, it shall return or credit 
any investment income lost to OPM or the special reserve.
    (d) Investment income. Investment income is the net amount earned by 
the carrier after deducting investment expenses.

[52 FR 16040, May 1, 1987, as amended at 55 FR 27415, July 2, 1990; 62 
FR 47575, Sept. 10, 1997]



Sec. 1615.805-71  Investment income clause.

    The clause set forth in 1652.215-71 shall be inserted in all 
contracts based on cost analysis.

                         Subpart 1615.9--Profit



Sec. 1615.902  Policy.

    (a) OPM will determine the profit or fee prenegotiation objective 
(service charge) portion of FEHBP contracts by use of a weighted 
guidelines structured approach when the pricing of such contracts is 
determined by cost analysis. The service charge so determined shall be 
the total service charge that may be negotiated for the contract and 
shall encompass any service charge (whether entitled service charge, 
profit, fee, contribution to reserves or surpluses, or any other title) 
that may have been negotiated by the prime contractor with any 
subcontractor or underwriter.
    (b) OPM will not guarantee a minimum service charge.



Sec. 1615.905  Profit analysis factors.

    (a) OPM contracting officers will apply a weighted guidelines method 
in developing the service charge prenegotiation objective for FEHBP 
contracts. The following factors as defined in FAR 15.905-1 will be 
applied to projected incurred claims and allowable administrative 
expenses:
    (1) Contractor performance. OPM will consider such elements as the 
accurate and timely processing of benefit claims and the volume and 
validity of disputed claims as measures of economical and efficient 
contract performance. This factor will be judged apart from the 
contractor's basic responsibility for

[[Page 133]]

contract performance and will be a measure of the extent and nature of 
the contractor's contribution to the FEHBP through the application of 
managerial expertise and effort. Evidence of effective contract 
performance will receive a plus weight, and poor performance or failure 
to comply with contract terms and conditions a negative weight. 
Innovations of benefit to the FEHBP generally a plus weight, documented 
inattention or indifference to cost control a negative weight.
    (2) Contract cost risk. OPM will consider such underwriting elements 
as the availability of margins, group size, enrollment demographics and 
fluctuation, and the probability of conversion and adverse selection, as 
well as the extent of financial assistance the carrier renders to the 
contract, in assessing the degree of cost responsibility and associated 
risk assumed by the contractor as a factor in negotiating profit. It 
should be noted that the ``loss carry forward basis'' of experience 
rated group insurance practices limits this factor in an overall 
determination of profit. This factor is intended to provide profit 
opportunities commensurate with the contractor's share of cost risks 
only, taking into account such elements as the adequacy and reliability 
of data for estimating costs, etc., offset by the ``loss carry forward 
basis'' of experience rating.
    (3) Federal socioeconomic programs. OPM will consider documented 
evidence of successful, contractor-initiated efforts to support such 
Federal socioeconomic programs as drug and substance abuse deterrents, 
and other concerns of the type enumerated in FAR 15.905-1(c) as a factor 
in negotiating profit. This factor will be related to the quality of the 
contractor's policies and procedures and the extent of unusual effort or 
achievement demonstrated. Evidence of effective support of Federal 
socioeconomic programs will receive a plus weight; poor support will 
receive a negative weight.
    (4) Capital investments. This factor is generally not applicable to 
FEHBP contracts because facilities capital cost of money may be an 
allowable administrative expense. Generally, this factor shall be given 
a weight of zero. However, special purpose facilities or investments 
costs of direct benefit to the FEHBP that are not recoverable as 
allowable or allocable administrative expenses may be taken into account 
in assigning a plus weight.
    (5) Cost control. OPM will consider contractor-initiated efforts 
such as improved benefit design, cost-sharing features, innovative peer 
review, or other professional cost containment efforts as a factor in 
negotiating profit. This factor shall be used to reward contractors with 
additional profit opportunities for self-initiated efforts to control 
contract costs.
    (6) Independent development. OPM will consider any profit 
opportunities that may be directly related to relevant independent 
efforts such as the development of a unique and enhanced customer 
support system that is of demonstrated value to the FEHBP and for which 
developmental costs have not been recovered directly or indirectly 
through allowable administrative expenses. This factor will be used to 
provide additional profit opportunities based upon an assessment of the 
contractor's investment and risk in developing techniques, methods, 
practices, etc., having viability to the program at large. Improvements 
and innovations recognized and rewarded under any of the other profit 
factors cannot be considered.
    (b) The weight ranges for each factor to be used in the weighted 
guidelines approach are set forth below:

------------------------------------------------------------------------
               Profit factor                   Weight ranges (percent)
------------------------------------------------------------------------
1. Contractor performance.................  -.2 to +.45.
2. Contract cost risk*....................  +.02 to +.2.
3. Federal socioeconomic programs.........  -.05 to +.05.
4. Capital investments....................  0 to +.02.
5. Cost control...........................  0 to +.35.
6. Independent development................  0 to +.03.
------------------------------------------------------------------------
*The contract cost risk factor is subdivided into two parts: group size
  (.02 to .10) and other risk elements (0 to .10). With respect to the
  group size element, subweights should be assigned as follows:


 
                Enrollment                        Weight (percent)
 
  10,000 or less..........................  .06 to .10.
  10,001-50,000...........................  .05 to .09.
  50,001-200,000..........................  .04 to .07.
  200,001-500,000.........................  .03 to .06.
  500,001 and over........................  .02 to .04.
 


[[Page 134]]

                      PART 1616--TYPES OF CONTRACTS

                Subpart 1616.1--Selecting Contract Types

Sec.

Sec. 1616.102  Policies.

Sec. 1616.105  Solicitation provision.

             Subpart 1616.70--Negotiated Benefits Contracts


Sec. 1616.7001  Clause--contracts based on a combination of cost and 
          price analysis (community rated).

Sec. 1616.7002  Clause--contracts based on cost analysis (experience 
          rated).

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.

                Subpart 1616.1--Selecting Contract Types



Sec. 1616.102  Policies.

    All FEHBP contracts shall be negotiated benefits contracts.

[62 FR 47575, Sept. 10, 1997]



Sec. 1616.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 89 obviate the issuance of solicitations.

             Subpart 1616.70--Negotiated Benefits Contracts

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



Sec. 1616.7001  Clause--contracts based on a combination of cost and 
          price analysis (community rated).

    The clause at section 1652.216-70 shall be inserted in all FEHBP 
contracts based on a combination of cost and price analysis (community 
rated).



Sec. 1616.7002  Clause--contracts based on cost analysis (experience 
          rated).

    The clause at section 1652.216-71 shall be inserted in all FEHBP 
contracts based on cost analysis (experience rated).

[[Page 135]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

     PART 1622--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                  Subpart 1622.1--Basic Labor Policies

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1622.103-70  Contract clause.

    The clause at 1652.222-70 shall be inserted in all FEHBP contracts.

[55 FR 27415, July 2, 1990]

       PART 1624--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 1624.1--Protection of Individual Privacy

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1624.104  Contract clause.

    Records retained by FEHBP carriers on Federal subscribers and 
members of their families serve the carriers' own commercial function of 
paying health benefits claims and are not maintained to accomplish an 
agency function of OPM. Consequently, the records do not fall within the 
provisions of the Privacy Act. Nevertheless, OPM recognizes the need for 
carriers to keep certain records confidential. The clause at 1652.224-70 
shall be inserted in all FEHBP contracts.

[52 FR 16041, May 1, 1987]

[[Page 136]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                            PART 1629--TAXES

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.

                    Subpart 1629.4--Contract Clauses



Sec. 1629.402  Foreign contracts.

    The clause set forth in section 1652.229-70 shall be inserted in all 
FEHBP contracts performed outside the United States, its possessions, 
and Puerto Rico.

           PART 1631--CONTRACT COST PRINCIPLES AND PROCEDURES

         Subpart 1631.2--Contracts With Commercial Organizations

Sec.

Sec. 1631.200  Scope of subpart.

Sec. 1631.201-70  FEHBP credits.

Sec. 1631.203-70  FEHBP General and Administrative (G&A) expenses.

Sec. 1631.205  Selected costs.

Sec. 1631.205-41  Taxes.

Sec. 1631.205-70  FEHBP public relations and advertising costs.

Sec. 1631.205-71  FEHBP bad debts.

Sec. 1631.205-72  FEHBP compensation for personal services.

Sec. 1631.205-73  FEHBP interest expense.

Sec. 1631.205-74  FEHBP losses on other contracts.

Sec. 1631.205-75  Selling costs.

Sec. 1631.205-76  Trade, business, technical and professional activity 
          costs.

Sec. 1631.205-77  FEHBP start-up and other nonrecurring costs.

Sec. 1631.205-78  FEHBP printed material costs.

Sec. 1631.205-79  Mandatory statutory reserves.

Sec. 1631.205-80  Major subcontractor service charges.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.

         Subpart 1631.2--Contracts With Commercial Organizations



Sec. 1631.200  Scope of subpart.

    The cost principles under this subpart apply only to contracts in 
which premiums and subscription income are determined on the basis of 
experience rating, in which cost analysis is performed, or in which 
price is determined on the basis of actual costs incurred.



Sec. 1631.201-70  FEHBP credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates, 
allowances, and other credits resulting from benefit payments that 
include, but are not limited to--
    (a) Coordination of benefit refunds;
    (b) Hospital year-end settlements;
    (c) Uncashed and returned checks;
    (d) Utilization review refunds;
    (e) Refunds attributable to litigation with subscribers or providers 
of health services; and
    (f) Erroneous benefit payment, overpayment, and duplicate payment 
recoveries.



Sec. 1631.203-70  FEHBP General and Administrative (G&A) expenses.

    The provisions of FAR 31.203 apply to the allocation of indirect 
costs by means of a ``dividend or retention formula.''



Sec. 1631.205    Selected costs.



Sec. 1631.205-41  Taxes.

    5 U.S.C. 8909(f)(1) prohibits the imposition of taxes, fees, or 
other monetary payment, directly or indirectly, on FEHB premiums by any 
State, the District of Columbia, or the Commonwealth of Puerto Rico, or 
by any political subdivision or other governmental authority of those 
entities. Therefore, FAR 31.205-41 is modified to include those taxes as 
unallowable costs. The prohibited payments, referred to elsewhere in 
these regulations as ``premium taxes,'' applies to all payments directed 
by States or municipalities, regardless of how they may be titled, to 
whom they must be paid, or the purpose for which they are collected, and 
it applies to all forms of direct and indirect measurements on FEHBP 
premiums, however modified, to include cost per contract or enrollee, 
with the sole exception of a tax on net income or profit, if that tax, 
fee,

[[Page 137]]

or payment is applicable to a broad range of business activity.

[56 FR 57496, Nov. 12, 1991]



Sec. 1631.205-70  FEHBP public relations and advertising costs.

    (a) The cost of media messages that are directed at advising current 
FEHBP subscribers on how to obtain benefits shall be an allowable 
expense within the meaning of FAR 31.205-1 because this service is 
directly related to performance of the FEHBP contract. If there is any 
question about the allowability of such a cost, the carrier may request 
advance approval regarding the content and cost of the message.
    (b) Costs of media messages not provided for in paragraph (a) of 
this section are allowable if the content is specifically approved by 
the contracting officer and all of the following criteria are met:
    (1) The primary effect of the message is to disseminate information 
on health care cost containment or preventive health care;
    (2) The costs of the carrier's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
carrier's messages to be charged to the FEHBP in advance of the contract 
year.
    (c) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the carrier (or 
subcontractor) for the purpose of enhancing its overall image or selling 
its health plan are not allowable.



Sec. 1631.205-71  FEHBP bad debts.

    Erroneous benefit payments are not automatically disallowed by FAR 
31.205-3.



Sec. 1631.205-72  FEHBP compensation for personal services.

    Overtime on an FEHBP contract would normally meet the condition 
specified in FAR 22.103. Premiums for overtime, extra-pay shifts, and 
multi-shifts meeting the specified conditions shall be allowed without 
prior approval.



Sec. 1631.205-73  FEHBP interest expense.

    (a) Interest charges incurred in the administration of FEHBP 
contracts are not allowable in accordance with FAR 31.205-20. However, 
interest charges that are associated with the carrier's investment of 
FEHBP account funds are not considered administrative costs and may be 
allowable under very limited circumstances if all of the following 
criteria are met:
    (1) Borrowing is limited to the positive balance of the carrier's 
entire FEHBP investment portfolio;
    (2) FEHBP funds are tied up in long-term securities;
    (3) Liquidation of long-term securities would cost more than the 
cost of the interest;
    (4) The interest rates charged are at or below current market rates; 
and
    (5) Advance written approval of the contracting officer is obtained 
before such costs are incurred.
    (b) The carrier must demonstrate on a case-by-case basis that 
borrowing rather than cashing in long-term investments shall actually 
result in cost savings to the FEHB Program. Satisfactory demonstration 
of cost savings is a prerequisite to contracting officer approval of the 
interest cost as a charge to the contract.
    (c) If the interest charge is allowed, the risk factor in the 
service charge will be adjusted downward so that the carrier does not 
recover interest costs through both the service charge and an allowance 
under this paragraph.



Sec. 1631.205-74  FEHBP losses on other contracts.

    FAR 31.205-23 shall not be construed to prohibit the application of 
the normal ``loss carry forward'' principle that is fundamental to 
continuing insurance contracts that are based on experience rating.



Sec. 1631.205-75  Selling costs.

    (a) FAR 31.205-38 is modified to eliminate from allowable costs 
those costs related to sales promotion and the payment of sales 
commissions fees or salaries to employees or outside commercial or 
selling agencies for enrolling Federal subscribers in a particular FEHB 
plan.

[[Page 138]]

    (b) Selling costs are allowable costs to FEHBP contracts to the 
extent that they are necessary for conducting annual contract 
negotiations with the Government and for liaison activities necessary 
for ongoing contract administration. Personnel and related travel costs 
are allowable for attendance at Open Season Health fairs and other 
similar activities at which carriers give enrollees information about 
their choices among health plans (but see FAR 31.205-1 `Public relations 
and advertising costs', and The Federal Employees Health Benefits 
Handbook for Personnel and Payroll Offices, Subchapter S2-3(f) 
`Controlling contacts between employees and carriers').

[52 FR 16041, May 1, 1987, as amended at 62 FR 47575, Sept. 10, 1997]



Sec. 1631.205-76  Trade, business, technical, and professional activity 
          costs.

    (a) FEHBP participating plans, carriers, and underwriters shall seek 
the advance written approval of the contracting officer for allowability 
of all or part of the costs associated with trade, business, technical, 
and professional activities (FAR 31.205-43) when the allocable costs of 
such participation to the FEHBP will exceed $1,000 annually and when the 
carrier or underwriter allocates more than 50% of the membership cost of 
a trade, business, technical, or professional organization to the FEHBP.
    (b) When approval of costs for membership in an organization is 
required, the carrier or underwriter must demonstrate conclusively that 
membership in such an organization and participation in its activities 
extend beyond the contractual relationship with OPM, have a reasonable 
relationship to providing care and services to FEHBP enrollees, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



Sec. 1631.205-77  FEHBP start-up and other nonrecurring costs.

    Precontract costs (FAR 31.205-32) shall be allowed only to the 
extent provided for by advance agreement in accordance with FAR 31.109.



Sec. 1631.205-78  FEHBP printed material costs.

    Unless OPM determines that it is in the best interest of the FEHBP 
to do otherwise, if a carrier orders printed material that is available 
from the Government Printing Office (GPO) under the ``rider system'' 
from another source, the allowable contract charges shall be the lesser 
of the amount actually paid or the cost that would have been incurred 
had the carrier ridden OPM's GPO order.



Sec. 1631.205-79  Mandatory statutory reserves.

    Charges for mandatory statutory reserves are not allowed unless 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
carrier, a pro rata share based upon FEHBP's contribution to the total 
carrier's set aside shall be returned to the FEHBP in accordance with 
FAR 31.201-5.



Sec. 1631.205-80  Major subcontractor service charges.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits, and payment or 
provision of actual health services, and/or assumption of insurance risk 
or underwriting, when costs are determined on the basis of actual costs 
incurred or experience rating, any amount that exceeds the allowable 
cost of the subcontract (whether entitled service charge, profit, fee, 
contribution to reserve, surplus, or any other title) is not allowable

[[Page 139]]

under the contract. Amounts which exceed allowable costs may be paid to 
a major subcontractor only from the service charge negotiated between 
OPM and the Carrier.

                      PART 1632--CONTRACT FINANCING

                         Subpart 1632.1--General

Sec.

Sec. 1632.170  Recurring premium payments to carriers.

Sec. 1632.171  Clause--community-rated contracts.

Sec. 1632.172  Clause--experience-rated contracts.

                     Subpart 1632.6--Contract Debts


Sec. 1632.607  Tax credit.

Sec. 1632.617  Contract clause.

                    Subpart 1632.7--Contract Funding


Sec. 1632.770  Contingency reserve payments.

Sec. 1632.771  Non-commingling of FEHBP funds.

Sec. 1632.772  Contract clause.

                  Subpart 1632.8--Assignment of Claims


Sec. 1632.806-70  Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.

                         Subpart 1632.1--General



Sec. 1632.170  Recurring premium payments to carriers.

    (a)(1) Recurring payments to carriers of community-rated plans. OPM 
will pay to carriers of community-rated plans the premium payments 
received for the plan less the amounts credited to the contingency and 
administrative reserves, amounts assessed under paragraph (a)(2) of this 
section, and amounts due for other contractual obligations. Premium 
payments will be due and payable not later than 30 days after receipt by 
the Federal Employees Health Benefits (FEHB) Fund.
    (2) The sum of the two performance factors applicable under 
1609.7101-2 will be multiplied by the carrier's total net-to-carrier 
premium dollars paid for the preceding contract period. The amount 
obtained after the total premium is multiplied by the sum of the factors 
will be withheld from the carrier's periodic premium payment payable 
during the first quarter of the following contract period unless an 
alternative payment arrangement is made with the carrier's contracting 
officer. OPM will deposit the withheld funds in the carrier's 
contingency reserve for the plan. The aggregate amount withheld annually 
for performance for any carrier will not exceed one percent of premium 
for any contract period.
    (b)(1) Recurring payments to carriers of experience-rated plans. OPM 
will make payments on a letter of credit (LOC) basis. Premium payments 
received for the plan, less the amounts credited to the contingency and 
administrative reserves and amounts for other obligations due under the 
contract, will be made available for carrier drawdown not later than 30 
days after receipt by the FEHB Fund.
    (2) Withdrawals from the LOC account will be made on a checks-
presented basis. Under a checks-presented basis, drawdown on the LOC is 
delayed until the checks issued for FEHB Program disbursements are 
presented to the carrier's bank for payment.
    (3) OPM may grant a waiver of the restriction of LOC disbursements 
to a checks-presented basis if the carrier requests the waiver in 
writing and demonstrates to OPM's satisfaction that the checks-presented 
basis of LOC disbursements will result in significantly increased 
liability under the contract, or that the checks-presented basis of LOC 
disbursements is otherwise clearly and significantly detrimental to the 
operation of the plan. Payments to carriers that have been granted a 
waiver may be made by an alternative payment methodology, subject to OPM 
approval.
    (c) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Carriers will create and maintain separate risk pools for 
demonstration project experience and regular FEHB experience for the 
purpose of establishing separate premium rates.
    (2) OPM will create and maintain a demonstration project Contingency 
Reserve separate from the regular FEHB Contingency Reserve for each 
carrier participating in the demonstration project.

[[Page 140]]

    (3) Carriers will account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
will be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.
    (4) The same percentage used to determine indirect cost allocation 
will also be used to determine the amount of an experience-rated 
carrier's service charge that will be allocated to the demonstration 
project.
    (5) Experience-rated carriers participating in the demonstration 
project will draw funds from their Letter of Credit (LOC) account to pay 
demonstration project benefits costs in the same manner as they do for 
benefits costs incurred by regular FEHB members.
    (6) Carriers will report on demonstration project revenues, health 
benefits charges, and administrative expenses as directed by OPM.
    (7) Experience-rated carriers will perform a final reconciliation of 
revenue and costs for the demonstration group at the end of the 
demonstration project. OPM will reimburse carrier costs in excess of the 
premiums first from the carrier's demonstration project Contingency 
Reserve and then from the Employees Health Benefits Fund Administrative 
Reserve. After the final accounting, OPM will place any surplus 
demonstration project premiums in the regular Contingency Reserves of 
all carriers continuing in the FEHB Program for the contract year 
following the year in which the demonstration project ends. Credit will 
be in proportion to the amount of subscription charges paid and accrued 
to each carrier's plan for the last year of the demonstration project.
    (8) Community-rated carriers may, at their discretion, request funds 
from the Employees Health Benefits Fund to mitigate excessive costs in 
relation to premiums. If a community-rated carrier requests funds from 
the Employees Health Benefits Fund to mitigate risk, it will be required 
to perform annual reconciliations for the duration of the demonstration 
project. OPM will reimburse carrier costs significantly in excess of the 
premiums first from the carrier's demonstration project Contingency 
Reserve and then from the Employees Health Benefits Fund Administrative 
Reserve. After the final accounting, OPM will place any surplus 
demonstration project premiums in the regular Contingency Reserves of 
all carriers continuing in the FEHB Program for the contract year 
following the year in which the demonstration project ends. Credit will 
be in proportion to the amount of subscription charges paid and accrued 
to each carrier's plan for the last year of the demonstration project.
    (9) Should the program be extended beyond the 3 year demonstration 
project period, OPM will regulate to address any necessary changes to 
these provisions.

[57 FR 14360, Apr. 20, 1992, as amended at 63 FR 55338, Oct. 15, 1998; 
64 FR 36272, July 6, 1999; 65 FR 36386, June 8, 2000]



Sec. 1632.171  Clause--community-rated contracts.

    The clause at 1652.232-70 shall be inserted in all community-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



Sec. 1632.172  Clause--experience-rated contracts.

    The clause at 1652.232-71 shall be inserted in all experience-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]

                     Subpart 1632.6--Contract Debts



Sec. 1632.607  Tax credit.

    FAR 32.607 has no practical application to FEHBP contracts. The 
statutory provisions at 5 U.S.C. 8906(c) and (d) authorize joint 
enrollee and Government contributions to the FEHBP Fund. Because the 
Fund is comprised of contributions by enrollees as well as the 
Government, carriers may not offset debts to the Fund by a tax credit

[[Page 141]]

which is solely a Government obligation.



Sec. 1632.617  Contract clause.

    The clause at (FAR) 48 CFR 52.232-17 will be modified in all FEHBP 
contracts to exclude the words ``net of any applicable tax credit under 
the Internal Revenue Code (26 U.S.C. 1481).''

[59 FR 14765, Mar. 30, 1994]

                    Subpart 1632.7--Contract Funding



Sec. 1632.770  Contingency reserve payments.

    (a) Payments from the contingency reserve shall be made in 
accordance with 5 CFR 890.503.
    (b) A carrier for an FEHB plan may apply to OPM at any time for a 
payment from the contingency reserve that is in addition to those 
amounts, if any, paid under 5 CFR 890.503(c)(1) through (c)(4), if the 
carrier can show good cause, such as, unexpected adverse claims 
experience. OPM will decide whether to allow the request in whole or in 
part and will advise the carrier of its decision. However, OPM shall not 
unreasonably withhold approval for amounts requested that exceed the 
plan's preferred minimum balance for the contingency reserve.



Sec. 1632.771  Non-commingling of FEHBP funds.

    (a) This section applies to contracts based on cost analysis.
    (b) Carrier or underwriter commingling of FEHBP funds with those 
from other sources makes it difficult to precisely determine FEHBP cash 
balances at any given time or to precisely determine investment income 
attributable to FEHBP invested assets.
    (c) FEHBP funds shall be maintained separately from other cash and 
investments of the carrier or underwriter. Cash and investment balances 
reported on FEHBP Annual Accounting Statements must agree with the 
carrier's books and records.
    (d) This requirement may be waived by the contracting officer in 
accordance with the clause at 1652.232-70 when adequate accounting and 
other controls are in effect. If the requirement is waived, the waiver 
will remain in effect until it is withdrawn by OPM. The waiver shall be 
withdrawn if OPM determines that the accounting controls are no longer 
adequate to properly account for FEHBP funds.



Sec. 1632.772  Contract clause.

    The clause at 1652.232-70 shall be included in all contracts that 
are based on cost analysis.

                  Subpart 1632.8--Assignment of Claims



Sec. 1632.806-70  Contract clause.

    The clause set forth in 1652.232-73 shall be inserted in all FEHBP 
contracts.

[55 FR 27415, July 2, 1990]

               PART 1633--PROTESTS, DISPUTES, AND APPEALS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1633.070  Designation of the Board of Contract Appeals.

    The Armed Services Board of Contract Appeals (ASBCA) serves as the 
Board of Contract Appeals for the FEHBP. The rules of procedure followed 
in a dispute shall be those prescribed by the ASBCA.

[52 FR 16043, May 1, 1987]

[[Page 142]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                   PART 1642--CONTRACT ADMINISTRATION

         Subpart 1642.12--Novation and Change-of-Name Agreements

Sec.

Sec. 1642.1201  Definitions.

Sec. 1642.1204  Agreement to recognize a successor in interest (novation 
          agreement).

Sec. 1642.1205  Agreement to recognize carrier's change of name.

  Subpart 1642.70--Management Agreement (in Lieu of Novation Agreement)


Sec. 1642.7001  Management agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 59 FR 14765, Mar. 30, 1994, unless otherwise noted.

         Subpart 1642.12--Novation and Change-of-Name Agreements



Sec. 1642.1201  Definitions.

    The definitions at (FAR) 48 CFR 42.1201 shall have the same meaning 
for this subpart.



Sec. 1642.1204  Agreement to recognize a successor in interest (novation 
          agreement).

    (a) (FAR) 48 CFR 42.1204 shall be implemented as provided in this 
section. The contracting officer shall insert the following agreement in 
all FEHBP contracts for use when the contractor's assets or the entire 
portion of the assets pertinent to the performance of the contract, as 
determined by the Government, are transferred.

                           Novation Agreement

    The (insert corporate name) (Transferor), a corporation duly 
organized and existing under the laws of (insert State) with its 
principal office in (insert city, state); the (insert corporate name) 
(Transferee), (if appropriate add ``formerly known as the ------ 
Corporation'') a corporation duly organized and existing under the laws 
of (insert State) with its principal office in (insert city); and the 
UNITED STATES OF AMERICA (Government) enter into this Agreement 
effective (insert date transfer of assets became effective under 
applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number ------ with the Transferor. The term contracts, as used in this 
Agreement, means the contract cited in this paragraph and all other 
contracts and purchase orders, including any and all amendments and 
modifications made between the Government and the Transferor before the 
effective date of this Agreement (whether or not performance and payment 
have been completed and releases executed if the Government or the 
Transferor has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) As of ---- 19-- (insert date transfer of assets became effective 
under applicable State law), the Transferor has transferred to the 
Transferee all the assets of the Transferor, or the entire portion of 
the Transferor's assets pertinent to performing the contract, as 
determined by OPM, by virtue of a(an) (insert term describing the legal 
transaction involved) between the Transferor and the Transferee.
    (3) The Transferee has acquired all the assets of the Transferor, or 
the entire portion of the Transferor's assets pertinent to performing 
the contract, as determined by OPM, by virtue of the transfer in 
paragraph (a)(1).
    (4) The Transferee has assumed all obligations and liabilities of 
the Transferor pertinent to performing the contract, as determined by 
OPM, by virtue of the transfer in paragraph (a)(1).
    (5) The Transferee is in a position to fully perform all obligations 
that may exist under the contract.
    (6) It is consistent with the Government's interest to recognize the 
Transferee as the successor party to the contract.
    (7) Evidence of the transfer in paragraph (a)(1) has been filed with 
the Government.
    (8) [If applicable:] A certificate dated ----, 19--, signed by the 
Secretary of State of (insert State), to the effect that the corporate 
name of (insert old corporate name) was changed to (insert new corporate 
name) on ----, 19--, has been filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS 
AGREEMENT--
    (1) The Transferor confirms the transfer to the Transferee, and 
waives any claims and rights against the Government or the Federal 
Employees Health Benefits Fund that it now has or may have in the future 
in connection with the contract.

[[Page 143]]

    (2) The Transferee agrees to be bound by and to perform the contract 
in accordance with the conditions contained in the contract. The 
Transferee also assumes all obligations and liabilities of, and all 
claims against, the Transferor pertinent to the contract, as determined 
by OPM, as if the Transferee were the original party to the contract.
    (3) The Transferee ratifies all previous actions taken by the 
Transferor with respect to the contract, with the same force and effect 
as if the action had been taken by the Transferee.
    (4) The Government recognizes the Transferee as the Transferor's 
successor in interest in and to the contract. The Transferee by this 
Agreement becomes entitled to all rights, titles, and interests of the 
Transferor in and to the contract as if the Transferee were the original 
party to the contract. Following the effective date of this Agreement, 
the terms Carrier and Contractor as used in the contract, shall refer to 
the Transferee.
    (5) Except as expressly provided in this Agreement, nothing in it 
shall be construed as a waiver of any rights of the Government against 
the Transferor.
    (6) All payments and reimbursements previously made by the 
Government to the Transferor, and all other previous actions taken by 
the Government under the contract, shall be considered to have 
discharged those parts of the Government's obligations under the 
contract. All payments and reimbursements made by the Government after 
the date of this Agreement in the name of or to the Transferor shall 
have the same force and effect as if made to the Transferee, and shall 
constitute a complete discharge of the Government's obligations under 
the contract, to the extent of the amounts paid or reimbursed.
    (7) The Transferor and the Transferee agree that the Government is 
not obligated to pay or reimburse either of them for, or otherwise give 
effect to, any costs, taxes, or other expenses, or any related 
increases, directly or indirectly arising out of or resulting from the 
transfer of this Agreement, other than those that the Government in the 
absence of this transfer or Agreement would have been obligated to pay 
or reimburse under the terms of the contract.
    (8) The Transferor guarantees payment of all liabilities and the 
performance of all obligations that the Transferee (i) assumes under 
this Agreement or (ii) may undertake in the future should this contract 
be modified under its terms and conditions. The Transferor waives notice 
of, and consents to, any such future modifications.
    (9) The contract shall remain in full force and effect, except as 
modified by this Agreement. Each party has executed this Agreement 
effective (insert the date transfer of assets became effective under 
applicable State law).

UNITED STATES OF AMERICA,
By ---------- Date----------
Title ----------

    (Enter Transferor's name)

By ---------- Date----------
    Title ----------

    (Corporate Seal)

    (Enter Transferee's name)

By ----------
Title ----------

    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert name of 
Transferor); that ------, who signed this Agreement for this 
corporation, was then ------ of this corporation; and that this 
Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this ------ day of 
------, 19----.

By ----------
    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert name of 
Transferee); that ------, who signed this Agreement for this 
corporation, was then ------ of this corporation; and that this 
Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this ------ day of 
------ 19--,

By______________________________________________________________________
    (Corporate Seal)

    (End of Agreement)

    (b) Failure to submit the properly completed and signed Novation 
Agreement in a timely manner shall be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.
    (c) The Contracting Officer shall terminate the contract if it is 
determined not to be in the Government's interest to recognize a 
successor in interest to the contract. The effective date will be 
decided by the Contracting Officer after considering the best interests 
of FEHBP enrollees.

[[Page 144]]



Sec. 1642.1205  Agreement to recognize carrier's change of name.

    (a) (FAR) 42.1205 shall be implemented as provided in this section. 
The Contracting Officer shall insert the following Agreement in all 
FEHBP contracts for use when the carrier changes its name and the 
Government's and contractor's rights and obligations remain unaffected.

                        Change-of-Name Agreement

    The (insert new Carrier name), a corporation duly organized and 
existing under the laws of (insert State), and the UNITED STATES OF 
AMERICA (Government), enter into this Agreement effective (insert date 
when the change of name became effective under applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number ------ with the (insert old Carrier name). The term contracts as 
used in this Agreement means the contract cited in this paragraph and 
all other contracts and purchase orders and all modifications thereto 
made by the Government and the Contractor before the effective date of 
this Agreement (whether or not performance and payment have been 
completed and releases executed if the OPM or the Carrier has any 
remaining rights, duties, or obligations under these contracts and 
purchase orders).
    (2) The (insert old Carrier name), by an amendment to its 
certificate of incorporation, dated ----, 19--, has changed its 
corporate name to (insert new Carrier name).
    (3) This amendment accomplishes a change of corporate name only and 
all rights and obligations of the Government and the Carrier under the 
contract are unaffected by this change.
    (4) Documentary evidence of this change of corporate name has been 
filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT:
    (1) The contract is amended by substituting the name `` (insert new 
Carrier name)'' for the name ``(insert old Carrier name)'' wherever it 
appears in the contract; and
    (2) Each party has executed this Agreement effective the day and 
year stated in paragraph (a)(2).

UNITED STATES OF AMERICA,

---------- Date ----------______________________________________________
Title___________________________________________________________________
    (Enter new Carrier name)

By ---------- Date ----------

Title___________________________________________________________________
    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert new Carrier 
name); that ------, who signed this Agreement for this corporation, was 
then (insert position held) of this corporation; and that this Agreement 
was duly signed for and on behalf of this corporation by authority of 
its governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ---- day of --
-- 19--.

By______________________________________________________________________
    (Corporate Seal)

                           (End of Agreement)

    (b) Failure to submit the properly completed and signed Change-of-
Name Agreement in a timely manner may be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.

  Subpart 1642.70--Management Agreement (in Lieu of Novation Agreement)



Sec. 1642.7001  Management agreement.

    When it is in the best interest of FEHBP enrollees to continue a 
contract for an interim period after the carrier discontinues its 
operations and has entered into a Purchase and Sale Agreement (or other 
descriptive term), but before a successor in interest has been 
recognized by OPM, the carrier may submit for OPM approval a Management 
Agreement that enables it to continue a contract through an agreement 
with a third party to administer the day-to-day performance of the 
contract. Examples of situations in which a Management Agreement may be 
accepted by OPM are:
    (a) When a transfer of assets does not meet the criteria for a 
novation;
    (b) While a request for a novation is pending;
    (c) While awaiting a decision on a request for a novation;
    (d) As an interim measure, when the timing of a transfer of assets 
or the timing of a carrier's withdrawal make administration of the 
contract inconvenient;
    (e) When it is not in the interests of the Government to either 
recognize a successor in interest or to immediately

[[Page 145]]

terminate the existing FEHBP contract.

                    PART 1643--CONTRACT MODIFICATIONS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.

                         Subpart 1643.2--Changes



Sec. 1643.205-70  Contract clause.

    The clause set forth in section 1652.243-70 shall be inserted in all 
FEHB Program contracts.

            PART 1644--SUBCONTRACTING POLICIES AND PROCEDURES

                         Subpart 1644.1--General

Sec.

Sec. 1644.170  Policy for FEHBP subcontracting consent.

                 Subpart 1644.2--Consent to Subcontracts


Sec. 1644.270  FEHBP contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.

                         Subpart 1644.1--General



Sec. 1644.170  Policy for FEHBP subcontracting consent.

    For all experience rated FEHBP contracts, advance approval shall be 
required on subcontracts or modifications to subcontracts when the 
amount charged against the FEHBP contract exceeds $100,000 and is at 
least 25 percent of the total cost of the subcontract.

[62 FR 47575, Sept. 10, 1997]

                 Subpart 1644.2--Consent to Subcontracts



Sec. 1644.270  FEHBP contract clause.

    The clause set forth at section 1652.244-70 shall be inserted in all 
experience rated FEHBP contracts.

[62 FR 47576, Sept. 10, 1997]

                     PART 1645--GOVERNMENT PROPERTY

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47576, Sept. 10, 1997, unless otherwise noted.

                   Subpart 1645.3--Providing Equipment



Sec. 1645.303-70  Contract clause.

    The clause set forth in section 1652.245-70 shall be inserted in all 
FEHB Program contracts.

                      PART 1646--QUALITY ASSURANCE

              Subpart 1646.2--Contract Quality Requirements

Sec.

Sec. 1646.270  General.

                    Subpart 1646.3--Contract Clauses


Sec. 1646.301  Contractor inspection requirements.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

              Subpart 1646.2--Contract Quality Requirements



Sec. 1646.270  General.

    (a) This section prescribes general policies and procedures to 
ensure that services acquired under the FEHBP contract conform to the 
contract's quality requirements.
    (b) OPM shall periodically evaluate the contractor's system of 
internal controls under the quality assurance program required by the 
contract and will acknowledge in writing whether or not the system is 
consistent with the requirements set forth in the contract. After the 
initial review, subsequent reviews may be limited to changes in the 
contractor's internal control guidelines. However, a limited review does 
not diminish the contractor's obligation to apply the full internal 
control system.
    (c) OPM will issue specific performance standards for the FEHBP 
contracts and will inform carriers of the applicable performance 
standards prior

[[Page 146]]

to negotiations for the contract year. OPM will benchmark its standards 
against standards generally accepted in the insurance industry. The 
contracting officer may authorize nationally recognized standards to be 
used to fulfill this requirement.
    (d) FEHBP carriers shall comply with the performance standards 
issued under paragraph (c) of this section.

[59 FR 14767, Mar. 30, 1994]

                    Subpart 1646.3--Contract Clauses



Sec. 1646.301  Contractor inspection requirements.

    The clause set forth at 1652.246-70 shall be inserted in all FEHBP 
contracts.

[52 FR 16044, May 1, 1987]

                   PART 1649--TERMINATION OF CONTRACTS

Sec.

Sec. 1649.002-70  Applicability of the FAR to FEHB acquisitions.

                   Subpart 1649.1--General Principles


Sec. 1649.101-70  FEHBP renewal and withdrawal of approval clause.

Sec. 1649.101-71  FEHBP termination for convenience clause.

Sec. 1649.101-72  FEHBP termination for default clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



Sec. 1649.002-70  Applicability of the FAR to FEHB acquisitions.

    (a) Termination of FEHB contracts because of withdrawal of approval 
is controlled by 5 U.S.C. 8902(e) and 5 CFR 890.204.
    (b) Termination of FEHB contracts because of nonrenewal of the 
contract at the end of the contract term is controlled by 5 U.S.C. 
8902(a) and 5 CFR 890.205.
    (c) The procedures for settlement of contracts after they are 
terminated shall be those contained in FAR part 49.

[57 FR 19387, May 6, 1992]

                   Subpart 1649.1--General Principles



Sec. 1649.101-70  FEHBP renewal and withdrawal of approval clause.

    The clause in 1652.249-70 shall be inserted in all FEHBP contracts.



Sec. 1649.101-71  FEHBP termination for convenience clause.

    The clause set forth in 1652.249-71 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]



Sec. 1649.101-72  FEHBP termination for default clause.

    The clause set forth in 1652.249-72 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]

[[Page 147]]

                     SUBCHAPTER H--CLAUSES AND FORMS

                       PART 1652--CONTRACT CLAUSES

Sec.

Sec. 1652.000  Applicable clauses.

                 Subpart 1652.2--Texts of FEHBP Clauses


Sec. 1652.203-70  Misleading, deceptive, or unfair advertising.

Sec. 1652.204-70  Contractor records retention.

Sec. 1652.204-71  Coordination of Benefits.

Sec. 1652.204-72  Filing health benefit claims/court review of disputed 
          claims.

Sec. 1652.204-73  Taxpayer Identification Number.

Sec. 1652.215-70  Rate Reduction for Defective Pricing or Defective Cost 
          or Pricing Data.

Sec. 1652.215-71  Investment Income.

Sec. 1652.216-70  Accounting and price adjustment.

Sec. 1652.216-71  Accounting and Allowable Cost.

Sec. 1652.222-70  Notice of significant events.

Sec. 1652.224-70  Confidentiality of records.

Sec. 1652.229-70  Taxes--Foreign Negotiated benefits contracts.

Sec. 1652.232-70  Payments--community-rated contracts.

Sec. 1652.232-71  Payments--experience-rated contracts.

Sec. 1652.232-72  Non-commingling of FEHBP funds.

Sec. 1652.232-73  Approval for the Assignment of Claims.

Sec. 1652.243-70  Changes--Negotiated benefits contracts.

Sec. 1652.244-70  Subcontracts.

Sec. 1652.245-70  Government property (negotiated benefits contracts).

Sec. 1652.246-70  FEHB Inspection.

Sec. 1652.249-70  Renewal and withdrawal of approval.

Sec. 1652.249-71  FEHBP termination for convenience of the government--
          negotiated benefits contracts.

Sec. 1652.249-72  FEHBP termination for default--negotiated benefits 
          contracts.

                   Subpart 1652.3--FEHBP Clause Matrix


Sec. 1652.370  Use of the matrix.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



Sec. 1652.000  Applicable clauses.

    The clauses of FAR subpart 52.2 shall be applicable to FEHBP 
contracts as specified in the FEHBAR Clause Matrix in subpart 1652.3.

                        Section and Clause Title


Sec. 52.202-1  Definitions.

Sec. 52.203-3  Gratuities.

Sec. 52.203-5  Covenant Against Contingent Fees.

Sec. 52.203-7  Anti-Kickback Procedures.

Sec. 52.203-12  Limitation on Payments to Influence Certain Federal 
          Transactions.

Sec. 52.209-6  Protecting the Government's Interest When Subcontracting 
          With Contractors Debarred, Suspended, or Proposed for 
          Debarment.

Sec. 52.215-2  Audit and Records--Negotiation.

Sec. 52.215-22  Price Reduction for Defective Cost or Pricing Data.

Sec. 52.215-24  Subcontractor Cost or Pricing Data.

Sec. 52.215-27  Termination of Defined Benefit Pension Plans.

Sec. 52.215-30  Facilities Capital Cost of Money.

Sec. 52.215-31  Waiver of Facilities Capital Cost of Money.

Sec. 52.215-39  Reversion or Adjustment of Plans for Postretirement 
          Benefits Other Than Pensions (PRB).

Sec. 52.219-8  Utilization of Small, Small Disadvantaged and Women-Owned 
          Small Business Concerns.

Sec. 52.222-1  Notice to the Government of Labor Disputes.

Sec. 52.222-3  Convict Labor.

Sec. 52.222-4  Contract Work Hours and Safety Standards Act--Overtime 
          Compensation--General.

Sec. 52.222-21  Certification of Nonsegregated Facilities.

Sec. 52.222-26  Equal Opportunity.

Sec. 52.222-28  Equal Opportunity Preaward Clearance of Subcontracts.

Sec. 52.222-29  Notification of Visa Denial.

Sec. 52.222-35  Affirmative Action for Special Disabled and Vietnam Era 
          Veterans.

Sec. 52.222-36  Affirmative Action for Handicapped Workers.

Sec. 52.222-37  Employment Reports on Special Disabled Veterans and 
          Veterans of the Vietnam Era.

Sec. 52.223-2  Clean Air and Water.

Sec. 52.223-6  Drug-Free Workplace.

Sec. 52.227-1  Authorization and Consent.

Sec. 52.227-2  Notice and Assistance Regarding Patent and Copyright 
          Infringement.

Sec. 52.229-3  Federal, State,and Local Taxes.

Sec. 52.229-4  Federal, State, and Local Taxes (Noncompetitive 
          Contract).

Sec. 52.229-5  Taxes--Contracts Performed in U.S. Possessions or Puerto 
          Rico.

Sec. 52.230-2  Cost Accounting Standards.

Sec. 52.230-3  Disclosure and Consistency of Cost Accounting Practices.

Sec. 52.230-5  Administration of Cost Accounting Standards.

Sec. 52.232-8  Discounts for Prompt Payment.

Sec. 52.232-17  Interest.

[[Page 148]]


Sec. 52.232-23  Assignment of Claims.

Sec. 52.232-33  Mandatory Information For Electronic Funds Transfer 
          Payment.

Sec. 52.233-1  Disputes.

Sec. 52.242-1  Notice of Intent to Disallow Costs.

Sec. 52.242-3  Penalties for Unallowable Costs.

Sec. 52.242-13  Bankruptcy.

Sec. 52.244-5  Competition in Subcontracting.

Sec. 52.244-6  Subcontracts for Commercial Items and Commercial 
          Components.

Sec. 52.246-25  Limitation of Liability--Services.

Sec. 52.247-63  Preference for U.S.-Flag Air Carriers.

Sec. 52.251-1  Government Supply Sources.

Sec. 52.232-2  Clauses Incorporated by Reference.

Sec. 52.252-4  Alterations in Contract.

Sec. 52.252-6  Authorized Deviations in Clauses.

[62 FR 47576, Sept. 10, 1997]

                 Subpart 1652.2--Texts of FEHBP Clauses



Sec. 1652.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 1603.7003, the following clause shall be inserted 
in all FEHBP contracts:

         Misleading, Deceptive, or Unfair Advertising (JAN 1991)

    (a) The Carrier agrees that any advertising material, including that 
labeled promotional material, marketing material, or supplemental 
literature, shall be truthful and not misleading.
    (b) Criteria to assess compliance with paragraph (a) of this clause 
are available in the FEHB Supplemental Literature Guidelines which are 
developed by OPM and should be used, along with the additional 
guidelines set forth in FEHBAR 1603.702, as the primary guide in 
preparing material; further guidance is provided in the NAIC ``Rules 
Governing Advertising of Accident and Sickness Insurance With 
Interpretive Guidelines.'' Guidelines are periodically updated and 
provided to the Carrier by OPM.
    (c) Failure to conform to paragraph (a) of this clause may result in 
a reduction in the service charge, if appropriate, and corrective action 
to protect the interest of Federal Members. Corrective action will be 
appropriate to the circumstances and may include, but is not limited to 
the following actions by OPM:
    (1) Directing the Carrier to cease and desist distribution, 
publication, or broadcast of the material;
    (2) Directing the Carrier to issue corrections at the Carrier's 
expense and in the same manner and media as the original material was 
made; and
    (3) Directing the Carrier to provide, at the Carrier's expense, the 
correction in writing by certified mail to all enrollees of the Plan(s) 
that had been the subject of the original material.
    (d) Egregious or repeated offenses may result in the following 
action by OPM:
    (1) Suspending new enrollments in the Carrier's Plan(s);
    (2) Providing Enrollees an opportunity to transfer to another plan; 
and
    (3) Terminating the contract in accordance with Section 1.15, 
Renewal and Withdrawal of Approval.
    (e) Prior to taking action as described in paragraphs (c) and (d) of 
this clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (f) The Carrier shall incorporate this clause in subcontracts with 
its underwriter, if any, and other subcontractors directly involved in 
the preparation or distribution of such advertising material and shall 
substitute ``Contractor'' or other appropriate reference for the term 
``Carrier.''

                             (End of clause)

[55 FR 27415, July 2, 1990, as amended at 62 FR 47576, Sept. 10, 1997]



Sec. 1652.204-70  Contractor records retention.

    As prescribed in 1604.705, the following clause shall be inserted in 
all FEHBP contracts.

                 Contractor Records Retention (JAN 1998)

    Notwithstanding the provisions of section 5.7 (FAR 52.215-2(f)) 
``Audit and Records-Negotiation,'' the Carrier shall retain and make 
available all records applicable to a contract term that support the 
annual statement of operations and, for contracts that exceed the 
threshold at FAR 15.804-2(a)(1), the rate submission for that contract 
term for a period of 5 years after the end of the contract term to which 
the records relate, except that enrollee and/or patient claim records 
shall be maintained for 3 years after the end of the contract term to 
which the claim records relate.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997]



Sec. 1652.204-71  Coordination of Benefits.

    As prescribed in 1604.7001, the following clause shall be inserted 
in all FEHBP contracts:

                   Coordination of Benefits (JAN 1991)

    (a) The Carrier shall coordinate the payment of benefits under this 
contract with the payment of benefits under Medicare, other

[[Page 149]]

group health benefits coverages, and the payment of medical and hospital 
costs under no-fault or other automobile insurance that pays benefits 
without regard to fault.
    (b) The Carrier shall not pay benefits under this contract until it 
has determined whether it is the primary carrier or unless permitted to 
do so by the Contracting Officer.
    (c) In coordinating benefits between plans, the Carrier shall follow 
the order of precedence established by the NAIC Model Guidelines for 
Coordination of Benefits (COB) as specified by OPM.
    (d) Where (1) the Carrier makes payments under this contract which 
are subject to COB provisions; (2) the payments are erroneous, not in 
accordance with the terms of the contract, or in excess of the 
limitations applicable under this contract; and (3) the Carrier is 
unable to recover such COB overpayments from the Member or the providers 
of services or supplies, the Contracting Officer may allow such amounts 
to be charged to the contract; the Carrier must be prepared to 
demonstrate that it has made a diligent effort to recover such COB 
overpayments.
    (e) COB savings shall be reported by experience rated carriers each 
year along with the Carrier's annual accounting statement in a form 
specified by OPM.
    (f) Changes in the order of precedence established by the NAIC Model 
Guidelines implemented after January 1 of any given year shall be 
required no earlier than the beginning of the following contract term.

                             (End of clause)

[55 FR 27415, July 2, 1990]



Sec. Sec. 1652.204-72  Filing health benefit claims/court review of 
          disputed claims.

    As prescribed in 1604.7101 of this chapter, the following clause 
must be inserted in all FEHB Program contracts.

 Filing Health Benefit Claims/Court Review of Disputed Claims (MAR 1995)

    (a) General. (1) The Carrier resolves claims filed under the Plan. 
All health benefit claims must be submitted initially to the Carrier. If 
the Carrier denies a claim (or a portion of a claim), the covered 
individual may ask the Carrier to reconsider its denial. If the Carrier 
affirms its denial or fails to respond as required by paragraph (b) of 
this clause, the covered individual may ask OPM to review the claim. A 
covered individual must exhaust both the Carrier and OPM review 
processes specified in this clause before seeking judicial review of the 
denied claim.
    (2) This clause applies to covered individuals and to other 
individuals or entities who are acting on the behalf of a covered 
individual and who have the covered individual's specific written 
consent to pursue payment of the disputed claim.
    (b) Time limits for reconsidering a claim. (1) The covered 
individual has 6 months from the date of the notice to the covered 
individual that a claim (or a portion of a claim) was denied by the 
Carrier in which to submit a written request for reconsideration to the 
Carrier. The time limit for requesting reconsideration may be extended 
when the covered individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.
    (2) The Carrier has 30 days after the date of receipt of a timely-
filed request for reconsideration to:
    (i) Affirm the denial in writing to the covered individual;
    (ii) Pay the bill or provide the service; or
    (iii) Request from the covered individual or provider additional 
information needed to make a decision on the claim. The Carrier must 
simultaneously notify the covered individual of the information 
requested if it requests additional information from a provider. The 
Carrier has 30 days after the date the information is received to affirm 
the denial in writing to the covered individual or pay the bill or 
provide the service. The Carrier must make its decision based on the 
evidence it has if the covered individual or provider does not respond 
within 60 days after the date of the Carrier's notice requesting 
additional information. The Carrier must then send written notice to the 
covered individual of its decision on the claim. The covered individual 
may request OPM review as provided in paragraph (b)(3) of this clause if 
the Carrier fails to act within the time limit set forth in this 
paragraph.
    (3) The covered individual may write to OPM and request that OPM 
review the Carrier's decision if the Carrier either affirms its denial 
of a claim or fails to respond to a covered individual's written request 
for reconsideration within the time limit set forth in paragraph (b)(2) 
of this clause. The covered individual must submit the request for OPM 
review within the time limit specified in paragraph (e)(1) of this 
clause.
    (4) The Carrier may extend the time limit for a covered individual's 
submission of additional information to the Carrier when the covered 
individual shows he or she was not notified of the time limit or was 
prevented by circumstances beyond his or her control from submitting the 
additional information.
    (c) Information required to process requests for reconsideration. 
(1) The covered individual must put the request to the Carrier to 
reconsider a claim in writing and give the reasons, in terms of 
applicable brochure provisions, that the denied claim should have been 
approved.

[[Page 150]]

    (2) If the Carrier needs additional information from the covered 
individual to make a decision, it must:
    (i) Specifically identify the information needed;
    (ii) State the reason the information is required to make a decision 
on the claim;
    (iii) Specify the time limit (60 days after the date of the 
Carrier's request) for submitting the information; and
    (iv) State the consequences of failure to respond within the time 
limit specified, as set out in paragraph (b)(2) of this section.
    (d) Carrier determinations. The Carrier must provide written notice 
to the covered individual of its determination. If the Carrier affirms 
the initial denial, the notice must inform the covered individual of:
    (1) The specific and detailed reasons for the denial;
    (2) The covered individual's right to request a review by OPM; and
    (3) The requirement that requests for OPM review must be received 
within 90 days after the date of the Carrier's denial notice and include 
a copy of the denial notice as well as documents to support the covered 
individual's position.
    (e) OPM review. (1) If the covered individual seeks further review 
of the denied claim, the covered individual must make a request to OPM 
to review the Carrier's decision. Such a request to OPM must be made:
    (i) Within 90 days after the date of the Carrier's notice to the 
covered individual that the denial was affirmed; or
    (ii) If the Carrier fails to respond to the covered individual as 
provided in paragraph (b)(2) of this clause, within 120 days after the 
date of the covered individual's timely request for reconsideration by 
the Carrier; or
    (iii) Within 120 days after the date the Carrier requests additional 
information from the covered individual, or the date the covered 
individual is notified that the Carrier is requesting additional 
information from a provider. OPM may extend the time limit for a covered 
individual's request for OPM review when the covered individual shows he 
or she was not notified of the time limit or was prevented by 
circumstances beyond his or her control from submitting the request for 
OPM review within the time limit.
    (2) In reviewing a claim denied by the Carrier, OPM may:
    (i) Request that the covered individual submit additional 
information;
    (ii) Obtain an advisory opinion from an independent physician;
    (iii) Obtain any other information as may in its judgment be 
required to make a determination; or
    (iv) Make its decision based solely on the information the covered 
individual provided with his or her request for review.
    (3) When OPM requests information from the Carrier, the Carrier must 
release the information within 30 days after the date of OPM's written 
request unless a different time limit is specified by OPM in its 
request.
    (4) Within 90 days after receipt of the request for review, OPM will 
either:
    (i) Give a written notice of its decision to the covered individual 
and the Carrier; or
    (ii) Notify the individual of the status of the review. If OPM does 
not receive requested evidence within 15 days after expiration of the 
applicable time limit in paragraph (e)(3) of this clause, OPM may make 
its decision based solely on information available to it at that time 
and give a written notice of its decision to the covered individual and 
to the Carrier.
    (f) OPM, upon its own motion, may reopen its review if it receives 
evidence that was unavailable at the time of its original decision.
    (g) Court review. (1) A suit to compel enrollment under Sec. 890.102 
of Title 5, Code of Federal Regulations, must be brought against the 
employing office that made the enrollment decision.
    (2) A suit to review the legality of OPM's regulations under this 
part must be brought against the Office of Personnel Management.
    (3) Federal Employees Health Benefits (FEHB) carriers resolve FEHB 
claims under authority of Federal statute (chapter 89, title 5, United 
States Code). A covered individual may seek judicial review of OPM's 
final action on the denial of a health benefits claim. A legal action to 
review final action by OPM involving such denial of health benefits must 
be brought against OPM and not against the Carrier or the Carrier's 
subcontractors. The recovery in such a suit shall be limited to a court 
order directing OPM to require the Carrier to pay the amount of benefits 
in dispute.
    (4) An action under paragraph (3) of this clause to recover on a 
claim for health benefits:
    (i) May not be brought prior to exhaustion of the administrative 
remedies provided in paragraphs (a) through (f) of this clause;
    (ii) May not be brought later than December 31 of the 3rd year after 
the year in which the care or service was provided; and
    (iii) Will be limited to the record that was before OPM when it 
rendered its decision affirming the Carrier's denial of benefits.

                             (End of clause)

[61 FR 15198, Apr. 5, 1996, as amended at 62 FR 47576, Sept. 10, 1997]



Sec. 1652.204-73  Taxpayer Identification Number.

    As prescribed in 1604.970, insert the following clause.

                Taxpayer Identification Number (JAN 2000)

    (a) Definitions.

[[Page 151]]

    Common parent, as used in this provision, means that corporate 
entity that owns or controls an affiliated group of corporations that 
files its Federal income tax returns on a consolidated basis, and of 
which the Carrier is a member.
    Taxpayer Identification Number (TIN), as used in this provision, 
means the number required by the Internal Revenue Service (IRS) to be 
used by the Carrier in reporting income tax and other returns.
    (b) The Carrier must submit the information required in paragraphs 
(d) through (f) of this clause to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the IRS. The Carrier is subject to the payment reporting requirements 
described in Federal Acquisition Regulation (FAR) 4.904. The Carrier's 
failure or refusal to furnish the information will result in payment 
being withheld until the TIN number is provided.
    (c) The Government may use the TIN to collect and report on any 
delinquent amounts arising out of the Carrier's relationship with the 
Government (31 U.S.C. 7701(c)(3)). The TIN provided hereunder may be 
matched with IRS records to verify its accuracy.
    (d) Taxpayer Identification Number (TIN).


Sec. TIN:------------------------
    (e) Type of organization.


Sec. [squ] Sole proprietorship;

Sec. [squ] Partnership;

Sec. [squ] Corporate entity (not tax-exempt);

Sec. [squ] Corporate entity (tax-exempt);

Sec. [squ] Other ------------------------.

    (f) Common parent.


Sec. [squ] Carrier is not owned or controlled by a common parent as 
          defined in paragraph (a) of this clause.

Sec. [squ] Name and TIN of common parent:


Sec. Name ------------------------

Sec. TIN------------------------

                             (End of clause)

[65 FR 36386, June 8, 2000]



Sec. 1652.215-70  Rate Reduction for Defective Pricing or Defective Cost 
          or Pricing Data.

    As prescribed in 1615.804-72, the following clause shall be inserted 
in FEHBP contracts exceeding the threshold at FAR 15.804-2(a)(1) that 
are based on a combination of cost and price analysis (community rated):

 Rate Reduction for Defective Pricing or Defective Cost or Pricing Data 
                               (JAN 2000)

    (a) If any rate established in connection with this contract was 
increased because (1) the Carrier submitted, or kept in its files in 
support of the FEHBP rate, cost or pricing data that were not complete, 
accurate, or current as certified in the Certificate of Accurate Cost or 
Pricing Data (FEHBAR 1615.804-70); (2) the Carrier submitted, or kept in 
its files in support of the FEHBP rate, cost or pricing data that were 
not accurate as represented in the rate proposal documents; (3) the 
Carrier developed FEHBP rates with a rating methodology and structure 
inconsistent with that used to develop rates for similarly sized 
subscriber groups (see FEHBAR 1602.170-13) as certified in the 
Certificate of Accurate Cost or Pricing Data for Community Rated 
Carriers; or (4) the Carrier submitted or, or kept in its files in 
support of the FEHBP rate, data or information of any description that 
were not complete, accurate, and current--then, the rate shall be 
reduced in the amount by which the price was increased because of the 
defective data or information.
    (b)(1) If the Contracting Officer determines under paragraph (a) of 
this clause that a price or cost reduction should be made, the Carrier 
agrees not to raise the following matters as a defense:
    (i) The Carrier was a sole source supplier or otherwise was in a 
superior bargaining position and thus the price of the contract would 
not have been modified even if accurate, complete, and current cost or 
pricing data had been submitted or maintained and identified.
    (ii) The Contracting Officer should have known that the cost or 
pricing data in issue were defective even though the Carrier took no 
affirmative action to bring the character of the data to the attention 
of the Contracting Officer.
    (iii) The contract was based on an agreement about the total cost of 
the contract and there was no agreement about the cost of each item 
procured under the contract.
    (iv) The Carrier did not submit or keep in its files a Certificate 
of Current Cost or Pricing Data.
    (2)(i) Except as prohibited by subdivision (b)(2)(ii) of this 
clause, an offset in an amount determined appropriate by the Contracting 
Officer based upon the facts shall be allowed against the amount of a 
contract price reduction if--
    (A) The Carrier certifies to the Contracting Officer that, to the 
best of the Carrier's knowledge and belief, the Carrier is entitled to 
the offset in the amount requested; and
    (B) The Carrier proves that the cost or pricing data were available 
before the date of agreement on the price of the contract (or

[[Page 152]]

price of the modification) and that the data were not submitted before 
such date.
    (ii) An offset shall not be allowed if--
    (A) The understated data was known by the Carrier to be understated 
when the Certificate of Current Cost or Pricing Data was signed; or
    (B) The Government proves that the facts demonstrate that the 
contract price would not have increased in the amount to be offset even 
if the available data had been submitted before the date of agreement on 
price.
    (c) When the Contracting Officer determines that the rates shall be 
reduced and the Government is thereby entitled to a refund, the Carrier 
shall be liable to and shall pay the FEHB Fund at the time the 
overpayment is repaid--
    (1) Simple interest on the amount of the overpayment from the date 
the overpayment was paid from the FEHB Fund to the Carrier until the 
date the overcharge is liquidated. In calculating the amount of interest 
due, the quarterly rate determinations by the Secretary of the Treasury 
under the authority of 26 U.S.C. 6621(a)(2) applicable to the periods 
the overcharge was retained by the Carrier shall be used; and,
    (2) A penalty equal to the amount of overpayment, if the Carrier 
knowingly submitted cost or pricing data which was incomplete, 
inaccurate, or noncurrent.
    (d) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
shall not be used to determine the reasonableness of the Carrier's 
demonstration project premium rates. The Carrier's rates shall not be 
adjusted for equivalency with SSSG rating methodologies. The Carrier 
shall benchmark premiums against adjusted community rates if available, 
Medigap offerings, or other similar products.
    (2) The Carrier shall account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000]



Sec. 1652.215-71  Investment Income.

    As prescribed in 1615.805-71, the following clause shall be inserted 
in all FEHBP contracts based on cost analysis:

                      Investment Income (JAN 1998)

    (a) The Carrier shall invest and reinvest all FEHB funds on hand 
that are in excess of the funds needed to promptly discharge the 
obligations incurred under this contract. The Carrier shall seek to 
maximize investment income with prudent consideration to the safety and 
liquidity of investments.
    (b) All investment income earned on FEHB funds shall be credited to 
the Special Reserve on behalf of the FEHBP.
    (c) When the Contracting Officer concludes that the Carrier failed 
to comply with paragraph (a) or (b) of this clause, the Carrier shall 
credit the Special Reserve with investment income that would have been 
earned, at the rate(s) specified in paragraph (f) of this clause, had it 
not been for the Carrier's noncompliance. ``Failed to comply with 
paragraph (a) or (b)'' means: (1) Making any charges against the 
contract which are not allowable, allocable, or reasonable; or (2) 
failing to credit any income due the contract and/or failing to place 
excess funds, including subscription income and payments from OPM not 
needed to discharge promptly the obligations incurred under the 
contract, refunds, credits, payments, deposits, investment income 
earned, uncashed checks, or other amounts owed the Special Reserve, in 
income producing investments and accounts.
    (d) Investment income lost as a result of unallowable, unallocable, 
or unreasonable charges against the contract shall be paid from the 1st 
day of the contract term following the contract term in which the 
unallowable charge was made and shall end on the earlier of: (1) The 
date the amounts are returned to the Special Reserve (or the Office of 
Personnel Management); (2) the date specified by the Contracting 
Officer; or, (3) the date of the Contracting Officer's Final Decision.
    (e) Investment income lost as a result of failure to credit income 
due the contract or failure to place excess funds in income producing 
investments and accounts shall be paid from the date the funds should 
have been invested or appropriate income was not credited and shall end 
on the earlier of: (1) The date the amounts are returned to the Special 
Reserve (or the Office of Personnel Management); (2) the date specified 
by the Contracting Officer; or, (3) the date of the Contracting 
Officer's Final Decision.
    (f) The Carrier shall credit the Special Reserve for income due in 
accordance with this clause. All lost investment income payable shall 
bear simple interest at the quarterly

[[Page 153]]

rate determined by the Secretary of the Treasury under the authority of 
26 U.S.C. 6621(a)(2) applicable to the periods in which the amount 
becomes due, as provided in paragraphs (d) and (e) of this clause.
    (g) The Carrier shall incorporate this clause into agreements with 
underwriters of the Carrier's FEHB plan and shall substitute 
``underwriter'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 62 FR 47577, Sept. 10, 1997]



Sec. 1652.216-70  Accounting and price adjustment.

    As prescribed in section 1616.7001, the following clause shall be 
inserted in all FEHBP contracts based on a combination of cost and price 
analysis (community rated).

               Accounting and Price Adjustment (JAN 2000)

    (a) Annual Accounting Statement. The Carrier, not later than 90 days 
after the end of each contract period, shall furnish to OPM for that 
contract period an accounting of its operations under the contract. The 
accounting shall be in the form prescribed by OPM.
    (b) Adjustment. (1) This contract is community rated as defined in 
FEHBAR 1602.170-2.
    (2) The subscription rates agreed to in this contract shall be 
equivalent to the subscription rates given to the carrier's similarly 
sized subscriber groups (SSSGs) as defined in FEHBAR 1602.170-13.
    (3) If, at the time of the rate reconciliation, the subscription 
rates are found to be lower than the equivalent rates for the lower of 
the two SSSGs, the carrier may include an adjustment to the Federal 
group's rates for the next contract period.
    (4) If, at the time of the rate reconciliation, the subscription 
rates are found to be higher than the equivalent rates for the lower of 
the two SSSGs, the Carrier shall reimburse the Fund, for example, by 
reducing the FEHB rates for the next contract term to reflect the 
difference between the estimated rates and the rates which are derived 
using the methodology of the lower rated SSSG.
    (5) No upward adjustment in the rate established for this contract 
will be allowed or considered by the Government or will be made by the 
Carrier in this or in any other contract period on the basis of actual 
costs incurred, actual benefits provided, or actual size or composition 
of the FEHBP group during this contract period.
    (6) In the event this contract is not renewed, neither the 
Government nor the Carrier shall be entitled to any adjustment or claim 
for the difference between the subscription rates prior to rate 
reconciliation and the actual subscription rates.
    (c) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
shall not be used to determine the reasonableness of the Carrier's 
demonstration project premium rates. The Carrier's rates shall not be 
adjusted for equivalency with SSSG rating methodologies. The Carrier 
shall benchmark premiums against adjusted community rates if available, 
Medigap offerings, or other similar products.
    (2) The Carrier shall account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000]



Sec. 1652.216-71  Accounting and Allowable Cost.

    As prescribed in section 1616.7002, the following clause shall be 
inserted in all FEHBP contracts based on cost analysis (experience 
rated).

      Accounting and Allowable Cost (FEHBAR 1652.216-71) (JAN 2000)

    (a) Annual Accounting Statements. (1) The Carrier shall furnish to 
OPM an accounting of its operations under the contract. In preparing the 
accounting, the Carrier shall follow the reporting requirements and 
statement formats prescribed by OPM in the OPM Annual and Fiscal Year 
Financial Reporting Instructions.
    (2) The Carrier shall have its Annual Accounting Statements and that 
of its underwriter, if any, audited in accordance with the FEHBP 
Experienced-Rated Carrier and Service Organization Audit Guide (Guide). 
The Carrier shall submit the audit report and the Annual Accounting 
Statements to OPM in accordance with the requirements of the Guide.
    (3) Based on the results of either the independent audit prescribed 
by the Guide or a Government audit, OPM may require the

[[Page 154]]

Carrier adjust its annual accounting statements (i) by amounts found not 
to constitute actual, allowable, allocable and reasonable costs; or (ii) 
to reflect prior overpayments or underpayments.
    (4) The Carrier shall develop corrective action plans to resolve 
audit findings identified in audits that were performed in accordance 
with the Guide. The corrective action plans will be prepared in 
accordance with and as defined by the Guide.
    (b) Definition of costs. (1) The Carrier may charge a cost to the 
contract for a contract term if the cost is actual, allowable, 
allocable, and reasonable. In addition, the Carrier must:
    (i) on request, document and make available accounting support for 
the cost to justify that the cost is actual, reasonable and necessary; 
and
    (ii) determine the cost in accordance with: (A) the terms of this 
contract, and (B) Subpart 31.2 of the Federal Acquisition Regulation 
(FAR) and Subpart 1631.2 of the Federal Employees Health Benefits 
Program Acquisition Regulation (FEHBAR) applicable on the first day of 
the contract period.
    (2) In the absence of specific contract terms to the contrary, the 
Carrier shall classify contract costs in accordance with the following 
criteria:
    (i) Benefits. Benefit costs consist of payments made and liabilities 
incurred for covered health care services on behalf of FEHBP subscribers 
less any refunds, rebates, allowances or other credits received.
    (ii) Administrative expenses. Administrative expenses consist of all 
actual, allowable, allocable and reasonable expenses incurred in the 
adjudication of subscriber benefit claims or incurred in the Carrier's 
overall operation of the business. Unless otherwise stated in the 
contract, administrative expenses include, in part: all taxes (excluding 
premium taxes, as provided in section 1631.205-41), insurance and 
reinsurance premiums, medical and dental consultants used in the 
adjudication process, concurrent or managed care review when not billed 
by a health care provider and other forms of utilization review, the 
cost of maintaining eligibility files, legal expenses incurred in the 
litigation of benefit payments and bank charges for letters of credit. 
Administrative expenses exclude the cost of Carrier personnel, 
equipment, and facilities directly used in the delivery of health care 
services, which are benefit costs, and the expense of managing the FEHBP 
investment program which is a reduction of investment income earned.
    (iii) Investment income. While compliance with the checks presented 
letter of credit methodology will minimize funds on hand, the Carrier 
shall invest and reinvest all funds on hand, including any in the 
Special Reserve or any attributable to the reserve for incurred but 
unpaid claims, which are in excess of the funds needed to discharge 
promptly the obligations incurred under the contract. Investment income 
represents the net amount earned by the Carrier after deducting 
investment expenses. Investment expenses are those actual, allowable, 
allocable, and reasonable contract costs that are attributable to the 
investment of funds, such as consultant or management fees.
    (iv) Other charges. (A) Mandatory statutory reserve. Charges for 
mandatory statutory reserves are not allowable unless specifically 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the Carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the Carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
Carrier, the Carrier shall return to the FEHBP a pro rata share based 
upon FEHBP's contribution to the total Carrier's set aside shall be 
returned to the FEHBP in accordance with FAR 31.201-5.
    (B) Premium taxes. (1) When the term ``premium taxes'' is used in 
this contract without further definition or explanation, it means a tax, 
fee, or other monetary payment directly or indirectly imposed on FEHB 
premiums by any State, the District of Columbia, or the Commonwealth of 
Puerto Rico or by any political subdivision or other governmental 
authority of those entities, with the sole exception of a tax on net 
income or profit, if that tax, fee, or payment is applicable to a broad 
range of business activity.
    (2) For purposes of this paragraph (B), OPM has determined that the 
term ``State'' as used in 5 U.S.C. 8909(f) includes, but is not limited 
to, a territory or possession of the United States.
    (c) Certification of Accounting Statement Accuracy. (1) The Carrier 
shall certify the annual and fiscal year accounting statements in the 
form set forth in paragraph (c)(3) of this clause. The Carrier's chief 
executive officer and the chief financial officer shall sign the 
certificate.
    (2) The Carrier shall require an authorized agent of its 
underwriter, if any, also to certify the annual accounting statement.
    (3) The certificate required shall be in the following form:

[[Page 155]]

             Certification of Accounting Statement Accuracy

    This is to certify that I have reviewed this accounting statement 
and to the best of my knowledge and belief:
    1. The statement was prepared in conformity with the guidelines 
issued by the Office of Personnel Management and fairly presents the 
financial results of this reporting period in conformity with those 
guidelines.
    2. The costs included in the statement are actual, allowable, 
allocable, and reasonable in accordance with the terms of the contract 
and with the cost principles of the Federal Employees Health Benefits 
Acquisition Regulation and the Federal Acquisition Regulation;
    3. Income, rebates, allowances, refunds and other credits made or 
owed in accordance with the terms of the contract and applicable cost 
principles have been included in the statement;
    4. If applicable, the letter of credit account was managed in 
accordance with 5 CFR part 890, 48 CFR chapter 16, and OPM guidelines.

Carrier Name:___________________________________________________________


Sec. Name of Chief Executive Officer:

Sec. (Type or Print)
________________________________________________________________________


Sec. Name of Chief Financial Officer:
________________________________________________________________________


Sec. Signature of Chief Executive Officer:
________________________________________________________________________


Sec. Signature of Chief Financial Officer:
________________________________________________________________________

Date Signed:____________________________________________________________

Date Signed:____________________________________________________________

Underwriter:____________________________________________________________


Sec. Name and Title of Responsible Corporate Official:

Sec. (Type or Print:)
________________________________________________________________________


Sec. Signature of Responsible Corporate Official:
________________________________________________________________________

Date Signed:____________________________________________________________

(End of Certificate)

    (d) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108).
    (1) The Carrier shall draw funds from its Letter of Credit (LOC) 
account to pay demonstration project benefits costs in the same manner 
as it does for benefits costs incurred by regular FEHB members. The 
Carrier shall account separately for health benefits charges paid using 
demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity. This same percentage will also be used to 
determine the amount of the Carrier's service charge that will be 
allocated to the demonstration project.
    (2) The Carrier shall submit a separate annual accounting statement 
and monthly incurred claims report for demonstration project experience.

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 56 FR 57497, Nov. 12, 1991; 57 
FR 14360, Apr. 20, 1992; 62 FR 47577, Sept. 10, 1997; 64 FR 36273, July 
6, 1999; 65 FR 36387, June 8, 2000]



Sec. 1652.222-70  Notice of significant events.

    As prescribed in 1622.103-70, the following clause shall be inserted 
in all FEHBP contracts.

                 Notice of Significant Events (JAN 1991)

    (a) The Carrier agrees to notify OPM of any Significant Event within 
ten (10) working days after the Carrier becomes aware of it. As used in 
this section, a Significant Event is any occurrence or anticipated 
occurrence that might reasonably be expected to have a material effect 
upon the Carrier's ability to meet its obligations under this contract, 
including, but not limited to, any of the following:
    (1) Disposal of major assets;
    (2) Loss of 15% or more of the Carrier's overall membership;
    (3) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Carrier's obligations under this contract;
    (4) Addition or termination of provider agreements;
    (5) Any changes in underwriters, reinsurers, or participating plans;
    (6) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;
    (7) The withdrawal of, or notice of intent to withdraw, State 
licensing, HHS qualification, or any other status under Federal or State 
law;
    (8) Default on a loan or other financial obligation;
    (9) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Carrier's facilities or facilities used by the Carrier in the 
performance of the contract;
    (10) Any change in its charter, constitution, or by-laws which 
affects any provision

[[Page 156]]

of this contract or the Carrier's participation in the Federal Employees 
Health Benefits Program; or
    (11) Any significant changes in policies and procedures or 
interpretations of the contract or brochure which would affect the 
benefits available under the contract or the costs charged to the 
contract.
    (12) Any fraud, embezzlement or misappropriation of FEHB funds; or
    (13) Any written exceptions, reservations or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Carrier to provide an opinion on its annual 
financial statements.
    (b) Upon learning of a Significant Event OPM may institute action, 
in proportion to the seriousness of the event, to protect the interest 
of Members, including, but not limited to--
    (1) Directing the Carrier to take corrective action;
    (2) Suspending new enrollments under this contract;
    (3) Advising Enrollees of the Significant Event and providing them 
an opportunity to transfer to another plan;
    (4) Withholding payment of subscription income or restricting access 
to the Carrier's Letter of Credit account.
    (5) Terminating the enrollment of those enrollees who, in the 
judgment of OPM, would be adversely affected by the Significant Event; 
or
    (6) Terminating this contract pursuant to section 1.15, renewal and 
withdrawal of approval.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (d) The Carrier shall insert this clause in any subcontract or 
subcontract modification if both the amount of the subcontract or 
modification charged to the FEHBP (or, in the case of a community rated 
carrier, applicable to the FEHBP) exceeds $100,000 and the amount of the 
subcontract or modification to be charged to the FEHBP (or, in the case 
of a community rated carrier, applicable to the FEHBP) exceeds 25 
percent of the total cost of the subcontract or modification. If the 
Carrier is a CMP, it shall also insert this clause in all provider 
agreements over $25,000. If the Carrier is not a CMP, it shall also 
insert this clause in the contract with its underwriter, if any. The 
Carrier shall substitute ``Contractor'' or other appropriate reference 
for the term ``Carrier.''

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



Sec. 1652.224-70  Confidentiality of records.

    As prescribed in 1624.104, the following clause shall be inserted in 
all FEHBP contracts:

                  Confidentiality of Records (JAN 1991)

    (a) The Carrier shall use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published annually in the Federal Register as a part of OPM's notice 
of systems of records.
    (b) The Carrier shall also hold all medical records, and information 
relating thereto, of Federal subscribers and family members confidential 
except as follows:
    (1) As may be reasonably necessary for the administration of this 
contract;
    (2) As authorized by the patient or his or her guardian;
    (3) As disclosure is necessary to permit Government officials having 
authority to investigate and prosecute alleged civil or criminal 
actions;
    (4) As necessary to audit the contract;
    (5) As necessary to carry out the coordination of benefits 
provisions of this contract; and
    (6) For bona fide medical research or educational purposes. Release 
of information for medical research or educational purposes shall be 
limited to aggregated information of a statistical nature that does not 
identify any individual by name, social security number, or any other 
identifier unique to an individual.
    (c) If the carrier uses medical records for the administration of 
the contract, or for bona fide medical research or educational purposes, 
it shall so state in the plan's brochure.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



Sec. 1652.229-70  Taxes--Foreign Negotiated benefits contracts.

    As prescribed in section 1629.402, the following clause shall be 
inserted in all FEHBP contracts performed outside the United States, its 
possessions, and Puerto Rico:

         Taxes--Foreign Negotiated Benefits Contracts (JAN 1998)

    (a) To the extent that this contract provides for performing 
services outside the United States, its possessions, and Puerto Rico, 
this clause applies in lieu of any Federal, State, and local taxes 
clause of the contract.

[[Page 157]]

    (b) ``Contract date,'' as used in this clause, means the effective 
date of this contract or modification.
    ``Country concerned,'' as used in this clause, means any country, 
other than the United States, its possessions, and Puerto Rico, in which 
expenditures under this contract are made.
    ``Tax'' and ``taxes,'' as used in this clause, include fees and 
charges for doing business that are levied by the government of the 
country concerned or by its political subdivisions.
    ``All applicable taxes and duties,'' as used in this clause, means 
all taxes and duties, in effect on the contract date, that the taxing 
authority is imposing and collecting on the transactions covered by this 
contract, pursuant to written ruling or regulation in effect on the 
contract date.
    ``After-imposed tax,'' as used in this clause, means any new or 
increased tax or duty, or tax that was exempted or excluded on the 
contract date but whose exemption was later revoked or reduced during 
the contract period, other than excepted tax, on the transactions 
covered by this contract that the Carrier is required to pay or bear as 
the result of legislative, judicial, or administrative action taking 
effect after the contract date.
    ``After-relieved tax,'' as used in this clause, means any amount of 
tax or duty, other than an excepted tax, that would otherwise have been 
payable on the transactions covered by this contract, but which the 
Carrier is not required to pay or bear, or for which the Carrier obtains 
a refund, as the result of legislative, judicial, or administrative 
action taking effect after the contract date.
    ``Excepted tax,'' as used in this clause, means social security or 
other employment taxes, net income and franchise taxes, excess profits 
taxes, capital stock taxes, transportation taxes, unemployment 
compensation taxes, and property taxes. ``Excepted tax'' does not 
include gross income taxes levied on or measured by sales or receipts 
from sales covered by this contract, or any tax assessed on the 
Carrier's possession of, interest in, or use of property, title to which 
is in the U.S. Government.
    (c) Unless otherwise provided in this contract, the contract price 
includes all applicable taxes and duties, except taxes and duties that 
the Government of the United States and the government of the country 
concerned have agreed shall not be applicable to expenditures in such 
country by or on behalf of the United States.
    (d) The contract price shall be increased by the amount of any 
after-imposed tax or of any tax or duty specifically excluded from the 
contract price by a provision of this contract that the Carrier is 
required to pay or bear, including any interest or penalty, if the 
Carrier states in writing that the contract price does not include any 
contingency for such tax and if liability for such tax, interest, or 
penalty was not incurred through the Carrier's fault, negligence, or 
failure to follow instructions of the Contracting Officer or to comply 
with the provisions of paragraph (i) below.
    (e) The contract price shall be decreased by the amount of any 
after-relieved tax, including any interest or penalty. The Government of 
the United States shall be entitled to interest received by the Carrier 
incident to a refund of taxes to the extent that such interest was 
earned after the Carrier was paid by the Government of the United States 
for such taxes. The Government of the United States shall be entitled to 
repayment of any penalty refunded to the Carrier to the extent that the 
penalty was paid by the Government.
    (f) The contract price shall be decreased by the amount of any tax 
or duty, other than an excepted tax, that was included in the contract 
and that the Carrier is required to pay or bear, or does not obtain a 
refund of, through the Carrier's fault, negligence, or failure to follow 
instructions of the Contracting Officer or to comply with the provisions 
of paragraph (i) below.
    (g) No adjustment shall be made in the contract price under this 
clause unless the amount of the adjustment exceeds $250.
    (h) If the Carrier obtains a reduction in tax liability under the 
United States Internal Revenue Code (Title 26, U.S. Code) because of the 
payment of any tax or duty that either was included in the contract 
price or was the basis of an increase in the contract price, the amount 
of the reduction shall be paid or credited to the Government of the 
United States as the Contracting Officer directs.
    (i) The Carrier shall take all reasonable action to obtain exemption 
from or refund of any taxes or duties, including interest or penalty, 
from which the United States Government, the Carrier, any subcontractor, 
or the transactions covered by this contract are exempt under the laws 
of the country concerned or its political subdivisions or which the 
governments of the United States and of the country concerned have 
agreed shall not be applicable to expenditures in such country by or on 
behalf of the United States.
    (j) The Carrier shall promptly notify the Contracting Officer of all 
matters relating to taxes or duties that reasonably may be expected to 
result in either an increase or decrease in the contract price and shall 
take appropriate action as the Contracting Officer directs. The contract 
price shall be equitably adjusted to cover the costs of action taken by 
the Carrier at the direction of the Contracting Officer, including any 
interest, penalty, and reasonable attorneys' fees.

[[Page 158]]

                             (End of clause)

[62 FR 47577, Sept. 10, 1997]



Sec. 1652.232-70  Payments--community-rated contracts.

    As prescribed in 1632.171, the following clause shall be inserted in 
all community-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM, amounts assessed under FEHBAR 1609.7101-2, and amounts 
for obligations due pursuant to paragraph (b) of this clause, plus any 
payments made by OPM from the Contingency Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be due and payable not 
later than thirty days after receipt by the Fund. The Contracting 
Officer may authorize special non-recurring payments from the 
Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the reserves held by the Carrier are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier may, at its discretion, request funds from the 
Employees Health Benefits Fund to mitigate excessive costs in relation 
to premiums. If the Carrier requests funds from the Employees Health 
Benefits Fund to mitigate risk, it will be required to perform annual 
reconciliations for the duration of the demonstration project. OPM will 
reimburse the Carrier's costs significantly in excess of the premiums 
first from the Carrier's demonstration project Contingency Reserve and 
then from the Employees Health Benefits Fund Administrative Reserve. 
After the final accounting, OPM will place any surplus demonstration 
project premiums in the regular Contingency Reserves of all carriers 
continuing in the FEHB Program for the contract year following the year 
in which the demonstration project ends. Credit will be in proportion to 
the amount of subscription charges paid and accrued to each carrier's 
plan for the last year of the demonstration project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14360, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 36388, 
June 8, 2000]



Sec. 1652.232-71  Payments--experience-rated contracts.

    As prescribed in 1632.172, the following clause shall be inserted in 
all experience-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the Plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM and amounts for obligations due pursuant to paragraph 
(b) of this clause, plus any payments made by OPM from the Contingency 
Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be made available for 
carrier drawdown not later than thirty days after receipt by the Fund. 
The Contracting Officer may authorize special non-recurring payments 
from the Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent

[[Page 159]]

that the Carrier reserves are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier will perform a final reconciliation of revenue and 
costs for the demonstration project group at the end of the 
demonstration project. OPM will reimburse the Carrier's costs in excess 
of the premiums first from the Carrier's demonstration project 
Contingency Reserve and then from the Employees Health Benefits Fund 
Administrative Reserve. After the final accounting, OPM will place any 
surplus demonstration project premiums in the regular Contingency 
Reserves of all carriers continuing in the FEHB Program for the contract 
year following the year in which the demonstration project ends. Credit 
will be in proportion to the amount of subscription charges paid and 
accrued to each carrier's plan for the last year of the demonstration 
project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14361, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 64 FR 36274, 
July 6, 1999; 65 FR 36388, June 8, 2000]



Sec. 1652.232-72  Non-commingling of FEHBP funds.

    As prescribed in 1632.772, the following clause shall be inserted in 
all contracts based on cost analysis.

                   Non-Commingling of Funds (JAN 1991)

    (a) The Carrier and/or its underwriter shall keep all FEHBP funds 
for this contract (cash and investments) physically separate from funds 
obtained from other sources. Accounting for such FEHBP funds shall not 
be based on allocations or other sharing mechanisms and shall agree with 
the Carrier's accounting records.
    (b) In certain instances the physical separation of FEHBP funds may 
not be practical or desirable. In such cases, the Carrier may request a 
waiver from this requirement from the Contracting Officer. The waiver 
shall be requested in advance and the Carrier shall demonstrate that 
accounting techniques have been established that will clearly measure 
FEHBP cash and investment income (i.e., subsidiary ledgers). 
Reconciliations between amounts reported and actual amounts shown in 
accounting records shall be provided as supporting schedules to the 
Annual Accounting Statements.
    (c) The Carrier shall incorporate this clause in all subcontracts 
that exceed $25,000 and shall substitute ``contractor'' or other 
appropriate reference for ``Carrier and/or its underwriter.''

                             (End of clause)

[52 FR 16044, May 1, 1987. Redesignated at 53 FR 51784, Dec. 23, 1988, 
and amended at 55 FR 27418, July 2, 1990]



Sec. 1652.232-73  Approval for the Assignment of Claims.

    As prescribed in 1632.806-70, the following clause shall be inserted 
in all FEHBP contracts:

              Approval for Assignment of Claims (JAN 1991)

    (a) Notwithstanding the provisions of section 5.35, (FAR 52.232-23) 
Assignment of Claims, the Carrier shall not make any assignment under 
the Assignment of Claims Act without the prior written approval of the 
Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment shall be in force only for a 
period f 1 year from the date of the Contracting Officer's approval. 
However, assignments may be renewed upon their expiration.

                             (End of clause)

[55 FR 27418, July 2, 1990]



Sec. 1652.243-70  Changes--Negotiated benefits contracts.

    As prescribed in section 1643.205-70, the following clause shall be 
inserted in all FEHBP contracts.

            Changes--Negotiated Benefits Contracts (JAN 1998)

    (a) The Contracting Officer may at any time, by written order, and 
without notice to the sureties, if any, make changes within the general 
scope of this contract in any one or more of the following:
    (1) Description of services to be performed.
    (2) Time of performance (i.e., hours of the day, days of the week, 
etc.).
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, whether or not changed by the order, the Contracting 
Officer shall make an equitable adjustment in the contract price, the 
delivery schedule, or both, and shall modify the contract.
    (c) The Carrier must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.

[[Page 160]]

    (d) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Carrier from proceeding with the contract as changed.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



Sec. 1652.244-70  Subcontracts.

    As prescribed by 1644.270, the following clause shall be inserted in 
all FEHBP contracts based on cost analysis (experience rated):

                         Subcontracts (JAN 1998)

    (a) The Carrier shall notify the Contracting Officer reasonably in 
advance of entering into any subcontract, or any subcontract 
modification, or as otherwise specified by this contract, if both the 
amount of the subcontract or modification charged to the FEHB Program 
exceeds $100,000 and is at least 25 percent of the total cost of the 
subcontract.
    (b) The advance notification required by paragraph (a) of this 
clause shall include the information specified below:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontract and an explanation of 
why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the Carrier's cost or price 
analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and Certificate of Current Cost or Pricing Data, if 
required by other contract provisions;
    (6) The subcontractor's Disclosure Statement or Certificate relating 
to Cost Accounting Standards when such data are required by other 
provisions of this contract; and
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) The reason cost or pricing data were or were not required;
    (iv) The extent, if any, to which the Carrier did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;
    (v) The extent to which it was recognized in the negotiation that 
the subcontractor's cost or pricing data were not accurate, complete, or 
current; the action taken by the Carrier and the subcontractor; and the 
effect of any such defective data on the total price negotiated;
    (vi) The reasons for any significant difference between the 
Carrier's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan 
when incentives are used. The explanation shall identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The Carrier shall obtain the Contracting Officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
Officer may ratify in writing any such subcontract. Ratification shall 
constitute the consent of the Contracting Officer.
    (d) The Contracting Officer may waive the requirement for advance 
notification and consent required by paragraphs (a), (b), and (c) of 
this clause where the Carrier and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting Officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
plan's rates that were reviewed and approved by the Contracting Officer 
during negotiation of the contract or contract renewal.
    (e) Unless the consent or approval specifically provides otherwise, 
consent by the Contracting Officer to any subcontract shall not 
constitute a determination (1) of the acceptability of any subcontract 
terms or conditions; (2) of the allowability of any cost under this 
contract; or (3) to relieve the Carrier of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract shall provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts shall not exceed the fee 
limitations in FAR 15.404-4(c)(4)(i). Any profit or fee payable under a 
subcontract shall be in accordance with the provision of subpart 3.7, 
Service charge.
    (g) The Carrier shall give the Contracting Officer immediate written 
notice of any action or suit filed and prompt notice of any claim made 
against the Carrier by any subcontractor or vendor that, in the opinion 
of the Carrier, may result in litigation related in any way to this 
contract with respect to which the Carrier may be entitled to 
reimbursement from the Government.

[[Page 161]]

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 62 
FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998]



Sec. 1652.245-70  Government property (negotiated benefits contracts).

    As prescribed in section 1645.303-70, the following clause shall be 
inserted in all FEHBP contracts.

     Government Property (Negotiated Benefits Contracts) (JAN 1998)

    (a) Government-furnished property. (1) The Government shall deliver 
to the Carrier, for use in connection with and under the terms of this 
contract, the Government-furnished property described in this contract 
together with any related data and information that the Carrier may 
request and is reasonably required for the intended use of the property 
(hereinafter referred to as ``Government-furnished property'').
    (2) The delivery or performance dates for this contract are based 
upon the expectation that Government-furnished property suitable for use 
(except for property furnished ``as-is'') will be delivered to the 
Carrier at the times stated in this contract or, if not so stated, in 
sufficient time to enable the Carrier to meet the contract's performance 
dates.
    (3) If Government-furnished property is received by the Carrier in a 
condition not suitable for the intended use, the Carrier shall, upon 
receipt of it, notify the Contracting Officer, detailing the facts, and, 
as directed by the Contracting Officer and at Government expense, either 
repair, modify, return, or otherwise dispose of the property. After 
completing the directed action and upon written request of the Carrier, 
the Contracting Officer shall make an equitable adjustment as provided 
in paragraph (h) of this clause.
    (b) Changes in Government-furnished property. (1) The Contracting 
Officer may, by written notice, (i) decrease the Government-furnished 
property provided or to be provided under this contract, or (ii) 
substitute other Government-furnished property for the property to be 
provided by the Government, or to be acquired by the Carrier for the 
Government, under this contract. The Carrier shall promptly take such 
action as the Contracting Officer may direct regarding the removal, 
shipment, or disposal of the property covered by such notice.
    (2) Upon the Carrier's written request, the Contracting Officer 
shall make an equitable adjustment to the contract in accordance with 
paragraph (h) of this clause, if the Government has agreed in this 
contract to make the property available for performing this contract and 
there is any--
    (i) Decrease or substitution in this property pursuant to 
subparagraph (b)(1) above; or
    (ii) Withdrawal of authority to use this property, if provided under 
any other contract or lease.
    (c) Title in Government property. (1) The Government shall retain 
title to all Government-furnished property.
    (2) All Government-furnished property and all property acquired by 
the Carrier, title to which vests in the Government under this paragraph 
(collectively referred to as ``Government property''), are subject to 
the provisions of this clause. Title to Government property shall not be 
affected by its incorporation into or attachment to any property not 
owned by the Government, nor shall Government property become a fixture 
or lose its identity as personal property by being attached to any real 
property.
    (d) Use of Government property. The Government property shall be 
used only for performing this contract, unless otherwise provided in 
this contract or approved by the Contracting Officer.
    (e) Property administration. (1) The Carrier shall be responsible 
and accountable for all Government property provided under this contract 
and shall comply with Federal Acquisition Regulation (FAR) subpart 45.5, 
as in effect on the date of this contract.
    (2) The Carrier shall establish and maintain a program for the use, 
maintenance, repair, protection, and preservation of Government property 
in accordance with sound industrial practice and the applicable 
provisions of subpart 45.5 of the FAR.
    (3) If damage occurs to Government property, the risk of which has 
been assumed by the Government under this contract, the Government shall 
replace the items or the Carrier shall make such repairs as the 
Government directs. However, if the Carrier cannot effect such repairs 
within the time required, the Carrier shall dispose of the property as 
directed by the Contracting Officer. When any property for which the 
Government is responsible is replaced or repaired, the Contracting 
Officer shall make an equitable adjustment in accordance with paragraph 
(h) of this clause.
    (4) The Carrier represents that the contract price does not include 
any amount for repairs or replacement for which the Government is 
responsible. Repair or replacement of property for which the Carrier is 
responsible shall be accomplished by the Carrier at its own expense.
    (f) Access. The Government and all its designees shall have access 
at all reasonable times to the premises in which any Government property 
is located for the purpose of inspecting the Government property.
    (g) Risk of loss. Unless otherwise provided in this contract, the 
Carrier assumes the risk of, and shall be responsible for, any loss

[[Page 162]]

or destruction of, or damage to, Government property upon its delivery 
to the Carrier. However, the Carrier is not responsible for reasonable 
wear and tear to Government property or for Government property properly 
consumed in performing this contract.
    (h) Equitable adjustment. When this clause specifies an equitable 
adjustment, it shall be made to any affected contract provision in 
accordance with the procedures of the Changes clause. When appropriate, 
the Contracting Officer may initiate an equitable adjustment in favor of 
the Government. The right to an equitable adjustment shall be the 
Carrier's exclusive remedy. The Government shall not be liable to suit 
for breach of contract for--
    (1) Any delay in delivery of Government-furnished property;
    (2) Delivery of Government-furnished property in a condition not 
suitable for its intended use;
    (3) A decrease in or substitution of Government-furnished property; 
or
    (4) Failure to repair or replace Government property for which the 
Government is responsible.
    (i) Final accounting and disposition of Government property. Upon 
completing this contract, or at such earlier dates as may be fixed by 
the Contracting Officer, the Carrier shall submit, in a form acceptable 
to the Contracting Officer, inventory schedules covering all items of 
Government property (including any resulting scrap) not consumed in 
performing this contract or delivered to the Government. The Carrier 
shall prepare for shipment, deliver f.o.b. origin, or dispose of the 
Government property as may be directed or authorized by the Contracting 
Officer. The net proceeds of any such disposal shall be credited to the 
contract price or shall be paid to the Government as the Contracting 
Officer directs.
    (j) Abandonment and restoration of Carrier's premises. Unless 
otherwise provided herein, the Government--
    (1) May abandon any Government property in place, at which time all 
obligations of the Government regarding such abandoned property shall 
cease; and
    (2) Has no obligation to restore or rehabilitate the Carrier's 
premises under any circumstances (e.g., abandonment, disposition upon 
completion of need, or upon contract completion). However, if the 
Government-furnished property is withdrawn or is unsuitable for the 
intended use, or if other Government property is substituted, then the 
equitable adjustment under paragraph (h) of this clause may properly 
include restoration or rehabilitation costs.
    (k) Communications. All communications under this clause shall be in 
writing.
    (l) Overseas contracts. If this contract is to be performed outside 
of the United States of America, its territories, or possessions, the 
words ``Government'' and ``Government-furnished'' (wherever they appear 
in this clause) shall be construed as ``United States Government'' and 
``United States Government-furnished'', respectively.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



Sec. 1652.246-70  FEHB Inspection.

    As prescribed in 1646.301, the following clause shall be inserted in 
all FEHBP contracts:

                       FEHB Inspection (JAN 1991)

    (a) The Government or its agent has the right to inspect and 
evaluate the work performed or being performed under the contract, and 
the premises where the work is being performed, at all reasonable times 
and in a manner that will not unduly delay the work. If the Government 
or its agent performs inspection or evaluation on the premises of the 
Carrier or a subcontractor, the Carrier shall furnish and require the 
subcontractor to furnish all reasonable facilities and assistance for 
the safe and convenient performance of these duties.
    (b) The Carrier shall insert this clause in all subcontracts for 
underwriting and administrative services and shall substitute 
``Contractor'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27418, July 2, 1990]



Sec. 1652.249-70  Renewal and withdrawal of approval.

    As prescribed in 1649.101-70, the following clause shall be inserted 
in all FEHBP contracts:

              Renewal and Withdrawal of Approval (JAN 1991)

    (a) Pursuant to 5 U.S.C. 8902(a), the contract renews automatically 
for a term of 1 year each January 1st, unless written notice of intent 
not to renew is given either by OPM or the Carrier not less than 60 
calendar days before the renewal date, or unless modified by mutual 
agreement.
    (b) This contract also may be terminated at other times by order of 
OPM pursuant to 5 U.S.C. 8902(e). After OPM notifies the Carrier of its 
intent to terminate the contract, OPM may take action as it deems 
necessary to protect the interests of members, including but not limited 
to--
    (1) Suspending new enrollments under the contract;

[[Page 163]]

    (2) Advising enrollees of the asserted deficiencies; and
    (3) Providing enrollees an opportunity to transfer to another Plan.
    (c) OPM may, after proper notice, terminate the contract at the end 
of the contract term if it finds that the Carrier did not have at least 
300 enrollees enrolled in its plan at any time during the two preceding 
contract terms.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 57 
FR 19388, May 6, 1992]



Sec. 1652.249-71  FEHBP termination for convenience of the government--
          negotiated benefits contracts.

    As prescribed in section 1649.101-71, the following clause shall be 
inserted in all FEHBP contracts.

FEHBP Termination for Convenience of the Government--Negotiated Benefits 
                          Contracts (JAN 1998)

    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part if the Contracting 
Officer determines that a termination is in the Government's interest. 
The Contracting Officer shall terminate by delivering to the Carrier a 
Notice of Termination specifying the extent of terminating and the 
effective date.
    (b) After receipt of a Notice of Termination, and except as directed 
by the Contracting Officer, the Carrier shall immediately proceed with 
the following obligations, regardless of any delay in determining or 
adjusting any amounts due under this clause:
    (1) Stop work as specified in the notice.
    (2) Place no further subcontracts except as necessary to complete 
the continued portion of the contract.
    (3) Terminate all subcontracts to the extent they relate to the work 
terminated.
    (4) Assign to the Government, as directed by the Contracting 
Officer, all right, title, and interest of the Carrier under the 
subcontracts terminated, in which case the Government shall have the 
right to settle or to pay any termination settlement proposal arising 
out of those terminations.
    (5) With approval or ratification to the extent required by the 
Contracting Officer, settle all outstanding liabilities and termination 
settlement proposals arising from the termination of subcontracts; the 
approval or ratification will be final for purposes of this clause.
    (6) As directed by the Contracting Officer, deliver to the 
Government any data, reports, or studies that, if the contract had been 
completed, would be required to be furnished to the Government.
    (7) Complete performance of the work not terminated.
    (c) After termination, the Carrier shall submit a final termination 
settlement proposal to the Contracting Officer in the form and with the 
certification prescribed by the Contracting Officer. The Carrier shall 
submit the proposal promptly, but no later than 1 year from the 
effective date of termination, unless extended in writing by the 
Contracting Officer upon written request of the Carrier within this 1-
year period. However, if the Contracting Officer determines that the 
facts justify it, a termination settlement proposal may be received and 
acted on after 1 year or any extension. If the Carrier fails to submit 
the proposal within the time allowed, the Contracting Officer may 
determine, on the basis of information available, the amount, if any, 
due the Carrier because of the termination and shall pay the amount 
determined.
    (d) Subject to paragraph (c) of this clause, the Carrier and the 
Contracting Officer may agree upon the whole or any part of the amount 
to be paid or remaining to be paid because of the termination. The 
amount may include a reasonable allowance for profit on work done. 
However, the agreed amount, whether under this paragraph (d) or 
paragraph (e) of this clause, exclusive of costs shown in subparagraph 
(e)(3) of this clause, may not exceed the total contract price as 
reduced by (1) the amount of payments previously made and (2) the 
contract price of work not terminated. The contract shall be modified, 
and the Carrier paid the agreed amount. Paragraph (e) of this clause 
shall not limit, restrict, or affect the amount that may be agreed upon 
to be paid under this paragraph.
    (e) If the Carrier and the Contracting Officer fail to agree on the 
whole amount to be paid because of the termination of work, the 
Contracting Officer shall pay the Carrier the amounts determined by the 
Contracting Officer as follows, but without duplication of any amounts 
agreed on under paragraph (d) above:
    (1) The contract price for completed services accepted by the 
Government not previously paid for.
    (2) The total of--
    (i) The costs incurred in the performance of the work terminated, 
including initial costs and preparatory expense allocable thereto, but 
excluding any costs attributable to services paid or to be paid under 
paragraph (e)(1) of this clause;
    (ii) The cost of settling and paying termination settlement 
proposals under terminated subcontracts that are properly chargeable to 
the terminated portion of the contract if not included in subdivision 
(e)(2)(i) of this clause; and

[[Page 164]]

    (iii) A sum, as profit on subdivision (e)(2)(i) of this clause, 
determined by the Contracting Officer under 49.202 of the Federal 
Acquisition Regulation, in effect on the date of this contract, to be 
fair and reasonable.
    (3) The reasonable costs of settlement of the work terminated, 
including--
    (i) Accounting, legal, clerical, and other expenses reasonably 
necessary for the preparation of termination settlement proposals and 
supporting data;
    (ii) The termination and settlement of subcontracts (excluding the 
amounts of such settlements); and
    (f) The cost principles and procedures of part 31 of the Federal 
Acquisition Regulation, in effect on the date of this contract, shall 
govern all costs claimed, agreed to, or determined under this clause.
    (g) The Carrier shall have the right of appeal, under the Disputes 
clause, from any determination made by the Contracting Officer under 
paragraph (c), (e), or (i) of this clause, except that if the Carrier 
failed to submit the termination settlement proposal or request for 
equitable adjustment within the time provided in paragraph (c) or (i), 
respectively, and failed to request a time extension, there is no right 
of appeal.
    (h) In arriving at the amount due the Carrier under this clause, 
there shall be deducted--
    (1) All unliquidated advance or other payments to the Carrier under 
the terminated portion of this contract;
    (2) Any claim which the Government has against the Carrier under 
this contract; and
    (i) If the termination is partial, the Carrier may file a proposal 
with the Contracting Officer for an equitable adjustment of the price(s) 
of the continued portion of the contract. The Contracting Officer shall 
make any equitable adjustment agreed upon. Any proposal by the Carrier 
for an equitable adjustment under this clause shall be requested within 
90 days from the effective date of termination unless extended in 
writing by the Contracting Officer.
    (j)(1) The Government may, under the terms and conditions it 
prescribes, make partial payments and payments against costs incurred by 
the Carrier for the terminated portion of the contract, if the 
Contracting Officer believes the total of these payments will not exceed 
the amount to which the Carrier will be entitled.
    (2) If the total payments exceed the amount finally determined to be 
due, the Carrier shall repay the excess to the Government upon demand, 
together with interest computed at the rate established by the Secretary 
of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest shall be 
computed for the period from the date the excess payment is received by 
the Carrier to the date the excess is repaid.
    (k) Unless otherwise provided in this contract or by statute, the 
Carrier shall maintain all records and documents relating to the 
terminated portion of this contract for 3 years after final settlement. 
This includes all books and other evidence bearing on the Carrier's 
costs and expenses under this contract. The Carrier shall make these 
records and documents available to the Government, at the Carrier's 
office, at all reasonable times, without any direct charge. If approved 
by the Contracting Officer, photographs, microphotographs, or other 
authentic reproductions may be maintained instead of original records 
and documents.

                             (End of clause)

[62 FR 47579, Sept. 10, 1997]



Sec. 1652.249-72  FEHBP termination for default--negotiated benefits 
          contracts.

    As prescribed in Sec. 1649.101-72, the following clause shall be 
inserted in all FEHBP contracts.

 FEHBP Termination for Default--Negotiated Benefits Contracts (JAN 1998)

    (a) (1) The Government may, subject to paragraphs (c) and (d) below, 
by written notice of default to the Carrier, terminate this contract in 
whole or in part if the Carrier fails to--
    (i) Perform the services within the time specified in this contract 
or any extension;
    (ii) Make progress, so as to endanger performance of this contract 
(but see subparagraph (a)(2) below); or
    (iii) Perform any of the other provisions of this contract (but see 
subparagraph (a)(2) below).
    (2) The Government's right to terminate this contract under 
subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Carrier 
does not cure such failure within 10 days (or more if authorized in 
writing by the Contracting Officer) after receipt of the notice from the 
Contracting Officer specifying the failure.
    (b) If the Government terminates this contract in whole or in part, 
it may acquire, under the terms and in the manner the Contracting 
Officer considers appropriate, supplies or service similar to those 
terminated, and the Carrier will be liable to the Government for any 
excess costs for those supplies or services. However, the Carrier shall 
continue the work not terminated.
    (c) Except for defaults of subcontractors at any tier, the Carrier 
shall not be liable for any excess costs if the failure to perform the 
contract arises from causes beyond the control and without the fault or 
negligence of the Carrier. Examples of such causes include (1) acts of 
God or of the public enemy, (2)

[[Page 165]]

acts of the Government in either its sovereign or contractual capacity, 
(3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) 
strikes, (8) freight embargoes, and (9) unusually severe weather. In 
each instance the failure to perform must be beyond the control and 
without the fault or negligence of the Carrier.
    (d) If the failure to perform is caused by the default of a 
subcontractor at any tier, and if the cause of the default is beyond the 
control of both the Carrier and subcontractor, and without the fault or 
negligence of either, the Carrier shall not be liable for any excess 
costs for failure to perform, unless the subcontracted supplies or 
services were obtainable from other sources in sufficient time for the 
Carrier to meet the required delivery schedule.
    (e) If this contract is terminated for default, the Government may 
require the Carrier to transfer title and deliver to the Government, as 
directed by the Contracting Officer, any completed or partially 
completed information and contract rights that the Carrier has 
specifically produced or acquired for the terminated portion of this 
contract.
    (f) If, after termination, it is determined that the Carrier was not 
in default, or that the default was excusable, the rights and 
obligations of the parties shall be the same as if the termination had 
been issued for the convenience of the Government.
    (g) The rights and remedies of the Government in this clause are in 
addition to any other rights and remedies provided by law or under this 
contract.

                             (End of clause)

[62 FR 47580, Sept. 10, 1997]

                   Subpart 1652.3--FEHBP Clause Matrix



Sec. 1652.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and FEHBAR clauses to 
be used with contracts based on cost analysis and contracts based on a 
combination of cost and price analysis. Carriers shall submit initial 
applications and requests for renewals on the basis that the new 
contract or contract renewal will include the clauses indicated.
    (b) Certain contract clauses are mandatory for FEHBP contracts. 
Other clauses are to be used only when made applicable by pertinent 
sections of the FAR or FEHBAR. An ``M'' in the ``Use Status'' column 
indicates that the clause is mandatory. An ``A'' indicates that the 
clause is to be used only when the applicable conditions are met.
    (c) Clauses are incorporated in the contract either in full text or 
by reference. If the full text is to be used, the matrix indicates a 
``T''. If the clause is incorporated by reference, the matrix indicates 
an ``R''.

                                                                   FEHBP Clause Matrix
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Use with    Use with
                                                                                                                          Use     experience   community
               Clause No.                                Text reference                             Title               status       rated       rated
                                                                                                                                   contracts   contracts
--------------------------------------------------------------------------------------------------------------------------------------------------------
FAR 52.202-1                             FAR 2.201                                       Definitions................          M           T           T
FAR 52.203-3                             FAR 3.202                                       Gratuities.................          M           T           T
FAR 52.203-5                             FAR 3.404                                       Covenant Against Contingent          M           T           T
                                                                                          Fees.
FAR 52.203-7                             FAR 3.502-3                                     Anti-Kickback Procedures...          M           T           T
FAR 52.203-12                            FAR 3.808(b)                                    Limitation on Payments to            M           T           T
                                                                                          Influence Certain Federal
                                                                                          Transactions.
1652.203-70                              1603-7003                                       Misleading, Deceptive, or            M           T           T
                                                                                          Unfair Advertising.
1652.204-70                              1604.705                                        Contractors Records                  M           T           T
                                                                                          Retention.
1652.204-71                              1604.7001                                       Coordination of Benefits...          M           T           T
1652.204-72                              1604.7101                                       Filing Health Benefit                M           T           T
                                                                                          Claims/Court Review of
                                                                                          Disputed Claims.
1652.204-73                              1604.970                                        Taxpayer Identification              M           T           T
                                                                                          Number.

[[Page 166]]

 
FAR 52.209-6                             FAR 9.409(b)                                    Protecting the Government's          M           T           T
                                                                                          Interest When
                                                                                          Subcontracting With
                                                                                          Contractors Debarred,
                                                                                          Suspended, or Proposed for
                                                                                          Debarment.
FAR 52.215-2                             FAR 15.209(b)                                   Audit & Records--                    M           T           T
                                                                                          Negotiation.
FAR 52.215-10                            FAR 15.408(b)                                   Price Reduction for                  M           T
                                                                                          Defective Cost or Pricing
                                                                                          Data.
FAR 52.215-12                            FAR 15.408(d)                                   Subcontractor Cost or                M           T
                                                                                          Pricing Data.
FAR 52.215-15                            FAR 15.408(g)                                   Pension Adjustments and              M           T
                                                                                          Asset Reversions.
FAR 52.215-16                            FAR 15.408(h)                                   Facilities Capital Cost of           M           T
                                                                                          Money.
FAR 52.215-17                            FAR 15.408(i)                                   Waiver of Facilities                 A           T
                                                                                          Capital Cost of Money.
FAR 52.215-18                            FAR 15.408(j)                                   Reversion or Adjustment of           M           T
                                                                                          Plans for Postretirement
                                                                                          Benefits (PRB) Other Than
                                                                                          Pensions.
1652.215-70                              1615.804-72                                     Rate Reduction for                   M                       T
                                                                                          Defective Pricing or
                                                                                          Defective Cost or Pricing
                                                                                          Data.
1652.215-71                              1615.805-71                                     Investment Income..........          M           T
1652.216-70                              1616.7001                                       Accounting and Price                 M           T           T
                                                                                          Adjustment.
1652.216-71                              1616.7002                                       Accounting and Allowable             M           T
                                                                                          Cost.
FAR 52.219-8                             FAR 19.708(a)                                   Utilization of Small                 M           T           T
                                                                                          Business Concerns.
FAR 52.222-1                             FAR 22.103-5(a)                                 Notice to the Government of          M           T           T
                                                                                          Labor Disputes.
FAR 52.222-3                             FAR 22.202                                      Convict Labor..............          M           T           T
FAR 52.222-4                             FAR 22.305                                      Contract Work Hours and              M           T           T
                                                                                          Safety Standards Act-
                                                                                          Overtime Compensation.
FAR 52.222-21                            FAR 22.810(a)(1)                                Prohibition of Segregated            M           T           T
                                                                                          Facilities.
FAR 52.222-26                            FAR 22.810(a)                                   Equal Opportunity..........          M           T           T
FAR 52.222-29                            FAR 22.810(g)                                   Notification of Visa Denial          A           T           T
FAR 52.222-35                            FAR 22.1308(a)                                  Affirmative Action for               M           T           T
                                                                                          Disabled Veterans and
                                                                                          Veterans of the Vietnam
                                                                                          Era.
FAR 52.222-36                            FAR 22.1408(a)                                  Affirmative Action for               M           T           T
                                                                                          Workers With Disabilities.

[[Page 167]]

 
FAR 52.222-37                            FAR 22.1308(b)                                  Employment Reports on                M           T           T
                                                                                          Disabled Veterans and
                                                                                          Veterans of the Vietnam
                                                                                          Era.
1652.222-70                              1622.103-70                                     Notice of Significant                M           T           T
                                                                                          Events.
FAR 52.223-2                             FAR 23.105(b)                                   Clean Air and Water........          A           T           T
FAR 52.223-6                             FAR 23.505                                      Drug-Free Workplace........          A           T           T
1652.224-70                              1624.104                                        Confidentiality of Records.          M           T           T
FAR 52.227-1                             FAR 27.201-2(a)                                 Authorization and Consent..          M           T           T
FAR 52.227-2                             FAR 27.202-2                                    Notice and Assistance                M           T           T
                                                                                          Regarding Patent and
                                                                                          Copyright Infringement.
FAR 52.229-3                             FAR 29.401-3                                    Federal, State and Local             M                       T
                                                                                          Taxes.
FAR 52.229-4                             FAR 29.401-4                                    Federal, State and Local             M           T
                                                                                          Taxes (Noncompetitive
                                                                                          Contract).
FAR 52.229-5                             FAR 29.401-5                                    Taxes--Contracts Performed           A           T           T
                                                                                          in U.S. Possessions or
                                                                                          Puerto Rico.
1652.229-70                              FEHBAR 1629.402                                 Taxes--Foreign Negotiated            A           T           T
                                                                                          Benefits Contracts.
FAR 52.230-2                             FAR 30.201-4(a)(1)                              Cost Accounting Standards..          A           T           T
FAR 52.230-3                             FAR 30.201-4(b)(1)                              Disclosure and Consistency           A           T           T
                                                                                          of Cost Accounting
                                                                                          Practices.
FAR 52.230-6                             FAR 30.201-4(d)(1)                              Administration of Cost               A           T           T
                                                                                          Accounting Standards.
FAR 52.232-8                             FAR 32.111(c)(1)                                Discounts for Prompt                 M           T           T
                                                                                          Payment.
FAR 52.232-17                            FAR 32.617(a)                                   Interest...................          M           T           T
                                         Modification:
                                         1632.617
FAR 52.232-23                            FAR 32.806(a)(1)                                Assignment of Claims.......          A           T           T
FAR 52.232-33                            FAR 32.1103(a)                                  Payment by Electronic Funds          M           T           T
                                                                                          Transfer--Central
                                                                                          Contractor Registration.
1652.232-70                              1632.171                                        Payments--Community-Rated            A                       T
                                                                                          Contracts.
1652.232-71                              1632.172                                        Payments--Experience-Rated           A           T
                                                                                          Contracts.
1652.232-72                              1632.772                                        Non-Commingling of FEHBP             M           T
                                                                                          Funds.
1652.232-73                              1632.806-70                                     Approval for Assignment of           M           T           T
                                                                                          Claims.
FAR 52.233-1                             FAR 33.215                                      Disputes...................          M           T           T
FAR 52.242-1                             FAR 42.802                                      Notice of Intent to                  M           T
                                                                                          Disallow Costs.

[[Page 168]]

 
FAR 52.242-3                             FAR 42.709-6                                    Penalties for Unallowable            M           T
                                                                                          Costs.
FAR 52.242-13                            FAR 42.903                                      Bankruptcy.................          M           T           T
1652.243-70                              1643.205-70                                     Changes--Negotiated                  M           T           T
                                                                                          Benefits Contracts.
FAR 52.244-5                             FAR 44.204(c)                                   Competition in                       M           T
                                                                                          Subcontracting.
FAR 52.244-6                             FAR 44.403                                      Subcontracts for Commercial          M           T
                                                                                          Items and commercial
                                                                                          components.
1652.244-70                              1644.270                                        Subcontracts...............          M           T
1652.245-70                              1645.303-70                                     Government Property                  M           T           T
                                                                                          (Negotiated Benefits
                                                                                          Contracts).
FAR 52.246-25                            FAR 6.805(a)(4)                                 Limitation of Liability--            M           T
                                                                                          Services.
1652.246-70                              1646.301                                        FEHB Inspection............          M           T           T
FAR 52.247-63                            FAR 47.405                                      Preference for U.S.-Flag             M           T           T
                                                                                          Air Carriers.
1652.249-70                              1649.101-70                                     Renewal and Withdrawal of            M           T           T
                                                                                          Approval.
1652.249-71                              1649.101-71                                     FEHBP Termination for                M           T           T
                                                                                          Convenience of the
                                                                                          Government--Negotiated
                                                                                          Benefits Contracts.
1652.249-72                              1649.101-72                                     FEHBP Termination for                M           T           T
                                                                                          Default--Negotiated
                                                                                          Benefits Contracts.
FAR 52.251-1                             FAR 51.107                                      Government Supply Sources..          A           T
FAR 52.252-4                             FAR 52.107(d)                                   Alterations in Contract....          A           T           T
FAR 52.252-6                             FAR 52.107(f)                                   Authorized Deviations in             M           T           T
                                                                                          Clauses.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 59 
FR 14767, Mar. 30, 1994; 62 FR 47580, Sept. 10, 1997; 62 FR 50435, 
Sept.25, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 63388, June 8, 2000]

[[Page 169]]

                            PART 1653--FORMS

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



Sec. 1653.000  FEHBP forms.

    The following forms specified in FAR subparts 53.2 and 53.3 are 
applicable to FEHBP acquisitions:

------------------------------------------------------------------------
       Part 53.2                Part 53.3               Form title
------------------------------------------------------------------------
53.201-1                 53.301-1402             SF 1402-Certificate of
                                                  Appointment.
53.203                   53.301-119              SF 119--Statement of
                                                  Contingent or Other
                                                  Fees.
53.204-2(a)              53.301-279              SF 279 FPDS--Individual
                                                  Contract Action Report
                                                  (over $10,000).
53.204-2(b)              53.301-281              SF 281 FPDS--Summary of
                                                  Contract Actions of
                                                  $10,000 or less.
53.229                   53.301-1094             SF 1094--U.S. Tax
                                                  Exemption Certificate.
53.229                   53.301-1094A            SF 1094A--Tax Exemption
                                                  Certificates
                                                  Accountability Record.
------------------------------------------------------------------------


[52 FR 16048, May 1, 1987, as amended at 62 FR 47583. Sept. 10, 1997]

[[Page 171]]



               CHAPTER 17--OFFICE OF PERSONNEL MANAGEMENT




                          (Parts 1700 to 1799)

  --------------------------------------------------------------------
Part                                                                Page
1733            Protests, disputes, and appeals.............         173

[[Page 173]]

               PART 1733--PROTESTS, DISPUTES, AND APPEALS

                  Subpart 1733.2--Disputes and Appeals

Sec.

Sec. 1733.203  Applicability.

Sec. 1733.203-70  Designation of the Interior Board of Contract Appeals 
          to decide OPM appeals.

Sec. 1733 209  Suspected fraudulent claims.

Sec. 1733.211  Contracting officer's decision.

Sec. 1733.212  Contracting officer's duties upon appeal.

Sec. 1733.214  Contract clause.

    Authority: 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 51 FR 44296, Dec. 9, 1986, unless otherwise noted.

                  Subpart 1733.2--Disputes and Appeals



Sec. 1733.203  Applicability.

    (a) The Office of Personnel Management's (OPM) procurement executive 
shall make the determination prescribed under FAR 33.203(b).
    (b) Requests for determinations under paragraph (a) of this section 
shall be submitted by OPM's contracting officer through OPM's head of 
the contracting activity to the procurement executive for further 
action.



Sec. 1733.203-70  Designation of the Interior Board of Contract Appeals 
          to decide OPM appeals.

    (a) The Interior Board of Contract Appeals (IBCA) has been 
designated by the Director of OPM to consider and determine appeals from 
decisions of a contracting officer arising under a contract or relating 
to a contract made by OPM. This delegation governs disputes between OPM 
and its prime contractors and does not encompass any claim made by a 
third party beneficiary of, or by a subscriber to, a Federal employee 
insurance program.
    (b) The address of IBCA is 4015 Wilson Boulevard, Arlington, VA 
22203.
    (c) IBCA rules of procedure can be found in 43 CFR part 4.



Sec. 1733.209  Suspected fraudulent claims.

    If the contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to 
misrepresentation of fact or to fraud on the part of the contractor, the 
contracting officer shall refer the matter through the head of the 
contracting activity to OPM's Offices of the Inspector General and the 
General Counsel.



Sec. 1733.211  Contracting officer's decision.

    The written decision required by FAR 33.211(a)(4) shall include, in 
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to 
the Interior Board of Contract Appeals, 4015 Wilson Boulevard, 
Arlington, VA 22203, and its procedures under 43 CFR part 4. The IBCA 
optional small claims (expedited) procedures and accelerated procedures 
under 43 CFR 4.113 shall also be referenced as required by the FAR.



Sec. 1733.212  Contracting officer's duties upon appeal.

    (a) When a notice of appeal has been received, the contracting 
officer shall endorse on the appeal the date of mailing (or the date of 
receipt if the notice was not mailed) and forward it to IBCA by 
certified mail within 5 days of receipt. OPM's Office of the General 
Counsel and the Department of the Interior's (DOI) Office of the 
Solicitor shall also be notified of the appeal by the contracting 
officer. 43 CFR 4.103.
    (b) The contracting officer shall prepare and transmit the 
documentation and information required by 43 CFR 4.104 in the form of an 
appeal file to IBCA, OPM's Office of the General Counsel, DOI's Office 
of the Solicitor, and appellant or appellant's counsel within 30 days 
after receipt of a notice of appeal or advice that an appeal has been 
docketed by IBCA.



Sec. 1733.214  Contract clause.

    The Disputes clause contained in FAR 52.233-1 shall be used with its 
Alternate I in all OPM solicitations and contracts.

[[Page 175]]



        CHAPTER 18--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION




                          (Parts 1800 to 1899)

  --------------------------------------------------------------------


  Editorial Note: 1. Nomenclature changes to chapter 18 appear at 58 FR 
51136, Sept. 30, 1993 and 67 FR 30602, May 7, 2002.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1801            Federal acquisition regulations system......         177
1802            Definitions of words and terms..............         181
1803            Improper business practices and personal 
                    conflicts of interest...................         181
1804            Administrative matters......................         184
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
1805            Publicizing contract actions................         195
1806            Competition requirements....................         198
1807            Acquisition planning........................         201
1808            Required sources of supplies and services...         207
1809            Contractor qualifications...................         212
1811            Describing agency...........................         216
1812            Acquisition of commercial items.............         218
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1813            Simplified acquisition procedures...........         220
1814            Sealed bidding..............................         222
1815            Contracting by negotiation..................         224
1816            Types of contracts..........................         248
1817            Special contracting methods.................         258
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1819            Small business programs.....................         266
1822            Application of labor laws to government 
                    acquisitions............................         277

[[Page 176]]

1823            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         281
1824            Protection of privacy and freedom of 
                    information.............................         284
1825            Foreign acquisition.........................         284
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1827            Patents, data, and copyrights...............         289
1828            Bonds and insurance.........................         299
1829            Taxes.......................................         302
1830            Cost accounting standards administration....         303
1831            Contract cost principles and procedures.....         305
1832            Contract financing..........................         307
1833            Protests, disputes, and appeals.............         312
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1834            Major system acquisition....................         315
1835            Research and development contracting........         315
1836            Construction and architect-engineer 
                    contracts...............................         319
1837            Service contracting.........................         323
1839            Acquisition of information technology.......         324
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1840

[Reserved]

1841            Acquisition of utility services.............         326
1842            Contract administration and audit services..         327
1843            Contract modifications......................         338
1844            Subcontracting policies and procedures......         340
1845            Government property.........................         342
1846            Quality assurance...........................         364
1847            Transportation..............................         371
1848            Value engineering...........................         372
1849            Termination of contracts....................         373
1850            Extraordinary contractual actions...........         376
1851            Use of government sources by contractors....         378
                     SUBCHAPTER H--CLAUSES AND FORMS
1852            Solicitation provisions and contract clauses         380
1853            Forms.......................................         450
             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
1871            Midrange procurement procedures.............         455
1872            Acquisitions of investigations..............         465

[[Page 177]]

                          SUBCHAPTER A--GENERAL

            PART 1801--FEDERAL ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 1801.000  Scope of part.

              Subpart 1801.1--Purpose, Authority, Issuance


Sec. 1801.103  Authority.

Sec. 1801.104  Applicability.

Sec. 1801.105  Issuance.

Sec. 1801.105-1  Publication and code arrangement.

Sec. 1801.105-2  Arrangement of regulations.

Sec. 1801.106  OMB approval under the Paperwork Reduction Act.

                     Subpart 1801.2--Administration


Sec. 1801.270  Amendment of the NFS.

Sec. 1801.271  NASA procedures for FAR and NFS changes.

Sec. 1801.272  Procurement Information Circulars.

             Subpart 1801.3--Agency Acquisition Regulations


Sec. 1801.301  Policy.

Sec. 1801.303  Publication and codification.

                 Subpart 1801.4--Deviations From the FAR


Sec. 1801.400  Scope of subpart.

Sec. 1801.471  Procedure for requesting deviations.

     Subpart 1801.6--Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 1801.601  General.

Sec. 1801.602-3  Ratification of unauthorized commitments.

Sec. 1801.603  Selection, appointment, and termination of appointment.

Sec. 1801.603-2  Selection.

Sec. 1801.670  Delegations to contracting officer's technical 
          representatives (COTRs).

               Subpart 1801.7--Determinations and Findings


Sec. 1801.707  Signatory authority.

Sec. 1801.770  Legal review.

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

    Source: 61 FR 40534, Aug. 5, 1996, unless otherwise noted.



Sec. 1801.000  Scope of part.

    This part sets forth general information about the National 
Aeronautics and Space Administration (NASA) Federal Acquisition 
Regulations (FAR) Supplement, also referred to as the NFS.

              Subpart 1801.1--Purpose, Authority, Issuance



Sec. 1801.103  Authority. (NASA supplements paragraph (a))

    (a) Under the following authorities, the Administrator has delegated 
to the Assistant Administrator for Procurement authority to prepare, 
issue, and maintain the NFS:
    (i) The National Aeronautics and Space Act of 1958 (Public Law 85-
568; 42 U.S.C. 2451 et seq.).
    (ii) 10 U.S.C. chapter 137.
    (iii) Other statutory authority.
    (iv) FAR subpart 1.3.



Sec. 1801.104  Applicability.

    The NFS applies to all acquisitions as defined in FAR Part 2 except 
those expressly excluded by the FAR or this chapter.



Sec. 1801.105  Issuance.



Sec. 1801.105-1  Publication and code arrangement. (NASA supplements 
          paragraphs (a) and (b))

    (a) The single official NASA-maintained version of the NFS is on the 
Internet (http://www.hq.nasa.gov/office/procurement/regs/nfstoc.htm).
    (b) The NFS is issued as chapter 18 of title 48, Code of Federal 
Regulations (CFR).

[61 FR 40534, Aug. 5, 1996, as amended at 64 FR 36606, July 7, 1999]



Sec. 1801.105-2  Arrangement of regulations. (NASA supplements paragraph 
          (b))

    (b)(1)(A) Numbering of NFS text implementing the FAR shall be the 
same as that of the related FAR text, except when the NFS coverage 
exceeds one paragraph. In such case the NFS text is numbered by skipping 
a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence. For 
example, two paragraphs implementing FAR 1.105-2(b)(1) are numbered 
1801.105-2(b)(1) (A) and (B),

[[Page 178]]

rather than (1) (i) and (ii). Further subdivision of the NFS 
implementing paragraphs would follow the prescribed sequence in FAR 
1.105(b)(2).
    (B) NFS text that supplements the FAR is numbered the same as its 
FAR counterpart with the addition of a number 70 and up. For example, 
NFS supplement of FAR subsection 1.105-3 is numbered 1801.105-370. 
Supplemental text exceeding one paragraph is numbered using the FAR 
1.105-2(b)(2) prescribed numbering sequence without skipping a unit.
    (2) Subdivision numbering below the fourth level repeats the 
numbering sequence using italicized letters and numbers.



Sec. 1801.106  OMB approval under the Paperwork Reduction Act. (NASA 
          paragraphs (1) and (2))

    (1) NFS requirements. The following OMB control numbers apply:


 
------------------------------------------------------------------------
                                                                 OMB
                        NFS Segment                            Control
                                                                 No.
------------------------------------------------------------------------
1804.470...................................................    2700-0098
1804.74....................................................    2700-0097
1819.......................................................    2700-0073
1819.72....................................................    2700-0078
1827.......................................................    2700-0052
1831.......................................................    2700-0080
1843.......................................................    2700-0054
1843.71....................................................    2700-0094
NF 533.....................................................    2700-0003
NF 1018....................................................    2700-0017
------------------------------------------------------------------------

    (2) Solicitations and contracts. Various requirements in a 
solicitation or contract, generally in the statement of work, are not 
tied to specific paragraphs cleared in paragraph (1) of this section, 
yet require information collection or recordkeeping. The following OMB 
control numbers apply to these requirements: 2700-0086 (acquisitions up 
to $25,000), 2700-0087 (solicitations that may result in bids or 
proposals not exceeding $500,000), 2700-0085 (solicitations that may 
result in bids or proposals exceeding $500,000), 2700-0088 (contracts 
not exceeding $500,000), and 2700-0089 (contracts exceeding $500,000).

[61 FR 40534, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 65 
FR 46627, July 31, 2000]

                      Subpart 1801.2--Aministration



Sec. 1801.270  Amendment of the NFS.

    (a) The NFS is amended by publishing changes in the Federal 
Register. These changes are then incorporated into the NASA-maintained 
Internet version of the NFS through Procurement Notices (PNs). PNs are 
numbered consecutively, prefixed by the last two digits of the calendar 
year of issuance of the current edition of the NFS.
    (b) Compliance with a revision to the NFS shall be in accordance 
with the PN containing the revision. Unless otherwise stated, 
solicitations that have been issued, and bilateral agreements for which 
negotiations have been completed, before the receipt of new or revised 
contract clauses need not be amended to include the new or revised 
clauses if including them would unduly delay the acquisition.

[64 FR 36606, July 7, 1999]



Sec. 1801.271  NASA procedures for FAR and NFS changes.

    (a) Informal suggestions for improving the NFS, including correction 
of errors, should be directed to the Headquarters Office of Procurement 
(Code HK).
    (b) (1) Formal requests for changes to the FAR or the NFS should be 
written and contain
    (i) A description of the problem the suggested revision is designed 
to cure,
    (ii) The revision in the form of a marked-up copy of the current FAR 
or NFS language or the text of any additional language,
    (iii) The consequences of making no change and the benefits to be 
expected from a change, and
    (iv) Any other information necessary for understanding the 
situation, such as relationship between FAR and NFS coverage, legal 
opinions, coordination with other offices, and existing agreements.
    (2) Formal requests for FAR and NFS changes should be sent to Code 
HK. Requests from Headquarters offices should originate at the division 
level or higher, while installation requests should be signed at the 
procurement officer or higher level.

[[Page 179]]



Sec. 1801.272  Procurement Information Circulars.

    (a) The Procurement Information Circular (PIC) is used for internal 
dissemination of procurement-related information and directives not 
suitable for inclusion in the NFS. Code HK is responsible for issuing 
PICs.
    (b) PICs are numbered on a calendar year basis, beginning with 
number 1, prefixed by the last two digits of the year.

             Subpart 1801.3--Agency Acquisition Regulations



Sec. 1801.301  Policy. (NASA supplements paragraphs (a) and (b))

    (a)(2) Heads of NASA field installations may prescribe policies and 
procedures that do not have a significant effect beyond the internal 
operating procedures of their installations. All other policies, 
procedures, and solicitation and contract provisions and clauses must be 
forwarded to the Headquarters Office of Procurement (Code HK) for 
approval in accordance with 1801.271(b).
    (b)(i) 41 U.S.C. 418b requires publication of NFS changes for public 
comment where there will be a significant effect beyond the internal 
operating procedures of the agency or a significant cost or 
administrative impact on contractors or offerors. However, it does not 
define ``significant effect beyond the internal operating procedures'' 
or ``significant cost or administrative impact.'' Examples of policies 
or procedures that fall in either of these categories are:
    (A) A contract clause requiring contractors to take precautions to 
avoid injury to Florida manatees, which have been designated as an 
endangered species, has a significant cost impact for contractors who 
must obtain protective devices for boat propellers and take other safety 
actions.
    (B) A contract clause requiring contractors to follow the 
Government's holiday schedule, thereby disallowing premium pay for work 
on contractor-designated holidays, will have an effect outside the 
internal operating procedures of the agency.
    (C) A contract clause requiring contractors to segregate costs by 
appropriations will affect the contractor's internal accounting system 
and have a significant impact.
    (D) Requiring contractor compliance with NASA's Space Transportation 
System Personnel Reliability Program will have an effect outside the 
internal operating procedures of the agency.
    (ii) In contrast, the following would not have to be publicized for 
public comment:
    (A) Security procedures for identifying and badging contractor 
personnel to obtain access at a NASA installation.
    (B) A one-time requirement in a construction contract for the 
contractor to develop a placement plan and for inspection prior to any 
concrete being placed. (This is a part of the specification or statement 
of work.)
    (C) A policy that requires the NASA installation to maintain copies 
of unsuccessful offers.



Sec. 1801.303  Publication and codification. (NASA supplements paragraph 
          (a))

    (a) Part, subpart, and section numbers 70 through 89 are reserved 
for NFS supplementary material for which there is no FAR counterpart.

                 Subpart 1801.4--Deviations From the FAR



Sec. 1801.400  Scope of subpart.

    This subpart prescribes the policies and procedures for authorizing 
deviations from the FAR and the NFS.



Sec. 1801.471  Procedure for requesting deviations.

    (a) Requests for authority to deviate from the FAR or the NFS shall 
be submitted by the Procurement Officer to the Headquarters Office of 
Procurement (Code HS).
    (b) Each request for a deviation shall contain, as a minimum--
    (1) Identification of the FAR or the NFS requirement from which a 
deviation is sought;
    (2) A full description of the deviation, the circumstances in which 
it will be used, and the specific contract action(s) to which it 
applies;
    (3) A description of its intended effect;
    (4) A statement as to whether the deviation has been requested 
previously

[[Page 180]]

and, if so, the circumstances of the previous request;
    (5) Identification of the contractor(s) and the contract(s) 
affected, including dollar value(s);
    (6) Detailed reasons supporting the request, including any pertinent 
background information; and
    (7) A copy of counsel's concurrence or comments.
    (c) In addition to the information required by 1801.471(b), requests 
for individual deviations from FAR cost principles under FAR 31.101 
should include a copy of the contractor's request for cost allowance.

     Subpart 1801.6--Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 1801.601  General.

    The authority to contract for authorized supplies and services is 
delegated to the Assistant Administrator for Procurement and 
installation officials by NPD 5101.32.



Sec. 1801.602-3  Ratification of unauthorized commitments. (NASA 
          supplements paragraphs (b) and (c))

    (b) Policy. Individuals making unauthorized commitments may be 
subject to disciplinary action, and the issue may be referred to the 
Office of Inspector General.
    (c)(7) The authority in FAR 1.602-3 may be exercised only when--
    (A) The Government employee who made the unauthorized commitment, or 
his/her supervisor, if appropriate, initiates a procurement request in 
accordance with 1804.7301.
    (B) The procurement request and/or accompanying documentation 
identifies the individual who made the unauthorized commitment, and 
includes a statement signed by the individual that explains why normal 
acquisition procedures were not followed, explains why the firm was 
selected, lists other sources considered, describes the work, and 
estimates or states the agreed price. If the Government representative 
who made the unauthorized commitment is no longer available, appropriate 
program personnel shall provide the information described in this 
paragraph.
    (C) The procurement request is submitted through the director of the 
cognizant program office at the contracting activity, or comparable 
official. In the procurement request, the director shall describe 
measures taken to prevent the recurrence of the unauthorized commitment.



Sec. 1801.603  Selection, appointment, and termination of appointment.



Sec. 1801.603-2  Selection.

    Normally, only GS-1102 and -1105 personnel with the proper training 
and experience may be appointed contracting officers and only when a 
valid organizational need can be demonstrated.



Sec. 1801.670  Delegations to contracting officer's technical 
          representatives (COTRs).

    A COTR delegation may be made only by the contracting officer 
cognizant of that contract at the time the delegation is made. If the 
cognizant contracting officer is absent, the delegation letter may be 
signed by a warranted contracting officer at any level above the 
cognizant contracting officer. An individual COTR may have only the 
duties specifically identified in a written delegation to him or her by 
name (i.e., COTR duties may not be delegated to a position) and has no 
authority to exceed them. COTRs should be informed that they may be 
personally liable for unauthorized commitments. Contracting officer 
authority to sign or authorize contractual instruments shall not be 
delegated through a COTR designation or by any means other than a 
contracting officer warrant.

               Subpart 1801.7--Determinations and Findings



Sec. 1801.707  Signatory authority.

    Signatory authority for determinations and findings (D&Fs) is 
specified in the FAR or the NFS text for the associated subject matter. 
The Administrator may make any of the D&Fs that may be made by the 
Assistant Administrator for Procurement or by a contracting officer.

[[Page 181]]



Sec. 1801.770  Legal review.

    Each D&F, including class D&Fs, shall be reviewed by counsel for 
form and legality before signature by the approving authority.

                PART 1802--DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 1802.000  Scope of part.

                       Subpart 1802.1--Definitions


Sec. 1802.101  Definitions.

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

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



Sec. 1802.000  Scope of part.

    Commonly used words and terms are defined in FAR subpart 2.1. This 
part 1802 gives NASA-specific meanings for some of these words and terms 
and defines other words and terms commonly used in the NASA acquisition 
process.

                       Subpart 1802.1--Definitions



Sec. 1802.101  Definitions.

    Administrator means the Administrator or Deputy Administrator of 
NASA.
    Contracting activity in NASA includes the NASA Headquarters 
installation and the following field installations: Ames Research 
Center, Dryden Flight Research Center, Glenn Research Center at Lewis 
Field, Goddard Space Flight Center, Johnson Space Center, Kennedy Space 
Center, Langley Research Center, Marshall Space Flight Center, Space 
Station Program Office and Stennis Space Center.
    Head of the agency or agency head means the Administrator or Deputy 
Administrator of NASA.
    Head of the contracting activity means, for field installations, the 
Director or other head and, for NASA Headquarters, the Director for 
Headquarters Operations.
    NASA Acquisition Internet Service (NAIS) means the Internet service 
(URL: hhtp://procurement.nasa.gov) NASA uses to broadcast its business 
opportunities, procurement regulations, and associated information.
    Procurement officer means the chief of the contracting office, as 
defined in FAR 2.101.
    Senior Procurement Executive means the Associate Administrator or 
Deputy Assistant Administrator for Procurement, Office of Procurement, 
NASA Headquarters (Code H).

[61 FR 40537, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 64 
FR 19926, Apr. 23, 1999]

    PART 1803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

                       Subpart 1803.1--Safeguards

Sec.

Sec. 1803.101  Standards of conduct.

Sec. 1803.101-1  General.

Sec. 1803.101-2  Solicitation and acceptance of gratuities by Government 
          personnel.

Sec. 1803.104  Procurement integrity.

Sec. 1803.104-1  Definitions.

Sec. 1803.104-4  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

Sec. 1803.104-7  Violations or possible violations. (NASA supplements 
          paragraphs (a), (b) and (f))

     Subpart 1803.2--Contract or Gratuities to Government Personnel


Sec. 1803.203  Reporting suspected violations of the Gratuities clause.

        Subpart 1803.3--Reports of Suspected Antitrust Violations


Sec. 1803.303  Reporting suspected antitrust violations.

            Subpart 1803.5--Other Improper Business Practices


Sec. 1803.502  Subcontractor kickbacks.

  Subpart 1803.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 1803.602  Exceptions.

            Subpart 1803.7--Voiding and Rescinding Contracts


Sec. 1803.704  Policy.

Sec. 1803.705  Procedures.

Subpart 1803.8--Limitation on the Payment of Funds to Influence Federal 
                              Transactions


Sec. 1803.804  Policy.

[[Page 182]]


Sec. 1803.806  Processing suspected violations.

                   Subpart 1803.70--IG Hotline Posters


Sec. 1803.7000  Policy.

Sec. 1803.7001  Contract clause.

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

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.

                       Subpart 1803.1--Safeguards



Sec. 1803.101  Standards of conduct.



Sec. 1803.101-1  General.

    The statutory prohibitions and their application to NASA personnel 
are discussed in the Standards of Ethical Conduct for Employees of the 
Executive Branch, 5 CFR part 2635, and the Supplemental Standards of 
Ethical Conduct for Employees of the National Aeronautics and Space 
Administration, 5 CFR part 6901. All NASA personnel involved in 
acquisitions shall become familiar with these statutory prohibitions. 
Any questions concerning them shall be referred to legal counsel. In 
addition to criminal penalties, the statutes provide that transactions 
entered into in violation of these prohibitions are voidable (18 U.S.C. 
218).

[61 FR 40537, Aug. 5, 1996, as amended at 62 FR 14016, Mar. 25, 1997]



Sec. 1803.101-2  Solicitation and acceptance of gratuities by Government 
          personnel.

    Any suspected violations shall be reported promptly to the 
installation's Office of Inspector General.

[61 FR 40537, Aug. 5, 1996, as amended at 62 FR 14016, Mar. 25, 1997]



Sec. 1803.104  Procurement integrity.

[62 FR 36704, July 9, 1997]



Sec. 1803.104-1  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.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]



Sec. 1803.104-4  Disclosure, protection, and marking of contractor bid 
          or proposal information and source selection information.

    (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 1815.370) 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 1803.104-4(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 2.101 shall assure that 
the material is marked with the legend in FAR 3.104-4(c) at the time the 
material is prepared.
    (ii) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 2.101 and 3.104,'' draft specifications, purchase descriptions, 
and statements of work are not considered source selection information 
and

[[Page 183]]

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.

[62 FR 36704, July 9, 1997, as amended at 63 FR 9966, Feb. 27, 1998. 
Redesignated and amended 67 FR 30603, May 7, 2002]



Sec. 1803.104-7  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 Assistant 
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 Assistant Administrator for Procurement (Code HS) 
simultaneous with transmittal to the Administrator.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]

     Subpart 1803.2--Contract or Gratuities to Government Personnel



Sec. 1803.203  Reporting suspected violations of the Gratuities clause.

    Any suspected violations of the clause at FAR 52.203-3, Gratuities, 
shall be reported to the installation's Office of Inspector General.

        Subpart 1803.3--Reports of Suspected Antitrust Violations



Sec. 1803.303  Reporting suspected antitrust violations. (NASA 
          supplements paragraphs (b) and (d))

    (b)(i) When offers are received that, in the opinion of the 
contracting officer, indicate possible antitrust violations, the 
contracting officer shall report the circumstances to the General 
Counsel, NASA Headquarters, through the Office of Procurement (Code HS). 
Reports should not be submitted automatically but only when there is 
reason to believe the offers may not have been arrived at independently. 
These reports shall be submitted with conformed copies of bids or 
proposals, contract documents, and other supporting data, and shall set 
forth--
    (A) The noncompetitive pattern or situation under consideration;
    (B) Purchase experience in the same product or service for a 
reasonable period (one or more years) preceding receipt of the offers 
under consideration, including unit and total contract prices and 
abstracts of bids;
    (C) Community of financial interest among offerors, insofar as it is 
known;
    (D) The extent, if any, to which specification requirements or 
patents restrict competition;
    (E) Any information available about the pricing system employed in 
offers believed to reflect noncompetitive practices; and
    (F) Any other pertinent information.
    (ii) Evidence of practices that, in the opinion of the General 
Counsel, NASA Headquarters, may violate the antitrust laws shall be 
forwarded to the Attorney General of the United States (see FAR 3.303).
    (d) The contracting officer shall submit the identical bid report 
required by FAR 3.303(d) to NASA Headquarters, Office of Procurement 
(Code HS). The report shall include the reasons for suspecting 
collusion. Code HS shall forward a copy to the NASA Office of the 
Inspector General.

            Subpart 1803.5--Other Improper Business Practices



Sec. 1803.502  Subcontractor kickbacks.

    Contracting officers shall report suspected violations of the Anti-
Kickback Act in accordance with 1809.470.

[[Page 184]]

  Subpart 1803.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1803.602  Exceptions.

    The Assistant Administrator for Procurement has been delegated the 
authority to authorize an exception to the policy in FAR 3.601. The 
Assistant Administrator for Procurement has redelegated this authority 
to the heads of contracting activities (HCAs) for individual actions in 
the aggregate of $100,000 and below, inclusive of follow-on 
acquisitions, with concurrence by the HCA's Office of Chief Counsel. All 
requests above the HCA's authority shall be forwarded to the Assistant 
Administrator for Procurement (Code HS) for approval.

            Subpart 1803.7--Voiding and Rescinding Contracts



Sec. 1803.704  Policy. (NASA supplements paragraph (a))

    (a) The Assistant Administrator for Procurement has been delegated 
authority to void or rescind contracts when there is a final conviction 
for violation of 18 U.S.C. 201-224 (Bribery, Graft and Conflicts of 
Interest) relating to them.



Sec. 1803.705  Procedures.

    Procurement officers shall make reports to the Assistant 
Administrator for Procurement (Code HS). The Assistant Administrator for 
Procurement is responsible for the actions, notices, and decisions 
required by FAR 3.705(c), (d), and (e).

Subpart 1803.8--Limitation on the Payment of Funds to Influence Federal 
                              Transactions



Sec. 1803.804  Policy

    Procurement officers shall forward one copy of each Disclosure of 
Lobbying Activities (SF-LLL) furnished pursuant to FAR 3.803 to the 
Office of Procurement (Code HS). The original shall be retained in the 
contract file. Forms shall be submitted semi-annually by April 15th for 
the six-month period ending March 31st, and by October 15th for the 
period ending September 30th.



Sec. 1803.806  Processing suspected violations.

    The Assistant Administrator for Procurement (Code HS) is the 
designated official to whom suspected violations of the Act shall be 
referred.

                   Subpart 1803.70--IG Hotline Posters



Sec. 1803.7000  Policy.

    NASA requires contractors to display NASA hotline posters prepared 
by the NASA Office of Inspector General on those contracts specified in 
1803.7001, so that employees of the contractor having knowledge of 
waste, fraud, or abuse, can readily identify a means to contact NASA's 
IG.

[66 FR 29727, June 1, 2001]



Sec. 1803.7001  Contract clause.

    Contracting officers must insert the clause at 1852.203-70, Display 
of Inspector General Hotline Posters, in solicitations and contracts 
expected to exceed $5,000,000 and performed at contractor facilities in 
the United States.

[66 FR 29727, June 1, 2001]

                    PART 1804--ADMINISTRATIVE MATTERS

                   Subpart 1804.1--Contract Executive

Sec.

Sec. 1804.103  Contract clause.

Sec. 1804.170  Contract effective date.

                  Subpart 1804.2--Contract Distribution


Sec. 1804.202  Agency distribution requirements.

Sec. 1804.203  Taxpayer identification information.

   Subpart 1804.4--Safeguarding Classified Information Within Industry


Sec. 1804.402  General.

Sec. 1804.404-70  Contract clause.

Sec. 1804.470  Security requirements for unclassified information 
          technology resources.

Sec. 1804.470-1  Scope.

Sec. 1804.470-2  Policy.

Sec. 1804.470-3  Security Plan for Unclassified Federal Information 
          Technology Systems.

Sec. 1804.470-4  Contract clauses.

[[Page 185]]

           Subpart 1804.5--Electronic Commerce in Contracting


Sec. 1804.570  NASA Acquisition Internet Service (NAIS).

Sec. 1804.570-1  General.

Sec. 1804.570-2  Electronic posting system.

                   Subpart 1804.6--Contract Reporting


Sec. 1804.601  Record requirements.

Sec. 1804.602  Federal Procurement Data System.

Sec. 1804.670  Individual Procurement Action Report (NASA Form 507 
          series).

Sec. 1804.671  Committee on Academic Science and Engineering (C.A.S.E.) 
          Report.

                Subpart 1804.8--Government Contract Files


Sec. 1804.802-70  Handling of classified material.

Sec. 1804.803  Contents of contract files.

Sec. 1804.803-70  Checklist.

Sec. 1804.804  Closeout of contract files.

Sec. 1804.804-2  Closeout of the contracting office files if another 
          office administers the contract.

Sec. 1804.804-5  Procedures for closing out contract files.

Sec. 1804.805  Storage, handling, and disposal of contract files.

Sec. 1804.805-70  Review, separation, and retirement of contract files.

       Subpart 1804.9--Taxpayer Identification Number Information


Sec. 1804.904  Reporting payment information to the IRS.

     Subpart 1804.70--Transfer of Contracting Office Responsibility


Sec. 1804.7000  Scope of subpart.

Sec. 1804.7001  Definition.

Sec. 1804.7002  Approval of transfer requests.

Sec. 1804.7003  Responsibilities of the contracting officer of the 
          transferring installation.

Sec. 1804.7003-1  Coordinations.

Sec. 1804.7003-2  File inventory.

Sec. 1804.7003-3  Notifications.

Sec. 1804.7003-4  Transfer.

Sec. 1804.7003-5  Retention documentation.

Sec. 1804.7004  Responsibilities of the contracting officer of the 
          receiving installation.

Sec. 1804.7004-1  Pre-transfer file review.

Sec. 1804.7004-2  Post-transfer actions.

     Subpart 1804.71--Uniform Acquisition Instrument Identification


Sec. 1804.7100  Scope of subpart.

Sec. 1804.7101  Policy.

Sec. 1804.7102  Prefixes.

Sec. 1804.7103  Serial numbers.

Sec. 1804.7104  Modifications of contracts or agreements.

     Subpart 1804.72--Review and Approval of Contractual Instruments


Sec. 1804.7200  Contract review by Headquarters.

                  Subpart 1804.73--Procurement Requests


Sec. 1804.7301  General.

            Subpart 1804.74--Central Contractor Registration


Sec. 1804.7400  Scope.

Sec. 1804.7401  Definitions.

Sec. 1804.7402  Policy.

Sec. 1804.7403  Procedures.

Sec. 1804.7404  Solicitation provisions and contract clauses.

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

    Source: 61 FR 40539, Aug. 5, 1996, unless otherwise noted.

                   Subpart 1804.1--Contract Execution



Sec. 1804.103  Contract clause.

    The contracting officer shall include the clause at FAR 52.204-1, 
Approval of Contract, in solicitations, contracts, and supplemental 
agreements that require higher level approval. For actions requiring 
Headquarters approval, insert ``NASA Assistant Administrator for 
Procurement'' in the clause's blank space.



Sec. 1804.170  Contract effective date.

    (a) Contract effective date means the date agreed upon by the 
parties for beginning the period of performance under the contract. In 
no case shall the effective date precede the date on which the 
contracting officer or designated higher approval authority signs the 
document.
    (b) Costs incurred before the contract effective date are 
unallowable unless they qualify as precontract costs (see FAR 31.205-32) 
and the clause prescribed at 1831.205-70 is used.

                  Subpart 1804.2--Contract Distribution



Sec. 1804.202  Agency distribution requirements.

    In addition to the requirements in FAR 4.201, the contracting 
officer shall distribute one copy of each R&D contract, including the 
Statement of

[[Page 186]]

Work, to the NASA Center for AeroSpace Information (CASI), Attention: 
Document Processing Section, 7121 Standard Drive, Hanover, MD 21076-
1320.

[64 FR 36606, July 7, 1999]



Sec. 1804.203  Taxpayer identification information.

    Instead of using the last page of the contract to provide the 
information listed in FAR 4.203, NASA installations may allow 
contracting officers to use a different distribution method, such as 
annotating the cover page of the payment office copy of the contract.

[64 FR 1528, Jan. 11, 1999]

   Subpart 1804.4--Safeguarding Classified Information Within Industry



Sec. 1804.402  General.

    (b) NASA security policies and procedures are prescribed in NPD 
1600.2A, NASA Security Policy; NPG 1600.6A, Communications Security 
Procedures and Guidelines; NPG 1620.1, Security Procedures and 
Guidelines; NPG 2810.1 and NPD 2810.1 Security of Information 
Technology.

[66 FR 53546, Oct. 23, 2001]



Sec. 1804.404-70  Contract clause.

    The contracting officer shall insert the clause at 1852.204-75, 
Security Classification Requirements, in solicitations and contracts if 
work is to be performed will require security clearances. This clause 
may be modified to add instructions for obtaining security clearances 
and access to security areas that are applicable to the particular 
acquisition and installation.



Sec. 1804.470  Security requirements for unclassified information 
          technology resources.



Sec. 1804.470-1  Scope.

    This section implements NASA's acquisition-related aspects of 
Federal policies for assuring the security of unclassified automated 
information resources. Federal policies include, but are not limited to, 
the Computer Security Act of 1987 (40 U.S.C. 1441 et seq.), the Clinger-
Cohen Act of 1996 (40 U.S.C. 1401 et seq.), Public Law 106-398, section 
1061, Government Information Security Reform, OMB Circular A-130, 
Management of Federal Information Resources, and the National Institute 
of Standards and Technology security guidance and standards.

[67 FR 48815, July 26, 2002]



Sec. 1804.470-2  Policy.

    (a) NASA policies and procedures on security for automated 
information technology are prescribed in NPD 2810.1, Security of 
Information Technology, and in NPG 2810.1, Security of Information 
Technology. The provision of information technology (IT) security in 
accordance with these policies and procedures, is required in all 
contracts that include IT resources or services in which a contractor 
must have physical or electronic access to NASA's sensitive information 
contained in unclassified systems that directly support the mission of 
the Agency. This includes information technology, hardware, software, 
and the management, operation, maintenance, programming, and system 
administration of computer systems, networks, and telecommunications 
systems. Examples of tasks that require security provisions include:
    (1) Computer control of spacecraft, satellites, or aircraft or their 
payloads;
    (2) Acquisition, transmission or analysis of data owned by NASA with 
significant replacement costs should the contractor's copy be corrupted; 
and
    (3) Access to NASA networks or computers at a level beyond that 
granted the general public, e.g. bypassing a firewall.
    (b) The contractor must not use or redistribute any NASA information 
processed, stored, or transmitted by the contractor except as specified 
in the contract.

[66 FR 36491, July 12, 2001]



Sec. 1804.470-3  Security plan for unclassified Federal Information 
          Technology systems.

    (a) The requiring activity with the concurrence of the Center Chief 
Information Officer (CIO), and the Center Information Technology (IT) 
Security Manager, must determine whether an

[[Page 187]]

IT Security Plan for unclassified information is required.
    (b) IT security plans must demonstrate a thorough understanding of 
NPG 2810.1 and NPD 2810.1 and must include, as a minimum, the security 
measures and program safeguards planned to ensure that the information 
technology resources acquired and used by contractor and subcontractor 
personnel--
    (1) Are protected from unauthorized access, alteration, disclosure, 
or misuse of information processed, stored, or transmitted;
    (2) Can maintain the continuity of automated information support for 
NASA missions, programs, and functions;
    (3) Incorporate management, general, and application controls 
sufficient to provide cost-effective assurance of the systems' integrity 
and accuracy;
    (4) Have appropriate technical, personnel, administrative, 
environmental, and access safeguards;
    (5) Document and follow a virus protection program for all IT 
resources under its control; and
    (6) Document and follow a network intrusion detection and prevention 
program for all IT resources under its control.
    (c) The contractor must be required to develop and maintain an IT 
System Security Plan, in accordance with NPG 2810.1, for systems for 
which the contractor has primary operational responsibility on behalf of 
NASA.
    (d) The contracting officer must obtain the concurrence of the 
Center Chief of Security before granting any contractor requests for 
waiver of the screening requirement contained in the clause at 1852.204-
76.

[66 FR 36491, July 12, 2001]



Sec. 1804.470-4  Contract clauses.

    The contracting officer must insert a clause substantially the same 
as the clause at 1852.204-76, Security Requirements for Unclassified 
Information Technology Resources, in solicitations and contracts which 
require submission of an IT Security Plan.

[66 FR 36491, July 12, 2001]

           Subpart 1804.5--Electronic Commerce in Contracting

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.



Sec. 1804.570  NASA Acquisition Internet Service (NAIS).



Sec. 1804.570-1  General.

    The NASA Acquisition Internet Service (NAIS) provides an electronic 
means for posting procurement synopses, solicitations, and associated 
information on the NAIS Internet site which in turn, automatically posts 
relevant information onto the Governmentwide point of entry (GPE).

[66 FR 53546, Oct. 23, 2001]



Sec. 1804.570-2  Electronic Posting System.

    (a) The NAIS Electronic Posting System (EPS) enables the NASA 
procurement staff to--
    (1) Electronically create and post synopses on the NAIS Internet 
site and the GPE; and
    (2) Post solicitation documents, including solicitation amendments 
or cancellations, and other procurement information on the NAIS Internet 
site with linked references on the GPE.
    (b) The EPS maintains an on-line index linking the posted synopses 
and solicitations for viewing and downloading.
    (c) The EPS shall be used to--
    (1) Create and post all synopses in accordance with FAR part 5 and 
NFS 1805; and
    (2) Post all competitive solicitation files, excluding large 
construction and other drawings, for acquisitions exceeding $25,000.
    (d) The NAIS is the official site for solicitation postings which in 
turn, automatically posts relevant information onto the Government-wide 
point of entry (GPE). In the event supporting materials, such as program 
libraries, cannot be reasonably accommodated by the NAIS, Internet sites 
external to NAIS may be established after coordination with the 
contracting officer. Such sites must be linked from the NAIS business 
opportunities index where the solicitation resides. External

[[Page 188]]

sites should not duplicate any of the files residing on the NAIS.

[66 FR 53546, Oct. 23, 2001]

                   Subpart 1804.6--Contract Reporting



Sec. 1804.601  Record requirements.

    The Headquarters Office of Procurement (Code HC) is responsible for 
meeting the requirements of FAR 4.601, based on installation submission 
of Individual Procurement Action Reports (NASA Form 507 series) data.

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998; 67 
FR 50823, Aug. 6, 2002]



Sec. 1804.602  Federal Procurement Data System. (NASA supplements 
          paragraph (d))

    (d) Code HC is responsible for requesting, obtaining, and reporting 
Contractor Establishment Codes to the FPDS.

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998; 67 
FR 50823, Aug. 6, 2002]



Sec. 1804.670  Individual Procurement Action Report (NASA Form 507 
          series).

    The Individual Procurement Action Report and Supplements (NASA Form 
507 series) provide essential procurement records and statistics through 
a single uniform reporting program as a basis for required recurring and 
special reports to Congress, Federal Procurement Data Center, and other 
Federal agencies. The preparation and utilization of the NASA Form 507 
series are integral parts of the agencywide Financial and Contractual 
Status (FACS) system. The Headquarters Office of Procurement issues 
Procurement Information Circulars (PICs) to--
    (a) Identify the procurement actions subject to reporting; and
    (b) Provide instructions on preparation of the NASA Forms 507.

[67 FR 50823, Aug. 6, 2002]



Sec. 1804.671  Committee on Academic Science and Engineering (C.A.S.E.) 
          Report.

    NASA Form 1356, C.A.S.E. Report on College and University Projects, 
shall be prepared for awards to nonprofit institutions of higher 
education or to nonprofit institutions that are operationally affiliated 
or integrated with an educational institution. Information on this form 
is used to produce reports required by the National Science Foundation 
and to respond to inquiries. Submission is required regardless of 
instrument type (contract, grant, cooperative agreement, or funded Space 
Act agreement) and type of proposal (solicited or unsolicited). 
Instructions appear on the form itself and constitute the detailed 
guidance for preparation and submission. The form, which is either 
included with the acquisition package or initiated by the contracting 
office, shall be completed, reviewed, and promptly forwarded upon award 
to the Headquarters Office of Human Resources and Education (Code FE).

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998]

                Subpart 1804.8--Government Contract Files



Sec. 1804.802-70  Handling of classified material.

    When a contract is unclassified, classified material relating to 
that contract shall be maintained in a separate file folder and 
container, and the unclassified folder shall be marked to indicate the 
location of the classified material. The front and back of each folder 
containing classified material shall be marked with the highest 
classification assigned to any document in the folder.



Sec. 1804.803  Contents of contract files.



Sec. 1804.803-70  Checklist.

    NASA Form 1098, Checklist for Contract Award File Content, shall be 
used as the ``top page'' in contract files.



Sec. 1804.804  Closeout of contract files.



Sec. 1804.804-2  Closeout of the contracting office files if another 
          office administers the contract. (NASA supplements paragraph 
          (b))

    (b) Upon receiving the NASA Form 1611 or DD Form 1594, Contract 
Completion Statement, from the contract administration office and 
complying

[[Page 189]]

with FAR 4.804-2(b), the contracting officer shall complete the form.



Sec. 1804.804-5  Procedures for closing out contract files.

    (a) When the contracting office retains contract administration 
(excluding acquisitions under the simplified acquisition threshold), the 
contracting officer must comply with FAR 4.804-5(a) by completing NASA 
Form 1612, Contract Closeout Checklist, and DD Form 1593, Contract 
Administration Completion Record.
    (b) To comply with FAR 4.804-5(b), the contracting officer must 
complete NASA Form 1611 or DD Form 1594, Contract Completion Statement, 
except for acquisitions under the simplified acquisition threshold.

[61 FR 40539, Aug. 5, 1996, as amended at 65 FR 31102, May 16, 2000]



Sec. 1804.805  Storage, handling, and disposal of contract files. (NASA 
          supplements paragraph (a))

    (a) See NPG 1441.1C, Records Retention Schedules.

[61 FR 40539, Aug. 5, 1996, as amended at 64 FR 5620, Feb. 4, 1999]



Sec. 1804.805-70  Review, separation, and retirement of contract files.

    (a) Upon determination of contract completion under the procedures 
outlined in 1804.804, each office shall remove the official contract 
files from the active file series, mark each file folder with 
``Completed (Date)'', and place the folder in a completed (inactive) 
contract file series. Separate series should be established for 
contracts of $25,000 or less and for contracts of more than $25,000, to 
facilitate later disposal. Any original or official file copies of 
documents contained in duplicate or ``working'' contract files shall be 
removed and placed in the appropriate official file; any remaining 
material in the duplicate or ``working'' file shall be destroyed 
immediately or segregated and marked for early disposal.
    (b) Each office shall review contractor ``general'' files (i.e., a 
file containing documents relating generally to a contractor rather than 
a specific contract) at least once annually and remove documents that--
    (1) Are obsolete or superseded documents relating generally to the 
contractor (e.g., documents no longer pertinent to any aspect of a 
contractor's current or future capability, performance, or programs, and 
documents relating to a contractor that is no longer a possible source 
of supplies, services, or technical assistance) and dispose of the 
documents as authorized in 1804.805; or
    (2) Pertain only to completed contracts. Place those files that are 
not routine in nature in inactive files for later disposal, and 
immediately dispose of routine documents as authorized in NPG 1441.1C, 
Records Retention Schedules.

[61 FR 40539, Aug. 5, 1996, as amended at 64 FR 5620, Feb. 4, 1999]

       Subpart 1804.9--Taxpayer Identification Number Information



Sec. 1804.904  Reporting payment information to the IRS.

    Each NASA installation, that has its own employer identification 
number, may elect to report to the IRS payments under purchase orders 
and contracts for merchandise and other exempt bills.

[64 FR 1528, Jan. 11, 1999]

     Subpart 1804.70--Transfer of Contracting Office Responsibility



Sec. 1804.7000  Scope of subpart.

    This subpart contains policies and procedures applicable to the 
transfer of contracts between NASA installations.



Sec. 1804.7001  Definition.

    Transfer of a contract, as used in this subpart, means that process 
whereby a contract and all future responsibility for a contract held by 
one installation are transferred or reassigned in writing to another 
installation.



Sec. 1804.7002  Approval of transfer requests.

    (a) The approval authority for requests to transfer a contract is 
the official in charge of the cognizant Headquarters program office or 
designee.

[[Page 190]]

Requests for approval shall be submitted by the director of the 
transferring installation after receiving the concurrence of the 
director of the receiving installation. Concurrence of the Associate 
Deputy Administrator (Code AI) is also required for a transfer where an 
installation's roles and missions may be affected.
    (b) Approval of a program transfer by the cognizant Headquarters 
official constitutes approval to transfer program-related contracts.



Sec. 1804.7003  Responsibilities of the contracting officer of the 
          transferring installation.



Sec. 1804.7003-1  Coordinations.

    The contracting officer of the transferring installation shall take 
the following steps before transferring the contract:
    (a) Agree on a plan and schedule with the contracting officer of the 
receiving installation for transferring contract responsibility and 
contract files.
    (b) Coordinate with the following offices:
    (1) Financial Management Office, to determine the contract financial 
records to be transferred and the method, timing, and dollar amount of 
such transfers.
    (2) Technical (Engineering and Project) Office, to determine the 
status of any outstanding engineering changes.
    (3) Reliability and Quality Assurance Office, to determine status 
and method of transferring the reliability and quality assurance 
functions.
    (4) Industrial Property and Facilities Office, to determine the 
method of transferring the Government property records.
    (5) Transportation Office, to determine the status of bills of 
lading furnished the contractor.
    (6) Security Office, to determine whether any classified material is 
outstanding and whether special precautions are necessary during the 
transfer process.
    (7) Other organizational elements, to determine the status of any 
other actions such as new technology, materials reports, PERT, and 
safety.



Sec. 1804.7003-2  File inventory.

    The contracting officer of the transferring installation shall 
prepare an inventory of the contract file. This inventory shall also 
include a separate listing of all outstanding requests for contract 
administration assistance issued to other Government agencies, 
indicating the name and address of the agency office, functions 
requested to be performed, estimated cost of the services, and estimated 
reimbursement due the administration agency for the services yet to be 
performed for each requested function. Copies of this inventory shall be 
provided to the contracting officer of the receiving installation.



Sec. 1804.7003-3  Notifications.

    The contracting officer of the transferring installation shall 
provide written notification of the planned transfer to the contractor 
and all agencies performing or requested to perform administration 
services.



Sec. 1804.7003-4  Transfer.

    (a) Upon completion of the actions described in 1804.7003-1 through 
1804.7003-3, the contracting officer of the transferring installation 
shall issue a letter to the contractor, agencies performing contract 
administration functions, contracting officer representatives, and the 
contracting officer of the receiving installation. This letter shall 
provide notification of the transfer date, termination of appointment of 
the contracting officer's representatives, and the name, mailing 
address, and telephone number of the contracting officer of the 
receiving installation.
    (b) After issuing the letters described in 1804.7003-4(a), the 
contracting officer of the transferring installation shall send the 
contract file to the contracting officer of the receiving installation 
with a letter transferring contract responsibility. This letter shall 
contain a provision for acceptance of the responsibility for the 
contract and its related files by the contracting officer of the 
receiving installation.

[[Page 191]]



Sec. 1804.7003-5  Retention documentation.

    The contracting officer of the transferring installation shall 
retain for permanent file a copy of the approvals and concurrences 
required by 1804.7002, the transfer acceptance letter of the contracting 
officer of the receiving installation, and any additional documents 
necessary for a complete summary of the transfer action.



Sec. 1804.7004  Responsibilities of the contracting officer of the 
          receiving installation.



Sec. 1804.7004-1  Pre-transfer file review.

    The contracting officer of the receiving installation shall review 
the contract, letters of request, actions in process, and other related 
files and to request corrective action, if necessary, before the 
official transfer of the contract. This review may be waived by written 
notification to the contracting officer of the transferring 
installation.



Sec. 1804.7004-2  Post-transfer actions.

    The contracting officer of the receiving installation shall--
    (a) Provide the contracting officer of the transferring installation 
written acceptance of contract responsibility and receipt of the 
contract files;
    (b) Inform all offices affected within the installation of the 
receipt of the contract;
    (c) Appoint new contracting officer's technical representatives, as 
necessary;
    (d) Issue a contract modification to provide for the administrative 
changes resulting from the transfer action (e.g., identifying offices 
responsible for performing contract administration and making payment 
and the office to which vouchers, reports, and data are to be 
submitted);
    (e) Provide copies of the contract documents to affected 
installation offices; and
    (f) If appropriate, supplement the letter of request to the 
Government agency providing contract administration services to reflect 
the changes resulting from the transfer action. The supplement may 
terminate or amend an existing contract administration support 
arrangement or may request support in additional areas.

     Subpart 1804.71--Uniform Acquisition Instrument Identification



Sec. 1804.7100  Scope of subpart.

    This subpart contains the procedures for uniform numbering of NASA 
solicitations, contracts (including letter contracts), purchase orders 
(including requests to other Government agencies), basic ordering 
agreements, other agreements between the parties involving the payment 
of appropriated funds or collection of funds for credit to the Treasury 
of the United States, and modifications or supplements to these 
instruments.



Sec. 1804.7101  Policy.

    (a) Contractual documents shall be numbered with approved prefixes 
and serial numbers as prescribed in this subpart. If other 
identification is required for center purposes, it shall be placed on 
the document in such a location as to clearly separate it from the 
identification number.
    (b) The identification number shall consist of not more than 11 
alpha-numeric characters positioned as prescribed in this subpart and 
shall be retained unchanged for the life of the particular instrument.



Sec. 1804.7102  Prefixes.

    (a) Approved prefixes are as follows:

------------------------------------------------------------------------
                                                         Purchase order
            Installation              Contract prefix        prefix
------------------------------------------------------------------------
Ames Research Center...............  NAS 2............  A
Dryden Flight Research Center......  NAS 4............  E
Glenn Research Center at Lewis       NAS 3............  C
 Field.
Goddard Space Flight Center........  NAS 5............  S
Headquarters.......................  NASW.............  W
Lyndon B. Johnson Space Center.....  NAS 9............  T
John F. Kennedy Space Center.......  NAS10............  CC
Langley Research Center............  NAS 1............  L
George C. Marshall Space Flight      NAS 8............  H
 Center.
NASA Management Office-JPL.........  NAS 7............  WO
John C. Stennis Space Center.......  NAS13............  NS
Space Station Program Office.......  NAS15............  K
------------------------------------------------------------------------

    (b) The contract prefix shall be used for the following documents:
    (1) Contracts, including letter contracts, indefinite-delivery 
contracts, utilities, leases of real property and renewals.
    (2) Easements.
    (3) Basic ordering agreements.

[[Page 192]]

    (4) Other written agreements involving payment or receipt of funds 
not covered by 1804.7102(e).
    (c) Contracts totally funded under reimbursable arrangements with 
the department of Energy shall use a DEN prefix instead of the NAS 
prefix (e.g., DEN 8 for Marshall).
    (d) Space Act agreements awarded under the authority of Section 
203(c)(5) or 203(c)(6) of the Space Act shall use an NCA prefix instead 
of the NAS prefix (e.g., NCA 8 for Marshall).
    (e) The purchase order prefix shall be used for purchase orders 
(including blanket purchase agreements) and requests to other Government 
agencies to furnish supplies or services.
    (f) Solicitations shall be numbered in accordance with installation 
procedures, except that in all cases the identifying number shall begin 
with the portion of the installation's contract prefix following 
``NAS.''
    (g) If a prefix is required for an installation or office not listed 
in this section, a request for a prefix assignment shall be submitted to 
the Headquarters Office of Procurement (Code HS).

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998; 64 
FR 19926, Apr. 23, 1999]



Sec. 1804.7103  Serial numbers.

    (a) Installations shall number contracts and agreements identified 
in 1804.7102(b) serially by fiscal year. The serial number shall be five 
digits beginning with a two-digit fiscal year identifier followed by a 
three digits commencing with ``001'' and continuing in succession. For 
example, the first contracts awarded by Ames Research Center in fiscal 
year 1997 shall be numbered NAS 2 97001 and NAS 2 97002. Fiscal year 
identification is optional for Space Act agreements.
    (b) Serial numbers for purchase orders shall be assigned serially 
without fiscal year identification. When the series of numbers exceeds 
five digits (over 99,999), a new series shall be used, beginning the 
series with number ``1'' and followed by the capital letter ``A.'' 
Should additional series become necessary, they will be distinguished by 
the capital letters ``B,'' ``C,'' and so forth, as may be required, 
except that the letters ``I'' and ``O'' shall not be used.

[61 FR 40539, Aug. 5, 1996, as amended at 66 FR 53546, Oct. 23, 2001]



Sec. 1804.7104  Modifications of contracts or agreements.

    (a) Modifications of definitive or letter contracts or agreements 
shall (1) bear the same identification as the contract or agreement 
being modified and (2) be numbered consecutively for each contract or 
agreement, beginning with Modification Number 1, regardless of whether 
the modification is accomplished by unilateral or bilateral action. 
Except for termination notices, modifications shall be effected by the 
use of Standard Form 30, Amendment of Solicitation/Modification of 
Contract.
    (b) Definitive contracts superseding letter contracts shall retain 
the same contract number as that originally assigned to the letter 
contract. Actions definitizing letter contracts are considered 
modifications and shall be assigned modification numbers in accordance 
with paragraph (a) of this section.

     Subpart 1804.72--Review and Approval of Contractual Instruments



Sec. 1804.7200  Contact review by Headquarters.

    (a) Requests for approval of contracts and supplemental agreements 
by the Assistant Administrator for Procurement shall be submitted to the 
Headquarters Office of Procurement (Code HS) in sufficient time to allow 
a minimum of 15 days for review.
    (b) Each request for approval shall be accompanied by (1) five 
copies of the contractual document, one of which has been executed by 
the contractor and contracting officer, and (2) the official contract 
file containing the appropriate documentation as set forth in FAR 
4.803(a). However, for the items specified in FAR 4.803(a) (10), (11), 
and (12), the contracting officer shall provide documentation pertaining 
only to the successful offeror; and, in lieu of the items specified in 
FAR 4.803(a)(26) (ii) and (iii), the contracting officer

[[Page 193]]

shall provide an index briefly describing the content of all previous 
modifications.
    (c) The approval required under this section shall be made by 
signature of the Assistant Administrator for Procurement on the 
contract/supplemental agreement.

                  Subpart 1804.73--Procurement Requests



Sec. 1804.7301  General.

    (a) Except in unusual circumstances, the contracting office shall 
not issue solicitations until an approved procurement request (PR), 
containing a certification that funds are available, has been received. 
However, the contracting office may take all necessary actions up to the 
point of contract obligation before receipt of the PR certifying that 
funds are available when--
    (1) Such action is necessary to meet critical program schedules;
    (2) Program authority has been issued and funds to cover the 
acquisition will be available prior to the date set for contract award 
or contract modification;
    (3) The procurement officer authorizes such action in writing before 
solicitation issuance; and
    (4) The solicitation includes the clause at FAR 52.232-18, 
Availability of Funds. The clause shall be deleted from the resultant 
contract.
    (b) The contracting office shall not issue either a draft or final 
solicitation until a PR, either planning or final, has been received 
that contains an NPG 7120.5 certification. That certification must be 
made by the project or program office that initiated the PR, or the PR 
approval authority when there is no project or program office. The 
certification must state that either--
    (1) The requested action is not in support of programs and projects 
subject to the requirements of NPG 7120.5, or
    (2) The requested action is in support of programs and projects 
subject to the requirements of NPG 7120.5, and
    (i) All NPG 7120.5 required documentation is current and has been 
approved; or
    (ii) Authority to proceed without the required documentation has 
been granted by the Chair of the Governing Program Management Council or 
designee.

[64 FR 14640, Mar. 26, 1999]

            Subpart 1804.74--Central Contractor Registration

    Source: 65 FR 50153, Aug. 17, 2000, unless otherwise noted.



Sec. 1804.7400  Scope.

    This subpart prescribes policies and procedures for requiring 
contractor registration in the DoD Central Contractor Registration (CCR) 
database.



Sec. 1804.7401  Definitions.

    ``Central Contractor Registration (CCR) database,'' ``Data Universal 
Numbering System (DUNS) number,'' ``Data Universal Numbering System+4 
(DUNS+4) number,'' ``Commercial and Government Entity (CAGE) Code,'' and 
``Registered in the CCR database'' are defined in the clause at 
1852.204-74, Central Contractor Registration.



Sec. 1804.7402  Policy.

    Prospective contractors must be registered in the CCR database, 
prior to any award of a contract, purchase order, basic agreement, basic 
ordering agreement, or blanket purchase agreement. This policy applies 
to all types of awards except the following:
    (a) Purchases made with a Government-wide commercial purchase card.
    (b) Awards made to foreign vendors for work performed outside of the 
United States.
    (c) Purchases under FAR 6.302-2, Unusual and Compelling Urgency.

[65 FR 50153, Aug. 17, 2000, as amended



Sec. 1804.7403  Procedures.

    (a)(1) The contracting officer shall verify that the prospective 
awardee is registered in the CCR database using either the Cage Code, 
DUNS number or, if applicable, the DUNS+4 number, via the Internet at 
http://www.ccr. gov or by calling toll free: 888-CCR-2423 (888-227-
2423), commercial: 616-961-5757.
    (2) Verification of registration is not required for orders or calls 
placed under contracts, basic agreements,

[[Page 194]]

basic ordering agreements, or blanket purchase agreements in which 
vendor registration was verified at the time of award of the contract or 
agreement.
    (b) If the contracting officer determines that a prospective awardee 
is not registered in the CCR database, the contracting officer shall --
    (1) If delaying the acquisition would not be to the detriment of the 
Government, proceed to award after the contractor is registered; or
    (2) If delaying the acquisition would be to the detriment of the 
Government, proceed to award to the next otherwise successful registered 
offeror, with the written approval of the Procurement Officer.
    (c) The contracting officer shall protect against improper 
disclosure of contractor CCR information.

[65 FR 50153, Aug. 17, 2000, as amended at 67 FR 30603, May 7, 2002; 67 
FR 50823, Aug. 6, 2002]



Sec. 1804.7404  Solicitation provisions and contract clauses.

    Except as provided in 1804.7402, the contracting officer must use 
the clause at 1852.204-74, Central Contractor Registration, in all 
solicitations and contracts, including those for commercial items.

[[Page 195]]

           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

                 PART 1805--PUBLICIZING CONTRACT ACTIONS

              Subpart 1805.1--Dissemination of Information

Sec.

Sec. 1805.101  Methods of disseminating information.

             Subpart 1805.2--Synopses of Proposed Contracts


Sec. 1805.205  Special situations.

Sec. 1805.207  Preparation and transmittal of synopses.

Sec. 1805.207-70  Synopses of Architect-Engineer Services and Federal 
          Information Processing Resources.

               Subpart 1805.3--Synopses of Contract Awards


Sec. 1805.303  Announcement of contract awards.

Sec. 1805.303-70  NASA Headquarters public announcement.

Sec. 1805.303-71  Administrator's notice of significant contract actions 
          (ANOSCAs).

                 Subpart 1805.4--Release of Information


Sec. 1805.402  General public.

Sec. 1805.403  Requests from Members of Congress.

                   Subpart 1805.5--Paid Advertisements


Sec. 1805.502  Authority.

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

    Source: 61 FR 40543, Aug. 5, 1996, unless otherwise noted.

              Subpart 1805.1--Dissemination of Information



Sec. 1805.101  Methods of disseminating information. (NASA supplements 
          paragraph (b))

    (b)(4) For NASA policy regarding paid advertisements, see 1805.502.

             Subpart 1805.2--Synopses of Proposed Contracts



Sec. 1805.205  Special situations. (NASA supplements paragraph (a))

    (a) Potential sources responding to R&D advance notices shall be 
added to the appropriate solicitation mailing list for the subsequent 
solicitation and, if they do not appear on the solicitation mailing 
lists established in accordance with FAR 14.205-1, shall be requested to 
submit Standard Form 129, Solicitation Mailing List Application. 
Responding sources on established lists may be requested to submit 
amended applications in order to reflect their current capabilities.



Sec. 1805.207  Preparation and transmittal of synopses.

    (a) Synopses shall be transmitted in accordance with 1804.570.

[61 FR 40543, Aug. 5, 1996, as amended at 63 FR 9954, Feb. 27, 1998]



Sec. 1805.207-70  Synopses of Architect-Engineer Services and Federal 
          Information Processing Resources.

    (a) Architect-engineering services. (1) Each notice publicizing the 
acquisition of architect-engineer services shall be headed ``C. 
Architect-Engineer Services.''
    (2) In addition to meeting the requirements of FAR 5.207(c), the 
project description shall--
    (i) State the relative importance the Government attaches to the 
significant evaluation criteria and the date by which responses to the 
notice must be received, including submission of Standard Form 255, 
Architect-Engineer and Related Services Questionnaire for Specific 
Project, if required;
    (ii) Describe any specialized qualifications, security 
classifications, and limitations on eligibility for consideration;
    (iii) Describe qualifications or performance data required from 
architect-engineer firms; and
    (iv) If the acquisition is to be set aside for small business, state 
this fact, indicating the specific size standard to be used and 
requiring that eligible responding firms submit a small business 
representation.
    (3) Contracting officers shall add at the end of the synopsis:


[[Page 196]]


    See Note 24. Provisions of Note 24 apply to this notice except that 
(a) in the sentence beginning ``Selection of firms for negotiations,'' 
the fourth additional consideration listed is changed to read: ``(4) 
past experience, if any, of the firm with respect to performance on 
contracts with NASA, other Government agencies, and private industry;'' 
and (b) in the last sentence, ``National Aeronautics and Space 
Administration'' is substituted for ``Department of Defense.''

    (b) Federal Information Processing (FIP) Resources. (1) When total 
requirement quantities are expected to satisfy the needs of only a 
single field installation, each notice publicizing the acquisition of 
FIP resources under an indefinite delivery/idenfinite quantity contract 
or under a contract that includes options for additional quantities of 
such resources shall include the following:

    The ---- (identify contracting activity) is the primary delivery 
point for the items described in this synopsis. However, NASA may order 
delivery to the following alternate locations: ---- (List other NASA 
installations and their locations).

    (2) When the contemplated contract will authorize orders from 
locations other than the awarding installation, the notice shall fully 
describe the ordering scope.

               Subpart 1805.3--Synopses of Contract Awards



Sec. 1805.303  Announcement of contract awards. (NASA supplements 
          paragraph (a))

    (a)(i) In lieu of the $3 million threshold cited in FAR 5.303(a), 
NASA Headquarters public announcement is required for award of contract 
actions that have a total anticipated value, excluding unexercised 
options, of $25 million or greater. This threshold applies to new 
awards, contract modifications, and option exercises, but not to 
incremental funding or cost overrun modifications.
    (A) For undefinitized contract actions, the not-to-exceed (NTE) or 
ceiling price value is the face value.
    (B) For indefinite delivery, time and material, labor hour, and 
similar contracts, the estimated amount of the basic contract is the 
face value. Individual orders up to the face value shall not be 
announced regardless of value. However, after the face value is reached, 
any subsequent modifications or orders of $25 million or greater must be 
announced.
    (ii) NASA Headquarters public announcement is also required for 
award of a contract action with a value of less than $25 million if the 
contracting officer believes it to have Agency public information 
implications.
    (iii) Contractual instruments requiring Headquarters public 
announcement shall not be distributed nor shall any source outside NASA 
be notified of their status until the public announcement procedures in 
1805.303-70 have been completed.



Sec. 1805.303-70  NASA Headquarters public announcement.

    (a) For those contract actions requiring Headquarters public 
announcement in accordance with 1805.303, the contracting officer shall 
furnish a draft news release including the following information, 
through the installation Public Affairs Office, via facsimile 
transmission to the Headquarters Office of Public Affairs, News and 
Imaging Branch (Code PM):
    (1) A brief description of the work, including identification of the 
program and project;
    (2) Identification of the contract action as either a new contract 
or additional work of services under an existing contract;
    (3) Contract type. For undefinitized contract actions, identify the 
planned contract type of the definitized instrument;
    (4) The dollar amount authorized for the instant action and the 
estimated total cost of the contract if this is different. For 
undefinitized contract actions, indicate the NTE or ceiling price 
amount;
    (5) Name and address (including zip code) of the contractor;
    (6) Principal work performance locations;
    (7) Names and addresses of any unsuccessful offerors.
    (b) The information in paragraph (a) of this section shall be 
provided to Code PM before transmitting a letter contract to a 
contractor for signature.

[[Page 197]]

For actions other than letter contracts, the information should be 
transmitted to Code PM after contractor signature, if applicable, no 
later than 48 hours before the planned award.
    (c) For contract actions requiring Headquarters approval in 
accordance with 1804.72, the draft news release required by paragraph 
(a) of this section shall be provided to the Headquarters Office of 
Procurement (Code HS) with the request for approval. Code HS will 
forward the information to Code PM after approval.
    (d) Code PM will advise the installation Public Affairs Office of 
the date public announcement of the contract action will be made. 
Installations may proceed with award and local release of the 
information no earlier than 4:00 p.m. ET of the date Code PM makes 
public announcement. If earlier award is considered appropriate, 
installations must request authorization from the Assistant 
Administrator for Procurement (Code HS).



Sec. 1805.303-71  Administrator's notice of significant contract actions 
          (ANOSCAs).

    (a) In addition to the public announcement requirements described in 
1805.303-70, contracting officers shall notify the Administrator of the 
following significant actions at least five (5) workdays prior to 
planned public announcement of the actions:
    (1) Planned contract award for competitive acquisitions of $25 
million or more, including all priced options.
    (2) Planned contract award of non-competitive awards and new work 
modifications of $100 million or more, including all priced options.
    (3) Planned award of other actions, to include cooperative 
agreements resulting from a Cooperative Agreement Notice (CAN), at any 
dollar value thought to be of significant interest to Headquarters.
    (b) To provide notification to the Administrator, the contracting 
officer shall send the information listed in paragraphs (b) (1) through 
(10) of this subsection to the Headquarters Office of Procurement (Code 
HS) via facsimile transmission (202-358-4065). Immediately prior to 
transmission, the contracting officer shall notify Code HS by telephone 
of the impending transmission. In accordance with FAR 3.104-5(c), the 
contracting officer shall mark all pages that include source selection 
information with the legend ``SOURCE SELECTION INFORMATION--SEE FAR 
3.104.'' The following information shall be sent:
    (1) Title and a brief nontechnical description of the work, 
including identification of the program or project;
    (2) Identification of the contract action as either a new contract 
or additional supplies or services under an existing contract;
    (3) Contract type (including whether a cost contract is completion 
or level-of-effort). For undefinitized contract actions, identify the 
planned contract type of the definitized instrument;
    (4) The total contract value for the instant action including all 
priced options. Also include the Government's most probable cost. For 
undefinitized contract actions, indicate the NTE or ceiling price 
amount;
    (5) The name, address, and business size status of the prime 
contractor and each major (over $1M) subcontractor;
    (6) Small business and small disadvantaged business subcontracting 
goals both in dollars and percentage of the value of the action 
including all options;
    (7) Principal work performance locations;
    (8) Brief description of any unusual circumstances;
    (9) The names and telephone numbers of the contracting officer and 
project manager; and
    (10) For competitive selections only, provide on a separate 
attachment the names and addresses of all unsuccessful offerors and a 
brief explanation of the general basis for the selection.
    (c) The field installation shall not proceed with any awards or 
announcements until Code HS has advised that the Administrator has been 
notified of the proposed action and the supporting

[[Page 198]]

information. Once this advice is received from Code HS, the field 
installation shall proceed with the public announcement procedures 
described in 1805.303-70.

[61 FR 40543, Aug. 5, 1996, as amended at 62 FR 4466, Jan. 30, 1997; 63 
FR 43099, Aug. 12, 1998]

                 Subpart 1805.4--Release of Information



Sec. 1805.402  General public. (NASA paragraphs (1) and (2)

    (1) Unless the head of the contracting activity determines that 
disclosure would be prejudicial to the interests of NASA, the following 
information on NASA acquisitions may be released:
    (i) The names of firms invited to submit offers, and
    (iii) The names of firms that attended any pre-bid or pre-proposal 
conferences.
    (2) Other requests for information under the Freedom of Information 
Act shall be processed in accordance with FAR 24.2 and 1824.2.

[62 FR 14016, Mar. 25, 1997]



Sec. 1805.403  Requests from Members of Congress. (NASA supplements 
          paragraph (a))

    (a) All proposed replies to congressional inquiries shall be 
prepared and forwarded, with full documentation, to the Headquarters 
Office of Legislative Affairs (Code L) for approval and release.

                   Subpart 1805.5--Paid Advertisements



Sec. 1805.502  Authority.

    Use of paid advertisements for procurement purposes (except CBD 
announcements) is not authorized in NASA.

                   PART 1806--COMPETITION REQUIREMENTS

  Subpart 1806.2--Full and Open Competition After Exclusion of Sources

Sec.

Sec. 1806.202  Establishing or maintaining alternative sources.

Sec. 1806.202-70  Formats.

          Subpart 1806.3--Other Than Full and Open Competition


Sec. 1806.302  Circumstances permitting other than full and open 
          competition.

Sec. 1806.302-4  International agreement.

Sec. 1806.302-470  Documentation.

Sec. 1806.302-7  Public interest.

Sec. 1806.303  Justifications.

Sec. 1806.303-1  Requirements.

Sec. 1806.303-170  Sole-source purchases by contractors.

Sec. 1806.303-2  Content.

Sec. 1806.303-270  Use of unusual and compelling urgency authority.

Sec. 1806.304-70  Approval of NASA justifications.

                  Subpart 1806.5--Competition Advocates


Sec. 1806.501  Requirement.

Sec. 1806.502  Duties and responsibilities.

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

    Source: 61 FR 40545, Aug. 5, 1996, unless otherwise noted.

  Subpart 1806.2--Full and Open Competition After Exclusion of Sources



Sec. 1806.202  Establishing or maintaining alternative sources. (NASA 
          supplements paragraphs (a) and (b))

    (a) The authority of FAR 6.202 is to be used to totally or partially 
exclude a particular source.
    (b) The supporting data and the D&F must name the source to be 
excluded and shall include the following information as applicable and 
any other relevant information:
    (i) The specific purpose to be served in excluding the source as 
enumerated in FAR 6.202(a).
    (ii) The acquisition history of the supplies or services, including 
sources, prices, quantities, and dates of award.
    (iii) The circumstances making it necessary to exclude a particular 
source from the contract action:
    (A) Reasons for lack of sources; e.g., the technical complexity and 
criticality of the item.
    (B) Current annual requirement and prospective needs for the 
supplies and services.
    (C) Projected future requirements.
    (iv) Whether the existing source must be totally excluded from the 
action or

[[Page 199]]

whether a partial exclusion is sufficient.
    (v) The potential effect of exclusion on the excluded source in 
terms of any loss of capability to furnish the supplies or services in 
subsequent contract actions.
    (vi) When the authority of FAR 6.202(a)(1) is cited, the basis for--
    (A) Assumptions regarding future competition; and
    (B) The determination that exclusion of a particular source will 
likely result in reduced overall costs for anticipated future 
acquisitions, including (as a minimum) discussion of start-up costs, 
costs associated with facilities, duplicative administration costs (such 
as for additional inspection or testing), economic order quantities, and 
life-cycle-cost considerations.
    (vii) When an additional source or additional sources must be 
established to provide production capacity to meet current and 
mobilization requirements--
    (A) The current annual and the mobilization requirements for the 
item, citing the source of, or the basis for, the planning data;
    (B) A comparison of current production capacity with current and 
mobilization requirements; and
    (C) The hazards of relying on the present source and the time 
required for new sources to acquire the necessary facilities and skills 
and achieve the production capacity necessary to meet requirements.



Sec. Sec. 1806.202-70  Formats.

    A sample format for D&Fs citing the authority of FAR 6.202(a) 
follows:

   National Aeronautics and Space Administration, Washington, DC 20546

                       Determination and Findings

                      Authority to Exclude a Source

    On the basis of following findings and determination, which I make 
under the authority of 10 U.S.C. 2304(b)(1) as implemented by FAR 6.202, 
the proposed contract action described below may be awarded using full 
and open competition after exclusion of------(1).

                                Findings

    1. It is proposed that the following requirement be acquired using 
full and open competition after exclusion of the source identified 
above.
    2. The source identified above can be expected to receive an award 
for this requirement unless excluded.
    3. It is necessary to establish or maintain an alternative source or 
sources.
    4. The exclusion of this source will increase or maintain 
competition and is likely to result in reduction of ------(2) in overall 
costs for any anticipated acquisition of the supplies or services being 
acquired. This estimate is based on ------ (3).
    (See Note 4 for the use of Alternates I and II below.)
    Alternate I: The exclusion of this source will serve the national 
defense interest by having an alternative supplier available for 
furnishing the supplies or services being acquired, in case of a 
national emergency or industrial mobilization, because------(5).
    Alternate II: The exclusion of this source will serve the national 
defense interest by establishing or maintaining an essential 
engineering, research, or development capability of an educational or 
other nonprofit institution or a federally funded research and 
development center, because------(5).

                              Determination

    The exclusion of the source identified above will increase or 
maintain competition and is likely to result in reduced overall costs 
for any anticipated acquisition of the supplies or services being 
acquired.
    (See Note 4 for the use of Alternates I and II below.)
    Alternate I: It is in the interest of the national defense to 
exclude the source identified above in order to have an alternative 
supplier available for furnishing the supplies or services being 
acquired, in case of a national emergency or industrial mobilization.
    Alternate II: It is in the interest of national defense to exclude 
the source identified above in order to establish or maintain an 
essential engineering, research, or development capability to be 
provided by an educational or other nonprofit institution or a federally 
funded research and development center.
Date------------

    Notes:
    1. Name of source to be excluded.
    2. Description of estimated reduction in overall costs.
    3. Description of how estimate was derived.
    4. In paragraph 4 and in the Determination, the basic wording is 
appropriate when FAR 6.202(a)(1) applies; Alternate I is appropriate 
when FAR 6.202(a)(2) applies; and Alternate II is appropriate when FAR 
6.202(a)(3) applies.
    5. Description of circumstances necessitating the exclusion of the 
identified source.

[[Page 200]]

          Subpart 1806.3--Other Than Full and Open Competition



Sec. Sec. 1806.302  Circumstances permitting other than full and open 
          competition.



Sec. Sec. 1806.302-4  International agreement.



Sec. Sec. 1806.302-470  Documentation.

    Pursuant to 10 U.S.C. 2304(f)(2)(E), an individual justification for 
other than full and open competition under the authority of FAR 6.302-4 
is not required when the procurement officer signs a Memorandum for the 
Record that:
    (a) Describes the specific terms of the international agreement or 
treaty that limit acquisitions in support of, or as a result of, the 
agreement or treaty to less than full and open competition; and
    (b) Is included in each official contract file in the place for 
filing a Justification for Other than Full and Open Competition (see 
NASA Form 1098).

[61 FR 40545, Aug. 5, 1996, as amended at 63 FR 12997, Mar. 17, 1998; 63 
FR 32763, June 16, 1998]



Sec. 1806.302-7  Public interest. (NASA supplements paragraph (c))

    (c)(2) The notice to Congress shall be made by NASA Headquarters, 
Office of Legislative Affairs (Code L). Code HS shall request the notice 
to be made immediately upon approval of a D&F and shall advise the 
contracting activity of the date upon which the notification period 
ends.
    (3) The contracting officer shall prepare the D&F required by FAR 
6.302-7(c)(1) in any format that clearly documents the determination and 
the supporting findings.

[61 FR 40545, Aug. 5, 1996, as amended at 65 FR 12484, Mar. 9, 2000]



Sec. 1806.303  Justifications.



Sec. 1806.303-1  Requirements. (NASA supplements paragraphs (b) and (d))

    (b) Justifications for using less than full and open competition may 
be prepared by the technical office initiating the contract action when 
it is recommending the use of the justification authority, or by the 
contracting officer if the technical office does not make such a 
recommendation.
    (d) The contracting officer shall send a copy of each approved 
justification or D&F that cites the authority of FAR 6.302-3(a)(2)(i) or 
FAR 6.302-7 to NASA Headquarters, Office of Procurement (Code HK), 
unless one of the exceptions at FAR 25.401 applies to the acquisition. 
The transmittal shall indicate that the justification is being furnished 
under FAR 6.303-1(d).

[61 FR 40545, Aug. 5, 1996, as amended at 64 FR 48561, Sept. 7, 1999; 65 
FR 10031, Feb. 25, 2000; 65 FR 31102, May 16, 2000]



Sec. 1806.303-170  Sole-source purchases by contractors.

    The requirements of FAR part 6 and this part 1806 apply if NASA 
directs a prime contractor (by specifications, drawings, parts lists, or 
otherwise) to purchase items on a sole-source basis. Accordingly, 
procurement officers shall take necessary actions to ensure that such 
sole-source acquisitions are properly justified.

[61 FR 40545, Aug. 5, 1996, as amended at 67 FR 30603, May 7, 2002]



Sec. 1806.303-2  Content.



Sec. 1806.303-270  Use of unusual and compelling urgency authority.

    If the authority at FAR 6.302-2 is used for extending the 
performance period of an existing services contract, the justification 
shall contain the information required by FAR 6.303-2 and;
    (a) Documentation that the acquisition process for the successor 
contract was started early enough to allow for adequately planning and 
conducting a full and open competition, together with a description of 
the circumstances that prevented award in a timely manner; and
    (b) Documentation of the reasons why no other source could 
practicably compete for the interim requirement.



Sec. 1806.304-70  Approval of NASA justifications.

    Concurrences and approvals for justifications of contract actions 
conducted in accordance with FAR subparts 6.2 and 6.3 shall be obtained 
as follows:

[[Page 201]]

    (a) For proposed contracts over $500,000 but not exceeding 
$10,000,000--
    (1) Concurring official: Procurement Officer
    (2) Approving official: Center or Headquarters Competition Advocate.
    (b) For proposed contracts over $10,000,000 but not exceeding 
$50,000,000--
    (1) Concurring officials:
    (i) Procurement Officer
    (ii) Center or Headquarters Competition Advocate
    (2) Approving official: Center Director or Director for Headquarters 
Operations.
    (c) For proposed contracts over $50,000,000--
    (1) Concurring officials:
    (i) Procurement Officer
    (ii) Center or Headquarters Competition Advocate
    (iii) Center Director or Director for Headquarters Operations
    (iv) Agency Competition Advocate
    (2) Approving Official: Assistant Administrator for Procurement
    (d) The approval authority of FAR 6.304(a)(3) may not be delegated 
to other than the installation's Deputy Director.
    (e) For proposed contract actions requiring approval by the 
Assistant Administrator for Procurement, the original justification 
shall be forwarded to the Assistant Administrator for Procurement (Code 
HS).
    (f) Regardless of dollar value, class justifications shall be 
approved by the Assistant Administrator for Procurement.

                  Subpart 1806.5--Competition Advocates



Sec. 1806.501  Requirement. (NASA paragraphs (1), (2), (3) and (4))

    (1) The Deputy Assistant Administrator for Procurement is the agency 
competition advocate, reporting to the Associate Deputy Administrator on 
issues related to competition of NASA acquisitions.
    (2) The Center Deputy Directors or Associate Directors are the 
competition advocates for their contracting activities.
    (3) The Headquarters Chief Financial Officer, Code CF, is the 
competition advocate for the Headquarters contracting activity.
    (4) The Deputy Manager is the contracting activity competition 
advocate for the Space Station Program Office.

[61 FR 40545, Aug. 5, 1996, as amended at 64 FR 10571, Mar. 5, 1999]



Sec. 1806.502  Duties and responsibilities. (NASA supplements paragraph 
          (b))

    (b)(i) Center competition advocates shall submit annual reports to 
the agency competition advocate (Code HS) on or before November 30.
    (ii) The agency competition advocate shall submit an annual agency 
report on or before January 31.

                     PART 1807--ACQUISITION PLANNING

                    Subpart 1807.1--Acquisition Plans

Sec.

Sec. 1807.103  Agency-head responsibilities.

Sec. 1807.104  General procedures.

Sec. 1807.105  Contents of written acquisition plans.

Sec. 1807.107  Additional requirements for acquisitions involving 
          bundling.

Sec. 1807.107-70  Orders against Federal Supply Schedule contracts, 
          Governmentwide acquisition contracts (GWACs), or other 
          existing indefinite-delivery contracts.

Sec. 1807.170  Acquisition Strategy Meeting (ASM).

   Subpart 1807.2--Planning for the Purchase of Supplies in Economic 
                               Quantities


Sec. 1807.204  Responsibilities of contracting officers.

        Subpart 1807.3--Contractor Versus Government Performance


Sec. 1807.307  Appeals.

            Subpart 1807.5--Inherently Governmental Functions


Sec. 1807.503  Policy.

                Subpart 1807.70--Consolidated Contracting


Sec. 1807.7000  General.

                    Subpart 1807.71--Master Buy Plan


Sec. 1807.7100  General.

Sec. 1807.7101  Applicability.

Sec. 1807.7102  Submission, selection, and notification procedures.

[[Page 202]]


Sec. 1807.7102-1  Submission of Master Buy Plan.

Sec. 1807.7102-2  Submission of amendments to the Master Buy Plan.

Sec. 1807.7102-3  Selection and notification procedures.

Sec. 1807.7103  Format of Master Buy Plan.

                Subpart 1807.72--Acquisition Forecasting


Sec. 1807.7200  Scope of subpart.

Sec. 1807.7201  Definitions.

Sec. 1807.7202  Policy.

Sec. 1807.7203  Responsibilities.

Sec. 1807.7204  Forecast data.

Sec. 1807.7205  Public availability.

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

    Source: 61 FR 47068, Sept. 6, 1996, unless otherwise noted.

                    Subpart 1807.1--Acquisition Plans



Sec. 1807.103  Agency-head responsibilities. (NASA supplements 
          paragraphs (d) and (e))

    (d)(i) Except as provided in paragraph (d)(iii) of this section, 
acquisition plans shall be prepared according to the following:
    (A) For acquisitions requiring Headquarters approval, by an 
Acquisition Strategy Meeting (ASM) (see 1807.170);
    (B) For acquisitions not requiring Headquarters approval and 
expected to exceed $5 million, by installation-approved ASMs or written 
acquisition plans; and,
    (C) For acquisitions not expected to exceed $5 million, in 
accordance with installation procedures.
    (ii) The estimated dollar amounts shall include all options and 
later phases of the same program or project.
    (iii) Acquisition plans are not required for the following 
acquisitions:
    (A) Architect-engineering services;
    (B) Broad agency announcements (see 1835.016) or unsolicited 
proposals;
    (C) Basic research from nonprofit organizations;
    (D) Utility services available from only one source;
    (E) From or through other Government agencies except when the value 
of the acquisition meets the Master Buy Plan threshold (see 
1807.7101(a));
    (F) Industrial facilities required in support of related contracts; 
or
    (G) MidRange procedure awards (see part 1871). However, acquisition 
plans are required for commercial item acquisitions that exceed the 
MidRange dollar thresholds for noncommercial items.
    (iv) Acquisition plans shall be approved before soliciting 
proposals.
    (v) Approval of an acquisition plan does not constitute approval of 
any special conditions, or special clauses that may be required unless 
the plan so specifies, and the individual having approval authority is a 
signatory of the plan. All required deviations shall be approved through 
the procedures described in FAR 1.4 and 1801.4.
    (vi) A single acquisition plan may be used for all phases of a 
phased acquisition provided the plan fully addresses each phase, and no 
significant changes occur after plan approval to invalidate the 
description of the phases. If such significant changes do occur, the 
plan shall be amended and approved at the same level as the original 
plan.
    (e) Acquisition plans should be prepared on a program or system 
basis when practical. In such cases, the plan should fully address all 
component acquisitions of the program or system.

[61 FR 47068, Sept. 6, 1996, as amended at 65 FR 45306, July 21, 2000]



Sec. 1807.104  General procedures (NASA supplements paragraph (a)).

    (a) The acquisition planning team shall obtain input from the center 
offices responsible for matters of safety and mission assurance, 
occupational health, environmental protection, information technology, 
export control, and security. Their presence on the team shall help to 
ensure that all NASA acquisitions are structured in accordance with NASA 
safety, occupational health, environmental, export control, and security 
policy. As part of this process, the team shall recommend any 
appropriate solicitation or contract requirements for implementation of 
safety, occupational health, environmental, information technology, 
export control, and security concerns (See NPG 8715.3, NASA Safety 
Manual; NPG 7120.5, NASA Program and Project Management Processes and 
Requirements; NPG 2810.1, Security of Information Technology, and NPG 
1620.1, Security Procedures and Guidelines, all available at 
www.nodis.hq.nasa.gov).

[65 FR 37058, June 13, 2000]

[[Page 203]]



Sec. 1807.105  Contents of written acquisition plans. (NASA supplements 
          paragraphs (a) and (b))

    Acquisition plans shall address each applicable topic listed in FAR 
7.105, as supplemented by this section. Plans shall be structured by 
subject heading using each italicized topic heading in the same sequence 
as presented in the FAR. Subheadings should be used when appropriate 
(e.g., the separate items under contracting considerations at 
7.105(b)(4)). Topics not applicable to a given acquisition (e.g., 
design-to-cost and should-cost are not compatible with service 
acquisitions), should be marked N/A. The requirements in FAR 7.105 
regarding performance-based contracting methods shall not be limited to 
acquisition plans for service contracts.
    (a)(1) Describe in nontechnical terms the supplies or services to be 
acquired. Include quantities.
    (2) NPG 7120.5 shall be an integral part of acquisition planning for 
programs and projects subject to its requirements. If the NPG does not 
apply, the acquisition plan shall clearly state that fact. If the NPG 
does apply, specify whether all required NPG 7120.5 documentation is 
current and approved (see 1804.7301(b)(2)(i)). If not, describe the 
approach for obtaining approval or the authority to proceed without 
approval before release of draft or final solicitations. For programs 
and projects under the NPG, all draft or final solicitations subject to, 
or directly or substantially in support of, those programs or projects 
shall clearly identify the program or project of which they are part.
    (3) Identify the estimated cost and describe the estimating 
methodology.
    (5) Specify the delivery or performance period requirements 
separately by the basic contract, each option, and the total.
    (7) Discuss project/program risks (see NPG 7120.5, NASA Program and 
Project Management Processes and Requirements). In addition to 
technical, schedule, and cost risks, the discussion shall include such 
considerations as: safety and security (including personnel, information 
technology, and facilities/property); the need to involve foreign 
sources (contractor and/or governmental), and risks of unauthorized 
technology transfer (see NPD 2110.1D and Export Control Program (http://
www.hq.nasa.gov/office/codei/nasaecp/ecpolicy.html)); and resource risk, 
including the necessary level and expertise of NASA personnel resources 
available to manage the project/program. For each area of risk 
identified, the discussion shall include a quantification of the 
relative magnitude (e.g., high, medium, low) together with the specific 
actions taken to structure the acquisition approach to manage the risks 
throughout the acquisition process. For example, this discussion would 
identify those areas that have safety risk, discuss how safety is 
addressed in contract requirements and evaluated in the source 
selection, and how it will be managed and incentivized during contract 
performance. Decisions to accept, mitigate, track, and/or research risk 
factors shall be identified and documented as part of acquisition 
planning.
    (8) Streamlining applies to all NASA acquisitions. Describe all 
planned streamlining procedures.
    (b)(3) Address how cost realism will be evaluated.
    (4)(A) If an incentive contract is planned, describe the planned 
incentive(s) and the anticipated effects.
    (B) Describe subcontracting issues, including all applicable 
subcontracting goals. (See FAR part 19 and part 1819).
    (5)(A) Identify the estimated cost separately by the basic contract, 
each option and total amount.
    (B) Identify the funding by fiscal year and unique project number 
(UPN).
    (C) Discuss planned approaches to eliminate funding shortfalls (vs. 
the estimated cost).
    (6) Identify the type of work statement/specification planned. 
Specifically address the applicability of performance-based requirement 
descriptions and the availability of commercial sources for the 
supplies/services.
    (b) (10) Address contract management issues, including--
    (A) Planned delegations of administrative functions; and
    (B) When contract changes are anticipated, the plan to manage such 
changes and the specific measures that will be taken to minimize the 
issuance of undefinitized contract actions.

[[Page 204]]

    (20) If the period between release of solicitation to contract award 
is more than 120 calendar days (180 days for formal SEB competitions), 
explain why that goal cannot be met.

[61 FR 47068, Sept. 6, 1996, as amended at 62 FR 36705, July 9, 1997; 62 
FR 58687, Oct. 30, 1997; 63 FR 12997, Mar. 17, 1998; 64 FR 14641, Mar. 
26, 1999; 65 FR 37058, June 13, 2000; 65 FR 70315, Nov. 22, 2000; 65 FR 
82296, Dec. 28, 2000; 66 FR 53546, Oct. 23, 2001]



Sec. 1807.107  Additional requirements for acquisitions involving 
          bundling.

    (c) Requests for approval of proposed bundlings that do not meet the 
thresholds in FAR 7.107(b) must be sent to the Headquarters Office of 
Procurement (Code HS).
    (e) The substantial bundling documentation requirement applies to 
each proposed NASA bundling expected to exceed $5 million or more. The 
contracting officer must forward the documentation along with the 
measurable benefits analysis required by FAR 7.107(b) to the 
Headquarters Office of Procurement (Code HS) in sufficient time to allow 
a minimum of 10 days for review.

[65 FR 46876, Aug. 1, 2000]



Sec. 1807.107-70  Orders against Federal Supply Schedule contracts, 
          Governmentwide acquisition contracts (GWACs), or other 
          existing indefinite-delivery contracts.

    The FAR and NFS requirements for justification, review, and approval 
of bundling of contract requirements also apply to an order from a 
Federal Supply Schedule contract, Governmentwide acquisition contract, 
or other indefinite-delivery contract if the requirements consolidated 
under the order meet the definition of ``bundling'' at FAR 2.101.

[65 FR 46876, Aug. 1, 2000]



Sec. 1807.170  Acquisition Strategy Meeting (ASM).

    (a) The ASM is an acquisition plan conducted through a meeting 
attended by all interested NASA offices. At the meeting, the acquisition 
plan topics and structure specified in 1807.105 are presented in 
briefing format, and formal written minutes prepared to summarize the 
decision, actions, and conclusions of the ASM members. The approved 
minutes, along with the briefing charts, shall be included in the 
contract file to document completion of the acquisition plan required by 
1807.103.
    (b) The ASM is not a requirements definition meeting. It is a 
meeting to seek approval for the proposed acquisition approach for 
requirements that were previously defined and agreed to by the cognizant 
offices.
    (c) Headquarters ASMs will be chaired by the Assistant Administrator 
for Procurement or designee. The Headquarters Office of Procurement 
(Code HS) will prepare the minutes of Headquarters ASMs and distribute 
them to all attendees for review prior to approval by the ASM 
chairperson.
    (d) For field installation ASMs, the minutes shall be approved in 
accordance with installation procedures.

   Subpart 1807.2--Planning for the Purchase of Supplies in Economic 
                               Quantities



Sec. 1807.204  Responsibilities of contracting officers.

(NASA supplements paragraph (a))
    (a) The contracting officer shall transmit in writing to the 
cognizant inventory management/requirements office either the actual 
offeror responses or a summary of their salient points. The transmittal 
should be made within five working days after the closing date for 
receipt of offers; however, if a response indicates the potential for a 
significant savings, it should be transmitted immediately.

        Subpart 1807.3--Contractor Versus Government Performance



Sec. 1807.307  Appeals. (NASA supplements paragraph (a))

    (a) Installations shall establish appeals procedures in accordance 
with NMI 7410.3, Delegation of Authority for Acquisition of Commercial 
Activities for NASA's Use.

[[Page 205]]

            Subpart 1807.5--Inherently Governmental Functions



Sec. 1807.503  Policy. (NASA supplements paragraph (e))

    (e) The field installation requirements office shall provide the 
contracting officer the written determination that none of the statement 
of work tasks are inherently governmental. Disagreements regarding the 
determination shall be resolved in accordance with installation 
procedures.

                Subpart 1807.70--Consolidated Contracting



Sec. 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://
procurement.nasa.gov/cgi-bin/CCI/first.cgi).

[62 FR 36705, July 9, 1997, as amended at 63 FR 32763, June 16, 1998; 65 
FR 45306, July 21, 2000]

                    Subpart 1807.71--Master Buy Plan



Sec. 1807.7100  General.

    The Master Buy Plan provides information on planned acquisitions to 
enable management to focus its attention on a representative selection 
of high-dollar-value and otherwise sensitive acquisitions.



Sec. 1807.7101  Applicability.

    (a) The Master Buy Plan applies to each negotiated acquisition, 
including supplemental agreements and acquisitions through or from other 
Government agencies, where the dollar value, including the aggregate 
amount of options, follow-on acquisitions, or later phases of multi-
phase acquisitions, is expected to equal or exceed $50,000,000.
    (b) For initial annual Master Buy Plan submission only, each 
installation shall submit its three largest acquisitions regardless of 
dollar value and all acquisitions over $50,000,000.
    (c) The procedure also applies to:
    (1) Any supplemental agreement that contains either new work, a 
debit change order, or a credit change order (or any combination/
consolidation thereof), if the absolute value of the actions equals or 
exceeds $50,000,000 (e.g., the absolute value of a supplemental 
agreement adding $30,000,000 of new work and deleting $30,000,000 of 
work is $60,000,000, and is therefore subject to the Master Buy Plan).
    (2) Any supplement agreement that contains one or more elements (new 
work and/or individual change orders) of a sensitive nature that, in the 
judgment of the installation or Headquarters, warrants Headquarters 
consideration under the Master Buy Plan, even though the value does not 
equal or exceed $50,000,000.
    (3) Any cooperative agreement notice where the total value (the 
Government's contribution plus the contribution of the recipient) of any 
resulting cooperative agreement is expected to equal or exceed 
$50,000,000.
    (4) Any acquisition designated by NASA Headquarters regardless of 
its value.
    (d) The Master Buy Plan does not apply to incremental funding 
actions or termination settlement agreements.

[61 FR 47068, Sept. 6, 1996, as amended at 65 FR 45306, July 21, 2000]



Sec. 1807.7102  Submission, selection, and notification procedures.



Sec. 1807.7102-1  Submission of Master Buy Plan.

    (a) Prior to July 15th of every year, each installation shall submit 
to the Headquarters Office of Procurement (Code HS) a Master Buy Plan 
(electronically or original and eight copies) for the next fiscal year, 
listing every known acquisition that
    (1) Meets the criteria in 1807.7101,
    (2) Is expected to be initiated in that fiscal year, and
    (3) Has not been included in a previous Master Buy Plan or amendment 
to a Master Buy Plan.
    (b) The fiscal year Master Buy Plan shall list all uncompleted 
acquisitions selected for Headquarters review and

[[Page 206]]

approval from prior Master Buy Plans and amendments to Master Buy Plans. 
These acquisitions should be listed by the appropriate fiscal year 
Master Buy Plan and individual item numbers, and should indicate the 
current status of the individual acquisition documents previously 
selected for Headquarters review and approval.
    (c) Plans shall be prepared in accordance with 1807.7103 and shall 
identify the individual acquisition documents involved for every 
acquisition listed. Acquisition documents that may require Headquarters 
approval will be held in abeyance until receipt of the notification 
required by 1807.7102-3. This is not to preclude the planning for or 
initiation of such documents up to that point where Headquarters 
approval may be required.



Sec. 1807.7102-2  Submission of amendments to the Master Buy Plan.

    (a) Acquisitions identified by installations after submission of 
their Master Buy Plan and meeting the criteria in 1807.7102-1(a) shall 
be submitted to Headquarters in accordance with 1807.7103 and identified 
as an amendment to the fiscal year Master Buy Plan submission.
    (b) Master Buy Plan submissions should not be accomplished after the 
fact. Amendments shall be submitted sufficiently in advance of contract 
award date to allow Headquarters to select those acquisition documents 
that will be subject to Headquarters review and approval without 
creating an unacceptable delay in contract placement.
    (c) When timely submittal is not possible, the installation shall 
provide with the amendment a narrative explaining the circumstances 
leading to the late submittal. A Master Buy Plan submission for a 
contract change order expected to meet the criteria in 1807.7101 shall 
be submitted to Headquarters immediately upon issuance of the change 
order.



Sec. 1807.7102-3  Selection and notification procedures.

    (a) The Headquarters Office of Procurement (Code HS) shall select 
acquisition documents from the Master Buy Plan and amendments to Master 
Buy Plans to receive Headquarters review and approval and shall 
designate source selection officials.
    (b) When, subsequent to document selection or delegation, an 
acquisition is changed (for example, increase or decrease in dollar 
amount, change in requirement), canceled, superseded, deferred, or 
becomes no longer subject to the Master Buy Plan procedures in 
accordance with the criteria in 1807.7101, the installation shall 
immediately notify Code HS, giving the reasons. Code HS shall notify the 
installation's procurement office in writing of any further action that 
may be required.
    (c) Acquisition documents not selected for Headquarters review will 
be subject to after-the-fact reviews by Headquarters during normal 
procurement management surveys or other special reviews. Acquisition 
delegations may subsequently be rescinded if a Headquarters review is 
deemed appropriate.



Sec. 1807.7103  Format of Master Buy Plan.

    In accordance with the requirements of 1807.7102-1 and 1807.7102-2, 
installations must prepare Master Buy Plans and amendments to Master Buy 
Plans in accordance with the Master Buy Plan Database (MBPD) 
instructions at http://www/hq.nasa.gov/office/ procurement/regs/
Table1807.doc and submit them in accordance with the MBPD User Manual 
Instructions listed at http://ec.msfc.nasa.gov/hq/ library/mbp.User 
Guide.html.

[66 FR 53546, Oct. 23, 2001]

                Subpart 1807.72--Acquisition Forecasting



Sec. 1807.7200  Scope of subpart.

    This subpart prescribes the acquisition forecasting procedure 
required to comply with the Business Opportunity Development Reform Act 
of 1988.



Sec. 1807.7201  Definitions.

    Class of contracts means a grouping of acquisitions, either by 
dollar value or by the nature of supplies and services to be acquired.
    Contract opportunity means planned new contract awards exceeding 
$25,000.

[[Page 207]]



Sec. 1807.7202  Policy.

    As required by statute, it is NASA policy to
    (a) Prepare an annual forecast and semiannual update of expected 
contract opportunities or classes of contract opportunities for each 
fiscal year;
    (b) Include in the forecast contract opportunities that small 
business concerns, including those owned and controlled by socially and 
economically disadvantaged individuals, may be capable of performing; 
and
    (c) Make available such forecasts to the public.



Sec. 1807.7203  Responsibilities.

    (a) NASA Procurement Officers shall post the data required by 
1807.7204 directly to the NASA Acquisition Internet Service not later 
than October 1 for the annual forecast and April 15 for the semiannual 
update.
    (b) Code HS will manage policy and monitor compliance with the NASA 
Acquisition Forecast process.

[64 FR 5620, Feb. 4, 1999]



Sec. 1807.7204  Forecast data.

    (a) The annual forecast shall contain--
    (1) Summary historical data (based on information provided by the 
Headquarters Office of Procurement (Codes HC and HS)) on the class of 
contract opportunities below the simplified acquisition threshold;
    (2) Identification of all known contract opportunities in excess of 
the simplified acquisition threshold. Each such action should be 
identified as one of the three broad categories of acqusition--Research 
and Development, Services, or Supplies and Equipment and shall include 
the following information:
    (i) A brief description not to exceed ten typed lines;
    (ii) Approximate dollar value within the following dollar ranges: 
$100,000 to $1,000,000; $1,000,000 to $5,000,000; and over $5,000,000;
    (iii) Anticipated time (by fiscal year quarter) for the issuance of 
the solicitation;
    (iv) Identification if it is reserved for performance by small 
business concerns including those owned and controlled by socially and 
economically disadvantaged individuals;
    (v) Identification as competitive or noncompetitive; and
    (vi) Identification and telephone number of a center point of 
contact.
    (b) The semiannual report shall be an update of the data provided by 
the annual forecast. This update should provide information on new 
requirements not previously reported and on changes in data related to 
actions previously identified.



Sec. 1807.7205  Public availability.

    The annual forecast and semiannual update are available on the NASA 
Acquisition Internet Service (http://www.hq.nasa.gov/office/procurement/
).

[62 FR 58687, Oct. 30, 1997]

          PART 1808--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Sec.

Sec. 1808.002  Use of other Government supply sources.

Sec. 1808.002-70  Acquisition of radioisotopes.

Sec. 1808.002-71  Acquisition of liquid hydrogen.

Sec. 1808.002-72  Acquisition of propellants.

Sec. 1808.002-75  Acquisition of mercury.

                Subpart 1808.1--Excess Personal Property


Sec. 1808.103  Information on available excess personal property.

                Subpart 1808.4--Federal Supply Schedules


Sec. 1808.404  Using schedules.

Sec. 1808.404-3  Requests for waivers.

    Subpart 1808.6--Acquisition From Federal Prison Industries, Inc.


Sec. 1808.605  Clearances.

Subpart 1808.7--Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled


Sec. 1808.705  Procedures.

Sec. 1808.705-1  General.

      Subpart 1808.8--Acquisition of Printing and Related Supplies


Sec. 1808.802  Policy.

Sec. 1808.870  Contract clause.

               Subpart 1808.11--Leasing of Motor Vehicles


Sec. 1808.1100  Scope of subpart.


[[Page 208]]


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

    Source: 61 FR 47073, Sept. 6, 1996, unless otherwise noted.



Sec. 1808.002  Use of other Government supply sources.



Sec. 1808.002-70  Acquisition of radioisotopes.

    (a) U.S. Department of Energy Isotope and Technical Service Order 
Form CA-10-90.COM, and U.S. Nuclear Regulatory Commission Application 
for Material License, NRC Form 313, shall be used to acquire 
radioisotopes.
    (b) NRC Form 313 shall be filed with the Chief, Radioisotopes 
Licensing Branch, Division of Fuel Cycle and Material Safety, United 
States Nuclear Regulatory Commission, Washington, DC 20555. If the 
application meets all regulatory requirements and applicable standards, 
the Radioisotopes Licensing Branch, Nuclear Regulatory Commission, will 
issue a license to the applicant. After receipt of the license, a 
completed DOE Form CA-10-90.COM (in duplicate, if the contracting office 
wants an accepted copy of the form back from the supplier), the license, 
and a Government bill of lading shall be sent to the appropriate DOE 
laboratory. If a bill of lading is not furnished, shipment shall be made 
collect on a commercial bill of lading, to be converted at destination.
    (c) NRC Form 313 and DOE Form CA-10-90.COM may be requisitioned 
directly from the United States Nuclear Regulatory Commission, Attn: 
Radioisotopes Licensing Branch, Division of Fuel Cycle and Material 
Safety, Washington, DC 20555.
    (d) Guidance is available from DOE at URL http://www.ornl.gov/
isotopes/catalog.htm.

[64 FR 5620, Feb. 4, 1999, as amended at 65 FR 12484, Mar. 9, 2000]



Sec. 1808.002-71  Acquisition of liquid hydrogen.

    Requests for liquid hydrogen shall be submitted to the John F. 
Kennedy Space Center, National Aeronautics and Space Administration, 
Kennedy Space Center, FL 32899, Attn: Director of Logistics Operations.



Sec. 1808.002-72  Acqusition of propellants.

    (a) General. NASA (and its contractors when authorized in accordance 
with 1851.1) may acquire the items listed in paragraph (j) of this 
section (except for liquid hydrogen; see 1808.002-71) on a reimbursable 
basis from the San Antonio Air Logistics Center (SA-ALC), Kelly Air 
Force Base, Texas, under the Air Force Missile Procurement Fund (MPF). 
The Air Force MPF shall be used as a supply source for propellants 
whenever there are economic or other advantages to the Government. Field 
installations and offices obtaining supplies from the MPF shall comply 
with the reporting requirements of paragraph (f) of this section.
    (b) Requests for acquisition. To obtain the materials listed in 
paragraph (j) of this section from the Air Force MPF, NASA contracting 
offices will execute a NASA-Defense Purchase Request (NASA Form 523) 
(see 1853.303-523) and forward it to Headquarters, SA-ALC, Kelly Air 
Force Base, TX 78241, Attention: SFS. The following additional 
information should be provided on the form:
    (1) Contract number (when material is required for use by a NASA 
contractor).
    (2) Delivery address.
    (3) Mode of transportation (rail, trailer, barge, etc.). When the 
procurement request covers requirements for materials not previously 
forecasted or covers significant changes to previously reported 
requirements, SA-ALC should be notified immediately of such 
requirements.
    (c) Delivery requests.
    (1) A delivery request is a call on the Air Force, made against a 
NASA-Defense Purchase Request (NASA Form 523), specifying the time and 
place of delivery. On the basis of the estimated requirements, the Air 
Force will notify NASA field installations and contractors of the name 
and address of the Air Force office or producing contractor's plant to 
which requests for delivery of materials shall be made. Delivery 
requests may be placed by any means of communication that time 
justifies; however, all verbal requests for delivery must be confirmed 
in writing within 24 hours. The delivery request,

[[Page 209]]

whether oral or written, must cite the NASA-Defense Purchase Request 
number under which the material is being ordered and contain the 
following information:
    (i) Nomenclature and National Stock Number.
    (ii) Quantity.
    (iii) Program, project, and task.
    (iv) Contract number (when material is required for use by a NASA 
contractor).
    (v) Delivery address.
    (vi) Dates of delivery.
    (vii) Mode of transportation.
    (viii) Location of weighting stations and scales (if weighing of the 
products before delivery is required).
    (2) Each delivery request shall be numbered as follows to simplify 
identification and control: the last two digits of the calendar year; a 
dash; and a consecutive number beginning with 1 to run through the year 
(e.g., 89-5, for the fifth request made in 1989). Changes to a request 
are identified by adding an alphabetical designator beginning with (A) 
to the number.
    (d) Receiving procedures.
    (1) Receiving documents. Receipt of materials shall be evidenced on 
the receiving document received with the shipment by the signature of an 
individual authorized by NASA to receive materials from the Air Force. 
Every effort should be made to ensure that the NASA-Defense Purchase 
Request number is recorded on the receiving document before signing.
    (2) Weighing facilities. Local weighing facilities (NASA-owned, 
contractor-owned, commercial, or State-operated) may be used to 
determine quantities of product received. If a discrepancy exists 
between the quantities shown on receiving documents and the quantities 
actually received--
    (i) A certified weighing ticket evidencing actual weight at 
destination shall be obtained; and
    (ii) A copy of the receiving document (AF Form 857 or DD Form 250) 
and the original weighting ticket shall be forwarded to Headquarters, 
SA-ALC, Kelly Air Force Base, TX 78241, Attention: ACFOM, identifying 
the discrepancy.
    (3) Distribution of receipts. Copies of all receiving documents 
except the AF Form 857 shall be transmitted to the Headquarters, SA-ALC, 
Kelly Air Force Base, TX 78241, Attention: SACAOM. Receiving documents 
may be accumulated and submitted on the 10th, 20th, and last day of each 
month.
    (e) Billing. The costs of materials obtained through the MPF are 
reimbursable. After delivery, a Standard Form 1080 (Voucher for 
Transfers Between Appropriations and/or Funds (Disbursement)), supported 
by documentary evidence of delivery, will be submitted by Headquarters, 
SA-ALC to the NASA installation designated in the NASA Form 523.
    (f) Reporting requirements.
    (1) Field installations shall submit periodic estimates of 
requirements for materials listed in paragraph (j) of this section for 
all programs under their cognizance, including in-house contractor 
requirements. Reports shall be submitted in duplicate on AF Form 858, 
Forecast of Propellant Requirements.
    (2) The reports shall be forwarded no later than June 1 and December 
1 to reach Headquarters, SA-ALC, Kelly AFB, TX 78241, Attn: SFS. 
Supplemental reports advising of additions to or significant changes in 
previous reports may be submitted at any time. The reports, covering all 
materials listed in paragraph (j) of this section, due in June and 
December, shall begin with requirements as of the following July 1 and 
January 1, respectively, and shall cover a 3-year period. Requirements 
shall be shown by month for the first 6 months, and by quarters for the 
remaining 2\1/2\-year period.
    (3) Estimated requirements and other pertinent data required from 
contractors shall be obtained on Air Force Form 858.
    (g) Report content. Reports shall be made using a separate report 
form for each material and shall provide, for each item of material, 
the--
    (1) Contract number;
    (2) Program and/or project;
    (3) Specific task within the project;
    (4) End use when not associated with the named program or project;
    (5) Contractor's name;
    (6) Specific location of use (shipping destination); and
    (7) Planned source of supply.

[[Page 210]]

    (h) Basis for developing materials requirements. In computing 
requirements, consideration shall be given to such elements as lead 
time, waste factors, transfer, and storage losses so that phased 
requirements reflect the total gross quantities required to be delivered 
to the use or storage site. Since the requirements estimates are being 
used by other Government agencies acting as supply sources to contract 
for materials, estimates must be as accurate as possible.
    (i) NASA coordination. The Kennedy Space Center shall coordinate the 
review of all data and establish NASA policy and procedures. The data 
shall be used as the basis for NASA requirements reports to various 
Government agencies for planning and supply support.
    (j) Table of reportable materials.

Ammonia, Technical (Anhydrous) (Low Oil Content) 99.97 percent purity, 
    Spec 0-A-445
Argon Gas, 6000 PSI, AFPID 6830-5
Propellant, Ammonia, Liquid, Anhydrous 99.5 percent purity, Spec MIL-P-
    27406
Propellant, Chlorine Trifluoride, Spec MIL-P-81399
Propellant, Deuterium, Gaseous, AFPID 9135-20
Propellant, Fluorine, Gaseous, Spec MIL-P-27405
Propellant, Fluorine, Liquid, Spec MIL-P-27405
Helium, Technical Grade A, Spec BB-H-1168
Propellant, Isopropyl Alcohol, AFPID 9135-18
Propellant, Hydrazine, Standard Grade, Spec MIL-P-26536
Propellant, Hydrazine, Monopropellant Grade, Spec MIL-P-26536
Propellant, Hydrazine/Unsymmetrical Dimethylhydrazine, Spec MIL-P-27402
Propellant, Hydrogen, Gaseous, Type I, Spec MIL-P-27201
Propellant, Hydrogen, Liquid, Type II, Spec MIL-P-27201
Propellant, Hydrogen Peroxide, Spec MIL-P-16005
Propellant, Hydrogen Peroxide, Electrolytic Process, Spec MIL-P-16005
Propellant, Jet Fuel, Grade RJ-1, Spec MIL-F-25558
Propellant, JPX, 50 percent UDMH-50 percent JP-4, Spec MIL-P-26694
Propellant, JPX, 17 percent UDMH-83 percent JP-4, Spec MIL-P-26694
Propellant, Kerosene, Grade RP-1, Spec MIL-P-25576
Propellant, Monomethyl Hydrazine, Spec MIL-P-27404
Propellant, Neon, Liquid, AFPID 9135-16
Propellant, Nitric Acid, Type IIIB, Spec MIL-P-7254
Propellant, Nitric Acid, Type III LS, Spec MIL-P-7254
Propellant, Nitric Acid, Type IV (High Density Acid), Spec MIL-P-7254
Propellant, Nitrogen Tetroxide (NTO) (MON-1) (MON-3), Spec MIL-P-26539
Propellant, Nitrogen Tetroxide (NTO), MIL-P-26539
Propellant, Nitrogen Tetroxide (MON-1), Spec MIL-P-26539
Propellant, Nitrogen Tetroxide (MON-3), Spec MIL-P-26539
Propellant, Oxygen, Grade B, Spec MIL-P-25508
Propellant, Oxygen, Grade A, Spec MIL-P-25508
Propellant, Oxygen, Grade F, Spec MIL-P-25508
Propellant Pressurizing Agent, Helium, Spec MIL-P-27407, 99.995 pct min 
    assay
Propellant Pressurizing Agent, Nitrogen, Type II, Liquid Grade C, Spec 
    MIL-P-27401
Propellant Pressurizing Agent, Nitrogen, Type I, Gaseous Grade A, Spec 
    MIL-P-27401
Propellant Pressurizing Agent, Nitrogen, Type I, Grade B, Spec MIL-P-
    27401
Propellant Pressurizing Agent, Nitrogen, Type II, Grade A, Spec MIL-P-
    27401
Propellant Pressurizing Agent, Nitrogen, Type II, Grade B, Spec MIL-P-
    27401
Propellant, Unsymmetrical Dimethyl-hydrazine, Spec MIL-P-25604
Propellant, Nitrogen Trifluoride Spec MIL-P-87896
Propellant, Pressurizing Agent, Argon, Liquid, AFPID 9135-19

[61 FR 47073, Sept. 6, 1996, as amended at 65 FR 46627, July 31, 2000]

[[Page 211]]



Sec. 1808.002-75  Acquisition of mercury.

    (a) Requests for mercury by NASA installations for their use or for 
use by their cost-reimbursement type contractors shall be made to the 
Mercury Contract Specialist, Directorate of Stockpile Contracts, DLA, 
Defense National Stockpile Center, 8725 John J. Kingman Rd., 
3339, Ft. Belvoir, VA 22060-6223. DLA will furnish the current 
fair market value to NASA. The unit of issue is a 76-pound flask.
    (b) Requests for clearance to purchase quantities of 76 pounds or 
more from sources other than DLA shall be submitted to the office in 
paragraph (a) of this section and must be accompanied by a statement of 
reasons why the available excess mercury is unsuitable for use by the 
requesting field installation.

                Subpart 1808.1--Excess Personal Property



Sec. 1808.103  Information on available excess personal property.

    In addition to the sources identified in FAR 8.103, information on 
availability of NASA excess property is maintained by the Installation 
Property Disposal Officer and the NASA Equipment Management System 
(NEMS) Coordinator.

                Subpart 1808.4--Federal Supply Schedules



Sec. 1808.404  Using schedules.



Sec. 1808.404-3  Requests for waivers. (NASA supplements paragraphs (a) 
          and (b)).

    (a) The head of the NASA office initiating the procurement request 
or a designated representative shall furnish the NASA contracting office 
a signed statement identifying the supplies or services to be purchased 
and explaining why similar items listed in the applicable schedule will 
not meet the requirement.
    (b) If a waiver is not granted, the case shall be referred to the 
Assistant Administrator for Procurement (Code HS) for a final decision 
as to whether the non-schedule item will be purchased. The Assistant 
Administrator for Procurement shall promptly notify the Commissioner, 
Federal Supply Service, GSA, and the contracting office of the decision.

    Subpart 1808.6--Acquisition From Federal Prison Industries, Inc.



Sec. 1808.605  Clearances. (NASA supplements paragraphs (a) and (c)).

    (a) NASA purchase orders or contracts written pursuant to a general 
or blanket clearance need not be supported by a copy of the clearance, 
but the clearance number must be cited on the purchase order or contract 
as well as on the initial voucher. A copy of the clearance certificate 
must be attached to the initial voucher.
    (c) When disputes occur, the contracting officer shall refer the 
matter to the Assistant Administrator for Procurement (Code HS) for 
review and any further action. Such referrals shall include a complete 
statement of the attempts made to resolve the matter.

Subpart 1808.7--Acquisition From Nonprofit Agencies Employing People Who 
                     are Blind or Severely Disabled



Sec. 1808.705  Procedures.



Sec. 1808.705-1  General.

    The Federal Standard Requisitioning and Issue Procedure (Federal 
Property Management Regulation, Subpart 101-26.2) shall be used to 
obtain nonprofit agency-produced supplies from GSA supply distribution 
facilities.

      Subpart 1808.8--Acquisition of Printing and Related Supplies



Sec. 1808.802  Policy.

    (b)(i) The Headquarters Chief Information Officer (Code AO) is the 
NASA central printing authority.
    (ii) Requests for approval to contract for printing supplies or 
services shall be addressed to Code AO. Approval to contract for such 
supplies or services is restricted to those requirements meeting the 
following conditions:
    (A) An individual order is under $1,000;

[[Page 212]]

    (B) The order is not of a continuing or repetitive nature; and,
    (C) The Public Printer certifies it cannot be provided more 
economically through the GPO.

[66 FR 53546, Oct. 23, 2001]



Sec. 1808.870  Contract clause.

    The contracting officer shall insert the clause at 1852.208-81, 
Restrictions on Printing and Duplicating, in solicitations and contracts 
where there is a requirement for any printing, and/or any duplicating/
copying in excess of that described in paragraph (c) of the clause.

               Subpart 1808.11--Leasing of Motor Vehicles



Sec. 1808.1100  Scope of subpart.

    NASA procedures for leasing motor vehicles from GSA or commercial 
sources are contained in NPD 6000.1, Transportation Management.

[61 FR 47073, Sept. 6, 1996, as amended at 65 FR 12484, Mar. 9, 2000]

                  PART 1809--CONTRACTOR QUALIFICATIONS

           Subpart 1809.1--Responsible Prospective Contractors

Sec.

Sec. 1809.104-4  Subcontractor responsibility.

Sec. 1809.106  Preaward surveys.

Sec. 1809.106-1  Conditions for preaward surveys.

Sec. 1809.106-2  Requests for preaward surveys.

Sec. 1809.106-3  Interagency preaward surveys.

Sec. 1809.106-70  Preaward surveys performed by NASA installations.

               Subpart 1809.2--Qualifications Requirements


Sec. 1809.200  Scope of subpart.

Sec. 1809.202  Policy.

Sec. 1809.203  QPL's, QML's, and QBL's.

Sec. 1809.203-70  General.

Sec. 1809.203-71  Waiver of qualification requirements.

Sec. 1809.206  Acquisitions subject to qualification requirements.

Sec. 1809.206-1  General.

Sec. 1809.206-70  Small businesses.

Sec. 1809.206-71  Contract clause.

        Subpart 1809.4--Debarment, Suspension, and Ineligibility


Sec. 1809.403  Definitions.

Sec. 1809.404  List of Parties Excluded from Federal Procurement and 
          Nonprocurement programs.

Sec. 1809.405  Effect of listing.

Sec. 1809.405-1  Continuation of current contracts.

Sec. 1809.405-2  Restrictions on subcontracting.

Sec. 1809.406  Debarment.

Sec. 1809.406-3  Procedures.

Sec. 1809.407  Suspension.

Sec. 1809.407-3  Procedures.

Sec. 1809.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

Sec. 1809.470  Reporting of suspected evasive actions and causes for 
          debarment or suspension.

Sec. 1809.470-1  Situations requiring reports.

Sec. 1809.470-2  Contents of reports.

Sec. 1809.470-3  Addresses and copies of reports.

   Subpart 1809.5--Organizational and Consultant Conflicts of Interest


Sec. 1809.500  Scope of subpart.

Sec. 1809.503  Waiver.

Sec. 1809.506  Procedures.

Sec. 1809.507  Solicitation provisions and contract clause.

Sec. 1809.507-2  Contract clause.

              Subpart 1809.6--Contractor Team Arrangements


Sec. 1809.670  Contract clause.

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

    Source: 61 FR 47075, Sept. 6, 1996, unless otherwise noted.

           Subpart 1809.1--Responsible Prospective Contractors



Sec. 1809.104-4  Subcontractor responsibility.

    Generally, the Canadian Commercial Corporation's (CCC) proposal of a 
firm as its subcontractor is sufficient basis for an affirmative 
determination of responsibility. However, when the CCC determination of 
responsibility is not consistent with other information available to the 
contracting office, the contracting officer shall request from the CCC 
and any other sources whatever information is necessary to make the 
responsibility determination.
    Upon request, CCC shall be furnished the rationale for any 
subsequent determination of nonresponsibility.

[[Page 213]]



Sec. 1809.106  Preaward surveys.



Sec. 1809.106-1  Conditions for preaward surveys. (NASA supplements 
          paragraph (a)).

    (a)(i) Preaward surveys are used only to assist the contracting 
officer to make determinations of responsibility under FAR 9.104. They 
are not to be used to obtain information useful to proposal evaluation 
that does not directly relate to the responsibility determination. 
Accordingly, preaward surveys shall not be used except in rare 
circumstances when determination of responsibility cannot be made 
without the specific information that can be provided only in a preaward 
survey report and only after all other means of obtaining the required 
information have been explored.
    (ii) Surveys shall not be performed for companies of any size 
performing study or research contracts.
    (iii) The procurement officer shall approve all preaward survey 
requests.



Sec. 1809.106-2  Requests for preaward surveys. (NASA supplements 
          paragraph (a))

    (a) The ``Walsh-Healey Public Contracts Act'' block of Section I is 
for information purposes only. If information is needed for a 
determination on the offeror's eligibility under the Walsh-Healey Act, 
it must be specifically requested in block 20.H. of Section III.



Sec. 1809.106-3  Interagency preaward surveys. (NASA supplements 
          paragraph (a))

    If the survey will be performed for NASA by a DOD agency, the SF 
1403 request is to be sent to the appropriate office shown in the DOD 
Directory of Contract Administration Services Components, DLAH 4105.4, 
Attn: Preaward Survey Monitor. DOD normally allows seven working days in 
which to conduct a full survey and submit the report to the requesting 
agency.

[61 FR 47075, Sept. 6, 1996, as amended at 62 FR 36705, July 9, 1997]



Sec. 1809.106-70  Preaward surveys performed by NASA installations.

    In discussions with representatives of the company being surveyed, 
NASA preaward survey team members shall not refer to or comment on the 
possibility of award to the prospective contractor. This does not 
preclude discussion with a prospective contractor of questionable areas 
that require clarification. Information obtained during the survey will 
be treated in strict confidence and divulged only to those Government 
representatives having a need to know.

               Subpart 1809.2--Qualifications Requirements



Sec. 1809.200  Scope of subpart.

    This subpart prescribes policies and procedures to be followed in 
the use of qualified products lists for acquisition of parts consistent 
with the policies of NASA Policy Directive 8730.2, NASA Parts Policy.

[64 FR 36606, July 7, 1999]



Sec. 1809.202  Policy. (NASA supplements paragraphs (a) and (e))

    (a) Authority regarding agency head actions under FAR 9.202(a) is 
delegated to the cognizant technical activity, with approval by the 
installation's competition advocate.
    (e) The approval authority of FAR 9.202(e) is delegated to the 
installation's competition advocate. Requests shall be prepared by the 
cognizant requirements office and submitted via the procurement officer.



Sec. 1809.203  QPL's, QML's and QBL's.



Sec. 1809.203-70  General. (NASA supplements paragraph (a))

    (a) The Deputy Associate Administrator for the Office of Safety and 
Mission Assurance (Code Q), is responsible for justifying, determining, 
and approving NASA's need for inclusion and continued use of 
qualification requirements in specifications under the NASA EEE Parts 
and Advanced Interconnect Program.

[[Page 214]]



Sec. 1809.203-71  Waiver of qualification requirements.

    When acquiring a product under a specification that includes 
qualification requirements either for the end item or for components of 
the end item, the NASA installation conducting the acquisition can waive 
the qualification requirements. Directing a waiver of the end item 
qualification requirement constitutes adequate authorization for waiver 
of product qualification requirements. When a waiver has been granted, 
the solicitation shall specifically indicate that the qualification 
requirement is inapplicable. Such information shall also be included in 
any synopsis of the acquisition (see FAR subpart 5.2).



Sec. 1809.206  Acquisitions subject to qualification requirements.



Sec. 1809.206-1  General. (NASA supplements paragraph (b) and (c))

    (b)(i) The authority to determine that an emergency exists is 
delegated to the installation's competition advocate. Requests for 
determination shall be prepared by the cognizant requirements office and 
submitted through the procurement officer.
    (ii) Requests not to enforce a qualification requirement in a 
nonemergency situation shall be prepared by the cognizant requirements 
office and approved by the Headquarters Office of Safety and Mission 
Assurance (Code Q).
    (c) If an offeror seeks to demonstrate its capability, both the 
product and the producer must meet the established standards.



Sec. 1809.206-70  Small businesses.

    If a small business otherwise eligible for award has been placed in 
a special status on a Qualified Products List (Mil-Bul-103) or the 
Qualified Manufacturers List (QML-38510) established as a part of the 
NASA Microelectronics Reliability Program and the contracting officer 
determines that the small business does not appear to have the capacity 
to perform, the certificate of competency procedures in FAR subpart 19.6 
are applicable.



Sec. 1809.206-71  Contract clause.

    When qualified products (end items or components of end items) are 
being procured, the contracting officer shall insert the clause at 
1852.209-70, Product Removal from Qualified Products List, in the 
solicitation and in the resulting contract.

        Subpart 1809.4--Debarment, Suspension, and Ineligibility



Sec. 1809.403  Definitions.

    For purposes of FAR subpart 9.4 and this subpart, the Assistant 
Administrator for Procurement is the ``debarring official,'' the 
``suspending official,'' and the agency head's ``designee.''



Sec. 1809.404  List of parties excluded from Federal procurement and 
          nonprocurement programs. (NASA supplements paragraphs (c) and 
          (d))

    (c) The Office of Procurement (Code HK) is responsible for taking 
the actions listed in FAR 9.404(c).
    (d)(1) Installation procurement offices shall notify Code HK of how 
many copies of the List they want and provide a single mailing address 
at the installation. Code HK will place the order for the copies which 
will be mailed directly to the installation. Electronic access is also 
available as described in the List.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



Sec. 1809.405  Effect of listing

    If it is believed that a new contract or subcontract must be awarded 
to a firm on the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs, the procurement officer shall prepare a request 
for a determination with all necessary supporting information and 
forward it to the Assistant Administrator for Procurement (Code HK) for 
approval.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]

[[Page 215]]



Sec. 1809.405-1  Continuation of current contracts. (NASA supplements 
          paragraph (c))

    (c) Approval of contract renewals or extensions shall be requested 
in accordance with 1809.405.



Sec. 1809.405-2  Restrictions on subcontracting. NASA supplements 
          paragraph (a)).

    (a) Approval of consent to subcontract shall be requested in 
accordance with 1809.405.



Sec. 1809.406  Debarment.



Sec. 1809.406-3  Procedures. (NASA supplements paragraph (a))

    (a) The report required by FAR 9.406-3(a) shall be prepared in 
accordance with 1809.470.



Sec. 1809.407  Suspension.



Sec. 1809.407-3  Procedures. (NASA supplements paragraph (a))

    (a) Reports shall be prepared in accordance with 1809.470.



Sec. 1809.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters. (NASA supplements 
          paragraph (a))

    (a)(2) (A) If the offeror indicates that it has been indicted, 
charged, convicted, or had a civil judgment rendered against it, the 
contracting officer shall immediately notify the Assistant Administrator 
for Procurement (Code HK), providing details as known, and shall await a 
response before awarding the contract.
    (B) If the offeror discloses information that indicates a need for a 
debarment or suspension determination, the contracting officer shall 
report the facts to the Assistant Administrator for Procurement (Code 
HK) in accordance with 1809.470.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



Sec. 1809.470  Reporting of suspected evasive actions and causes for 
          debarment or suspension.



Sec. 1809.470-1  Situations requiring reports.

    A report incorporating the information required by 1809.470-2 of 
this subpart shall be forwarded by the procurement officer to the 
Assistant Administrator for Procurement (Code HK) when a contractor:
    (a) Has committed, or is suspected of having committed, any of the 
acts described in FAR 9.406-2 and 9.407-2; or
    (b) Is suspected of attempting to evade the prohibitions of a 
debarment or suspension imposed under the FAR by changes of address, 
multiple addresses, formation of new companies, or other devices.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



Sec. 1809.470-2  Contents of reports.

    Each report shall be coordinated with local counsel and shall 
include substantially the following information, if available:
    (a) Name and address of the contractor.
    (b) Names of the principal officers, partners, owners, or managers.
    (c) All known affiliates, subsidiaries, or parent firms, and the 
nature of the affiliation.
    (d) A description of the contract or contracts concerned, including 
the contract number and office identifying numbers or symbols, the 
amount of each contract, the amounts paid the contractor and still due, 
and the percentage of work completed and to be completed.
    (e) The status of vouchers.
    (f) Whether the contract has been assigned pursuant to the 
Assignment of Claims Act, and, if so, the name and address of the 
assignee and a copy of the assignment.
    (g) Whether any other contracts are outstanding with the contractor 
or any affiliates, and, if so, their amount, whether they are assigned 
pursuant to the Assignment of Claims Act, and the amounts paid or due on 
them.

[[Page 216]]

    (h) A complete summary of all pertinent evidence. If a request for 
debarment or suspension is based on an indictment or a conviction, 
provide the evidence upon which the indictment or conviction is based.
    (i) An estimate of any damages, sustained by the Government as a 
result of the contractor's action, including an explanation of the 
method used in making the estimate.
    (j) Recommendation as to
    (1) Whether the contractor should be suspended or debarred,
    (2) Whether any limitations should be applied to such action,
    (3) Whether current contracts should be terminated, and
    (4) The period of any debarment.
    (k) As an enclosure, a copy of the contract(s) or pertinent 
excerpts, appropriate exhibits, testimony or statements of witnesses, 
copies of assignments, and other relevant documentation.



Sec. 1809.470-3  Addresses and copies of reports.

    Reports, including enclosures, shall be submitted to the Office of 
Procurement (Code HK), with an additional copy to the Headquarters 
Office of General Counsel (Code G).

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]

   Subpart 1809.5--Organizational and Consultant Conflicts of Interest



Sec. 1809.500  Scope of subpart.

    The Assistant Administrator for Procurement has authorized the 
procurement officer to take those actions reserved in FAR subpart 9.5 
for the head of the contracting activity. However, see 1809.503 
regarding waivers.



Sec. 1809.503  Waiver.

    The Administrator has designated the Assistant Administrator for 
Procurement as the approval authority for waivers under FAR 9.503. The 
procurement officer shall forward requests for waivers under FAR 9.503 
to the Assistant Administrator for Procurement (Code HS) for action.



Sec. 1809.506  Procedures. (NASA supplements paragraph (b))

    (b) The approving official is the procurement officer when the 
installation has source selection authority and the Assistant 
Administrator for Procurement (Code HS) when NASA Headquarters has that 
authority.



Sec. 1809.507  Solicitation provisions and contract clause.



Sec. 1809.507-2  Contract clause.

    The contracting officer may insert a clause substantially the same 
as the clause at 1852.209-71, Limitation of Future Contracting, in 
solicitations and contracts.

              Subpart 1809.6--Contractor Team Arrangements



Sec. 1809.670  Contract clause.

    The contracting officer shall insert the clause at 1852.209-72, 
Composition of the Contractor, in all construction invitations for bids 
and resulting contracts. The clause may be used in other solicitations 
and contracts to clarify a contractor team arrangement where the prime 
contractor consists of more than one legal entity, such as a joint 
venture.

                   PART 1811--DESCRIBING AGENCY NEEDS

Sec.

Sec. 1811.002  Policy.

     Subpart 1811.1--Selecting and Developing Requirements Documents


Sec. 1811.101  Order of precedence for requirements documents.

Sec. 1811.107  Solicitation provisions.

            Subpart 1811.4--Delivery or Performance Schedules


Sec. 1811.403  Supplies or services.

Sec. 1811.403-70  Packaging, handling, and transportation.

Sec. 1811.404  Contract clauses.

Sec. 1811.404-70  NASA contract clauses.

                   Subpart 1811.5--Liquidated Damages


Sec. 1811.501  Policy.

[[Page 217]]

               Subpart 1811.6--Priorities and Allocations


Sec. 1811.602  General.

Sec. 1811.603  Procedures.

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

    Source: 61 FR 47078, Sept. 6, 1996, unless otherwise noted.



Sec. 1811.002  Policy. (NASA supplements paragraph (b))

    (b) Implementation of the Metric Conversion Act of 1975, as amended, 
must be in accordance with NPD 8010.2B, Use of the Metric System of 
Measurements in NASA Programs.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37061, June 13, 2000]

     Subpart 1811.1--Selecting and Developing Requirements Documents



Sec. 1811.101  Order of precedence for requirements documents.

    (a) Safeguards to ensure safety, security, and environmental 
protection must be included, as applicable, in requirements documents.
    (b)(2) Requirements for the use of environmentally preferable 
products will be established in accordance with NPG 8830.1, 
``Affirmative Procurement Plan for Environmentally Preferable 
Products.'' Requirements for the use of energy and water efficient 
products and the use of renewable energy technology will be established 
in accordance with NPG 8570.1, ``Energy Conservation Technologies and 
Practices.''

[67 FR 30603, May 7, 2002]



Sec. 1811.107  Solicitation provisions. (NASA supplements paragraph (b))

    (b) NASA uses the categorical method to report its use of voluntary 
consensus standards.
    Therefore, use of the provision at 52.211-7 is not required. 
However, contracting officers must include in draft RFPs (DRFPs) the 
information required by 1815.201(c)(6)(A).

[65 FR 12484, Mar. 9, 2000]

            Subpart 1811.4--Delivery or Performance Schedules



Sec. 1811.403  Supplies or services. (NASA supplements paragraph (a))

    (a)(3) Contract delivery or performance schedules must not be 
expressed in terms of a notice of award. A notice of award as a specific 
document, separate from the award document itself, is not a contractual 
document and must not be used as a reference point for contract 
performance. See 1814.408 for additional information on notices of 
award.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000]



Sec. 1811.403-70  Packaging, handling, and transportation.

    (a) NPG 6000.1E, ``Requirements for Packaging, Handling, and 
Transportation for Aeronautical and Space Systems, Equipment, and 
Associated Components'' provides guidance for shipment of certain NASA 
items.
    (b) Contracting officers, with the advice of the requiring activity 
and the Center Transportation Officer, must include a designation of 
each deliverable item, or groupings of deliverable items, as Class I, 
II, III, or IV for purposes of contractor compliance with the NPG.

[65 FR 37062, June 13, 2000]



Sec. 811.404  Contract clauses. (NASA supplements paragraph (a))

    (a)(2) FAR 52.211-8, Time of Delivery, Alternates II and III, must 
not be used in NASA contracts.
    (3) FAR 52.211-9, Desired and Required Time of Delivery, Alternates 
II and III, must not be used in NASA contracts.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000]



Sec. 1811.404-70  NASA contract clauses.

    The clause at 1852.211-70, Packaging, Handling, and Transportation, 
must be included in solicitations and contracts for deliverable items, 
including software, designated as Class I (mission essential), Class II 
(delicate or sensitive), or Class III (requires special handling or 
monitoring).

[65 FR 37062, June 13, 2000]

[[Page 218]]

                   Subpart 1811.5--Liquidated Damages



Sec. 1811.501  Policy.

    (d) The procurement officer must forward recommendations concerning 
remission of liquidated damages to the Headquarters Office of 
Procurement (Code HS).

[65 FR 58931, Oct. 3, 2000]

               Subpart 1811.6--Priorities and Allocations



Sec. 1811.602  General. (NASA supplements paragraph (c))

    (c) The Department of Defense is the ``Delegate Agency'' for NASA. 
The Headquarters Office of Procurement (Code HK) must coordinate with 
DOD, as necessary, to ensure that any DOD requirements are met.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000; 
66 FR 29727, June 1, 2001]



Sec. 1811.603  Procedures.

    (NASA supplements paragraphs (e) and (g).)
    (e)(i) Rated orders may be used by NASA only as provided in Section 
700.17 of the DPAS (15 CFR 700.17) and subject to the limitations 
provided in Section 700.18 of the DPAS (15 CFR 700.18). Priority ratings 
are assigned on individual contracts and purchase orders by the 
contracting officer.
    (ii) NASA rated orders may only be assigned a DO rating, unless NASA 
has obtained a DX rating from the Department of Defense.
    (iii) The following program identification symbols may be used on 
NASA rated contracts and purchase orders for equipment and services that 
support authorized programs (see Schedule I of the DPAS):

A1--Aircraft
A2--Missiles
A3--Ships
A5--Weapons
A6--Ammunition
A7--Electronic and Communications Equipment
B1--Military Building Supplies
B8--Production Equipment (For Contractor's Account)
B9--Production Equipment (Government-Owned)
C2--Construction
C3--Maintenance, Repair, and Operating Supplies for Facilities
C9--Miscellaneous/Other

    (g) Installation requests for assistance shall be directed to the 
Headquarters Office of Procurement (Code HK).

[66 FR 29727, June 1, 2001]

               PART 1812--ACQUISITION OF COMMERCIAL ITEMS

        Subpart 1812.1--Acquisition of Commercial Items--General

Sec.

Sec. 1812.102  Applicability.

  Subpart 1812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items


Sec. 1812.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

Sec. 1812.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items.

 Subpart 1812.4--Unique Requirements Regarding Terms and Conditions for 
                            Commerical Items


Sec. 1812.404  Warranties.

         Subpart 1812.70--Commercial Space Hardware or Services


Sec. 1812.7000  Prohibition on guaranteed customer bases for new 
          commercial space hardware or services.

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

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.

        Subpart 1812.1--Acquisition of Commercial Items--General



Sec. 1812.102  Applicability. (NASA supplements paragraph (c))

    (c) For the acquisition of commercial items of any value, the 
MidRange procedures described in part 1871 may be used to the extent 
they are consistent and compliant with FAR part 12 and part 1812. Unless 
specifically stated, in any conflict between these parts the descending 
order of precedence is FAR part 12, part 1812, and part 1871.

[[Page 219]]

  Subpart 1812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 1812.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items. (NASA supplements paragraph 
          (f))

    (f)(i) The following clauses are authorized for use in acquisitions 
of commercial items when required by the clause prescription:
    (A) 1852.204-74, Central Contractor Registration.
    (B) 1852.214-71, Grouping for Aggregate Award.
    (C) 1852.214-72, Full Quantities.
    (D) 1852.215-84, Ombudsman.
    (E) 1852.219-75, Small Business Subcontracting Reporting.
    (F) 1852.219-76, NASA 8 Percent Goal.
    (G) 1852.223-70, Safety and Health.
    (H) 1852.223-71, Frequency Authorization.
    (I) 1852.223-72, Safety and Health (Short Form).
    (J) 1852.223-73, Safety and Health Plan.
    (K) 1852.223-75, Major Breach of Safety and Security.
    (L) 1852.228-72, Cross-Waiver of Liability for Space Shuttle 
Services.
    (M) 1852.228-76, Cross-Waiver of Liability for Space Station 
Activities.
    (N) 1852.228-78, Cross-Waiver of Liability for NASA Expendable 
Launch Vehicles.
    (O) 1852.246-72, Material Inspection and Receiving Report.

[64 FR 19926, Apr. 23, 1999, as amended at 64 FR 51078, Sept. 21, 1999; 
65 FR 37058, June 13, 2000; 65 FR 50153, Aug. 17, 2000; 66 FR 18052, 
Apr. 5, 2001]



Sec. 1812.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items. (NASA supplements paragraph (c))

    (c) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for waivers. Requests shall be prepared and submitted 
in accordance with 1801.471.

 Subpart 1812.4--Unique Requirements Regarding Terms and Conditions for 
                            Commercial Items



Sec. 1812.404  Warranties.

    (b) In acquisitions under the Simplified Acquisition Threshold 
specified in FAR part 13, no express warranty should be required other 
than the offeror's commercial warranty.

         Subpart 1812.70--Commercial Space Hardware or Services



Sec. 1812.7000  Prohibition on guaranteed customer bases for new 
          commercial space hardware or services.

    Public Law 102-139, title III, Section 2459d, prohibits NASA from 
awarding a contract with an expected duration of more than one year if 
the primary effect of the contract is to provide a guaranteed customer 
base for, or establish an anchor tenancy in, new commercial space 
hardware or services. Exception to this prohibition may be authorized 
only by an appropriations Act specifically providing otherwise.

[63 FR 40189, July 28, 1998]

[[Page 220]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

              PART 1813--SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 1813.000  Scope of part.

Sec. 1813.003  Policy.

                        Subpart 1813.1 Procedures


Sec. 1813.106  Soliciting competition, evaluation of quotations or 
          offers, award and documentation.

Sec. 1813.106-3  Award and documentation.

              Subpart 1813.3 Simplified Acquisition Methods


Sec. 1813.301  Governmentwide commercial purchase card.

Sec. 1813.301-70  Purchase card documentation.

Sec. 1813.301-71  Training.

Sec. 1813.301-72  Approving official.

Sec. 1813.301-73  Program officials.

Sec. 1813.302  Purchase orders.

Sec. 1813.302-1  General.

Sec. 1813.302-70  Purchase orders under section 8(a) of the Small 
          Business Act.

Sec. 1813.302-570  NASA solicitation provisions.

Sec. 1813.303  Blanket Purchase Agreements (BPAs).

Sec. 1813.303-3  Preparation of BPAs.

Sec. 1813.307  Forms.


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

    Source: 63 FR 40189, July 28, 1998, unless otherwise noted.



Sec. 1813.000  Scope of part.

    FAR Part 13 and 1813 do not apply to NASA Research Announcements 
(NRA) and Announcements of Opportunity (AO). These acquisitions shall be 
conducted in accordance with the procedures in 1835.016-71 and 1872, 
respectively. However, awards resulting from NRAs or AOs that are to be 
made as procurement instruments, can be made as either a contract or a 
purchase order. When a purchase order is used, it must not exceed the 
simplified acquisition threshold and must include the appropriate 
clauses pertaining to data rights, key personnel requirements, and any 
other requirements determined necessary by the contracting officer. 
Contracting officers must determine whether obtaining the contractor's 
acceptance of the order is necessary (see FAR 13.302-3(a)).

[65 FR 46628, July 31, 2000]



Sec. 1813.003  Policy. (NASA supplements paragraph (g))

    (g) Acquisitions under these simplified acquisition procedures shall 
be fixed-price, except as provided under the unpriced purchase order 
method in FAR 13.302-2.

[63 FR 40189, July 28, 1998, as amended at 64 FR 5620, Feb. 4, 1999]

                       Subpart 1813.1--Procedures



Sec. 1813.106  Soliciting competition, evaluation of quotations or 
          offers, award and documentation.



Sec. 1813.106-3  Award and documentation. (NASA supplements paragraph 
          (b))

    (b)(3)(ii) 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 1813.3--Simplified Acquisition Methods



Sec. 1813.301  Governmentwide commercial purchase card. (NASA 
          supplements paragraphs (a), (b), and (c))

    (a) The procurement officer or deputy procurement officer shall 
designate individual cardholders in accordance with center procedures, 
subject to the following limitations:
    (i) Personnel other than contracting officers may be designated as 
cardholders for micro-purchases and for individual orders under BPAs up 
to $5,000 (see 1813.303-3(a)(4)), provided they complete training 
adequate to ensure appropriate use of the purchase card.
    (ii) The procurement officer's designation shall be in writing and 
shall specify the scope of the cardholder's authority.
    (iii) The center shall establish and maintain administrative 
procedures and management controls required by the General Services 
Administration

[[Page 221]]

(GSA). Purchases made with the Governmentwide commercial purchase card 
shall comply with the instructions and procedures issued by GSA as well 
as applicable parts of the FAR and NFS.
    (b) The Governmentwide commercial purchase card may be used to order 
and pay for purchases under contracts established under FAR Part 8 
procedures, up to the simplified acquisition threshold (except see 
paragraph (a)(i) of this section for dollar limitations for personnel 
other than contracting officers).
    (c) The Governmentwide commercial purchase card may be used to order 
and pay for purchases in the circumstances described in FAR 13.301(c) up 
to the simplified acquisition threshold (except see paragraph (a)(i) of 
this section for limitations for personnel other than contracting 
officers). Except as authorized in paragraphs (b) and (c) of this 
section, the Governmentwide commercial purchase card may not be used for 
purchases in excess of $25,000. 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 13.003(b)).
    (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 13.106-1).
    (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.

[63 FR 40189, July 28, 1998, as amended at 65 FR 12484, Mar. 9, 2000]



Sec. 1813.301-70  Purchase card documentation.

    Documentation of purchases shall be minimized. For transactions 
below the micro-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 1813.106-3(b)(3)(ii).



Sec. 1813.301-71  Training.

    All cardholders and approving officials must complete training prior 
to receiving a purchase card. Training will address the responsibilities 
of the cardholder and approving official, prohibited purchases, purchase 
limitations, and sources of supply.

[65 FR 82296, Dec. 28, 2000]



Sec. 1813.301-72  Approving official.

    The approving official is the individual who reviews and approves a 
cardholder'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 statement of purchases. Unless 
center procedures otherwise provide for their designation, the 
procurement officer shall designate approving officials.



Sec. 1813.301-73  Program officials.

    (a) The Langley Research Center, Office of Procurement (Code AG), is 
the agency program coordinator.
    (b) The procurement officer shall identify the center program 
coordinator and the center billing office point of contact, and provide 
their names to the agency program coordinator.

[63 FR 40189, July 28, 1998, as amended at 64 FR 51079, Sept. 21, 1999]



Sec. 1813.302  Purchase orders.



Sec. 1813.302-1  General.

    (a) See 1813.003(g).

[67 FR 50823, Aug. 6, 2002]



Sec. 1813.302-70  Purchase orders under section 8(a) of the Small 
          Business Act.

    Purchase orders made using simplified acquisition procedures are 
authorized for 8(a) acquisitions under the simplified acquisition 
threshold.

[[Page 222]]



Sec. 1813.302-570  NASA solicitation provisions.

    (a)(1) The contracting officer may use the provision at 1852.213-70, 
Offeror Representations and Certifications--Other Than Commercial Items, 
in simplified acquisitions exceeding the mircro-purchase threshold that 
are for other than commercial items. This provision shall not be used 
for acquisition of commercial items as defined in FAR 2.101.
    (2) This provision provides a single, consolidated list of 
certifications and representations for the acquisition of other than 
commercial items using simplified acquisition procedures and is attached 
to the solicitation for offerors to complete and return with their 
offer.
    (i) Use the provision with its Alternate I in solicitations for 
acquisitions that are for, or specify the use of recovered materials 
(see FAR 23.4).
    (ii) Use the provision with its Alternate II in solicitations for 
the acquisition of research, studies, supplies, or services of the type 
normally acquired from higher education institutions (see FAR 26.3).
    (iii) Use the provision with its Alternate III in solicitation which 
include the clause at FAR 52.227-14, Rights in Data--General (see FAR 
27.404(d)(2) and 1827.404(d)).
    (b) The contracting officer may insert a provision substantially the 
same as the provision at 1852.213-71, Evaluation--Other than Commercial 
Items, in solicitations using simplified acquisition procedures for 
other than commercial items when a trade-off source selection process 
will be used, that is, factors in addition to technical acceptability 
and price will be considered. (See FAR 13.106.)

[67 FR 38904, June 6, 2002, as amended at 67 FR 50823, Aug. 6, 2002]



Sec. 1813.303  Blanket Purchase Agreements (BPAs).



Sec. 1813.303-3  Preparation of BPAs. (NASA supplements paragraph (a))

    (a)(4) Non-GS-1102 or -1105 personnel shall not be authorized to 
place individual orders under a BPA in an amount greater than $5,000. 
For sole source orders above $2,500, a contracting officer's 
determination is required in accordance with FAR 13.106-1(b)(1).



Sec. 1813.307  Forms. (NASA supplements paragraphs (b), (c), and (d))

    (b) Installations may use locally prescribed forms.
    (c) Installations may use locally prescribed forms.
    (d) The SF 44 may be used for purchases of aviation fuel and oil of 
$10,000 or less.

                        PART 1814--SEALED BIDDING

                  Subpart 1814.2--Solicitation of Bids

Sec.

Sec. 1814.201  Preparation of invitations for bids.

Sec. 1814.201-5  Part IV--Representations and instructions.

Sec. 1814.201-6  Solicitation provisions.

Sec. 1814.201-670  NASA solicitation provisions.

                   Subpart 1814.3--Submission of Bids


Sec. 1814.302  Bid submission.

          Subpart 1814.4--Opening of Bids and Award of Contract


Sec. 1814.404  Rejection of bids.

Sec. 1814.404-1  Cancellation of invitations after opening.

Sec. 1814.407  Mistakes in bids.

Sec. 1814.407-3  Other mistakes disclosed before award.

Sec. 1814.407-4  Mistakes after award.

Sec. 1814.408  Award.

Sec. 1814.408-1  General.

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

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.

                  Subpart 1814.2--Solicitation of Bids



Sec. 1814.201  Preparation of invitations for bids.



Sec. 1814.201-5  Part IV--Representations and instructions. (NASA 
          supplements paragraph (c))

    (c) Section M, Evaluation factors for award.
    (i) The contracting officer shall state if award is to be made in 
the aggregate (all-or-non basis) or by specified groups of items.
    (ii) if bidders are required to have special technical 
qualifications because

[[Page 223]]

of the complexity of the equipment being purchased or for some other 
reason, the contracting officer shall state those qualifications.



Sec. 1814.201-6  Solicitation provisions.



Sec. 1814.201-670  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.214-
70, Caution to Offerors Furnishing Descriptive Literature, in 
invitations for bids. See FAR 52.214-21, Descriptive Literature.
    (b) The contracting officer shall insert the provision at 1852.214-
71, Grouping for Aggregate Award, in invitations for bids, except for 
construction, when it is in the Government's best interest not to make 
award for less than specified quantities solicited for certain items or 
groupings of certain items. Insert the item numbers and/or descriptions 
applicable for the particular procurement.
    (c) The contracting officer shall insert the provision at 1852.214-
72, Full Quantities, in invitations for bids, except for construction, 
when it is in the Government's best interest not to make award for less 
than the full quantities solicited.
    (d) If a pre-bid conference is planned, the contracting officer 
shall insert the provision at 1852.215-77, Preproposal/Pre-bid 
Conference. See 1815.209-70(a).

[61 FR 47079, Sept. 6, 1996, as amended at 63 FR 9966, Feb. 27, 1998]

                   Subpart 1814.3--Submission of Bids



Sec. 1814.302  Bid submission. (NASA supplements paragraph (b))

    (b) NASA contracting officers shall not consider telegraphic bids 
communicated by the telephone.

          Subpart 1814.4--Opening of Bids and Award of Contract



Sec. 1814.404  Rejection of bids.



Sec. 1814.404-1  Cancellation of invitations after opening. (NASA 
          supplements paragraphs (c) and (e))

    (c) The authority to make the determination at FAR 14.404-1(c) is 
delegated to the contracting officer, except as provided in paragraph 
(e)(1) of this subsection.
    (e)(1) A determination that includes an authorization to complete 
the acquisition through negotiation shall be made by the procurement 
officer, in consultation with the chief counsel.



Sec. 1814.407  Mistakes in bids.



Sec. 1814.407-3  Other mistakes disclosed before award. (NASA 
          supplements paragraph (e))

    (e) Procurement officers are authorized to make the determinations 
under 14.407-3 (a), (b), (c) and (d).



Sec. 1814.407-4  Mistakes after award. (NASA supplements paragraph (d))

    (d) Determinations shall be made by the procurement officer.



Sec. 1814.408  Award.



Sec. 1814.408-1  General.

    (1) A notice of award as a specific document is used when the 
contracting officer needs to inform a responsible bidder that its offer 
was determined to be the most advantageous to the Government 
(considering only price and price-related factors) and that the formal 
award will be made upon satisfaction of specified pre-performance 
conditions.
    (2) The notice of award is not a contractual instrument. It does not 
authorize the successful bidder to perform and, in itself, does not 
obligate the Government to award a contractual document. Its limited 
purpose is to provide: evidence of the Government's selection of the 
successful bidder; instruction to that bidder to satisfy specified pre-
performance conditions; and a statement that the Government intends to 
award the contract to the successful bidder upon satisfaction of these 
conditions if a contract is awarded as a result of the invitation for 
bids.
    (3) Use of a notice of award is optional. The contracting officer 
may issue the award document itself without first issuing a notice of 
award. However, there are instances when a notice of award should be 
considered, for example, in construction contracts where performance or 
payment bonds are required. In such cases, the most

[[Page 224]]

cost effective technique is to require only the successful bidder to 
provide the necessary bonds. The notice of award advises the successful 
bidder to provide the bonds, and it also serves as formal evidence from 
the Government of the impending award if such evidence is required to 
secure the bonds.
    (4) The notice of award shall not be issued unless bids have been 
evaluated and a selection made, and a definitive contract document is 
ready for execution upon satisfaction of the conditions specified in the 
notice. Upon satisfaction of these conditions, the approved and executed 
contract instrument shall be provided to the successful bidder.
    (5) Since the notice of award is not a contractual document 
authorizing performance, the period of performance of the resultant 
contract shall not be based on the date of issuance or receipt of the 
notice of award. The period of performance specified in the contract 
shall be based on some other reference point, such as the date the 
contract is provided to the successful bidder, a mutually agreeable 
effective date of a later authorization to proceed date.
    (6) The notice of award can be issued by any formal written means 
such as a letter, telegram or electronic means. The notice should be 
substantially the same as the following format.

                                 Format

    Subject: Notice of Award--Invitation for Bids (IFB) (a). This notice 
is to advise you that your bid (b) in response to the subject IFB has 
been determined to be the most advantageous to the Government 
(considering only price and price-related factors). It is the 
Government's intention to award you a contract in the amount of (c) for 
this effort pending satisfaction of the following pre-performance 
conditions: (d)
    Evidence (e) of satisfaction of these conditions must be provided to 
the contracting officer by (f). In the event these conditions are not 
satisfied by this date, the Government reserves the right to award the 
contract to the bidder who submitted the next most advantageous bid.
    Please note that this notice of award is not a contractual document. 
It does not obligate the Government to award you, or any other bidder, a 
contract relative to the subject IFB, and it does not authorize you to 
proceed with contract performance or incur costs pursuant to such 
performance. Any costs incurred for contract performance prior to your 
receipt of a fully executed contract document are at your own risk and 
are not recoverable under any Government contract should the Government 
fail, for whatever reason, to award you a contract in response to the 
subject IFB.
    If a contract is awarded after evidence of satisfaction of the pre-
performance conditions listed above is provided to the contracting 
officer by the specified due date, the date of commencement of work will 
be provided with the formal award. This date will be based on (g).

    Notes.--The contracting officer shall insert, where shown, the 
following information:
    (a) Identification of the IFB by number and title.
    (b) Identification of the contractor's bid.
    (c) The award price.
    (d) The preperformance conditions (e.g., any required payment and 
performance bonds).
    (e) The evidence required to satisfy the pre-performance conditions 
(e.g., the actual payment and performance bonds).
    (f) The date by which the evidence must be provided to the 
contracting officer.
    (g) Identification of the date for commencement of performance. The 
period of performance of the contract shall not be based on the date of 
issuance or receipt of the notice of award. It shall be based on the 
date the contract is provided to the successful bidder, a mutually 
agreeable effective date, or a later authorization to proceed date.

                  PART 1815--CONTRACTING BY NEGOTIATION

  Subpart 1815.2--Solicitation and Receipt of Proposals and Information

Sec.

Sec. 1815.201  Exchanges with industry before receipt of proposals.

Sec. 1815.203  Requests for proposals.

Sec. 1815.203-70  Installation reviews.

Sec. 1815.203-71  Headquarters reviews.

Sec. 1815.203-72  Risk Management.

Sec. 1815.204  Contract format.

Sec. 1815.204-2  Part I--The Schedule.

Sec. 1815.204-5  Part IV--Representations and instructions.

Sec. 1815.204-70  Page limitations.

Sec. 1815.207  Handling proposals and information.

Sec. 1815.207-70  Release of proposal information.

Sec. 1815.207-71  Appointing non-Government evaluators as special 
          Government employees.

Sec. 1815.208  Submission, modification, revision, and withdrawal of 
          proposals.

Sec. 1815.209  Solicitation provisions and contract clauses.

Sec. 1815.209-70  NASA solicitation provisions.

[[Page 225]]

                    Subpart 1815.3--Source Selection


Sec. 1815.300  Scope of subpart.

Sec. 1815.300-70  Applicability of subpart.

Sec. 1815.303  Responsibilities.

Sec. 1815.304  Evaluation factors and significant subfactors.

Sec. 1815.304-70  NASA evaluation factors.

Sec. 1815.305  Proposal evaluation.

Sec. 1815.305-70  Identification of unacceptable proposals.

Sec. 1815.305-71  Evaluation of a single proposal.

Sec. 1815.306  Exchanges with offerors after receipt of proposals.

Sec. 1815.307  Proposal revisions.

Sec. 1815.308  Source selection decision.

Sec. 1815.370  NASA source evaluation boards.

                    Subpart 1815.4--Contract Pricing


Sec. 1815.403  Obtaining cost or pricing data.

Sec. 1815.403-1  Prohibition on obtaining cost or pricing data.

Sec. 1815.403-170  Waivers of cost or pricing data.

Sec. 1815.403-3  Requiring information other than cost or pricing data.

Sec. 1815.403-4  Requiring cost or pricing data.

Sec. 1815.404  Proposal analysis.

Sec. 1815.404-2  Information to support proposal analysis.

Sec. 1815.404-4  Profit.

Sec. 1815.404-470  NASA Form 634.

Sec. 1815.404-471  NASA structured approach for profit or fee objective.

Sec. 1815.404-471-1  General

Sec. 1815.404-471-2  Performance risk.

Sec. 1815.404-471-3  Contract type risk and working capital adjustment.

Sec. 1815.404-471-4  Other considerations.

Sec. 1815.404-471-5  Facilities capital cost of money.

Sec. 1815.404-471-6  Modification to structured profit/fee approach for 
          nonprofit organizations.

Sec. 1815.404-472  Payment of profit or fee under letter contracts.

Sec. 1815.406  Documentation.

Sec. 1815.406-1  Prenegotiation objectives.

Sec. 1815.406-170  Content of the prenegotiation position memorandum.

Sec. 1815.406-171  Installation reviews.

Sec. 1815.406-172  Headquarters reviews.

Sec. 1815.406-3  Documenting the negotiation.

Sec. 1815.407  Special cost or pricing areas.

Sec. 1815.407-2  Make-or-buy programs.

Sec. 1815.408  Solicitation provisions and contract clauses.

Sec. 1815.408-70  NASA solicitation provisions and contract clauses.

Subpart 1815.5--Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 1815.504  Award to successful offeror.

Sec. 1815.506  Postaward debriefing of offerors.

Sec. 1815.506-70  Debriefing of offerors--Major System acquisitions.

                  Subpart 1815.6--Unsolicited Proposals


Sec. 1815.602  Policy.

Sec. 1815.604  Agency points of contact.

Sec. 1815.606  Agency procedures.

Sec. 1815.606-70  Relationship of unsolicited proposals to NRAs.

Sec. 1815.609  Limited use of data.

Sec. 1815.609-70  Limited use of proposals.

Sec. 1815.670  Foreign proposals.

                       Subpart 1815.70--Ombudsman


Sec. 1815.7001  NASA Ombudsman Program.

Sec. 1815.7002  Synopses of solicitations and contracts.

Sec. 1815.7003  Contract clause.

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

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.

  Subpart 1815.2--Solicitation and Receipt of Proposals and Information



Sec. 1815.201  Exchanges with industry before receipt of proposals. 
          (NASA supplements paragraphs (c) and (f))

    (c)(6)(A) Except for acquisitions described in 1815.300-70(b), 
contracting officers shall issue draft requests for proposals (DRFPs) 
for all competitive negotiated acquisitions expected to exceed 
$1,000,000 (including all options or later phases of the same project). 
DRFPs shall invite comments from potential offerors on all aspects of 
the draft solicitation, including the requirements, schedules, proposal 
instructions, and evaluation approaches. Potential offerors should be 
specifically requested to identify unnecessary or inefficient 
requirements. If the DRFP contains Government-unique standards, 
potential offerors should be invited to identify voluntary consensus 
standards that meet the Government's requirements as alternatives to 
Government-unique standards cited as requirements, in accordance with 
FAR 11.101 and OMB Circular A-119. Comments should also be requested on 
any perceived safety, occupational health, security (including 
information technology security), environmental, export control, and/or 
other programmatic risk issues associated with performance of the work. 
When considered appropriate, the statement of work or the specifications 
may be

[[Page 226]]

issued in advance of other solicitation sections.
    (B) Contracting officers shall plan the acquisition schedule to 
include adequate time for issuance of the DRFP, potential offeror review 
and comment, and NASA evaluation and disposition of the comments.
    (C) When issuing DRFPs, potential offerors should be advised that 
the DRFP is not a solicitation and NASA is not requesting proposals.
    (D) Whenever feasible, contracting officers should include a summary 
of the disposition of significant DRFP comments with the final RFP.
    (E) If performance-based payments are planned to be used in a 
competitive negotiated acquisition, the DRFP shall request potential 
offerors to suggest terms, including performance events or payment 
criteria. Contracting officers shall use that information to establish a 
common set of performance-based payments parameters in the formal RFP 
when practicable.
    (F) The procurement officer may waive the requirement for a DRFP 
upon written determination that the expected benefits will not be 
realized given the nature of the supply or service being acquired. The 
DRFP shall not be waived because of poor or inadequate planning.
    (f)(i) Upon release of the formal RFP, the contracting officer shall 
direct all personnel associated with the acquisition to refrain from 
communicating with prospective offerors and to refer all inquiries to 
the contracting officer or other authorized representative. This 
procedure is commonly known as a ``blackout notice'' and shall not be 
imposed before release of the RFP. The notice may be issued in any 
format (e.g., letter or electronic) appropriate to the complexity of the 
acquisition.
    (ii) Blackout notices are not intended to terminate all 
communication with offerors. Contracting officers should continue to 
provide information as long as it does not create an unfair competitive 
advantage or reveal proprietary data.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 12484, Mar. 9, 2000; 65 FR 31102, May 16, 2000; 65 FR 37059, June 13, 
2000]



Sec. 1815.203  Requests for proposals.



Sec. 1815.203-70  Installation reviews.

    (a) Installations shall establish procedures to review all RFPs 
before release. When appropriate given the complexity of the acquisition 
or the number of offices involved in solicitation review, centers should 
consider use of a single review meeting called a Solicitation Review 
Board (SRB) as a streamlined alternative to the serial or sequential 
coordination of the solicitation with reviewing offices. The SRB is a 
meeting in which all offices having review and approval responsibilities 
discuss the solicitation and their concerns. Actions assigned and 
changes required by the SRB shall be documented.
    (b) When source evaluation board (SEB) procedures are used in 
accordance with 1815.370, the SEB shall review and approve the RFP prior 
to issuance.



Sec. 1815.203-71  Headquarters reviews.

    For RFPs requiring Headquarters review and approval, the procurement 
officer shall submit ten copies of the RFP to the Assistant 
Administrator for Procurement (Code HS). Any significant information 
relating to the RFP or the planned evaluation methodology omitted from 
the RFP itself should also be provided.

[65 FR 12485, Mar. 9, 2000]



Sec. 1815.203-72  Risk management.

    In all RFPs and RFOs for supplies or services for which a technical 
proposal is required, proposal instructions shall require offerors to 
identify and discuss risk factors and issues throughout the proposal 
where they are relevant, and describe their approach to managing these 
risks.

[65 FR 70316, Nov. 22, 2000]



Sec. 1815.204  Contract format.



Sec. 1815.204-2  Part I--The Schedule. (NASA supplements paragraph (c))

    (c) To the maximum extent practicable, requirements should be 
defined as performance based specifications/

[[Page 227]]

statements of work that focus on required outcomes or results, not 
methods of performance or processes.



Sec. 1815.204-5  Part IV--Representations and instructions. (NASA 
          supplements paragraph (b))

    (b) The information required in proposals should be kept to the 
minimum necessary for the source selection decision.



Sec. 1815.204-70  Page limitations.

    (a) Technical and contracting personnel will agree on page 
limitations for their respective portions of an RFP. Unless approved in 
writing by the procurement officer, the page limitation for the 
contracting portion of an RFP (all sections except Section C, 
Description/specifications/work statement) shall not exceed 150 pages, 
and the page limitation for the technical portion (Section C) shall not 
exceed 200 pages. Attachments to the RFP count as part of the section to 
which they relate. In determining page counts, a page is defined as one 
side of a sheet, 8\1/2\'' x 11'', with at least one inch margins on all 
sides, using not smaller than 12-point type. Foldouts count as an 
equivalent number of 8\1/2\'' x 11'' pages. The metric standard format 
most closely approximating the described standard 8\1/2\'' x 11'' size 
may also be used.
    (b) Page limitations shall also be established for proposals 
submitted in competitive acquisitions. Accordingly, technical and 
contracting personnel will agree on page limitations for each portion of 
the proposal. Unless a different limitation is approved in writing by 
the procurement officer, the total initial proposal, excluding title 
pages, tables of content, and cost/price information, shall not exceed 
500 pages using the page definition of 1815.204-70(a). Firm page 
limitations shall also be established for final proposal revisions, if 
requested. The appropriate page limitations for final proposal revisions 
should be determined by considering the complexity of the acquisition 
and the extent of any discussions. The same page limitations shall apply 
to all offerors. Pages submitted in excess of specified limitations will 
not be evaluated by the Government and will be returned to the offeror.



Sec. 1815.207  Handling proposals and information.



Sec. 1815.207-70  Release of proposal information.

    (a) NASA personnel participating in any way in the evaluation may 
not reveal any information concerning the evaluation to anyone not also 
participating, and then only to the extent that the information is 
required in connection with the evaluation. When non-NASA personnel 
participate, they shall be instructed to observe these restrictions.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
procurement officer is the approval authority to disclose proposal 
information outside the Government. If outside evaluators are involved, 
this authorization may be granted only after compliance with FAR 37.2 
and 1837.204, except that the determination of unavailability of 
Government personnel required by FAR 37.2 is not required for disclosure 
of proposal information to JPL employees.
    (2) Proposal information in the following classes of proposals may 
be disclosed with the prior written approval of a NASA official one 
level above the NASA program official responsible for the overall 
conduct of the evaluation. If outside evaluators are involved, the 
determination of unavailability of Government personnel required by FAR 
37.2 is not required for disclosure in these instances.
    (i) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (ii) Unsolicited proposals; and
    (iii) SBIR and STTR proposals.
    (3) If JPL personnel, in evaluating proposal information released to 
them by NASA, require assistance from non-JPL, non-Government 
evaluators, JPL must obtain written approval to release the information 
in accordance with paragraphs (b)(1) and (b)(2) of this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]

[[Page 228]]



Sec. 1815.207-71  Appointing non-Government evaluators as special 
          Government employees.

    (a) Except as provided in paragraph (c) of this section, non-
Government evaluators, except employees of JPL, shall be appointed as 
special Government employees.
    (b) Appointment as a special Government employee is a separate 
action from the approval required by paragraph 1815.207-70(b) and may be 
processed concurrently. Appointment as a special Government employee 
shall be made by:
    (1) The NASA Headquarters personnel office when the release of 
proposal information is to be made by a NASA Headquarters office; or
    (2) The installation personnel office when the release of proposal 
information is to be made by the installation.
    (c) Non-Government evaluators need not be appointed as special 
Government employees when they evaluate:
    (1) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (2) Unsolicited proposals; and
    (3) SBIR and STTR proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



Sec. 1815.208  Submission, modification, revision, and withdrawal of 
          proposals. (NASA supplements paragraph (b))

    (b) The FAR late proposal criteria do not apply to Announcements of 
Opportunity (see 1872.705-1 paragraph VII), NASA Research Announcements 
(see 1852.235-72), and Small Business Innovative Research (SBIR) Phase I 
and Phase II solicitations, and Small Business Technology Transfer 
(STTR) solicitations. For these solicitations, proposals or proposal 
modifications received from qualified firms after the latest date 
specified for receipt may be considered if a significant reduction in 
cost to the Government is probable or if there are significant technical 
advantages, as compared with proposals previously received. In such 
cases, the project office shall investigate the circumstances 
surrounding the late submission, evaluate its content, and submit 
written recommendations and findings to the selection official or a 
designee as to whether there is an advantage to the Government in 
considering it. The selection official or a designee shall determine 
whether to consider the late submission.



Sec. 1815.209  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (a))

    (a) The contracting officer shall insert FAR 52.215-1 in all 
competitive negotiated solicitations.



Sec. 1815.209-70  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.215-
77, Preproposal/Pre-bid Conference, in competitive requests for 
proposals and invitations for bids where the Government intends to 
conduct a prepoposal or pre-bid conference. Insert the appropriate 
specific information relating to the conference.
    (b) When it is not in the Government's best interest to make award 
for less than the specified quantities solicited for certain items or 
groupings of items, the contracting officer shall insert the provision 
at 1852.214-71, Grouping for Aggregate Award. See 1814.201-670(b).
    (c) When award will be made only on the full quantities solicited, 
the contracting officer shall insert the provision at 1852.214-72, Full 
Quantities. See 1814.201-670(c).
    (d) The contracting officer shall insert the provision at 1852.215-
81, Proposal Page Limitations, in all competitive requests for 
proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 67 FR 50824, Aug. 6, 2002]

                    Subpart 1815.3--Source Selection



Sec. 1815.300  Scope of subpart.



Sec. 1815.300-70  Applicability of subpart.

    (a)(1) Except as indicated in paragraph (b) of this section, NASA 
competitive negotiated acquisitions shall be conducted as follows:
    (i) Acquisitions of $50 million or more--in accordance with FAR 15.3 
and this subpart.

[[Page 229]]

    (ii) Other acquisitions--in accordance with FAR 15.3 and this 
subpart except section 1815.370.
    (2) Estimated dollar values of acquisitions shall include the values 
of multiple awards, options, and later phases of the same project.
    (b) FAR 15.3 and this subpart are not applicable to acquisitions 
conducted under the following procedures:
    (1) MidRange (see part 1871).
    (2) Announcements of Opportunity (see part 1872).
    (3) NASA Research Announcements (see 1835.016-71).
    (4) The Small Business Innovative Research (SBIR) program and the 
Small Business Technology Transfer (STTR) pilot program under the 
authority of the Small Business Act (15 U.S.C. 638).
    (5) Architect and Engineering (A&E) services (see FAR 36.6 and 
1836.6).

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



Sec. 1815.303  Responsibilities. (NASA supplements paragraphs (a) and 
          (b))

    (a) The SSA shall be established at the lowest reasonable level for 
each acquisition. Notwithstanding the FAR designation of the contracting 
officer as SSA, the SSA for center acquisitions shall be established in 
accordance with center procedures. For acquisitions designated as 
Headquarters selections, the SSA will be identified as part of the 
Master Buy Plan process (see 1807.71).
    (b)(i) The source selection authority (SSA) is the Agency official 
responsible for proper and efficient conduct of the source selection 
process and for making the final source selection decision. The SSA has 
the following responsibilities in addition to those listed in the FAR:
    (A) Approve the evaluation factors, subfactors, the weight of the 
evaluation factors and subfactors, and any special standards of 
responsibility (see FAR 9.104-2) before release of the RFP, or delegate 
this authority to appropriate management personnel;
    (B) Appoint the source selection team. However, when the 
Administrator will serve as the SSA, the Official-in-Charge of the 
cognizant Headquarters Program Office will appoint the team; and
    (C) Provide the source selection team with appropriate guidance and 
special instructions to conduct the evaluation and selection procedures.
    (b)(2) Approval authorities for Acquisition Plans and Acquisition 
Strategy Meetings are in accordance with 1807.103.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 30013, May 10, 2000]



Sec. 1815.304  Evaluation factors and significant subfactors. (NASA 
          supplements paragraph (c))

    (c)(4)(A) The extent of participation of small disadvantaged 
business (SDB) concerns shall be evaluated as a subfactor under the 
Mission Suitability factor. If a Mission Suitability factor is not used, 
the SDB participation shall be evaluated as a separate factor or 
subfactor, as appropriate.
    (B) SDB concerns that choose the FAR 19.11 price evaluation 
adjustment shall receive the lowest possible score/rating under the FAR 
15.304(c)(4) evaluation.

[64 FR 25214, May 11, 1999]



Sec. 1815.304-70  NASA evaluation factors.

    (a) Typically, NASA establishes three evaluation factors: Mission 
Suitability, Cost/Price, and Past Performance. Evaluation factors may be 
further defined by subfactors. Evaluation subfactors should be 
structured to identify significant discriminators, or ``key swingers''--
the essential information required to support a source selection 
decision. Too many subfactors undermine effective proposal evaluation. 
All evaluation subfactors should be clearly defined to avoid overlap and 
redundancy.
    (b) Mission Suitability factor. (1) This factor indicates the merit 
or excellence of the work to be performed or product to be delivered. It 
includes, as appropriate, both technical and management subfactors. 
Mission Suitability shall be numerically weighted and scored on a 1000-
point scale.
    (2) The Mission Suitability factor may identify evaluation 
subfactors to further define the content of the factor. Each Mission 
Suitability subfactor

[[Page 230]]

shall be weighted and scored. The adjectival rating percentages in 
1815.305(a)(3)(A) shall be applied to the subfactor weight to determine 
the point score. The number of Mission Suitability subfactors is limited 
to five. The Mission Suitability evaluation subfactors and their weights 
shall be identified in the RFP.
    (3) For cost reimbursement acquisitions, the Mission Suitability 
evaluation shall also include the results of any cost realism analysis. 
The RFP shall notify offerors that the realism of proposed costs may 
significantly affect their Mission Suitability scores.
    (4) If the solicitation requires the submission of a Safety and 
Health Plan (see 1823.7001(c) and NPG 8715.3, NASA Safety Manual, 
Appendix H), safety and health must be a consideration in the 
evaluation. For acquisitions valued at $10 million or more, or $25 
million or more for commercial items, then the Mission Suitability 
factor, if used, shall include a subfactor for safety and health. 
Otherwise, use of that subfactor is optional.
    (c) Cost/Price factor. This factor evaluates the reasonableness and, 
if necessary, the cost realism, of proposed costs/prices. The Cost/Price 
factor is not numerically weighted or scored.
    (d) Past Performance factor. (1) This factor indicates the relevant 
quantitative and qualitative aspects of each offeror's record of 
performing services or delivering products similar in size, content, and 
complexity to the requirements of the instant acquisition.
    (2) The RFP shall instruct offerors to submit data (including data 
from relevant Federal, State, and local governments and private 
contracts) that can be used to evaluate their past performance. 
Typically, the RFP will require:
    (i) A list of contracts similar in size, content, and complexity to 
the instant acquisition, showing each contract number, the type of 
contract, a brief description of the work, and a point of contact from 
the organization placing the contract. Normally, the requested contracts 
are limited to those received in the last three years. However, in 
acquisitions that require longer periods to demonstrate performance 
quality, such as hardware development, the time period should be 
tailored accordingly.
    (ii) The identification and explanation of any cost overruns or 
underruns, completion delays, performance problems, and terminations.
    (3) The contracting officer may start collecting past performance 
data before proposal receipt. One method for early evaluation of past 
performance is to request offerors to submit their past performance 
information in advance of the proposal due date. The RFP could also 
include a past performance questionnaire for offerors to send their 
previous customers with instructions to return the completed 
questionnaire to the Government. Failure of the offeror to submit its 
past performance information early or of the customers to submit the 
completed questionnaires shall not be a cause for rejection of the 
proposal nor shall it be reflected in the Government's evaluation of the 
offeror's past performance.
    (4) The contracting officer shall evaluate the offeror's past 
performance in occupational health, security, safety, and mission 
success (e.g., mishap rates and problems in delivered hardware and 
software that resulted in mishaps or failures) when these areas are 
germane to the requirement.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 25215, May 11, 1999; 65 
FR 30013, May 10, 2000; 65 FR 37059, June 13, 2000]



Sec. 1815.305  Proposal evaluation. (NASA supplements paragraphs (a) and 
          (b))

    (a) Each proposal shall be evaluated to identify and document:
    (i) Any deficiencies;
    (ii) All strengths and significant weaknesses;
    (iii) The numerical score and/or adjectival rating of each Mission 
Suitability subfactors and for the Mission Suitability factor in total;
    (iv) Cost realism, if appropriate;
    (v) The Past Performance evaluation factor; and
    (vi) Any programmatic risk to mission success, e.g., technical, 
schedule, cost, safety, occupational health, security, export control, 
or environmental. Risks may result from the offeror's technical 
approach, manufacturing plan, selection of materials, processes,

[[Page 231]]

equipment, or as a result of the cost, schedule, and performance impacts 
associated with its approach. Risk evaluations must consider the 
probability of the risk occurring, the impact and severity of the risk, 
the timeframe when the risk should be addressed, and the alternatives 
available to meet the requirements. Risk assessments shall be considered 
in determining Mission Suitability strengths, weaknesses, deficiencies, 
and numerical or adjectival ratings. Identified risks and the potential 
for cost impact shall be considered in the cost or price evaluation.
    (a)(1) Cost or price evaluation.
    (A) Cost or pricing data shall not be requested in competitive 
acquisitions. See 1815.403-1(b)(1) and 1815.403-3(b).
    (B) When contracting on a basis other than firm-fixed-price, the 
contracting officer shall perform price and cost realism analyses to 
assess the reasonableness and realism of the proposed costs. A cost 
realism analysis will determine if the costs in an offeror's proposal 
are realistic for the work to be performed, reflect a clear 
understanding of the requirements, and are consistent with the various 
elements of the offeror's technical proposal. The analysis should 
include:
    (a) The probable cost to the Government of each proposal, including 
any recommended additions or reductions in materials, equipment, labor 
hours, direct rates, and indirect rates. The probable cost should 
reflect the best estimate of the cost of any contract which might result 
from that offeror's proposal.
    (b) The differences in business methods, operating procedures, and 
practices as they affect cost.
    (c) A level of confidence in the probable cost assessment for each 
proposal.
    (C) The cost realism analysis may result in adjustments to Mission 
Suitability scores in accordance with the procedure described in 
1815.305(a)(3)(B).
    (a)(2) Past performance evaluation.
    (A) The Past Performance evaluation assesses the contractor's 
performance under previously awarded contracts.
    (B) The evaluation may be limited to specific areas of past 
performance considered most germane for the instant acquisition. It may 
include any or all of the items listed in FAR 42.1501, and/or any other 
aspects of past performance considered pertinent to the solicitation 
requirements or challenges. Regardless of the areas of past performance 
selected for evaluation, the same areas shall be evaluated for all 
offerors in that acquisition.
    (C) Questionnaires and interviews may be used to solicit assessments 
of the offerors's performance, as either a prime or subcontractor, from 
the offeror's previous customers.
    (D) All pertinent information, including customer assessments and 
any offeror rebuttals, will be made part of the source selection records 
and included in the evaluation.
    (a)(3) Technical Evaluation.
    (A) Mission Suitability subfactors and the total Mission Suitability 
factor shall be evaluated using the following adjectival ratings, 
definitions, and percentile ranges.

----------------------------------------------------------------------------------------------------------------
                                                                                                     Percentile
              Adjectival rating                                    Definitions                          range
----------------------------------------------------------------------------------------------------------------
Excellent....................................  A comprehensive and thorough proposal of                   91-100
                                                exceptional merit with one or more significant
                                                strengths. No deficiency or significant weakness
                                                exists.
Very Good....................................  A proposal having no deficiency and which                  71-90
                                                demonstrates over-all competence. One or more
                                                significant strengths have been found, and
                                                strengths outbalance any weaknesses that exist.
Good.........................................  A proposal having no deficiency and which shows a          51-70
                                                reasonably sound response. There may be strengths
                                                or weaknesses, or both. As a whole, weaknesses not
                                                off-set by strengths do not significantly detract
                                                from the offeror's response.
Fair.........................................  A proposal having no deficiency and which has one          31-50
                                                or more weaknesses. Weaknesses outbalance any
                                                strengths.
Poor.........................................  A proposal that has one or more deficiencies or             0-30
                                                significant weaknesses that demonstrate a lack of
                                                overall competence or would require a major
                                                proposal revision to correct.
----------------------------------------------------------------------------------------------------------------


[[Page 232]]

    (B) When contracting on a cost reimbursement basis, the Mission 
Suitability evaluation shall reflect the results of any required cost 
realism analysis performed under the cost/price factor. A structured 
approach shall be used to adjust Mission Suitability scores based on the 
degree of assessed cost realism. An example of such an approach would:
    (a) Establish a threshold at which Mission Suitability adjustments 
would start. The threshold should reflect the acquisition's estimating 
uncertainty (i.e., the higher the degree of estimating uncertainty, the 
higher the threshold);
    (b) Use a graduated scale that proportionally adjusts a proposal's 
Mission Suitability score for its assessed cost realism;
    (c) Affect a significant number of points to induce realistic 
pricing;
    (d) Calculate a Mission Suitability point adjustment based on the 
percentage difference between proposed and probable cost as follows:

------------------------------------------------------------------------
                                                                Point
             Services                Hardware development     adjustment
------------------------------------------------------------------------
5 percent.......................  30 percent.............            0
6 to 10 percent.................  31 to 40 percent.......          -50
11 to 15 percent................  41 to 50 percent.......         -100
16 to 20 percent................  51 to 60 percent.......         -150
21 to 30 percent................  61 to 70 percent.......         -200
more than 30 percent............  more than 70 percent...         -300
------------------------------------------------------------------------

    (a)(4) The cost or price evaluation, specifically the cost realism 
analysis, often requires a technical evaluation of proposed costs. 
Contracting officers may provide technical evaluators a copy of the cost 
volume or relevant information from it to use in the analysis.
    (b) The contracting officer is authorized to make the determination 
to reject all proposals received in response to a solicitation.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 37059, June 13, 2000]



Sec. 1815.305-70  Identification of unacceptable proposals.

    (a) The contracting officer shall not complete the initial 
evaluation of any proposal when it is determined that the proposal is 
unacceptable because:
    (1) It does not represent a reasonable initial effort to address the 
essential requirements of the RFP or clearly demonstrates that the 
offeror does not understand the requirements;
    (2) In research and development acquisitions, a substantial design 
drawback is evident in the proposal, and sufficient correction or 
improvement to consider the proposal acceptable would require virtually 
an entirely new technical proposal; or
    (3) It contains major eficiencies or omissions or out-of-line costs 
which discussions with the offeror could not reasonably be expected to 
cure.
    (b) The contracting officer shall document the rationale for 
discontinuing the initial evaluation of a proposal in accordance with 
this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



Sec. 1815.305-71  Evaluation of a single proposal.

    (a) If only one proposal is received in response to the 
solicitation, the contracting officer shall determine if the 
solicitation was flawed or unduly restrictive and determine if the 
single proposal is an acceptable proposal. Based on these findings, the 
SSA shall direct the contracting officer to:
    (1) Award without discussions provided for contracting officer 
determines that adequate price competition exists (see FAR 15.403-
1(c)(1)(ii));
    (2) Award after negotiating an acceptable contract. (The requirement 
for submission of cost or pricing data shall be determined in accordance 
with FAR 15.403-1); or
    (3) Reject the proposal and cancel the solicitation.
    (b) The procedure in 1815.305-71(a) also applies when the number of 
proposals equals the number of awards

[[Page 233]]

contemplated or when only one acceptable proposal is received.



Sec. 1815.306  Exchanges with offerors after receipt of proposals. (NASA 
          supplements paragraphs (c), (d), and (e))

    (c)(2) A total of no more than three proposals shall be a working 
goal in establishing the competitive range. Field installations may 
establish procedures for approval of competitive range determinations 
commensurate with the complexity or dollar value of an acquisition.
    (d)(3)(A) The contracting officer shall identify any cost/price 
elements that do not appear to be justified and encourage offerors to 
submit their most favorable and realistic cost/price proposals, but 
shall not discuss, disclose, or compare cost/price elements of any other 
offeror. The contracting officer shall question inadequate, conflicting, 
unrealistic, or unsupported cost information; differences between the 
offeror's proposal and most probable cost assessments; cost realism 
concerns; differences between audit findings and proposed costs; 
proposed rates that are too high/low; and labor mixes that do not appear 
responsive to the requirements. No agreement on cost/price elements or a 
``bottom line'' is necessary.
    (B) The contracting officer shall discuss contract terms and 
conditions so that a ``model'' contract can be sent to each offeror with 
the request for final proposal revisions. If the solicitation allows, 
any proposed technical performance capabilities above those specified in 
the RFP that have value to the Government and are considered proposal 
strengths should be discussed with the offeror and proposed for 
inclusion in that offeror's ``model'' contract. If the offeror declines 
to include these strengths in its ``model'' contract, the Government 
evaluators should reconsider their characterization as strengths.
    (e)(1) In no case shall the contacting officer relax or amend RFP 
requirements for any offeror without amending the RFP and permitting the 
other offerors an opportunity to propose against the relaxed 
requirements. 

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



Sec. 1815.307  Proposal revisions. (NASA supplements paragraph (b))

    (b)(i) The request for final proposal revisions (FPRs) shall also:
    (A) Instruct offerors to incorporate all changes to their offers 
resulting from discussions, and require clear traceability from initial 
proposals;
    (B) Require offerors to complete and execute the ``model'' contract, 
which includes any special provisions or performance capabilities the 
offeror proposed above those specified in the RFP;
    (C) Caution offerors against unsubstantiated changes to their 
proposals; and
    (D) Establish a page limit for FPRs.
    (ii) Approval of the Assistant Administrator for Procurement (Code 
HS) is required to reopen discussions for acquisitions of $50 million or 
more. Approval of the procurement officer is required for all other 
acquisitions.
    (iii) Proposals are rescored based on FPR evaluations. Scoring 
changes between initial and FPRs shall be clearly traceable.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998]



Sec. 1815.308  Source selection decision. (NASA paragraphs (1), (2) and 
          (3))

    (1) All significant evaluation findings shall be fully documented 
and considered in the source selection decision. A clear and logical 
audit trail shall be maintained for the rationale for ratings and 
scores, including a detailed account of the decisions leading to the 
selection. Selection is made on the basis of the evaluation criteria 
established in the RFP.
    (2) Before aware, the SSA shall sign a source selection statement 
that clearly and succinctly justifies the selection. Source selection 
statements must describe: the acquisition; the evaluation procedures; 
the substance of the Mission Suitability evaluation; and the evaluation 
of the Cost/Price and Past Performance factors. The statement also 
addresses unacceptable proposals, the competitive range determination, 
late proposals, or any other considerations pertinent to the decision. 
The statement shall not reveal any confidential business information. 
Except for certain major system acquisition competitions (see 1815.506-
70), source

[[Page 234]]

selection statements shall be releasable to competing offerors and the 
general public upon request. The statement shall be available to the 
Debriefing Official to use in postaward debriefings of unsuccessful 
offerors and shall be provided to debriefed offerors upon request.
    (3) Once the selection decision is made, the contracting officer 
shall award the contract.



Sec. 1815.370  NASA source evaluation boards.

    (a) The source evaluation board (SEB) procedures shall be used for 
those acquisitions identified in 1815.300-700(a)(1)(i).
    (b) The SEB assists the SSA by providing expert analyses of the 
offerors' proposals in relation to the evaluation factors and subfactors 
contained in the solicitation. The SEB will prepare and present its 
findings to the SSA, avoiding trade-off judgments among either the 
individual offerors or among the evaluation factors. The SEB will not 
make recommendations for selection to the SSA.
    (c) Designation. (1) The SEB shall be comprised of competent 
individuals fully qualified to identify the strengths, weaknesses, and 
risks associated with proposals submitted in response to the 
solicitation. The SEB shall be appointed as early as possible in the 
acquisition process, but not later than acquisition plan or acquisition 
strategy meeting approval.
    (2) While SEB participants are normally drawn from the cognizant 
installation, personnel from other NASA installations or other 
Government agencies may participate. When it is necessary to disclose 
the proposal (in whole or in part) outside the Government, approval 
shall be obtained in accordance with 1815.207-70.
    (3) When Headquarters retains SSA authority, the Headquarters Office 
of Procurement (Code HS) must concur on the SEB appointments. 
Qualifications of voting members, including functional title, grade 
level, and related SEB experience, shall be provided.
    (d) Organization. (1) The organization of an SEB is tailored to the 
requirements of the particular acquisition. This can range from the 
simplest situation, where the SEB conducts the evaluation and 
factfinding without the use of committees or panels/consultants (as 
described in paragraphs (d)(4) and (5) of this section) to a highly 
complex situation involving a major acquisition where two or more 
committees are formed and these, in turn, are assisted by special panels 
or consultants in particular areas. The number of committees or panels/
consultants shall be kept to a minimum.
    (2) The SEB Chairperson is the principal operating executive of the 
SEB. The Chairperson is expected to manage the team efficiently without 
compromising the validity of the findings provided to the SSA as the 
basis for a sound selection decision.
    (3) The SEB Recorder functions as the principal administrative 
assistant to the SEB Chairperson and is principally responsible for 
logistical support and recordkeeping of SEB activities.
    (4) An SEB committee functions as a factfinding arm of the SEB, 
usually in a broad grouping of related disciplines (e.g., technical or 
management). The committee evaluates in detail each proposal, or portion 
thereof, assigned by the SEB in accordance with the approved evaluation 
factors and subfactors and summarizes its evaluation in a written report 
to the SEB. The committee will also respond to requirements assigned by 
the SEB, including further justification or reconsideration of its 
findings. Committee chairpersons shall manage the administrative and 
procedural matters of their committees.
    (5) An SEB panel or consultant functions as a factfinding arm of the 
committee in a specialized area of the committee's responsibilities. 
Panels are established or consultants named when a particular area 
requires deeper analysis than the committee can provide.
    (6) The total of all such evaluators (committees, panels, 
consultants, etc. excluding SEB voting members and ex officio members) 
shall be limited to a maximum of 20, unless approved in writing by the 
procurement officer.
    (e) Voting members. (1) Voting members of the SEB shall include 
people who will have key assignments on the

[[Page 235]]

project to which the acquisition is directed. However, it is important 
that this should be tempered to ensure objectivity and to avoid an 
improper balance. It may even be appropriate to designate a management 
official from outside the project as SEB Chairperson.
    (2) Non-government personnel shall not serve as voting members of an 
SEB.
    (3) The SEB shall review the findings of committees, panels, or 
consultants and use its own collective judgment to develop the SEB 
evaluation findings reported to the SSA. All voting members of the SEB 
shall have equal status as rating officials.
    (4) SEB membership shall be limited to a maximum of 7 voting 
individuals. Wherever feasible, an assignment to SEB membership as a 
voting member shall be on a full-time basis. When not feasible, SEB 
membership shall take precedence over other duties.
    (5) The following people shall be voting members of all SEBs:
    (i) Chairperson.
    (ii) A senior, key technical representative for the project.
    (iii) An experienced procurement representative.
    (iv) A senior Safety & Mission Assurance (S&MA) representative, as 
appropriate.
    (v) Committee chairpersons (except where this imposes an undue 
workload).
    (f) Ex officio members. (1) The number of nonvoting ex officio 
(advisory) members shall be kept as small as possible. Ex officio 
members should be selected for the experience and expertise they can 
provide to the SEB. Since their advisory role may require access to 
highly sensitive SEB material and findings, ex officio membership for 
persons other than those identified in paragraph (f)(3) of this section 
is discouraged.
    (2) Nonvoting ex officio members may state their views and 
contribute to the discussions in SEB deliberations, but they may not 
participate in the actual rating process. However, the SEB recorder 
should be present during rating sessions.
    (3) For field installation selections, the following shall be 
nonvoting ex officio members on all SEBs:
    (i) Chairpersons of SEB committees, unless designated as voting 
members.
    (ii) The procurement officer of the installation, unless designated 
a voting member.
    (iii) The contracting officer responsible for the acquisition, 
unless designated a voting member.
    (iv) The Chief Counsel and/or designee of the installation.
    (v) The installation small business specialist.
    (vi) The SEB recorder.
    (g) Evaluation. (1) If committees are used, the SEB Chairperson 
shall send them the proposals or portions thereof to be evaluated, along 
with instructions regarding the expected function of each committee, and 
all data considered necessary or helpful.
    (2) While oral reports may be given to the SEB, each committee shall 
submit a written report which should include the following:
    (i) Copies of individual worksheets and supporting comments to the 
lowest level evaluated;
    (ii) An evaluation sheet summarized for the committee as a whole; 
and
    (iii) A statement for each proposal describing any strengths, 
deficiencies, or significant weaknesses which significantly affected the 
evaluation and stating any reservations or concerns, together with 
supporting rationale, which the committee or any of its members want to 
bring to the attention of the SEB.
    (3) The SEB process must be adequately documented. Clear 
traceability must exist at all levels of the SEB process. All reports 
submitted by committees or panels will be retained as part of the SEB 
records.
    (4) Each voting SEB member shall thoroughly review each proposal and 
any committee reports and findings. The SEB shall rate or score the 
proposals for each evaluation factor and subfactor according to its own 
collective judgment. SEB minutes shall reflect this evaluation process.
    (h) SEB presentation. (1) The SEB Chairperson shall brief the SSA on 
the results of the SEB deliberations to permit an informed and objective 
selection of the best source(s) for the particular acquisition.

[[Page 236]]

    (2) The presentation shall focus on the significant strengths, 
deficiencies, and significant weaknesses found in the proposals, the 
probable cost of each proposal, and any significant issues and problems 
identified by the SEB. This presentation must explain any applicable 
special standards of responsibility; evaluation factors and subfactors; 
the significant strengths and significant weaknesses of the offerors; 
the Government cost estimate, if applicable; the offerors' proposed 
cost/price; the probable cost; the proposed fee arrangements; and the 
final adjectival ratings and scores to the subfactor level.
    (3) Attendance at the presentation is restricted to people involved 
in the selection process or who have a valid need to know. The 
designated individuals attending the SEB presentation(s) shall:
    (i) Ensure that the solicitation and evaluation processes complied 
with all applicable agency policies and that the presentation accurately 
conveys the SEB's activities and findings;
    (ii) Not change the established evaluation factors, subfactors, 
weights, or scoring systems; or the substance of the SEB's findings. 
They may, however, advise the SEB to rectify procedural omissions, 
irregularities or inconsistencies, substantiate its findings, or revise 
the presentation.
    (4) The SEB recorder will coordinate the formal presentation 
including arranging the time and place of the presentation, assuring 
proper attendance, and distributing presentation material.
    (5) For Headquarters selections, the Headquarters Office of 
Procurement (Code HS) will coordinate the presentation, including 
approval of attendees. When the Administrator is the SSA, a preliminary 
presentation should be made to the center director and to the Official-
in-Charge of the cognizant Headquarters Program Office.
    (i) Recommended SEB presentation format. (1) Identification of the 
acquisition. Identifies the installation, the nature of the services or 
hardware to be acquired, some quantitative measure including the 
Government cost estimate for the acquisition, and the planned 
contractual arrangement. Avoids detailed objectives of the acquisition.
    (2) Background. Identifies any earlier phases of a phased 
acquisition or, as in the case of continuing support services, 
identifies the incumbent and any consolidations or proposed changes from 
the existing structure.
    (3) Evaluation factors, and subfactors. Explains the evaluation 
factors, subfactors, and any special standards of responsibility. Lists 
the relative order of importance of the evaluation factors and the 
numerical weights of the Mission Suitability subfactors. Presents the 
adjectival scoring system used in the Mission Suitability and Past 
Performance evaluations.
    (4) Sources. Indicates the number of offerors solicited and the 
number of offerors expressing interest (e.g., attendance at a 
preproposal conference). Identifies the offerors submitting proposals, 
indicating any small businesses, small disadvantaged businesses, and 
women-owned businesses.
    (5) Summary of findings. Lists the initial and final Mission 
Suitability ratings and scores, the offerors' proposed cost/prices, and 
any assessment of the probable costs. Introduces any clear 
discriminator, problem, or issue which could affect the selection. 
Addresses any competitive range determination.
    (6) Significant strengths, deficiencies, and significant weaknesses 
of offerors. Summarizes the SEB's findings, using the following 
guidelines:
    (i) Present only the significant strengths, deficiencies, and 
significant weaknesses of individual offerors.
    (ii) Directly relate the significant strengths, deficiencies, and 
significant weaknesses to the evaluation factors and subfactors.
    (iii) Indicate the results and impact, if any, of discussions and 
FPRs on ratings and scores.
    (7) Final Mission Suitability Ratings and Scores. Summarizes the 
evaluation subfactors, the maximum points achievable, and the scores of 
the offerors in the competitive range.
    (8) Final cost/price evaluation. Summarizes proposed cost/prices and 
any probable costs associated with each offeror including proposed fee 
arrangements. Presents the data as accurately as possible, showing SEB 
adjustments to achieve comparability. Identifies the SEB's confidence in 
the probable costs

[[Page 237]]

of the individual offerors, noting the reasons for low or high 
confidence.
    (9) Past performance. Reflects the summary conclusions, supported by 
specific case data.
    (10) Special interest. Includes only information of special interest 
to the SSA that has not been discussed elsewhere, e.g., procedural 
errors or other matters that could affect the selection decision.
    (j) A source selection statement shall be prepared in accordance 
with 1815.308. For installation selections, the installation Chief 
Counsel or designee will prepare the source selection statement. For 
Headquarters selections, the Office of General Counsel or designee will 
prepare the statement.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 65 
FR 30013, May 10, 2000; 65 FR 38777, June 22, 2000]

                    Subpart 1815.4--Contract Pricing



Sec. 1815.403  Obtaining cost or pricing data.



Sec. 1815.403-1  Prohibition on obtaining cost or pricing data. (NASA 
          supplements paragraphs (b) and (c))

    (b)(1) The adequate price competition exception is applicable to 
both fixed-price and cost-reimbursement type acquisitions. Contracting 
officers shall assume that all competitive acquisitions qualify for this 
exception.
    (c)(4) Waivers of the requirement for submission of cost or pricing 
data shall be prepared in accordance with FAR 1.704. A copy of each 
waiver shall be sent to the Headquarters Office of Procurement (Code 
HK).



Sec. 1815.403-170  Waivers of cost or pricing data.

    (a) NASA has waived the requirement for the submission of cost or 
pricing data when contracting with the Canadian Commercial Corporation 
(CCC). This waiver applies to the CCC and its subcontractors. The CCC 
will provide assurance of the fairness and reasonableness of the 
proposed price. This assurance should be relied on; however, contracting 
officers shall ensure that the appropriate level of information other 
than cost or pricing data is submitted by subcontractors to support any 
required proposal analysis, including a technical analysis and a cost 
realism analysis. The CCC also will provide for follow-up audit activity 
to ensure that any excess profits are found and refunded to NASA.
    (b) NASA has waived the requirement for the submission of cost or 
pricing data when contracting for Small Business Innovation Research 
(SBIR) program Phase II contracts. However, contracting officers shall 
ensure that the appropriate level of information other than cost or 
pricing data is submitted to determine price reasonableness and cost 
realism.

[64 FR 10573, Mar. 5, 1999]



Sec. 1815.403-3   Requiring information other than cost or pricing data.

    (b) As indicated in 1815.403-1(b)(1), the adequate price competition 
exception applies to all competitive acquisitions. For other than firm-
fixed price competitions, only the minimum information other than cost 
or pricing data necessary to ensure price reasonableness and assess cost 
realism should be requested. For firm-fixed price competitions, the 
contracting officer shall not request any cost information, except as 
required by FAR 22.1103, unless proposed prices appear unreasonable or 
unrealistically low given the offeror's proposed approach and there are 
concerns that the contractor may default.

[64 FR 69416, Dec. 13, 1999]



Sec. 1815.403-4  Requiring cost or pricing data. (NASA supplements 
          paragraph (b))

    (b)(2) If a certificate of current cost or pricing data is made 
applicable as of a date other than the date of price agreement, the 
agreed date should generally be within two weeks of the date of that 
agreement.



Sec. 1815.404  Proposal analysis.



Sec. 1815.404-2  Information to support proposal analysis. (NASA 
          supplements paragraph (a))

    (a)(1)(A) A field pricing report consists of a technical report and 
an audit report by the cognizant contract audit activity. Contracting 
officers should request a technical report from the

[[Page 238]]

ACO only if NASA resources are not available.
    (B) When the required participation of the ACO or auditor involves 
merely a verification of information, contracting officers should obtain 
this verification from the cognizant office by telephone rather than 
formal request of field pricing support.
    (C) When the cost proposal is for a product of a follow-on nature, 
contracting officers shall ensure that the following items, at a minimum 
are considered: actuals incurred under the previous contract, learning 
experience, technical and production analysis, and subcontract proposal 
analysis. This information may be obtained through NASA resources or the 
cognizant DCMA ACO or DCAA.
    (D) Requests for field pricing assistance may be made on NASA Form 
1434, Letter of Request for Pricing-Audit-Technical Evaluation Services.

[63 FR 9954, Feb. 27, 1998, as amended at 67 FR 53547, Oct. 23, 2001]



Sec. 1815.404-4   Profit. (NASA supplements paragraphs (b) and (c))

    (b)(1)(i)(a) The NASA structured approach for determining profit or 
fee objectives, described in 1815.404-471 shall be used to determine 
profit or fee objectives in the negotiation of contracts greater than or 
equal to $100,000 that use cost analysis and are:
    (1) Awarded on the basis of other than full and open competition 
(see FAR 6.3);
    (2) Awarded under NASA Research Announcements (NRAs) and 
Announcements of Opportunity (AO's); or
    (3) Awarded under the Small Business Innovative Research (SBIR) or 
the Small Business Technology Transfer Research (STTR) programs.
    (b) The rate calculated for the basic contract may only be used on 
actions under a negotiated contract when the conditions affecting profit 
or fee do not change.
    (c) Although specific agreement on the applied weights or values for 
individual profit or fee factors shall not be attempted, the contracting 
officer may encourage the contractor to--
    (1) Present the details of its proposed profit amounts in the 
structured approach format or similar structured approach; and
    (2) Use the structured approach method in developing profit or fee 
objectives for negotiated subcontracts.
    (ii) The use of the NASA structured approach for profit or fee is 
not required for:
    (a) Architect-engineer contracts;
    (b) Management contracts for operation and/or maintenance of 
Government facilities;
    (c) Construction contracts;
    (d) Contracts primarily requiring delivery of materials supplied by 
subcontractors;
    (e) Termination settlements; and
    (f) Contracts having unusual pricing situations when the procurement 
officer determines in writing that the structured approach is 
unsuitable.
    (c)(2) Contracting officers shall document the profit or fee 
analysis in the contract file.

[64 FR 51472, Sept. 23, 1999]



Sec. 1815.404-470   NASA Form 634.

    NASA Form (NF) 634 shall be used in performing the analysis 
necessary to develop profit or fee objectives.

[64 FR 51473, Sept. 23, 1999]



Sec. 1815.404-471   NASA structured approach for profit or fee 
          objective.



Sec. 1815.404-471-1   General.

    (a) The structured approach for determining profit or fee objectives 
(NF 634) focuses on three profit factors:
    (1) Performance risk;
    (2) Contract type risk including working capital adjustment; and
    (3) Other Considerations which may be considered by the contracting 
officer to account for special circumstances that are not adequately 
addressed in the performance risk and contract type risk factors.
    (b) The contracting officer assigns values to each profit or fee 
factor; the value multiplied by the base results in the profit/fee 
objective for that factor. Each factor has a normal value and a 
designated range of values. The normal value is representative of 
average conditions on the prospective contract when compared to all 
goods and services acquired by NASA. The designated range provides 
values based on above normal or below normal conditions. Values outside 
the designated range

[[Page 239]]

must not be used. In the negotiation documentation, the contracting 
officer need not explain assignment of the normal value, but must 
address conditions that justify assignment of other than the normal 
value.

[64 FR 51473, Sept. 23, 1999, as amended at 65 FR 12485, Mar. 9, 2000]



Sec. 1815.404-471-2   Performance risk.

    (a) Risk factors. Performance risk addresses the contractor's degree 
of risk in fulfilling the contract requirements. It consists of three 
risk factors:
    (1) Technical--the technical uncertainties of performance;
    (2) Management--the degree of management effort necessary to ensure 
that contract requirements are met; and
    (3) Cost control--the contractor's efforts to reduce and control 
costs.
    (b) Risk factor weighting, values and calculations. A weighting and 
value is assigned to each of the risk factors to determine a profit/fee 
objective.
    (c) Values. The normal value is 6 percent and the designated range 
is 4 percent to 8 percent.
    (d) Evaluation criteria for technical risk factor. (1) In 
determining the appropriate value for the technical risk factor, the 
contracting officer shall review the contract requirements and focus on 
the critical performance elements in the statement of work or 
specifications. Contracting officers shall consider the--
    (i) Technology being applied or developed by the contractor;
    (ii) Technical complexity;
    (iii) Program maturity;
    (iv) Performance specifications and tolerances;
    (v) Delivery schedule; and
    (vi) Extent of a warranty or guarantee.
    (2) Above normal conditions indicating substantial technical risk. 
(i) The contracting officer may assign a higher than normal value in 
those cases where there is a substantial technical risk, such as when--
    (A) The contractor is either developing or applying advanced 
technologies;
    (B) Items are being manufactured using specifications with stringent 
tolerance limits;
    (C) The efforts require highly skilled personnel or require the use 
of state-of-the-art machinery;
    (D) The services or analytical efforts are extremely important to 
the government and must be performed to exacting standards;
    (E) The contractor's independent development and investment has 
reduced the Government's risk or cost;
    (F) The contractor has accepted an accelerated delivery schedule to 
meet the Government's requirements; or
    (G) The contractor has assumed additional risk through warranty 
provisions.
    (ii) The contracting officer may assign a value significantly above 
normal. A maximum value may be assigned when the effort involves--
    (A) Extremely complex, vital efforts to overcome difficult technical 
obstacles that require personnel with exceptional abilities, experience, 
and professional credentials;
    (B) Development or initial production of a new item, particularly if 
performance or quality specifications are tight; or
    (C) A high degree of development or production concurrency.
    (3) Below normal conditions indicating lower than normal technical 
risk. (i) The contracting officer may assign a lower than normal value 
in those cases where the technical risk is low, such as when the--
    (A) Acquisition is for off-the-shelf items;
    (B) Requirements are relatively simple;
    (C) Technology is not complex;
    (D) Efforts do not require highly skilled personnel;
    (E) Efforts are routine; or
    (F) Acquisition is a follow-on effort or a repetitive type 
acquisition.
    (ii) The contracting officer may assign a value significantly below 
normal. A minimum value may be justified when the effort involves--
    (A) Routine services;
    (B) Production of simple items;
    (C) Rote entry or routine integration of Government-furnished 
information; or
    (D) Simple operations with Government-furnished property.

[[Page 240]]

    (e) Evaluation criteria for management risk factor. (1) In 
determining the appropriate value for the management risk factor, the 
contracting officer shall review the contract requirements and focus on 
the critical performance elements in the statement of work or 
specifications. Contracting officers shall--
    (i) Assess the contractor's management and internal control systems 
using contracting office information and reviews made by contract 
administration offices;
    (ii) Assess the management involvement expected on the prospective 
contract action; and
    (iii) Consider the degree of cost mix as an indication of the types 
of resources applied and value added by the contractor.
    (2) Above normal conditions indicating substantial management risk. 
(i) The contracting officer may assign a higher than normal value when 
the management effort is intense, such as when--
    (A) The contractor's value added is both considerable and reasonably 
difficult; or
    (B) The effort involves a high degree of integration and 
coordination.
    (ii) The contracting officer may justify a maximum value when the 
effort--
    (A) Requires large-scale integration of the most complex nature;
    (B) Involves major international activities with significant 
management coordination; or
    (C) Has critically important milestones.
    (3) Below normal conditions indicating lower than normal management 
risk. (i) The contracting officer may assign a lower than normal value 
when the management effort is minimal, such as when--
    (A) The program is mature and many end item deliveries have been 
made;
    (B) The contractor adds minimum value to an item;
    (C) The efforts are routine and require minimal supervision;
    (D) The contractor fails to provide an adequate analysis of 
subcontractor costs; or
    (E) The contractor does not cooperate in the evaluation and 
negotiation of the proposal.
    (ii) The contracting officer may assign a value significantly below 
normal. A minimum value may be assigned when--
    (A) Reviews performed by the field administration offices disclose 
unsatisfactory management and internal control systems (e.g., quality 
assurance, property control, safety, security); or
    (B) The effort requires an unusually low degree of management 
involvement.
    (f) Evaluation criteria for cost control risk factor. (1) In 
determining the appropriate value for the cost control risk factor, the 
contracting officer shall--
    (i) Evaluate the expected reliability of the contractor's cost 
estimates (including the contractor's cost estimating system);
    (ii) Evaluate the contractor's cost reduction initiatives (e.g., 
competition advocacy programs);
    (iii) Assess the adequacy of the contractor's management approach to 
controlling cost and schedule; and
    (iv) Evaluate any other factors that affect the contractor's ability 
to meet the cost targets (e.g., foreign currency exchange rates and 
inflation rates).
    (2) Above normal conditions indicating substantial cost control 
risk. (i) The contracting officer may assign a value higher than normal 
value if the contractor can demonstrate a highly effective cost control 
program, such as when--
    (A) The contractor has an aggressive cost reduction program that has 
demonstrable benefits;
    (B) The contractor uses a high degree of subcontract competition; or
    (C) The contractor has a proven record of cost tracking and control.
    (3) Below normal conditions indicating lower than normal cost 
control risk. (i) The contracting officer may assign a lower than normal 
value in those cases where the contractor demonstrates minimal concern 
for cost control, such as when--
    (A) The contractor's cost estimating system is marginal;
    (B) The contractor has made minimal effort to initiate cost 
reduction programs;
    (C) The contractor's cost proposal is inadequate; or

[[Page 241]]

    (D) The contractor has a record of cost overruns or the indication 
of unreliable cost estimates and lack of cost control.

[64 FR 51473, Sept. 23, 1999]



Sec. 1815.404-471-3  Contract type risk and working capital adjustment.

    (a) Risk factors. The contract type risk factor focuses on the 
degree of cost risk accepted by the contractor under varying contract 
types. The working capital adjustment is an adjustment added to the 
profit objective for contract type risk. It applies to fixed-price type 
contracts that provide for progress payments. Though it uses a formula 
approach, it is not intended to be an exact calculation of the cost of 
working capital. Its purpose is to give general recognition to the 
contractor's cost of working capital under varying contract 
circumstances, financing policies, and the economic environment. This 
adjustment is limited to a maximum of 2 percent.
    (b) Risk factor values and calculations. A risk value is assigned to 
calculate the profit or fee objective for contract type. A contract 
length factor is assigned and applied to costs financed when a working 
capital adjustment is appropriate. This calculation is only performed 
when the prospective contract is a fixed-price contract containing 
provisions for progress payments.
    (c) Values: Normal and designated ranges.

------------------------------------------------------------------------
                                                            Designated
         Contract Type             Note    Normal value       range
                                             (Percent)      (Percent)
------------------------------------------------------------------------
Firm-fixed-price, no financing        (1)          5     4 to 6
Firm-fixed-price with                 (6)          4     2.5 to 5.5
 performance-based payments.
Firm-fixed-price with progress        (2)          3     2 to 4
 payments.
Fixed-price-incentive, no             (1)          3     2 to 4
 financing.
Fixed-price-incentive, with           (6)          2     .5 to 3.5
 performance-based payments.
Fixed-price, redeterminable...        (3)
Fixed-price-incentive, with           (2)          1     0 to 2
 progress payments.
Cost-plus-incentive-fee.......        (4)          1     0 to 2
Cost-plus-award fee...........        (4)           .75  .5 to 1.5
Cost-plus-fixed fee...........        (4)           .5   0 to 1
Time-and-materials............        (5)           .5   0 to 1
Labor-hour....................        (5)           .5   0 to 1
Firm-fixed-price, level-of-           (5)           .5   0 to 1
 effort, term.
------------------------------------------------------------------------

    (1) No financing, means that the contract either does not provide 
progress or performance based payments, or provides them only on a 
limited basis. Do not compute a working capital adjustment.
    (2) When progress payments are present, compute a working capital 
adjustment.
    (3) For purposes of assigning profit values, treat a fixed-price 
redeterminable contract as if it were a fixed-price-incentive contract 
with below normal provisions.
    (4) Cost-plus contracts shall not receive the working capital 
adjustment.
    (5) These types of contracts are considered cost-plus-fixed-fee 
contracts for the purposes of assigning profit values. Do not compute 
the working capital adjustment. However, higher than normal values may 
be assigned within the designated range to the extent that portions of 
cost are fixed.
    (6) When performance-based payments are used, do not compute a 
working capital adjustment.
    (d) Evaluation criteria. (1) General. The contracting officer shall 
consider elements that affect contract type risk such as--
    (i) Length of contract;
    (ii) Adequacy of cost projection data;
    (iii) Economic environment;
    (iv) Nature and extent of subcontracted activity;
    (v) Protection provided to the contractor under contract provisions 
(e.g., economic price adjustment clauses);
    (vi) The ceilings and share lines contained in the incentive 
provisions; and
    (vii) The rate, frequency, and risk to the contractor of 
performance-based payments, if provided.

[[Page 242]]

    (2) Mandatory. The contracting officer shall assess the extent to 
which costs have been incurred prior to definitization of the contract. 
When costs have been incurred prior to definitization, generally regard 
the contract type risk to be in the low end of the designated range. If 
a substantial portion of the costs have been incurred prior to 
definitization, the contracting officer may assign a value as low as 0 
percent regardless of contract type.
    (3) Above normal conditions. The contracting officer may assign a 
higher than normal value when there is substantial contract type risk. 
Conditions indicating higher than normal contract type risk are--
    (i) Efforts where there is minimal cost history;
    (ii) Long-term contracts without provisions protecting the 
contractor, particularly when there is considerable economic 
uncertainty;
    (iii) Incentive provisions that place a high degree of risk on the 
contractor;
    (iv) Performance-based payments totaling less than the maximum 
allowable amount(s) specified at FAR 32.1004(b)(2); or
    (v) An aggressive performance-based payment schedule that increases 
risk.
    (4) Below normal conditions. The contracting officer may assign a 
lower than normal value when the contract type risk is low. Conditions 
indicating lower than normal contract type risk are:
    (i) Very mature product line with extensive cost history;
    (ii) Relatively short-term contracts;
    (iii) Contractual provisions that substantially reduce the 
contractor's risk, e.g. economic price adjustment provisions; and
    (iv) Incentive provisions that place a low amount of risk on the 
contractor.
    (v) A performance-based payment schedule that is routine with 
minimal risk.
    (e) Costs financed. (1) Costs financed equal the total costs 
multiplied by the percent of costs financed by the contractor.
    (2) Total costs may be reduced as appropriate when--
    (i) The contractor has little cash investment (e.g., subcontractor 
progress payments are liquidated late in the period of performance);
    (ii) Some costs are covered by special funding arrangements, such as 
advance payments;
    (3) The portion financed by the contractor is generally the portion 
not covered by progress payments. (i.e.--for progress payments: 100 
percent minus the customary progress payments rate. For example, if a 
contractor receives progress payments at 75 percent, the portion 
financed by the contractor is 25 percent. On contracts that provide 
progress payments to small business, use the customary progress payment 
rate for large businesses.)
    (f) Contract length factor. (1) This is the period of time that the 
contractor has a working capital investment in the contract. It--
    (i) Is based on the time necessary for the contractor to complete 
the substantive portion of the work;
    (ii) Is not necessarily the period of time between contract award 
and final delivery, as periods of minimal effort should be excluded;
    (iii) Should not include periods of performance contained in option 
provisions when calculating the objective for the base period; and
    (iv) Should not, for multiyear contracts, include periods of 
performance beyond that required to complete the initial year's 
requirements.
    (2) The contracting officer--
    (i) Should use the following to select the contract length factor:

------------------------------------------------------------------------
                                                             Contract
   Period to perform substantive portion  (in months)      length factor
------------------------------------------------------------------------
21 or less..............................................             .40
22 to 27................................................             .65
28 to 33................................................             .90
34 to 39................................................            1.15
40 or more..............................................            1.40
------------------------------------------------------------------------

    (ii) Should develop a weighted average contract length when the 
contract has multiple deliveries; and
    (iii) May use sampling techniques provided they produce a 
representative result.
    (3) Example: A prospective contract has a performance period of 40 
months with end items being delivered in the 34th, 36th, 38th and 40th 
months of the contract. The average period is 37

[[Page 243]]

months and the contract length factor is 1.15.

[64 FR 51474, Sept. 23, 1999]



Sec. 1815.404-471-4  Other considerations.

    (a) Other Considerations may be included by the contracting officer 
to account for special circumstances, such as contractor efficiencies or 
unusual acceptance of contractual or program risks that are not 
adequately addressed in the structured approach calculations described 
in 1815.404-471-2 or 1815.404-4713. The total adjustment resulting from 
Other Considerations may be positive or negative but in no case should 
the total adjustment exceed +/-5 percent.
    (b) The contracting officer shall analyze and verify information 
provided by the contractor that demonstrates that the special 
circumstances being recognized under this section--
    (1) Provide substantial benefits to the Government under the 
contract and/or overall program;
    (2) Have not been recognized in the structured approach 
calculations; and
    (3) Represent unusual and innovative actions or acceptance of risk 
by the contractor.
    (c) Examples of special circumstances include, but are not limited 
to the following:
    (1) Consistent demonstration by the contractor of excellent past 
performance within the last three years, with a special emphasis on 
excellence in safety, may merit an upward adjustment of as much as 1 
percent. Similarly, an assessment of poor past performance, especially 
in the area of safety, may merit a downward adjustment of as much -1 
percent. This consideration is especially important when negotiating 
modifications or changes to an ongoing contract.
    (2) Extraordinary steps to achieve the Government's socioeconomic 
goals, environmental goals, and public policy goals established by law 
or regulation that are sufficiently unique or unusual may merit an 
upward adjustment of as much as .5 percent. Similarly, for non-
participation in or violation of Federal programs, the contracting 
officer may adjust the objective by as much as -.5 percent. However, 
this consideration does not apply to the utilization of small 
disadvantaged businesses. Incentives for use of these firms may only be 
structured according to FAR 19.1203 and 19.1204(c).
    (3) Consideration of up to 1 percent should be given when contract 
performance requires the expenditure of significant corporate capital 
resources.
    (4) Unusual requests for use of government facilities and property 
may merit a downward adjustment of as much as--1 percent.
    (5) Cost efficiencies arising from innovative product design, 
process improvements, or integration of a life cycle cost approach for 
the design and development of systems that minimize maintenance and 
operations costs, that have not been recognized in Performance Risk or 
Contract Type Risk, may merit an upward adjustment. This factor is 
intended to recognize and reward improvements resulting from better 
ideas and management that will benefit the Government in the contract 
and/or program.
    (d) Other considerations need not be limited to situations that 
increase profit/fee levels. A negative consideration may be appropriate 
when there is a significant expectation of near-term spin-off benefits 
as a direct result of the contract.

[64 FR 51475, Sept. 23, 1999]



Sec. 1815.404-471-5  Facilities capital cost of money.

    (a) When facilities capital cost of money is included as an item of 
cost in the contractor's proposal, it shall not be included in the cost 
base for calculating profit/fee. In addition, a reduction in the profit/
fee objective shall be made in the amount equal to the facilities 
capital cost of money allowed in accordance with FAR 31.205-10(a)(2) or 
1 percent of the cost base, whichever is less.
    (b) CAS 417, cost of money as an element of the cost of capital 
assets under construction, should not appear in contract proposals. 
These costs are included in the initial value of a facility for purposes 
of calculating depreciation under CAS 414.

[64 FR 51476, Sept. 23, 1999]

[[Page 244]]



Sec. 1815.404-471-6  Modification to structured profit/fee approach for 
          nonprofit organizations.

    (a) The structured approach was designed for determining profit or 
fee objectives for commercial organizations. However, the structured 
approach must be used as a basis for arriving at profit/fee objectives 
for nonprofit organizations (FAR subpart 31.7), excluding educational 
institutions (FAR subpart 31.3), in accordance with paragraph (b) of 
this section. It is NASA policy not to pay profit or fee on contracts 
with educational institutions.
    (b) For contracts with nonprofit organizations under which profit or 
fee is involved, an adjustment of up to 3 percent of the costs in Block 
13 of NASA Form 634 must be subtracted from the total profit/fee 
objective. In developing this adjustment, it is necessary to consider 
the following factors:
    (1) Tax position benefits;
    (2) Granting of financing through letters of credit;
    (3) Facility requirements of the nonprofit organization; and
    (4) Other pertinent factors that may work to either the advantage or 
disadvantage of the contractor in its position as a nonprofit 
organization.

[65 FR 45306, July 21, 2000]



Sec. 1815.404-472  Payment of profit or fee under letter contracts.

    NASA's policy is to pay profit or fee only on definitized contracts.

[65 FR 12485, Mar. 9, 2000]



Sec. 1815.406  Documentation.



Sec. 1815.406-1  Prenegotiation objectives. (NASA supplements paragraph 
          (b))

    (b)(i) Before conducting negotiations requiring installation or 
Headquarters review, contracting officers or their representatives shall 
prepare a prenegotiation position memorandum setting forth the 
technical, business, contractual, pricing, and other aspects to be 
negotiated.
    (ii) A prenegotiation position memorandum is not required for 
contracts awarded under the competitive negotiated procedures of FAR 
15.3 and 1815.3.



Sec. 1815.406-170  Content of the prenegotiation position memorandum.

    The prenegotiation position memorandum (PPM) should fully explain 
the contractor and Government positions. Since the PPM will ultimately 
become the basis for negotiation, it should be structured to track to 
the price negotiation memorandum (see FAR 15.406-3 and 1815.406-3). In 
addition to the information described in FAR 15.406-1 and, as 
appropriate, 15.406-3(a), the PPM should address the following subjects, 
as applicable, in the order presented:
    (a) Introduction. Include a description of the acquisition and a 
history of prior acquisitions for the same or similar items. Address the 
extent of competition and its results. Identify the contractor and place 
of performance (if not evident from the description of the acquisition). 
Document compliance with law, regulations and policy, including JOFOC, 
synopsis, EEO compliance, and current status of contractor systems (see 
FAR 15.406-3(a)(4)). In addition, the negotiation schedule should be 
addressed and the Government negotiation team members identified by name 
and position.
    (b) Type of contract contemplated. Explain the type of contract 
contemplated and the reasons for its suitability.
    (c) Special features and requirements. In this area, discuss any 
special features (and related cost impact) of the acquisition, including 
such items as--
    (1) Letter contract or precontract costs authorized and incurred;
    (2) Results of preaward survey;
    (3) Contract option requirements;
    (4) Government property to be furnished;
    (5) Contractor/Government investment in facilities and equipment 
(and any modernization to be provided by the contractor/Government);
    (6) Any deviations, special clauses, or unusual conditions 
anticipated, for example, unusual financing, warranties, EPA clauses and 
when approvals were obtained, if required; and
    (7) Any risk management issues, e.g., mission success, safety, 
occupational health, information technology, export

[[Page 245]]

control, security, and environmental risks.
    (d) Cost analysis. For the basic requirement, and any option, 
include--
    (1) A parallel tabulation, by element of cost and profit/fee, of the 
contractor's proposal and the Government's negotiation objective. The 
negotiation objective represents the fair and reasonable price the 
Government is willing to pay for the supplies/services. For each element 
of cost, compare the contractor's proposal and the Government position, 
explain the differences and how the Government position was developed, 
including the estimating assumptions and projection techniques employed, 
and how the positions differ in approach. Include a discussion of 
excessive wages found (if applicable) and their planned resolution. 
Explain how historical costs, including costs incurred under a letter 
contract (if applicable), were used in developing the negotiation 
objective.
    (2) Significant differences between the field pricing report 
(including any audit reports) and the negotiation objectives and/or 
contractor's proposal shall be highlighted and explained. For each 
proposed subcontract meeting the requirement of FAR 15.404-3(c), there 
shall be a discussion of the price and, when appropriate, cost analyses 
performed by the contracting officer, including the negotiation 
objective for each such subcontract. The discussion of each major 
subcontract shall include the type of subcontract, the degree of 
competition achieved by the prime contractor, the price and, when 
appropriate, cost analyses performed on the subcontractor's proposal by 
the prime contractor, any unusual or special pricing or finance 
arrangements, and the current status of subcontract negotiations.
    (3) The rationale for the Government's profit/fee objectives and, if 
appropriate, a completed copy of the NASA Form 634, Structured Approach-
-Profit/Fee Objective, and DD Form 1861, Contract Facilities Capital 
Cost of Money, should be included. For incentive and award fee 
contracts, describe the planned arrangement in terms of share lines, 
ceilings, and cost risk.
    (e) Negotiation approval sought. The PPM represents the Government's 
realistic assessment of the fair and reasonable price for the supplies 
and services to be acquired. If negotiations subsequently demonstrate 
that a higher dollar amount (or significant term or condition) is 
reasonable, the contracting officer shall document the rationale for 
such a change and request approval to amend the PPM from the original 
approval authority.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 37059, June 13, 2000]



Sec. 1815.406-171  Installation reviews.

    Each contracting activity shall establish procedures to review all 
prenegotiation position memoranda. The scope of coverage, exact 
procedures to be followed, levels of management review, and contract 
file documentation requirements should be directly related to the dollar 
value and complexity of the acquisition. The primary purpose of these 
reviews is to ensure that the negotiator, or negotiation team, is 
thoroughly prepared to enter into negotiations with a well-conceived, 
realistic, and fair plan.



Sec. 1815.406-172  Headquarters reviews.

    (a) When a prenegotiation position has been selected for 
Headquarters review and approval, the contracting activity shall submit 
to the Office of Procurement (Code HS) one copy each of the 
prenegotiation position memorandum, the contractor's proposal, the 
Government technical evaluations, and all pricing reports (including any 
audit reports).
    (b) The required information described in paragraph (a) of this 
section shall be furnished to Headquarters as soon as practicable and 
sufficiently in advance of the planned commencement of negotiations to 
allow a reasonable period of time for Headquarters review. Electronic 
submittal is acceptable.



Sec. 1815.406-3  Documenting the negotiation. (NASA supplements 
          paragraph (a))

    (a)(i) The price negotiation memorandum (PNM) serves as a detailed 
summary of: the technical, business, contractual, pricing (including 
price reasonableness), and other elements of

[[Page 246]]

the contract negotiated; and the methodology and rationale used in 
arriving at the final negotiated agreement.
    (ii) A PNM is not required for a contract awarded under competitive 
negotiated procedures. However, the information required by FAR 15.406-3 
shall be reflected in the evaluation and selection documentation to the 
extent applicable.
    (iii) When the PNM is a ``stand-alone'' document, it shall contain 
the information required by the FAR and NFS for both PPMs and PNMs. 
However, when a PPM has been prepared under 1815.406-1, the subsequent 
PNM need only provide any information required by FAR 15.406-3 that was 
not provided in the PPM, as well as any changes in the status of factors 
affecting cost elements (e.g., use of different rates, hours, or 
subcontractors; wage rate determinations; or the current status of the 
contractor's systems).



Sec. 1815.407  Special cost or pricing areas.



Sec. 1815.407-2  Make-or-buy programs. (NASA supplements paragraph (e))

    (e)(1) Make-or-buy programs should not include items or work efforts 
estimated to cost less than $500,000.



Sec. 1815.408  Solicitation provisions and contract clauses.



Sec. 1815.408-70  NASA solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 1852.215-
78, Make-or-Buy Program Requirements, in solicitations requiring make-
or-buy programs as provided in FAR 15.407-2(c). This provision shall be 
used in conjunction with the clause at FAR 52.215-9, Changes or 
Additions to Make-or-Buy Program. The contracting officer may add 
additional paragraphs identifying any other information required in 
order to evaluate the program.
    (b) The contracting officer shall insert the clause at 1852.215-79, 
Price Adjustment for ``Make-or-Buy'' Changes, in contracts that include 
FAR 52.215-9 with its Alternate I or II. Insert in the appropriate 
columns the items that will be subject to a reduction in the contract 
value.

Subpart 1815.5--Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



Sec. 1815.504  Award to successful offeror.

    The reference to notice of award in FAR 15.504 on negotiated 
acquisitions is a generic one. It relates only to the formal 
establishment of a contractual document obligating both the Government 
and the offeror. The notice is effected by the transmittal of a fully 
approved and executed definitive contract document, such as the award 
portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when 
a definitized contract instrument is not available but the urgency of 
the requirement necessitates immediate performance. In this latter 
instance, the procedures in 1816.603 for approval and issuance of letter 
contracts shall be followed.



Sec. 1815.506  Postaward debriefing of offerors.



Sec. 1815.506-70  Debriefing of offerors--Major System acquisitions.

    (a) When an acquisition is conducted in accordance with the Major 
System acquisition procedures in part 1834 and multiple offerors are 
selected, the debriefing will be limited in such a manner that it does 
not prematurely disclose innovative concepts, designs, and approaches of 
the successful offerors that would result in a transfusion of ideas.
    (b) When Phase B awards are made for alternative system design 
concepts, the source selection statements shall not be released to 
competing offerors or the general public until the release of the source 
selection statement for Phase C/D without the approval of the Assistant 
Administrator for Procurement (Code HS).

                  Subpart 1815.6--Unsolicited Proposals



Sec. 1815.602  Policy. (NASA paragraphs (1) and (2))

    (1) An unsolicited proposal may result in the award of a contract, 
grant,

[[Page 247]]

cooperative agreement, or other agreement. If a grant or cooperative 
agreement is used, the NASA Grant and Cooperative Agreement Handbook 
(NPG 5800.1) applies.
    (2) Renewal proposals (i.e., those for the extension or augmentation 
of current contracts) are subject to the same FAR and NFS regulations, 
including the requirements of the Competition in Contracting Act, as are 
proposals for new contracts.



Sec. 1815.604  Agency points of contact. (NASA supplements paragraph 
          (a))

    (a) Information titled ``Guidance for the Preparation and Submission 
of Unsolicited Proposals'' is available on the Internet at http://
ec.msfc.nasa.gov/hq/library/unSol-Prop.html . A deviation is required 
for use of any modified or summarized version of the Internet 
information or for alternate means of general dissemination of 
unsolicited proposal information.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 66 
FR 53546, Oct. 23, 2001]



Sec. 1815.606  Agency procedures. (NASA supplements paragraphs (a) and 
          (b))

    (a) NASA will not accept for formal evaluation unsolicited proposals 
initially submitted to another agency or to the Jet Propulsion 
Laboratory (JPL) without the offeror's express consent.
    (b)(i) NASA Headquarters and each NASA field installation shall 
designate a point of contact for receiving and coordinating the handling 
and evaluation of unsolicited proposals.
    (ii) Each installation shall establish procedures for handling 
proposals initially received by other offices within the installation. 
Misdirected proposals shall be forwarded by the point of contact to the 
proper installation. Points of contact are also responsible for 
providing guidance to potential offerors regarding the appropriate NASA 
officials to contact for general mission-related inquiries or other 
preproposal discussions.
    (iii) Points of contact shall keep records of unsolicited proposals 
received and shall provide prompt status information to requesters. 
These records shall include, at a minimum, the number of unsolicited 
proposals received, funded, and rejected during the fiscal year; the 
identity of the offerors; and the office to which each was referred. The 
numbers shall be broken out by source (large business, small business, 
university, or nonprofit institution).



Sec. 1815.606-70  Relationship of unsolicited proposals to NRAs.

    An unsolicited proposal for a new effort or a renewal, identified by 
an evaluating office as being within the scope of an open NRA, shall be 
evaluated as a response to that NRA (see 1835.016-71), provided that the 
evaluating office can either:
    (a) State that the proposal is not at a competitive disadvantage, or
    (b) Give the offeror an opportunity to amend the unsolicited 
proposal to ensure compliance with the applicable NRA proposal 
preparation instructions. If these conditions cannot be met, the 
proposal must be evaluated separately.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



Sec. 1815.609  Limited use of data.



Sec. 1815.609-70  Limited use of proposals.

    Unsolicited proposals shall be evaluated outside the Government only 
to the extent authorized by, and in accordance with, the procedures 
prescribed in, 1815.207-70.



Sec. 1815.670  Foreign proposals.

    Unsolicited proposals from foreign sources are subject to NPD 
1360.2, Initiation and Development of International Cooperation in Space 
and Aeronautics Programs.

[64 FR 36606, July 7, 1999]

                       Subpart 1815.70--Ombudsman



Sec. 1815.7001  NASA Ombudsman Program.

    NASA's implementation of an ombudsman program is in NPG 5101.33, 
Procurement Advocacy Programs.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 58931, Oct. 3, 2000]

[[Page 248]]



Sec. 1815.7002  Synopses of solicitations and contracts.

    In all synopses announcing competitive acquisitions, the contracting 
officer shall indicate that the clause at 1852.215-84, Ombudsman, is 
applicable. This may be accomplished by referencing the clause number 
and identifying the installation Ombudsman.



Sec. 1815.7003  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the one at 1852.215-84, Ombudsman, in all solicitations (including 
draft solicitations) and contracts. Use the clause with its Alternate I 
when a task or delivery order contract is contemplated.

[65 FR 38777, June 22, 2000]

                      PART 1816--TYPES OF CONTRACTS

                Subpart 1816.1--Selecting Contract Types

Sec.

Sec. 1816.104  Factors in selecting contract types.

Sec. 1816.104-70  Contract type for performance-based contracting (PBC).

                  Subpart 1816.2--Fixed-Price Contracts


Sec. 1816.202  Firm-fixed-price contracts.

Sec. 1816.202-70  NASA contract clause.

Sec. 1816.203  Fixed-price contracts with economic price adjustment.

Sec. 1816.203-4  Contract clauses.

              Subpart 1816.3--Cost-Reimbursement Contracts


Sec. 1816.303-70  Cost-sharing contracts.

Sec. 1816.306  Cost-plus-fixed-fee contracts.

Sec. 1816.307  Contract clauses.

Sec. 1816.307-70  NASA contract clauses.

                   Subpart 1816.4--Incentive Contracts


Sec. 1816.402  Application of predetermined, formula-type incentives. 
          (NASA paragraphs 1,2 and 3).

Sec. 1816.402-2  Performance incentives.

Sec. 1816.402-270  NASA technical performance incentives.

Sec. 1816.404  Fixed-price contracts with award fees.

Sec. 1816.405  Cost-reimbursement incentive contracts.

Sec. 1816.405-2  Cost-plus-award-fee (CPAF) contracts.

Sec. 1816.405-270  CPAF contracts.

Sec. 1816.405-271  Base fee.

Sec. 1816.405-272  Award fee evaluation periods.

Sec. 1816.405-273  Award fee evaluations.

Sec. 1816.405-274  Award fee evaluation factors.

Sec. 1816.405-275  Award fee evaluation scoring.

Sec. 1816.405-276  Award fee payments and limitations.

Sec. 1816.406  Contract clauses.

Sec. 1816.406-70  NASA contract clauses.

              Subpart 1816.5--Indefinite-Delivery Contracts


Sec. 1816.504  Indefinite quantity contracts.

Sec. 1816.505  Ordering.

Sec. 1816.505-70  Task ordering.

Sec. 1816.506-70  NASA contract clause.

  Subpart 1816.6--Time-and-Materials, Labor-House, and Letter Contracts


Sec. 1816.603  Letter contracts.

Sec. 1816.603-2  Application.

Sec. 1816.603-370  Approvals.

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

    Source: 62 FR 3478, Jan. 23, 1997, unless otherwise noted.

                Subpart 1816.1--Selecting Contract Types

    Source: 63 FR 12997, Mar. 17, 1998, unless otherwise noted.



Sec. 1816.104  Factors in selecting contract types.



Sec. 1816.104-70  Contract type for performance-based contracting (PBC).

    (a) PBC is defined in FAR 2.101 and discussed in FAR 37.6. Although 
FAR part 37 primarily addresses services contracts, PBC is not limited 
to these contracts. PBC is the preferred way of contracting for all 
supplies and services at NASA. Generally, when contract performance risk 
under a PBC specification can be fairly shifted to the contractor to 
allow for the operation of objective incentives, a contract type with 
objectively measurable incentives (e.g., FFP, FPIF, or CPIF) is 
appropriate. However, when contractor performance (e.g., cost control, 
schedule, or quality/technical) is best evaluated subjectively using 
quantitative measures, a CPAF contract may be used.
    (b) A PBC is a completion form of contract (something is 
accomplished). Term/level-of-effort, time-and-materials and labor hour 
contracts are not PBC.

[63 FR 12997, Mar. 17, 1998, as amended at 67 FR 30603, May 7, 2002]

[[Page 249]]

                  Subpart 1816.2--Fixed-Price Contracts



Sec. 1816.202  Firm-fixed-price contracts.



Sec. 1816.202-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.216-78, 
Firm-Fixed-Price, in firm-fixed-price solicitations and contracts. 
Insert the appropriate amount in the resulting contract.



Sec. 1816.203  Fixed-price contracts with economic price adjustment.



Sec. 1816.203-4  Contract clauses. (NASA supplements paragraphs (a) and 
          (d)).

    (a) In addition to the approval requirements in the prescriptions at 
FAR 52.216-2 through 52.216-4, the contracting officer shall coordinate 
with the installation's Deputy Chief Financial Officer (Finance) before 
exceeding the ten-percent limit in paragraph (c)(1) of the clauses at 
FAR 52.216-2 and 52.216-3 and paragraph (c)(4) of the clause at 52.216-
4.
    (d)(2) Contracting officers shall contact the Office of Procurement, 
Code HK, for specific guidance on preparing clauses using cost indexes. 
Such clauses require advance approval by the Assistant Administrator for 
Procurement. Requests for approval shall be submitted to the 
Headquarters Office of Procurement (Code HS).

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 5620, Feb. 4, 1999; 65 
FR 82296, Dec. 28, 2000]

              Subpart 1816.3--Cost-Reimbursement Contracts



Sec. 1816.303-70  Cost-sharing contracts.

    (a) Cost-sharing with for-profit organizations. (1) Cost sharing by 
for-profit organizations is mandatory in any contract for basic or 
applied research resulting from an unsolicited proposal, and may be 
accepted in any other contract when offered by the proposing 
organization. The requirement for cost-sharing may be waived when the 
contracting officer determines in writing that the contractor has no 
commercial, production, education, or service activities that would 
benefit from the results of the research, and the contractor has no 
means of recovering its shared costs on such projects.
    (2) The contractor's cost-sharing may be any percentage of the 
project cost. In determining the amount of cost-sharing, the contracting 
officer shall consider the relative benefits to the contractor and the 
Government. Factors that should be considered include--
    (i) The potential for the contractor to recover its contribution 
from non-Federal sources;
    (ii) The extent to which the particular area of research requires 
special stimulus in the national interest; and
    (iii) The extent to which the research effort or result is likely to 
enhance the contractor's capability, expertise, or competitive 
advantage.
    (b) Cost-sharing with not-for-profit organizations. (1) Costs to 
perform research stemming from an unsolicited proposal by universities 
and other educational or not-for-profit institutions are usually fully 
reimbursed. When the contracting officer determines that there is a 
potential for significant benefit to the institution cost-sharing will 
be considered.
    (2) The contracting officer will normally limit the institution's 
share to no more than 10 percent of the project's cost.
    (c) Implementation. Cost-sharing shall be stated as a minimum 
percentage of the total allowable costs of the project. The contractor's 
contributed costs may not be charged to the Government under any other 
contract or grant, including allocation to other contracts and grants as 
part of an independent research and development program.



Sec. 1816.306  Cost-plus-fixed-fee contracts. (NASA supplements 
          paragraph (d)).

    (d) Completion and term forms.
    (4) Term form contracts are incompatible with performance base 
contracting (PBC) and should not be used with PBC requirements.



Sec. 1816.307  Contract clauses. (NASA supplements paragraphs (a), (b), 
          (d), and (g)).

    (a) In paragraph (h)(2)(ii)(B) of the Allowable Cost and Payment 
clause at FAR 52.216-7, the period of years may

[[Page 250]]

be increased to correspond with any statutory period of limitation 
applicable to claims of third parties against the contractor; provided, 
that a corresponding increase is made in the period for retention of 
records required in paragraph (f) of the clause at FAR 52.215-2, Audit 
and Records--Negotiation.
    (b) In solicitations and contracts containing the clause at FAR 
52.216-8, Fixed Fee, the Schedule shall include appropriate terms, if 
any, for provisional billing against fee.
    (d) In solicitations and contracts containing the clause at FAR 
52.216-10, Incentive Fee, the Schedule shall include appropriate terms, 
if any, for provisional billing against fee.
    (g) In paragraph (g)(2)(ii) of the Allowable Cost and Payment--
Facilities clause at FAR 52.216-13, the period of years may be increased 
to correspond with any statutory period of limitation applicable to 
claims of third parties against the contractor; provided, that a 
corresponding increase is made in the period for retention of records 
required in paragraph (f) of the clause at FAR 52.215-2, Audit and 
Records--Negotiation.



Sec. 1816.307-70  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.216-73, 
Estimated Cost and Cost Sharing, in each contract in which costs are 
shared by the contractor pursuant to 1816.303-70.
    (b) The contracting officer shall insert the clause substantially as 
stated at 1852.216-74, Estimated Cost and Fixed Fee, in cost-plus-fixed-
fee contracts.
    (c) The contracting officer may insert the clause at 1852.216-75, 
Payment of Fixed Fee, in cost-plus-fixed-fee contracts. Modifications to 
the clause are authorized.
    (d) The contracting officer may insert the clause at 1852.216-81, 
Estimated Cost, in cost-no-fee contracts that are not cost sharing or 
facilities contracts.
    (e) The contracting officer may insert a clause substantially as 
stated at 1852.216-87, Submission of Vouchers for Payment, in cost-
reimbursement solicitations and contracts.
    (f) When either FAR clause 52.216-7, Allowable Cost and Payment, or 
FAR clause 52.216-13, Allowable Cost and Payment--Facilities, is 
included in the contract, as prescribed at FAR 16.307 (a) and (g), the 
contracting officer should include the clause at 1852.216-89, Assignment 
and Release Forms.

                   Subpart 1816.4--Incentive Contracts



Sec. 1816.402  Application of predetermined, formula-type incentives. 
          (NASA paragraphs 1, 2 and 3).

    When considering the use of a quality, performance, or schedule 
incentive, the following guidance applies.
    (1) A positive incentive is generally not appropriate unless--
    (i) Performance above the target (or minimum, if there are no 
negative incentives) level is of significant value to the Government;
    (ii) The value of the higher level of performance is worth the 
additional cost/fee;
    (iii) The attainment of the higher level of performance is clearly 
within the control of the contractor; and
    (iv) An upper limit is identified, beyond which no further incentive 
is earned.
    (2) A negative incentive is generally not appropriate unless--
    (i) A target level of performance can be established, which the 
contractor can reasonably be expected to reach with a diligent effort, 
but a lower level of performance is also minimally acceptable;
    (ii) The value of the negative incentive is commensurate with the 
lower level of performance and any additional administrative costs; and
    (iii) Factors likely to prevent attainment of the target level of 
performance are clearly within the control of the contractor.
    (3) When a negative incentive is used, the contract must indicate a 
level below which performance is not acceptable.

[63 FR 12997, Mar. 17, 1998]

[[Page 251]]



Sec. 1816.402-2  Performance incentives.



Sec. 1816.402-270  NASA technical performance incentives.

    (a) Pursuant to the guidelines in 1816.402, NASA has determined that 
a performance incentive shall be included in all contracts based on 
performance-oriented documents (see FAR 11.101(a)), except those awarded 
under the commercial item procedures of FAR part 12, where the primary 
deliverable(s) is (are) hardware with a total value (including options) 
greater than $25 million. Any exception to this requirement shall be 
approved in writing by the Center Director. Performance incentives may 
be included in hardware contracts valued under $25 million acquired 
under procedures other than FAR Part 12 at the discretion of the 
procurement officer upon consideration of the guidelines in 1816.402. 
Performance incentives, which are objective and measure hardware 
performance after delivery and acceptance, are separate from other 
incentives, such as cost or delivery incentives.
    (b) When a performance incentive is used, it shall be structured to 
be both positive and negative based on hardware performance after 
delivery and acceptance, unless the contract type requires complete 
contractor liability for product performance (e.g., fixed price). In 
this latter case, a negative incentive is not required. In structuring 
the incentives, the contract shall establish a standard level of 
performance based on the salient hardware performance requirement. This 
standard performance level is normally the contract's minimum 
performance requirement. No incentive amount is earned at this standard 
performance level. Discrete units of measurement based on the same 
performance parameter shall be identified for performance above and, 
when a negative incentive is used, below the standard. Specific 
incentive amounts shall be associated with each performance level from 
maximum beneficial performance (maximum positive incentive) to, when a 
negative incentive is included, minimal beneficial performance or total 
failure (maximum negative incentive). The relationship between any given 
incentive, either positive and negative, and its associated unit of 
measurement should reflect the value to the Government of that level of 
hardware performance. The contractor should not be rewarded for above-
standard performance levels that are of no benefit to the Government.
    (c) The final calculation of the performance incentive shall be done 
when hardware performance, as defined in the contract, ceases or when 
the maximum positive incentive is reached. When hardware performance 
ceases below the standard established in the contract and a negative 
incentive is included, the Government shall calculate the amount due and 
the contractor shall pay the Government that amount. Once hardware 
performance exceeds the standard, the contractor may request payment of 
the incentive amount associated with a given level of performance, 
provided that such payments shall not be more frequent than monthly. 
When hardware performance ceases above the standard level of 
performance, or when the maximum positive incentive is reached, the 
Government shall calculate the final performance incentive earned and 
unpaid and promptly remit it to the contractor.
    (d) When the deliverable hardware lends itself to multiple, 
meaningful measures of performance, multiple performance incentives may 
be established. When the contract requires the sequential delivery of 
several hardware items (e.g. multiple spacecraft), separate performance 
incentive structures may be established to parallel the sequential 
delivery and use of the deliverables.
    (e) In determining the value of the maximum performance incentives 
available, the contracting officer shall follow the following rules.
    (1) For a CPFF contract, the sum of the maximum positive performance 
incentive and fixed fee shall not exceed the limitations in FAR 15.404-
4(c)(4)(i).
    (2) For an award fee contract.
    (i) The individual values of the maximum positive performance 
incentive and the total potential award fee (including any base fee) 
shall each be at least one-third of the total potential contract fee. 
The remaining one-third of the total potential contract fee may be 
divided between award fee and the

[[Page 252]]

maximum performance incentive at the discretion of the contracting 
officer.
    (ii) The maximum negative performance incentive for research and 
development hardware (e.g., the first and second units) shall be equal 
in amount to the total earned award fee (including any base fee). The 
maximum negative performance incentives for production hardware (e.g., 
the third and all subsequent units of any hardware items) shall be equal 
in amount to the total potential award fee (including any base fee). 
Where one contract contains both cases described above, any base fee 
shall be allocated reasonably among the items.
    (3) For cost reimbursement contracts other than award fee contracts, 
the maximum negative performance incentives shall not exceed the total 
earned fee under the contract.

[62 FR 3478, Jan. 23, 1997, as amended at 62 FR 58687, Oct. 30, 1997; 63 
FR 9965, Feb. 27, 1998; 63 FR 12997, Mar. 17, 1998; 63 FR 28285, May 22, 
1998]



Sec. 1816.404  Fixed-price contracts with award fees.

    Section 1816.405-2 applies to the use of FPAF contracts as if they 
were CPAF contracts. However, neither base fee (see 1816.405-271) nor 
evaluation of cost control (see 1816.405-274) apply to FPAF contracts.

[62 FR 58687, Oct. 30, 1997]



Sec. 1816.405  Cost-reimbursement incentive contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.405-2  Cost-plus-award-fee (CPAF) contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.405-270  CPAF contracts.

    (a) Use of an award fee incentive shall be approved in writing by 
the procurement officer. The procurement officer's approval shall 
include a discussion of the other types of contracts considered and 
shall indicate why an award fee incentive is the appropriate choice. 
Award fee incentives should not be used on contracts with a total 
estimated cost and fee less than $2 million per year. The procurement 
officer may authorize use of award fee for lower-valued acquisitions, 
but should do so only in exceptional situations, such as contract 
requirements having direct health or safety impacts, where the 
judgmental assessment of the quality of contractor performance is 
critical.
    (b) Except as provided in paragraph (c) of this section, an award 
fee incentive may be used in conjunction with other contract types for 
aspects of performance that cannot be objectively assessed. In such 
cases, the cost incentive is based on objective formulas inherent in the 
other contract types (e.g., FPI, CPIF), and the award fee provision 
should not separately incentivize cost performance.
    (c) Award fee incentives shall not be used with a cost-plus-fixed-
fee (CPFF) contract.

[63 FR 12998, Mar. 17, 1998]



Sec. 1816.405-271  Base fee.

    (a) A base fee shall not be used on CPAF contracts for which the 
periodic award fee evaluations are final (1816.405-273(a)). In these 
circumstances, contractor performance during any award fee period is 
independent of and has no effect on subsequent performance periods or 
the final results at contract completion. For other contracts, such as 
those for hardware or software development, the procurement officer may 
authorize the use of a base fee not to exceed 3 percent. Base fee shall 
not be used when an award fee incentive is used in conjunction with 
another contract type (e.g., CPIF/AF).
    (b) When a base fee is authorized for use in a CPAF contract, it 
shall be paid only if the final award fee evaluation is ``satisfactory'' 
or better. (See 1816.405-273 and 1816.405-275) Pending final evaluation, 
base fee may be paid during the life of the contract at defined 
intervals on a provisional basis. If the final award fee evaluation is 
``poor/unsatisfactory'', all provisional base fee payments shall be 
refunded to the Government.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
July 9, 1997; 63 FR 13133, Mar. 18, 1998]

[[Page 253]]



Sec. 1816.405-272  Award fee evaluation periods.

    (a) Award fee evaluation periods, including those for interim 
evaluations, should be at least 6 months in length. When appropriate, 
the procurement officer may authorize shorter evaluation periods after 
ensuring that the additional administrative costs associated with the 
shorter periods are offset by benefits accruing to the Government. Where 
practicable, such as developmental contracts with defined performance 
milestones (e.g., Preliminary Design Review, Critical Design Review, 
initial system test), establishing evaluation periods at conclusion of 
the milestones rather than calendar dates, or in combination with 
calendar dates should be considered. In no case shall an evaluation 
period be longer than 12 months.
    (b) A portion of the total available award fee contract shall be 
allocated to each of the evaluation periods. This allocation may result 
in an equal or unequal distribution of fee among the periods. The 
contracting officer should consider the nature of each contract and the 
incentive effects of fee distribution in determining the appropriate 
allocation structure.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997, 
as amended at 63 FR 13133, Mar. 18, 1998]



Sec. 1816.405-273  Award fee evaluations.

    (a) Service contracts. On contracts where the contract deliverable 
is the performance of a service over any given time period, contractor 
performance is often definitively measurable within each evaluation 
period. In these cases, all evaluations are final, and the contractor 
keeps the fee earned in any period regardless of the evaluations of 
subsequent periods. Unearned award fee in any given period in a service 
contract is lost and shall not be carried forward, or ``rolled-over,'' 
into subsequent periods.
    (b) End item contracts. On contracts, such as those for end item 
deliverables, where the true quality of contractor performance cannot be 
measured until the end of the contract, only the last evaluation is 
final. At that point, the total contract award fee pool is available, 
and the contractor's total performance is evaluated against the award 
fee plan to determine total earned award fee. In addition to the final 
evaluation, interim evaluations are done to monitor performance prior to 
contract completion, provide feedback to the contractor on the 
Government's assessment of the quality of its performance, and establish 
the basis for making interim award fee payments (see 1816.405-276(a)). 
These interim evaluations and associated interim award fee payments are 
superseded by the fee determination made in the final evaluation at 
contract completion. The Government will then pay the contractor, or the 
contractor will refund to the Government, the difference between the 
final award fee determination and the cumulative interim fee payments.
    (c) Control of evaluations. Interim and final evaluations may be 
used to provide past performance information during the source selection 
process in future acquisitions and should be marked and controlled as 
``Source Selection Information--See FAR 3.104''.

[63 FR 13133, Mar. 18, 1998]



Sec. 1816.405-274  Award fee evaluation factors.

    (a) Explicit evaluation factors shall be established for each award 
fee period.
    (b) Evaluation factors will be developed by the contracting officer 
based upon the characteristics of an individual procurement. Normally, 
technical and schedule considerations will be included in all CPAF 
contracts as evaluation factors. Cost control shall be included as an 
evaluation factor in all CPAF contracts. When explicit evaluation factor 
weightings are used, cost control shall be no less than 25 percent of 
the total weighted evaluation factors. The predominant consideration of 
the cost control evaluation should be a measurement of the contractor's 
performance against the negotiated estimated cost of the contract. This 
estimated cost may include the value of undefinitized change orders when 
appropriate.
    (c)(1) The technical factor, if used, must include consideration of 
risk management (including mission success, safety, security, health, 
export

[[Page 254]]

control, and damage to the environment, as appropriate) unless waived at 
a level above the contracting officer, with the concurrence of the 
project manager. The rationale for any waiver shall be documented in the 
contract file. When safety, export control, or security are considered 
under the technical factor, the award fee plan shall allow the following 
fee determinations, regardless of contractor performance in other 
evaluation factors, when there is a major breach of safety or security.
    (i) For evaluation of service contracts under 1816.405-273(a), an 
overall fee determination of zero for any evaluation period in which 
there is a major breach of safety or security.
    (ii) For evaluation of end item contracts under 1816.405-273(b), an 
overall fee determination of zero for any interim evaluation period in 
which there is a major breach of safety or security. To ensure that the 
final award fee evaluation at contract completion reflects any major 
breach of safety or security, in an interim period, the overall award 
fee pool shall be reduced by the amount of the fee available for the 
period in which the major breach occurred if a zero fee determination 
was made because of a major breach of safety or security.
    (2) A major breach of safety must be related directly to the work on 
the contract. A major breach of safety is an act or omission of the 
Contractor that consists of an accident, incident, or exposure resulting 
in a fatality or mission failure; or in damage to equipment or property 
equal to or greater than $1 million; or in any ``willful'' or ``repeat'' 
violation cited by the Occupational Safety and Health Administration 
(OSHA) or by a state agency operating under an OSHA approved plan.
    (3) A major breach of security may occur on or off Government 
installations, but must be directly related to the work on the contract. 
A major breach of security is an act or omission by the contractor that 
results in compromise of classified information, illegal technology 
transfer, workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.
    (4) The Assistant Administrator for Procurement (Code HS) shall be 
notified prior to the determination of a zero award fee because of a 
major breach of safety or security.
    (d) In rare circumstances, contract costs may increase for reasons 
outside the contractor's control and for which the contractor is not 
entitled to an equitable adjustment. One example is a weather-related 
launch delay on a launch support contract. The Government shall take 
such situations into consideration when evaluating contractor cost 
control.
    (e) Emphasis on cost control should be balanced against other 
performance requirement objectives. The contractor should not be 
incentivized to pursue cost control to the point that overall 
performance is significantly degraded. For example, incentivizing an 
underrun that results in direct negative impacts on technical 
performance, safety, or other critical contract objectives is both 
undesirable and counterproductive. Therefore, evaluation of cost control 
shall conform to the following guidelines:
    (1) Normally, the contractor should be given a score of 0 for cost 
control when there is a significant overrun within its control. However, 
the contractor may receive higher scores for cost control if the overrun 
is insignificant. Scores should decrease sharply as the size of the 
overrun increases. In any evaluation of contractor overrun performance, 
the Government shall consider the reasons for the overrun and assess the 
extent and effectiveness of the contractor's efforts to control or 
mitigate the overrun.
    (2) The contractor should normally be rewarded for an underrun 
within its control, up to the maximum score allocated for cost control, 
provided the average numerical rating for all other award fee evaluation 
factors is 81 or greater (see 1816.405-275). An underrun shall be 
rewarded as if the contractor has met the estimated cost of the contract 
(see 1816.405-274(d)(3)) when the average numerical rating for all other 
factors is less than 81 but greater than 60.

[[Page 255]]

    (3) The contractor should be rewarded for meeting the estimated cost 
of the contract, but not to the maximum score allocated for cost 
control, to the degree that the contractor has prudently managed costs 
while meeting contract requirements. No award shall be given in this 
circumstance unless the average numerical rating for all other award fee 
evaluation factors is 61 or greater.
    (f) When an AF arrangement is used in conjunction with another 
contract type, the award fee's cost control factor will only apply to a 
subjective assessment of the contractor's efforts to control costs and 
not the actual cost outcome incentivized under the basic contract type 
(e.g. CPIF, FPIF).
    (g)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, HUBZone small business, women-owned small business, 
veteran-owned small business, and service-disabled veteran-owned small 
business concerns.
    (2) The contractor's performance against the contract target for 
participation as subcontractors by small disadvantaged business concerns 
in the NAICS Major Groups designated by the Department of Commerce (see 
FAR 19.201(c)) shall also be evaluated if the clause at FAR 52.219-26, 
Small Disadvantaged Business Participation--Incentive Subcontracting, is 
not included in the contract (see FAR 19.1204(c)).
    (3) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-Protege 
Program, if applicable, may also be evaluated.
    (4) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (g)(1) through (g)(3) of this 
section should be significant (up to 15 percent of available award fee). 
The weight should motivate the contractor to focus management attention 
to subcontracting with small, HUBZone, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns, and with small 
disadvantaged business concerns in designated NAICS Major Groups to the 
maximum extent practicable, consistent with efficient contract 
performance.
    (h) When contract changes are anticipated, the contractor's 
responsiveness to requests for change proposals should be evaluated. 
This evaluation should include the contractor's submission of timely, 
complete proposals and cooperation in negotiating the change.
    (i) Only the award fee performance evaluation factors set forth in 
the performance evaluation plan shall be used to determine award fee 
scores.
    (j) The Government may unilaterally modify the applicable award fee 
performance evaluation factors and performance evaluation areas prior to 
the start of an evaluation period. The contracting officer shall notify 
the contractor in writing of any such changes 30 days prior to the start 
of the relevant evaluation period.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 63 FR 12998, Mar. 17, 1998; 64 FR 25215, May 11, 
1999; 65 FR 37059, June 13, 2000; 65 FR 46628, July 31, 2000; 65 FR 
58932, Oct. 3, 2000; 65 FR 70316, Nov. 22, 2000; 66 FR 53547, Oct. 23, 
2001; 67 FR 7618, Feb. 20, 2002]



Sec. 1816.405-275  Award fee evaluation scoring.

    (a) A scoring system of 0-100 shall be used for all award fee 
ratings. Award fee earned is determined by applying the numerical score 
to the award fee pool. For example, a score of 85 yields an award fee of 
85 percent of the award fee pool. No award fee shall be paid unless the 
total score is 61 or greater.
    (b) The following standard adjectival ratings and the associated 
numerical scores shall be used on all award fee contracts.
    (1) Excellent (100-91): Of exceptional merit; exemplary performance 
in a timely, efficient, and economical manner; very minor (if any) 
deficiencies with no adverse effect on overall performance.
    (2) Very good (90-81): Very effective performance, fully responsive 
to contract requirements; contract requirements accomplished in a 
timely, efficient, and economical manner for the most part; only minor 
deficiencies.

[[Page 256]]

    (3) Good (80-71): Effective performance; fully responsive to 
contract requirements; reportable deficiencies, but with little 
identifiable effect on overall performance.
    (4) Satisfactory (70-61): Meets or slightly exceeds minimum 
acceptable standards; adequate results; reportable deficiencies with 
identifiable, but not substantial, effects on overall performance.
    (5) Poor/Unsatisfactory (less than 61): Does not meet minimum 
acceptable standards in one or more areas; remedial action required in 
one or more areas; deficiencies in one or more areas which adversely 
affect overall performance.
    (c) As a benchmark for evaluation, in order to be rated 
``Excellent,'' the contractor must be under cost, on or ahead of 
schedule, and have provided excellent technical performance.
    (d) A scoring system appropriate for the circumstances of the 
individual contract requirement should be developed. Weighted scoring is 
recommended. In this system, each evaluation factor (e.g., technical, 
schedule, cost control) is assigned a specific percentage weighting with 
the cumulative weightings of all factors totaling 100. During the award 
fee evaluation, each factor is scored from 0-100 according to the 
ratings defined in 1816.405-275(b). The numerical score for each factor 
is then multiplied by the weighting for that factor to determine the 
weighted score. For example, if the technical factor has a weighting of 
60 percent and the numerical score for that factor is 80, the weighted 
technical score is 48 (80x60 percent). The weighted scores for each 
evaluation factor are then added to determine the total award fee score.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 63 FR 13134, Mar. 18, 1998]



Sec. 1816.405-276   Award fee payments and limitations.

    (a) Interim award fee payments. The amount of an interim award fee 
payment (see 1816.405-273(b)) is limited to the lesser of the interim 
evaluation score or 80 percent of the fee allocated to that interim 
period less any provisional payments (see paragraph (b) of this 
subsection) made during the period.
    (b) Provisional award fee payments. Provisional award fee payments 
are payments made within evaluation periods prior to an interim or final 
evaluation for that period. Provisional payments may be included in the 
contract and should be negotiated on a case-by-case basis. For a service 
contract, the total amount of award fee available in an evaluation 
period that may be provisionally paid is the lesser of a percentage 
stipulated in the contract (but not exceeding 80 percent) or the prior 
period's evaluation score. For an end item contract, the total amount of 
provisional payments in a period is limited to a percentage not to 
exceed 80 percent of the prior interim period's evaluation score.
    (c) Fee payment. The Fee Determination Official's rating for both 
interim and final evaluations will be provided to the contractor within 
45 calendar days of the end of the period being evaluated. Any fee, 
interim or final, due the contractor will be paid no later than 60 
calendar days after the end of the period being evaluated.

[63 FR 13134, Mar. 18, 1998]



Sec. 1816.406  Contract clauses.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



Sec. 1816.406-70  NASA contract clauses.

    (a) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-76, Award Fee for Service Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverable is the performance of a service.
    (b) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-77, Award Fee for End Item Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverables are hardware or other end items for which 
total contractor performance cannot be measured until the end of the 
contract. When the clause is used in a fixed-price award fee contract, 
it shall be modified by deleting references to base fee in paragraphs 
(a), and by deleting paragraph (c)(1), the

[[Page 257]]

last sentence of (c)(4), and the first sentence of (c)(5).
    (c) The contracting officer may insert a clause substantially as 
stated at 1852.216-83, Fixed Price Incentive, in fixed-price-incentive 
solicitations and contracts utilizing firm or successive targets. For 
items subject to incentive price revision, identify the target cost, 
target profit, target price, and ceiling price for each item.
    (d) The contracting officer shall insert the clause at 1852.216-84, 
Estimated Cost and Incentive Fee, in cost-plus-incentive-fee 
solicitations and contracts.
    (e) The contracting officer may insert the clause at 1852.216-85, 
Estimated Cost and Award Fee, in cost an award fee solicitations and 
contracts. When the contract includes performance incentives, use 
Alternate I. When the clause is used in a fixed-price award fee 
contract, it shall be modified to delete references to base fee and to 
reflect the contract type.
    (f) As provided at 1816.402-270, the contracting officer shall 
insert a clause substantially as stated at 1852.216-88, Performance 
Incentive, when the primary deliverable(s) is (are) hardware and total 
estimated cost and fee is greater than $25 million. A clause 
substantially as stated at 1852.216-88 may be included in lower dollar 
value hardware contracts with the approval of the procurement officer.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 62 FR 58687, Oct. 30, 1997; 63 FR 13134, Mar. 18, 
1998]

              Subpart 1816.5--Indefinite-Delivery Contracts



Sec. 1816.504  Indefinite quantity contracts. (NASA supplements 
          paragraph (a))

    (a)(4)(ii) ID/IQ service contract values and task order values shall 
be expressed only in dollars.
    (a)(4)(v) See 1815.7003.

[62 FR 3478, Jan. 23, 1997, as amended at 65 FR 38777, June 22, 2000]



Sec. 1816.505  Ordering. (NASA supplements paragraphs (a) and (b))

    (a)(2) Task and delivery orders shall be issued by the contracting 
officer.
    (b)(5) The Agency and installation ombudsmen designated in 
accordance with 1815.7001 shall review complaints from contractors on 
task order contracts and delivery order contracts.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
65 FR 38777, June 22, 2000; 65 FR 46628, July 31, 2000]



Sec. 1816.505-70  Task ordering.

    (a) The contracting officer shall, to the maximum extent possible, 
state task order requirements in terms of functions and the related 
performance and quality standards such that the standards may be 
objectively measured.
    (b) To the maximum extent possible, contracting officers shall 
solicit contractor task plans to use as the basis for finalizing task 
order requirements and enable evaluation and pricing of the contractor's 
proposed work on a performance based approach as described in 1816.104-
70(a).
    (c) Task order contract type shall be individually determined, based 
on the nature of each task order's requirements.
    (1) Task orders may be grouped by contract type for administrative 
convenience (e.g., all CPIF orders, all FFP orders, etc.) for contractor 
progress and cost reporting.
    (2) Under multiple awards, solicitations for individual task plans 
shall request the same pricing structure from all offerors.
    (d) Any undefinitized task order issued under paragraph (f) of the 
clause at 1852.216-80, Task Ordering Procedure, shall be treated and 
reported as an undefinitized contract action in accordance with 1843-70.

[62 FR 3478, Jan. 23, 1997, as amended at 65 FR 46628, July 31, 2000]



Sec. 1816.506-70  NASA contract clause.

    Insert the clause at 1852.216-80, Task Ordering Procedure, in 
solicitations and contracts when an indefinite-delivery, task order 
contract is contemplated. The clause is applicable to both fixed-price 
and cost-reimbursement type contracts. If the contract does not require 
533M reporting (See

[[Page 258]]

NPG 9501.2, NASA Contractor Financial Management Reporting System), use 
the clause with its Alternate I.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999]

  Subpart 1816.6--Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 1816.603  Letter contracts.



Sec. 1816.603-2  Application.

    (a) Centers must ensure that NASA liabilities and commitments are 
minimized under letter contracts. When a letter contract is justified 
and program requirements can be severed into smaller, discreet efforts, 
the work authorized by the letter contract must be limited to the 
minimum severable effort required to satisfy the urgent program 
requirements. The remaining requirements may not be initially included 
in the letter contract and must be acquired through a separate fully 
priced and definitized contract action.

[66 FR 53547, Oct. 23, 2001]



Sec. 1816.603-370  Approvals.

    (a)(1) The approval authority to issue a letter contract is--
    (i) The Assistant Administrator for Procurement when the estimated 
value of the definitized contract is equal to or greater than the Master 
Buy Plan (MBP) submission threshold of 1807.7101;
    (ii) The procurement officer when the estimated value of the 
definitized contract is below the MBP submission threshold; and
    (iii) The Assistant Administrator for Procurement for any 
modification of an undefinitized letter contract approved by the 
procurement officer that increases the estimated value of the 
definitized contract to an amount equal to or above the MBP submission 
threshold. This approval must be obtained prior to issuing the 
modification.
    (2) The procurement officer must sign all requests for approval by 
the Assistant Administrator for Procurement and submit them to Code HS.
    (b) All requests for authority to issue a letter contract must 
include the following:
    (1) Contractor name and address.
    (2) Place of performance.
    (3) Contract number, including modification number, if applicable.
    (4) Brief description of the work or services to be performed.
    (5) Performance period or delivery schedule for both the letter 
contract and definitized contract.
    (6) Estimated value of the work authorized by the letter contract.
    (7) Estimated value of the definitized contract.
    (8) Contract type of the definitized contract.
    (9) A statement that the definitized contract will contain all 
required clauses or identification of approved specific clause 
deviations.
    (10) Complete justification of the necessity for the letter 
contract, including the advantages to the Government and a description 
of the efforts to avoid its issuance or to minimize its scope.
    (11) The definitization schedule described in FAR 16.603-2(c) 
expected to be negotiated with the contractor.

[67 FR 30603, May 7, 2002]

                 PART 1817--SPECIAL CONTRACTING METHODS

                  Subpart 1817.1--Multiyear Contracting

Sec.

Sec. 1817.105  Policy.

Sec. 1817.105-1  Uses.

                         Subpart 1817.2--Options


Sec. 1817.200  Scope of subpart.

Sec. 1817.203  Solicitations.

Sec. 1817.204  Contracts.

Sec. 1817.206  Evaluation.

Sec. 1817.207  Exercise of options.

Sec. 1817.208  Solicitation provisions and contract clauses.

               Subpart 1817.4--Leader Company Contracting


Sec. 1817.401  General.

     Subpart 1817.5--Interagency Acquisitions Under the Economy Act


Sec. 1817.503  Determinations and findings requirements.

Sec. 1817.504  Ordering procedures.

[[Page 259]]

         Subpart 1817.70--Acquisitions With Military Departments


Sec. 1817.7000  Scope of subpart.

Sec. 1817.7001  Authorization and policy.

Sec. 1817.7002  NASA-Defense Purchase Request and acceptance.

Sec. 1817.7002-1  Acceptance by Military Department.

Sec. 1817.7002-2  Changes in estimated total prices.

Sec. 1817.7002-3  Payments.

Sec. 1817.7002-4  Contract clause.

         Subpart 1817.71--Exchange or Sale of Personal Property


Sec. 1817.7101  Policy.

                Subpart 1817.72--Interagency Transactions


Sec. 1817.7201  Policy.

                  Subpart 1817.730--Phased Acquisition


Sec. 1817.7300  Definitions.

Sec. 1817.7301  Down-selctions in phased acquisitions.

Sec. 1817.7301-1  Pre-solicitation planning.

Sec. 1817.7301-2  Evaluation factors.

Sec. 1817.7301-3  Down-selection milestones.

Sec. 1817.7301-4  Synopsis.

Sec. 1817.7301-5  Progressive competition.

Sec. 1817.7302  Contract clauses.

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

    Source: 61 FR 55753, Oct. 29, 1996, unless otherwise noted.

                  Subpart 1817.1--Multiyear Contracting



Sec. 1817.105  Policy.



Sec. 1817.105-1  Uses. (NASA supplements paragraph (b))

    (b) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for the use of the multiyear contracting technique. 
Requests for approval shall be signed by the procurement officer and 
shall include a description of the acquisition, identification of 
anticipated contract costs and funding, and a determination, with 
supporting rationale, that each of the criteria in FAR 17.105-1(b) (1) 
through (5) is met by the proposed use of multiyear contracting.

                         Subpart 1817.2--Options



Sec. 1817.200  Scope of subpart.

    FAR subpart 17.2 applies to all NASA contracts.



Sec. 1817.203  Solicitations. (NASA supplements paragraph (g))

    (g)(2) The procurement officer is authorized to approve option 
quantities greater than 50 percent.



Sec. 1817.204  Contracts. (NASA supplements paragraph (e))

    (e)(i) The 5-year limitation (basic plus option periods) does not 
apply when the time needed to complete system development or hardware 
production is greater than five years.
    (ii) Requests for deviations from the 5-year limitation policy shall 
be sent to the Assistant Administrator for Procurement (Code HS) and 
shall include justification for exceeding five years and evidence that 
the extended years can be reasonably priced.



Sec. 1817.206  Evaluation. (NASA supplements paragraph (b))

    (b)(i) The procurement officer is the approval authority for 
determinations by the contracting officer not to evaluate offers for any 
option quantities or periods.
    (ii) Unless a determination has been approved under 1817.206(b)(i), 
the selection statement for each acquisition involving an option shall 
address the source selection authority's consideration of the option as 
part of the initial competition.



Sec. 1817.207  Exercise of options. (NASA supplements paragraph (f))

    (f) Options under cost type contracts shall contain an estimated 
cost for the option period(s).
    (f)(2) Use of the provision (or formula) for determining the price 
of a fixed price option requires advance approval by the Assistant 
Administrator for Procurement (Code HS).
    (f)(3)(ii) Use of a formula to determine the fee of an option in a 
cost-type contract requires advance approval of the Assistant 
Administrator for Procurement (Code HS). The formula shall

[[Page 260]]

preclude the contractor from increasing costs for the purpose of earning 
additional fee.



Sec. 1817.208  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (c))

    (c)(3) The contracting officer shall insert a provision 
substantially the same as FAR 52.217-5 in cost reimbursement contracts 
when the other conditions of FAR 17.208(c) are met.

               Subpart 1817.4--Leader Company Contracting



Sec. 1817.401  General.

    It is NASA policy not to use the leader company contracting 
technique.

     Subpart 1817.5--Interagency Acquisitions Under the Economy Act



Sec. 1817.503  Determinations and findings requirements. (NASA 
          supplements paragraph (a))

    (a) See 1817.72 for additional information on interagency 
transaction requirements.
    (2) Current market prices, recent acquisition prices, or prices 
obtained by informational submissions as provided in FAR 15.201 may be 
used to ascertain whether the acquisition can be accomplished more 
economically from commercial sources.
    (c) The Assistant Administrator for Procurement as the agency senior 
procurement executive will approve all D&F's for a servicing agency not 
covered by the Federal Acquisition Regulations. This approval may not be 
delegated below the senior procurement executive level.

[61 FR 55753, Oct. 29, 1996, as amended at 62 FR 58687, Oct. 30, 1997; 
63 FR 9967, Feb. 27, 1998; 66 FR 53547, Oct. 23, 2001]



Sec. 1817.504  Ordering procedures. (NASA supplements paragraph (b))

    (b)(4) All payment provisions shall require the servicing agency or 
department to submit a final voucher, invoice, or other appropriate 
payment document within six months after the completion date of the 
order. A different period may be specified by mutual agreement if six 
months is not sufficient. The rationale for a longer period shall be 
documented in the contract file.

         Subpart 1817.70--Acquisitions With Military Departments



Sec. 1817.7000  Scope of subpart.

    This subpart contains policies and procedures, developed jointly by 
NASA and DOD, for acquisition of supplies or services by NASA from or 
through the Military Departments.



Sec. 1817.7001  Authorization and policy.

    (a) NASA is authorized by the National Aeronautics and Space Act of 
1958 (42 U.S.C. 2451 et seq.) to use the acquisition services, 
personnel, equipment, and facilities of the Military Departments, with 
their consent and with or without reimbursement, and, on a similar 
basis, to cooperate with the Military Departments in the use of 
acquisition services, equipment, and facilities.
    (b) The Military Departments have agreed to cooperate fully with 
NASA in making their acquisition services, equipment, personnel, and 
facilities available on the basis of mutual agreement.
    (c) The Military Departments have agreed not to claim reimbursement 
for administrative costs incident to acquisitions for NASA, except as 
may be otherwise agreed before the services are performed.
    (d) When procuring supplies or services for NASA or performing field 
service functions in support of NASA contracts, the Military Departments 
have agreed to use their own methods, except when otherwise required by 
the terms of the agreement involved.
    (e) The Military Departments normally will use their own funds when 
procuring supplies or services or performing services for NASA, and will 
not cite NASA funds on any Defense obligation or payment document.

[61 FR 55753, Oct. 29, 1996, as amended at 62 FR 58687, Oct. 30, 1997]

[[Page 261]]



Sec. 1817.7002  NASA-Defense Purchase Request and acceptance.

    (a) The NASA-Defense Purchase Request (NASA Form 523) shall be used 
by NASA contracting offices for requesting acquisition of supplies or 
services from all activities of the Military Departments. Individual 
NASA-Defense Purchase Requests shall be prepared in accordance with the 
instructions on the reverse of NASA Form 523 and shall be numbered in 
accordance with subpart 1804.71. The form shall not be used for 
requesting--
    (1) Block transfers of excess property between NASA and the Military 
Departments;
    (2) Performance by the Military Departments of field service 
functions related to NASA contracts; or
    (3) Items that the Military Departments normally purchase and stock 
for military use or in-house service, except when a DOD activity is 
willing to accept the form for these purposes. Supplies and services of 
this nature may be requisitioned using appropriate DOD forms when they 
are provided by and are acceptable to or preferred by the Military 
Department supplying activity or as otherwise mutually agreed upon by 
the parties.
    (b) The contracting officer shall include a provision in the order 
in accordance with 1817.504(b)(4).
    (c) To obtain materials from the Air Force Missile Procurement Fund, 
the contracting officer shall follow the procedures of 1808.002-72.



Sec. 1817.7002-1  Acceptance by Military Department.

    (a) Except as provided in paragraph (c) of this section, the 
Military Department concerned will, within 30 days after receipt of a 
NASA-Defense Purchase Request, forward to the initiator of the request 
an Acceptance of MIPR, DD Form 448-2. Each DD Form 448-2 will show the 
action being taken to fill the requirement and the name and complete 
address of the DOD contracting activity.
    (b) To the extent feasible, all documents (including acceptances, 
contracts, correspondence, shipping documents, work or project orders, 
and Standard Form 1080 (Voucher for Transfer between Appropriations and/
or Funds) billings) will reference the NASA-Defense Purchase Request 
number and the item number.
    (c) Acceptance by the Military Department is not required for NASA-
Defense Purchase Requests covering deliveries of common-use standard-
stock items that the supplying agency has on hand or on order for prompt 
delivery at published prices.



Sec. 1817.7002-2  Changes in estimated total prices.

    When a Military Department determines that the estimated total price 
(Block 7, NASA Form 523) of the items to be acquired for NASA is not 
sufficient to cover the required reimbursement or is in excess of the 
amount required, a request for an amendment will be forwarded to the 
NASA originating office. The request will indicate a specific dollar 
amount, rather than a percentage, and will include justification for any 
upward adjustment requested. Upon approval of the request, the cognizant 
NASA contracting office shall forward to the DOD contracting activity an 
amendment to the NASA Defense Purchase Request.



Sec. 1817.7002-3  Payments.

    Except when agreements provide that reimbursement is not required, 
payments to the Military Departments shall be made by that NASA office 
designated in block 9 of the NASA-Defense Purchase Request upon receipt 
of Standard Form 1080. Billings will be supported in the same manner as 
billings between Military Departments.



Sec. 1817.7002-4  Contract clause.

    The contracting officer shall insert the clause at 1852.217-70, 
Property Administration and Reporting, in any NASA-Defense Purchase 
Request when property will be involved.

         Subpart 1817.71--Exchange or Sale of Personal Property



Sec. 1817.7101  Policy.

    (a) Section 201(c) of the Federal Property and Administrative 
Services Act of 1949, 63 Stat. 384, as amended (40 U.S.C. 481(c)), 
authorizes the exchange

[[Page 262]]

or sale of Government personal property and the application of the 
exchange allowance or proceeds from the sale to the acquisition of 
similar property for replacement purposes. The transaction must be 
evidenced in writing.
    (b) NASA installations and contractors are authorized to conduct 
exchange/sale transactions as long as the requirements and restrictions 
of NPG 4300.1 and the Federal Property Management Regulations, 
Subchapter H, part 101-46, are followed. In conducting such exchanges/
sales, NASA contractors must obtain the contracting officer's prior 
written approval and must report the transactions to the cognizant NASA 
installation Property Disposal Officer (PDO).

[61 FR 55753, Oct. 29, 1996, as amended at 65 FR 58932, Oct. 3, 2000]

                Subpart 1817.72--Interagency Transactions



Sec. 1817.7201  Policy.

    (a) Although the Space Act provides interagency transaction 
authority nearly equivalent to the Economy Act, NASA has elected to 
conform its implementation of the Space Act to the requirements of the 
Economy Act. Therefore, unless exempt from the Economy Act for reasons 
other than the general authority of the Space Act, interagency 
acquisitions shall be supported by a Determination and Findings 
equivalent to that required for Economy Act transactions (see FAR 17.503 
and 1817.503). This requirement applies to all purchases of goods or 
services under contracts entered into or administered by the Military 
Departments or other agencies. The Space Act may be cited as authority 
for a transaction where appropriate, but that does not provide relief 
from this D&F requirement.
    (b) The determination described in paragraph (a) of this section is 
not required for contracts awarded under the Space Act to Government 
agencies pursuant to a Broad Agency Announcement when a review of the 
acquisition records would make it obvious that the award is nor being 
used as a method of circumventing regulatory or statutory requirements, 
particularly FAR part 6, Competition Requirements (e.g., when a 
significant number and value of awards made under the BAA are made to 
entities other than Government agencies).

[62 FR 58687, Oct. 30, 1997]

                   Subpart 1817.73--Phased Acquisition

    Source: 63 FR 56091, Oct. 21, 1998, unless otherwise noted.



Sec. 1817.7300   Definitions.

    (a) Down-selection. In a phased acquisition, the process of 
selecting contractors for later phases from among the preceding phase 
contractors.
    (b) Phased Acquisition. An incremental acquisition implementation 
comprised of several distinct phases where the realization of program/
project objectives requires a planned, sequential acquisition of each 
phase. The phases may be acquired separately, in combination, or through 
a down-selection strategy.
    (c) Progressive Competition. A type of down-selection strategy for a 
phased acquisition. In this method, a single solicitation is issued for 
all phases of the program. The initial phase contracts are awarded, and 
the contractors for subsequent phases are expected to be chosen through 
a down-selection from among the preceding phase contractors. In each 
phase, progressively fewer contracts are awarded until a single 
contractor is chosen for the final phase. Normally, all down-selections 
are accomplished without issuance of a new, formal solicitation.



Sec. 1817.7301   Down-selections in phased acquisitions.



Sec. 1817.7301-1   Pre-solicitation planning.

    (a) The rationale for the use of the down-selection technique shall 
be thoroughly justified in the acquisition planning requirement. Because 
the initial phase solicitation will also lead to subsequent phase 
award(s), the decision to use a down-selection strategy must be made 
prior to release of the initial solicitation. Accordingly, all phases

[[Page 263]]

must be addressed in the initial acquisition strategy planning and 
documented in the acquisition plan or ASM minutes.
    (b) If there is no direct link between successful performance in the 
preceding phase and successful performance in a subsequent phase, down-
selection is inappropriate. In this case, the phases should be 
contracted for separately without a down-selection.
    (c) With one exception, both the initial and subsequent phase(s) of 
an acquisition down-selection process are considered to be full and open 
competition if the procedures in 1817.7301-4 and 1817.7301-5 (if using 
the progressive competition technique) are followed. If only one 
contractor successfully completed a given phase and no other offers are 
solicited for the subsequent phase, award of the subsequent phase may be 
made only if justified by one of the exceptions in FAR 6.302 or one of 
the exclusions in FAR 6.2, and only after compliance with the synopsis 
requirements of FAR 5.202 and 5.205 and 1804.570-2.



Sec. 1817.7301-2   Evaluation factors.

    A separate set of evaluation factors must be developed for each 
phase in a down-selection competition. Since these competitive down-
selection strategies anticipate that a preceding phase contractor will 
be the subsequent phase contractor, the evaluation factors for initial 
phase award must specifically include evaluation of the offerors' 
abilities to perform all phases.



Sec. 1817.7301-3   Down-selection milestones.

    (a) When sufficient programmatic and technical information is 
available to all potential offerors, proposal evaluation and source 
selection activities need not be delayed until completion of a given 
phase. These activities should commence as early as practicable. The 
initial phase contracts should be structured to allow for down-selection 
at a discrete performance milestone (e.g., a significant design review 
or at contract completion) of a design maturity sufficient to allow for 
an informed selection decision. This will avoid time gaps between phases 
and eliminate unnecessary duplication of effort.
    (b) The appropriate contract structure must reflect program 
technical objectives as well as schedule considerations. For example, if 
a two-phased acquisition strategy calls for formal completion of initial 
phase effort at Preliminary Design Review (PDR), but it is not 
financially practical or technically necessary for subsequent phase 
award and performance to carry all initial phase contractors through 
PDR, the initial phase contracts should be structured with a basic 
period of performance through a significant, discrete milestone before 
PDR with a priced option for effort from that milestone to PDR. The 
down-selection would occur at the earlier milestone, the PDR option 
exercised only for the down-selection winner, and the subsequent phase 
performance begun at the completion of the PDR option.



Sec. 1817.7301-4   Synopsis.

    (a) Each phase of a phased acquisition not performed in-house must 
be synopsized in accordance with FAR 5.201 and must include all the 
information required by FAR 5.207. Time gaps between phases should be 
minimized by early synopsis of subsequent phase competition. The 
synopsis for the initial competitive phase should also state the 
following:
    (1) The Government plans to conduct a phased acquisition involving a 
competitive down-selection process. (Include a description of the 
process and the phases involved.)
    (2) Competitions for identified subsequent phases will build on the 
results of previous phases.
    (3) The award criteria for subsequent phases will include 
demonstrated completion of specified previous phase requirements.
    (4) The Government expects that only the initial phase contractors 
will be capable of successfully competing for the subsequent phase(s). 
Proposals for the subsequent phase(s) will be requested from these 
contractors.
    (5) The Government intends to issue (or not issue) a new, formal 
solicitation(s) for subsequent phase(s). If new solicitations are not 
planned, the acquisition must be identified as a ``progressive 
competition'' (see

[[Page 264]]

1817.7301-5), and the mechanism for providing pertinent subsequent phase 
proposal information (e.g., statements of work, specifications, proposal 
preparation instructions, and evaluation factors for award) must be 
described.
    (6) Each subsequent phase of the acquisition will be synopsized in 
accordance with FAR 5.201 and 5.203.
    (7) Notwithstanding the expectation that only the initial phase 
contractors will be capable of successfully competing for the subsequent 
phase(s), proposals from all responsible sources submitted by the 
specified due date will be considered. In order to contend for 
subsequent phase awards, however, such prospective offerors must 
demonstrate a design maturity equivalent to that of the prior phase 
contractors. Failure to fully and completely demonstrate the appropriate 
level of design maturity may render the proposal unacceptable with no 
further consideration for contract award.
    (b) In addition to the information in paragraph (a) of this section, 
the synopsis for the subsequent phase(s) must identify the current phase 
contractors.



Sec. 1817.7301-5  Progressive competition.

    (a) To streamline the acquisition process, the preferred approach 
for NASA phased acquisitions is the ``progressive competition'' down-
selection technique in which new, formal solicitations are not issued 
for phases subsequent to the initial phase. Subsequent phase proposals 
are requested by less formal means, normally by a letter accompanied by 
the appropriate proposal preparation and evaluation information.
    (b) When using the progressive competition technique, if a 
prospective offeror other than one of the preceding phase contractors 
responds to the synopsis for a subsequent phase and indicates an 
intention to submit a proposal, the contracting officer shall provide to 
that offeror all the material furnished to the preceding phase 
contractors necessary to submit a proposal. This information includes 
the preceding phase solicitation, contracts, and system performance and 
design requirements, as well as all proposal preparation instructions 
and evaluation factors. In addition, the prospective offeror must be 
advised of all requirements necessary for demonstration of a design 
maturity equivalent to that of the preceding phase contractors.
    (c) A key feature of the progressive competition technique is that a 
formal solicitation is normally not required. However, when the 
Government requirements or evaluation procedures change so significantly 
after release of the initial phase solicitation that a substantial 
portion of the information provided in the initial phase synopsis, 
solicitation, or contracts is no longer valid, a new solicitation shall 
be issued for the next phase.
    (d) Subsequent phase proposals should be requested by a letter 
including the following:
    (1) A specified due date for the proposals along with a statement 
that the late proposal information in paragraph (c)(3) of FAR 52.215-1, 
Instructions to Offerors--Competitive Acquisition, applies to the due 
date.
    (2) Complete instructions for proposal preparation, including page 
limitations, if any.
    (3) Final evaluation factors.
    (4) Any statement of work, specifications, or other contract 
requirements that have changed since the initial solicitation.
    (5) All required clause changes applicable to new work effective 
since the preceding phase award.
    (6) Any representations or certifications, if required.
    (7) Any other required contract updates (e.g., small and small 
disadvantaged business goals).
    (e) Certain factors may clearly dictate that the progressive 
competition technique should not be used. For example, if it is likely 
that NASA may introduce a design concept independent of those explored 
by the preceding phase contractors, it is also likely that a new, formal 
solicitation is necessary for the subsequent phase and all potential 
offerors should be solicited. In this circumstance, progressive 
competition is inappropriate.



Sec. 1817.7302  Contract clauses.

    (a) The contracting officer shall insert the clause at 1852.217-71, 
Phased

[[Page 265]]

Acquisition Using Down-Selection Procedures, in solicitations and 
contracts for phased acquisitions using down-selection procedures other 
than the progressive competition technique described in 1817.7301-5. The 
clause may be modified as appropriate if the acquisition has more than 
two phases. The clause shall be included in the solicitation for each 
phase and in all contracts except that for the final phase.
    (b) The contracting officer shall insert the clause at 1852.217-72, 
Phased Acquisition Using Progressive Competition Down-Selection 
Procedures, in solicitations and contracts for phased acquisitions using 
the progressive competition technique described in 1817.7301-5. The 
clause may be modified as appropriate if the acquisition has more than 
two phases. The clause shall be included in the initial phase 
solicitation and all contracts except that for the final phase.

[[Page 266]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

                   PART 1819--SMALL BUSINESS PROGRAMS

Sec.

Sec. 1819.001  Definitions.

                        Subpart 1819.2--Policies


Sec. 1819.201  General policy.

    Subpart 1819.3--Determination of Small Business Status for Small 
                            Business Programs


Sec. 1819.302  Protesting a small business representation.

              Subpart 1819.5--Set-Asides for Small Business


Sec. 1819.502  Setting aside acquisitions.

Sec. 1819.502-70  Non-initiation of set-asides.

Sec. 1819.502-3  Partial set-asides.

Sec. 1819.502-370  NASA reporting requirements.

Sec. 1819.505  Rejecting Small Business Administration recommendations.

Sec. 1819.506  Withdrawing or modifying small business set-asides.

    Subpart 1819.6--Certificates of Competency and Determinations of 
                             Responsibility


Sec. 1819.602  Procedures.

Sec. 1819.602-1  Referral.

Sec. 1819.602-3  Resolving differences between the agency and the Small 
          Business Administration.

Sec. 1819.602-370  NASA procedures.

        Subpart 1819.7--The Small Business Subcontracting Program


Sec. 1819.705-2  Determining the need for a subcontracting plan.

Sec. 1819.705-4  Reviewing the subcontracting plan.

Sec. 1819.705-470  Acquisition-specific subcontracting goals.

Sec. 1819.708  Contract clauses.

Sec. 1819.708-70  NASA solicitation provision and contract clause.

Subpart 1819.8--Contracting With the Small Business Administration (the 
                              8(a) Program)


Sec. 1819.804  Evaluation, offering, and acceptance.

Sec. 1819.804-1  Agency evaluation.

  Subpart 1819.10--Small Business Competitiveness Demonstration Program


Sec. 1819.1005  Applicability.

                  Subpart 1819.70--NASA 8 Percent Goal


Sec. 1819.7000  General.

Sec. 1819.7002  Contracting officer responsibility.

Sec. 1819.7003  Contract clause.

          Subpart 1819.71--NASA Rural Area Small Business Plan


Sec. 1819.7101  Definition.

Sec. 1819.7102  General.

Sec. 1819.7103  Solicitation provision and contract clause.

              Subpart 1819.72--NASA Mentor-Protege Program


Sec. 1819.7201  Scope of subpart.

Sec. 1819.7202  Definitions.

Sec. 1819.7203  Non-affiliation.

Sec. 1819.7204  Transportability of features from the Department of 
          Defense (DOD) Mentor-Protege program to NASA contractors.

Sec. 1819.7205  General policy.

Sec. 1819.7206  Incentives for prime contractor participation.

Sec. 1819.7207  Measurement of Program success.

Sec. 1819.7208  Mentor firms.

Sec. 1819.7209  Protege firms.

Sec. 1819.7210  Selection of protege firms.

Sec. 1819.7211  Application process for mentor firms to participate in 
          the Program.

Sec. 1819.7212  OSDBU review and approval process of agreement.

Sec. 1819.7213  Agreement contents.

Sec. 1819.7214  Developmental assistance.

Sec. 1819.7215  Obligation.

Sec. 1819.7216  Internal controls.

Sec. 1819.7217  Reports.

Sec. 1819.7218  Program review.

Sec. 1819.7219  Solicitation provision and contract clauses.

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

    Source: 62 FR 36707, July 9, 1997, unless otherwise noted.



Sec. 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.

[[Page 267]]

                        Subpart 1819.2--Policies



Sec. 1819.201  General policy. (NASA supplements paragraphs (a), (c), 
          (d), and (f))

    (a)(i) NASA is committed to providing to small, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone, 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) NASA annually negotiates Agency small, service-disabled 
veteran-owned small business, HUBZone, 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). In addition, NASA has the following statutory goals 
based on the total value of prime and subcontract awards:
    (A) Under Public Laws 101-144, 101-507, and 102-389, an annual goal 
of at least 8 percent for prime and subcontract awards to small 
disadvantaged business (SDB) concerns, Historically Black Colleges and 
Universities (HBCUs), minority institutions (MIs), and women-owned small 
businesses (WOSBs) (see 1819.7000); and
    (B) Under 10 U.S.C. 2323, an annual goal of 5 percent for prime and 
subcontract awards to SDBs, HBCUs, and WOSBs.
    (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

[[Page 268]]

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.
    (f)(1) The NASA Ombudsman, the Director of the Contract Management 
Division (Code HK), is the designated official for determining whether 
the use of the SDB mechanism in FAR subpart 19.11 has resulted in an 
undue burden on non-SDB firms in the Department of Commerce designated 
NAICS Major Groups, or is otherwise inappropriate.

[62 FR 36707, July 9, 1997, as amended at 64 FR 25215, May 11, 1999; 65 
FR 38777, June 22, 2000; 65 FR 58932, Oct. 3, 2000; 67 FR 53547 Oct. 23, 
2001]



Sec. 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



Sec. 1819.502  Setting aside acquisitions.



Sec. 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 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

[[Page 269]]

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. Sec. 1819.502-3  Partial set-asides.



Sec. 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.



Sec. 1819.505  Rejecting Small Business Administration recommendations.

    See 1819.502-70.



Sec. 1819.506  Withdrawing or modifying small business 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 and Determinations of 
                             Responsibility



Sec. 1819.602  Procedures.



Sec. 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).



Sec. 1819.602-3  Resolving differences between the agency and the Small 
          Business Administration.



Sec. 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

[[Page 270]]

recommended appeal action, the Assistant Administrator for Procurement 
shall forward the appeal through the Office of Small and Disadvantaged 
Business Utilization (Code K) to SBA Headquarters.

        Subpart 1819.7--The Small Business Subcontracting Program



Sec. 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.



Sec. 1819.705-4  Reviewing the subcontracting plan.



Sec. 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, veteran-owned small business, 
service-disabled veteran-owned small business, HUBZone, and women-owned 
small business concerns.

[62 FR 36707, July 9, 1997, as amended at 64 FR 25215, May 11, 1999; 66 
FR 53547, Oct. 23, 2001]



Sec. 1819.708  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.



Sec. 1819.708-70  NASA solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 1852.219-
73, 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 1852.21975, 
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.

[64 FR 25215, May 11, 1999]

Subpart 1819.8--Contracting With the Small Business Administration (the 
                              8(a) Program)



Sec. 1819.804  Evaluation, offering, and acceptance.



Sec. 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



Sec. 1819.1005  Applicability.

    (b) The targeted industry categories for NASA and their North 
American Industry Classification System (NAICS) codes are:

------------------------------------------------------------------------
         NAICS code                        Industry category
------------------------------------------------------------------------
 334111....................  Electronic Computer Manufacturing.

[[Page 271]]

 
 334418....................  Printed Circuit Assembly (Electronic
                              Assembly) Manufacturing.
 334613....................  Magnetic and Optical Recording Media
                              Manufacturing.
 334119....................  Other Computer Peripheral Equipment
                              Manufacturing.
 33422.....................  Radio and Television Broadcasting and
                              Wireless Communication Equipment
                              Manufacturing.
 336415....................  Guided Missile and Space Vehicle Propulsion
                              Unit and Propulsion Unit Parts
                              Manufacturing.
 336419....................  Other Guided Missile and Space Vehicle
                              Parts and Auxiliary Equipment
                              Manufacturing.
 334511....................  Search, Detection, Navigation, Guidance,
                              Aeronautical, and Nautical Systems and
                              Instrument Manufacturing.
 333314....................  Optical Instrument and Lens Manufacturing.
 541511....................  Custom Computer Programming Services.
 541512....................  Computer Systems Design Services.
 51421.....................  Data Processing Services.
 541519....................  Other Computer Related Services.
------------------------------------------------------------------------

[65 FR 58932, Oct. 3, 2000, as amended at 67 FR 50824, Aug. 6, 2002]

                  Subpart 1819.70--NASA 8 Percent Goal



Sec. 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.



Sec. 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.



Sec. 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



Sec. 1819.7101  Definition.

    Rural area means a county with a population of fewer than twenty 
thousand individuals.



Sec. 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.



Sec. 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,

[[Page 272]]

and the Trust Territory of the Pacific Islands.

              Subpart 1819.72--NASA Mentor-Protege Program



Sec. Sec. 1819.7201  Scope of subpart.

    The NASA Mentor-Protege Program is designed to incentivize NASA 
prime contractors to assist small disadvantaged business (SDB) concerns, 
Historically Black Colleges and Universities (HBCUs), minority 
institutions (MIs), and women-owned small business (WOSB) 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.

[64 FR 10571, Mar. 5, 1999]



Sec. 1819.7202  Definitions.

    High-Tech is defined in 1819.001.



Sec. 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.



Sec. 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, 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.



Sec. 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

[[Page 273]]

``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 Mentor-Protege program may be used in cost reimbursement 
type contracts and contracts that include an award fee incentive. Costs 
incurred by a mentor to provide the developmental assistance described 
in 1819.7214 are allowable. Except for cost-plus-award-fee contracts, 
such proposed costs shall not be included in the cost base used to 
develop a fee objective or to negotiate fee. On contracts with an award 
fee incentive, a contractor's Mentor-Protege efforts shall be evaluated 
under the award fee evaluations.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10571, Mar. 5, 1999]



Sec. Sec. 1819.7206  Incentives for prime contractor participation.

    (a) Proposed mentor-protege efforts, except for the extent of 
participation of proteges as subcontractors, shall be evaluated under 
the Mission Suitability factor. The participation of SDB proteges as 
subcontractors shall be evaluated separately as a Mission Suitability 
subfactor (see FAR 15.304(c)(4) and 19.1202). The participation of other 
categories of proteges as subcontractors may be evaluated separately as 
part of the evaluation of proposed subcontracted efforts.
    (b) Under contracts with award fee incentives, 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. This award fee evaluation shall not include assessment of 
the contractor's achievement of FAR 52.219-9 subcontracting plan SDB 
goals or proposed monetary targets for SDB subcontracting (see FAR 
19.1203).

[64 FR 10571, Mar. 5, 1999, as amended at 65 FR 30013, May 10, 2000; 65 
FR 46628, July 31, 2000]



Sec. 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.



Sec. 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 NAICS code assigned to a contracting 
opportunity);
    (2) Firms in addition to those with whom they have established 
business relationships; and

[[Page 274]]

    (3) High-tech firms.

[62 FR 36707, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000]



Sec. 1819.7209  Protege firms.

    (a) For selection as a protege, a firm must be:
    (1) An SDB in the NAICS Major Groups as determined by the Department 
of Commerce (see FAR 19.201(b)), HBCU, MI, or WOSB;
    (2) Certified as small in the NAICS 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) Except for SDBs, 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 representations by 
potential proteges that they meet the specified eligibility 
requirements. SDB status eligibility and documentation requirements are 
determined according to FAR 19.304.
    (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.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10571, Mar. 5, 1999; 65 
FR 58932, Oct. 3, 2000]



Sec. 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 for a protest regarding the size or eligibility status 
of an entity selected by a mentor to be a protege. Such protests 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.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]



Sec. 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.
    (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

[[Page 275]]

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.



Sec. 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.



Sec. 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.



Sec. 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;

[[Page 276]]

    (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 1832.409-170;
    (f) Loans;
    (g) Rent-free use of facilities and/or equipment; and
    (h) Temporary assignment of personnel to the protege for purpose of 
training.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]



Sec. 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 each NASA contract 
subject to the approved Mentor-Protege agreement.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]



Sec. 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 any semi-annual progress reports submitted by mentors 
and proteges 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 occurring.
    (b) NASA may terminate mentor-protege agreements for good cause and 
exclude mentor or protege firms from participating in the NASA program. 
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).

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]



Sec. 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 a quarterly `Strengths and Weaknesses' evaluation report. A 
copy of this assessment 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.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]



Sec. 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

[[Page 277]]

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.



Sec. 1819.7219  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-77, 
NASA Mentor-Protege Program, in:
    (1) Cost reimbursement solicitations and contracts, or solicitations 
and contracts with award fee incentives, that include the clause at FAR 
52.219-9, Small Business Subcontracting Plan;
    (2) Small business set-asides of the contract types in (a)(1) of 
this section with values 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.

[62 FR 36707, July 9, 1997, as amended at 64 FR 10572, Mar. 5, 1999]

     PART 1822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Sec.

Sec. 1822.000-70  Scope of part.

                  Subpart 1822.1--Basic Labor Policies


Sec. 1822.101  Labor relations.

Sec. 1822.101-1  General.

Sec. 1822.101-3  Reporting labor disputes.

Sec. 1822.101-4  Removal of items from contractors' facilities affected 
          by work stoppages.

Sec. 1822.101-70  Admission of labor representatives to contract sites.

Sec. 1822.103  Overtime.

Sec. 1822.103-4  Approvals.

Sec. 1822.103-5  Contract clauses.

      Subpart 1822.3--Contract Work Hours and Safety Standards Act


Sec. 1822.302  Liquidated damages and overtime pay.

  Subpart 1822.4--Labor Standards for Contracts Involving Construction


Sec. 1822.400-70  Contacts with the Department of Labor.

Sec. 1822.404-3  Procedures for requesting wage determinations.

Sec. 1822.406-8  Investigations.

Sec. 1822.406-9  Withholding from or suspension of contract payments.

Sec. 1822.406-13  Semiannual enforcement reports.

            Subpart 1822.6--Walsh-Healey Public Contracts Act


Sec. 1822.604  Exemptions.

Sec. 1822.604-2  Regulatory exemptions.

              Subpart 1822.8--Equal Employment Opportunity


Sec. 1822.804  Affirmative action programs.

Sec. 1822.804-2  Construction.

Sec. 1822.807  Exemptions.

Sec. 1822.810  Solicitation provisions and contract clauses.

              Subpart 1822.10--Service Contract Act of 1965


Sec. 1822.1001  Definitions.

Sec. 1822.1008  Procedures for preparing and submitting Notice (SF 98/
          98a).

Sec. 1822.1008-7  Required time of submission of notice.

Sec. 1822.1008-270  Additional information for the preparation of SF 98/
          98a.

Subpart 1822.13--Special Disabled Veterans, Veterans of the Vietnam ERA, 
                       and Other Eligible Veterans


Sec. 1822.1305  Waivers.

Sec. 1822.1308  Complaint procedures.

        Subpart 1822.14--Employment of Workers with Disabilities


Sec. 1822.1403  Waivers.

Sec. 1822.1406  Complaint procedures.

  Subpart 1822.15--Prohibition of Acquisition of Products Produced by 
                    Forced or Indentured Child Labor


Sec. 1822.1503  Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor. (NASA supplements paragraph (e))

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

    Source: 61 FR 55755, Oct. 29, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1822 appear at 66 FR 
53547, Oct. 23, 2001.

[[Page 278]]



Sec. 1822.000-70   Scope of part.

    (a) Contracting officers shall consult with the installation labor 
relations advisor or designee when taking any of the actions prescribed 
or authorized in FAR part 22 or part 1822.
    (b) Proposed actions having a substantial impact on the activities 
of NASA or other Government agencies shall be approved by the 
Headquarters Contractor Industrial Relations Office (Code JR).

                  Subpart 1822.1--Basic Labor Policies



Sec. 1822.101   Labor relations.



Sec. 1822.101-1   General. (NASA supplements paragraph (d))

    (d) When a strike that may have an adverse effect on NASA programs 
is imminent or in progress at a prime contractor's or subcontractor's 
plant, contracting officers shall:
    (i) Advise both the prime contractor and the head of the union local 
in writing of the expected impact of the strike on NASA programs and of 
the actions NASA is considering to protect the Government's interest and 
prevent delay in the accomplishment of NASA's mission. If the strike is 
in a subcontractor's plant, the subcontractor may be approached only 
through the prime contractor;
    (ii) Explore the possibility of locating other sources for the 
supplies or services to have been provided by the strike-threatened 
plant; and
    (iii) Consider taking the actions described in FAR 22.101-4.
    (e) Programs or requirements that result in contracts in excess of 
the simplified acquisition threshold shall require contractors to notify 
NASA of actual or potential labor disputes that are delaying or threaten 
to delay timely contract performance.

[61 FR 55755, Oct. 29, 1996, as amended at 64 FR 14148, Mar. 24, 1999]



Sec. 1822.101-3   Reporting labor disputes.

    Reports of potential or actual labor disputes affecting NASA 
acquisitions, operations, or services shall be submitted to the 
Headquarters Contractor Industrial Relations Office (Code JR). These 
reports shall be made as early as possible and shall include immediately 
available information. Supplemental reports shall be made to provide 
appropriate additional information. Reports shall described at a 
minimum:
    (1) The nature of the potential or actual dispute, including whether 
a strike, lockout, slow-down, shut-down, or picketing is involved and 
the degree of emergency presented;
    (2) The character, quantity, and importance of the supplies, 
operations, or services involved, including scheduled performance and 
delivery dates and their relationship to the total acquisition program;
    (3) The identity and location of the parties to the dispute and 
their representatives, including the approximate number of employees 
involved;
    (4) The need for and availability of alternative resources to 
furnish the items involved within the time required;
    (5) Any critical items that should be removed from the plant or work 
site or should continue to be processed there with the consent of the 
parties to the dispute; and
    (6) Recommended action to be taken by NASA.



Sec. 1822.101-4   Removal of items from contractors' facilities affected 
          by work stoppages. (NASA supplements paragraph (a))

    (a) (3) The contracting officer shall obtain approval from Code JR 
for any contemplated action.



Sec. 1822.101-70   Admission of labor representatives to contract sites.

    NASA activities may not prevent the access of labor union 
representatives to contract sites for the conduct of union business if 
their activities are compatible with safety and security regulations and 
performance of the contract work involved.



Sec. 1822.103   Overtime.



Sec. 1822.103-4   Approvals. (NASA supplements paragraph (a))

    (a) The contracting officer is authorized to approve overtime 
premiums at Government expense. If two or more contracting offices have 
current contracts at a single facility and approval

[[Page 279]]

of overtime by one will affect the performance or cost of contracts of 
another, the approving official shall obtain the concurrence of other 
appropriate approving officials and seek agreement as to the contracts 
under which premiums will be approved. In the absence of evidence to the 
contrary, a contracting officer may rely on the contractor's statement 
that approval will not affect performance or payments under any contract 
of another contracting office.



Sec. 1822.103-5  Contract clauses. (NASA supplements paragraph (a))

    (a) See 1822.101-1(e).

[64 FR 14149, Mar. 24, 1999]

      Subpart 1822.3--Contract Work Hours and Safety Standards Act



Sec. 1822.302   Liquidated damages and overtime pay. (NASA supplements 
          paragraphs (c) and (d))

    (c) The Director of the Headquarters Contractor Industrial Relations 
Office (Code JR) is the agency head designee.
    (d) Disposal of funds withheld or collected for liquidated damages 
shall be in accordance with direction of the Director of Code JR.

  Subpart 1822.4--Labor Standards for Contracts Involving Construction



Sec. 1822.400-70  Contacts with the Department of Labor.

    All contacts with the Department of Labor required by FAR subpart 
22.4, except for wage determinations, shall be conducted through the 
Headquarters Contractor Industrial Relations Office (Code JR). 
Contracting officers shall submit all pertinent information to Code JR 
in support of Code JR for contacts. For wage determinations, contracting 
officers shall submit all requests directly to Goddard Space Flight 
Center, Contractor Industrial Relations Office--GSFC, Code 201, 
Greenbelt, Maryland 20771 (GSFC).

[63 FR 32763, June 16, 1998]



Sec. 1822.404-3   Procedures for requesting wage determinations.

    Contracting officers shall submit requests for project wage 
determinations to GSFC at least 55 days (70 days if possible) before 
issuing the solicitation.

[61 FR 55755, Oct. 29, 1996, as amended at 63 FR 32763, June 16, 1998]



Sec. 1822.406-8  Investigations. (NASA supplements paragraphs (a) and 
          (d))

    (a) The contracting officer is responsible for conducting 
investigations of labor violations relative to contracts under their 
cognizance.
    (d) Reports of violations shall be sent to Code JR.

[61 FR 55755, Oct. 29, 1996, as amended at 63 FR 32763, June 16, 1998]



Sec. 1822.406-9  Withholding from or suspension of contract payments. 
          (NASA supplements paragraph (c))

    (c)(4) Code JR shall determine the disposal of funds.



Sec. 1822.406-13  Semiannual enforcement reports.

    Procurement officers shall submit semiannual enforcement data within 
20 days after the end of the specified reporting periods to the 
Headquarters Office of Procurement (Code HK). Negative statements are 
required.

            Subpart 1822.6--Walsh-Healey Public Contracts Act



Sec. 1822.604  Exemptions.



Sec. 1822.604-2  Regulatory exemptions. (NASA supplements paragraph (c))

    (b) Requests for exemptions shall be submitted in writing through 
the contracting officer to the Headquarters Contractor Industrial 
Relations Office (Code JR).

[61 FR 55755, Oct. 29, 1996, as amended at 62 FR 36713, July 9, 1997]

[[Page 280]]

              Subpart 1822.8--Equal Employment Opportunity



Sec. 1822.804  Affirmative action programs.



Sec. 1822.804-2  Construction. (NASA supplements paragraph (b))

    (b) The Headquarters Office of Procurement (Code HK) will furnish 
each procurement officer the listing.



Sec. 1822.807  Exemptions.

    Requests for exemption pursuant to FAR 22.807(a)(1), (a)(2), or 
(b)(5) shall be sent to the Headquarters Office of Procurement (Code 
HS).



Sec. 1822.810  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (e))

    (e) If an offeror completes a negative representation under FAR 
52.222-22, the contracting officer shall obtain the information required 
by FAR 52.222-26(b)(7) within 30 days of contract award. The information 
shall be held in confidence as privileged information in accordance with 
32 CFR 286.6(b)(4).

              Subpart 1822.10--Service Contract Act of 1965



Sec. 1822.1001  Definitions.

    Agency labor advisor is the Director of the Headquarters Contractor 
Industrial Relations Office (Code JR). All contacts with other agencies 
required by FAR subpart 22.10 shall be conducted through Code JR. 
Contracting officers shall submit all pertinent information to Code JR 
in support of the required contacts.



Sec. 1822.1008  Procedures for preparing and submitting Notice (SF 98/
          98a).



Sec. 1822.1008-7  Required time of submission of notice.

    (a) Contracting officers shall submit the notices to Goddard Space 
Flight Center, Contract Industrial Relations Office--GSFC, Code 201, 
Greenbelt, Maryland 20771 (GSFC) at least 70 days before initiating the 
associated contract actions.
    (b) When the circumstances in FAR 22.1008-7(b) apply, contracting 
officers shall submit the required notices to GSFC at least 40 days 
before initiating the associated contract actions.
    (c) Contracting officers shall contact GSFC before initiating any 
action when the circumstances in FAR 22.1008-7(c) and (d) apply.

[63 FR 32763, June 16, 1998]



Sec. 1822.1008-270  Additional information for the preparation of SF 98/
          98a.

    The information listed in this section by item number shall be 
furnished, in addition to that required by the SF 98/98a:
    (a) Item 6. Insert on the far left side of the block the code 
identifying the type of proposed action:

------------------------------------------------------------------------
             Code                            Proposed action
------------------------------------------------------------------------
I                               New contract (use only when services are
                                 not presently being performed).
II                              Recompetition of services.
III                             Contract modifications affecting the
                                 scope of the work.
IV                              Extension of contract performance
                                 through exercise of an option or
                                 otherwise.
 V                              Other. When a multiple year contract
                                 (funding is not subject to annual
                                 appropriation) is to be entered into,
                                 specify ``multiple year R&D funded'' on
                                 the SF 98.
------------------------------------------------------------------------

    (b) Item 8. (1) If the proposed contract will be awarded under 
Section 8(a) of the Small Business Act, insert both the Small Business 
Administration and the name of the subcontractor.
    (2) If no wage determination is available for the particular 
contract, insert ``None'' in Item 8.b.
    (c) Item 10. Add the solicitation number.
    (d) Item 12. (1) When entering into a new service contract, list all 
classes of work expected to be performed under the contract under this 
item, regardless of whether the class of employees is considered 
professional, executive, administrative, or hourly. However, if 
submission of the SF 98/98a is in connection with any action other than 
a new contract (Code I in paragraph (a) of this subsection), list only 
the classes of work that the incumbent indicates are ``nonexempt.''
    (2) When classifications include both categories of employees 
covered by a collective bargaining agreement and those not represented 
by a union, mark the classifications that are unionized with an 
asterisk.

[[Page 281]]

    (3) If the classification of work is not known, use the most 
descriptive job title available for the work to be performed under the 
contract.
    (e) Item 13. If the number of employees is not known, the estimated 
hours required to perform the tasks should be indicated so that staffing 
estimates can be determined and listed.
    (f) Item 14. Include in this item the wage rates that would be paid 
if the employees were subject to 5 U.S.C. 5332 (GS grades).

Subpart 1822.13--Special Disabled Veterans, Veterans of the Vietnam ERA, 
                       and Other Eligible Veterans



Sec. 1822.1305  Waivers.

    (c) Requests for waivers shall be submitted to the Assistant 
Administrator for Equal Opportunity Programs (Code E).

[67 FR 30603, May 7, 2002]



Sec. 1822.1308  Complaint procedures.

    Contracting officers shall submit all complaints to the Assistant 
Administrator for Equal Opportunity Programs (Code E).

[67 FR 30603, May 7, 2002]

        Subpart 1822.14--Employment of Workers with Disabilities



Sec. 1822.1403  Waivers. (NASA supplements paragraph (c))

    (c) Requests for waivers shall be submitted to the Assistant 
Administrator for Equal Opportunity Programs (Code E).



Sec. 1822.1406  Complaint procedures.

    Contracting officers shall submit all complaints to the Assistant 
Administrator for Equal Opportunity Programs (Code E).

  Subpart 1822.15--Prohibition of Acquisition of Products Produced by 
                    Forced or Indentured Child Labor



Sec. 1822.1503  Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor. (NASA supplements paragraph (e))

    (e) All investigations under FAR Subpart 22.15 shall be referred to 
NASA's Office of Inspector General.

[66 FR 41805, Aug. 9, 2001]

 PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Sec.

Sec. 1823.106  Delaying award.

Sec. 1823.107  Compliance responsibilities.

    Subpart 1823.2--Energy and Water Efficiency and Renewable Energy


Sec. 1823.203  Energy-efficient products.

 Subpart 1823.3--Hazardous Material Identification and Material Safety 
                                  Data


Sec. 1823.370  Acquisition of potentially hazardous items from or 
          through another Government agency.

               Subpart 1823.4--Use of Recovered Materials


Sec. 1823.404  Agency affirmative procurement programs.

                   Subpart 1823.5--Drug-Free Workplace


Sec. 1823.570  Drug- and alcohol-free workforce.

Sec. 1823.570-1  Scope.

Sec. 1823.570-2  Definitions.

Sec. 1823.570-3  Contract clause.

Sec. 1823.570-4  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

Subpart 1823.7--Contracting for Environmentally Preferable Products and 
                                Services


Sec. 1823.703  Policy.

[[Page 282]]

                   Subpart 1823.70--Safety and Health


Sec. 1823.7001  NASA solicitation provisions and contract clauses.

                Subpart 1823.71--Frequency Authorization


Sec. 1823.7101  Contract clause.

Sec. 1823.7102  Procedures.

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

    Source: 61 FR 55757, Oct. 29, 1996, unless otherwise noted.

    Subpart 1823.2--Energy and Water Efficiency and Renewable Energy



Sec. 1823.203  Energy-efficient products.

    Responsibility, policy and procedures for NASA's implementation of 
FAR 23.203, including cost-effectiveness, are described in NPG 8570.1, 
``Energy Efficiency and Water Conservation Technologies and Practices.''

[67 FR 30603, May 7, 2002]

 Subpart 1823.3--Hazardous Material Identification and Material Safety 
                                  Data



Sec. 1823.370   Acquisition of potentially hazardous items from or 
          through another Government agency.

    When acquiring supplies or services from or through another 
Government agency (e.g., see FAR part 8 and FAR subpart 17.5), NASA 
shall request that agency to furnish NASA the data required by FAR 
subpart 23.3.

               Subpart 1823.4--Use of Recovered Materials



Sec. 1823.404  Agency affirmative procurement programs.

    NASA's affirmative procurement program is described in the 
Affirmative Procurement Plan for Environmentally Preferable Products 
(NPG 8830.1)

[67 FR 30603, May 7, 2002]

                   Subpart 1823.5--Drug-Free Workplace



Sec. 1823.570   Drug- and alcohol-free workforce.



Sec. 1823.570-1   Scope.

    Sections 1823.570 through 1823.570-4 set forth NASA requirements for 
mandatory drug and alcohol testing of certain contractor personnel under 
section 203, National Aeronautics and Space Act of 1958, as amended, 42 
U.S.C. 2473, 72 Stat. 429; and Civil Space Employee Testing Act of 1991, 
Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619.



Sec. 1823.570-2   Definitions.

    As used in this subpart employee and controlled substance are as 
defined in FAR 23.503. The use of a controlled substance in accordance 
with the terms of a valid prescription, or other uses authorized by law 
shall not be subject to the requirements of 1823.570 through 1823.570-4 
and the clause at 1852.223-74.
    Employee in a sensitive position means a contractor or subcontractor 
employee who has been granted access to classified information; a 
contractor or subcontractor employee in other positions that the 
contractor or subcontractor determines could reasonably be expected to 
affect safety, security, National security, or functions other than the 
foregoing requiring a high degree of trust and confidence; and includes 
any employee performing in a position designated ``mission critical'' 
pursuant to the clause at 1852.246-70. The term also includes any 
applicant who is interviewed for a position described in this paragraph.
    Use, in violation of applicable law or Federal regulation, of 
alcohol includes having, while on duty or during a preemployment 
interview, an alcohol concentration of 0.04 percent by weight or more in 
the blood, as measured by chemical test of the individual's breath or 
blood. An individual's refusal to submit to such test is presumptive 
evidence of use, in violation of applicable law or Federal regulation, 
of alcohol.

[[Page 283]]



Sec. 1823.570-3   Contract clause.

    The contracting officer shall insert the clause at 1852.223-74, 
``Drug- and Alcohol-Free Workforce,'' in all solicitations and contracts 
containing the clause at 1852.246-70, ``Mission Critical Space Systems 
Personnel Reliability Program,'' and in other solicitations and 
contracts exceeding $5 million in which work is performed by an employee 
in a sensitive position. However, the contracting officer shall not 
insert the clause at 1852.223-74 in solicitations and contracts for 
commercial items (see FAR parts 2 and 12).



Sec. 1823.570-4   Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    The contracting officer shall comply with the procedures of FAR 
23.506 regarding the suspension of contract payments, the termination of 
the contract for default, and debarment and suspension of a contractor 
relative to failure to comply with the clause at 1852.223-74. Causes for 
suspension of contract payments, termination of the contract for 
default, and debarment and suspension of the contractor are the 
following:
    (a) The contractor fails to comply with paragraph (b), (c), or (d) 
of the clause at 1852.223-74; or
    (b) Such a number of contractor employees in sensitive positions 
having been convicted of violations of criminal drug statutes or 
substantial evidence of drug or alcohol abuse or misuse occurring in the 
workplace, as to indicate that the contractor has failed to make a good 
faith effort to provide a drug- and alcohol-free workforce.

Subpart 1823.7--Contracting for Environmentally Preferable Products and 
                                Services



Sec. 1823.703  Policy.

    Responsibility, policy and procedures for NASA's implementation of 
FAR 23.703 is described in NPG 8570.1, ``Energy Efficiency and Water 
Conservation Technologies and Practices''.

[67 FR 30603, May 7, 2002]

                   Subpart 1823.70--Safety and Health



Sec. 1823.7001  NASA solicitation provisions and contract clauses.

    (a) The clause at 1852.223-70, Safety and Health, shall be included 
in all solicitations and contracts when one or more of the following 
conditions exist:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the Government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including contractor employees working on NASA contracts), or 
high value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the assessed risk and consequences of a failure to properly 
manage and control the hazard(s) warrants use of the clause.
    (b) The clause prescribed in paragraph (a) of this section may be 
excluded, regardless of place of performance, when the contracting 
officer, with the approval of the installation official(s) responsible 
for matters of safety and occupational health, determines that the 
application of OSHA and DOT regulations constitutes adequate safety and 
occupational health protection.
    (c) The contracting officer shall insert the provision at 1852.223-
73, Safety and Health Plan, in solicitations containing the provision at 
1852.223-70. This provision 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 include the plan in any resulting 
contract. Insert the provision with its Alternate I, in Invitations for 
Bid containing the clause at 1852.223-70.
    (d) The contracting officer shall insert the clause at 1852.223-75, 
Major

[[Page 284]]

Breach of Safety or Security, in all solicitations and contracts with 
estimated values of $500,000 or more, unless waived at a level above the 
contracting officer with the concurrence of the project manager and the 
installation official(s) responsible for matters of security, export 
control, safety, and occupational health. For other contracts, use of 
the clause is optional.
    (e) For all solicitations and contracts exceeding the micro-purchase 
threshold that do not include the clause at 1852.223-70, Safety and 
Health, the contracting officer shall insert the clause at 1852.223-72, 
Safety and Health (Short Form).

[65 FR 37059, June 13, 2000, as amended at 65 FR 70316, Nov. 22, 2000; 
66 FR 18052, Apr. 5, 2001; 66 FR 48361, Sept. 20, 2001; 67 FR 17016, 
Apr. 9, 2002]

                Subpart 1823.71--Frequency Authorization



Sec. 1823.7101  Contract clause.

    The contracting officer shall insert the clause at 1852.223-71, 
Frequency Authorization, in solicitations and contracts calling for 
developing, producing, constructing, testing, or operating a device for 
which a radio frequency authorization is required.



Sec. 1823.7102  Procedures.

    The contracting officer shall obtain the necessary frequency 
authorization and other procedural details from the installation's 
spectrum manager.

       PART 1824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 1824.1--Protection of Individual Privacy

Sec.

Sec. 1824.102  General.

               Subpart 1824.2--Freedom of Information Act


Sec. 1824.203  Policy.

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

    Source: 61 FR 55758, Oct. 29, 1996, unless otherwise noted.

            Subpart 1824.1--Protection of Individual Privacy



Sec. 1824.102  General.

    (1) For NASA rules and regulations implementing the Privacy Act, see 
Privacy--NASA Regulations, (14 CFR 1212). The Act applies to any 
contractor maintaining a system of records to accomplish a NASA mission.
    (2) Systems of records to which the Privacy Act does not apply 
include--
    (i) Records maintained by a contractor on individuals employed by 
the contractor on its own behalf for the purpose of providing supplies 
and services to the Federal Government; and
    (ii) Records that--
    (A) Are maintained under contracts with educational institutions to 
provide training;
    (B) Are generated on students working under the contract relative to 
their attendance (admission forms, grade reports, etc.);
    (C) Are similar to those maintained on other students; and
    (D) Are commingled with their records on other students.

               Subpart 1824.2--Freedom of Information Act



Sec. 1824.203  Policy. (NASA supplements paragraphs (a) and (b))

    (a) For NASA implementation of the Freedom of Information Act, see 
Availability of Agency Records to Members of the Public (14 CFR part 
1206).
    (b) When receiving any Freedom of Information Act request from the 
public, the contracting officer shall immediately refer the request to 
the Freedom of Information Act Officer, NASA Information Center, or 
other responsible point of contact as set forth in installation 
procedures.

[61 FR 55758, Oct. 29, 1996. Redesignated at 62 FR 36713, July 9, 1997]

                      PART 1825 FOREIGN ACQUISITION

Sec.

Sec. 1825.003  Definitions.

Sec. 1825.003-70  NASA definitions.

[[Page 285]]

                Subpart 1825.1 Buy American Act--Supplies


Sec. 1825.103  Exceptions.

                     Subpart 1825.4 Trade Agreements


Sec. 1825.400  Scope of subpart.

                    Subpart 1825.9 Customs and Duties


Sec. 1825.901  Policy.

Sec. 1825.903  Exempted supplies.

       Subpart 1825.10 Additional Foreign Acquisition Regulations


Sec. 1825.1001  Waiver of right to examination of records.

Sec. 1825.1002  Use of foreign currency.

      Subpart 1825.11 Solicitation Provisions and Contract Clauses


Sec. 1825.1101  Acquisition of supplies.

Sec. 1825.1103  Other provisions and clauses.

Sec. 1825.1103-70  Export control.

 Subpart 1825.70 Foreign Contract and International Agreement Clearances


Sec. 1825.7000  Scope of subpart.

Sec. 1825.7001  Definition.

Sec. 1825.7002  Foreign Contracts.

Sec. 1825.7003  International Agreements.

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

    Source: 65 FR 10031, Feb. 25, 2000, unless otherwise noted.



Sec. 1825.003  Definitions.



Sec. 1825.003-70  NASA definitions.

    ``Canadian end product'', for 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 25.003 applies.

               Subpart 1825.1-- Buy American Act--Supplies



Sec. 1825.103  Exceptions.

    (a)(i) The procurement officer must send proposed public interest 
determinations to the Assistant Administrator for Procurement (Code HS) 
for approval.
    (ii) The Assistant 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 1825.003-70. Accordingly, contracting 
officers must evaluate all offers for such Canadian end products on a 
parity with offers for domestic end products, except that applicable 
duty (whether or not a duty free entry certificate may be issued) must 
be included in evaluating offers for Canadian end products.

                    Subpart 1825.4--Trade Agreements



Sec. 1825.400  Scope of subpart.

    (b) The Buy American Act applies to all acquisitions of Japanese end 
products or services in excess of $2,500.

[65 FR 10031, Feb. 25, 2000, as amended at 67 FR 50824, Aug. 6, 2002]

                   Subpart 1825.9--Customs and Duties



Sec. 1825.901  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 part 1217.

[[Page 286]]



Sec. 1825.903  Exempted supplies.

    (a) Through delegation from the Assistant Administrator for 
Procurement, procurement officers are authorized to certify duty free 
entry for articles imported into the United States, if those articles 
are procured by NASA or by 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. Procurement officers shall complete the 
certification set forth in 14 CFR 1217.104(a) or 1217.104(c) (http://
www.access.gpo.gov/nara/cfr/cfr-retrieve.htmlpage1). Upon 
arrival of foreign supplies at a port of entry, the consignee, generally 
the commercial carrier or its agent (import broker), will file Customs 
Form 7501, Entry Summary. This form is available from Service Ports 
(http://www.customs.ustreas.gov/location/ports/index.htm) or from NASA 
Headquarters' forms library (https://extranet.hq.nasa.gov/nef/user/
form--search.cfm). All duty-free certificates must be coordinated with 
the center Chief Counsel. Procurement officers must maintain a record of 
each certification and make this record available for periodic review by 
NASA Headquarters and the U.S. Customs Service.

[65 FR 45306, July 21, 2000]

       Subpart 1825.10--Additional Foreign Acquisition Regulations



Sec. 1825.1001  Waiver of right to examination of records.

    (b) The Administrator is the approval authority for waivers. The 
contracting officer must submit the waiver request, consisting of the 
determination and findings prescribed in FAR 25.1001(b) and any relevant 
supporting information, to the Headquarters Office of Procurement (Code 
HS).



Sec. 1825.1002  Use of foreign currency.

    (a) 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 1825.11--Solicitation Provisions and Contract Clauses



Sec. 1825.1101  Acquisition of supplies.

    (e) The contracting officer must add paragraph (k) as set forth in 
1852.225-8, Duty-Free Entry of Space Articles, 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 subpart 25.9 and 1825.903.



Sec. 1825.1103  Other provisions and clauses.



Sec. 1825.1103-70  Export control.

    (a) Background. (1) NASA contractors and subcontractors are subject 
to U.S. export control laws and regulations, including the International 
Traffic in Arms Regulations (ITAR), 22 CFR parts 120 through 130, and 
the Export Administration Regulations (EAR), 15 CFR parts 730 through 
799. The contractor is responsible for obtaining the appropriate 
licenses or other approvals from the Department of State or the 
Department of Commerce when it exports hardware, technical data, or 
software, or provides technical assistance to a foreign destination or 
``foreign person'', as defined in 22 CFR 120.16, and there are no 
applicable or available exemptions/exceptions to the ITAR/EAR, 
respectively. A person who is lawfully admitted for permanent residence 
in the United States is not a ``foreign person''. (See 22 CFR 120.16 and 
15 CFR 734.2(b)(2)(ii))
    (2) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a 
contractor may export technical data without a license if the contract 
between the agency and the exporter provides for the export of the data. 
The clause at 1852.225-70, Alternate I, provides contractual authority 
for the exemption, but the exemption is available only after the 
contracting officer, or designated representative, provides written 
authorization or direction enabling its use. It is NASA policy that the 
exemption at 22 CFR 125.4(b)(3) may only be used when technical data 
(including software) is exchanged with a NASA foreign partner pursuant 
to

[[Page 287]]

the terms of an international agreement in furtherance of an 
international collaborative effort. The contracting officer must obtain 
the approval of the Center Export Administrator before granting the 
contractor the authority to use this exemption.
    (b) Contract clause. Insert the clause at 1852.225-70, Export 
Licenses, in all solicitations and contracts, except in contracts with 
foreign entities. Insert the clause with its Alternate I when the NASA 
project office indicates that technical data (including software) is to 
be exchanged by the contractor with a NASA foreign partner pursuant to 
an international agreement.

Subpart 1825.70--Foreign Contract and International Agreement Clearances



Sec. 1825.7000  Scope of subpart.

    This subpart prescribes policy and procedures for pre-award 
clearance of foreign contracts, and for coordination of international 
agreements that contemplate award of contracts using appropriated funds.



Sec. 1825.7001  Definition.

    Foreign contract acquisition, as used in this subpart, means the 
acquisition by negotiation of supplies or services, including 
construction 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 contracts with domestic concerns involving work 
to be performed outside the United States, its possessions, and Puerto 
Rico; or
    (b) Contracts with the Canadian Commercial Corporation.



Sec. 1825.7002  Foreign contracts.

    (a) Policy. Following the procedure in paragraph (b) of this 
section, the Acquisition Team must coordinate with Headquarters before 
initiating any foreign contract acquisition if the acquisition is valued 
above $100,000 or involves export control issues. An acquisition 
involves export control issues if it entails--
    (1) Importing or exporting goods or technical data from or to a 
country listed in 22 CFR 126.1(a) or 126.1(d) (Subchapter M, the 
International Traffic in Arms Regulations) (http://www.pmdtc.org/
itar2.htm);
    (2) Importing or exporting Defense Articles or Defense Services on 
the United States Munitions List at 22 CFR part 121 which would 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 774 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 740, Supplement 1, Country Group D; 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) Procedure. (1) The Headquarters or field installation technical 
office requiring a foreign contract acquisition meeting any of the 
criteria listed in paragraph (a) of this section must submit the 
following information to the Headquarters Office of External Relations 
(Code I) through the contracting officer and the Headquarters Office of 
Procurement (Code HS)--
    (i) The name of the foreign entity, the country or countries 
involved, and the purpose of the contract;
    (ii) The Space Act agreement(s) involved, if any;
    (iii) 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
    (iv) The reason why the acquisition is being placed with a foreign 
entity.
    (2) All coordination required between NASA and the Departments of 
Commerce, State, and Treasury regarding foreign contract acquisitions 
shall be accomplished through the Headquarters Office of External 
Relations (Code I).
    (3) The lead-time for obtaining an export license is 60 to 90 days. 
Requests

[[Page 288]]

for Headquarters clearance should be initiated as early as possible.



Sec. 1825.7003  International agreements.

    Office of Procurement (Code HS) concurrence is required for all 
Memoranda of Understanding with foreign entities and for other types of 
international agreements which contemplate the procurement of goods or 
services using U.S. appropriated funds. No Code H concurrence is 
required for agreements which are done solely on a cooperative basis.

[[Page 289]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                PART 1827--PATENTS, DATA, AND COPYRIGHTS

Sec.

Sec. 1827.000  Scope of part.

        Subpart 1827.3--Patent Rights Under Government Contracts


Sec. 1827.301  Definitions.

Sec. 1827.302  Policy.

Sec. 1827.303  Contract clauses.

Sec. 1827.303-70  NASA solicitation provisions and contract clauses.

Sec. 1827.304  Procedures.

Sec. 1827.304-1  General.

Sec. 1827.304-2  Contracts placed by or for other Government agencies.

Sec. 1827.304-3  Contracts for construction work or architect-engineer 
          services.

Sec. 1827.304-4  Subcontracts.

Sec. 1827.304-5  Appeals.

Sec. 1827.305  Administration of the patent rights clauses.

Sec. 1827.305-3  Follow-up by Government.

Sec. 1827.305-370  NASA patent rights and new technology follow-up 
          procedures.

Sec. 1827.305-371  New technology reporting plan.

Sec. 1827.305-4  Conveyance of invention rights acquired by the 
          Government.

              Subpart 1827.4--Rights in Data and Copyrights


Sec. 1827.404  Basic rights in data clause.

Sec. 1827.405  Other data rights provisions.

Sec. 1827.406  Acquisition of data.

Sec. 1827.406-70  Reports of work.

Sec. 1827.408  Cosponsored research and development activities.

Sec. 1827.409  Solicitation provisions and contract clauses.

Sec. 1827.409-70  NASA contract clause.

   Subpart 1827.6--Foreign License and Technical Assistance Agreements


Sec. 1827.670  Space Station technical data and goods.

Sec. 1827.670-1  Policy.

Sec. 1827.670-2  Contract clause.

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

    Source: 62 FR 36715, July 9, 1997, unless otherwise noted.



Sec. 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



Sec. 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 under any NASA contract or 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. Reportable items include, but are not 
limited to, new processes, machines, manufactures, and compositions of 
matter, and improvements to, or new applications of, existing processes, 
machines, manufactures, and compositions of matter. Reportable items 
also include new computer programs, and improvements to, or new 
applications of, existing computer programs, whether or not 
copyrightable or otherwise protectible under Title 17 of the United 
States Code.
    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

[[Page 290]]

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.).

[62 FR 36715, July 9, 1997, as amended at 62 FR 58688, Oct. 30, 1997; 63 
FR 63209, Nov. 12, 1998]



Sec. 1827.302  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.

[[Page 291]]

    (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 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.



Sec. 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.
    (5) Alternate IV to 52.227-11 is not used in NASA contracts. See 
instead 1827.303-70(a).
    (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.

[62 FR 36715, July 9, 1997, as amended at 64 FR 36606, July 7, 1999]



Sec. 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

[[Page 292]]

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 paragraphs (b)(1) through (5) of this section.
    (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.)

[62 FR 36715, July 9, 1997, as amended at 62 FR 58688, Oct. 30, 1997]



Sec. 1827.304  Procedures.



Sec. 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)

[[Page 293]]

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 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.



Sec. 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)).



Sec. 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).



Sec. 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.



Sec. 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.



Sec. 1827.305  Administration of the patent rights clauses.



Sec. 1827.305-3  Follow-up by Government.



Sec. 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:

[[Page 294]]

    (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 final report by the contractor until receipt of the New Technology 
Representative's certification of compliance, and the Patent 
Representative's concurrence.

[[Page 295]]



Sec. 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.



Sec. 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



Sec. 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

[[Page 296]]

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.
    (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. 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.

[[Page 297]]



Sec. 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.



Sec. 1827.406-70  Reports of work.

    (a) When considered necessary for monitoring contract performance, 
contracting officers must require contractors to furnish reports of work 
performed under research and development contracts (fixed-price and cost 
reimbursement), interagency agreements, 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. The final report must comply with NPG 2200.2A, Guidelines 
for Documentation, Approval, and Dissemination of NASA Scientific and 
Technical Information.
    (4) Report Documentation Page. The final report must include a 
completed Report Documentation Page, Standard Form (SF) 298 as the final 
page of the report.
    (b) The contracting officer must 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) Submission of final report. In addition to the original of the 
final report submitted to the contracting officer, contracts containing 
the clause at 1852.235-70, Center for AeroSpace Information--Final 
Scientific and Technical Reports (see 1835.070(a)), must require the 
concurrent submission of a reproducible copy and a printed or reproduced 
copy of the final report to the NASA Center for AeroSpace Information 
(CASI).
    (d) NASA review of final report. When required by the contract, 
final reports submitted to NASA for review, shall be reviewed for 
technical accuracy, conformance with applicable law, policy and 
publication standards, and to determine the availability and 
distribution of NASA-funded documents containing scientific and 
technical information (STI) (NASA Form 1676, NASA Scientific and 
Technical Document Availability Authorization (DAA)). The final report 
must not be released outside of NASA until NASA's DAA review has been 
completed and the availability of the document has been determined. The 
document is considered available when it is accessible through CASI.

[65 FR 45307, July 21, 2000]



Sec. 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

[[Page 298]]

cosponsored research and development activities.



Sec. 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.
    (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.



Sec. 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



Sec. 1827.670  Space Station technical data and goods.



Sec. 1827.670-1  Policy.

    NASA and its contractors shall comply will all applicable export 
control

[[Page 299]]

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.



Sec. 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 1828--BONDS AND INSURANCE

                          Subpart 1828.1--Bonds

Sec.

Sec. 1828.101  Bid guarantees.

Sec. 1828.101-70  NASA solicitation provision.

Sec. 1828.103  Performance and payment bonds and alternative payment 
          protections for other than construction contracts.

Sec. 1828.103-70  Subcontractors performing construction work under 
          nonconstruction contracts.

Sec. 1828.103-71  Solicitation requirements and contract clauses.

Sec. 1828.106  Administration.

Sec. 1828.106-6  Furnishing information.

                        Subpart 1828.2--Sureties


Sec. 1828.202  Acceptability of corporate sureties.

Sec. 1828.203  Acceptability of individual sureties.

                        Subpart 1828.3--Insurance


Sec. 1828.307  Insurance under cost-reimbursement contracts.

Sec. 1828.307-1  Group insurance plans.

Sec. 1828.307-2  Liability.

Sec. 1828.307-70  Insurance of industrial facilities.

Sec. 1828.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 1828.311-1  Contract clause.

Sec. 1828.311-2  Agency solicitation provisions and contract clauses.

Sec. 1828.311-270  NASA solicitation provisions and contract clauses.

Sec. 1828.370  Fixed-price contract clauses.

Sec. 1828.371  Clauses for cross-waivers of liability for Space Shuttle 
          services, Expendable Launch Vehicle (ELV) launches, and Space 
          Station activities.

Sec. 1828.372  Clause for minimum insurance coverage.

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

    Source: 61 FR 55765, Oct. 29, 1996, unless otherwise noted.

                          Subpart 1828.1--Bonds



Sec. 1828.101  Bid guarantees.



Sec. 1828.101-70  NASA solicitation provision.

    The contracting officer shall insert the provision at 1852.228-73, 
Bid Bond, in construction solicitations where offers are expected to 
exceed $100,000 and a performance bond or a performance and payment bond 
is required (see FAR 28.102 and 28.103). The contracting officer may 
increase the amount of the bid bond to protect the Government from loss, 
as long as the amount does not exceed $3 million.



Sec. 1828.103  Performance and payment bonds and alternative payment 
          protections for other than construction contracts.



Sec. 1828.103-70  Subcontractors performing construction work under 
          nonconstruction contracts.

    (a) The contracting officer shall require prime contractors on 
nonconstruction contracts to obtain the following performance and/or 
payment protection from subcontractors performing construction work:
    (1) Performance and payment bonds when the subcontract construction

[[Page 300]]

work is in excess of $1000,000 and is determined by NASA to be subject 
to the Miller Act.
    (2) An appropriate payment protection determined according to FAR 
28.102-1(b)(1) when the subcontract construction work is greater than 
$25,000 but not greater than $100,000.
    (b) The contracting officer shall establish the penal amount in 
accordance with FAR 28.102-2 based on the subcontract value.
    (c) The bonds shall be provided on SF 25, Performance Bond, and SF 
25A, Payment Bond. These forms shall be modified to name the NASA prime 
contractor as well as the United States of America as obligees.



Sec. 1828.103-71  Solicitation requirements and contract clauses.

    When performance and payment bonds or alternative payment 
protections are required from subcontractors performing construction 
work under nonconstruction prime contracts, the contracting officer 
shall follow the procedures in FAR 28.102-3. When alternative payment 
protections are required, insert a clause substantially the same as FAR 
52.228-13, Alternative Payment Protections, appropriately modified.



Sec. 1828.106  Administration.



Sec. 1828.106-6  Furnishing information. (NASA supplements paragraph 
          (c))

    (c) The contracting officer is the agency head's designee.

                        Subpart 1828.2--Sureties



Sec. 1828.202  Acceptability of corporate sureties. (NASA supplements 
          paragraph (d))

    (d) Contracting officers may obtain access to Department of Treasury 
Circular 570 through the internet at http://www.ustreas.gov/treasury/
bureaus/finman/c570.html.



Sec. 1828.203  Acceptability of individual sureties. (NASA supplements 
          paragraph (g))

    (g) Notification of suspected criminal or fraudulent activities, 
with all supporting documentation, shall be submitted to the 
Headquarters Office of Procurement (Code HS).

                        Subpart 1828.3--Insurance



Sec. 1828.307  Insurance under cost-reimbursement contracts.



Sec. 1828.307-1  Group insurance plans. (NASA supplements paragraph (a))

    (a) The procurement officer is the approval authority.



Sec. 1828.307-2  Liability. (NASA supplements paragraph (b))

    (b)(2)(A) The procurement officer may approve a requirement for 
property damage liability insurance when:
    (a) A commingling of operations permits property damage coverage at 
a nominal cost to NASA under insurance carried by the contractor in the 
course of its commercial operations; or
    (b) The contractor is engaged in the handling of high explosives or 
in extra hazardous research and development activities undertaken in 
populated areas.
    (B) In all other circumstances, the Assistant Administrator for 
Procurement (Code HS) is the approval authority.



Sec. 1828.307-70   Insurance of industrial facilities.

    When industrial facilities are provided by the Government under a 
facilities contract or a lease, the contract or lease shall require that 
during the period of construction, installation, alteration, repair, or 
use, and at any other time as directed by the contracting officer, the 
contractor or lessee shall ensure or otherwise provide approved security 
for liabilities to third persons (including employees of the contractor 
or lessee) in the manner and to the same extent as required in FAR 
28.307-2.



Sec. 1828.311   Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.



Sec. 1828.311-1  Contract clause.

    The contracting officer must insert the clause at FAR 52.228-7, 
Insurance--Liability to Third Persons, as prescribed in FAR 28.311-1, 
unless--

[[Page 301]]

    (a) Waived by the procurement officer; or
    (b) The successful offeror represents in its offer that it is 
totally immune from tort liability as a State agency or as a charitable 
institution.

[65 FR 54440, Sept. 8, 2000]



Sec. 1828.311-2  Agency solicitation provisions and contract clauses.



Sec. 1828.311-270  NASA solicitation provisions and contract clauses.

    (a) The contracting officer must insert the clause at 1852.228-71, 
Aircraft Flight Risks, in all cost-reimbursement contracts for the 
development, production, modification, maintenance, or overhaul of 
aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except when the aircraft are covered by a separate bailment.
    (b) The contracting officer must insert the provision at 1852.228-
80, Insurance--Immunity from Tort Liability, in solicitations for 
research and development when a cost-reimbursement contract is 
contemplated.
    (c) The contracting officer must insert FAR clause 52.228-7 and the 
associated clause at 1852.228-81, Insurance--Partial Immunity From Tort 
Liability, when the successful offeror represents in its offer that the 
offeror is partially immune from tort liability as a State agency or as 
a charitable institution.
    (d) The contracting officer must insert the clause at 1852.228-82, 
Insurance--Total Immunity From Tort Liability, when the successful 
offeror represents in its offer that the offeror is totally immune from 
tort liability as a State agency or as a charitable institution.

[65 FR 54440, Sept. 8, 2000]



Sec. 1828.370   Fixed-price contract clauses.

    (a) The contracting officer shall insert the clause at 1852.228-70, 
Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts 
for the development, production, modification, maintenance, or overhaul 
of aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except as provided in paragraph (b) of this section, unless 
the aircraft are covered by a separate bailment. See the clause preface 
for directions for modifying the clause to accommodate various 
circumstances.
    (b) The Government need not assume the risk of aircraft damage, 
loss, or destruction as provided by the clause at 1852.228-70 if the 
best estimate of premium costs that would be included in the contract 
price for insurance coverage for such damage, loss, or destruction at 
any plant or facility is less than $500. If it is determined not to 
assume this risk, the clause at 1852.228-70 shall not be made a part of 
the contract, and the cost of necessary insurance to be obtained by the 
contractor to cover this risk shall be considered in establishing the 
contract price. In such cases, however, if performance of the contract 
is expected to involve the flight of Government-furnished aircraft, the 
substance of the clause at 1852.228-71, Aircraft Flight Risks, suitably 
adapted for use in a fixed-price contract, shall be used.
    (c) When the clause at 1852.228-70 is used, the term ``Contractor's 
premises'' shall be expressly defined in the contract Schedule and shall 
be limited to places where aircraft may be located during the 
performance of the contract. Contractor's premises may include, but are 
not limited to, those owned or leased by the contractor or those for 
which the contractor has a permit, license, or other right of use either 
exclusively or jointly with others, including Government airfields.



Sec. 1828.371   Clauses for cross-waivers of liability for Space Shuttle 
          services, Expendable Launch Vehicle (ELV) launches, and Space 
          Station activities.

    (a) In agreements covering Space Shuttle services, certain ELV 
launches, and Space Station activities, NASA and other signatories (the 
parties) agree not to bring claims against each other for any damage to 
property or for injury or death of employees that occurs during the time 
such a cross-waiver is in effect. These agreements involving NASA and 
other parties include, but are not limited to, Memoranda of 
Understanding with foreign Governments, Launch Services Agreements, and 
other agreements for the use of NASA facilities. These agreements 
require the parties to flow

[[Page 302]]

down the cross-waiver provisions to their related entities so that 
contractors, subcontractors, customers, and other users of each party 
also waive their right to bring claims against other parties and their 
similarly related entities for damages arising out of activities 
conducted under the agreements. The purpose of the clauses prescribed in 
this section is to flow down the cross-waivers to NASA contractors and 
subcontractors.
    (b) The contracting officer shall insert the clause 1852.228-72, 
Cross-waiver of Liability for Space Shuttle Services, in solicitations 
and contracts of $100,000 or more when the work to be performed involves 
``Protected Space Operations'' (applicable to the Space Shuttle) as that 
term is defined in the clause. If Space Shuttle services under the 
contract are being conducted in support of the Space Station program, 
the contracting officer shall insert the clause prescribed by paragraph 
(d) of this section and designate application of the clause to those 
particular activities.
    (c) The contracting officer shall insert the clause at 1852.228-78, 
Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) 
Launches, in solicitations and contracts of $100,000 or more for the 
acquisition of ELV launch services when the service is being acquired by 
NASA pursuant to an agreement described in paragraph (a) of this 
section. If, under a contract that covers multiple launches, only some 
of the launches are for payloads provided pursuant to such agreements, 
an additional clause shall be inserted in the contract to designate the 
particular launches to which this clause applies. If a payload is being 
launched by use of an ELV in support of the Space Station program, the 
contracting officer shall insert the clause prescribed by paragraph (d) 
of this section and designate application of the clause to that 
particular launch.
    (d) The contracting officer shall insert the clause at 1852.228-76, 
Cross-Waiver of Liability for Space Station Activities, in solicitations 
and contracts of $100,000 or more when the work is to be performed 
involves ``Protected Space Operations'' (relating to the Space Station) 
as that term is defined in the clause.
    (e) At the contracting officer's discretion, the clauses prescribed 
by paragraphs (b), (c), and (d) of this section may be used in 
solicitations, contracts, new work modifications, or extensions, to 
existing contracts under $100,000 involving Space Shuttle activities, 
ELV launch services, or Space Station activities, respectively, in 
appropriate circumstances. Examples of such circumstances are when the 
value of contractor property on a Government installation used in 
performance of the contract is significant, or when it is likely that 
the contractor or subcontractor will have its valuable property exposed 
to risk or damage caused by other participants in the Space Shuttle 
services, ELV launches, or Space Station activities.



Sec. 1828.372  Clause for minimum insurance coverage.

    In accordance with FAR 28.306(b) and 28.307, the contracting officer 
may insert a clause substantially as stated at 1852.228-75, Minimum 
Insurance Coverage, in fixed-price solicitations and in cost-
reimbursement contracts. The contracting officer may modify the clause 
to require additional coverage, such as vessel liability, and higher 
limits if appropriate for a particular acquisition.

                            PART 1829--TAXES

                         Subpart 1829.1--General

Sec.

Sec. 1829.101  Resolving tax problems.

                   Subpart 1829.2 Federal Excise Taxes


Sec. 1829.203  Other Federal tax exemptions.

Sec. 1829.203-70  NASA Federal tax exemptions.

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

    Source: 61 FR 55767, Oct. 29, 1996, unless otherwise noted.

                         Subpart 1829.1--General



Sec. 1829.101  Resolving tax problems. (NASA supplements paragraph (a))

    (a)(i) The Headquarters Office of the General Counsel (Code G) is 
the designated legal counsel for all external

[[Page 303]]

contacts on FAR part 29 tax issues, including communications with the 
Department of Justice, other Federal agencies, and any taxing authority.
    (ii) Tax problems that cannot be solved readily by reference to FAR 
Part 29 shall be forwarded to Code G through the installation's Office 
of Chief Counsel. The following material, as applicable, shall be 
forwarded to Code G with a copy to the Assistant Administrator for 
Procurement (Code HS):
    (A) A comprehensive statement of pertinent facts, including 
documents and correspondence.
    (B) A copy of the contract.
    (C) A thorough review of the legal issues involved and recommended 
action.
    (D) If appropriate, a statement of the problem's effects on 
acquisition policies and procedures, with recommendations.

                  Subpart 1829.2--Federal Excise Taxes



Sec. 1829.203  Other Federal tax exemptions.



Sec. 1829.203.70  NASA Federal tax exemptions.

    (a) The Assistant Administrator for Procurement has obtained a 
permit from the Bureau of Alcohol, Tobacco, and Firearms (Treasury 
Department) enabling NASA and its contractors to purchase spirits (e.g., 
specially denatured spirits) tax-free for nonbeverage Government use. 
Installations can obtain copies of the permit from the Headquarters 
Office of Procurement (Code HS).
    (b) When purchasing spirits for use by NASA personnel, the 
contracting officer shall attach a copy of the permit to the contract. 
Upon receipt of the spirits, the permit shall be returned to the 
contracting officer unless future orders are anticipated.
    (c) When a NASA contractor requires spirits to perform a NASA 
contract, the contracting officer shall furnish the contractor a copy of 
the permit to provide its vendor. Upon receipt of the spirits, the 
contractor shall return the permit to the contracting officer unless 
future orders are anticipated. In any event, the permit shall be 
returned upon completion of the contract.
    (d) The contracting officer shall post a copy of the permit for 
inspection.

           PART 1830--COST ACCOUNTING STANDARDS ADMINISTRATION

                Subpart 1830.2--CAS Program Requirements

Sec.

Sec. 1830.201-5  Waiver.

 Subpart 1830.70--Facilities Capital Employed for Facilities in Use and 
                    For Facilities Under Construction


Sec. 1830.7001  Facilities capital employed for facilities in use.

Sec. 1830.7001-1  Contract facilities capital estimates.

Sec. 1830.7001-2  DD Form 1861 completion instructions.

Sec. 1830.7001-3  Preaward FCCOM applications.

Sec. 1830.7001-4  Postaward FCCOM applications.

Sec. 1830.7002  Facilities capital employed for facilities under 
          construction.

Sec. 1830.7002-1  Definitions.

Sec. 1830.7002-2  Cost of money calculations.

Sec. 1830.7002-3  Representative investment calculations.

Sec. 1830.7002-4  Determining imputed cost of money.

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

    Source: 61 FR 55767, Oct. 29, 1996, unless otherwise noted.

                Subpart 1830.2--CAS Program Requirements



Sec. 1830.201-5  Waiver. (NASA supplements paragraphs (a) and (e))

    (a)(2) The Assistant Administrator for Procurement is the only 
individual authorized to approve CAS waivers. Requests for waivers that 
meet the conditions in FAR 30.201-5(b) must be submitted to the 
Headquarters Office of Procurement (Code HK) at least 30 days before the 
anticipated contract award date.
    (e) The Assistant Administrator for Procurement will submit NASA's 
report to the CAS Board.

[65 FR 49206, Aug. 11, 2000]

[[Page 304]]



Sec. 1830.7001   Facilities capital employed for facilities in use.



Sec. 1830.7001-1   Contract facilities capital estimates.

    To estimate facilities capital cost of money (FCCOM), the 
contracting officer shall use DD Form 1861, Contract Facilities Capital 
Cost of Money, after evaluating the contractor's cost proposal, 
establishing cost of money factors, and developing a prenegotiation cost 
objective.



Sec. 1830.7001-2   DD For 1861 completion instructions.

    (a) List overhead pools and direct-charging services centers (if 
used) in the same structure as they appear on the contractor's cost 
proposal and Form CASB-CMF. The structure and allocation base units-of-
measure must be compatible on all three displays.
    (b) Extract appropriate contract overhead allocation base data, by 
year, from the evaluated cost breakdown or prenegotiation cost 
objective, and list them against each overhead pool and direct-charging 
service center.
    (c) Multiply each allocation base by its corresponding cost of money 
factor to compute the FCCOM estimated to be incurred each year. The sum 
of these products represents the estimated contract FCCOM for the year's 
effort.
    (d) Add the yearly estimates to calculate the total contract FCCOM.



Sec. 1830.7001-3   Preaward FCCOM applications.

    Apply FCCOM in establishing cost and price objectives as follows:
    (a) Cost objective. Us the FCCOM with normal, booked costs in 
establishing a cost objective or the target cost of an incentive type 
contract. Do not subsequently adjust these target costs when actual cost 
of money rates become available during the contract performance period.
    (b) Profit/fee objective. Do not include FCCOM in the cost base when 
establishing a prenegotiation profit/fee objective. Use only normal, 
booked costs in this cost base.



Sec. 1830.7001-4  Postaward FCCOM applications.

    (a) Interim billings based on costs incurred. (1) The contractor may 
include FCCOM in cost reimbursement and progress payment invoices. To 
determine the amount that qualifies as cost incurred, multiply the 
incurred portions of the overhead pool allocation bases by the latest 
available cost of money factors. These FCCOM calculations are interim 
estimates subject to adjustment.
    (2) As actual cost of money factors are finalized, use the new 
factors to calculate FCCOM for the next accounting period.
    (b) Final settlements. (1) Contract FCCOM for final cost 
determination or repricing is based on each year's final cost of money 
factors determined under CAS 414 and supported by separate Forms CASB-
CMF.
    (2) Separately compute contract FCCOM in a manner similar to yearly 
final overhead rates. As in overhead rates, include in the final 
settlement an adjustment from interim to final contract FCCOM. Do not 
adjust the contract estimated or target cost.



Sec. 1830.7002  Facilities capital employed for facilities under 
          construction.



Sec. 1830.7002-1  Definitions.

    (a) Cost of money rate is either--
    (1) The interest rate determined by the Secretary of the Treasury 
under Public Law 92-41 (85 Stat. 97); or
    (2) The time-weighted average of such rates for each cost accounting 
period during which the capital asset is being constructed, fabricated, 
or developed.
    (b) Representative investment is the calculated amount considered 
invested by the contractor during the cost accounting period to 
construct, fabricate, or develop the capital asset.



Sec. 1830.7002-2  Cost of money calculations.

    (a) The interest rate referenced in 1830.7002-1(a)(1) is established 
semi-annually and published in the Federal Register during the fourth 
week of December and June.

[[Page 305]]

    (b) To calculate the time-weighted average interest rate referenced 
in 1830.7002-1(a)(2), multiply the rates in effect during the months of 
construction by the number of months each rate was in effect, and then 
divide the sum of the products by the total number of months.



Sec. 1830.7002-3  Representative investment calculations.

    (a) The calculation of the representative investment requires 
consideration of the rate or expenditure pattern of the costs to 
construct, fabricate, or develop a capital asset.
    (b) If the majority of the costs were incurred toward the beginning, 
middle, or end of the cost accounting period, the contractor shall 
either:
    (1) Determine a representative investment for the cost accounting 
period by calculating the average of the month-end balances for that 
cost accounting period; or
    (2) Treat month-end balances as individual representative 
investments.
    (c) If the costs were incurred in a fairly uniform expenditure 
pattern throughout the construction, fabrication, or development period, 
the contractor may either:
    (1) Determine a representative investment for the cost accounting 
period by averaging the beginning and ending balances of the 
construction, fabrication, or development cost account for the cost 
accounting period; or
    (2) Treat month-end balances as individual representative 
investments.
    (d) The method chosen by the contractor to determine the 
representative investment amount may be different for each capital asset 
being constructed, fabricated, or developed, provided the method fits 
the expenditure pattern of the costs incurred.



Sec. 1830.7002-4  Determining imputed cost of money.

    (a) Determine the imputed cost of money for an asset under 
construction, fabrication, or development by applying a cost of money 
rate (see 1830.7002-2) to the representative investment (see 1830.7002-
3).
    (1) When a representative investment is determined for a cost 
accounting period in accordance with 1830.7002-3(b)(1) or 1830.7002-
3(c)(1), the cost of money rate shall be the time-weighted average rate.
    (2) When a monthly representative investment is used in accordance 
with 1830.7002-3(b)(2) or 1830.7002-3(c)(2), the cost of money rate 
shall be that in effect each month. Under this method, the FCCOM is 
determined monthly, and the total for the cost accounting period is the 
sum of the monthly calculations.
    (b) The imputed cost of money will be capitalized only once in any 
cost accounting period, either at the end of the accounting period or 
the end of the construction, fabrication, or development period, 
whichever comes first.
    (c) When the construction, fabrication, or development of an asset 
takes more than one accounting period, the cost of money capitalized for 
the first accounting period will be included in determining the 
representative investment for any future cost accounting periods.

           PART 1831--CONTRACT COST PRINCIPLES AND PROCEDURES

         Subpart 1831.2--Contracts With Commercial Organizations

Sec.

Sec. 1831.205  Selected costs.

Sec. 1831.205-32  Precontract costs.

Sec. 1831.205-70  Contract clause.

Sec. 1831.205-670  Evaluation of contractor and subcontractor 
          compensation for service contracts.

Sec. 1831.205-671  Solicitation provision.

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

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.

         Subpart 1831.2--Contracts with Commercial Organizations



Sec. 1831.205  Selected costs.



Sec. 1831.205-32  Precontract costs.

    (1) Precontract costs are applicable only to--
    (i) Sole source awards, except those resulting in firm-fixed price 
or fixed-price with economic price adjustment contracts; or

[[Page 306]]

    (ii) Awards resulting from broad agency announcements.
    (2) The procurement officer is the approval authority for the use of 
precontract costs. Authorization shall be in writing and must address 
the following:
    (i) The necessity for the contractor to initiate work prior to 
contract award;
    (ii) The start date of such contractor effort;
    (iii) The total estimated time of the advanced effort; and
    (iv) The cost limitation.
    (3) Authorization to incur precontract costs must be provided to the 
contractor in writing and must include the following:
    (i) The start date for incurrence of such costs;
    (ii) The limitation on the total amount of precontract costs which 
may be incurred;
    (iii) A statement that the costs are allowable only to the extent 
they would have been if incurred after formal contract award; and
    (iv) A statement that the Government is under no obligation to 
reimburse the contractor for any costs unless a contract is awarded.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 38777, June 22, 2000; 
65 FR 46628, July 31, 2000]



Sec. 1831.205-70  Contract clause.

    The contracting officer must insert the clause at 1852.231-70, 
Precontract Costs, in contracts for which specific coverage of 
precontract costs is authorized under 1831.205-32.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 46628, July 31, 2000]



Sec. 1831.205-670  Evaluation of contractor and subcontractor 
          compensation for service contracts.

    (a) The contracting officer must evaluate the reasonableness of 
compensation for service contracts:
    (1) Prior to the award of a cost reimbursement or non-competitive 
fixed-price type contract which has a total potential value in excess of 
$500,000, and
    (2) Periodically after award for cost reimbursement contracts, but 
at least every three years.
    (b) The contracting officer must ensure the reasonableness of 
compensation is evaluated for cost reimbursement or non-competitive 
fixed-price type service subcontracts under a prime contract meeting the 
criteria in paragraph (a)(1) of this section where:
    (1) The subcontract has a total potential value in excess of 
$500,000; and
    (2) The cumulative value of all of a subcontractor's service 
subcontracts under the prime contract is in excess of 10 percent of the 
prime contract's total potential value.
    (c)(1) Offerors must be required to submit as part of their 
proposals a compensation plan addressing all proposed labor categories. 
Offerors also shall demonstrate in writing that their proposed 
compensation is reasonable.
    (2) Subcontractors meeting the criteria in paragraph (b) of this 
section must be required to comply with paragraph (c)(1).
    (d) The contracting officer's preaward evaluation of each offeror's 
and their subcontractors' compensation should be done as part of, or in 
addition to DCAA audits, price analyses, or any other means deemed to be 
necessary.
    (e) The results of the contracting officer's evaluation, including 
any excessive compensation found and its planned resolution, must be 
addressed in the prenegotiation position memorandum, with the final 
resolution discussed in the price negotiation memorandum.
    (f) The contracting officer must ensure that the reasonableness of 
compensation for cost reimbursement subcontracts meeting the criteria in 
paragraphs (b) (1) and (2) of this section is periodically reviewed 
after award, but at least every three years.
    (g) The results of the periodic evaluations of contractor and 
subcontractor compensation after contract award must be documented in 
the contract file.

[62 FR 4467, Jan. 30, 1997, as amended at 65 FR 46628, July 31, 2000]



Sec. 1831.205-671  Solicitation provision.

    The contracting officer must insert a provision substantially the 
same as the provision at 1852.231-71, Determination of Compensation, in 
solicitations for

[[Page 307]]

services which contemplate the award of a cost reimbursement or non-
competitive fixed-price type service contract having a total potential 
value in excess of $500,000.

[62 FR 4467, Jan. 30, 1997, as amended at 65 FR 46628, July 31, 2000]

                      PART 1832--CONTRACT FINANCING

Sec.

Sec. 1832.006-2  Definition.

Sec. 1832.007  Contract financing payments.

         Subpart 1832.1--Non-Commercial Item Purchase Financing


Sec. 1832.111  Contract clauses for non-commercial purchases.

Sec. 1832.111-70  NASA contract clause.

           Subpart 1832.2--Commercial Item Purchase Financing


Sec. 1832.202-1  Policy.

Sec. 1832.206  Solicitation provisions and contract clauses.

        Subpart 1832.4--Advance Payments For Non-Commercial Items


Sec. 1832.402  General.

Sec. 1832.406  Letters of credit.

Sec. 1832.407  Interest.

Sec. 1832.409  Contracting officer action.

Sec. 1832.409-1  Recommendation for approval.

Sec. 1832.409-170  NASA procedure for approval.

Sec. 1832.410  Findings, determination, and authorization.

Sec. 1832.412  Contract clause.

Sec. 1832.412-70  NASA Contract clauses.

            Subpart 1832.5--Progress Payments Based on Costs


Sec. 1832.501  General.

Sec. 1832.501-1  Customary progress payment rates.

Sec. 1832.501-2  Unusual progress payments.

Sec. 1832.502  Preaward matters.

Sec. 1832.502-2  Contract finance office clearance.

Sec. 1832.502-4  Contract clauses.

Sec. 1832.502-470  NASA contract clause.

Sec. 1832.503  Postaward matters.

Sec. 1832.503-5  Administration of progress payments.

Sec. 1832.504  Subcontracts.

                    Subpart 1832.7--Contract Funding


Sec. 1832.702  Policy.

Sec. 1832.702-70  NASA policy.

Sec. 1832.704  Limitation of cost or funds.

Sec. 1832.704-70  Incrementally funded fixed-price contracts.

Sec. 1832.705  Contract clauses.

Sec. 1832.705-2  Clauses for limitation of cost or funds.

Sec. 1832.705-270  NASA clauses for limitation of cost or funds.

                     Subpart 1832.9--Prompt Payment


Sec. 1832.908  Contract clauses.

               Subpart 1832.10--Performance-Based Payments


Sec. 1832.1001  Policy.

Sec. 1832.1004  Procedures.

Sec. 1832.1005  Contract clauses.

Sec. 1832.1009  Title.

               Subpart 1832.11--Electronic Funds Transfer


Sec. 1832.1110  Solicitation provision and contract clauses.

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

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.



Sec. 1832.006-2  Definition.

    The Assistant Administrator for Procurement is the Agency remedy 
coordination official.



Sec. 1832.007  Contract financing payments.

    (a)(1) Except as authorized in 1832.908, it is NASA's policy to make 
contract financing payments on the 30th day after the designated billing 
office has received a proper request. However, the due date for making 
contract financing payments for a specific contract may be earlier than 
the 30th day, but not earlier than 7 days, after the designated billing 
office has received a proper request, provided that:
    (i) The contractor provides consideration whose value is determined 
to be greater than the cost to the United States Treasury of interest on 
funds paid prior to the 30th day, calculated using the Current Value of 
Funds Rate published annually in the Federal Register (subject to 
quarterly revision);
    (ii) The contracting officer approves the payment date change, with 
the concurrence of the installation Financial Management Officer; and
    (iii) The contract file includes documentation regarding the value 
of the

[[Page 308]]

consideration and the analysis determining that value.

[67 FR 30604, May 7, 2002]

         Subpart 1832.1--Non-Commercial Item Purchase Financing



Sec. 1832.111  Contract clauses for non-commercial purchases.



Sec. 1832.111-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.232-79, 
Payment for On-Site Preparatory Costs, in solicitations and contracts 
for construction on a fixed-price basis when progress payments are 
contemplated and pro rata payment of on-site preparatory costs to the 
contractor is appropriate.

           Subpart 1832.2--Commercial Item Purchase Financing



Sec. 1832.202-1  Policy. (NASA supplements paragraph (b))

    (b)(6) Advance payment limitations do not apply to expendable launch 
vehicle (ELV) service contracts. (see 1832.402).



Sec. 1832.206  Solicitation provisions and contract clauses. (NASA 
          supplements paragraph (g))

    (g)(2) The installment payment rate shall be that which is common in 
the commercial marketplace for the purchased item. If there is no 
commonly used rate, the contracting officer shall determine the 
appropriate rate. In no case shall the rate exceed that established in 
the clause at FAR 52.232-30.

        Subpart 1832.4--Advance Payments for Non-Commercial Items



Sec. 1832.402  General. (NASA supplements paragraph (e))

    (e)(1) The Director of the Headquarters Office of Procurement 
Contract Management Division (Code HK) is the approval authority for all 
advance payments except the following:
    (A) The procurement officer is the approval authority for non-fee 
bearing contracts with domestic entities when the cumulative contract 
value is $25,000,000 or less, and for all increases to such contracts 
over $25,000,000 previously approved by the Headquarters Office of 
Procurement as long as the advance payment amount outstanding at any 
time is not increased.
    (B) The contracting officer is the approval authority for the 
following actions. In these cases, a findings and determination (see FAR 
32.410) is not required.
    (a) Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Phase I contracts. A class deviation has been 
signed authorizing use of advance payments on these contracts. The 
contracting officer shall annotate the contract file that the deviation 
is on file at the NASA Headquarters Office of Procurement (Code HK).
    (b) Expendable launch vehicle (ELV) service contracts. 42 U.S.C. 
2459c authorizes advance payments for these contracts. The contracting 
officer shall document the contract file with the rationale for 
approving the use of advance payments.
    (e)(2) All advance payment authorization requests, except those 
authorized by 1832.402(e)(1)(B), shall be coordinated with the 
installation Deputy Chief Financial Officer.

[61 FR 55768, Oct. 29, 1996, as amended at 63 FR 14040, Mar. 24, 1998; 
66 FR 29728, June 1, 2001]



Sec. 1832.406  Letters of credit. (NASA supplements paragraph (b))

    (b)(1) Each installation is considered a contracting agency for the 
purposes of this requirement.



Sec. 1832.407  Interest. (NASA supplements paragraph (d))

    (d)(1) Advance payments without interest are authorized.



Sec. 1832.409  Contracting officer action.



Sec. 1832.409-1  Recommendation for approval.



Sec. 1832.409-170  NASA procedure for approval.

    In addition to the items listed in FAR 32.409-1, requests for 
Headquarters approval of advance payments (see 1832.402(e)(1)) shall 
include the following information:

[[Page 309]]

    (a) Name of the cognizant NASA Headquarters program or staff office;
    (b) Name and phone number of the contracting officer or negotiator;
    (c) A copy of the proposed advance payments clause;
    (d) If a profit/fee is contemplated, the factors considered in 
determining the profit/fee (see subpart 1815.404-470);
    (e) Information justifying the adequacy of security to cover the 
maximum advance payment amount at any time outstanding.

[61 FR 55769, Oct. 29, 1996, as amended at 62 FR 36721, July 9, 1997; 63 
FR 9967, Feb. 27, 1998]



Sec. 1832.410  Findings, determination, and authorization. (NASA 
          supplements paragraph (b))

    (b) Generally, the format in FAR 32.410 should be used, tailored as 
follows:
    (i) In format subparagraph (a)(2), use the phrase ``Advance payments 
(In an amount not to exceed $* * * at any time outstanding)'' in all 
determinations and findings. The phrase means the maximum unliquidated 
dollar amount a contractor would need in advance payments at any point 
in time for the particular contract. The amount would not usually be the 
full contract value. The amount inserted should be based on an analysis 
of the contractor's financing needs (monthly or other appropriate 
period) for the specific contract involved.
    (ii) In the second sentence of format subparagraph (a)(4), delete 
the reference to a special financial institution account if no special 
financial institution account is required.
    (iii) Use format subparagraph (a)(6), and not (a)(7) or (a)(8).
    (iv) At the end of format paragraph (b), use ``is in the public 
interest.''
    (v) In format paragraph (c), use the phrase ``(the amount at any 
time outstanding)'' in all determinations and findings.

[61 FR 55768, Oct. 29, 1996, as amended at 66 FR 53547, Oct. 23, 2001]



Sec. 1832.412  Contract clause. (NASA supplement paragraphs (e) and (f))

    (e) The contracting officer shall use Alternates IV and V when 
advance payments are provided on Phase I contracts of the Small Business 
Innovation Research (SBIR) or Small Business Technology Transfer (STTR) 
programs.
    (f) See 1832.412(e).

[63 FR 14040, Mar. 24, 1998]



Sec. 1832.412-70  NASA Contract clauses.

    When the clause at FAR 52.232-12 or its Alternates II or V are used, 
insert the clause at 1852.232-70, NASA Modification of FAR 52.232-12.

[63 FR 14040, Mar. 24, 1998]

            Subpart 1832.5--Progress Payments Based on Costs



Sec. 1832.501  General.



Sec. 1832.501-1  Customary progress payment rates. (NASA supplements 
          paragraph (a))

    (a) The customary progress payment rate for all NASA contracts is 85 
percent for large business, 90 percent for small business, 95 percent 
for small disadvantaged business, and 100 percent for Phase II contracts 
in the Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) programs. The contracting officer shall 
insert the applicable percentage in paragraphs (a) and (b) of the clause 
at FAR 52.232-16.



Sec. 1832.501-2  Unusual progress payments.

    The Director of the Headquarters Office of Procurement Contract 
Management Division (Code HK) is the approval authority for the use of 
unusual progress payments.

[63 FR 14040, Mar. 24, 1998]



Sec. 1832.502  Preaward matters.



Sec. 1832.502-2  Contract finance office clearance.

    The Director of the Headquarters Office of Procurement Contract 
Management Division (Code HK) is the approval authority for the actions 
at FAR 32.502-2, except the Assistant Administrator for Procurement 
(Code HK) is the approval authority for any deviations addressed in FAR 
32.502-2(b).

[63 FR 14040, Mar. 24, 1998]

[[Page 310]]



Sec. 1832.502-4  Contract clauses.



Sec. 1832.502-470  NASA contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.232-82, Submission of Requests for Progress Payments, in fixed-
price solicitations and contracts that provide for progress payments. 
The recipient of the requests and number of copies may be changed as 
required.



Sec. 1832.503  Postaward matters.



Sec. 1832.503-5  Administration of progress payments. (NASA supplements 
          paragraph (c).)

    (c)(i) If the contractor requests it and the contracting officer 
approving individual progress payments agrees, the administration of 
progress payments may be based on the overall contract agreement. Under 
this method, the contractor must include a supporting schedule with each 
request for a progress payment. The schedule should identify the costs 
applicable to each order.
    (ii) The contracting officer may treat a group of orders as a single 
unit for administration of progress payments if each order in the group 
is subject to a uniform liquidation rate and under the jurisdiction of 
the same payment office.

[65 FR 31102, May 16, 2000]



Sec. 1832.504  Subcontracts. (NASA supplements paragraph (c))

    (c) Unusual progress payments to subcontractors shall be approved in 
accordance with 1832.501-2.

                    Subpart 1832.7--Contract Funding



Sec. 1832.702  Policy.



Sec. 1832.702-70  NASA policy.

    (a) Cost-reimbursement contracts may be incrementally funded only if 
all the following conditions are met:
    (1) The total value of the contract (including options as defined in 
FAR Subpart 17.2) is--
    (i) $500,000 or more for R&D contracts under which no supplies are 
deliverable; or
    (ii) $1,000,000 or more for all other contracts.
    (2) The period of performance exceeds one year.
    (3) The funds are not available to fund the total contract value 
fully at award.
    (4) Initial funding of the contract is $100,000 or more.
    (b) Fixed-price contracts, other than those for research and 
development, shall not be incrementally funded.
    (c)(1) Fixed-price contracts for research and development may be 
incrementally funded if the conditions of 1832.702-70(a)(1) through (4) 
are met and the initial funding of the contract is at least 50 percent 
of the total fixed price.
    (2) Incrementally funded fixed-price contracts shall be fully funded 
as soon as adequate funding becomes available.
    (d) Except for a modification issued to fully fund a contract, 
incremental funding modifications shall not be issued for amounts 
totaling less than $25,000.
    (e) Except for a modification issued to close out a contract, 
modifications deobligating funds shall not be issued for amounts 
totaling less than $25,000.
    (f) The procurement officer, with the concurrence of the 
installation Comptroller, may waive any of the conditions set forth in 
paragraphs 1832.702-70(a) through (e). The procurement officer shall 
maintain a record of all such approvals during the fiscal year.
    (g) A class deviation from the conditions set forth in paragraphs 
1832.702-70(a) through (e) exists to permit incremental funding of 
contracts under Phase II of the Small Business Innovation Research 
(SBIR) and Small Business Technology Transfer (STTR) programs. This 
deviation exists with the understanding that the contracts will be fully 
funded when funds become available.

[67 FR 7619, Feb. 20, 2002]



Sec. 1832.704  Limitation of cost or funds.



Sec. 1832.704-70  Incrementally funded fixed-price contracts.

    (a) Upon receipt of the contractor's notice under paragraph (c)(1) 
of the clause at 1852.232-77, Limitation of Funds (Fixed Price 
Contract), the contracting officer shall promptly provide written notice 
to the contractor that the Government is--

[[Page 311]]

    (1) Allotting additional funds in a specified amount for continued 
performance;
    (2) Terminating the contract; or
    (3) Considering whether to allot additional funds; and
    (i) The contractor is entitled to stop work in accordance with 
paragraph (b) of the clause at 1852.232-77, Limitation of Funds; and
    (ii) Any costs expended beyond the amount specified in paragraph (a) 
of the clause at 1852.232-77, Limitation of Funds, are incurred at the 
contractor's risk.
    (b) Upon determining that the contract will receive no further 
funds, the contracting officer shall promptly give notice of the 
Government's decision and terminate for the convenience of the 
Government.



Sec. 1832.705  Contract clauses.



Sec. 1832.705-2  Clauses for limitation of cost or funds.



Sec. 1832.705-270  NASA clauses for limitation of cost or funds.

    (a) The contracting officer shall insert the clause at 1852.232-77, 
Limitation of Funds (Fixed-Price Contract), in solicitations and 
contracts for fixed-price incrementally funded research and development.
    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.232-81, Contract Funding, in Section B of solicitations 
and contracts containing the clause at FAR 52.232-22, Limitation of 
Funds. Insert the amounts of funds available for payment, the items 
covered, and the applicable period of performance. The amount obligated 
for fee in paragraph (b) of the clause should always be sufficient to 
pay fee anticipated to be earned for the work funded by the amount in 
paragraph (a) of the clause.

                     Subpart 1832.9--Prompt Payment



Sec. 1832.908  Contract clauses. (NASA supplements paragraph (c).)

    (c)(2) When the clause at FAR 52.232-25, Prompt Payment, is used in 
such contracts with the Canadian Commercial Corporation (CCC), insert 
``17th'' in lieu of ``30th'' in paragraphs (a)(1)(i)(A), (a)(1)(i)(B), 
and (a)(1)(ii).

[64 FR 5621, Feb. 4, 1999, as amended at 67 FR 30604, May 7, 2002]

               Subpart 1832.10--Performance-Based Payments



Sec. 1832.1001  Policy.

    (a)(i) In determining whether performance-based payments are 
practical in competitive negotiated acquisitions, the contracting 
officer should consider the procedural impacts (e.g., proposal 
evaluation complications, longer evaluations, elimination of the 
potential for award without discussions, increased proposal information 
requirements) and the impact on small business competitiveness.
    (ii) The contracting officer must obtain approval from the Director 
of the Headquarters Office of Procurement Contract Management Division 
(Code HK) to use performance-based payments in competitive negotiated 
solicitations under $50M. The request for approval must include an 
assessment of the practicality of using performance-based payments, as 
well as the proposed performance-based payments evaluation approach (see 
1832.1004(e)(1)(ii)).

[65 FR 31102, May 16, 2000]



Sec. 1832.1004  Procedures.

    (a) See 1815.201(c)(6)(E) for establishing performance bases and 
payment terms in competitive negotiated acquisitions.
    (e)(1)(ii) Use of the price adjustment evaluation technique may 
require obtaining and analyzing proposal information that is normally 
not required in NASA firm-fixed-price competitions (see 1815.403-3). 
When using performance-based payments in competitive negotiated 
acquisitions under $50 million, contracting officers should consider the 
use of alternative evaluation methods, e.g., qualitative evaluation 
under Mission Suitability or another appropriate factor.

[65 FR 31103, May 16, 2000]

[[Page 312]]



Sec. 1832.1005   Contract clauses. (NASA supplements paragraph (a))

    (a) If the contract is for launch services, the contracting officer 
shall delete paragraph (f) of the clause at FAR 52.232-32 in accordance 
with 1832.1009.
    (b)(2) Contracting officers shall not use Alternate I in competitive 
negotiated acquisitions under $50 million, unless approval has been 
obtained to use performance-based payments (see 1832.1001(a)(ii)).

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 31103, May 16, 2000]



Sec. 1832.1009   Title.

    In accordance with 42 U.S.C. 2465d, NASA shall not take title to 
launch vehicles under contracts for launch services unless one of the 
exceptions in the law applies. However, the law does not eliminate 
NASA's right to take title to other property acquired or produced by the 
contractor under a contract containing a title provision.

               Subpart 1832.11--Electronic Funds Transfer



Sec. 1832.1110  Solicitation provision and contract clauses. (NASA 
          supplements paragraphs (a), (b), and (c)).

    (a)(1) NASA does not use the Central Contractor Registration. Use 
the clause at FAR 52.232-34, Payment by Electronic Funds Transfer--Other 
than Central Contractor Registration.
    (b) In accordance with FAR 32.1106(b), the use of a nondomestic EFT 
mechanism is authorized. When a nondomestic EFT mechanism is used, the 
contracting officer shall replace the paragraph at FAR 52.232-34(c) with 
a description of the EFT mechanism that will be used for the contract.
    (c) The payment office shall be the designated office for receipt of 
contractor EFT information for all NASA contracts.

[64 FR 18373, Apr. 14, 1999]

               PART 1833--PROTESTS, DISPUTES, AND APPEALS

                        Subpart 1833.1--Protests

Sec.

Sec. 1833.103  Protests to the agency.

Sec. 1833.104  Protest to GAO.

Sec. 1833.106  Solicitation provision and contract clause.

Sec. 1833.106-70  Solicitation provision.

                  Subpart 1833.2--Disputes and Appeals


Sec. 1833.209  Suspected fraudulent claims.

Sec. 1833.210  Contracting officer's authority.

Sec. 1833.211  Contracting officer's decision.

Sec. 1833.215  Contract clause.

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

    Source: 61 FR 55771, Oct. 29, 1996, unless otherwise noted.

                        Subpart 1833.1--Protests



Sec. 1833.103  Protests to the agency. (NASA supplements paragraphs (c), 
          (d) and (f).)

    (c) An independent review under the provision at 1852.233-70 is 
available as an alternative to a protest to the contracting officer, but 
not as an appeal of a protest decision. All independent reviews shall be 
conducted by the Associate Administrator for Procurement or designee. 
Such reviews are different from the Ombudsman Program described at 
1815.7001.
    (d) NASA shall summarily dismiss and take no further action upon any 
protest to the Agency if the substance of the protest is pending in 
judicial proceedings or the protester has filed a protest on the same 
acquisition with the United States GeneralAccounting Office prior to 
receipt of an Agency protest decision.
    (4) When a potential bidder or offeror submits an Agency protest to 
NASA to the contracting officer or alternatively requests an independent 
review, the decision of the contracting officer or the independent 
review official shall be final and is not subject to any appeal or 
reconsideration within NASA.
    (f) Protests received at NASA offices or locations other than that 
of the cognizant contracting officer shall be immediately referred to 
the contracting officer for disposition (see 1833.106(a)). The 
contracting officer shall advise the Headquarters Offices of Procurement 
(Code HS) and the General Counsel (Code GK) of the receipt of the 
protest and the planned and actual disposition. This paragraph does not 
apply when

[[Page 313]]

the protester has requested an independent review under the provision at 
1852.233-70.
    (1) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for contract award.
    (3) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for authorizing continued contract performance.

[62 FR 11108, Mar. 11, 1997, as amended at 64 FR 36607, July 7, 1999; 67 
FR 61519, Oct. 1, 2002]



Sec. 1833.104   Protests to GAO. (NASA supplements paragraphs (a), (b), 
          (c), and (f))

    The Assistant Administrator for Procurement is the sole authority 
for deciding whether to defend a protest to GAO or to direct remedial 
action. NASA personnel shall take no action to respond to or resolve any 
protest filed with GAO other than in accordance with this part and other 
guidance provided by NASA Headquarters.
    (a)(2) The Headquarters Office of Procurement (Code HS) shall notify 
the contracting officer of protest receipt, and the contracting officer 
shall immediately give notice of the protest to all interested parties. 
Oral contracting officer notices shall be subsequently confirmed in 
writing, and the contracting officer shall also send a copy of the 
written confirmation to Code HS, the Headquarters Office of the General 
Counsel (Code GK), and the installation Chief Counsel.
    (3)(i) The contracting officer shall send four copies of the protest 
report, consisting of the protest file, the contracting officer's 
statement of facts, and a draft memorandum of law to Code GK within 20 
days after GAO notification of protest receipt. Also include a copy of 
the file index in electronic format. The contracting officer shall 
retain a minimum of two copies of the protest file.
    (ii) When an actual or prospective offeror requests access to a 
protest file, the contracting officer shall take the following actions, 
except the actions defined in paragraph (a)(3)(ii) (a) and (b) are not 
required if already accomplished:
    (a) Send a copy of the protest file index to Code GK within 10 days 
of receipt of the request.
    (b) Send a copy of the protest file to Code GK within 15 days of 
receipt of the request.
    (c) With Code GK concurrence, send the protest file and index to the 
requesting party to ensure delivery within 20 days after receipt of the 
request.
    (iv) Code GK shall submit the protest file to GAO.
    (4)(i) Code GK shall provide copies of the report to the 
protestor(s), any intervenors, and the installation Chief Counsel.
    (b)(1) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for contract award.
    (c)(1) The contracting officer shall consult Code HS before 
terminating a protested contract.
    (2) The Assistant Administrator for Procurement (Code HS) is the 
appproval authority for authorizing contract performance.
    (f) The Agency may request GAO reconsideration of its decision 
within 10 days of issuance. If reconsideration is appropriate, the 
installation Chief Counsel shall forward a draft request for 
reconsideration, with any additional supporting documentation, to Code 
GK within 6 days of issuance of the GAO decision.

[61 FR 55771, Oct. 29, 1996, as amended at 63 FR 32763, June 16, 1998; 
64 FR 5621, Feb. 4, 1999]



Sec. 1833.106  Solicitation provision and contract clause. (NASA 
          supplements paragraph (a))

    (a) The contracting officer shall be the designated recipient of 
Agency protests in paragraph (a) of the provision at FAR 52.233-2.



Sec. 1833.106-70  Solicitation provision.

    Contracting officers shall insert the provision at 1852.233-70 in 
all solicitations.

[62 FR 11108, Mar. 11, 1997]

[[Page 314]]

                  Subpart 1833.2--Disputes and Appeals



Sec. 1833.209  Suspected fraudulent claims.

    The contracting officer shall report suspected fraudulent claims to 
the Headquarters Officers of Inspector General (Code W) and the General 
Counsel (Code G).



Sec. 1833.210  Contracting officer's authority.

    See NASA Policy Directive 2010.2 on use of Alternative Dispute 
Resolution.

[63 FR 14041, Mar. 24, 1998]



Sec. 1833.211  Contracting officer's decision. (NASA supplements 
          paragraph (a))

    (a)(4)(v) The Armed Services Board of Contract Appeals is the NASA 
Administrator's authorized representative for hearing appeals of 
contracting officer final decisions. Accordingly, contracting officers 
shall cite that fact in the final decision letter, provide the Board's 
mailing address (Armed Services Board of Contract Appeals, Skyline Six, 
5109 Leesburg Pike, Falls Church, VA 22041-3208), and include a 
notification that the Board's operating procedures appear in Title 48, 
Code of Federal Regulations, Chapter 2, Appendix A.



Sec. 1833.215  Contract clause.

    The contracting officer shall use the clause at FAR 52.233-1, 
Disputes, with its Alternate I whenever continued performance is vital 
to national security, the public health and welfare, important agency 
programs, or other essential supplies or services whose timely 
reprocurement from other sources would be impracticable.

[[Page 315]]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

                   PART 1834--MAJOR SYSTEM ACQUISITION

                         Subpart 1834.0--General

Sec.

Sec. 1834.003  Responsibilities.

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

    Source: 62 FR 4467, Jan. 30, 1997, unless otherwise noted.

                         Subpart 1834.0--General



Sec. 1834.003  Responsibilities.

    (a) NASA's implementation of OMB Circular No. A-109, Major System 
Acquisition, and FAR Part 34 is contained in this part and in NASA 
Policy Directive (NPD) 7120.4, ``Program/Project Management,'' and NASA 
Procedures and Guidelines (NPG) 7120.5, `` NASA Program and Project 
Management Processes and Requirements''.

[65 FR 58932, Oct. 3, 2000]

             PART 1835--RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 1835.003  Policy.

Sec. 1835.015  Contracts for research with educational institutions and 
          nonprofit organizations.

Sec. 1835.016  Broad agency announcements.

Sec. 1835.016-70  Foreign participation under broad agency announcements 
          (BAAs).

Sec. 1835.016-71  NASA Research Announcements.

Sec. 1835.016-72  Foreign participation in NRA proposals.

Sec. 1835.070  NASA contract clauses and solicitation provision.

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

    Source: 62 FR 4469, Jan. 30, 1997, unless otherwise noted.



Sec. 1835.003  Policy.

    See NPG 5800.1, Grant and Cooperative Agreement Handbook, for policy 
regarding the use of grants and cooperative agreements.



Sec. 1835.015  Contracts for research with educational institutions and 
          nonprofit organizations. (NASA supplements paragraph (a))

    (a)(1)(iv) The research contract shall include a requirement that 
the contractor obtain the contracting officer's approval when it plans 
to continue the research work during a continuous period in excess of 3 
months without the participation of an approved principal investigator 
or project leader.



Sec. 1835.016  Broad agency announcements. (NASA supplements paragraphs 
          (a) and (c))

    (a)(i) The following forms of broad agency announcements (BAAs) are 
authorized for use:
    (A) Announcements of Opportunity (see 1872).
    (B) NASA Research Announcements (see 1835.016-71).
    (C) Other forms of announcements approved by the Assistant 
Administrator for Procurement (Code HS).
    (ii) Other program announcements, notices, and letters not 
authorized by paragraph (a)(i) of this section shall not be used to 
solicit proposals that may result in contracts.
    (iii) Draft or final versions of any form of BAA that directly or 
substantially supports a program subject to NASA Procedures and 
Guidelines (NPG) 7120.5 shall not be released unless--
    (A) All applicable NPG 7120.5 required documentation (see 
1804.7301(b)(2)(i)) is current and has been approved (e.g., Formulation 
Authorization Document, Program Commitment Agreement, Program Plan, or 
Project Plan); or
    (B) Authority to proceed without the required documentation has been 
granted by the Chair of the Governing Program Management Council or 
designee.
    (c) BAAs may not preclude the participation of any offeror capable 
of satisfying the Government's needs unless a justification for other 
than full and

[[Page 316]]

open competition is approved under FAR 6.304.

[62 FR 4469, Jan. 30, 1997, as amended at 64 FR 14641, Mar. 26, 1999; 64 
FR 48561, Sept. 7, 1999]



Sec. 1835.016-70  Foreign participation under broad agency announcements 
          (BAAs).

    (a) Policy. (1) NASA seeks the broadest participation in response to 
broad agency announcements, including foreign proposals or proposals 
including foreign participation. NASA's policy is to conduct research 
with foreign entities on a cooperative, no-exchange-of-funds basis (see 
NPD 1360.2, Initiation and Development of International Cooperation in 
Space and Aeronautics Programs). NASA does not normally fund foreign 
research proposals or foreign research efforts that are part of U.S. 
research proposals. Rather, cooperative research efforts are implemented 
via international agreements between NASA and the sponsoring foreign 
agency or funding/sponsoring institution under which the parties agree 
to each bear the cost of discharging their respective responsibilities.
    (2) In accordance with the National Space Transportation Policy, use 
of a non-U.S. manufactured launch vehicle is permitted only on a no-
exchange-of-funds basis.
    (3) NASA funding may not be used for subcontracted foreign research 
efforts. The direct purchase of supplies and/or services, which do not 
constitute research, from non-U.S. sources by U.S. award recipients is 
permitted.
    (b) Procedure. When a foreign proposal or a U.S. proposal with 
foreign participation is received in response to a BAA, the NASA 
sponsoring office shall determine whether the proposal conforms to the 
no-exchange-of-funds policy in 1835.016-70(a).
    (1) If the proposal conforms to the policy in 1835.016-70(a), the 
NASA sponsoring office shall evaluate the proposal and make selection in 
accordance with 1835.016-71(d). In conjunction with the notification of 
successful foreign proposers, the NASA sponsoring office shall notify 
the Headquarters Office of External Relations, Code I. Code I will 
negotiate the agreement with the sponsoring foreign agency or funding 
institution for the proposed participation.
    (2) If the proposal does not conform to the policy in 1835.016-
70(a), the NASA sponsoring office shall:
    (i) Determine whether the proposal merits further consideration;
    (ii) If further consideration is warranted, refer the proposal to 
Code I; and
    (iii) Complete the evaluation of the proposal. However, no 
notification of selection, whether tentative or final, shall be made 
without Code I approval.
    (3) Notification to Code I required by paragraphs (b)(1) and 
(b)(2)(ii) of this section, shall address the items contained in 
1872.504(c), and shall be coordinated through the Office of Procurement, 
Code HS.

[64 FR 48561, Sept. 7, 1999]



Sec. 1835.016-71  NASA Research Announcements.

    (a) Scope. An NRA is used to announce research interests in support 
of NASA's programs, and, after peer or scientific review using factors 
in the NRA, select proposals for funding. Unlike an RFP containing a 
statement of work or specification to which offerors are to respond, an 
NRA provides for the submission of competitive project ideas, conceived 
by the offerors, in one or more program areas of interest. An NRA shall 
not be used when the requirement is sufficiently defined to specify an 
end product or service.
    (b) Issuance. (1) Before issuance, each field-generated NRA shall be 
approved by the installation director or designee, with the concurrence 
of the procurement officer, and each Headquarters-generated NRA shall be 
approved by the cognizant Program Associate Administrator or designee, 
with the concurrence of the Headquarters Offices of General Counsel 
(Code GK) and Procurement (Code HS). In addition, the issuing office 
shall obtain input from the cognizant offices responsible for matters of 
safety and mission assurance, occupational health, environmental 
protection, information technology, export control, and security. Input 
shall also be obtained from the appropriate systems safety organization 
for NRA's that may involve potentially hazardous operations such as

[[Page 317]]

those related to flight and/or mission critical ground systems. The NRA 
approval authority shall designate the selection official.
    (2) The selecting official shall assure that the NRA is synopsized 
prior to issuance in accordance with FAR 5.201. The synopsis shall be 
brief, and the technical section describing the area of interest should 
not exceed 50 words.
    (3) If a Headquarters-generated NRA may result in awards by a NASA 
field installation, the issuing office shall notify the installation 
procurement officer and provide a copy of the NRA.
    (4) The selecting official is responsible for the preparation and 
distribution of the NRA.
    (5) NRAs normally shall remain open for at least 90 days.
    (c) Content. The NRA shall consist of the following sections and 
items. The entire package shall be provided in response to requests.
    (1) Cover. The cover shall display:
    (i) ``OMB Approval Number 2700-0087'' in the upper right corner.
    (ii) Title.
    (iii) ``NASA Research Announcement Soliciting Research Proposals for 
the Period Ending
    (iv) NRA number.
    (v) Official address for the office issuing the NRA.
    (2) Summary and Supplemental Information. (i) The Summary and 
Supplemental Information should not exceed two pages and shall include:
    (A) Title and NRA number.
    (B) The following statement concerning safety:

    ``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. NASA's safety priority is to 
protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including employees working under NASA award instruments), 
and (4) high-value equipment and property.

    (C) Introductory paragraphs describing the purpose of the NRA and 
the period for receipt of proposals.
    (D) Address for submitting proposals.
    (E) Number of copies required.
    (F) Selecting official's title.
    (G) Names, addresses, and telephone numbers for the technical and 
contracting points of contact.
    (H) The following statement when the NRA is to be issued before 
funds are available:

    Funds are not currently available for awards under this NRA. The 
Government's obligation to make award(s) is contingent upon the 
availability of appropriated funds from which payment can be made and 
the receipt of proposals that NASA determines are acceptable for award 
under this NRA.

    (ii) The Summary and Supplemental Information may include estimates 
of the amount of funds that will be available and the number of 
anticipated awards. A breakdown of the estimates by research area may 
also be shown.
    (3) Technical Description. The first page shall contain the NRA 
number and title at the top. A brief description not exceeding two pages 
is preferable, but it should be detailed enough to enable ready 
comprehension of the research areas of interest. Specifications 
containing detailed statements of work should be avoided. Any program 
management information included must be limited to matters that are 
essential for proposal preparation.
    (4) Instructions for Responding to NASA Research Announcements. The 
NRA shall contain instructions as stated in 1852.235-72 (see 
1835.070(c)).
    (d) Receipt of proposals, evaluation, and selection. (1) Proposals 
shall be protected as provided in FAR 15.608, FAR 15.609, and 1815.609-
70.
    (2) Late proposals and modifications shall be treated in accordance 
with 1815.208.
    (3) The selection decision shall be made following peer or 
scientific review of a proposal. Peer or scientific review shall involve 
evaluation by an in-house specialist, a specialist outside NASA, or 
both. Evaluation by specialists outside NASA shall be conducted subject 
to the conditions in 1815.207. After receipt of a proposal and before 
selection, scientific or engineering personnel shall communicate with an 
offeror only for the purpose of clarification (as defined in FAR 
15.306), or to understand the meaning of some aspect of the proposal 
that is not clear, or to obtain confirmation or substantiation of a 
proposed approach, solution, or cost estimate.

[[Page 318]]

    (4) Competitive range determinations shall not be made, and final 
proposal revisions shall not be requested.
    (5) Part of a proposal may be selected unless the offeror requests 
otherwise. In addition, changes to a selected proposal may be sought if 
(i) the ideas or other aspects of the proposal on which selection is 
based are contained in the proposal as originally submitted, and are not 
introduced by the changes; and (ii) the changes sought would not involve 
a material alteration to the requirements stated in the NRA. Changes 
that would affect a proposal's selection shall not be sought. When 
changes are desired, the selecting official may request revisions from 
the offeror or request the contracting officer to implement them during 
negotiations with the successful offeror(s). The changes shall not 
transfer information from one offeror's proposal to another offeror (see 
FAR 15.306(e)). When collaboration between offerors would improve 
proposed research programs, collaboration may be suggested to the 
offerors.
    (6) The basis for selection of a proposal shall be documented in a 
selection statement applying the evaluation factors in the NRA. The 
selection statement represents the conclusions of the selecting official 
and must be self-contained. It shall not incorporate by reference the 
evaluations of the reviewers.
    (7) The selecting official shall notify each offeror whose proposal 
was not selected for award and explain generally why the proposal was 
not selected. If requested, the selecting official shall arrange a 
debriefing under FAR 15.5, with the participation of a contracting 
officer.
    (8) The selecting official shall forward to the contracting officer 
the following information:
    (i) A copy of the NRA (This requirement may be waived in the case of 
a grant award at the discretion of the grant officer);
    (ii) The results of the technical evaluation, including the total 
number of proposals received, the selection statement, and the listing 
of proposal(s) selected for funding (These requirements may be waived in 
the case of a grant award at the discretion of the grant officer if the 
purchase request specifically references the NRA number and states that 
the proposal forwarded for funding was selected under the NRA.);
    (iii) A description of any changes desired in any offeror's 
statement of work, including the reasons for the changes and any effect 
on level of funding;
    (iv) If a contract will be used to fund the proposal, a description 
of deliverables, including technical reports, and delivery dates, 
consistent with the requirements of the NRA;
    (v) A procurement request;
    (vi) Comments on the offeror's cost proposal (either the selecting 
official's comments, which may be based on the reviewer's comments, or 
copies of the reviewers' comments with any different conclusions of the 
selecting official); these comments shall address the need for and 
reasonableness of travel, computer time, materials, equipment, 
subcontracted items, publication costs, labor hours, labor mix, and 
other costs; and
    (vii) A copy of the selected proposal as originally submitted, any 
revisions, and any correspondence from the successful offeror.
    (9) The selecting official may provide to the contracting officer 
copies of the reviewers' evaluations. Reviewers' names and institutions 
may be omitted.
    (10) The selecting official may provide each offeror whose proposal 
was selected for negotiation a notification stating:
    (i) The proposal has been selected for negotiation;
    (ii) The offeror's business office will be contacted by a 
contracting officer, who is the only official authorized to obligate the 
Government; and
    (iii) Any costs incurred by the offeror in anticipation of an award 
are at the offeror's risk.
    (e) Award. The contracting officer shall choose the appropriate 
award instrument. If a contract is selected, the contracting officer 
shall----
    (1) Advise the offeror that the Government contemplates entering 
into negotiations; the type of contract contemplated; and the estimated 
award date, anticipated effort, and delivery schedule;

[[Page 319]]

    (2) Send the offeror a model contract, if necessary, including 
modifications contemplated in the offeror's statement of work, and 
request agreement or identification of any exceptions (the contract 
statement of work may summarize the proposed research, state that the 
research shall be conducted in accordance with certain technical 
sections of the proposal (which shall be identified by incorporating 
them into the contract by reference), and identify any changes to the 
proposed research);
    (3) Request the offeror to complete and return certifications and 
representations and Standard Form 33, Solicitation, Offer, and Award, or 
other appropriate forms. If FAR 52.219-9, Small Business Subcontracting 
Plan, is required for the resultant contract, request the offeror to 
provide a subcontracting plan.
    (4) Conduct negotiations in accordance with FAR subparts 15.3 and 
15.4, as applicable;
    (5) Award a contract; and
    (6) Comply with FAR subparts 4.6 and 5.3 on contract reporting and 
synopses of contract awards.
    (f) Cancellation of an NRA. when program changes, program funding, 
or any other reasons require cancellation of an NRA, the office issuing 
the NRA shall notify potential offerors by using the mailing list of the 
NRA.

[62 FR 4469, Jan. 30, 1997, as amended at 62 FR 14017, Mar. 25, 1997; 63 
FR 9967, Feb. 27, 1998. Redesignated and amended at 64 FR 48561, Sept. 
7, 1999; 65 FR 12485, Mar. 9, 2000; 65 FR 46628, July 31, 2000; 65 FR 
82297, Dec. 28, 2000; 66 FR 53547, Oct. 23, 2001; 67 FR 30604, May 7, 
2002]



Sec. 1835.016-72  Foreign participation in NRA proposals.

    Foreign proposals or U.S. proposals with foreign participation shall 
be treated in accordance with 1835.016-70. Additional guidelines 
applicable to foreign proposers are contained in the provision at 
1852.235-72, Instructions for responding to NASA Research Announcements.

[64 FR 48561, Sept. 7, 1999]



Sec. 1835.070  NASA contract clauses and solicitation provision.

    (a) The contracting officer must insert the clause at 1852.235-70, 
Center for AeroSpace Information--Final Scientific and Technical 
Reports, in all research and development contracts, interagency 
agreements, and in cost-reimbursement supply contracts involving 
research and development work.
    (b) The contracting officer shall insert the clause at 1852.235-71, 
Key Personnel and Facilities, in contracts when source selection has 
been substantially predicated upon the possession by a given offer or of 
special capabilities, as represented by key personnel or facilities.
    (c) The contracting officer shall ensure that the provision at 
1852.235-72, Instructions for Responding to NASA Research Announcements, 
is inserted in all NRAs. The instructions may be supplemented, but only 
to the minimum extent necessary.

[62 FR 4469, Jan. 30, 1997, as amended at 65 FR 45307, July 21, 2000]

        PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

     Subpart 1836.2--Special Aspects of Contracting for Construction

Sec.

Sec. 1836.203  Government estimate of construction costs.

Sec. 1836.209  Construction contracts with architect-engineer firms.

Sec. 1836.213  Special procedures for sealed bidding in construction 
          contracting.

Sec. 1836.213-3  Invitations for bids.

Sec. 1836.213-4  Notice of Award. (NASA supplements paragraph (e))

Sec. 1836.213-370  Additive and deductive items.

                    Subpart 1836.5--Contract Clauses


Sec. 1836.513  Accident prevention.

Sec. 1836.570  NASA solicitation provisions and contract clause.

               Subpart 1836.6--Architect-Engineer Services


Sec. 1836.602  Selection of firms for architect-engineer contracts.

Sec. 1836.602-1  Selection criteria.

Sec. 1836.602-2  Evaluation boards.

Sec. 1836.602-4  Selection authority.

Sec. 1836.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 1836.602-70  Selection of architect-engineers for master planning.

[[Page 320]]


Sec. 1836.603  Collecting data on and appraising firms' qualifications.

Sec. 1836.605  Government cost estimate for architect-engineer work.

    Subpart 1836.7--Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements


Sec. 1836.702  Forms for use in contracting for architect-engineer 
          services.

                       Subpart 1836.70--Partnering


Sec. 1836.7001  Definition.

Sec. 1836.7002  General.

Sec. 1836.7003  Policy.

Sec. 1836.7004  NASA solicitation provision and contract clause.

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

    Source: 62 FR 4471, Jan. 30, 1997, unless otherwise noted.

     Subpart 1836.2--Special Aspects of Contracting for Construction



Sec. 1836.203  Government estimate of construction costs.(NASA 
          supplements paragraph (c))

    (c)(i) If the acquisition is by sealed bidding, the contracting 
officer shall file a sealed copy of the detailed Government estimate 
with the bids until bid opening. After the bids are read and recorded, 
the contracting officer shall read the estimate, and record it in the 
same detail as the bids.
    (ii) If the acquisition is by negotiation, the contracting officer 
may disclose the overall amount of the Government estimate after award 
upon request of offerors.



Sec. 1836.209  Construction contracts with architect-engineer firms.

    (1) Except as indicated in paragraph (2) of this section, the 
Assistant Administrator for Procurement (Code HS) is the approval 
authority.
    (2) A construction contract may be awarded to the firm that designed 
the project (or its subsidiaries or affiliates) if the contract is 
awarded on the basis of performance specifications for the construction 
of a facility, and it requires the contractor to furnish construction 
drawings, specifications, or site adaptation drawings of the facility.
    (3) In no case shall the firm that prepared the drawings and 
specifications supervise and inspect, on behalf of the Government, the 
construction of the facility involved.



Sec. 1836.213  Special procedures for sealed bidding in construction 
          contracting.

[62 FR 36721, July 9, 1997]



Sec. 1836.213-3  Invitations for bids.

[62 FR 36721, July 9, 1997]



Sec. 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).

[62 FR 36721, July 9, 1997]



Sec. 1836.213-370  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.

[62 FR 36721, July 9, 1997. Redesignated at 64 FR 5621, Feb. 4, 1999]

                    Subpart 1836.5--Contract Clauses



Sec. 1836.513  Accident prevention.

    The contracting officer must insert the clause at 1852.223-70, 
Safety and Health, in lieu of FAR clause 52.236-13, Accident Prevention, 
and its Alternate I.

[67 FR 17016, Apr. 9, 2002]

[[Page 321]]



Sec. 1836.570  NASA solicitation provisions and contract clause.

    (a) The contracting officer shall insert the provision at 1852.236-
71, Additive or Deductive Items, in invitations for bids for 
construction when it is desired to add or deduct bid items to meet 
available funding.
    (b) The contracting officer shall insert the provision at 1852.236-
72, Bids with Unit Prices, in invitations for bids for construction when 
the invitation contemplates unit prices of items.
    (c) The contracting officer shall insert the clause at 1852.236-73, 
Hurricane Plan, in solicitations and contracts for construction at sites 
that experience hurricanes.
    (d) The contracting officer shall insert the provision at 1852.236-
74, Magnitude of Requirement, in solicitations for construction. Insert 
the appropriate estimated dollar range in accordance with FAR 36.204.

               Subpart 1836.6--Architect-Engineer Services



Sec. 1836.602  Selection of firms for architect-engineer contracts.



Sec. 1836.602-1  Selection criteria. (NASA supplements paragraph (a))

    (a)(2) The evaluation of specialized experience and technical 
competence shall be limited to the immediately preceding ten years.
    (4) The evaluation of past performance shall be limited to the 
immediately preceding ten years.
    (6) The architect-engineer selection board may also establish 
evaluation criteria regarding the volume of work previously awarded to 
the firm by NASA, with the object of effecting an equitable distribution 
of contracts among qualified architect-engineer firms, including 
minority-owned firms and firms that have not had prior NASA contracts.

[62 FR 4471, Jan. 30, 1997, as amended at 66 FR 53548, Oct. 23, 2001]



Sec. 1836.602-2  Evaluation boards. (NASA supplements paragraph (a))

    (a) Installations shall establish an architect-engineer selection 
board to be composed of the selection authority and at least three 
voting members. Membership shall at least include: one currently 
registered architect or professional engineer, who shall serve as the 
board chairperson; an official from the requiring office; if 
appropriate, a technical official familiar with any unique subject 
matter critical to the requirement; and a procurement official (a 
contracting officer, if feasible) as an ad hoc advisor to the board. 
Where appropriate, the procurement official may serve as a voting 
member. Non-Government employees shall not be appointed as voting 
members.



Sec. 1836.602-4  Selection authority. (NASA supplements paragraph (a))

    (a) The selection authority shall be appointed in accordance with 
installation procedures.



Sec. 1836.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    The procedures at FAR 36.602-5 (a) or (b) may be used at the 
discretion of the selection authority.



Sec. 1836.602-70  Selection of architect-engineers for master planning. 
          (NASA supplements paragraphs (a) and (b))

    (a) Definition of master plan. A master plan is an integrated series 
of documents presenting in graphic, narrative, and tabular form the 
present composition of the installation and the plan for its orderly and 
comprehensive development to perform its various missions in the most 
efficient and economical manner.
    (b) Selection.
    (1) Selection of an Architect-Engineer for the development of a 
master plan in connection with the establishment of a new NASA activity 
or installation shall be made by the Associate Administrator having 
institutional responsibility. The report of the architect-engineer 
selection board will be concurred in at NASA Headquarters by the 
Assistant Administrator for Management Systems, the Assistant 
Administrator for Procurement, the Chief Financial Officer, and the 
General Counsel.
    (2) The Assistant Administrator for Management Systems shall be 
responsible for the architect-engineer selection board report required 
by FAR

[[Page 322]]

36.602-3(d) before presentation to the Associate Administrator having 
institutional responsibility.



Sec. 1836.603  Collecting data on and appraising firms' qualifications.

    The architect-engineer selection boards (see 1836.602-2) are 
designated as NASA's evaluation boards for the purposes of FAR 36.603.



Sec. 1836.605  Government cost estimate for architect-engineer work. 
          (NASA supplements paragraph (b))

    (b) The contracting officer may disclose the overall amount of the 
Government estimate after award upon request of offerors.

    Subpart 1836.7--Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements



Sec. 1836.702  Forms for use in contracting for architect-engineer 
          services. (NASA supplements paragraph (a))

    (a)(i) Instructions for completing Standard Form 252, Architect-
Engineer Contract, are as follows:
    (a) Block 5-Project Title and Location. Include a short description 
of the construction project and the estimated cost of constructing the 
facilities for the project. If the space provided is insufficient, 
include a more detailed description in the contract's specification/work 
statement and identify the location of the more detailed description in 
Block 10.
    (b) Block 6-Contract For (General description of services to be 
provided). Include a brief description of the services and state that 
the are fully set out in the specification/work statement. Clearly 
specify the date by which design services must be completed. If 
supervision and inspection services during construction are to be 
acquired, clearly specify the date by which they must be completed and 
add a statement that the Government may extend the period for their 
performance as provided in the Changes clause of the contract.
    (c) Block 7-Contract Amount. If the contract is for both design and 
supervision and inspection services, set out the amounts for each effort 
separately.
    (ii) The services to be furnished by an architect-engineer should be 
carefully defined during negotiation of the contract and a statement of 
them inserted in the contract's specification/work statement. The 
statement should clearly and concisely set forth the nature and extent 
of the services and include any special services, such as the nature and 
extent of subsurface exploration prior to designing foundations. A 
similar statement of supervision and inspection services should be 
inserted in the specification/work statement if supervision and 
inspection services are to be acquired.

                       Subpart 1836.70--Partnering

    Source: 63 FR 44170, Aug. 18, 1998, unless otherwise noted.



Sec. 1836.7001   Definition.

    Partnering means a relationship of open communication and close 
cooperation that involves both Government and Contractor personnel 
working together for the purpose of establishing a mutually beneficial, 
proactive, cooperative environment within which to achieve contract 
objectives and resolve issues and implementing actions as required.



Sec. 1836.7002   General.

    (a) The establishment of a partnering environment usually leads to 
higher quality products completed more quickly at lower overall costs 
and with fewer accidents and litigation.
    (b) The use of partnering is encouraged as it has been shown to 
reduce the average contract cost and schedule growth and to reduce 
contract claims and litigation.
    (c) Partnering is a voluntary contract relationship within the 
management process that is not to be used to unofficially alter terms of 
the contract.



Sec. 1836.7003  Policy.

    (a) Partnering should be used on a contract when the contracting 
officer, in coordination with the project manager, determines that the 
benefits to be

[[Page 323]]

achieved from its use are expected to be greater than the costs.
    (b) In determining whether the benefits of partnering are greater 
than the costs, the following factors should be considered:
    (1) The estimated dollar value of the contract;
    (2) The complexity of the work to be performed;
    (3) The contemplated length of the contract; and
    (4) The estimated costs to be incurred in conducting the partnership 
development and team building initial and follow-up workshops.



Sec. 1836.7004  NASA solicitation provision and contract clause.

    The contracting officer may insert a clause substantially the same 
as stated at 1852.236-75, Partnering for Construction Contracts, in 
solicitations and contracts for construction, when it has been 
determined in accordance with 1836.7003 that the benefits to be derived 
from partnering exceed the costs.

                     PART 1837--SERVICE CONTRACTING

               Subpart 1837.1--Service Contracts--General

Sec.

Sec. 1837.101  Definitions.

Sec. 1837.104  Personal services contracts.

Sec. 1837.110  Solicitation provisions and contract clauses.

Sec. 1837.110-70  NASA solicitation provision and contract clauses.

Sec. 1837.170  Pension portability.

            Subpart 1837.2--Advisory and Assistance Services


Sec. 1837.203  Policy.

Sec. 1837.204  Guidelines for determining availability of personnel.

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

    Source: 62 FR 4472, Jan. 30, 1997, unless otherwise noted.

               Subpart 1837.1--Service Contracts--General



Sec. 1837.101  Definitions.

    Pension portability means the recognition and continuation in a 
successor service contract of the predecessor service contract 
employees' pension rights and benefits.



Sec. 1837.104  Personal services contracts. (NASA supplements paragraph 
          (b))

    (b) Section 203(c)(9) of the National Aeronautics and Space Act of 
1958 (42 U.S.C. 2473(c)(9)) authorizes NASA ``to obtain services as 
authorized by Section 3109 of Title 5, United States Code.'' It is NASA 
policy to obtain the personal services of experts and consultants by 
appointment rather than by contract. The policies, responsibilities, and 
procedures pertaining to the appointment of experts and consultants are 
in NPG 3300.1, Appointment of Personnel To/From NASA, Chapter 4, 
Employment of Experts and Consultants.

[62 FR 4472, Jan. 30, 1997, as amended at 64 FR 12485, Mar. 9, 2000; 66 
FR 53548, Oct. 23, 2001]



Sec. 1837.110  Solicitation provisions and contract clauses.



Sec. 1837.110-70  NASA solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.237-70, 
Emergency Evacuation Procedures, in solicitations and contracts for on-
site support services where emergency evacuations of the NASA 
installation may occur, e.g., snow, hurricanes, tornadoes, earthquakes, 
or other emergencies.
    (b) The contracting officer shall insert the clause at 1852.237-71, 
Pension Portability, in solicitations, contracts or negotiated contract 
modifications for additional work when the procurement officer makes the 
determination in 1837.170(a)(2).

[62 FR 4472, Jan. 30, 1997, as amended at 62 FR 36721, July 9, 1997; 62 
FR 58688, Oct. 30, 1997]



Sec. 1837.170  Pension portability.

    (a) It is NASA's policy not to require pension portability in 
service contracts. However, pension portability requirements may be 
included in solicitations, contracts, or contract modifications for 
additional work under the following conditions:

[[Page 324]]

    (1)(i) There is a continuing need for the same or similar services 
for a minimum of five years (inclusive of options), and, if the 
contractor changes, a high percentage of the predecessor contractor's 
employees are expected to remain with the program; or
    (ii) The employees under a predecessor contract were covered by a 
portable pension plan, a follow-on contract or a contract consolidating 
existing services is awarded, and the total contract period covered by 
the plan covers a minimum of five years (including both the predecessor 
and successor contracts); and
    (2) The procurement officer determines in writing, with full 
supporting rationale, that such a requirement is in the Government's 
best interest. The procurement officer shall maintain a record of all 
such determinations.
    (b) When pension portability is required, the plan shall comply with 
the requirements of the clause at 1852.237-71, Pension Portability, (see 
1837.110-70(b)), and the contract shall also include a clear description 
of the plan, including service, pay, liabilities, vesting, termination, 
and benefits from prior contracts.

            Subpart 1837.2--Advisory and Assistance Services



Sec. 1837.203  Policy. (NASA supplements paragraph (c))

    (c) Advisory and assistance services of individual experts and 
consultants shall normally be obtained by appointment rather than by 
contract (see NPG 3300.1, Appointment of Personnel To/From NASA, Chapter 
4, Employment of Experts and Consultants).

[62 FR 4472, Jan. 30, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
66 FR 53548, Oct. 23, 2001]



Sec. 1837.204  Guidelines for determining availability of personnel. 
          (NASA supplements paragraphs (a), (b), (c), and (e))

    (a)(i) Outside peer review evaluators may be used to evaluate SBIR, 
STTR, NRA, AO, and unsolicited proposals without making the 
determination of non-availability.
    (ii) For all other actions, the NASA official one level above the 
NASA program official responsible for the evaluation shall make the 
determination, with the concurrence of the legal office. The contracting 
officer shall ensure that a copy of the determination is in the contract 
file prior to issuance of a solicitation.
    (b) The official designated in paragraph (a)(ii) of this section is 
responsible for the actions required in FAR 37.204(b).
    (c) The agreement shall be made by the program official responsible 
for the evaluation and the contracting officer.
    (e) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for class determinations. The class determination 
request shall include the assessment required by FAR 37.204(b).

            PART 1839--ACQUISITION OF INFORMATION TECHNOLOGY

                         Subpart 1829.1--General

Sec.

Sec. 1839.105  Privacy.

Sec. 1839.107  Contract clause.

Sec. 1839.107-70  NASA contract clause.

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

    Source: 62 FR 4473, Jan. 30, 1997, unless otherwise noted.

[[Page 325]]

                         Subpart 1839.1--General



Sec. 1839.105  Privacy.

    See 1804.470.



Sec. 1839.107  Contract clause.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]



Sec. 1839.107-70  NASA contract clause.

    (a)(1) The contracting officer shall insert the clause substantially 
as stated at 1852.239-70, Alternate Delivery Points, in solicitations 
and contracts for information technology when:
    (i) An indefinite delivery/indefinite quantity contract will be used 
or when the contract will include options for additional quantities; and
    (ii) Delivery is F.O.B. destination to the contracting activity.
    (2) When delivery is F.O.B. origin and Government bills of lading 
(GBL) are used, the contracting officer shall use the clause with its 
Alternate I.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]

[[Page 326]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                          PART 1840 [RESERVED]

               PART 1841--ACQUISITION OF UTILITY SERVICES

               Subpart 1841.2--Acquiring Utility Services

Sec.

Sec. 1841.203  GSA assistance.

Sec. 1841.205  Separate contracts.

Sec. 1841.205-70  Authorization for acquisition of wellhead natural gas.

                 Subpart 1841.3--Requests for Assistance


Sec. 1841.301  Requirements.

                     Subpart 1841.4--Administration


Sec. 1841.402  Rate changes and regulatory intervention.

       Subpart 1841.5--Solicitation Provision and Contract Clauses


Sec. 1841.501  Solicitation provision and contract clauses.

Sec. 1841.501-70  NASA contract clause.

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

    Source: 62 FR 4474, Jan. 30, 1997, unless otherwise noted.

               Subpart 1841.2--Acquiring Utility Services



Sec. 1841.203  GSA assistance. (NASA supplements paragraph (a))

    (a) Before soliciting technical assistance, technical personnel 
shall contact the Headquarters Environmental Management Division (Code 
JE).



Sec. 1841.205   Separate contracts.



Sec. 1841.205-70  Authorization for acquisition of wellhead natural gas.

    (a) Acquisition of wellhead natural gas and interstate 
transportation of the natural gas to locally franchised distribution 
utility companies' receipt points (city gate) is considered the 
acquisition of supplies rather than the acquisition of public utility 
services described in FAR Part 41. Therefore, wellhead natural gas and 
interstate transportation of such gas should be obtained directly by 
NASA under applicable authorities and FAR procedures governing the 
acquisition of supplies. Redelivery of the gas from the city gate to the 
NASA facility is considered a utility service since it is provided only 
by the locally franchised utility. GSA is responsible for obtaining an 
appropriate contract for the redelivery service in accordance with FAR 
41.204.
    (b) GSA provides assistance to Federal agencies in the acquisition 
of natural gas wellhead supplies. Contracting officers may obtain 
assistance from GSA in the acquisition of wellhead natural gas by 
contacting GSA at the address specified in FAR 41.301(a).

                 Subpart 1841.3--Requests for Assistance



Sec. 1841.301   Requirements. (NASA supplements paragraph (a))

    (a) Procurement officers shall submit requests for delegation of 
contracting authority directly to the cognizant GSA regional office 
after coordinating with the cognizant center technical office.

                     Subpart 1841.4--Administration



Sec. 1841.402  Rate changes and regulatory intervention. (NASA 
          supplements paragraph (b))

    (b) A copy of all correspondence with GSA shall be provided to the 
Headquarters Office of Procurement (Code HS) at the time of its 
submittal to the GSA regional office.

       Subpart 1841.5--Solicitation Provision and Contract Clauses



Sec. 1841.501  Solicitation provision and contract clauses.



Sec. 1841.501-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.241-70, 
Renewal of Contract, in solicitations and contracts for utility services 
if it is desirable that the utility service be provided under the same 
terms and conditions for more than 1 year.

[[Page 327]]

          PART 1842--CONTRACT ADMINISTRATION AND AUDIT SERVICES

                 Subpart 1842.1--Contract Audit Services

Sec.

Sec. 1842.101  Contract audit responsibilities.

Sec. 1842.102  Assignment of contract audit services.

Sec. 1842.102-70  Review of administration and audit services.

Sec. 1842.170  Assignment of NASA personnel at contractor plants.

            Subpart 1842.2--Contract Administration Services


Sec. 1842.202  Assignment of contract administration.

Sec. 1842.202-70  Retention of contract administration.

Sec. 1842.270  Contracting officer technical representative (COTR) 
          delegations.

Sec. 1842.271  NASA clause.

        Subpart 1842.3--Contract Administration Office Functions


Sec. 1842.302  Contract administration functions.

                  Subpart 1842.5--Postaward Orientation


Sec. 1842.503  Postaward conferences.

                   Subpart 1842.7--Indirect Cost Rates


Sec. 1842.705  Final indirect cost rates.

Sec. 1842.705-1  Contracting officer determination procedure.

Sec. 1842.708  Quick-closeout procedure.

Sec. 1842.708-70  NASA quick-closeout procedures.

                  Subpart 1842.8--Disallowance of Costs


Sec. 1842.803  Disallowing costs after incurrence.

         Subpart 1842.12--Novation and Change-of-Name Agreements


Sec. 1842.1203  Processing agreements.

Sec. 1842.1203-70  DOD processing of novation and change-of-name 
          agreements on behalf of NASA.

 Subpart 1842.13--Suspension of Work, Stop-Work Orders, and Government 
                              Delay of Work


Sec. 1842.1305  Contract clauses.

         Subpart 1842.14--Traffic and Transportation Management


Sec. 1842.1405  Discrepancies incident to shipment of supplies.

           Subpart 1842.15--Contractor Performance Information


Sec. 1842.1501  General.

Sec. 1842.1502  Policy.

Sec. 1842.1503  Procedures.

            Subpart 1842.70--Additional NASA Contract Clauses


Sec. 1842.7001  Observance of legal holidays.

Sec. 1842.7002  Travel outside of the United States.

Sec. 1842.7003  Emergency medical services and evacuation.

                 Subpart 1842.71--Submission of Vouchers


Sec. 1842.7101  Submission of vouchers.

     Subpart 1842.72--NASA Contractor Financial Management Reporting


Sec. 1842.7201  General.

Sec. 1842.7202  Contract clause.

             Subpart 1842.73--Audit Tracking and Resolution


Sec. 1842.7301  NASA external audit follow-up system.

                Subpart 1842.74--Earned Value Management


Sec. 1842.7401  Earned Value Management Systems (EVMS).

Sec. 1842.7402  Solicitation provisions and contract clauses.

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

    Source: 62 FR 14017, Mar. 25, 1997, unless otherwise noted.

                 Subpart 1842.1--Contract Audit Services



Sec. 1842.101  Contract audit responsibilities.

    (a)(i) The Defense Contract Audit Agency (DCAA) has been designated 
as the DOD agency responsible for the performance of audit functions for 
NASA contracts, except those awarded to educational institutions for 
which other agencies have audit cognizance under OMB Circular No. A-133, 
those with Canadian contractors, and those for which NASA will perform 
audits.
    (ii) Cross-servicing arrangements are the responsibility of the 
Headquarters Office of External Relations (Code ID).

[[Page 328]]

Contracting officers should direct questions to the Headquarters Office 
of Procurement (Code HK).

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 3652, Jan. 26, 1998]



Sec. 1842.102  Assignment of contract audit services.



Sec. 1842.102-70  Review of administration and audit services.

    (a) NASA installations shall assess their delegations to DOD 
semiannually to determine changes in delegation patterns that could (1) 
result in significant changes in DOD manpower requirements or (2) have 
other important impacts on DOD contract administration activities. 
Events such as major program cutbacks or expansions, changes in 
locations of major programs, and sizable new acquisitions should be 
considered in the assessment.
    (b) A summary, including a negative summary, of the Center's 
assessment shall be submitted by the procurement officer to the 
Headquarters Office of Procurement (Code HK) by not later than January 
15 and June 15 of the fiscal year. The summary shall include--
    (1) A description of the change in work requirements or delegation 
pattern;
    (2) The estimated duration of the impact;
    (3) The results of discussions with affected DOD contract 
administration offices including agreement and disagreements on the 
predicted impact on DOD in terms of changes in manpower requirements or 
other costs; and
    (4) Any other significant impact on DOD or NASA resources or 
contract performance risk.

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 3652, Jan. 26, 1998]



Sec. 1842.170  Assignment of NASA personnel at contractor plants.

    (a)(1) NASA personnel normally shall not be assigned at or near a 
contractor's facility to perform any contract administration functions 
listed in FAR 42.302(a). Before such an assignment is made, a written 
request shall be forwarded to the cognizant program director for 
approval with the concurrence of the Assistant Administrator for 
Procurement (Code HS). The following supporting information shall be 
forwarded with the request to make the assignment:
    (i) A statement of the special circumstances that necessitate the 
assignment.
    (ii) The contract administration serves to be performed.
    (iii) A summary of any discussions held with the cognizant contract 
administration organization.
    (iv) A staffing plan covering three years or such shorter period as 
may be appropriate.
    (2) The provisions of this paragraph (a) do not apply to NASA audit 
personnel assigned to the field installations, to NASA technical 
personnel covered by 1842.101 and paragraph (b) of this section, unless 
they are performing any contract administration functions listed in FAR 
42.302(a), or to personnel assigned to contractors' plants on NASA or 
other Federal installations.
    (b) NASA may assign technical personnel (such as quality assurance, 
reliability, or engineering representatives) to contractors' plants or 
laboratories to provide direct liaison with NASA and technical 
assistance and guidance to the contractor and DOD. The duties and 
responsibilities of these technical representatives shall be clearly 
defined and shall not conflict with, duplicate, or overlap with 
functions delegated to DOD personnel. NASA shall advise appropriate DOD 
and contractor organizations of the duties and responsibilities of NASA 
technical personnel.
    (c) When a NASA resident office, including any assigned technical 
personnel, and a DOD contract administration office are performing 
contract administration functions for NASA contracts at the same 
contractor's facility, the two offices shall execute a written agreement 
clearly establishing the relationship between the two organizations and 
the contractor. The agreement should eliminate duplication in the 
performance of contract administration functions and minimize procedural 
misunderstandings between the two organizations. Such agreements shall 
be consistent with existing delegations to the contract administration 
offices concerned and shall specify

[[Page 329]]

the relationship of NASA nonprocurement resident personnel to their DOD 
and contractor counterparts if such personnel will be involved in any 
aspect of contract administration.

            Subpart 1842.2--Contract Administration Services



Sec. 1842.202  Assignment of contract administration. (NASA supplements 
          paragraphs (b) and (d))

    (b) Withholding normal functions. (i) The following functions are 
normally retained by the contracting office.
    (A) Approval of the final voucher (FAR 42.302(a)(7)).
    (B) Countersigning NASA Form 456, Notice of Contract Costs Suspended 
and/or Disapproved (FAR 42.302(a)(8)).
    (C) Issuance of decisions under the disputes clause (FAR 
42.302(a)(10)).
    (D) Contract payment (FAR 42.302(a)(13)).
    (E) Execution of supplement agreements involving spare parts or 
other items selected through provisioning procedures. However, 
delegation of the negotiation of supplemental agreements for spare parts 
and other items and forwarding for approval and signature of the NASA 
contracting officer is permitted (FAR 42.302(a)(22)).
    (F) Executive of supplemental agreements definitizing change orders 
(see FAR 42.302(b)(1)).
    (G) Issuing termination notices and executing supplemental 
agreements for settlement of termination for default or for convenience 
of the Government. However, delegation of the negotiation of termination 
settlements and forwarding for approval and signature of the NASA 
contracting officer is permitted using NASA Form 1432 (FAR 
42.302(a)(23)).
    (H) Consent to placement of subcontracts under FAR 42.302(a)(51). 
(See 1844.202-1(a)).
    (d) Transmittal and documentation. In addition to the instructions 
at FAR 42.202(d) (1) through (4), contracting officers shall--
    (i) Send delegations to DOD contract administration offices in 
accordance with the instructions in the DOD Directory of Contract 
Administration Services Components (DLAH 4105.4).
    (ii) At time of contract award, prepared and forward NASA Form 1430, 
Letter of Contract Administration Delegation, General, to the contract 
administration office. NASA Form 1430A, Letter of Contract 
Administration, Special Instructions, will supplement the NASA Form 
1430, to modify previously delegated functions and provide additional or 
particular information considered necessary to ensure clear 
understanding of all delegated functions.
    (iii) Forward NASA Form 1431, Letter of Acceptance of Contract 
Administration, with each NASA Form 1430 or 1430A. Contracting officers 
shall use the returned NASA Form 1431 as contract file documentation 
that the delegation has been accepted, modified or rejected by the 
contract administration office and as a reference for points of contract 
for each of the functional areas delegated.
    (iv) Use NASA Form 1433, Letter of Audit Delegation, to delegate the 
audit function and to amend previous delegations. Distribute copies of 
the contract and NASA Form 1433 as follows:
    (A) Audit office: One copy of the contract and three NASA Forms 
1433. When the Department of Health and Human Services is designated as 
the audit office, item 12 on NASA Form 1433 shall be marked ``Not 
applicable.''
    (B) Contractor: One NASA Form 1433.
    (C) Cognizant NASA fiscal or financial management office: One NASA 
Form 1433.
    (v) For contracts with the Canadian Commercial Corporation (CCC), 
audits are automatically arranged by the Department of Defense 
Production (Canada) (DDP) in accordance with agreements between NASA and 
DDP. Upon advice from DDP, CCC will certify the invoice and forward it 
with Standard Form 1034, Public Voucher, to the contracting officer for 
further processing and transmittal to the fiscal or financial management 
officer.
    (vi) For contracts placed directly with Canadian firms, audits are 
requested by the contracting officer from the Audit Services Branch, 
Comptroller of the Treasury, Department of Finance, Ottawa, Ontario, 
Canada. Invoices are approved by the auditor on a provisional basis 
pending completion of

[[Page 330]]

the contract and final audit. These invoices, accompanied by SF 1034, 
are forwarded to the contracting officer for further processing and 
transmittal to the fiscal or financial management officer. Periodic 
advisory audit reports are furnished directly to the contracting 
officer.

[62 FR 14017, Mar. 25, 1997, as amended at 64 FR 51079, Sept. 21, 1999]



Sec. 1842.202-70  Retention of contract administration. (NASA 
          supplements paragraph (a))

    (a) The assignment of contract administration is optional for the 
following contracts:
    (1) Research and development study contracts not involving 
deliverable hardware or Government furnished property.
    (2) Contracts with delivery schedules for 90 days or less.
    (3) Purchase orders without Government source inspection 
requirements.
    (4) Contracts requiring only on-site performance.
    (5) Contracts requiring work in the vicinity of the awarding center 
where DOD contract administration services are not reasonably available.

[62 FR 14017, Mar. 25, 1997. Redesignated and amended at 63 FR 15320, 
Mar. 31, 1998]



Sec. 1842.270  Contracting officer technical representative (COTR) 
          delegations.

    (a) The cognizant contracting officer may appoint a qualified 
Government employee to act as their representative in managing the 
technical aspects of a particular contract. If necessary, the 
contracting officer may appoint an alternate COTR to act during short 
absences of the COTR. Technical organizations are responsible for 
ensuring that the individual they recommend to the contracting officer 
possesses training, qualifications and experience commensurate with the 
duties and responsibilities to be delegated and the nature of the 
contract.
    (b) NASA Form 1634, Contracting Officer Technical Representative 
(COTR) Delegation, shall be used to appoint COTRs. A COTR's duties and 
responsibilities may not be redelegated by the COTR and the COTR may be 
held personally liable for unauthorized acts. However, this does not 
prohibit the COTR from receiving assistance for the purpose of 
monitoring contractor progress and gathering information. When an 
individual is appointed as a COTR on more than one contract, separate 
delegations shall be issued for each contract. A separate NASA Form 1634 
will be used to appoint an alternate COTR.
    (c) A COTR delegation remains in effect throughout the life of the 
contract unless canceled in writing by the cognizant contracting officer 
or at any level above that contracting officer. The contracting officer 
may modify the delegation only by issuance of a new delegation canceling 
and superseding the existing delegation.
    (d) A COTR shall not be authorized to initiate procurement actions 
or in any way cause a change to the contract or increase the 
Government's financial obligations. However, delegations may be made to 
construction contract COTRs to sign emergency on-site change orders with 
an estimated value not to exceed the value specified in writing by the 
contracting officer in the NASA Form 1634 but in no event to exceed 
$25,000.
    (e) Each COTR shall acknowledge receipt and accept the delegation by 
signing the original delegation letter. The original of the COTR 
delegation letter shall be filed in the applicable contract file. Copies 
of the signed COTR delegation letter shall be distributed to the COTR, 
the contractor, and each cognizant contract administration office. 
Acknowledgment and distribution for terminations of COTR delegations and 
COTR delegations which revise authority, duties and responsibilities 
shall follow the same rules.
    (f)(1) Mandatory training for COTRs and their alternates shall 
include the following core topic areas:
    (i) Contracting authority and contract modifications (including non-
personal services and inherently governmental functions);
    (ii) Inspection and surveillance;
    (iii) Changes and performance-based contracting;
    (iv) Contract financial and property management (including 
``Limitation of Cost'' clause, Anti-Deficiency Act, ``Limitation of 
Funds'' clause); and

[[Page 331]]

    (v) Disputes.
    (2) Procurement officers are responsible for assuring that the 
course(s) utilized by their center address the mandatory core topics in 
sufficient detail for the purpose of COTR training. Procurement officers 
may accept the following training alternative(s) in satisfaction of 
comparable requirement(s) specified in paragraph (f)(1) of this section:
    (i) Another center's COTR training; or
    (ii) Annual ethics training.
    (g) The contracting officer shall verify that the COTR has received 
the mandatory training before signing NASA Form 1634. If an urgent need 
arises for the appointment of a COTR and no trained and otherwise 
qualified individual is available, then the procurement officer may make 
a temporary COTR appointment not to exceed six months. Temporary 
appointments must be so identified and clearly reflect the appointment 
expiration date.
    (h) No technical direction may be issued by a COTR relative to 
performance-based contract requirements or when serving under a 
temporary appointment.

[62 FR 14017, Mar. 25, 1997, as amended at 64 FR 19928, Apr. 23, 1999; 
65 FR 12485, Mar. 9, 2000]



Sec. 1842.271  NASA clause.

    Insert the clause at 1852.242-70, Technical Direction, when 
paragraph 3(m) of the NASA Form 1634 specifically authorizes a COTR to 
issue technical direction.

        Subpart 1842.3--Contract Administration Office Functions



Sec. 1842.302  Contract administration functions. (NASA supplements 
          paragraph (a))

    (a) In addition to the responsibilities listed in FAR 42.302(a), 
responsibility for reviewing earned value management system (EVMS) plans 
and verifying initial and continuing contractor compliance with NASA and 
DoD EVMS criteria and conformity with ANSI/EIA Standard 748, Industry 
Guidelines for EVMS, is normally delegated to DCMA.

[64 FR 10574, Mar. 5, 1999, as amended at 66 FR 53548, Oct. 23, 2001]

                  Subpart 1842.5--Postaward Orientation



Sec. 1842.503  Postaward conferences. (NASA paragraphs (1) and (2))

    (1) A postaward conference shall be held with representatives of the 
contract administration office when--
    (i) A contract is expected to exceed $10,000,000;
    (ii) Contract performance is required at or near a NASA installation 
or NASA-controlled launch site;
    (iii) The delegation will impose an abnormal demand on the resources 
of the contract administration office receiving the delegation; or
    (iv) Complex contract management issues are expected, particularly 
risk management areas identified during program and acquisition 
planning, e.g., significant or unusual mission success, technical, cost, 
schedule, safety, security, occupational health, environmental 
protection, and export control risks.
    (2) Procurement officer approval is required to waive a post-award 
planning conference for contracts meeting any of the criteria in 
paragraph (1) of this section. The request for procurement officer 
approval to waive a post-award conference shall address action taken and 
planned to ensure effective communication with the contract 
administration office during the performance of the contract.

[62 FR 14017, Mar. 25, 1997, as amended at 65 FR 37060, June 13, 2000]

                   Subpart 1842.7--Indirect Cost Rates



Sec. 1842.705  Final indirect cost rates.



Sec. 1842.705-1  Contracting officer determination procedure.

    (b) Procedures.
    (3)(i) When NASA is not the cognizant Federal agency, NASA should 
participate with the cognizant contracting officer (or cognizant Federal 
agency official) in the final indirect

[[Page 332]]

cost rate determination procedure where the issues involved would have a 
significant financial impact on the agency. The NASA participant should 
be a representative from that installation providing the preponderance 
of NASA funding. If a determination is made that NASA's participation is 
not warranted, that decision must be communicated to the cognizant 
contracting officer (or cognizant Federal agency official).
    (ii) When NASA is the cognizant Federal agency, settlement of 
indirect costs should be conducted by the cognizant NASA contracting 
officer (normally from the installation providing the preponderance of 
NASA funding).

[65 FR 63807, Oct. 25, 2000]



Sec. 1842.708  Quick-closeout procedure.

    (a)(2)(ii) The 15 percent parameter does not apply to NASA 
contracts. Instead, perform a risk analysis that takes into 
consideration the contractor systems identified in FAR 42.708(a)(2)(ii), 
as well as the concerns of the cognizant contract auditor, and any other 
pertinent information.

[62 FR 36228, July 7, 1997]



Sec. 1842.708-70  NASA quick-closeout procedures.

    After a decision is made that the use of quick closeout is 
appropriate, the contracting officer shall:
    (a) Obtain a written agreement from the contractor to participate in 
the quick-closeout process under FAR 42.708 for the selected 
contract(s).
    (b) Require the contractor to submit a final voucher and a summary 
of all costs by cost element and fiscal year for the contract(s) in 
question, as well as a copy of the contractor's final indirect cost rate 
proposal for each fiscal year quick closeout is involved.
    (c) Notify the cognizant audit activity in writing, identify the 
contract(s), and request: (1) the contractor's indirect cost history 
covering a sufficient number of fiscal years to see the trend of 
claimed, audit questioned, and disallowed costs; and (2) any other 
information that could impact the decision to use quick-closeout 
procedures. Indirect cost histories should be requested from the 
contractor only when the cognizant audit activity is unable to provide 
the information.
    (d) Review the contract(s) for indirect cost rate ceilings and any 
other contract limitations, as well as the rate history information.
    (e) Establish final indirect cost rates using one of the following 
rates:
    (1) The contract's ceiling indirect cost rates, if applicable, and 
if less than paragraphs (e)(2) through (e)(6) of this section.
    (2) The contractor's claimed actual rates adjusted based on the 
contractor's indirect cost history, if less than paragraphs (e)(3) 
through (e)(6) of this section.
    (3) Recommended rates from the cognizant audit agency, the local 
pricing office, another installation pricing office, or other recognized 
knowledgeable source.
    (4) The contractor's negotiated billing rates, if less than 
paragraphs (e)(5) or (e)(6) of this section.
    (5) The previous year's final rates.
    (6) Final rates for another fiscal year closest to the period for 
which quick-closeout rates are being established.
    (f) If an agreement is reached with the contractor, obtain a release 
of all claims and other applicable closing documents.
    (g) For those contracts where the indirect cost rate negotiation 
function was delegated or falls under the cognizance of another agency, 
send a copy of the agreement to that office.

                  Subpart 1842.8--Disallowance of Costs



Sec. 1842.803  Disallowing costs after incurrance. (NASA supplements 
          paragraph (b))

    (b) Auditor receipt of vouchers. (1) NASA has designated the 
contract auditor as the contracting officer's representative for--
    (A) Reviewing vouchers received directly from contractors;
    (B) Approving vouchers for provisional payment and sending them to 
the disbursing office;
    (C) Reviewing completion/final vouchers and sending them to the 
designated contracting officer for approval.

[[Page 333]]

    (D) Authorizing direct submission of interim vouchers for 
provisional payment to disbursing offices for contractors with approved 
billing systems.
    (2)(A) When contract costs are questioned, the auditor shall prepare 
and send to the cognizant contracting officer NASA Form 456, Notice of 
Contract Costs Suspended and/or Disapproved.
    (B) After coordination with other NASA and Federal agency 
contracting officers administering contracts with the same contractor 
under which a NASA Form 456 or a DCAA Form 1 has been issued for the 
same items of cost, the NASA contracting officer shall take one of the 
following actions:
    (a) Assign a notice number and sign the NASA Form 456.
    (b) Issue a new NASA Form 456 suspending the costs rather than 
disapproving them pending resolution of the issues.
    (c) Return the unsigned NASA Form 456 to the auditor with a detailed 
explanation of why the suspension or disapproval is not being signed, 
and process the contractor's claim for payment.
    (C) When more than one NASA contract is affected by a notice, the 
NASA contracting officer with the largest amount of contract dollars 
affected is responsible for coordination of the NASA Form 456 with the 
other contracting officers, including those of other Federal agencies, 
listed in the notice.
    (D) An original and three copies (which includes two acknowledgment 
copies, one each for return to the contracting officer and the auditor) 
of the NASA Form 456 shall be sent to the contractor by certified mail, 
return receipt requested; one copy shall be attached to the Standard 
Form 1034 and each copy of the Standard Form 1034A on which the 
deduction for the suspension/disapproval is made.
    (E)(a) If the amount of the deduction is more than the amount of the 
public voucher, the installment method of deduction shall be applied to 
the current and subsequent public vouchers until the amount is fully 
liquidated. The deductions on any voucher may not exceed the voucher 
amount to avoid processing of a voucher in a credit amount. Public 
voucher(s) with zero amounts must be forwarded to the fiscal or 
financial management office for appropriate action.
    (b) If deductions are in excess of contractor claims, recovery may 
be made through a direct refund from the contractor, in the form of a 
check payable to NASA, or by a set-off deduction from the voucher(s) 
submitted by the contractor under any other contract unless those 
contracts contain a ``no set-off'' provision. If a set-off is affected, 
the voucher(s) from which the deduction is made should be annotated to 
identify the contract and appropriation affected and the applicable NASA 
Form 456.

[62 FR 14017, Mar. 25, 1997, as amended at 62 FR 58688, Oct. 30, 1997]

         Subpart 1842.12--Novation and Change-of-Name Agreements



Sec. 1842.1203  Processing agreements. (NASA supplements paragraphs (b) 
          and (h))

    (b) The installation shall immediately notify the Headquarters 
Office of Procurement (Code HS) of the request to execute a novation 
(successor-in-interest) or change-of-name agreement.
    (h) The contracting officer shall forward one copy of the agreement 
to the Code HS.

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 32764, June 16, 1998]



Sec. 1842.1203-70  DOD processing of novation and change-of-name 
          agreements on behalf of NASA.

    (a) Copies of novation and change-of-name agreements executed by DOD 
on behalf of NASA are maintained by the Headquarters Office of 
Procurement (Code HS).
    (b) Code HS is the Agency point of contact for issues related to 
proposed novation agreements. With the concurrence of Code HS, an 
installation may execute a separate agreement with the contractor.

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 32764, June 16, 1998]

[[Page 334]]

 Subpart 1842.13--Suspension of Work, Stop-Work Orders, and Government 
                              Delay of Work



Sec. 1842.1305  Contract clauses. (NASA supplements paragraph (b))

    (b) FAR 52.242-15, Stop-Work Order, shall not be used in 
solicitations or contracts for research performed by educational or 
other nonprofit institutions.

         Subpart 1842.14--Traffic and Transportation Management



Sec. 1842.1405  Discrepancies incident to shipment of supplies. (NASA 
          supplements paragraph (a))

    (a) NASA personnel shall also report discrepancies and adjust claims 
for loss of and damage to Government property in transit in accordance 
with NPG 6200.1, NASA Transportation and General Traffic Management.

[62 FR 14017, Mar. 25, 1997, as amended at 65 FR 12485, Mar. 9, 2000]

           Subpart 1842.15--Contractor Performance Information

    Source: 63 FR 42756, Aug. 11, 1998, unless otherwise noted.



Sec. 1842.1501  General.

    Communications with contractors are vital to improved performance 
and this is NASA's primary objective in evaluating past performance. 
Other objectives include providing data for future source selections. 
While the evaluations must reflect both shortcomings and achievements 
during performance, they should also elicit from the contractors their 
views on impediments to improved performance emanating from the 
Government or other sources.

[65 FR 82297, Dec. 28, 2000]



Sec. 1842.1502  Policy.

    (a) Within 60 days of every anniversary of the award of a contract 
having a term exceeding one year, contracting officers must conduct 
interim evaluations of performance on contracts subject to FAR Subpart 
42.15 and this subpart. Interim evaluations are not required on 
contracts whose award anniversary is within 3 months of the end of the 
contract period of performance. The final evaluation will include an 
evaluation of the period between the last interim evaluation and the end 
of the contract period of performance. Interim performance evaluations 
are optional for SBIR/STTR Phase II contracts. A final evaluation 
summarizing all performance must be conducted on all contracts.

[67 FR 44777, July 5, 2002]



Sec. Sec. 1842.1503   Procedures (NASA Supplement paragraphs (a) and 
          (b)).

    (a) The contracting officer shall determine who (e.g., the technical 
office or end users of the products or services) evaluates appropriate 
portions of the contractor's performance. The evaluations are subjective 
in nature. Nonetheless, the contracting officer, who has responsibility 
for the evaluations, shall ensure that they are reasonable.
    (b) NASA Form 1680, entitled, ``Evaluation of Performance,'' shall 
be used to document evaluations. This provides for a five-tiered rating 
(using the definitions for award fee evaluation scoring found in 
1816.405-275) covering the following attributes: quality, timeliness, 
price or control of costs (not required for firm-fixed-price contracts 
or firm-fixed-price contracts with economic price adjustment), and other 
considerations. Evaluations used in determining award fee payments 
satisfy the requirements of this subpart and do not require completion 
of NASA Form 1680. In addition, hybrid contracts containing both award 
fee and non-award fee portions do not require completion of NASA Form 
1680. Contracting Officers shall ensure that the Government discusses 
all evaluations with contractors and shall record the date and the 
participants on the evaluation form. Contracting officers shall sign and 
date the evaluation after considering any comments received from the 
contractor within 30 days of the contractor's receipt of the evaluation. 
If a contractor in its timely comments disagrees with an evaluation and 
requests a review at a level above the contracting officer, it shall be 
provided within 30 days. While the FAR forbids

[[Page 335]]

use of the evaluations for source selections more than three years after 
contract completion, they shall nevertheless be retained in the contract 
file as provided in FAR 4.8, Government Contract Files.

            Subpart 1842.70--Additional NASA Contract Clauses



Sec. 1842.7001  Observance of legal holidays.

    (a) The contracting officer shall insert the clause at 1852.242-72, 
Observance of Legal Holidays, in contracts when work will be performed 
at a NASA installation.
    (b) The clause shall be used with its Alternate I in cost-
reimbursement contracts when it is desired that contractor employees not 
have access to the installation during Government holidays. This 
alternate may be appropriately modified for fixed-price contracts.
    (c) The clause may be used with its Alternate II in cost-
reimbursement contracts when it is desired that administrative leave be 
granted contractor personnel in special circumstances, such as inclement 
weather or potentially hazardous conditions. This alternate may be 
appropriately modified for fixed-price contracts.

[62 FR 14017, Mar. 25, 1997, as amended at 63 FR 32764, June 16, 1998; 
65 FR 46628, July 31, 2000]



Sec. 1842.7002  Travel outside of the United States.

    The contracting officer shall insert the clause at 1852.242-71, 
Travel Outside of the United States, in cost-reimbursement solicitations 
and contracts where a contractor may travel outside of the United States 
and it is appropriate to require Government approval of the travel.



Sec. 1842.7003  Emergency medical services and evacuation.

    The contracting officer must insert the clause at 1852.242-78, 
Emergency Medical Services and Evacuation, in all solicitations and 
contracts when employees of the contractor are required to travel 
outside the United States or to remote locations in the United States.

[66 FR 18054, Apr. 5, 2001]

                 Subpart 1842.71--Submission of Vouchers



Sec. 1842.7101  Submission of vouchers.

    (a) Vouchers shall be submitted in accordance with the clause at 
1852.216-87, Submission of Vouchers for Payment.
    (b) The auditor shall retain an unpaid copy of the voucher.
    (c) When a voucher submitted in accordance with the clause at 
1852.216-87 contains one or more individual direct freight charges of 
$100 or more, an additional copy of Standard Form 1034A and Standard 
Form 1035A shall be submitted and marked for return to the contractor 
after payment. This copy shall be transmitted quarterly by the 
contractor with the freight bills to the General Services 
Administration. When a voucher is identified as the ``Completion 
Voucher,'' an additional copy shall be submitted for transmittal to the 
NASA contracting officer.

     Subpart 1842.72--NASA Contractor Financial Management Reporting



Sec. 1842.7201  General.

    (a) Contracting officer responsibilities. (1) Contracting officers 
must ensure contracts require cost reporting consistent with both policy 
requirements and project needs. Contracting Officers shall monitor 
contractor cost reports on a regular basis to ensure cost data reported 
is accurate and timely.
    Adverse trends or discrepancies discovered in cost reports should be 
pursued through discussions with financial and project team members.
    (2) Whenever cost performance threatens contract performance, 
contracting officers shall require corrective action plans from the 
contractors.
    (b) Reporting requirements. (1) Use of the NASA Contractor Financial 
Management Reports, the NASA form 533 series, is required on cost-type, 
price

[[Page 336]]

redetermination, and fixed-price incentive contracts when the following 
dollar, period of performance, and scope criteria are met:

----------------------------------------------------------------------------------------------------------------
        Contract value/scope           Period of performance             533M                      533Q
----------------------------------------------------------------------------------------------------------------
$500K to $999K......................  1 year or more.........  Required................  Optional.
$1,000,000 and over.................  Less than 1 year.......  Required................  Optional.
$1,000,000 and over.................  1 year or more.........  Required................  Required.
----------------------------------------------------------------------------------------------------------------

    (2) When it is probable that a contract will ultimately meet the 
criteria in paragraph (b)(1) of this section through change orders, 
supplemental agreements, etc., the reporting requirement must be 
implemented in the contract based on the estimated final contract value 
at the time of award.
    (3) NF 533Q reporting may be waived by the contracting officer, with 
the concurrence of the center chief financial officer and cognizant 
project manager, for support service or task order contracts, when NF 
533M reports and other data are sufficient to ensure accurate monthly 
cost accruals, evaluation of the contractor's cost performance, and 
forecasting of resource requirements.
    (4) Where a specific contractual requirement differs from the 
standard system set forth in NPG 9501.2, NASA Contractor Financial 
Management Reporting, but is determined to be in the best interests of 
the Government and does not eliminate any of the data elements required 
by the standard NF 533 formats, it may be approved by the contracting 
officer with the concurrence of the center chief financial officer and 
the project manager. Such approval shall be documented and retained, 
with the supporting rationale, in the contract file.
    (5) The contractor's internal automated printout reports may be 
substituted for the 533 reporting formats only if the substitute reports 
contain all the data elements that would be provided by the 
corresponding 533's. The contracting officer shall coordinate any 
proposed substitute with the installation financial management office.
    (c) Contract requirements. (1) Reporting requirements, including a 
description of reporting categories, shall be detailed in the 
procurement request, and reports shall be required by inclusion of the 
clause prescribed in 1842.7202. The contract schedule shall include 
report addressees and numbers of copies. Reporting categories shall be 
coordinated with the center financial management office to ensure that 
data required for agency cost accounting will be provided by the 
reports. Reporting dates shall be in accordance with NPG 9501.2, except 
that earlier submission is encouraged whenever feasible. No due date 
shall be permitted which is later than the date by which the center 
financial management office needs the data to enter an accurate monthly 
cost accrual in the accounting system.
    (2) The contractor shall be required to submit an initial report in 
the NF 533Q format, time phased for the expected life of the contract, 
within 30 days after authorization to proceed has been granted. NF 533M 
reporting will begin no later than 30 days after incurrence of cost. NF 
533Q reporting begins with the initial report.



Sec. 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.

[62 FR 36721, July 9, 1997]

             Subpart 1842.73--Audit Tracking and Resolution



Sec. 1842.7301  NASA external audit follow-up system.

    (a) This section implements OMB Circular No. A-50 and NASA Policy 
Directive (NPD) 1200.10 ``Internal Management Controls and Audit Liaison 
and Followup'', which provide more detailed guidance. Recommendations 
from external audits (OMB Circular No. A-133, Audits of States, Local 
Governments, and Non-Profit Institutions)

[[Page 337]]

shall be resolved by formal review and approval procedures analogous to 
those at 1815.406-171.
    (b) The external audit followup system tracks all contract and OMB 
Circular No. A-133 audits where NASA has resolution and disposition 
authority. The objective of the tracking system is to ensure that audit 
recommendations are resolved within 6 months after receipt of the audit 
report and corrected as expeditiously as possible.
    (c)(1) The identification and tracking of contract audit reports 
under NASA cognizance are accomplished in cooperation with the DCAA.
    (2) Identification and tracking of OMB Circular No. A-133 audit 
reports are accomplished in cooperation with the NASA Office of the 
Inspector General (OIG).
    (d)(1) All reportable contract audit reports as defined by Chapter 
15, Section 6, of the DCAA Contract Audit Manual (CAM) shall be reported 
quarterly to the Headquarters Office of Procurement (Code HK); and
    (2) Only OMB Circular No. A-133 audit reports involving the 
following shall be reported quarterly to Code HK:
    (i) A significant management control issue; or
    (ii) Questioned costs of $10,000 or more due to an audit finding 
(see Subpart E-Auditor, paragraph 510 of OMB Circular No. A-133).
    (3) NASA contracting officers will maintain a dialogue with DOD 
Administrative Contracting Officers (ACO) who have been delegated 
activities on NASA contracts. A review will be conducted no less 
frequently than semiannually, and the status and disposition of 
significant audit findings will be documented in the contract file. 
During this review, NASA contracting officers should discuss with the 
ACO both prime and subcontract audit reports that have been delegated to 
DOD. Should these reports contain any findings or recommendations, the 
NASA contracting officer should obtain their status and document the 
contract file accordingly.
    (e)(1) The terms ``resolution'' and ``corrective action/
disposition'' are defined as follows:
    (i) Resolution--The point at which the IG and Management agree on 
the action to be taken on audit report findings and recommendations.
    (ii) Corrective action/disposition--Management action responsive to 
an agreed upon audit recommendation.
    (2) The resolution and disposition of OMB Circular No. A-133 audits 
are handled as follows:
    (i) Audit findings pertaining to an individual NASA award are the 
responsibility of the procurement officer administering that award.
    (ii) Audit findings having a Governmentwide impact are the 
responsibility of the cognizant Federal agency responsible for 
oversight. For organizations subject to OMB Circular No. A-133, there is 
either a cognizant agency or an oversight agency. The cognizant agency 
is the Federal agency that provides the predominant amount of direct 
funding to the recipient organization unless OMB makes a specific 
cognizant agency for audit assignment. To provide for the continuity of 
cognizance, the determination of the predominant amount of direct 
funding will be based on the direct Federal awards expended in the 
recipient's fiscal years ending in 1995, 2000, 2005, and every fifth 
year thereafter. When there is no direct funding, the Federal agency 
with the predominant indirect funding is to assume the oversight 
responsibilities. In cases where NASA is the cognizant or oversight 
Federal agency, audit resolution and disposition is the responsibility 
of the procurement officer for the Center having the largest amount of 
direct funding, or, if there is no direct funding, the largest amount of 
indirect funding for the audited period. A copy of the memorandum 
dispositioning the findings shall be provided by each Center having 
resolution responsibility for the particular report to the Headquarters 
OIG office and Code HK.

[65 FR 82297, Dec. 28, 2000, as amended at 66 FR 53548, Oct. 23, 2001]

                Subpart 1842.74--Earned Value Management

    Source: 64 FR 10574, Mar. 5, 1999, unless otherwise noted.

[[Page 338]]



Sec. 1842.7401  Earned Value Management Systems (EVMS).

    When an offeror or contractor is required to provide an EVMS plan to 
the Government in accordance with NASA Policy Directive (NPD) 9501.3, 
Earned Value Management, the contracting officer shall forward a copy of 
the plan to the cognizant administrative contracting officer (ACO) to 
obtain the assistance of the ACO in determining the adequacy of the 
proposed EVMS plan.



Sec. 1842.7402  Solicitation provisions and contract clauses.

    (a) When the Government requires Earned Value Management, the 
contracting officer shall insert:
    (1) The provision at 1852.242-74, Notice of Earned Value Management 
System, in solicitations; and
    (2) The clause at 1852.242-75, Earned Value Management System, in 
solicitations and contracts.
    (b) The contracting officer shall insert the clause at 1852.242-76, 
Modified Cost Performance Report, in solicitations and contracts 
requiring modified cost performance reporting (see NPD 9501.3, Earned 
Value Management).
    (c) The contracting officer shall insert the provision at 1852.242-
77, Modified Cost Performance Report Plans, in solicitations for 
contracts requiring modified cost performance reporting (see NPD 
9501.3).

                    PART 1843--CONTRACT MODIFICATIONS

                      Subpart 1843.2--Change Orders

Sec.

Sec. 1843.205  Contract clauses.

Sec. 1843.205-70  NASA contract clauses.

             Subpart 1843.70--Undefinitized Contract Actions


Sec. 1843.7001  Definitions.

Sec. 1843.7002  Policy.

Sec. 1843.7003  Procedures.

Sec. 1843.7004  Exceptions.

Sec. 1843.7005  Definitization.

                     Subpart 1843.71--Shared Savings


Sec. 1843.7101  Shared Savings Program.

Sec. 1843.7102  Solicitation provision and contract clause.

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

    Source: 62 FR 14022, Mar. 25, 1997, unless otherwise noted.

                      Subpart 1843.2--Change Orders



Sec. 1843.205  Contract clauses.

    As authorized in the prefaces of clauses FAR 52.243-1, Changes--
Fixed Price; FAR 52.243-2, Changes--Cost Reimbursement; and FAR 52.243-
4, Changes; and in the prescription at 43.205(c) for FAR 52.243-3, 
Changes--Time-and-Material or Labor-Hours, the period within which a 
contractor must assert its right to an equitable adjustment may be 
varied not to exceed 60 calendar days.

[65 FR 58932, Oct. 3, 2000]



Sec. 1843.205-70  NASA contract clauses.

    (a)(1) The contracting officer may insert in contracts a clause 
substantially the same as 1852.243-70, Engineering Change Proposals, 
when ECPs are expected. Paragraphs (c) and (d) of the basic clause and 
Alternate I of the clause shall be changed to reflect the specific type 
of contract.
    (2) If it is desirable to preclude a large number of small-dollar, 
contractor-initiated engineering changes and to reduce the 
administrative cost of reviewing them, the contracting officer shall use 
the clause with its Alternate I.
    (3) If the contract is a cost-reimbursement type, the contracting 
officer shall use the clause with its Alternate II.
    (b) The contracting officer may insert a clause substantially as 
stated at 1852.243-72, Equitable Adjustments, in solicitations and 
contracts for--
    (1) Dismantling, demolishing, or removing improvements; or
    (2) Construction, when the contract amount is expected to exceed the 
simplified acquisition threshold and a fixed-price contract is 
contemplated.

[62 FR 14022, Mar. 25, 1997, as amended at 63 FR 17339, Apr. 9, 1998; 66 
FR 53548, Oct. 23, 2001]

[[Page 339]]

             Subpart 1843.70--Undefinitized Contract Actions



Sec. 1843.7001  Definitions.

    Undefinitized contract action (UCA) means a unilateral or bilateral 
contract modification or delivery/task order in which the final price or 
estimated cost and fee have not been negotiated and mutually agreed to 
by NASA and the contractor. (Issuance of letter contracts and their 
modifications are governed by subpart 1816.6.)



Sec. 1843.7002  Policy.

    (a) Undefinitized contract actions may be issued only on an 
exception basis, and centers must ensure that NASA liabilities and 
commitments are minimized. When an undefinitized contract action is 
justified and program requirements can be severed into smaller, discreet 
efforts, the work authorized by the undefinitized contract action must 
be limited to the minimum severable effort required to satisfy the 
urgent program requirements. The remaining requirements may not be 
initially included in the undefinitized contract action and must be 
acquired through a separate fully priced and definitized contract 
action.
    (b) The contract file for each UCA shall be documented to justify 
issuance and shall include a Government estimate for the changed 
requirements.

[66 FR 53548, Oct. 23, 2001]



Sec. 1843.7003  Procedures.

    (a)(1) Issuance of undefinitized contract actions with a Government 
estimated cost or price over $100,000 must be approved in writing by the 
Center Director.
    (2) All other undefinitized contract actions must be approved in 
writing by the procurement officer.
    (3) In emergency situations, approval may be given orally and 
subsequently confirmed in writing.
    (4) The approval authorities in paragraphs (a)(1) and (2) of this 
section are not delegable.
    (b) (1) Undefinitized contract actions exceeding $100,000 must be 
issued as bilateral agreements setting forth a ceiling price or ``not to 
exceed'' estimated cost figure for the changed contractual requirements. 
For fixed price contracts the negotiated price for the changed contract 
requirements shall not exceed the established ceiling price. In the case 
of cost type contracts any costs eventually negotiated for the changed 
requirements in excess of the ``not to exceed'' estimated cost figure 
shall be non-fee bearing. The ceiling price or ``not to exceed'' 
estimated cost figures shall be separately identified in the UCA 
instrument from the pricing structure of the basic contract.
    (2) The Center Director may waive the ceiling price or ``not to 
exceed'' estimated cost figure and bilateral agreement requirements 
prior to UCA issuance on the basis of urgency. This waiver authority is 
not delegable. Any waivers shall be documented in the contract file.
    (c) The changed contractual requirements set forth in the UCA shall 
be clearly defined and shall be limited to the minimum effort required 
to satisfy urgent program requirements while a cost proposal is 
prepared, analyzed and negotiated.
    (d) For undefinitized contract actions with a Government estimate 
greater than $1,000,000 and not excepted under subpart 1843.7004, a 180 
day funding profile shall be obtained from the contractor prior to 
execution of the undefinitized contract action.
    (e) Undefinitized contract actions with a Government estimated cost 
or price greater than $1,000,000 shall include a requirement that the 
change shall be separately accounted for by the contractor to the degree 
necessary to provide the contracting officer visibility into actual 
costs incurred pending definitization. The contracting officer may waive 
this requirement for individual actions if there is a documented finding 
that such accounting procedures would not be cost effective. Any such 
waiver shall not affect existing NASA Form 533 or other financial 
reporting requirements set forth in the contract.

[62 FR 14022, Mar. 25, 1997, as amended at 66 FR 53548, Oct. 23, 2001]



Sec. 1843.7004  Exceptions.

    (a) Exceptions to the requirement for Center Director or procurement 
officer

[[Page 340]]

approval of undefinitized contract actions are--
    (1) Modifications to facilities contracts;
    (2) Modifications to construction contracts using Construction of 
Facilities funding;
    (3) Urgent modification resulting from Shuttle manifest changes or 
that involve immediate issues of safety or damage/loss of property;
    (4) Modifications to decrease the contract value; or
    (5) Modification to letter contracts.
    (b) The contract file for any of the modifications in paragraph (a) 
of this section shall cite the exception and include complete supporting 
rational for its applicability.

[62 FR 14022, Mar. 25, 1997, as amended at 66 FR 53548, Oct. 23, 2001]



Sec. 1843.7005  Definitization.

    (a) Undefinitized contract actions should be sufficiently complete 
and detailed as to enable the contractor to begin immediate preparation 
of a cost proposal for the changed requirement. The NASA goal is to 
definitive UCAs within 180 from date of issuance.
    (b) Whenever possible, pre-change study efforts or engineering 
change proposals (ECPs) shall be utilized to negotiate and definitize 
changes prior to issuance.

                     Subpart 1843.71--Shared Savings



Sec. 1843.7101  Shared Savings Program.

    This subpart establishes and describes the methods for implementing 
and administering a Shared Savings Program. This program provides an 
incentive for contractors to propose and implement, with NASA approval, 
significant cost reduction initiatives. NASA will benefit as the more 
efficient business practices that are implemented lead to reduced costs 
on current and follow-on contracts. In return, contractors are entitled 
to share in cost savings subject to limits established in the contract. 
The contracting officer may require the contractor to provide periodic 
reporting, or other justification, or to require other steps (e.g., cost 
segregation) to ensure projected cost savings are being realized.



Sec. 1843.7102  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 1852.243-71, 
Shared Savings, in all solicitations and contracts expected to exceed 
$1,000,000, except those awarded under FAR part 12, NRA and AO 
procedures, or the SBIR and STTR programs.

            PART 1844--SUBCONTRACTING POLICIES AND PROCEDURES

                 Subpart 1844.2--Consent to Subcontracts

Sec.

Sec. 1844.201  Consent and advance notification requirements.

Sec. 1844.201-1  Consent requirements.

Sec. 1844.202  Contracting officer's evaluation.

Sec. 1844.202-1  Responsibilties.

Sec. 1844.204  Contract clauses.

Sec. 1844.204-70  NASA contract clause.

         Subpart 1844.3--Contractors' Purchasing Systems Reviews


Sec. 1844.302  Requirements.

Sec. 1844.302-70  DCMA-conducted contractor purchasing system reviews.

Sec. 1844.302-71  NASA-conducted contractor purchasing system reviews.

Sec. 1844.304  Surveillance.

Sec. 1844.304-70  Contracting officer surveillance.

Sec. 1844.305  Granting, withholding, or withdrawing approval.

Sec. 1844.305-70  Review of CPSR reports.

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

    Source: 62 FR 14023, Mar. 25, 1997, unless otherwise noted.

                 Subpart 1844.2--Consent to Subcontracts



Sec. 1844.201  Consent and advance notification requirements.



Sec. 1844.201-1  Consent requirements. (NASA supplements paragraph (a))

    (a)(i) In determining special surveillance consent requirements, the 
contracting officer should consider specific subcontract awards, as well 
as any individual systems, subsystems, components, technologies, and 
services that should have contracting officer consent prior to being 
subcontracted.
    (ii) For each planned contract award expected to exceed $1 million 
in total estimated value (inclusive of options), the contracting officer 
should consider

[[Page 341]]

such factors as the following to determine whether certain subcontracts 
require special surveillance:
    (A) The degree of subcontract pricing uncertainties at the time of 
contract award;
    (B) The overall quality of the contractor's approach to pricing 
subcontracts;
    (C) The extent of competition achieved, or to be achieved, by the 
contractor in the award of subcontracts;
    (D) Technical complexity and the criticality of specific supplies, 
services, and technologies on the successful performance of the 
contract; and
    (E) The potential impact of planned subcontracts on source selection 
or incentive arrangements.
    (iii) The contracting officer shall document results of the review 
in the contract file. For contract modifications and change orders, the 
contracting officer shall make the determination required by paragraph 
(a)(ii) of this section whenever the value of any subcontract resulting 
from the change order or modification is proposed to exceed the dollar 
threshold for obtaining cost or pricing data (see FAR 15.403-4(a)(1)) or 
is one of a number of subcontracts with a single subcontractor for the 
same or related supplies or services that are expected cumulatively to 
exceed the dollar threshold for obtaining cost or pricing data.
    (iv) In addition, any subcontract under a cost type prime contract 
shall be identified for special surveillance if consent was not provided 
at the time of contract award and cost or pricing data would be required 
in accordance with FAR 15.404-3(c).

[63 FR 43099, Aug. 12, 1998, as amended at 64 FR 5621, Feb. 4, 1999]



Sec. 1844.202  Contracting officer's evaluation.



Sec. 1844.202-1  Responsibilities. (NASA supplements paragraph (a))

    (a) NASA contracting officers shall retain consent to subcontract 
authority unless delegation is approved in writing by the procurement 
officer.



Sec. 1844.204  Contract clauses.



Sec. 1844.204-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.244-70, 
Geographic Participation in the Aerospace Program, in all research and 
development solicitations and contracts of $500,000 or over that will be 
performed within the United States.

         Subpart 1844.3--Contractors' Purchasing Systems Reviews



Sec. 1844.302  Requirements.



Sec. 1844.302-70  DCMA-conducted contractor purchasing system reviews.

    For contracts within their cognizance, NASA contracting officers 
shall be aware of purchasing system approval status and should become 
actively involved with the Defense Contract Management Agency (DCMA) in 
the Contractor Purchasing System Review (CPSR) process. Involvement 
should include the following:
    (a) Verifying that CPSRs are being conducted in accordance with FAR 
44.302.
    (b) Ensuring that purchasing system review specifically includes the 
business unit performing the NASA contract.
    (c) Actively participating as a team member, or arranging NASA 
representation, on DCMA CPSRs to review areas of NASA-specific interest. 
At a minimum, such participation or representation shall be arranged 
when the DCMA CPSR review involves--
    (1) Contractors with major NASA programs;
    (2) Contractors' business units where the total dollar value of NASA 
contracts is substantial; or
    (3) Any contractor system where the contracting officer has special 
concerns.
    (d) Ensuring that the selected CPSR sample to be reviewed reflects 
the level of NASA business in the contractor's purchasing organization.
    (e) Providing to the cognizant DCMA CPSR team leader any areas of 
special emphasis regarding the contractor's purchasing system to ensure 
that the

[[Page 342]]

review is tailored to address any NASA concerns.

[62 FR 14023, Mar. 25, 1997, as amended at 62 FR 36721, July 9, 1997; 66 
FR 53548, Oct. 23, 2001]



Sec. 1844.302-71  NASA-conducted contractor purchasing system reviews.

    If a NASA activity is the cognizant contract administration officer, 
or after coordination with the cognizant DCMA CPSR office it is 
determined that a CPSR is required but cannot be accomplished by DCMA, 
then a CPSR should be conducted by NASA personnel. The NASA CPSR team 
leader:
    (a) May use the DOD FAR Supplement, Contractor Purchasing System 
Review (CPSR) guidance, as a general guide to conducting the CPSR.
    (b) May vary the scope of review depending on the contractor and 
contracts involved.
    (c) Shall maintain close coordination with the cognizant ACO during 
CPSRs at contractors under DOD cognizance.

[62 FR 14023, Mar. 25, 1997, as amended at 66 FR 53548, Oct. 23, 2001]



Sec. 1844.304  Surveillance.



Sec. 1844.304-70  Contracting officer surveillance.

    (a) In the period between complete CPSRs, NASA contracting officers 
shall maintain a sufficient level of surveillance to ensure contractor 
purchasing efforts in support of NASA contracts are accomplished in an 
appropriate manner and protect the interests of the Agency.
    (b) Surveillance shall be accomplished primarily through performance 
of subcontract consent reviews. Other methods of surveillance, including 
periodic reviews of contractor purchasing records, may also be 
conducted. Contracting officers shall document the results of 
subcontract consent reviews and periodic reviews, maintaining a record 
of contractor subcontract or purchase order award performance on NASA 
contracts. Contractor performance shall be summarized on an annual basis 
and provided to the ACO cognizant of the contractor's purchasing system. 
Annual reports should summarize the number of consent reviews and other 
reviews conducted during the year by NASA representatives, and summarize 
the types and quantity of deficiencies identified during reviews, the 
need for special reviews, and recommended areas of emphasis during 
future CPSRs.



Sec. 1844.305  Granting, withholding, or withdrawing approval.



Sec. 1844.305-70  Review of CPSR reports.

    ACO actions related to purchasing system approval have a potential 
impact on NASA contracting officer consent requirements. Accordingly, 
NASA contracting officers shall review system deficiencies documented in 
CPSR reports and when results of consent reviews and other sources 
conflict with CPSR or DOD surveillance conclusions, formally communicate 
such concerns to the ACO having cognizance of purchasing system 
approval. Significant issues or significant conflicts with DOD CPSR 
results should be formally referred to the Office of Procurement (Code 
HS).

                     PART 1845--GOVERNMENT PROPERTY

                         Subpart 1845.1--General

Sec.

Sec. 1845.102  Policy.

Sec. 1845.102-70  NASA policy.

Sec. 1845.102-71  Solicitation and review procedures.

Sec. 1845.104  Review and correction of contractors' property control 
          systems.

Sec. 1845.106  Government property clauses.

Sec. 1845.106-70  NASA contract clauses and solicitation provision.

Sec. 1845.106-71  Plant reconversion and plant clearance.

      Subpart 1845.3--Providing Government Property to Contractors


Sec. 1845.301  Definitions.

Sec. 1845.302  Providing facilities.

Sec. 1845.302-1  Policy.

Sec. 1845.302-2  Facilities contracts.

Sec. 1845.302-70  Securing approval of facilities projects.

Sec. 1845.302-71  Determination and findings.

    Subpart 1845.4--Contractor Use and Rental of Government Property


Sec. 1845.402  Authorizing use of Government production and research 
          property.

Sec. 1845.403  Rental--Use and Charges clause.

[[Page 343]]


Sec. 1845.405  Contracts with foreign governments or international 
          organizations.

Sec. 1845.405-70  NASA procedures.

Sec. 1845.406  Use of Government production and research property on 
          independent research and development programs.

Sec. 1845.406-70  NASA policy.

Sec. 1845.407  Non-Government use of plant equipment.

 Subpart 1845.5--Management of Government Property in the Possession of 
                               Contractors


Sec. 1845.502  Contractor responsibility.

Sec. 1845.502-1  Receipts for Government property.

Sec. 1845.502-70  Contractor-acquired property.

Sec. 1845.505  Records and reports of Government property.

Sec. 1845.505-14  Reports of Government property.

Sec. 1845.508  Physical inventories.

 Subpart 1845.6--Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 1845.604  Restrictions on purchase or retention of contractor 
          inventory.

Sec. 1845.606  Inventory schedules.

Sec. 1845.606-1  Submission.

Sec. 1845.607  Scrap.

Sec. 1845.607-1  General.

Sec. 1845.607-170  Contractor's approved scrap procedure.

Sec. 1845.607-2  Recovering precious metals.

Sec. 1845.608  Screening of contractor inventory.

Sec. 1845.608-1  General.

Sec. 1845.608-6  Waiver of screening requirements.

Sec. 1845.610  Sale of surplus contractor inventory.

Sec. 1845.610-3  Proceeds of sale.

Sec. 1845.610-4  Contractor inventory in foreign countries.

Sec. 1845.613  Property disposal determinations.

Sec. 1845.615  Accounting for contractor inventory.

Subpart 1845.70 [Reserved]

                   Subpart 1845.71--Forms Preparation


Sec. 1845.7101  Instructions for preparing NASA Form 1018.

Sec. 1845.7101-1  Property classification.

Sec. 1845.7101-2  Transfers of property.

Sec. 1845.7101-3  Unit acquisition cost.

Sec. 1845.7101-4  Types of deletions from contractor property records.

Sec. 1845.7101-5  Contractor's privileged financial and business 
          information.

Sec. 1845.7102  Instructions for preparing DD Form 1419.

              Subpart 1845.72--Contract Property Management


Sec. 1845.7201  Definitions.

Sec. 1845.7202  General.

Sec. 1845.7203  Delegations of property administration and plant 
          clearance.

Sec. 1845.7204  Retention of property administration and plant 
          clearance.

Sec. 1845.7205  Functional oversight of property administration and 
          plant clearance.

Sec. 1845.7206  Responsibilities of property administrators and plant 
          clearance officers.

Sec. 1845.7206-1  Property administrators.

Sec. 1845.7206-2  Plant clearance officers.

Sec. 1845.7207  Declaration of excess property.

Sec. 1845.7208  Closure of contracts.

Sec. 1845.7208-1  Completion or termination.

Sec. 1845.7208-2  Final review and closing of contracts.

Sec. 1845.7209  Special subjects.

Sec. 1845.7209-1   Government property at alternate locations of the 
          prime contractor and subcontractor plants.

Sec. 1845.7209-2  Loss, damage, or destruction of Government property.

Sec. 1845.7209-3  Loss, damage, or destruction of Government property 
          while in contractor's possession or control.

Sec. 1845.7209-4  Financial reports.

Sec. 1845.7210  Contractor utilization of Government property.

Sec. 1845.7210-1  Utilization surveys.

Sec. 1845.7210-2  Records of surveys.

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

    Source: 62 FR 36722, July 9, 1997, unless otherwise noted.

                         Subpart 1845.1--General



Sec. 1845.102   Policy.



Sec. 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.

[[Page 344]]



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 345]]

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.



Sec. 1845.106-71  Plant reconversion and plant clearance.

    The Assistant 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.

[[Page 346]]

      Subpart 1845.3--Providing Government Property to Contractors



Sec. 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.''



Sec. 1845.302  Providing facilities.



Sec. 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 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 347]]

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



Sec. 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.



Sec. 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.



Sec. 1845.405  Contracts with foreign governments or international 
          organizations.



Sec. 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

[[Page 348]]

countries or for international organizations.
    (b) The prior written approval of the Assistant Administrator for 
Procurement (Code H) is required for the use of Government production 
and research property on work for foreign countries or for international 
organizations. The Logistics Management Office of the Headquarters 
Office of Management Systems (Code JG), the Office of General Counsel 
(Code G), and the Headquarters Office of External Relations (Code I) 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 (e.g., an approved license or agreement from the Department of 
State or Department of Commerce).
    (d) Use, if approved, shall be subject to rent in accordance with 
FAR 45.403.

[62 FR 36722, July 9, 1997, as amended at 65 FR 31103, May 16, 2000]



Sec. 1845.406  Use of Government production and research property on 
          independent research and development programs.



Sec. 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).



Sec. 1845.407  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 Assistant 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--

[[Page 349]]

    (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.

62 FR 36722, July 9, 1997. Redesignated at 64 FR 36606, July 7, 1999]

 Subpart 1845.5--Management of Government Property in the Possession of 
                               Contractors



Sec. 1845.502  Contractor responsibility.



Sec. 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).



Sec. 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.



Sec. 1845.505  Records and reports of Government property.



Sec. 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).



Sec. 1845.508  Physical inventories.

    NASA contractors shall reconcile inventories with the official 
property records and submit reports to the property administrator within 
30 days 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.

[[Page 350]]

 Subpart 1845.6--Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 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.



Sec. 1845.606  Inventory schedules.



Sec. 1845.606-1  Submission.

    See 1845.608 for intra-agency screening of excess contractor-held 
property.



Sec. 1845.607  Scrap.



Sec. 1845.607-1  General.



Sec. 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.



Sec. 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.



Sec. 1845.608  Screening of contractor inventory.



Sec. 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 NPG 4300.1.

[62 FR 36722, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000]

[[Page 351]]



Sec. 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.



Sec. 1845.610  Sale of surplus contractor inventory.



Sec. 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.



Sec. 1845.610-4  Contractor inventory in foreign countries.

    NASA procedures for disposal are in NPG 4300.1.

[62 FR 36722, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000]



Sec. 1845.613  Property disposal determinations.

    The center property disposal officer (PDO) shall review the 
determinations in accordance with NPG 4300.1.

[62 FR 36722, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000]



Sec. 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



Sec. 1845.7101  Instructions for preparing NASA Form 1018.

    NASA must account for and report assets in accordance with 31 U.S.C. 
3512 and 31 U.S.C. 3515, Federal Accounting Standards, and Office of 
Management and Budget (OMB) instructions. Since contractors maintain 
NASA's official records for its assets in their possession, NASA must 
obtain annual data from those records to meet these requirements. 
Changes in Federal Accounting Standards and OMB reporting requirements 
may occur from year to year, requiring contractor submission of 
supplemental information with the NASA Form (NF) 1018. Contractors shall 
retain documentation that supports data reported on NF 1018 in 
accordance with FAR subpart 4.7, Contractor Records Retention. 
Classifications of property, related costs to be reported, and other 
reporting requirements are discussed in this subpart. NASA Form 1018 
(see 1853.3) provides critical information for NASA financial statements 
and property management. Accuracy and timeliness of the report are very 
important. If errors are discovered on NF 1018 after submission, the 
contractor shall contact the cognizant NASA Center Industrial Property 
Officer (IPO) to discuss corrective action. IPO's shall work with NASA 
Center finance personnel to determine appropriate corrective action and 
provide guidance to contractors.

[66 FR 41805, Aug. 9, 2001]



Sec. 1845.7101-1  Property classification.

    (a) General. Contractors shall report costs in the classifications 
on NF 1018, as described in this section.
    (b) Land. Includes costs of land and improvements to land. 
Contractors shall report land with a unit acquisition cost of $100,000 
or more.
    (c) 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, of floors. 
Contractors shall report buildings with a unit acquisition cost of 
$100,000 or more. Examples of fixed equipment required for functioning 
of a building include plumbing, heating and lighting equipment, 
elevators, central air conditioning systems, and built-in safes and 
vaults.
    (d) Other Structures and Facilities. Includes costs of acquisitions 
and improvements of real property (i.e. structures and facilities other 
than buildings); for example, airfield pavements,

[[Page 352]]

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. 
Contractors shall report other structures and facilities with a unit 
acquisition cost of $100,000 or more and a useful life of two years or 
more.
    (e) Leasehold improvements. Includes NASA-funded 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. Contractors shall report leasehold 
improvements with a unit acquisition cost of $100,000 or more and a 
useful life of two years or more.
    (f) Construction in progress. Includes costs of work in process for 
the construction of Buildings, Other Structures and Facilities, and 
Leasehold Improvements to which NASA has title, regardless of value.
    (g) Equipment. Includes costs of commercially available personal 
property capable of stand-alone use in manufacturing supplies, 
performing services, or any general or administrative purpose (for 
example, machine tools, furniture, vehicles, computers, software, test 
equipment, including their accessory or auxiliary items). Contractors 
shall separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (h) Special tooling. Includes costs of equipment and manufacturing 
aids (and their components and replacements) of such a specialized 
nature that, without substantial modification or alteration, their use 
is limited to development or production of particular supplies or parts, 
or performance of particular services. Examples include jigs, dies, 
fixtures, molds, patterns, taps and gauges. Contractors shall separately 
report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (i) Special test equipment. Includes costs of equipment used to 
accomplish special purpose testing in performing a contract, and items 
or assemblies of equipment. Contractors shall separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (j) 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. Material that is part of 
work-in-process is not included. Contractors shall report the amount for 
all Materials in inventory, regardless of unit acquisition cost.
    (k) Agency-Peculiar Property. Includes costs of completed items, 
systems and subsystems, spare parts and components unique to NASA 
aeronautical and space programs. Examples include research aircraft, 
reusable space vehicles, ground support equipment, prototypes, and mock-
ups. The amount of property, title to which vests in NASA as a result of 
progress payments to fixed price subcontractors, shall be included to 
reflect the pro rata cost of undelivered agency-peculiar property. 
Completed end items which otherwise meet the definition of Agency-
Peculiar Property, but are destined for permanent operation in space, 
such as satellites and space probes, shall be reported as Contract Work 
in Process. Contractors shall separately report:
    (1) The amount for all items with a unit acquisition cost of 
$100,000 or more and a useful life of two years or more; and
    (2) All other items.
    (l) Contract work-in-process. Includes costs of all work-in-process 
regardless of value; excludes costs of completed items reported in other 
categories. Includes completed end items of property which otherwise 
meet the definition of

[[Page 353]]

Agency-Peculiar Property, but are destined for permanent operation in 
space, such as satellites and space probes.

[65 FR 54814, Sept. 11, 2000, as amended at 65 FR 82297, Dec. 28, 2000; 
66 FR 41806, Aug. 9, 2001]



Sec. 1845.7101-2  Transfers of property.

    A transfer is a change in accountability between and among prime 
contracts, NASA Centers, and other Government agencies (e.g., between 
contracts of the same NASA Center, contracts of different NASA Centers, 
a contract of one NASA Center to another, a NASA Center to a contract of 
another NASA Center, and a contract to another Government agency or its 
contract). To enable NASA to 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 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 accounted for and 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 NASA 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 to conduct repairs are 
reportable, regardless of contract type.
    (a) Approval and notification. The contractor must obtain 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 
(including Federal Supply Classification group (FSC) codes for 
equipment), unit acquisition costs (as defined in 1845.7101-3, Unit 
Acquisition Cost), original acquisition dates for items with a unit 
acquisition cost of $100,000 or more and a useful life of two years or 
more, and any other appropriate identifying or descriptive data. Where 
the DD Form 250, Material Inspection and Receiving Report, is used, the 
FSC code will be part of the national stock number (NSN) entered in 
Block 16 or, if the NSN is not provided, the FSC alone shall be shown in 
Block 16. The original acquisition date shall be shown in Block 23, by 
item. Other formats, such as the DD Form 1149, Requisition and Invoice/
Shipping Document, should be clearly annotated with the required 
information. Unit acquisition costs shall be obtained from records 
maintained pursuant to FAR Part 45 and this Part 1845, or, for 
uncompleted items where property records have not yet been established, 
from such other record systems as are appropriate such as manufacturing 
or engineering records used for work control and billing purposes. 
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 NASA 
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 intends to incorporate into special test equipment, 
the recipient shall first record the item in the equipment account and 
subsequently reclassify it as

[[Page 354]]

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, FSC, unit acquisition cost, 
acquisition date, etc.) they shall request the omitted data directly 
from the shipping contractor or through the property administrator as 
provided in FAR 45.505-2. The contracting officer shall assist the 
Government Property Administrator and the receiving contractor to obtain 
all required information for the receiving contractor to establish 
adequate property records.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



Sec. 1845.7101-3  Unit acquisition cost.

    (a) The unit acquisition cost shall include all costs incurred to 
bring the property to a form and location suitable for its intended use. 
The following is representative of the types of costs that shall be 
included, when applicable:
    (1) Amounts paid to vendors or other contractors.
    (2) Transportation charges to the point of initial use.
    (3) Handling and storage charges.
    (4) Labor and other direct or indirect production costs (for assets 
produced or constructed).
    (5) Engineering, architectural, and other outside services for 
designs, plans, specifications, and surveys.
    (6) Acquisition and preparation costs of buildings and other 
facilities.
    (7) An appropriate share of the cost of the equipment and facilities 
used in construction work.
    (8) Fixed equipment and related installation costs required for 
activities in a building or facility.
    (9) Direct costs of inspection, supervision, and administration of 
construction contracts and construction work.
    (10) Legal and recording fees and damage claims.
    (11) Fair values of facilities and equipment donated to the 
Government.
    (b) Acquisition cost shall include, where appropriate, for 
contractor acquired Special Test Equipment, Special Tooling, Agency-
Peculiar Property and Contract Work-In-Process, related fees, or a pro 
rata portion of fees, paid by NASA to the contractor. Situations where 
inclusion of fees in the acquisition cost would be appropriate are those 
in which the contractor designs, develops, fabricates or purchases 
property for NASA and part of the fees paid to the contractor by NASA 
are related to that effort.
    (c) The use of weighted average methodologies is acceptable for 
valuation of Material.
    (d) Contractors shall report unit acquisition 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 include all direct and indirect costs of 
fabrication.
    (e) Only modifications that improve an item's capacity or extend its 
useful life two years or more and that cost $100,000 or more shall be 
reported on the NF 1018 on the $100,000 & Over line. The costs of any 
other modifications, excluding routine maintenance, will be reported on 
the Under $100,000 line. If an item's original unit acquisition cost is 
less than $100,000, but a single subsequent modification costs $100,000 
or more, that modification only will be reported as an item $100,000 or 
more on subsequent NF 1018s. The original acquisition cost of the item 
will continue to be included in the under $100,000 total. The quantity 
for the modified item will remain ``1'' and be reported with the 
original acquisition cost of the item. If an item's acquisition cost is 
reduced by removal of components so that its remaining acquisition cost 
is under $100,000, it shall be reported as under $100,000.
    (f) The computation of work in process shall include all direct and 
indirect costs of fabrication, including 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

[[Page 355]]

spares). Also included are deliverable items on which the contractor or 
a subcontractor has begun work, and materials issued from inventory. 
Work in Process shall include the unit acquisition cost of completed end 
items of property which otherwise meet the definition of Agency-Peculiar 
Property, but which are destined for permanent operation in space, such 
as satellites and space probes.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



Sec. 1845.7101-4  Types of deletions from contractor property records.

    Contractors shall report the types of deletions from contract 
property records as described in this section.
    (a) Lost, damaged or destroyed. Deletion amounts that result from 
relief from responsibility under FAR 45.503 granted during the reporting 
period.
    (b) Transferred in Place. Deletion amounts that result from transfer 
of property to a follow-on prime contract or other prime contract with 
the same contractor.
    (c) Transferred to NASA Center accountability. Deletion amounts that 
result from transfer of accountability to the NASA Center responsible 
for the contract, whether or not items are physically moved.
    (d) Transferred to another NASA Center. Deletion amounts that result 
from transfer of accountability to a NASA Center other than the one 
responsible for the contract, whether or not items are physically moved.
    (e) Transferred to another Government agency. Deletion amounts that 
result from transfer of property to another Government agency.
    (f) Purchased at cost/returned for credit. Deletion amounts that 
result from contractor purchase or retention of contractor acquired 
property as provided in FAR 45.605-1, or from contractor returns to 
suppliers under FAR 45.605-2.
    (g) Disposed of through plant clearance process. Deletions other 
than transfers within the Federal Government, e.g., donations to 
eligible recipients, sold at less than cost, or abandoned/directed 
destruction.
    (h) Other. Types of deletion other than those reported in paragraph 
(a) through (g) of this section such as those resulting from 
reclassifications (e.g. from equipment to agency-peculiar property).

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



Sec. 1845.7101-5  Contractor's privileged financial and business 
          information.

    If a transfer of property between contractors involves disclosing 
costs of a proprietary nature, the contractor shall furnish unit 
acquisition costs only on copies of shipping documents sent to the 
shipping and receiving NASA Centers.

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



Sec. 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

[[Page 356]]

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, 
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

[[Page 357]]

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



Sec. 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.



Sec. 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.

[[Page 358]]

    (c) Maintenance of property administration and plant clearance 
functional oversight, regardless of delegations.



Sec. 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.



Sec. 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.



Sec. 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:
    (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.

[[Page 359]]

    (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.



Sec. 1845.7206  Responsibilities of property administrators and plant 
          clearance officers.



Sec. 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.



Sec. 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;

[[Page 360]]

    (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.



Sec. 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.



Sec. 1845.7208  Closure of contracts.



Sec. 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.



Sec. 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.



Sec. 1845.7209  Special subjects.



Sec. 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.

[[Page 361]]

    (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.



Sec. 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

[[Page 362]]

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.
    (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.



Sec. 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

[[Page 363]]

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.



Sec. 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).



Sec. 1845.7210  Contractor utilization of Government property.



Sec. 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 administrator shall make maximum use of contractor's machine

[[Page 364]]

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.



Sec. 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 1846--QUALITY ASSURANCE

Sec.

Sec. 1846.000  Scope of part.

                    Subpart 1846.3--Contract Clauses


Sec. 1846.370  NASA contract clauses.

          Subpart 1846.4--Government Contract Quality Assurance


Sec. 1846.401  General.

Sec. 1846.470  Contract clause.

        Subpart 1846.6--Material Inspection and Receiving Reports


Sec. 1846.670  Introduction.

Sec. 1846.670-1  General.

Sec. 1846.670-2  Applicability.

Sec. 1846.670-3  Use.

Sec. 1846.670-4  Multiple shipments.

Sec. 1846.670-5  Forms.

Sec. 1846.671  Contract quality assurance on shipments between 
          contractors.

Sec. 1846.672  Preparing DD Forms 250 and 250c.

Sec. 1846.672-1  Preparation instructions.

Sec. 1846.672-2  Consolidated shipments.

Sec. 1846.672-3  Multiple consignee instructions.

Sec. 1846.672-4  Correction instructions.

Sec. 1846.672-5  Invoice instructions.

Sec. 1846.672-6  Packing list instructions.

Sec. 1846.672-7  Receiving instructions.

Sec. 1846.673  Distribution of DD Forms 250 and 250c.

Sec. 1846.674  Contract clause.

                       Subpart 1846.7--Warranties


Sec. 1846.703  Criteria for use of warranties.

Sec. 1846.703-70  Additional criteria.

Sec. 1846.704  Authority for use of warranties.

Sec. 1846.770  Administration.

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

    Source: 62 FR 14024, Mar. 25, 1997, unless otherwise noted.



Sec. 1846.000  Scope of part.

    The Government has a duty to assure that appropriated funds are 
spent wisely. That duty is fulfilled in part through surveillance. 
Surveillance may be conducted through ``insight'' (i.e., monitoring of 
selected metrics and/or milestones) or ``oversight'' (i.e., Government 
review and concurrence with contractor decisions). The decision to use 
insight or oversight is based on an assessment of the risk inherent in 
the activity being surveilled. Surveillance must be conducted whether or 
not the contract effort has been structured as performance-based.

[65 FR 37060, June 13, 2000]

                    Subpart 1846.3--Contract Clauses



Sec. 1846.370  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.246-70, 
Mission Critical Space System Personnel Reliability Program, in 
solicitations and contracts involving critical positions designated in 
accordance with 14 CFR 1214.5, Mission Critical Space System Personnel 
Reliability Program.
    (b) The contracting officer shall insert the clause at 1852.246-73, 
Human Space Flight Item, in solicitations and contracts for human space 
flight hardware and flight-related equipment if the highest available 
quality standards

[[Page 365]]

are necessary to ensure astronaut safety.

          Subpart 1846.4--Government Contract Quality Assurance



Sec. 1846.401  General. (NASA supplements paragraph (a))

    (a) The quality assurance surveillance plan (QASP) which the project 
office prepares in conjunction with the statement of work is 
preliminary. It reflects the Government's surveillance approach relative 
to the perceived programmatic risk, and is written at a general rather 
than specific level because the risks will not be completely identified 
at that time. After contract award, contracting officers shall ensure 
that the QASP is revised to reflect the risks associated with the 
successful proposal. This final QASP shall not be included in the 
contract, but should be periodically reviewed to ensure its currency.

[65 FR 37060, June 13, 2000]



Sec. 1846.470  Contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.246-71, Government Contract Quality Assurance Functions, in 
solicitations and contracts to specify the location(s) of quality 
assurance functions.

        Subpart 1846.6--Material Inspection and Receiving Reports



Sec. 1846.670  Introduction.



Sec. 1846.670-1  General.

    (a) This Subpart contains procedures and instructions for use of the 
Material Inspection and Receiving Report (MIRR) (DD Form 250 series) and 
commercial shipping/packing lists used to evidence Government contract 
quality assurance (CQA).
    (b) MIRRs are used to document CQA, acceptance of supplies and 
services, and shipments. MIRRs are not used for--
    (1) Shipments by subcontractors not made to the Government;
    (2) Shipment of contractor inventory (see FAR 45.601); or
    (3) Movement of Government property unless for original acquisition.



Sec. 1846.670-2  Applicability.

    (a) This subpart applies to all deliveries of supplies or services 
acquired by or for NASA except:
    (1) Acquisitions under FAR part 13;
    (2) Negotiated subsistence acquisitions; or
    (3) Contracts for which the end item is a technical or scientific 
report.
    (b) The DD Form 250 may be used for imprest fund purchases, purchase 
orders, delivery orders placed against Federal Supply Schedule 
contracts, delivery orders placed against indefinite-delivery contracts, 
or delivery orders placed against blanket purchase agreements, or when 
the purchasing, requisitioning, or ordering document provides for 
inspection and/or acceptance.
    (c) When NASA provides CQA and/or acceptance services for non-NASA 
activities, the MIRR shall be prepared in accordance with the 
instructions of this subpart unless the contract specifies otherwise.



Sec. 1846.670-3  Use.

    The DD Form 250 is a multipurpose report used for--
    (a) Providing evidence of CQA at origin or destination;
    (b) Providing evidence of acceptance at origin or destination;
    (c) Packing list documentation;
    (d) Receiving;
    (e) Shipping;
    (f) Contractor invoice; and
    (g) Contractor invoice support.



Sec. 1846.670-4  Multiple shipments.

    (a) If the ``shipped to,'' ``marked for,'' ``shipped from,'' 
``CQA,'' and ``acceptance'' data are the same for more than one shipment 
made on the same day under the same contract in a single car, truck, or 
other vehicle, one MIRR shall be prepared to cover all such shipments.
    (b) If the volume of the shipments precludes the use of a single 
car, truck, or other vehicle, a separate MIRR shall be provided for each 
vehicle.



Sec. 1846.670-5  Forms.

    (a) Contractors may obtain MIRR forms from the contracting office at 
no cost.
    (b) Contractors may print forms, provided their format and 
dimensions are

[[Page 366]]

identical to the MIRR forms printed by the Government.



Sec. 1846.671  Contract quality assurance on shipments between 
          contractors.

    (a) The supplier's commercial shipping document/packing list shall 
indicate performance of required CQA actions at subcontract level.
    The following entries shall be made on the document/packing list:

    Required CQA of items has been performed.
________________________________________________________________________
(Signature of Authorized Government Representative)

________________________________________________________________________
(Date)

________________________________________________________________________
(Typed Name and Office)

    (b) Distribution for Government purposes shall be one copy each--
    (1) With shipment;
    (2) For the Government representative at consignee (via mail); and
    (3) For the Government representative at consignor.



Sec. 1846.672  Preparing DD Forms 250 and 250c.



Sec. 1846.672-1  Preparation instructions.

    (a) General. (1) Dates shall utilize seven spaces consisting of the 
last two digits of the year, three-alpha month abbreviation, and two 
digits for the day (e.g., 96SEP24).
    (2) Addresses shall consist of the name, street address/P.O. box, 
city, State, and ZIP code.
    (3) The data entered in the blocks at the top of DD Form 250C shall 
be identical to the comparable entries in Blocks 1, 2, 3, and 6 of the 
DD Form 250.
    (4) Overflow data of the DD Form 250 shall be entered in Block 16 or 
in the body of the DD Form 250c with block cross reference. Additional 
DD Form 250c sheets solely for continuation of Block 23 data shall not 
be numbered or distributed as part of the MIRR.
    (b) Classified information. Classified information shall not appear 
on the MIRR, nor shall the MIRR be classified.
    (c) Block 1--PROC. INSTRUMENT IDEN. (CONTRACT). Enter the contract 
number, with its identifying center prefix, as contained in the 
contractual document, including any call/order number.
    (d) Block 2--SHIPMENT NO. (1) The shipment number is a three-alpha 
character prefix and a four-character numeric or alpha-numeric serial 
number.
    (i) The prefix shall be controlled and assigned by the prime 
contractor and shall consist of three alpha characters for each 
``shipped from'' address (Block 11). The prefix shall be different for 
each ``Shipped From'' address and shall remain constant throughout the 
contract period.
    (ii) The serial number for the first shipment under a prime contract 
from each ``shipped from'' address shall be 0001; subsequent shipments 
under that prime contract shall be consecutively numbered. Alpha-
numerics shall be used when more than 9,999 numbers are required. Alpha-
numerics shall be serially assigned, with the alpha in the first 
position, followed by the three-position numeric serial number. The 
alpha-numeric sequence shall be (the letters I and O shall not be used) 
A001 through A999 (10,001 through 10,999); B001 through B999 (11,001 
through 11,999); to Z999. When this series is completely used, numbering 
shall revert to 0001.
    (2) The shipment number of the initial shipment shall be reassigned 
when a ``replacement shipment'' is involved (see paragraph (r)(4)(iv) of 
this section).
    (3) The prime contractor shall control deliveries and on the last 
shipment of the contract shall suffix the shipment number with a ``Z'' 
in addition to that required for line items (see Block 17). If the 
contract final shipment is from other than the prime contractor's plant, 
the prime contractor may elect
    (i) To direct the subcontractor to suffix the ``Z'' or
    (ii), On receipt of the subcontractor final shipment information, to 
correct the DD Form 250 covering the last shipment from the prime 
contractor's plant by adding a ``Z'' to that shipment number.
    (e) Block 3--DATE SHIPPED. Enter the date the shipment is released 
to the carrier or the date of completion of services. If the shipment 
will be released after the date of CQA and/or acceptance, enter the 
estimated date of

[[Page 367]]

release. When the date is estimated, enter an ``E'' after it. 
Distribution of the MIRR shall not be delayed for entry of the actual 
shipping date. Reissurance of the MIRR is not required to show the 
actual shipping date.
    (f) Block 4--B/L TCN. When applicable, enter the commercial or 
Government bill of lading number after ``B/L''; and the Transportation 
Control Number after ``TCN.''
    (g) Block 5--DISCOUNT TERMS. (1) The Contractor may enter the 
discount in terms of percentages on all copies of the MIRR.
    (2) When the MIRR is used as an invoice, see 1846.672-5.
    (h) Block 6--INVOICE. (1) The contractor may enter the invoice 
number and actual or estimated date on all copies of the MIRR. When the 
date is estimated, enter an ``E'' after the date. Do not correct MIRRs 
other than invoice copies to reflect the actual date of invoice 
submission.
    (2) When the MIRR is used as an invoice, see 1846.672-5.
    (i) Block 7--PAGE/OF. Consecutively number the pages comprising the 
MIRR. On each page, enter the total number of pages of the MIRR.
    (j) Block 8--ACCEPTANCE POINT. Enter an ``S'' for origin or ``D'' 
for destination as specified in the contract as the point of acceptance. 
Enter an alphabetic ``O'' for other if the point of acceptance is not 
specified in the contract.
    (k) Block 9--PRIME CONTRACTOR. Enter the code and address.
    (l) Block 10--ADMINISTERED BY. Enter the code and address of the 
contracting office cited in the contract.
    (m) Block 11--SHIPPED FROM/CODE/FOB. (1) Enter the code and address 
of the ``shipped from'' location. If identical to Block 9, enter ``See 
Block 9.''
    (2) For performance of services that do not require delivery of 
items upon completion, enter the code and address of the location at 
which the services were performed. If the DD Form 250 covers performance 
at multiple locations or if identical to Block 9, enter ``See Block 9.''
    (3) Enter on the same line and to the right of ``FOB'' an ``S'' for 
origin or ``D'' for destination as specified in the contract. Enter an 
alphabetic ``O'' if the FOB point cited in the contract is other than 
origin or destination.
    (n) Block 12--PAYMENT WILL BE MADE BY. Enter the address of the 
payment office cited in the contract.
    (o) Block 13--SHIPPED TO/CODE. Enter the code and address from the 
contract or shipping instructions.
    (p) Block 14--MARKED FOR/CODE. Enter the code and address from the 
contract or shipping instructions.
    (q) Block 15--ITEM NO. Enter the item number used in the contract. 
If four or fewer digits are used, position them to the left of the 
vertical dashed line. Where a six-digit identification is used, enter 
the last two digits to the right of the vertical dashed line.
    (r) Block 16--STOCK/PART NO./DESCRIPTION. (1) Enter, as applicable, 
for each item, using single spacing between each line item, the 
following:
    (i) The Federal Stock Number (FSN) or noncatalog number and, if 
applicable, prefix or suffix. When a number is not provided or it is 
necessary to supplement the number, include other identification such as 
the manufacturer's name or Federal Supply Code (as published in 
Cataloging Handbook H4-1), and part numbers. Additional part numbers may 
be shown in parentheses. Also enter the descriptive noun of the item 
nomenclature and, if provided, the Government-assigned management/
material control code. In the case of equal-kind supply items, the first 
entry shall be the description without regard to kind (e.g., 
``Resistor''). Below this description, enter the contract item number in 
Block 15 and stock/part number followed by the size or type in Block 16.
    (ii) On the next printing line, if required by the contract for 
control purposes, enter the make, model, serial number, lot, batch, 
hazard indicator, and/or similar description.
    (iii) On the next printing line, enter the FEDSTRIP requisition 
number(s) when provided in the contract or shipping instructions.
    (2) For service items, enter the word ``SERVICE'' followed by a 
short description of less than 20 characters. Do not complete items 4, 
13, and 14 when material is not shipped.

[[Page 368]]

    (3) For all contracts administered by the Defense Contract 
Management Command, with the exception of fast pay procedures, enter and 
complete the following:

          Gross Shipping Wt.----(State weight in pounds only).

    (4) Enter on the next line the following as appropriate (entries may 
be extended through Block 20). When entries apply to more than one item 
in the MIRR, enter them only once after the last item and reference the 
applicable item numbers.
    (i) Enter in capital letters any special handling instructions/
limits for material environmental control (e.g., temperature, humidity, 
aging, freezing, and shock).
    (ii) When an FSN is required by, but not cited in, a contract and 
has not been furnished by the Government, shipment may be made at the 
direction of the contracting officer. Enter the authority for the 
shipment.
    (iii) When Government-furnished property (GFP) is included with or 
incorporated into the line item, enter ``GFP''.
    (iv) When the shipment consists of replacements for supplies 
previously furnished, enter in capital letters ``REPLACEMENT SHIPMENT'' 
(see paragraph (s)(3) of this section for replacement indicators.)
    (v) For items shipped with missing components, enter and complete 
the following: ``Item(s) shipped short of the following component(s): 
FSN or comparable identification --------, Quantity --------, Estimated 
Value --------, Authority --------.''
    (vi) When shipment is made of components that were short on a prior 
shipment, enter and complete the following: ``These components were 
listed as shortages on Shipment Number --------, date shipped--------.''
    (vii) When shipments involve drums, cylinders, reels, containers, 
skids, etc., designated as returnable under contract provisions, enter 
and complete the following: ``Return to --------, Quantity --------, 
Item --------, Ownership (Government/contractor).''
    (viii) Enter shipping container number(s), the type, and the total 
number of the shipping container(s) included in the shipment.
    (ix) The MIRR shall be used to record and report the waivers and 
deviations from contract specifications, including the source and 
authority for the waiver or deviation (e.g., the contracting office 
authorizing the waiver or deviation and the identification of the 
authorizing document).
    (x) For shipments involving discount terms, enter ``DISCOUNT 
EXPEDITE'' in at least one-inch outline-type letters.
    (xi) When test/evaluation results are a condition of acceptance and 
are not available before shipment, the following note shall be entered 
if the shipment is approved by the contracting officer: ``Note: 
Acceptance and payment are contingent upon receipt of approved test/
evalution results.'' The contracting officer shall advise (A) the 
consignee of the results (approval/disapproval) and (B) the contractor 
to withhold invoicing pending attachment to its invoice of the approved 
test/evaluation results.
    (xii) The copy of the DD Form 250 required to support payment for 
destination acceptance (top copy of the four with shipment) or 
Alternative Release Procedure (ARP) origin acceptance (additional copy 
furnished to the Quality Assurance Representative (QAR)) shall be 
identified by entering ``PAYMENT COPY'' in approximately one-half-inch 
outline-type letters with ``FORWARD TO BLOCK 12 ADDRESS'' in 
approximately one-quarter-inch letters immediately below. Do not 
obliterate any other entries.
    (xiii) A double line shall be drawn completely across the form 
following the last entry.
    (s) Block 17--QUANTITY SHIP/REC'D. (1) Enter the quantity shipped, 
using the unit of measure indicated in the contract for payment. When a 
second unit of measure is used for purposes other than payment, enter 
the appropriate quantity directly below in parentheses.
    (2) Enter a ``Z'' below the first digit of the quantity when the 
total quantity of the item is delivered, including variations within 
contract terms; and all shortages on items previously shipped short are 
delivered.

[[Page 369]]

    (3) If a replacement shipment is involved, enter below the first 
digit of the quantity the letter ``A'' top designate first replacement, 
``B'' for second replacement, and so forth. The final shipment indicator 
``Z'' shall not be used when a final line item shipment is replaced.
    (t) Block 18 UNIT. Enter the abbreviation of the unit of measure 
indicated in the contract for payment. When a second unit of measure is 
indicated in the contract for purposes other than payment or is used for 
shipping purposes, enter the abbreviation of the second unit of measure 
directly below in parentheses. Authorized abbreviations are listed in 
MIL-STD-129, Marking for Shipping and Storage.
    (u) Block 19--UNIT PRICE. Enter the unit price on all NASA copies 
whenever the MIRR is used for voucher or receiving purposes.
    (v) Block 20--AMOUNT. Enter the extended amount when the unit price 
is entered in Block 19.
    (w) Block 21--CONTRACT QUALITY ASSURANCE. The words ``conform to 
contract'' contained in the printed statements in Blocks A and B relate 
to contract obligations pertaining to quality and to the quantity of the 
items on the report. The statements shall not be modified. Notes taking 
exception shall be entered in Block 16 or on attached supporting 
documents with block cross reference.
    (1) ``A. ORIGIN.''
    (i) The authorized Government representative shall--
    (A) Place an ``X'' when applicable in the appropriate CQA and/or 
acceptance box(es) to evidence origin CQA and/or acceptance. When the 
contract requires CQA at destination in addition to origin CQA, an 
asterisk shall be entered at the end of the statement and an explanatory 
note in Block 16;
    (B) Sign and date; and
    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (2) ``B. DESTINATION.''
    (i) When acceptance at origin is indicated in Block 21A, no entries 
shall be made in Block 21B.
    (ii) When acceptance of CQA and acceptance are at destination, the 
authorized Government representative shall--
    (A) Place an ``X'' in the appropriate box(es);
    (B) Sign and date; and
    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (x) Block 22--RECEIVER'S USE. This block shall be used by the 
receiving authority (Government or contractor) to denote receipt, 
quantity, and condition. The receiving activity shall enter in this 
block the date the supplies arrived. For example, when off-loading or 
in-checking occurs subsequent to the day of arrival of the carrier at 
the installation, the date of the carrier's arrival is the date received 
for purposes of this block.
    (y) Block 23--CONTRACTOR USE ONLY. This block is provided and 
reserved for contractor use.



Sec. 1846.672-2  Consolidated shipments.

    When individual shipments are held at the contractor's plant for 
authorized transportation consolidation to a single destination on a 
single bill of lading, the applicable DD Forms 250 may be prepared at 
the time of CQA or acceptance prior to the time of actual shipment (see 
Block 3).



Sec. 1846.672-3  Multiple consignee instructions.

    The contractor may prepare one MIRR when the identical item(s) of a 
contract is to be shipped to more than one consignee, with the same or 
varying quantities, and the shipment requires origin acceptance. Prepare 
the MIRR using the procedures in this subpart with the following 
changes:
    (a) Blocks 2, 4, 13, and, if applicable, 14--Enter ``See Attached 
Distribution List.''
    (b) Block 15--The contractor may group item numbers for identical 
stock/part number and description.
    (c) Block 17--Enter the ``total'' quantity shipped by item or, if 
applicable, grouped identical items.
    (d) Use the DD Form 250c to list each individual ``Shipped To'' and 
``Marked For'' with--
    (1) Code(s) and complete shipping address and a sequential shipment 
number for each;

[[Page 370]]

    (2) Item number(s);
    (3) Quantity;
    (4) The FEDSTRIP requisition number and quantity for each when 
provided in the contract or shipping instructions; and
    (5) If applicable, bill of lading number and mode of shipment code.



Sec. 1846.672-4  Correction instructions.

    When, because of errors or omissions, it is necessary to correct the 
MIRR after distribution, it shall be revised by correcting the original 
master and distributing the corrected form. The corrections shall be 
made as follows:
    (a) Circle the error and place the corrected information in the same 
block. If space is limited, enter the corrected information in Block 16, 
referencing the error page and block.
    (b) When corrections are made to Blocks 15 and 17, enter the words 
``CORRECTIONS HAVE BEEN VERIFIED'' on page 1. The authorized Government 
representative shall date and sign immediately below the statement. This 
verification statement and signature are not required for other 
corrections.
    (c) MIRRs shall not be corrected for Block 19 and 20 entries.
    (d) Clearly mark pages of the MIRR requiring correction with the 
words ``CORRECTED COPY'', avoiding obliteration of any other entries. 
Even though corrections are made on continuation sheets only, also mark 
page 1 ``CORRECTED COPY''.
    (e) Page 1 and only those continuation pages marked ``CORRECTED 
COPY'' shall be distributed to the initial distribution. A complete MIRR 
with corrections shall be distributed to new addressee(s) created by 
error corrections.



Sec. 1846.672-5  Invoice instructions.

    The Government encourages, but does not require, contractors to use 
copies of the MIRR as an invoice in lieu of a commercial form. If the 
MIRR is used as an invoice, four copies shall be prepared and forwarded 
to the payment office as follows:
    (a) Complete Blocks 5, 6, 19, and 20.
    (b) Mark, in letters approximately one inch high, the first copy 
``ORIGINAL INVOICE'' and the remaining three copies ``INVOICE COPY''.
    (c) Forward the four copies to the payment office (Block 12 
address).



Sec. 1846.672-6  Packing list instructions.

    Copies of the MIRR may be used as a packing list. The packing list 
copies shall be in addition to the copies of the MIRR required for 
distribution (see 1846.673) and shall be marked ``PACKING LIST''.



Sec. 1846.672-7  Receiving instructions.

    When the MIRR is used for receiving purposes, procedures shall be as 
prescribed by local directives. If acceptance or CQA and acceptance of 
supplies are required upon arrival at destination, see Block 21B for 
instructions.



Sec. 1846.673  Distribution of DD Forms 250 and 250c.

    (a) DD Forms 250 and 250c shall be distributed in accordance with 
installation procedures.
    (b) The contractor is responsible for distributing DD Forms 250 and 
250c in accordance with the provisions of the contract or instructions 
of the contracting officer.



Sec. 1846.674  Contract clause.

    The contracting officer shall insert the clause at 1852.246-72, 
Material Inspection and Receiving Report, in solicitations and 
contracts, except those using simplified acquisition procedures or where 
the only deliverable items are technical or scientific reports. Insert 
the number of copies to be prepared. Paragraph (a) may be changed to 
specify advance copies or separate distribution of the DD Form 250.

                       Subpart 1846.7--Warranties



Sec. 1846.703  Criteria for use of warranties.



Sec. 1846.703-70  Additional criteria.

    In deciding whether to use a warranty clause, at least the following 
factors shall be considered in addition to those at FAR 46.703:
    (a) Cost of correction or replacement, either by the contractor or 
by another source, in the absence of a warranty;

[[Page 371]]

    (b) The warranty as a deterrent against the furnishing of defective 
or nonconforming supplies;
    (c) Whether the contractor's quality program is reliable enough to 
provide adequate protection without a warranty, or, if not, whether a 
warranty would cause the contractor to institute an effective quality 
program;
    (d) Reliance on ``brand-name'' integrity; and
    (e) Whether a warranty is regularly given for a commercial component 
of a more complex end item.



Sec. 1846.704  Authority for use of warranties. (NASA paragraphs (1), 
          (2) and (3))

    (1) A warranty clause may be used when it is found to be in the best 
interests of the Government, after an analysis of the factors listed in 
1846.703-70 and FAR 46.703.
    (2) Except for the warranty of commercial items (see FAR 12.404 and 
46.709), and warranties contained in Federal, military, or construction 
specifications, the decision to use a warranty clause or to include a 
warranty provision in a specification other than a Federal, military, or 
construction specification shall be made only upon the written 
authorization of the procurement officer or a designee. This decision 
may be made either for individual acquisitions or classes of 
acquisitions.
    (3) Warranties required by applicable architect-engineer 
specifications shall be included in construction contracts.



Sec. 1846.770  Administration.

    When notified of a defect in warranted items, the contracting 
officer should ascertain whether the warranty is currently in effect and 
ensure that the contractor is given proper and timely notice of the 
defect.

                        PART 1847--TRANSPORTATION

   Subpart 1847.2--Contracts for Transportation or for Transportation-
                            Related Services

Sec.

Sec. 1847.200  Scope of subpart.

Sec. 1847.200-70  Charter of aircraft.

           Subpart 1847.3--Transportation in Supply Contracts


Sec. 1847.304  Determination of delivery terms.

Sec. 1847.304-3  Shipments from CONUS for overseas delivery.

Sec. 1847.304-370  NASA export privilege.

Sec. 1847.305  Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 1847.305-10  Packing, marking, and consignment instructions.

Sec. 1847.305-13  Transit arrangements.

Sec. 1847.305-70  NASA contract clauses.

        Subpart 1847.5--Ocean Transportation by U.S.-Flag Vessels


Sec. 1847.506  Procedures.

           Subpart 1847.70--Protection of the Florida Manatee


Sec. 1847.7001  Contract clause.

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

    Source: 62 FR 14028, Mar. 25, 1997, unless otherwise noted.

   Subpart 1847.2--Contracts for Transportation or for Transportation-
                            Related Services



Sec. 1847.200  Scope of subpart.



Sec. 1847.200-70  Charter of aircraft.

    When acquiring aircraft by charter, contracting officers shall 
comply with NPG 7900.3, Aircraft Operations Management.

[64 FR 51079, Sept. 21, 1999]

           Subpart 1847.3--Transportation in Supply Contracts



Sec. 1847.304  Determination of delivery terms.



Sec. 1847.304-3  Shipments from CONUS for overseas delivery.



Sec. 1847.304-370  NASA export privilege.

    NASA has export licensing privileges for moving commodities to 
foreign destinations. Contracting officers shall request the advice of 
the Center Export Administrator to ensure full and appropriate use is 
made of these privileges.

[[Page 372]]



Sec. 1847.305  Solicitation provisions, contract clauses, and 
          transportation factors.



Sec. 1847.305-10  Packing, marking, and consignment instructions.

    In contracts providing for delivery f.o.b. origin and shipment under 
Government bills of lading, consignment instructions may be limited to 
the mail address of the consignee (receiving activity), provided the 
contract instructions state: ``Shipment other than mail shall be 
consigned as indicated on the Government bill of lading furnished to the 
contractor.''



Sec. 1847.305-13  Transit arrangements. (NASA supplements paragraph (a))

    (a)(3)(ii) When the provision at FAR 52.247-56 is used, the 
solicitation shall state that offers will be evaluated on the basis of 
the lowest overall cost to the Government, including transportation 
costs to NASA from point of origin to final destination, taking into 
account any applicable transit privileges.



Sec. 1847.305-70  NASA contract clauses.

    (a) The contracting officer may insert a clause substantially as 
stated at 1852.247-72, Advance Notice of Shipment, in solicitations and 
contracts when the f.o.b. point is destination and special Government 
assistance is required in the delivery or receipt of the items.
    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.247-73, Bills of Lading, in f.o.b. origin solicitations 
and contracts.

[62 FR 14028, Mar. 25, 1997, as amended at 67 FR 38908, June 6, 2002]

        Subpart 1847.5--Ocean Transportation by U.S.-Flag Vessels



Sec. 1847.506  Procedures. (NASA supplements paragraph (d))

    (d)(i) The transportation officer in each installation shall 
establish and maintain a register to reflect adherence to the Cargo 
Preference Act. The register shall contain data related to shipments 
made by the installation and by NASA contractors. Where no 
transportation officer is available, it shall be maintained by the 
contracting office. The register shall contain pertinent details of 
ocean shipments including, but not limited to, the ports of origin and 
destination of shipments, commodity descriptions, gross weight, freight 
revenue, name of vessel, operator of vessel, and date of loading. The 
register shall be maintained current and organized so that adherence to 
the Cargo Preference Act can be ascertained at all times. To the maximum 
practicable extent, compliance with the 50-percent minimum requirements 
of the Cargo Preference Act shall be maintained on a quarter-year basis; 
any deficiencies in maintaining compliance shall be corrected by the end 
of the calendar year.
    (ii) On the basis of the registers maintained under paragraph (d)(i) 
of this section, the official maintaining the register shall submit 
quarterly reports reflecting ocean shipments to the Division of National 
Cargo, Office of Market Development, Maritime Administration, Department 
of Transportation, Washington, DC, 20590. Negative reports are required 
when applicable.

           Subpart 1847.70--Protection of the Florida Manatee



Sec. 1847.7001  Contract clause.

    The contracting officer shall insert the clause at 1852.247-71, 
Protection of the Florida Manatee, in solicitations and contracts when 
deliveries or vessel operations, dockside work, or disassembly functions 
under the contract will involve use of waterways inhabited by manatees. 
The clause shall also be included in applicable subcontracts (including 
vendor deliveries).

                      PART 1848--VALUE ENGINEERING

                 Subpart 1848.1--Policies and Procedures

Sec.

Sec. 1848.102  Policies.

Sec. 1848.103  Processing value engineering change proposals.

Sec. 1848.104  Sharing arrangements.

Sec. 1848.104-3  Sharing collateral savings.

                    Subpart 1848.2--Contract Clauses


Sec. 1848.201  Clauses for supply or service contracts.

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

[[Page 373]]


    Source: 62 FR 14029, Mar. 25, 1997, unless otherwise noted.

                 Subpart 1848.1--Policies and Procedures



Sec. 1848.102  Policies. (NASA supplements paragraphs (a) and (f))

    (a) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for exemptions.
    (f) In calculating instant or future contract savings on firm-fixed-
price contracts when the parties have not set out a specific figure for 
profit, the contracting officer shall use the total contract price as 
the basis for calculating the savings.



Sec. 1848.103  Processing value engineering change proposals. (NASA 
          supplements paragraph (a))

    (a) Upon receipt of a VECP, the contracting officer shall promptly 
forward it to the technical officer responsible for the contract with 
the following information:
    (i) Date of VECP receipt;
    (ii) Date for notifying the contractor of VECP acceptance or 
rejection;
    (iii) Notification of the potential for awarding concurrent, future, 
or collateral savings to the contractor if the VECP is accepted;
    (iv) Request for a technical evaluation, with complete rationale for 
recommended acceptance or rejection, to include if acceptance is 
recommended:
    (A) An estimate of the type of savings, Government costs, etc., that 
can be expected from its acceptance;
    (B) A procurement request setting forth the specification changes to 
be used in any contract modification accepting the VECP in whole or in 
part; and
    (C) Additional funds if acceptance of the VECP results in negative 
instant contract savings.
    (v) Technical evaluation due date.



Sec. 1848.104  Sharing arrangements.



Sec. 1848.104-3  Sharing collateral savings. (NASA supplements paragraph 
          (a))

    (a) The contracting officer is authorized to make the determination 
that the cost of calculating and tracking collateral savings will exceed 
the benefits to be derived.

[65 FR 12485, Mar. 9, 2000]

                    Subpart 1848.2--Contract Clauses



Sec. 1848.201  Clauses for supply or service contracts. (NASA 
          supplements paragraphs (a), (b), (c), and (d))

    (a)(6) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for exemptions.
    (b) The contracting officer shall not insert the clause at FAR 
52.248-1, Value Engineering, either with or without its Alternates, in 
an R&D contract where the statement of work is essentially an 
incorporation by reference of the prospective contractor's proposal. If 
any other part of the statement of work in such a contract reflects a 
Government specification that might benefit from application of VE 
techniques, the contracting officer shall consider inserting the VE 
incentive clause at FAR 52.248-1 with any applicable Alternate(s), and 
establish the applicability of the clause to that part.
    (c) Except as prescribed in paragraph (b) of this section, the 
contracting officer shall insert the clause at FAR 52.248-1 with its 
Alternate I in initial production contracts for major systems, and major 
systems R&D contracts for full-scale development, unless the contracting 
officer determines in writing that its use is inappropriate. Use of 
Alternate I is appropriate for an R&D major systems contract only if the 
contract specifications contain detailed requirements that lend 
themselves to VE.
    (d) The contracting officer shall insert the clause at FAR 52.248-1 
with its Alternate II under the conditions prescribed in paragraph (c) 
of this section

                   PART 1849--TERMINATION OF CONTRACTS

                   Subpart 1849.1--General Principles

Sec.

Sec. 1849.101  Authorities and responsibilities.

Sec. 1849.101-70  NASA authorities and responsibilities.

Sec. 1849.101-71  Termination authority.

Sec. 1849.102  Notice of termination.

Sec. 1849.102-70  Prior clearance of significant contract terminations.

[[Page 374]]


Sec. 1849.102-71  Prior clearance of contract terminations resulting 
          from a major breach of safety or security.

Sec. 1849.105  Duties of termination contracting officer after issuance 
          of notice of termination.

Sec. 1849.105-70  Termination docket checklist.

Sec. 1849.110  Settlement negotiation memorandum.

Sec. 1849.110-70  Memorandum contents.

Sec. 1849.111  Review of proposed settlements.

              Subpart 1849.5--Contract Termination Clauses


Sec. 1849.505  Other termination clause.

Sec. 1849.505-70  NASA contract clause.

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

    Source: 62 FR 14030, Mar. 25, 1997, unless otherwise noted.

                   Subpart 1849.1--General Principles



Sec. 1849.101  Authorities and responsibilities.



Sec. 1849.101-70  NASA authorities and responsibilities.

    (a) Installations shall appoint a termination contracting officer 
(TCO) (see FAR 2.101) to perform specific duties relating to contract 
termination as one of that individual's primary functions. In addition 
to the responsibilities described in this part and FAR part 49, such 
duties should include--
    (1) Reviewing NASA Forms 1412, Termination Authority;
    (2) Reviewing the contract and related documents before issuing the 
notice of termination, to ensure protection of the Government's rights 
under the contract; and
    (3) Issuing notices of termination, reinstatement, and recision to 
contractors;
    (b) Contracting offices shall utilize the services of the Department 
of Defense and other Government agencies whenever possible to administer 
and negotiate settlement of terminated contracts. Delegation of the 
negotiation of termination settlement function shall be made in 
accordance with FAR subpart 42.2 and 1842.2.



Sec. 1849.101-71  Termination authority.

    NASA Form 1412, Termination Authority, is prescribed for use by NASA 
installations when initiating action to terminate a contract for 
convenience or default. The project manager or the activity initiating 
the procurement request should initiate the action by completing NASA 
Form 1412 and submitting it to the contracting officer.



Sec. 1849.102  Notice of termination.



Sec. 1849.102-70  Prior clearance of significant contract terminations.

    (a) Congressional notification is required for any termination 
involving a reduction in employment of 100 or more contractor employees. 
Proposed terminations must be cleared through the Headquarters Office of 
Legislative Affairs (Code LB) before release of the termination notice, 
or any information on the proposed termination, to the contractor. 
Proposed terminations expected to result in a reduction of fewer than 
100 should be similarly cleared if the installation believes it to be 
significant.
    (b) The contracting officer shall submit the following information 
to Code LB, and a copy to the Office of Procurement (Code HS), as soon 
as possible after the decision to terminate is made. Until clearance is 
obtained, this information shall be treated as ``For Official Use Only'' 
unless the information is classified.
    (1) Contract number.
    (2) Date of award.
    (3) Type of award.
    (4) Name of company.
    (5) Nature of contract or end item.
    (6) Reasons for the termination.
    (7) Contract price of items terminated.
    (8) Total number of contractor employees involved, including the 
Government's estimate of the number that may be discharged.
    (9) Anticipated impact on the company and the community.
    (10) Name of the community affected.
    (11) Area labor category.
    (12) Whether contractor is large or small business.
    (13) Any known impact on disadvantaged employment programs.
    (14) Total number of subcontractors involved and the impact in this 
area, if known.
    (15) Unclassified draft of suggested press release.

[[Page 375]]

    (c) To minimize termination costs, Code LB shall act promptly on the 
request and provide a response not later than two working days after 
receipt of the information in paragraph (b) of this section.



Sec. 1849.102-71  Prior clearance of contract terminations resulting 
          from a major breach of safety or security.

    The Assistant Administrator for Procurement (Code HS) must be 
notified prior to taking any action to terminate because of a major 
breach of safety or security.

[65 FR 70316, Nov. 22, 2000]



Sec. 1849.105  Duties of termination contracting officer after issuance 
          of notice of termination.



Sec. 1849.105-70  Termination docket checklist.

    The termination contracting officer shall complete NASA Form 1413, 
Termination Docket Checklist.



Sec. 1849.110  Settlement negotiation memorandum.



Sec. 1849.110-70  Memorandum contents.

    The TCO shall include the following information in the settlement 
negotiation memorandum. Contractors and subcontractors are encouraged to 
use this format appropriately modified for subcontract settlements 
submitted for review and approval.
    (a) General information--(1) Identification. (i) Name and address of 
the contractor and any pertinent affiliation between prime contractors 
and subcontractors relative to the overall settlement.
    (ii) Names and titles of contractor and Government personnel who 
participated in the negotiation.
    (2) Description of terminated contract.
    (i) Contract number;
    (ii) Date of award;
    (iii) Contract type;
    (iv) General description of contract items;
    (v) Total contract price; and
    (vi) Applicable contract termination provisions and clause.
    (3) Termination notice.
    (i) Date of the termination notice;
    (ii) Effective date of termination;
    (iii) Scope and nature of termination (complete or partial);
    (iv) Items terminated;
    (v) Unit prices;
    (vi) Total price of items terminated for fixed-price contracts or 
the estimated cost and fee applicable to items terminated for cost-
reimbursement type contracts;
    (vii) Whether the termination notice was amended and, if so, why;
    (viii) Whether the contractor stopped work on the termination 
effective date (if it did not, furnish details) and whether subcontracts 
were terminated promptly;
    (ix) Any redirection of common items and return of goods to the 
contractor's suppliers; and
    (x) Extent of contract performance and timely deliveries by the 
contractor.
    (b) Contractor's settlement proposal--(1) Date and amount. Date and 
location where the claim was filed and its gross amount (if interim 
settlement proposals were filed, information shall be furnished for each 
claim).
    (2) Basis of claim. E.g., inventory, total cost, or other basis, 
including an explanation of any approvals granted in connection with 
submission on other than an inventory basis.
    (3) Examination of proposal. Types of reviews made and by whom 
(audit, engineering, legal, or other).
    (c) Tabular summary of contractor's claim and the settlement. The 
cost elements/items, the amounts claimed, the Government recommended 
position (including auditor, field, and technical personnel 
recommendations), and the negotiated settlement amounts. This summary 
shall include, if appropriate, previously reimbursed and unreimbursed 
costs applicable to the prime contractor and subcontractor, previous 
profit/fees paid and unpaid; settlement cost less disposal credit or 
other credits, and a recapitulation of previous settlements. The summary 
of the negotiated settlement shall include the amount claimed and 
allowed for contractor and/or subcontractor changes, disposal, prior 
payment credits, and contract price.
    (d) Settlement narrative summary.
    (1) Contractor's cost.
    (2) Profit/Fee.

[[Page 376]]

    (3) Settlement expenses not included in the audit.
    (4) Number and dollar amount of any subcontractor settlements 
approved by the TCO and concluded by the contractor under delegation of 
authority.
    (5) Total amount of any partial payments.
    (6) Total of unliquidated progress or advance payments.
    (7) Claims of the Government against the contractor included in 
settlement agreement reservations.
    (8) Assignments, including the name and address of each assignee.
    (9) Disposal credits.
    (10) Status of plant clearance actions and all inventory sold, 
retained, or otherwise properly disposed of in accordance with 
applicable plant clearance regulations, including a consolidated closing 
plant clearance report, if applicable.
    (11) Status of Government property accountability.
    (12) Disposition of any special tooling, if applicable.
    (13) Proposed reservations of rights to the Government or to the 
contractor.
    (e) Recommendation. Amount of the gross settlement recommended and 
TCO statement that it is fair and reasonable to the Government and the 
contractor.
    (f) TCO Signature and date.



Sec. 1849.111  Review of proposed settlements. (NASA paragraphs (1) and 
          (2))

    (1) Settlements shall be reviewed in accordance with center-
prescribed procedures.
    (2) The TCO may authorize the contract administration office 
cognizant of a lower-tier subcontractor grant approval or ratification 
of proposed subcontractor settlements described in FAR 49.108-3(c) that 
are first reviewed and referred by the prime contractor to the TCO. This 
procedure is not applicable to settlements between the contractor and 
its first tier subcontractors.

              Subpart 1849.5--Contract Termination Clauses



Sec. 1849.505  Other termination clause.



Sec. 1849.505-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.249-72, 
Termination (Utilities), in all solicitations and contracts for 
utilities services.

              PART 1850--EXTRAORDINARY CONTRACTUAL ACTIONS

 Subpart 1850.2--Delegation of and Limitations on Exercise of Authority

Sec.

Sec. 1850.202  Contract adjustment boards.

                  Subpart 1850.3--Contract Adjustments


Sec. 1850.305  Processing cases.

Sec. 1850.305-70  Submission of request to the Contract Adjustment 
          Board.

Sec. 1850.306  Disposition.

Sec. 1850.306-70  Implementation of the Contract Adjustment Board's 
          decision.

                     Subpart 1850.4--Residual Powers


Sec. 1850.403  Special procedures for unusually hazardous or nuclear 
          risks.

Sec. 1850.403-1  Indemnification requests.

Sec. 1850.403-170  Subcontractor indemnification requests.

Sec. 1850.403-2  Action on indemnification requests.

Sec. 1850.470  Lead NASA installation.

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

    Source: 62 FR 14031, Mar. 25, 1997, unless otherwise noted.

 Subpart 1850.2--Delegation of and Limitations on Exercise of Authority



Sec. 1850.202  Contract adjustment boards.

    14 CFR part 1209, subpart 3, Contract Adjustment Board, establishes 
the Contract Adjustment Board (CAB) as the approving authority to 
consider and dispose of requests from NASA contractors for extraordinary 
contractual actions.

[[Page 377]]

                  Subpart 1850.3--Contract Adjustments



Sec. 1850.305  Processing cases.



Sec. 1850.305-70  Submission of request to the Contract Adjustment 
          Board.

    (a) After investigating the facts and issues relevant to the 
contractor's request, the contracting officer shall forward the request 
to the Associate General Counsel for General Law (Code GG), including in 
the forwarding letter--
    (1) The nature of the case;
    (2) The recommended disposition; and,
    (3) If contractual action is recommended, the contracting officer's 
opinion that the action will facilitate the national defense.
    (b) The forwarding letter shall enclose the contractor's request, 
all supporting material submitted by the contractor, and any material 
the contracting officer has obtained while investigating the facts and 
issues relevant to the request. Any classified information in the 
material forwarded shall be so identified.
    (c) Electronic submittal is preferred for unclassified material.



Sec. 1850.306  Disposition.



Sec. 1850.306-70  Implementation of the Contract Adjustment Board's 
          decision.

    (a) The contracting officer shall take action authorized in the 
CAB's decision.
    (b) Immediately upon execution, including any required Headquarters 
approval, of a contract or contract modification or amendment 
implementing the CAB decision, the contracting officer shall forward a 
copy of the contractual document to the Associate General Counsel for 
General Law (Code GG).

                     Subpart 1850.4--Residual Powers



Sec. 1850.403  Special procedures for unusually hazardous or nuclear 
          risks.



Sec. 1850.403-1  Indemnification requests. (NASA supplements paragraph 
          (a))

    (a) 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.



Sec. 1850.403-170  Subcontractor indemnification requests.

    Subcontractors shall submit requests for indemnification to the 
prime contractor and through higher tier subcontractor(s), as 
applicable. If the prime contractor agrees an indemnity clause should be 
flowed down to the subcontractor, the prime contractor shall forward its 
written request for subcontractor indemnification to the cognizant 
contracting officer for approval in accordance with FAR 50.403-1. The 
prime contractor's request shall provide information responsive to 
1850.403-1, FAR 50.403-1, and FAR 50.403-2(a) (1), (2), (4), (5) and 
(7). The agreed upon definition of the unusually hazardous risk to be 
incorporated into the subcontract shall be the same as that incorporated 
in the prime contract.



Sec. 1850.403-2  Action on indemnification requests. (NASA supplements 
          paragraphs (a) and (d))

    (a) If recommending approval, the contracting officer shall forward 
the required information to the Assistant Administrator for Procurement 
(Code HS), along with the following:
    (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) A recommended Memorandum of Decision. In addition to the 
applicable requirements of FAR 50.306, the Memorandum of Decision shall 
contain the following:
    (A) The specific definition of the unusually hazardous risk to which 
the contractor is exposed in the performance of the contract(s);
    (B) A complete discussion of the contractor's financial protection 
program; and
    (C) The extent to, and conditions under, which indemnification is 
being approved for subcontracts.

[[Page 378]]

    (d) If approving subcontractor indemnification, the contracting 
officer shall document the file with a memorandum for record addressing 
the items set forth in FAR 50.403-2(a) 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.



Sec. 1850.470  Lead NASA installation.

    (a) Contractors applying for indemnification shall determine which 
NASA installation has the highest dollar amount of contracts for which 
indemnification is requested. The indemnification request should be 
submitted to the procurement officer for that installation, who will 
then designate a cognizant contracting officer. Contractors shall submit 
a single request and ensure duplicate requests are not submitted by 
associate divisions, subsidiaries, or central offices of the contractor.
    (b) The receiving installation will become the lead installation and 
will remain so indefinitely. Lead installation designation may change to 
another installation if the affected procurement officers agree to the 
change. Should a change occur in the lead installation, all records 
related to indemnification of that contractor shall be transferred to 
the gaining installation.

           PART 1851--USE OF GOVERNMENT SOURCES BY CONTRACTORS

       Subpart 1851.1--Contractor Use of Government Supply Sources

Sec.

Sec. 1851.102  Authorization to use Government supply sources.

Sec. 1851.102-70  Contractor acquisition of filing cabinets.

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

    Source: 62 FR 14032, Mar. 25, 1997, unless otherwise noted.

       Subpart 1851.1--Contractor Use of Government Supply Sources



Sec. 1851.102  Authorization to use Government supply sources. (NASA 
          supplements paragraph (e)).

    (e) The contracting officer shall use substantially the following 
format for letters authorizing contractor use of Government supply 
sources:


Sec. SUBJECT: Authorization to Lease, Rent, or Purchase from General 
          Services Administration (GSA) Supply Sources
(Contractor's name)_____________________________________________________
(Address)_______________________________________________________________

    (1) You are hereby authorized to act for the Government in the 
following matters:
    (i) The acquisition of supplies and/or services under Contract No. 
-------- available for purchase by Government agencies either directly 
from GSA stock or under Federal Supply Schedules, including GSA 
nonmandatory ADTS/ADP schedule contracts and GSA ADP requirements 
contracts, subject to the limitations set forth in this authorization.
    (ii) The leasing or rental of equipment for use on Contract No. ----
---- available for lease or rental by Government agencies under Federal 
Supply Schedules, including GSA nonmandatory ADTS/ADP schedule contracts 
and GSA ADP requirements contracts, subject to the limitations set forth 
in this authorization.
    (iii) The issuance of tax exemption certificates in lieu of the 
payment of State or other taxes for which the government is not liable 
on supplies or services purchased under this authorization.
    (2)(i) Purchase orders under GSA schedules and contracts shall be 
placed in accordance with the terms and conditions of the GSA schedule 
or contract and this authorization. A copy of this authorization shall 
be attached to the order (unless a copy was previously furnished to the 
GSA contractor) and shall contain the following statement:
    ``This order is placed on behalf of the National Aeronautics and 
Space Administration in furtherance of United

[[Page 379]]

States Government Contract No. --------, pursuant to written 
authorization dated --------, a copy of which (is attached) (you have on 
file). In the event of any inconsistency between the terms and 
conditions of this order and those of the applicable GSA schedule/
contract, the latter will govern.''
    (ii) Orders for items in the GSA Supply Catalog shall be placed in 
accordance with the Catalog and this authorization and shall include the 
address to which billings are to be sent. Bills are not issued by GSA 
until after shipment has been made and should therefore be paid 
promptly. Any necessary adjustments will be made by GSA subsequent to 
payment. All orders shall contain the following statement:
    ``This order is placed on behalf of the National Aeronautics and 
Space Administration in furtherance of United States Government Contract 
No. --------, pursuant to written authorization dated --------, a copy 
of which (is attached) (you have on file).''
    (3) (Insert any other provisions and restrictions.)
    (4) The authority hereby granted is not transferable or assignable.

________________________________________________________________________

Sec. (Contracting Officer)

    (e)(3) Contracting officers shall use NPG 4100.1, NASA Materials 
Inventory Management Manual, to obtain activity address codes to enable 
use of FEDSTRIP and MILSTRIP.

62 FR 14032, Mar. 25, 1997, as amended at 65 FR 46628, July 31, 2000]



Sec. 1851.102-70  Contractor acquisition of filing cabinets.

    (a) The Contractor officer must approve any planned contractor 
acquisition of filing cabinets whose title will vest in the Government. 
The contracting officer shall ensure that the contractor takes the 
following actions before submitting a request for approval:
    (1) Transfer inactive records to contractor storage areas;
    (2) Dispose of unnecessary records in accordance with corporate 
procedures;
    (3) Use less expensive shelf filing methods; and
    (4) Take other actions to reduce the need for filing cabinets.
    (b) If after taking the actions in paragraphs (a)(1) through (4) of 
this section, the contractor requires additional filing capacity, it 
shall submit for contracting officer approval a request to order filing 
cabinets. This request shall include a discussion of why sufficient 
additional filing capacity is necessary and shall address the results of 
the actions in paragraphs (a) (1) through (4) of this section. The 
contracting officer shall review the request in consultation with the 
Records Management Officer, the Property and Supply Officer, and the 
project officer, is appropriate.
    (c) If the need for filing cabinets is approved, the contracting 
officer shall attempt to fill the need by providing any available excess 
items of the type required through appropriate property accountability 
channels. Approved requests that cannot be filled from excess shall be 
returned to the contractor with an authorization to obtain file 
cabinets, preferably through GSA.

[[Page 380]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1852.000  Scope of part.

      Subpart 1852.1--Instructions for Using Provisions and Clauses


Sec. 1852.101  Using FAR part 52.

Sec. 1852.103  Identification of provisions and clauses.

Sec. 1852.103-70  Identification of modified provisions and clauses.

Sec. 1852.104  Procedures for modifying and completing provisions and 
          clauses.

             Subpart 1852.2--Texts of Provisions and Clauses


Sec. 1852.203-70   Display of Inspector General Hotline Posters.

Sec. 1852.204-74  Central Contractor Registration.

Sec. 1852.204-75  Security classification requirements.

Sec. 1852.204-76  Security Requirements for Unclassified Information 
          Technology Resources.

Sec. 1852.208-81  Restrictions on printing and duplicating.

Sec. 1852.209-70  Product removal from Qualified Products List.

Sec. 1852.209-71  Limitation of future contracting.

Sec. 1852.209-72  Composition of the contractor.

Sec. 1852.210-70  Brand name or equal.

Sec. 1852.211-70  Packaging, handling, and transportation.

Sec. 1852.212-70  Notice of delay.

Sec. 1852.212-74  Period of performance.

Sec. 1852.213-70  Offeror Representations and Certifications--Other Than 
          Commercial Items.

Sec. 1852.213-71  Evaluation--Other Than Commercial Items.

Sec. 1852.214-70  Caution to offerors furnishing descriptive literature.

Sec. 1852.214-71  Grouping for aggregate award.

Sec. 1852.214-72  Full quantities.

Sec. 1852.215-77  Preproposal/pre-bid conference.

Sec. 1852.215-78  Make or buy program requirements.

Sec. 1852.215-79  Price adjustment for ``Make- or-Buy'' changes.

Sec. 1852.215-81  Proposal page limitations.

Sec. 1852.215-84  Ombudsman.

Sec. 1852.216-73  Estimated cost and cost sharing.

Sec. 1852.216-74  Estimated cost and fixed fee.

Sec. 1852.216-75  Payment of fixed fee.

Sec. 1852.216-76  Award fee for service contracts.

Sec. 1852.216-77  Award fee for end item contracts.

Sec. 1852.216-78  Firm fixed price.

Sec. 1852.216-80  Task ordering procedure.

Sec. 1852.216-81  Estimated cost.

Sec. 1852.216-83  Fixed price incentive.

Sec. 1852.216-84  Estimated cost and incentive fee.

Sec. 1852.216-85  Estimated cost and award fee.

Sec. 1852.216-87  Submission of vouchers for payment.

Sec. 1852.216-88  Performance incentive.

Sec. 1852.216-89  Assignment and release forms.

Sec. 1852.217-70  Property administration and reporting.

Sec. 1852.217-71  Phased acquisition using down-selection procedures.

Sec. 1852.217-72   Phased acquisition using progressive competition 
          down-selection procedures.

Sec. 1852.219-73  Small business subcontracting plan.

Sec. 1852.219-74  Use of Rural Area Small Businesses.

Sec. 1852.219-75  Small business subcontracting reporting.

Sec. 1852.219-76  NASA 8 percent goal.

Sec. 1852.219-77  NASA Mentor-Protege program.

Sec. 1852.219-79  Mentor requirements and evaluation.

Sec. 1852.223-70  Safety and health.

Sec. 1852.223-71  Frequency authorization.

Sec. 1852.223-72  Safety and Health (Short Form).

Sec. 1852.223-73  Safety and health plan.

Sec. 1852.223-74  Drug- and alcohol-free workforce.

Sec. 1852.223-75  Major breach of safety or security.

Sec. 1852.225-8  Duty-free entry of space articles.

Sec. 1852.225-70  Export Licenses.

Sec. 1852.225-72  [Reserved]

Sec. 1852.227-11  Patent Rights--Retention by the Contractor (Short 
          Form).

Sec. 1852.227-14  Rights in data--General.

Sec. 1852.227-17  Rights in data-Special works.

Sec. 1852.227-19  Commercial computer software--Restricted rights.

Sec. 1852.227-70  New technology.

Sec. 1852.227-71  Requests for waiver of rights to inventions.

Sec. 1852.227-72  Designation of new technology representative and 
          patent representative.

Sec. 1852.227-84  Patent rights clauses.

Sec. 1852.227-85  Invention reporting and rights--Foreign.

Sec. 1852.227-86  Commercial computer software--Licensing.

Sec. 1852.227-87  Transfer of technical data under Space Station 
          International Agreements.

Sec. 1852.228-70   Aircraft ground and flight risk.

Sec. 1852.228-71  Aircraft flight risks.

Sec. 1852.228-72  Cross-waiver of liability for space shuttle services.

Sec. 1852.228-73  Bid bond.

Sec. 1852.228-75  Minimum insurance coverage.

[[Page 381]]


Sec. 1852.228-76  Cross-waiver of liability for Space Station 
          Activities.

Sec. 1852.228-78  Cross-waiver of liability for NASA Expendable Launch 
          Vehicle launches.

Sec. 1852.228-80  Insurance--Immunity From Tort Liability.

Sec. 1852.228-81  Insurance--Partial Immunity From Tort Liability.

Sec. 1852.228-82  Insurance--Total Immunity From Tort Liability.

Sec. 1852.231-70  Precontract costs.

Sec. 1852.231-71  Determination of compensation reasonableness.

Sec. 1852.232-70  NASA Modification of FAR 52.232-12.

Sec. 1852.232-77  Limitation of funds (Fixed-Price Contract).

Sec. 1852.232-79  Payment for on-site preparatory costs.

Sec. 1852.232-81  Contract funding.

Sec. 1852.232-82  Submission of requests for progress payments.

Sec. 1852.233-70  Protests to NASA.

Sec. 1852.235-70  Center for AeroSpace Information--final scientific and 
          technical reports.

Sec. 1852.235-71  Key personnel and facilities.

Sec. 1852.235-72  Instructions for responding to NASA Research 
          Announcements.

Sec. 1852.236-71  Additive or deductive items.

Sec. 1852.236-72  Bids with unit prices.

Sec. 1852.236-73  Hurricane plan.

Sec. 1852.236-74  Magnitude of requirement.

Sec. 1852.236-75  Partnering for construction contracts.

Sec. 1852.237-70  Emergency evacuation procedures.

Sec. 1852.237-71  Pension portability.

Sec. 1852.239-70  Alternate delivery points.

Sec. 1852.241-70  Renewal of contract.

Sec. 1852.242-70  Technical direction.

Sec. 1852.242-71  Travel outside of the United States.

Sec. 1852.242-72  Observance of legal holidays.

Sec. 1852.242-73  NASA contractor financial management reporting.

Sec. 1852.242-74  Notice of Earned Value Management System.

Sec. 1852.242-75  Earned Value Management Systems.

Sec. 1852.242-76  Modified Cost Performance Report.

Sec. 1852.242-77  Modified Cost Performance Report plans.

Sec. 1852.242-78  Emergency medical services and evacuation.

Sec. 1852.243-70  Engineering change proposals.

Sec. 1852.243-71  Shared savings.

Sec. 1852.243-72  Equitable adjustments.

Sec. 1852.244-70  Geographic participation in the aerospace program.

Sec. 1852.245-70  Contractor requests for government-owned equipment.

Sec. 1852.245-71  Installation-accountable government property.

Sec. 1852.245-72  Liability for Government property furnished for repair 
          or other services.

Sec. 1852.245-73  Financial reporting of NASA property in the custody of 
          contractors.

Sec. 1852.245-74  Contractor accountable on-site Government property.

Sec. 1852.245-75  Title to equipment.

Sec. 1852.245-76  List of Government-furnished property.

Sec. 1852.245-77  List of installation-accountable property and 
          services.

Sec. 1852.245-79  Use of Government-owned property.

Sec. 1852.245-80  Use of Government production and research property on 
          a no-charge basis.

Sec. 1852.246-70  Mission Critical Space System Personnel Reliability 
          Program.

Sec. 1852.246-71  Government contract quality assurance functions.

Sec. 1852.246-72  Material Inspection and Receiving Report.

Sec. 1852.246-73  Human space flight item.

Sec. 1852.247-71  Protection of the Florida manatee.

Sec. 1852.247-72  Advance notice of shipment.

Sec. 1852.247-73  Bills of Lading.

Sec. 1852.249-72  Termination (utilities).

               Subpart 1852.3--Provision and Clause Matrix


Sec. 1852.300  Scope of subpart.

Sec. 1852.301  Solicitation provisions and contract clauses (Matrix).

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

    Source: 54 FR 28340, July 5, 1989, unless otherwise noted.



Sec. 1852.000  Scope of part.

    This part, in conjunction with FAR Part 52--
    (a) Sets forth the provisions and clauses prescribed in the NFS,
    (b) Gives instructions for their use, and
    (c) Presents a matrix listing the provisions and clauses applicable 
to each principal contract type and/or purpose (e.g., fixed-price 
supply, cost-reimbursement research and development).

[61 FR 40547, Aug. 5, 1996]

      Subpart 1852.1--Instructions for Using Provisions and Clauses

    Source: 61 FR 40547, Aug. 5, 1996, unless otherwise noted.

[[Page 382]]



Sec. 1852.101  Using FAR part 52. (NASA supplements paragraphs (b) and 
          (e))

    (b)(2)(i)(B) NASA contracting offices prescribing or developing 
clauses shall ensure that the requirements of subpart 1801.3 are met.
    (e)(1) The NFS matrix in subpart 1852.3 is formatted similarly to 
that in the FAR. The first page of the NFS matrix contains a key to 
column headings, a dollar threshold chart, and requirement symbols. To 
fully determine the applicability of a provision or clause in the 
``required-when-applicable'' and ``optional'' categories, Contracting 
Officers shall refer to the NFS text (cited in the matrix) that 
prescribes its use.
    (4) The NFS matrix may be reproduced by field installations for the 
purpose of supplementing it with installation-developed provisions and 
clauses.



Sec. 1852.103  Identification of provisions and clauses. (NASA 
          supplements paragraphs (b) and (c))

    (b) Provisions and clauses prescribed by a field installation to 
satisfy its needs shall be identified as stated in paragraphs (b) (i) 
and (ii) of this section. Articles, formats, and similar language shall 
be treated as provisions and clauses for purposes of this section 
1852.103.
    (i) A provision or clause shall be numbered using a prefix, a base, 
and a suffix. The prefix shall be an alphabetical abbreviation of the 
installation name (e.g., ARC, DFRC, GRC, GSFC, JSC, KSC, LARC, MSFC, 
SSC, or SSPO). The base shall be a numeric value beginning with 
``52.2,'' with the next two digits corresponding to the number of the 
FAR or NFS subject part to which the provision or clause relates. The 
suffix shall be a hyphen and sequential number assigned within each 
part. NASA installations shall use suffix numbers from -90 to -199. For 
example, the first Johnson Space Center (JSC) provision or clause 
relating to part 36 of the FAR or NFS shall be JSC 52.236-90, the second 
JSC 52.236-91, and so forth. Provisions and clauses shall be dated in 
accordance with FAR 52.101(f).
    (ii) Contracting officers shall identify provisions and clauses as 
in the following examples:
    (A) I.2 BID ENVELOPES (GSFC 52.214-90) (AUGUST 1987) This example is 
applicable when identifying the title of provisions and clauses in 
solicitations and contracts using the uniform contract format (UCF). The 
first number (``I.2'') designates the UCF section and the sequential 
clause within that section ``GSFC 52.214-90'' specifies the clause 
number.
    (B) GSFC 52.214-90--Bid Envelopes (AUGUST 1987) This example is 
applicable in all instances in which the provision or clause citation is 
not associated with the UCF number.
    (C) Contracting officers shall not number provisions and clauses 
developed for individual acquisitions only. For example, ``F.3 Delivery 
Procedures for Special Hardware'' cites the third clause in Section F of 
a contract using the UCF, but has no clause number or date identified 
with it, indicating that the clause was developed for the particular 
contract it appears in.

[61 FR 40547, Aug. 5, 1996, as amended at 64 FR 19926, Apr. 23, 1999]



Sec. 1852.103-70  Identification of modified provisions and clauses.

    When a FAR clause or provision is included in a solicitation or 
contract and the NFS prescribes a modification, the title line shall 
identify the modification as shown in this subsection. This format shall 
be used both for incorporation by reference and when using full text.

    ``52.232-28 Electronic Funds Transfer Payment Methods (APR 1989)--as 
modified by NASA FAR Supplement 1832.908(a)''



Sec. 1852.104  Procedures for modifying and completing provisions and 
          clauses.

    NFS provisions and clauses shall not be modified unless authorized 
by the NFS. When authorized, contracting officers must comply with the 
procedures in FAR 52.104.

[[Page 383]]

             Subpart 1852.2--Texts of Provisions and Clauses



Sec. 1852.203-70  Display of Inspector General Hotline Posters.

    As prescribed in 1803.7001, insert the following clause:

         Display of Inspector General Hotline Posters (JUN 2001)

    (a) The Contractor shall display prominently in common work areas 
within business segments performing work under this contract, Inspector 
General Hotline Posters available under paragraph (b) of this clause.
    (b) Inspector General Hotline Posters may be obtained from NASA 
Office of Inspector General, Code W, Washington, DC, 20546-0001, (202) 
358-1220.

[66 FR 29727, June 1, 2001]



Sec. 1852.204-74  Central Contractor Registration.

    As prescribed in 1804.7404, insert the following clause:

               Central Contractor Registration (MAY 2002)

    (a) Definitions. As used in this clause--
    (1) ``Central Contractor Registration (CCR) database'' means the 
primary DoD repository for contractor information required for the 
conduct of business with NASA.
    (2) ``Data Universal Number System (DUNS) number'' means the 9-digit 
number assigned by Dun and Bradstreet Information Services to identify 
unique business entities.
    (3) ``Data Universal Numbering System +4 (DUNS+4) number'' means the 
DUNS number assigned by Dun and Bradstreet plus a 4-digit suffix that 
may be assigned by a parent (controlling) business concern. This 4-digit 
suffix may be assigned at the discretion of the parent business concern 
for such purposes as identifying sub-units or affiliates of the parent 
business concern.
    (4) ``Commercial and Government Entity Code (CAGE Code)'' means--
    (i) A code assigned by the Defense Logistics Information Service 
(DLIS) to identify a commercial or Government entity; or
    (ii) A code assigned by a member of the North Atlantic Treaty 
Organization (NATO) that is recorded and maintained by DLIS in the CAGE 
master file.
    (5) ``Registered in the CCR database'' means that all mandatory 
information, including the DUNS number or the DUNS+4 number, if 
applicable, and the corresponding CAGE code, is in the CCR database; the 
DUNS number and the CAGE code have been validated; and all edits have 
been successfully completed.
    (b)(1) By submission of an offer, the offeror acknowledges the 
requirement that a prospective awardee must be registered in the CCR 
database prior to award, during performance, and through final payment 
of any contract resulting from this solicitation, except for awards to 
foreign vendors performing work outside of the United States.
    (2) The Contracting Officer will verify that the offeror is 
registered in the CCR database.
    (3) Lack of registration in the CCR database will make an offeror 
ineligible for award after March 31, 2001.
    (4) DoD has established a goal of registering an applicant in the 
CCR database within 48 hours after receipt of a complete and accurate 
application via the Internet. However, registration of an applicant 
submitting an application through a method other than the Internet may 
take up to 30 days. Therefore, offerors that are not registered should 
consider applying for registration immediately upon receipt of this 
solicitation.
    (c) The Contractor is responsible for the accuracy and completeness 
of the data within the CCR, and for any liability resulting from the 
Government's reliance on inaccurate or incomplete data. To remain 
registered in the CCR database after the initial registration, the 
Contractor is required to confirm on an annual basis that its 
information in the CCR database is accurate and complete.
    (d) Offerors and contractors may obtain information on registration 
and annual confirmation requirements via the Internet at http://
www.ccr.gov or by calling 888-CCR-2423 (888-227-2423).

                             (End of clause)

[65 FR 50153, Aug. 17, 2000, as amended at 66 FR 53548, Oct. 23, 2001; 
67 FR 30604, May 7, 2002]



Sec. 1852.204-75  Security classification requirements.

    As prescribed in 1804.404-70, insert the following clause:

             Security Classification Requirements (SEP 1989)

    Performance under this contract will involve access to and/or 
generation of classified information, work in a security area, or both, 
up to the level of ------------------------ [insert the applicable 
security clearance level]. See Federal Acquisition Regulation clause 
52.204-2 in this contract and DD Form 254, Contract Security 
Classification Specification, Attachment -------- [Insert the attachment 
number of the DD Form 254].

[[Page 384]]

                             (End of clause)

[61 FR 40548, Aug. 5, 1996]



Sec. 1852.204-76  Security Requirements for Unclassified Information 
          Technology Resources.

    As prescribed in 1804.470-4, insert a clause substantially as 
follows:

Security Requirements for Unclassified Information Technology Resources, 
                               (JUL 2002)

    (a) The Contractor shall be responsible for Information Technology 
security for all systems connected to a NASA network or operated by the 
Contractor for NASA, regardless of location. This clause is applicable 
to all or any part of the contract that includes information technology 
resources or services in which the Contractor must have physical or 
electronic access to NASA's sensitive information contained in 
unclassified systems that directly support the mission of the Agency. 
This includes information technology, hardware, software, and the 
management, operation, maintenance, programming, and system 
administration of computer systems, networks, and telecommunications 
systems. Examples of tasks that require security provisions include:
    (1) Computer control of spacecraft, satellites, or aircraft or their 
payloads;
    (2) Acquisition, transmission or analysis of data owned by NASA with 
significant replacement cost should the contractor's copy be corrupted; 
and
    (3) Access to NASA networks or computers at a level beyond that 
granted the general public, e.g. bypassing a firewall.
    (b) The Contractor shall provide, implement, and maintain an IT 
Security Plan. This plan shall describe the processes and procedures 
that will be followed to ensure appropriate security of IT resources 
that are developed, processed, or used under this contract. The plan 
shall describe those parts of the contract to which this clause applies. 
The Contractor's IT Security Plan shall be compliant with Federal laws 
that include, but are not limited to, the Computer Security Act of 1987 
(40 U.S.C. 1441 et seq.) and the Government Information Security Reform 
Act of 2000. The plan shall meet IT security requirements in accordance 
with Federal and NASA policies and procedures that include, but are not 
limited to:
    (1) OMB Circular A-130, Management of Federal Information Resources, 
Appendix III, Security of Federal Automated Information Resources;
    (2) NASA Procedures and Guidelines (NPG) 2810.1, Security of 
Information Technology; and
    (3) Chapter 3 of NPG 1620.1, NASA Security Procedures and 
Guidelines.
    (c) Within ----days after contract award, the contractor shall 
submit for NASA approval an IT Security Plan. This plan must be 
consistent with and further detail the approach contained in the 
offeror's proposal or sealed bid that resulted in the award of this 
contract and in compliance with the requirements stated in this clause. 
The plan, as approved by the Contracting Officer, shall be incorporated 
into the contract as a compliance document.
    (d)(1) Contractor personnel requiring privileged access or limited 
privileged access to systems operated by the Contractor for NASA or 
interconnected to a NASA network shall be screened at an appropriate 
level in accordance with NPG 2810.1, Section 4.5; NPG 1620.1, Chapter 3; 
and paragraph (d)(2) of this clause. Those Contractor personnel with 
non-privileged access do not require personnel screening. NASA shall 
provide screening using standard personnel screening National Agency 
Check (NAC) forms listed in paragraph (d)(3) of this clause, unless 
contractor screening in accordance with paragraph (d)(4) is approved. 
The Contractor shall submit the required forms to the NASA Center Chief 
of Security (CCS) within fourteen (14) days after contract award or 
assignment of an individual to a position requiring screening. The forms 
may be obtained from the CCS. At the option of the government, interim 
access may be granted pending completion of the NAC.
    (2) Guidance for selecting the appropriate level of screening is 
based on the risk of adverse impact to NASA missions. NASA defines three 
levels of risk for which screening is required (IT-1 has the highest 
level of risk):
    (i) IT-1--Individuals having privileged access or limited privileged 
access to systems whose misuse can cause very serious adverse impact to 
NASA missions. These systems include, for example, those that can 
transmit commands directly modifying the behavior of spacecraft, 
satellites or aircraft.
    (ii) IT-2--Individuals having privileged access or limited 
privileged access to systems whose misuse can cause serious adverse 
impact to NASA missions. These systems include, for example, those that 
can transmit commands directly modifying the behavior of payloads on 
spacecraft, satellites or aircraft; and those that contain the primary 
copy of ``level 1'' data whose cost to replace exceeds one million 
dollars.
    (iii) IT-3--Individuals having privileged access or limited 
privileged access to systems whose misuse can cause significant adverse 
impact to NASA missions. These systems include, for example, those that 
interconnect with a NASA network in a way that exceeds access by the 
general public, such as bypassing firewalls; and systems operated by the 
contractor for NASA whose function or data has substantial cost to 
replace, even if these

[[Page 385]]

systems are not interconnected with a NASA network.
    (3) Screening for individuals shall employ forms appropriate for the 
level of risk as follows:
    (i) IT-1: Fingerprint Card (FC) 258 and Standard Form (SF) 85P, 
Questionnaire for Public Trust Positions;
    (ii) IT-2: FC 258 and SF 85, Questionnaire for Non-Sensitive 
Positions; and
    (iii) IT-3: NASA Form 531, Name Check, and FC 258.
    (4) The Contracting Officer may allow the Contractor to conduct its 
own screening of individuals requiring privileged access or limited 
privileged access provided the Contractor can demonstrate that the 
procedures used by the Contractor are equivalent to NASA's personnel 
screening procedures. As used here, equivalent includes a check for 
criminal history, as would be conducted by NASA, and completion of a 
questionnaire covering the same information as would be required by 
NASA.
    (5) Screening of contractor personnel may be waived by the 
Contracting Officer for those individuals who have proof of--
    (1) Current or recent national security clearances (within last 
three years);
    (ii) Screening conducted by NASA within last three years; or
    (iii) Screening conducted by the Contractor, within last three 
years, that is equivalent to the NASA personnel screening procedures as 
approved by the Contracting Officer under paragraph (d)(4) of this 
clause.
    (e) The Contractor shall ensure that its employees, in performance 
of the contract, receive annual IT security training in NASA IT Security 
policies, procedures, computer ethics, and best practices in accordance 
with NPG 2810.1, Section 4.3 requirements. The contractor may use web-
based training available from NASA to meet this requirement.
    (f) The Contractor shall afford NASA, including the Office of 
Inspector General, access to the Contractor's and subcontractors' 
facilities, installations, operations, documentation, databases and 
personnel used in performance of the contract. Access shall be provided 
to the extent required to carry out a program of IT inspection, 
investigation and audit to safeguard against threats and hazards to the 
integrity, availability and confidentiality of NASA data or to the 
function of computer systems operated on behalf of NASA, and to preserve 
evidence of computer crime.
    (g) The Contractor shall incorporate the substance of this clause in 
all subcontracts that meet the conditions in paragraph (a) of this 
clause.

                             (End of clause)

[66 FR 36491, July 12, 2001, as amended at 67 FR 48815, July 26, 2002]



Sec. 1852.208-81  Restrictions on Printing and Duplicating.

    As prescribed in 1808.870, insert the following clause:

          Restrictions on Printing and Duplicating October 2001

    (a) The Contractor may duplicate or copy any documentation required 
by this contract in accordance with the provisions of the Government 
Printing and Binding Regulations, No. 26, S. Pub 101-9, U.S. Government 
Printing Office, Washington, DC, 20402, published by the Joint Committee 
on Printing, U.S. Congress.
    (b) The Contractor shall not perform, or procure from any commercial 
source, any printing in connection with the performance of work under 
this contract. The term ``printing'' includes the processes of 
composition, platemaking, presswork, duplicating, silk screen processes, 
binding, microform, and the end items of such processes and equipment.
    (c) The Contractor is authorized to duplicate or copy production 
units provided the requirement does not exceed 5,000 production units of 
any one page or 25,000 units in the aggregate of multiple pages. Such 
pages may not exceed a maximum image size of 10-\3/4\ by 14-\1/4\ 
inches. A ``production unit'' is one sheet, size 8-\1/2\x11 inches 
(215x280 mm), one side only, and one color ink.
    (d) This clause does not preclude writing, editing, preparation of 
manuscript copy, or preparation of related illustrative material as a 
part of this contract, or administrative duplicating/copying (for 
example, necessary forms and instructional materials used by the 
Contractor to respond to the terms of the contract).
    (e) Costs associated with printing, duplicating, or copying in 
excess of the limits in paragraph (c) of this clause are unallowable 
without prior written approval of the Contracting Officer. If the 
Contractor has reason to believe that any activity required in 
fulfillment of the contract will necessitate any printing or substantial 
duplicating or copying, it immediately shall provide written notice to 
the Contracting Officer and request approval prior to proceeding with 
the activity. Requests will be processed by the Contracting Officer in 
accordance with the provisions of the Government Printing and Binding 
Regulations, NFS 1808.802, and NPG 1490.5, NASA Procedures and 
Guidelines for Printing, Duplicating, and Copying Management.
    (f) The Contractor shall include in each subcontract which may 
involve a requirement for any printing, duplicating, and copying in 
excess of the limits specified in paragraph (c) of this clause, a 
provision substantially the same as this clause, including this 
paragraph (f).

[[Page 386]]

                             (End of clause)

[66 FR 53548, Oct. 23, 2001]



Sec. 1852.209-70  Product removal from Qualified Products List.

    As prescribed in 1809.206-71, insert the following clause:

         Product Removal From Qualified Products List (DEC 1988)

    If, during the performance of this contract, the product being 
furnished is removed from the Qualified Products List for any reason, 
the Government may terminate the contract for Default pursuant to the 
default clause of the contract.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



Sec. 1852.209-71  Limitation of future contracting.

    As prescribed in 1809.507-2, the contracting officer may insert a 
clause substantially as follows in solicitations and contracts, in 
compliance with FAR 9.507-2:

               Limitation of Future Contracting (DEC 1988)

    (a) The Contracting Officer has determined that this acquisition may 
give rise to a potential organizational conflict of interest. 
Accordingly, the attention of prospective offerors is invited to FAR 
Subpart 9.5--Organizational Conflicts of Interest.
    (b) The nature of this conflict is [describe the conflict].
    (c) The restrictions upon future contracting are as follows:
    (1) If the Contractor, under the terms of this contract, or through 
the performance of tasks pursuant to this contract, is required to 
develop specifications or statements or work that are to be incorporated 
into a solicitation, the Contractor shall be ineligible to perform the 
work described in that solicitation as a prime of first-tier 
subcontractor under an ensuing NASA contract. This restriction shall 
remain in effect for a reasonable time, as agreed to by the Contracting 
Officer and the Contractor, sufficient to avoid unfair competitive 
advantage or potential bias (this time shall in no case be less than the 
duration of the initial production contract). NASA shall not 
unilaterally require the Contractor to prepare such specifications or 
statements of work under this contract.
    (2) To the extent that the work under this contract requires access 
to proprietary, business confidential, or financial data of other 
companies, and as long as these data remain proprietary or confidential, 
the Contractor shall protect these data from unauthorized use and 
disclosure and agrees not to use them to complete with those other 
companies.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



Sec. 1852.209-72  Composition of the contractor.

    As prescribed in 1809.670, insert the following clause:

                Composition of the Contractor (DEC 1988)

    If the Contractor is comprised of more than one legal entity, each 
entity shall be jointly and severally liable under this contract.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



Sec. 1852.210-70  Brand name or equal.

    As prescribed in 1810.011-70(a), insert the following provision:

                     Brand Name or Equal (DEC 1988)

    (a) As used in this provision, ``brand name'' means identification 
of products by make and model. The term ``bid'' means ``offer'' if this 
is a negotiated acquisition.
    (b) If items called for by this solicitation are identified in the 
Schedule by a ``brand name or equal'' description, that identification 
is intended to be descriptive, not restrictive, and is to indicate the 
quality and characteristics of products that will be satisfactory. Bids 
offering ``equal'' products, including products of the brand name 
manufacturer other than the one described by brand name, will be 
considered for award if the products are clearly identified in the bids 
and are determined by the Government to meet fully the salient 
characteristics requirements referenced in the solicitation.
    (c) Unless the offeror clearly indicates in the bid that it is 
offering an ``equal'' product, the bid shall be considered as offering a 
brand-name product referenced in the solicitation.
    (d)(1) If the offeror proposes to furnish an ``equal'' product, the 
brand name, if any, of the product to be furnished shall be inserted in 
the space provided in the solicitation, or that product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determination as to equality of the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the offeror or identified in

[[Page 387]]

its bid, as well as on other information reasonably available to the 
contracting activity.
    (2) Caution to Offerors: The contracting office is not responsible 
for locating or securing any information not identified in the bid and 
reasonably available to the contracting office. Accordingly, to ensure 
that sufficient information is available, the offeror must furnish as a 
part of its bid all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting office to 
(i) determine whether the product offered meets the salient 
characteristics requirements of the solicitation and (ii) establish 
exactly what the offeror proposes to furnish and what the Government 
would be binding itself to purchase by making an award. The information 
furnished may include specific references to information previously 
furnished or to information otherwise available to the contracting 
office.
    (3) If the offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, it shall (i) include in 
the bid a clear description of the proposed modifications and (ii) 
clearly mark any descriptive material to show them.
    (4) If this is a sealed-bid acquisition, modifications proposed 
after bid opening to make a product conform to a brand name product 
referenced in the solicitation will not be considered.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991]



Sec. 1852.211-70  Packaging, handling, and transportation.

    As prescribed in 1811.404-70, insert the following clause:

           Packaging, Handling, and Transportation (JUN 2000)

    (a) The Contractor shall shall comply with NPG 6000.1E, 
``Requirements for Packaging, Handling, and Transportation for 
Aeronautical and Space Systems, Equipment, and Associated Components'', 
dated April 26, 1999, as may be supplemented by the statement of work or 
specifications of this contract, for all items designated as Class I, 
II, or III.
    (b) The Contractor's packaging, handling, and transportation 
procedures may be used, in whole or in part, subject to the written 
approval of the Contracting Officer, provided (1) the Contractor's 
procedures are not in conflict with any requirements of this contract, 
and (2) the requirements of this contract shall take precedence in the 
event of any conflict with the Contractor's procedures.
    (c) The Contractor must place the requirements of this clause in all 
subcontracts for items that will become components of deliverable Class 
I, II, or III items.

                             (End of clause)

[65 FR 37062, June 13, 2000]



Sec. 1852.212-70  Notice of delay.

    As prescribed at 1812.104-70(a), insert the following clause:

                       Notice of Delay (DEC 1988)

    If, because of technical difficulties, the Contractor becomes unable 
to complete the contract work at the time specified, notwithstanding the 
exercise of good faith and diligent efforts in performing the work 
called for under this contract, the Contractor shall give the 
Contracting Officer written notice of the anticipated delay and the 
reasons for it. The notice and reasons shall be delivered promptly after 
the condition creating the anticipated delay becomes known to the 
Contractor but in no event less than 45 days before the completion date 
specified in this contract, unless otherwise permitted by the 
Contracting Officer. When notice is given, the Contracting Officer may 
extend the time specified in the Schedule for such period as is deemed 
advisable.

                             (End of clause)



Sec. 1852.212-74  Period of performance.

    As prescribed in 1812.104-70(e), insert the following clause:

                    Period of Performance (DEC 1988)

    The period of performance of this contract shall be [Insert period 
of performance dates].

                             (End of clause)



Sec. 1852.213-70  Offeror Representations and Certifications--Other Than 
          Commercial Items.

    As prescribed in 1813.302-570, insert the following provision:

Offeror Representations and Certifications--Other Than Commercial Items-
                               -(JUL 2002)

    (a) Definitions. As used in this provision--
    ``Emerging small business'' means a small business concern whose 
size is no greater than 50 percent of the numerical size standard for 
the NAICS code designated.
    ``Forced or indentured child labor'' means all work or service--
    (1) Exacted from any person under the age of 18 under the menace of 
any penalty for its

[[Page 388]]

nonperformance and for which the worker does not offer himself 
voluntarily; or
    (2) Performed by any person under the age of 18 pursuant to a 
contract the enforcement of which can be accomplished by process or 
penalties.
    Service-disabled veteran means a veteran, as defined in 38 U.S.C. 
101(2), with a disability that is service-connected, as defined in 38 
U.S.C. 101(16).
    ``Service-disabled veteran-owned small business concern''--Means a 
small business concern--
    (1) Not less than 51 percent of which is owned by one or more 
service-disabled veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by one 
or more service-disabled veterans; and
    (2) The management and daily business operations of which are 
controlled by one or more service-disabled veterans or, in the case of a 
veteran with permanent and severe disability, the spouse or permanent 
caregiver of such veteran.
    ``Small business concern'' means a concern, including its 
affiliates, that is independently owned and operated, not dominant in 
the field of operation in which it is bidding on Government contracts, 
and qualified as a small business under the criteria in 13 CFR part 121 
and size standards in this solicitation.
    ``Veteran-owned small business concern'' means a small business 
concern--
    (1) Not less than 51 percent of which is owned by one or more 
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any 
publicly owned business, not less than 51 percent of the stock of which 
is owned by one or more veterans; and
    (2) The management and daily business operations of which are 
controlled by one or more veterans.
    ``Women-owned small business concern'' means a small business 
concern--
    (1) That 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) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31 U.S.C. 
7701).
    (1) All offerors must submit the information required in paragraphs 
(b)(3) through (b)(5) of this provision to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the Internal Revenue Service (IRS).
    (2) The TIN may be used by the Government to collect and report on 
any delinquent amounts arising out of the offeror's relationships with 
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is 
subject to the payment reporting requirements described in FAR 4.904, 
the TIN provided hereunder may be matched with IRS records to verify the 
accuracy of the offeror's TIN.
    (3) Taxpayer Identification Number (TIN).


Sec. [  ] TIN:----------.

Sec. [  ] TIN has been applied for.

Sec. [  ] TIN is not required because:
    [  ] Offeror is a nonresident alien, foreign corporation, or foreign 
partnership that does not have income effectively connected with the 
conduct of a trade or business in the United States and does not have an 
office or place of business or a fiscal paying agent in the United 
States;
    [  ] Offeror is an agency or instrumentality of a foreign 
government;
    [  ] Offeror is an agency or instrumentality of the Federal 
Government.

    (4) Type of organization.


Sec. [  ] Sole proprietorship;

Sec. [  ] Partnership;

Sec. [  ] Corporate entity (not tax-exempt);

Sec. [  ] Corporate entity (tax-exempt);

Sec. [  ] Government entity (Federal, State, or local);

Sec. [  ] Foreign government;

Sec. [  ] International organization per 26 CFR 1.6049-4;

Sec. [  ] Other ----------.

    (5) Common parent.


Sec. [  ] Offeror is not owned or controlled by a common parent;

Sec. [  ] Name and TIN of common parent:
    Name ----------.
    TIN----------.

    (c) Offerors must complete the following representations when the 
resulting contract is to be performed inside the United States, its 
territories or possessions, Puerto Rico, the Trust Territory of the 
Pacific Islands, or the District of Columbia. Check all that apply.
    (1) Small business concern. The offeror represents as part of its 
offer that it [  ] is, [  ] is not a small business concern.
    (2) Veteran-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents as part of its offer 
that it [  ] is, [  ] is not a veteran-owned small business concern.
    (3) Service-disabled veteran-owned small business concern. [Complete 
only if the offeror represented itself as a veteran-owned small business 
concern in paragraph (c)(2) of this provision.] The offeror represents 
as part of its offer that it [  ] is, [  ] is not a service-disabled 
veteran-owned small business concern.
    (4) Small disadvantaged business concern. [Complete only if the 
offeror represented

[[Page 389]]

itself as a small business concern in paragraph (c)(1) of this 
provision.] The offeror represents, for general statistical purposes, 
that it [  ] is, [  ] is not a small disadvantaged business concern as 
defined in 13 CFR 124.1002.
    (5) Women-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents that it [  ] is, [  ] 
is not a women-owned small business concern.
    (6) Small Business Size for the Small Business Competitiveness
    Demonstration Program and for the Targeted Industry Categories under 
the Small Business Competitiveness Demonstration Program. [Complete only 
if the offeror has represented itself to be a small business concern 
under the size standards for this solicitation.]
    (i) [Complete only for solicitations indicated as being set-aside 
for emerging small businesses in one of the four designated industry 
groups (DIGs).] The offeror represents as part of its offer that it [  ] 
is, [  ] is not an emerging small business.
    (ii) [Complete only for solicitations indicated as being for one of 
the targeted industry categories (TICs) or four designated industry 
groups (DIGs).] Offeror represents as follows:
    (A) Offeror's number of employees for the past 12 months (check the 
Employees column if size standard stated in the solicitation is 
expressed in terms of number of employees); or
    (B) Offeror's average annual gross revenue for the last 3 fiscal 
years (check the Average Annual Gross Number of Revenues column if size 
standard stated in the solicitation is expressed in terms of annual 
receipts).
    (Check one of the following):

 
         Number of  employees            Average annual  gross revenues
 
--50 or fewer                          --$1 million or less.
--51-100                               --$1,000,001-$2 million.
--101-250                              --$2,000,001-$3.5 million.
--251-500                              --$3,500,001-$5 million.
--501-750                              --$5,000,001-$10 million.
--751-1000                             --$10,000,001-$17 million.
--Over 1000                            --Over $17 million.
 

    (7) HUBZone small business concern. [Complete only if the offeror 
represented itself as a small business concern in paragraph (c)(1) of 
this provision.] The offeror represents as part of its offer that--
    (i) It [  ] is, [  ] is not a HUBZone small business concern listed, 
on the date of this representation, on the List of Qualified HUBZone 
Small Business Concerns maintained by the Small Business Administration, 
and no material change in ownership and control, principal office, or 
HUBZone employee percentage has occurred since it was certified by the 
Small Business Administration in accordance with 13 CFR part 126; and
    (ii) It [  ] is, [  ] is not a joint venture that complies with the 
requirements of 13 CFR part 126, and the representation in paragraph 
(c)(11)(i) of this provision is accurate for the HUBZone small business 
concern or concerns that are participating in the joint venture. [The 
offeror shall enter the name or names of the HUBZone small business 
concern or concerns that are participating in the joint venture: ------
----.] Each HUBZone small business concern participating in the joint 
venture shall submit a separate signed copy of the HUBZone 
representation.
    (8) (Complete if dollar value of the resultant contract is expected 
to exceed $25,000 and the offeror has represented itself as 
disadvantaged in paragraph (c)(4) of this provision.) [The offeror shall 
check the category in which its ownership falls]:

-- Black American.
-- Hispanic American.
-- Native American (American Indians, Eskimos, Aleuts, or Native 
Hawaiians).
-- Asian-Pacific American (persons with origins from Burma, Thailand, 
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, 
Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust 
Territory of the Pacific Islands (Republic of Palau), Republic of the 
Marshall Islands, Federated States of Micronesia, the Commonwealth of 
the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji, 
Tonga, Kiribati, Tuvalu, or Nauru).
-- Subcontinent Asian (Asian-Indian) American (persons with origins from 
India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands, or 
Nepal).
-- Individual/concern, other than one of the preceding.

    (d) Representations required to implement provisions of Executive 
Order 11246--
    (1) Previous contracts and compliance. The offeror represents that--
    (i) It [  ] has, [  ] has not participated in a previous contract or 
subcontract subject to the Equal Opportunity clause of this 
solicitation; and
    (ii) It [  ] has, [  ] has not filed all required compliance 
reports.
    (2) Affirmative Action Compliance. The offeror represents that--
    (i) It [  ] has developed and has on file, [  ] has not developed 
and does not have on file, at each establishment, affirmative action 
programs required by rules and regulations of the Secretary of Labor (41 
CFR parts 60-1 and 60-2), or
    (ii) It [  ] has not previously had contracts subject to the written 
affirmative action programs requirement of the rules and regulations of 
the Secretary of Labor.

[[Page 390]]

    (e) Buy American Act Certificate. (Applies only if the clause at 
Federal Acquisition Regulation (FAR) 52.225-1, Buy American Act--
    Supplies, is included in this solicitation.)
    (1) The offeror certifies that each end product, except those listed 
in paragraph (e)(2) of this provision, is a domestic end product as 
defined in the clause of this solicitation entitled ``Buy American Act--
Supplies'' and that the offeror has considered components of unknown 
origin to have been mined, produced, or manufactured outside the United 
States. The offeror shall list as foreign end products those end 
products manufactured in the United States that do not qualify as 
domestic end products.
    (2) Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (3) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (f)(1) Buy American Act--North American Free Trade Agreement--
Israeli Trade Act Certificate. (Applies only if the clause at FAR 
52.225-3, Buy American Act--North American Free Trade Agreement--Israeli 
Trade Act, is included in this solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(1)(ii) or (f)(1)(iii) of this provision, is a domestic 
end product as defined in the clause of this solicitation entitled ``Buy 
American Act--North American Free Trade Agreement--Israeli Trade Act'' 
and that the offeror has considered components of unknown origin to have 
been mined, produced, or manufactured outside the United States.
    (ii) The offeror certifies that the following supplies are NAFTA 
country end products or Israeli end products as defined in the clause of 
this solicitation entitled ``Buy American Act--North American Free Trade 
Agreement--Israeli Trade Act: NAFTA Country or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The offeror shall list those supplies that are foreign end 
products (other than those listed in paragraph (f)(1)(ii) of this 
provision) as defined in the clause of this solicitation entitled ``Buy 
American Act--North American Free Trade Agreement-- Israeli Trade Act.'' 
The offeror shall list as other foreign end products those end products 
manufactured in the United States that do not qualify as domestic end 
products.
    Other Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iv) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (2) Buy American Act--North American Free Trade Agreements--Israeli 
Trade Act Certificate, Alternate I. If Alternate I to the clause at FAR 
52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products as defined in the clause of this solicitation 
entitled ``Buy American Act--North American Free Trade Agreement--
Israeli Trade Act'':
    Canadian End Products:

                              Line Item No.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(List as necessary)

    (3) Buy American Act--North American Free Trade Agreements--Israeli 
Trade Act Certificate, Alternate II. If Alternate II to the clause at 
FAR 52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products or Israeli end products as defined in the clause 
of this solicitation entitled ``Buy American Act--North American Free 
Trade Agreement--Israeli Trade Act'':
    Canadian or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (4) Trade Agreements Certificate. (Applies only if the clause at FAR 
52.225-5, Trade Agreements, is included in this solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(4)(ii) of this provision, is a U.S.-made, designated 
country, Caribbean Basin country, or NAFTA country end product, as 
defined in the clause of this solicitation entitled ``Trade 
Agreements.''
    (ii) The offeror shall list as other end products those end products 
that are not U.S.-

[[Page 391]]

made, designated country, Caribbean Basin country, or NAFTA country end 
products.
    Other End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25. For line items subject to the 
Trade Agreements Act, the Government will evaluate offers of U.S.-made, 
designated country, Caribbean Basin country, or NAFTA country end 
products without regard to the restrictions of the Buy American Act. The 
Government will consider for award only offers of U.S.-made, designated 
country, Caribbean Basin country, or NAFTA country end products unless 
the Contracting Officer determines that there are no offers for such 
products or that the offers for such products are insufficient to 
fulfill the requirements of the solicitation.
    (g) Certification Regarding Knowledge of Child Labor for Listed End 
Products (Executive Order 13126). [The Contracting Officer must list in 
paragraph (g)(1) any end products being acquired under this solicitation 
that are included in the List of Products Requiring Contractor 
Certification as to Forced or Indentured Child Labor, unless excluded at 
FAR 22.1503(b).]
    (1) Listed end products.

            Listed End Product and Listed Countries of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (2) Certification. [If the Contracting Officer has identified end 
products and countries of origin in paragraph (g)(1) of this provision, 
then the offeror must certify to either (g)(2)(i) or (g)(2)(ii) by 
checking the appropriate block.]
    [  ] (i) The offeror will not supply any end product listed in 
paragraph (g)(1) of this provision that was mined, produced, or 
manufactured in the corresponding country as listed for that product.
    [  ] (ii) The offeror may supply an end product listed in paragraph 
(g)(1) of this provision that was mined, produced, or manufactured in 
the corresponding country as listed for that product. The offeror 
certifies that it has made a good faith effort to determine whether 
forced or indentured child labor was used to mine, produce, or 
manufacture any such end product furnished under this contract. On the 
basis of those efforts, the offeror certifies that it is not aware of 
any such use of child labor.

(End of provision)

                          Alternate I--Jun 2002

    As prescribed in 1813.302-570(a)(2), add the following paragraph to 
the end of the basic provision and identify appropriately:
    (  ) Recovered Material Certification. As required by the Resource 
Conservation and Recovery Act of 1976 (42 U.S.C. 6962(c)(3)(A)(i)), the 
offeror certifies, that the percentage of recovered materials to be used 
in the performance of the contract will be at least the amount required 
by the applicable contract specifications.

                         Alternate II--Jun 2002

    As prescribed in 1813.302-570(a)(2), add the following paragraph to 
the end of the basic provision and identify appropriately:

 (  ) Historically Black College or University and Minority Institution 
                             Representation

    (1) Definitions. As used in this provision--
    ``Historically black college or university'' means an institution 
determined by the Secretary of Education to meet the requirements of 34 
CFR 608.2. For the Department of Defense, the National Aeronautics and 
Space Administration, and the Coast Guard, the term also includes any 
nonprofit research institution that was an integral part of such a 
college or university before November 14, 1986.
    ``Minority institution'' means an institution of higher education 
meeting the requirements of Section 1046(3) of the Higher Education Act 
of 1965 (20 U.S.C. 1067k, including a Hispanic-serving institution of 
higher education, as defined in Section 316(b)(1) of the Act (20 U.S.C. 
1101a)).
    (2) Representation. The offeror represents that it--
    (  ) is (  ) is not a historically black college or university;
    (  ) is (  ) is not a minority institution.

                         Alternate III--Jun 2002

    As prescribed in 1813.302-570(a)(2), add the following paragraph to 
the end of the basic provision and identify appropriately:
    (  ) Representation of Limited Rights Data and Restricted Computer 
Software
    (1) This solicitation sets forth the work to be performed if a 
contract award results, and the Government's known delivery requirements 
for data (as defined in FAR 27.401). Any resulting contract may also 
provide the Government the option to order additional data under the 
Additional Data Requirements clause at FAR 52.227-16, if included in the 
contract. Any data delivered under the resulting contract will be 
subject to the Rights in Data-General clause at FAR 52.227-14 that is to 
be included in this contract. Under the latter clause, a Contractor may 
withhold from delivery data that qualify as

[[Page 392]]

limited rights data or restricted computer software, and deliver form, 
fit, and function data in lieu thereof. The latter clause also may be 
used with its Alternates II and/or III to obtain delivery of limited 
rights data or restricted computer software, marked with limited rights 
or restricted rights notices, as appropriate. In addition, use of 
Alternate V with this latter clause provides the Government the right to 
inspect such data at the Contractor's facility.
    (2) As an aid in determining the Government's need to include 
Alternate II or Alternate III in the clause at FAR 52.227-14, Rights in 
Data-General, the offeror shall complete paragraph (3) of this provision 
to either state that none of the data qualify as limited rights data or 
restricted computer software, or identify, to the extent feasible, which 
of the data qualifies as limited rights data or restricted computer 
software. Any identification of limited rights data or restricted 
computer software in the offeror's response is not determinative of the 
status of such data should a contract be awarded to the offeror.
    (3) The offeror has reviewed the requirements for the delivery of 
data or software and states [offeror check appropriate block]--
    (  ) None of the data proposed for fulfilling such requirements 
qualifies as limited rights data or restricted computer software.
    (  ) Data proposed for fulfilling such requirements qualify as 
limited rights data or restricted computer software and are identified 
as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    Note: ``Limited rights data'' and ``Restricted computer software'' 
are defined in the contract clause entitled ``Rights in Data-General.''

[67 FR 38905, June 6, 2002, as amended at 67 FR 50824, Aug. 6, 2002]



Sec. 1852.213-71  Evaluation--Other Than Commercial Items.

    As prescribed in 1813.302-570(b) insert the following provision:

            Evaluation--Other Than Commercial Items--Jun 2002

    (a) The Government will award a contract resulting from this 
solicitation to the responsible offeror whose offer conforming to the 
solicitation will be most advantageous to the Government, price and 
other factors considered. The following factors shall be used to 
evaluate offers:
________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
[Contracting Officer shall insert the evaluation factors, such as (i) 
technical capability of the item offered to meet the Government 
requirement; (ii) price; (iii) past performance (see FAR 15.304).]

    (b) Options. The Government will evaluate offers for award purposes 
by adding the total price for all options to the total price for the 
basic requirement. The Government may determine that an offer is 
unacceptable if the option prices are significantly unbalanced. 
Evaluation of options shall not obligate the Government to exercise the 
option(s).

(End of provision)

[67 FR 38905, June 6, 2002]



Sec. 1852.214-70  Caution to offerors furnishing descriptive literature.

    As prescribed in 1814.201-670(a), insert the following provision:

                     Caution to Offerors Furnishing

                         Descriptive Literature

                               (Dec 1988)

    Bidders are cautioned against furnishing as a part of their bids 
descriptive literature that includes language reserving to the bidder 
the right to deviate from the requirements of the invitation for bids. 
Statements that ``Data are subject to change without notice,'' ``Prices 
subject to change without notice,'' or words having a similar effect are 
examples of such reservation. The Government will reject as 
nonresponsive any bid that incorporates literature containing such 
language or any bid that must be evaluated by using literature 
containing such language. Bidders should clearly label any submissions 
of descriptive literature not intended to form a part of a bid as such 
in order to preclude any need for the Government to interpret the 
bidder's intent in submitting descriptive literature. [See FAR 14.202-
5.]

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.214-71  Grouping for Aggregate Award.

    As prescribed in 1814.201-670(c), insert the following provision:

                 Grouping for Aggregate Award (MAR 1989)

    (a) The Government will evaluate offers and make award on a basis of 
the aggregate offers for items
    [Insert the item numbers and/or descriptions].
    The Government will not consider an offer for quantities less than 
those specified for these items.

[[Page 393]]

    (b) If this is an invitation for bids, the Government will reject as 
nonresponsive a bid that is not made on the total quantities for all of 
the items specified in paragraph (a) of this section.

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.214-72  Full quantities.

    As prescribed in 1814.201-670(b), insert the following provision:

                       Full Quantities (DEC 1988)

    The Government will not consider an offer for quantities of items 
less than those specified. If this is an invitation for bids, the 
Government will reject as nonresponsive a bid that is not made on full 
quantities.

                           (End of provision)

[61 FR 47082, Sept. 6, 1996]



Sec. 1852.215-77  Preproposal/pre-bid conference.

    As prescribed in 1815.209-70(a), insert the following provision:

                Preproposal/Pre-Bid Conference (DEC 1988)

    (a) A preproposal/pre-bid conference will be held as indicated 
below:
    Date:
    Time:
    Location:
    Other Information, as applicable:
    [Insert the applicable conference information.]
    (b) Attendance at the preproposal/pre-bid conference is recommended; 
however, attendance is neither required nor a prerequisite for proposal/
bid submission and will not be considered in the evaluation.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9965, Feb. 27, 1998]



Sec. 1852.215-78  Make or buy program requirements.

    As prescribed in 1815.408-70(a), insert the following provision:

               Make or Buy Program Requirements (FEB 1998)

    The offeror shall submit a Make-or-Buy Program in accordance with 
the requirements of Federal Acquisition Regulation (FAR) 15.407-2. The 
offeror shall include the following supporting documentation with its 
proposal:
    (a) A description of each major item or work effort.
    (b) Categorization of each major item or work effort as ``must 
make,'' ``must buy,'' or ``can either make or buy.''
    (c) For each item or work effort categorized as ``can either make or 
buy,'' a proposal either to ``make'' or ``buy.''
    (d) Reasons for (i) categorizing items and work effort as ``must 
make'' or ``must buy'' and (ii) proposing to ``make'' or ``buy'' those 
categorized as ``can either make or buy.'' The reasons must include the 
consideration given to the applicable evaluation factors described in 
the solicitation and be in sufficient detail to permit the Contracting 
Officer to evaluate the categorization and proposal.
    (e) Designation of the offeror's plant or division proposed to make 
each item or perform each work effort and a statement as to whether the 
existing or proposed new facility is in or near a labor surplus area.
    (f) Identification of proposed subcontractors, if known, and their 
location and size status.
    (g) Any recommendations to defer make-or-buy decisions when 
categorization of some items or work efforts is impracticable at the 
time of submission.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9965, Feb. 27, 1998; 63 
FR 32764, June 16, 1998]



Sec. 1852.215-79  Price adjustment for ``Make- or-Buy'' changes.

    As prescribed in 1815.407-70(b), insert the following clause:

         Price Adjustment for ``Make-or-Buy'' Changes (DEC 1988)

    The following make-or-buy items are subject to the provisions of 
paragraph (d) of the clause at FAR 52.215-21, Change or Additions to 
Make-or-Buy Program, of this contract:

 
          Item Description                 Make-or-Buy Determination
------------------------------------------------------------------------
 
------------------------------------------------------------------------

                             (End of clause)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1852.215-81  Proposal page limitations.

    As prescribed in 1815.209-70(d), insert the following provision:

[[Page 394]]

                  Proposal Page Limitations (FEB 1998)

    (a) The following page limitations are established for each portion 
of the proposal submitted in response to this solicitation.

 
   Proposed Section (List each
       volume or section)               Page Limit (Specify limit)
------------------------------------------------------------------------
------------------                ------------------
------------------                ------------------
------------------                ------------------
------------------                ------------------
------------------------------------------------------------------------

    (b) A page is defined as one side of sheet, 8\1/2\'' x 11'', with at 
least one inch margins on all sides, using not smaller than 12 point 
type. Foldouts count as an equivalent number of 8\1/2\'' x 11'' pages. 
The metric standard format most closely approximating the described 
standard 8\1/2\'' x 11'' size may also be used.
    (c) Title pages and tables of contents are excluded from the page 
counts specified in paragraph (a) of this provision. In addition, the 
Cost section of your proposal is not page limited. However, this section 
is to be strictly limited to cost and price information. Information 
that can be construed as belonging in one of the other sections of the 
proposal will be so construed and counted against that section's page 
limitation.
    (d) If final proposal revisions are requested, separate page 
limitations will be specified in the Government's request for that 
submission.
    (e) Pages submitted in excess of the limitations specified in this 
provision will not be evaluated by the Government and will be returned 
to the offeror.

                           (End of provision)

[62 FR 3483, Jan. 23, 1997, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1852.215-84  Ombudsman.

    As prescribed in 1815.7003, insert the following clause:

                          Ombudsman (JUN 2000)

    (a) An ombudsman has been appointed to hear and facilitate the 
resolution of concerns from offerors, potential offerors, and 
contractors during the preaward and postaward phases of this 
acquisition. When requested, the ombudsman will maintain strict 
confidentiality as to the source of the concern. The existence of the 
ombudsman is not to diminish the authority of the contracting officer, 
the Source Evaluation Board, or the selection official. Further, the 
ombudsman does not participate in the evaluation of proposals, the 
source selection process, or the adjudication of formal contract 
disputes. Therefore, before consulting with an ombudsman, interested 
parties must first address their concerns, issues, disagreements, and/or 
recommendations to the contracting officer for resolution.
    (b) If resolution cannot be made by the contracting officer, 
interested parties may contact the installation ombudsman, ------------ 
[Insert name, address, telephone number, facsimile number, and e-mail 
address]. Concerns, issues, disagreements, and recommendations which 
cannot be resolved at the installation may be referred to the NASA 
ombudsman, the Director of the Contract Management Division, at 202-358-
0422, facsimile 202-358-3083, e-mail [email protected]. Please do not 
contact the ombudsman to request copies of the solicitation, verify 
offer due date, or clarify technical requirements. Such inquiries shall 
be directed to the Contracting Officer or as specified elsewhere in this 
document.

                             (End of clause)

    Alternate I (JUN 2000) As prescribed in 1815.7003, insert the 
following paragraph (c):

    (c) If this is a task or delivery order contract, the ombudsman 
shall review complaints from contractors and ensure they are afforded a 
fair opportunity to be considered, consistent with the procedures of the 
contract.

[62 FR 3484, Jan. 23, 1997, as amended at 65 FR 38777, June 22, 2000]



Sec. 1852.216-73  Estimated cost and cost sharing.

    As prescribed in 1816.307-70(a), insert the following clause:

               Estimated Cost and Cost Sharing (DEC 1991)

    (a) It is estimated that the total cost of performing the work under 
this contract will be $----------.
    (b) For performance of the work under this contract, the Contractor 
shall be reimbursed for not more than ------ percent of the costs of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining ------ percent or more of the costs of 
performance so determined shall constitute the Contractor's share, for 
which it will not be reimbursed by the Government.
    (c) For purposes of the -------------- [insert ``Limitation of 
Cost'' or ``Limitation of Funds''] clause, the total estimated cost to 
the Government is hereby established as $-------- (insert estimated 
Government share); this amount is the maximum Government liability.

[[Page 395]]

    (d) The Contractor shall maintain records of all contract costs 
claimed by the Contractor as constituting part of its share. Those 
records shall be subject to audit by the Government. Costs contributed 
by the Contractor shall not be charged to the Government under any other 
grant, contract, or agreement (including allocation to other grants, 
contracts, or agreements as part of an independent research and 
development program).

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]



Sec. 1852.216-74  Estimated cost and fixed fee.

    As prescribed in 1816.307-70(b), insert the following clause:

                 Estimated Cost and Fixed Fee (DEC 1991)

    The estimated cost of this contract is ------------ exclusive of the 
fixed fee of ------------. The total estimated cost and fixed fee is --
----------.

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]



Sec. 1852.216-75  Payment of fixed fee.

    As prescribed in 1816.307-70(c), insert the following clause:

                     Payment of Fixed Fee (DEC 1988)

    The fixed fee shall be paid in monthly installments based upon the 
percentage of completion of work as determined by the Contracting 
Officer.

                             (End of clause)

[62 FR 3484, Jan. 23, 1997]



Sec. 1852.216-76  Award Fee for service contracts.

    As prescribed in 1816.406-70(a), insert the following clause:

               Award Fee for Service Contracts (JUN 2000)

    (a) The contractor can earn award fee from a minimum of zero dollars 
to the maximum stated in NASA FAR Supplement clause 1852.216-85, 
``Estimated Cost and Award Fee'' in this contract.
    (b) Beginning 6* months after the effective date of this contract, 
the Government shall evaluate the Contractor's performance every 6* 
months to determine the amount of award fee earned by the contractor 
during the period. The Contractor may submit a self-evaluation of 
performance for each evaluation period under consideration. These self-
evaluations will be considered by the Government in its evaluation. The 
Government's Fee Determination Official (FDO) will determine the award 
fee amounts based on the Contractor's performance in accordance with 
[identify performance evaluation plan]. The plan may be revised 
unilaterally by the Government prior to the beginning of any rating 
period to redirect emphasis.
    (c) The Government will advise the Contractor in writing of the 
evaluation results. The [insert payment office] will make payment based 
on [Insert method of authorizing award fee payment, e.g., issuance of 
unilateral modification by contracting officer].
    (d) After 85 percent of the potential award fee has been paid, the 
Contracting Officer may direct the withholding of further payment of 
award fee until a reserve is set aside in an amount that the Contracting 
Office considers necessary to protect the Government's interest. This 
reserve shall not exceed 15 percent of the total potential award fee.
    (e) The amount of award fee which can be awarded in each evaluation 
period is limited to the amounts set forth at [identify location of 
award fee amounts]. Award fee which is not earned in an evaluation 
period cannot be reallocated to future evaluation periods.
    (f)(1) Provisional award fee payments [insert ``will'' or ``will 
not'', as applicable] be made under this contract pending the 
determination of the amount of fee earned for an evaluation period. If 
applicable, provisional award fee payments will be made to the 
Contractor on a [insert the frequency of provisional payments (not more 
often than monthly)] basis. The total amount of award fee available in 
an evaluation period that will be provisionally paid is the lesser of 
[Insert a percent not to exceed 80 percent] or the prior period's 
evaluation score.
    (2) Provisional award fee payments will be superseded by the final 
award fee evaluation for that period. If provisional payments exceed the 
final evaluation score, the Contractor will either credit the next 
payment voucher for the amount of such overpayment or refund the 
difference to the Government, as directed by the Contracting Officer.
    (3) If the Contracting Officer determines that the Contractor will 
not achieve a level of performance commensurate with the provisional 
rate, payment of provisional award fee will be discontinued or reduced 
in such amounts as the Contracting Officer deems appropriate. The 
Contracting Officer will notify the Contractor in writing if it is 
determined that such discontinuance or reduction is appropriate.
    (4) Provisional award fee payments [insert ``will'' or ``will not'', 
as appropriate] be made prior to the first award fee determination by 
the Government.

[[Page 396]]

    (g) Award fee determinations are unilateral decisions made solely at 
the discretion of the Government.

*[A period of time greater or lesser than 6 months may be substituted in 
accordance with 1816.405-272(a).]

                             (End of clause)

[62 FR 3484, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997; 63 
FR 13134, Mar. 18, 1998; 65 FR 38777, June 22, 2000]



Sec. 1852.216-77  Award fee for end item contracts.

    As prescribed in 1816.406-70(b), insert the following clause:

               Award Fee for End Item Contracts (JUN 2000)

    (a) The contractor can earn award fee, or base fee, if any, from a 
minimum of zero dollars to the maximum stated in NASA FAR Supplement 
clause 1852.216-85, ``Estimated Cost and Award Fee'' in this contract. 
All award fee evaluations, with the exception of the last evaluation, 
will be interim evaluations. At the last evaluation, which is final, the 
Contractor's performance for the entire contract will be evaluated to 
determine total earned award fee. No award fee or base fee will be paid 
to the Contractor if the final award fee evaluation is ``poor/
unsatisfactory.''
    (b) Beginning 6* months after the effective date of this contract, 
the Government will evaluate the Contractor's interim performance every 
6* months to monitor Contractor performance prior to contract completion 
and to provide feedback to the Contractor. The evaluation will be 
performed in accordance with [identify performance evaluation plan] to 
this contract. The Contractor may submit a self-evaluation of 
performance for each period under consideration. These self-evaluations 
will be considered by the Government in its evaluation. The Government 
will advise the Contractor in writing of the evaluation results. The 
plan may be revised unilaterally by the Government prior to the 
beginning of any rating period to redirect emphasis.
    (c)(1) Base fee, if applicable, will be paid in [Insert ``monthly'', 
or less frequent period] installments based on the percent of completion 
of the work as determined by the Contracting Officer.
    (2) Interim award fee payments will be made to the Contractor based 
on each interim evaluation. The amount of the interim award fee payment 
is limited to the lesser of the interim evaluation score or 80 percent 
of the fee allocation to that period less any provisional payments made 
during the period. All interim award fee payments will be superseded by 
the final award fee determination.
    (3) Provisional award fee payments will [insert ``not'' if 
applicable] be made under this contract pending each interim evaluation. 
If applicable, provisional award fee payments will be made to the 
Contractor on a [insert the frequency of provisional payments (not more 
often than monthly)] basis. The amount of award fee which will be 
provisionally paid in each evaluation period is limited to [Insert a 
percent not to exceed 80 percent] of the prior interim evaluation score 
(see [insert applicable cite]). Provisional award fee payments made each 
evaluation period will be superseded by the interim award fee evaluation 
for that period. If provisional payments made exceed the interim 
evaluation score, the Contractor will either credit the next payment 
voucher for the amount of such overpayment or refund the difference to 
the Government, as directed by the Contracting Officer. If the 
Government determines that (i) the total amount of provisional fee 
payments will apparently substantially exceed the anticipated final 
evaluation score, or (ii) the prior interim evaluation is ``poor/
unsatisfactory,'' the Contracting Officer will direct the suspension or 
reduction of the future payments and/or request a prompt refund of 
excess payments as appropriate. Written notification of the 
determination will be provided to the Contractor with a copy to the 
Deputy Chief Financial Officer (Finance).
    (4) All interim (and provisional, if applicable) fee payments will 
be superseded by the fee determination made in the final award fee 
evaluation. The Government will then pay the Contractor, or the 
Contractor will refund to the Government the difference between the 
final award fee determination and the cumulative interim (and 
provisional, if applicable) fee payments. If the final award fee 
evaluation is ``poor/unsatisfactory'', any base fee paid will be 
refunded to the Government.
    (5) Payment of base fee, if applicable, will be made based on 
submission of an invoice by the Contractor. Payment of award fee will be 
made by the [insert payment office] based on [Insert method of making 
award fee payment, e.g., issuance of a unilateral modification by the 
Contracting Officer].
    (d) Award fee determinations are unilateral decisions made solely at 
the discretion of the Government.

* [A period of time greater or lesser than 6 months may be substituted 
in accordance with 1816.405-272(a).]

                             (End of clause)

[62 FR 3485, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997; 65 
FR 38778, June 22, 2000]

[[Page 397]]



Sec. 1852.216-78  Firm fixed price.

    As prescribed in 1816.202-70, insert the following clause:

                       Firm Fixed Price (DEC 1988)

    The total firm fixed price of this contract is $     [Insert the 
appropriate amount].

                             (End of clause)

[62 FR 3485, Jan. 23, 1997]



Sec. 1852.216-80  Task ordering procedure.

    As prescribed in 1816.506-70, insert the following clause:

                   Task Ordering Procedures (OCT 1996)

    (a) Only the Contracting Officer may issue task orders to the 
Contractor, providing specific authorization or direction to perform 
work within the scope of the contract and as specified in the schedule. 
The Contractor may incur costs under this contract in performance of 
task orders and task order modifications issued in accordance with this 
clause. No other costs are authorized unless otherwise specified in the 
contract or expressly authorized by the Contracting Officer.
    (b) Prior to issuing a task order, the Contracting Officer shall 
provide the Contractor with the following date:
    (1) A functional description of the work identifying the objectives 
or results desired from the contemplated task order.
    (2) Proposed performance standards to be used as criteria for 
determining whether the work requirements have been met.
    (3) A request for a task plan from the Contractor to include the 
technical approach, period of performance, appropriate cost information, 
and any other information required to determine the reasonableness of 
the Contractor's proposal.
    (c) Within ---- calendar days after receipt of the Contracting 
Officer's request, the Contractor shall submit a task plan conforming to 
the request.
    (d) After review and any necessary discussions, the Contracting 
Officer may issue a task order to the Contractor containing, as a 
minimum, the following:
    (1) Date of the order.
    (2) Contract number and order number.
    (3) Functional description of the work identifying the objectives or 
results desired from the task order, including special instructions or 
other information necessary for performance of the task.
    (4) Performance standards, and where appropriate, quality assurance 
standards.
    (5) Maximum dollar amount authorized (cost and fee or price). This 
includes allocation of award fee among award fee periods, if applicable.
    (6) Any other resources (travel, materials, equipment, facilities, 
etc.) authorized.
    (7) Delivery/performance schedule including start and end dates.
    (8) If contract funding is by individual task order, accounting and 
appropriation data.
    (e) The Contractor shall provide acknowledgement of receipt to the 
Contracting Officer within ---- calendar days after receipt of the task 
order.
    (f) If time constraints do not permit issuance of a fully defined 
task order in accordance with the procedures described in paragraphs (a) 
through (d), a task order which includes a ceiling price may be issued.
    (g) The Contracting officer may amend tasks in the same manner in 
which they are issued.
    (h) In the event of a conflict between the requirements of the task 
order and the Contractor's approved task plan, the task order shall 
prevail.

                             (End of clause)

    Alternate I (OCT 1996). As prescribed in 1816.506-70, insert the 
following paragraph (i) if the contract does not include 533M reporting:

    (i) Contractor shall submit monthly task order progress reports. As 
a minimum, the reports shall contain the following information:
    (1) Contract number, task order number, and date of the order.
    (2) Task ceiling price.
    (3) Cost and hours incurred to date for each issued task.
    (4) Costs and hours estimated to complete each issued task.
    (5) Significant issues/problems associated with a task.
    (6) Cost summary of the status of all tasks issued under the 
contract.

[62 FR 3485, Jan. 23, 1997]



Sec. 1852.216-81  Estimated cost.

    As prescribed in 1816.307-70(d), insert the following clause:

                        Estimated cost (DEC 1988)

    The total estimated cost for complete performance of this contract 
is $     [Insert total estimated cost of the contract]. See FAR clause 
52.216-11, Cost Contract--No Fee, of this contract.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997]



Sec. 1852.216-83  Fixed price incentive.

    As prescribed in 1816.406-70(c), insert the following clause:

[[Page 398]]

                    Fixed Price Incentive (OCT 1996)

    The target cost of this contract is $------. The Target profit of 
this contract is $------. The target price (target cost plus target 
profit) of this contract is $------. [The ceiling price is $------.]
    The cost sharing for target cost underruns is: Government ------
percent; Contractor ------percent.
    The cost sharing for target cost overruns is: Government ------
percent; Contractor ------percent.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-84  Estimated cost and incentive fee.

    As prescribed in 1816.406-70(d), insert the following clause:

               Estimated Cost and Incentive Fee (OCT 1996)

    The target cost of this contract is $------. The target fee of this 
contract is $------. The total target cost and target fee as 
contemplated by the Incentive Fee clause of this contract are $------.
    The maximum fee is $------.
    The minimum fee is $------.
    The cost sharing for cost underruns is: Government ------percent; 
Contractor ------percent.
    The cost sharing for cost overruns is: Government ------percent; 
Contractor ------percent.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-85  Estimated cost and award fee.

    As prescribed in 1816.406-70(e), insert the following clause:

                 Estimated Cost and Award Fee (SEP 1993)

    The estimated cost of this contract is $------. The maximum 
available award fee, excluding base fee, if any, is $------. The base 
fee is $------. Total estimated cost, base fee, and maximum award fee 
are $------.

                             (End of clause)

    Alternate I (SEP 1993) As prescribed in 1816.405-70(e), insert the 
following sentence at the end of the clause:

    The maximum positive performance incentive is $------. The maximum 
negative performance incentive is (1).
    (1) For research development hardware contracts, insert [equal to 
total earned award fee (including any base fee)]. For production 
hardware contracts, insert [$total potential award fee amount, including 
any base fee)].

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-87  Submission of vouchers for payment.

    As prescribed in 1816.307-70(e), insert the following clause:

             Submission for Vouchers for Payment (MAR 1998)

    (a) The designated billing office for cost vouchers for purposes of 
the Prompt Payment clause of this contract is indicated below. Public 
vouchers for payment of costs shall include a reference to the number of 
this contract.
    (b)(1) If the contractor is authorized to submit interim cost 
vouchers directly to the NASA paying office, the original voucher should 
be submitted to: [Insert the mailing address for submission of cost 
vouchers]
    (2) For any period that the Defense Contract Audit Agency has 
authorized the Contractor to submit interim cost vouchers directly to 
the Government paying office, interim vouchers are not required to be 
sent to the Auditor, and are considered to be provisionally approved for 
payment, subject to final audit.
    (3) Copies of vouchers should be submitted as directed by the 
Contracting Officer. (c) If the contractor is not authorized to submit 
interim cost vouchers directly to the paying office as described in 
paragraph (b), the contractor shall prepare and submit vouchers as 
follows:
    (1) One original Standard Form (SF) 1034, SF 1035, or equivalent 
Contractor's attachment to: [Insert the appropriate NASA or DCAA mailing 
office address for submission of cost vouchers]
    (2) Five copies of SF 1034, SF 1035A, or equivalent Contractor's 
attachment to the following offices by insertion in the memorandum block 
of their names and addresses:
    (i) Copy 1 NASA Contracting Officer;
    (ii) Copy 2 Auditor;
    (iii) Copy 3 Contractor;
    (iv) Copy 4 Contract administration office; and
    (v) Copy 5 Project management office.
    (3) The Contracting Officer may designate other recipients as 
required.

[[Page 399]]

    (d) Public vouchers for payment of fee shall be prepared similarly 
to the procedures in paragraphs (b) or (c) of this clause, whichever is 
applicable, and be forwarded to: [insert the mailing address for 
submission of fee vouchers] This is the designated billing office for 
fee vouchers for purposes of the Prompt Payment clause of this contract.
    (e) In the event that amounts are withheld from payment in 
accordance with provisions of this contract, a separate voucher for the 
amount withheld will be required before payment for that amount may be 
made.

                             (End of clause)

[63 FR 15321, Mar. 31, 1998]



Sec. 1852.216-88  Performance incentive.

    As prescribed in 1816.406-70(f), insert the following clause:

                    Performance Incentive (JAN 1997)

    (a) A performance incentive applies to the following hardware 
item(s) delivered under this contract: (1).
    The performance incentive will measure the performance of those 
items against the salient hardware performance requirement, called 
``unit(s) of measurement,'' e.g., months in service or amount of data 
transmitted, identified below. The performance incentive becomes 
effective when the hardware is put into service. It includes a standard 
performance level, a positive incentive, and a negative incentive, which 
are described in this clause.
    (b) Standard performance level. At the standard performance level, 
the Contractor has met the contract requirement for the unit of 
measurement. Neither positive nor negative incentives apply when this 
level is achieved but not exceeded. The standard performance level for 
(1) ---- is established as follows: (2).
    (c) Positive incentive. The Contractor earns a separate positive 
incentive amount for each hardware item listed in paragraph (a) of this 
clause when the standard performance level for that item is exceeded. 
The amount earned for each item varies with the units of measurement 
achieved, up to a maximum positive performance incentive amount of $ (3) 
---- per item. The units of measurement and the incentive amounts 
associated with achieving each unit are shown below: (4).
    (d) Negative incentive. The Contractor will pay to the Government a 
negative incentive amount for each hardware item that fails to achieve 
the standard performance level. The amount to be paid for each item 
varies with the units of measurement achieved, up to the maximum 
negative incentive amount of $ (5) ----. The units of measurement and 
the incentive amounts associated with achieving each unit are shown 
below: (6).
    (e) The final calculation of positive or negative performance 
incentive amounts shall be done when performance (as defined by the unit 
of measurement) ceases or when the maximum positive incentive is 
reached.
    (1) When the Contracting Officer determines that the performance 
level achieved fell below the standard performance level, the Contractor 
will either pay the amount due the Government or credit the next payment 
voucher for the amount due, as directed by the Contracting Officer.
    (2) When the performance level exceeds the standard level, the 
Contractor may request payment of the incentive amount associated with a 
given level of performance, provided that such payments shall not be 
more frequent than monthly. When performance ceases or the maximum 
positive incentive is reached, the Government shall calculate the final 
performance incentive earned and unpaid and promptly remit it to the 
contractor.
    (f) If performance cannot be demonstrated, through no fault of the 
Contractor, within [insert number of months or years] after the date of 
hardware acceptance by the Government, the Contractor will be paid 
[insert percentage] of the maximum performance incentive.
    (g) The decisions made as to the amount(s) of positive or negative 
incentives are subject to the Disputes clause.
    (1) Insert applicable item number(s) and/or nomenclature.
    (2) Insert a specific unit of measurement for each hardware item 
listed in (1) and each salient characteristic, if more than one.
    (3) Insert the maximum positive performance incentive amount (see 
1816.402-270(e) (1) and (2)).
    (4) Insert all units of measurement and associated dollar amounts up 
to the maximum performance incentive.
    (5) Insert the appropriate amount in accordance with 1816.402-
270(e).
    (6) Insert all units of measurement and associated dollar amounts up 
to the maximum negative performance incentive.

                             (End of clause)

[62 FR 3486, Jan. 23, 1997, as amended at 62 FR 36733, July 9, 1997]



Sec. 1852.216-89  Assignment and release forms.

    As prescribed in 1816.307-70(f), insert the following clause:

                 Assignment and Release Forms (JUL 1997)

    The Contractor shall use the following forms to fulfill the 
assignment and release

[[Page 400]]

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)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997]



Sec. 1852.217-70  Property administration and reporting.

    As prescribed in 1817.7002-4 insert the following clause:

            Property Administration and Reporting (DEC 1988)

    All property acquired for, and reimbursed by, NASA or transferred by 
NASA for use under this NASA-Defense Purchase Request shall be 
controlled and accounted for in accordance with the Military 
Department's normal procedures. All excess items, however, costing $500 
or more and in condition Code 7 or better (GSA Condition Codes) shall be 
reported to the NASA originating office for possible reutilization 
before disposition.

                             (End of clause)



Sec. 1852.217-71  Phased acquisition using down-selection procedures.

    As prescribed in 1817.7302(a), insert the following clause:

      Phased Acquisition Using Down-Selection Procedures (MAY 2000)

    (a) This solicitation is for the acquisition of -------- [insert 
Program title]. The acquisition will be conducted as a two-phased 
procurement using a competitive down-selection technique between phases. 
In this technique, two or more contractors will be selected for Phase 1. 
It is expected that the single contractor for Phase 2 will be chosen 
from among these contractors after a competitive down-selection.
    (b) Phase 1 is for the -------- [insert purpose of phase]. Phase 2 
is for -------- [insert general Phase 2 goals].
    (c) The competition for Phase 2 will be based on the results of 
Phase 1, and the award criteria for Phase 2 will include successful 
completion of Phase 1 requirements.
    (d) NASA will issue a separate, formal solicitation for Phase 2 that 
will include all information required for preparation of proposals, 
including the final evaluation factors.
    (e) Phase 2 will be synopsized in the Commerce Business Daily (CBD) 
in accordance with FAR 5.201 and 5.203 unless one of the exceptions in 
FAR 5.202 applies. Notwithstanding NASA's expectation that only the 
Phase 1 contractors will be capable of successfully competing for Phase 
2, all proposals will be considered. Any other responsible source may 
indicate its desire to submit a proposal by responding to the Phase 2 
synopsis, and NASA will provide that source a solicitation.
    (f) To be considered for Phase 2 award, offerors must demonstrate a 
design maturity equivalent to that of the Phase 1 contractors. This, 
demonstration shall include the following Phase 1 deliverables upon 
which Phase 2 award will be based: -------- [(insert the specific Phase 
1 deliverables]. Failure to fully and completely demonstrate the 
appropriate level of design maturity may render the proposal 
unacceptable with no further consideration for contract award.
    (g) The following draft Phase 2 evaluation factors are provided for 
your information. Please note that these evaluation factors are not 
final, and NASA reserves the right to change them at any time up to and 
including the date upon which Phase 2 proposals are solicited.
    [Insert draft Phase 2 evaluation factors (and subfactors, if 
available), including demonstration of successful completion of Phase 1 
requirements.]
    (h) Although NASA will request Phase 2 proposals from Phase 
contractors, submission of the Phase 2 proposal is not a requirement of 
the Phase 1 contract. Accordingly, the costs of preparing these 
proposals shall not be a direct charge to the Phase 1 contract or any 
other Government contract.
    (i) The anticipated schedule for conducting this phased procurement 
is provided for your information. These dates are projections only and 
are not intended to commit NASA to complete a particular action at a 
given time. [Insert dates below].

Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--

                             (End of clause)

[63 FR 56093, Oct. 21, 1998, as amended at 65 FR 30013, May 10, 2000]

[[Page 401]]



Sec. 1852.217-72   Phased acquisition using progressive competition 
          down-selection procedures.

    As prescribed in 1817.7302(b), insert the following clause:

    Phased Acquisition Using Progressive Competition Down-Selection 
                          Procedures (MAY 2000)

    (a) This solicitation is for the acquisition of -------- [insert 
Program title]. The acquisition will be conducted as a two-phased 
procurement using a progressive competition down-selection technique 
between phases. In this technique, two or more contractors will be 
selected for Phase
    1. It is expected that the single contractor for Phase 2 will be 
chosen from among these contractors after a competitive down-selection.
    (b) Phase 1 is for the -------- [insert purpose of phase]. Phase 2 
is for -------- [insert general Phase 2 goals].
    (c) The competition for Phase 2 will be based on the results of 
Phase 1, and the award criteria for Phase 2 will include successful 
completion of Phase 1 requirements.
    (d) NASA does not intend to issue a separate, formal solicitation 
for Phase 2. Instead, Phase 2 proposals will be requested from the Phase 
1 contractors by means of -------- [indicate method of requesting 
proposals, e.g., by a letter]. All information required for preparation 
of Phase 2 proposals, including the final evaluation criteria and 
factors, will be provided at that time.
    (e) Phase 2 will be synopsized in the Commerce Business Daily (CBD) 
in accordance with FAR 5.201 and 5.203 unless one of the exceptions in 
FAR 5.202 applies. Notwithstanding NASA's expectation that only the 
Phase 1 contractors will be capable of successfully competing for Phase 
2, all proposals will be considered. Any other responsible source may 
indicate its desire to submit a proposal by responding to the Phase 2 
synopsis, and NASA will provide that source to all the material 
furnished to the Phase 1 contractors that is necessary to submit a 
proposal.
    (f) To be considered for Phase 2 award, offerors must demonstrate a 
design maturity equivalent to that of the Phase 1 contractors. This, 
demonstration shall include the following Phase 1 deliverables upon 
which Phase 2 award will be based: -------- [insert the specific Phase 1 
deliverables]. Failure to fully and completely demonstrate the 
appropriate level of design maturity may render the proposal 
unacceptable with no further consideration for contract award.
    (g) The following draft Phase 2 evaluation factors are provided for 
your information. Please note that these evaluation factors are not 
final, and NASA reserves the right to change them at any time up to and 
including the date upon which Phase 2 proposals are requested. Any such 
changes in evaluation factors will not necessitate issuance of a new, 
formal solicitation for Phase 2.
    [Insert draft Phase 2 evaluation factors (and subfactors, if 
available), including demonstration of successful completion of Phase 1 
requirements.]
    (h) Although NASA will request Phase 2 proposals from Phase 1 
contractors, submission of the Phase 2 proposal is not a requirement of 
the Phase 1 contract. Accordingly, the costs of preparing these 
proposals shall not be a direct charge to the Phase 1 contract or any 
other Government contract.
    (i) The anticipated schedule for conducting this phased procurement 
is provided for your information. These dates are projections only and 
are not intended to commit NASA to complete a particular action at a 
given time. [Insert dates below].

Phase 1 award--
Phase 2 synopsis--
Phase 2 proposal requested--
Phase 2 proposal receipt--
Phase 2 award--

                             (End of clause)

[63 FR 56093, Oct. 21, 1998, as amended at 65 FR 30013, May 10, 2000]



Sec. 1852.219-73  Small business subcontracting plan.

    As prescribed in 1819.708-70(a), insert the following provision:

              Small Business Subcontracting Plan (MAY 1999)

    (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 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)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 25215, May 11, 1999]



Sec. 1852.219-74  Use of rural area small businesses.

    As prescribed in 1819.7103, insert the following clause:

               Use of Rural Area Small Business (SEP 1990)

    (a) Definitions.

[[Page 402]]

    Rural area means any county with a population of fewer than twenty 
thousand individuals.
    Small business concern, as used in this clause, means a concern, 
including its affiliates, that is independently owned and operated, not 
dominant in the field of operation in which it is bidding under this 
contract, and qualified as a small business under the criteria and size 
standards in 13 CFR part 121.
    (b) NASA prime and subcontractors are encouraged to use their best 
efforts to award subcontracts to small business concerns located in 
rural areas.
    (c) Contractors acting in good faith may rely on written 
representations by their subcontractors regarding their status as small 
business concerns located in rural areas.
    (d) The Contractor agrees to insert the provisions of this clause, 
including this paragraph (d), in all subcontracts hereunder that offer 
subcontracting possibilities.

                             (End of clause)

[55 FR 47479, Nov. 14, 1990]



Sec. 1852.219-75  Small business subcontracting reporting.

    As prescribed in 1819.708-70(b), insert the following clause:

           Small Business Subcontracting Reporting (MAY 1999)

    (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)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 25216, May 11, 1999]



Sec. 1852.219-76  NASA 8 percent goal.

    As prescribed in 1819.7003 insert the following clause:

                     NASA 8 Percent Goal (JUL 1997)

    (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 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)

[62 FR 36733, July 9, 1997; 62 FR 40309, July 28, 1997]

[[Page 403]]



Sec. 1852.219-77  NASA Mentor-Protege program.

    As prescribed in 1819.7219(a), insert the following clause:

                 NASA Mentor-Protege Program (MAY 1999)

    (a) Prime contractors, including certain small businesses, are 
encouraged to participate in the NASA 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 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) In contracts with award fee incentives, potential for payment of 
additional 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 program are 
encouraged to contact the NASA OSDBU, Washington, DC 20546, (202) 358-
2088, for further information.

                             (End of clause)

[62 FR 36734, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 10572, Mar. 5, 1999; 64 FR 25216, May 11, 1999]



Sec. 1852.219-79   Mentor requirements and evaluation.

    As prescribed in 1819.7219(b), insert the following clause:

              Mentor Requirements and Evaluation (JUL 1997)

    (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 on the following 
factors. If this contract includes an award fee incentive, this 
assessment will be accomplished as part of the fee evaluation process.
    (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 contract. At the 
end 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 for good cause and 
exclude mentor or protege firms from participating in the NASA program. 
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).

[[Page 404]]

                             (End of clause)

[62 FR 36734, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 64 
FR 10572, Mar. 5, 1999]



Sec. 1852.223-70  Safety and health.

    As prescribed in 1823.7004(c), insert the following clause:

                      Safety and Health (APR 2002)

    (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. NASA's safety priority is to 
protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including contractor employees working on NASA contracts), 
and (4) high-value equipment and property.
    (b) The Contractor shall take all reasonable safety and occupational 
health measures in performing this contract. The Contractor shall comply 
with all Federal, State, and local laws applicable to safety and 
occupational health and with the safety and occupational health 
standards, specifications, reporting requirements, and any other 
relevant requirements of this contract.
    (c) The Contractor shall take, or cause to be taken, any other 
safety, and occupational health measures the Contracting Officer may 
reasonably direct. To the extent that the Contractor may be entitled to 
an equitable adjustment for those measures under the terms and 
conditions of this contract, the equitable adjustment shall be 
determined pursuant to the procedures of the changes clause of this 
contract; provided, that no adjustment shall be made under this Safety 
and Health clause for any change for which an equitable adjustment is 
expressly provided under any other clause of the contract.
    (d) The Contractor shall immediately notify and promptly report to 
the Contracting Officer or a designee any accident, incident, or 
exposure resulting in fatality, lost-time occupational injury, 
occupational disease, contamination of property beyond any stated 
acceptable limits set forth in the contract Schedule; or property loss 
of $25,000 or more, or Close Call (a situation or occurrence with no 
injury, no damage or only minor damage (less than $1,000) but possesses 
the potential to cause any type mishap, or any injury, damage, or 
negative mission impact) that may be of immediate interest to NASA, 
arising out of work performed under this contract. The Contractor is not 
required to include in any report an expression of opinion as to the 
fault or negligence of any employee. In addition, service contractors 
(excluding construction contracts) shall provide quarterly reports 
specifying lost-time frequency rate, number of lost-time injuries, 
exposure, and accident/incident dollar losses as specified in the 
contract Schedule.
    (e) The Contractor shall investigate all work-related incidents, 
accidents, and Close Calls, to the extent necessary to determine their 
causes and furnish the Contracting Officer a report, in such form as the 
Contracting Officer may require, of the investigative findings and 
proposed or completed corrective actions.
    (f)(1) The Contracting Officer may notify the Contractor in writing 
of any noncompliance with this clause and specify corrective actions to 
be taken. When the Contracting Officer becomes aware of noncompliance 
that may pose a serious or imminent danger to safety and health of the 
public, astronauts and pilots, the NASA workforce (including contractor 
employees working on NASA contracts), or high value mission critical 
equipment or property, the Contracting Officer shall notify the 
Contractor orally, with written confirmation. The Contractor shall 
promptly take and report any necessary corrective action.
    (2) If the Contractor fails or refuses to institute prompt 
corrective action in accordance with subparagraph (f)(1) of this clause, 
the Contracting Officer may invoke the stop-work order clause in this 
contract or any other remedy available to the Government in the event of 
such failure or refusal.
    (g) The Contractor (or subcontractor or supplier) shall insert the 
substance of this clause, including this paragraph (g) and any 
applicable Schedule provisions and clauses, with appropriate changes of 
designations of the parties, in all solicitations and subcontracts of 
every tier, when one or more of the following conditions exist:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the Government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), or 
high value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the Contractor (or subcontractor or supplier) determines 
that the assessed risk and consequences of a failure to properly manage 
and control the hazard(s) warrants use of the clause.
    (h) The Contractor (or subcontractor or supplier) may exclude the 
provisions of paragraph (g) from its solicitation(s) and subcontract(s) 
of every tier when it determines that the clause is not necessary 
because the application of the OSHA and DOT (if applicable) regulations 
constitute adequate safety and occupational health protection. When a

[[Page 405]]

determination is made to exclude the provisions of paragraph (g) from a 
solicitation and subcontract, the Contractor must notify and provide the 
basis for the determination to the Contracting Officer. In subcontracts 
of every tier above the micro-purchase threshold for which paragraph (g) 
does not apply, the Contractor (or subcontractor or supplier) shall 
insert the substance of paragraphs (a), (b), (c), and (f) of this 
clause).
    (i) Authorized Government representatives of the Contracting Officer 
shall have access to and the right to examine the sites or areas where 
work under this contract is being performed in order to determine the 
adequacy of the Contractor's safety and occupational health measures 
under this clause.
    (j) The contractor shall continually update the safety and health 
plan when necessary. In particular, the Contractor shall furnish a list 
of all hazardous operations to be performed, and a list of other major 
or key operations required or planned in the performance of the 
contract, even though not deemed hazardous by the Contractor. NASA and 
the Contractor shall jointly decide which operations are to be 
considered hazardous, with NASA as the final authority. Before hazardous 
operations commence, the Contractor shall submit for NASA concurrence--
    (1) Written hazardous operating procedures for all hazardous 
operations; and/or
    (2) Qualification standards for personnel involved in hazardous 
operations.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991; 58 
FR 51142, Sept. 30, 1993; 61 FR 5315, Feb. 12, 1996; 62 FR 14033, Mar. 
25, 1997; 65 FR 37060, June 13, 2000; 65 FR 70316, Nov. 22, 2000; 66 FR 
18052, Apr. 5, 2001; 67 FR 17016, Apr. 9, 2002]



Sec. 1852.223-71  Frequency authorization.

    As prescribed in 1823.7101, insert the following clause:

                   Frequency Authorization (DEC 1988)

    (a) Authorization of radio frequencies required in support of this 
contract shall be obtained by the Contractor or subcontractor in need 
thereof.
    (b) For any experimental, developmental, or operational equipment 
for which the appropriate frequency allocation has not been made, the 
Contractor or subcontractor shall provide the technical operating 
characteristics of the proposed electromagnetic radiating device to the 
Contracting Officer during the initial planning, experimental, or 
developmental phase of contractual performance. Procedures furnished by 
the Contracting Officer shall be followed in obtaining radio frequency 
authorization.
    (c) This clause, including this paragraph (c), shall be included in 
all subcontracts that call for developing, producing, testing, or 
operating a device for which a radio frequency authorization is 
required.

                             (End of clause)



Sec. 1852.223-72  Safety and Health (Short Form).

    As prescribed in 1823.7001(e), insert the following clause:

                Safety and Health (Short Form) (APR 2002)

    (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. NASA's safety priority is to 
protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including contractor employees working on NASA contracts), 
and (4) high-value equipment and property.
    (b) The Contractor shall take all reasonable safety and occupational 
health measures consistent with standard industry practice in performing 
this contract. The Contractor shall comply with all Federal, State, and 
local laws applicable to safety and occupational health and with the 
safety and occupational health standards, specifications, reporting 
requirements, and any other relevant requirements of this contract.
    (c) The Contractor shall take, or cause to be taken, any other 
safety, and occupational health measures the Contracting Officer may 
reasonably direct. To the extent that the Contractor may be entitled to 
an equitable adjustment for those measures under the terms and 
conditions of this contract, the equitable adjustment shall be 
determined pursuant to the procedures of the Changes clause of this 
contract; provided, that no adjustment shall be made under this Safety 
and Health clause for any change for which an equitable adjustment is 
expressly provided under any other clause of the contract.
    (d) The Contracting Officer may notify the Contractor in writing of 
any noncompliance with this clause and specify corrective actions to be 
taken. In situations where the Contracting Officer becomes aware of 
noncompliance that may pose a serious or imminent danger to safety and 
health of the public, astronauts and pilots, the NASA workforce 
(including Contractor employees working on NASA contracts), or high 
value mission critical equipment or property, the Contracting Officer 
shall notify the Contractor orally, with written confirmation. The 
Contractor shall promptly take and report any necessary corrective 
action. The Government may pursue appropriate remedies in

[[Page 406]]

the event the Contractor fails to promptly take the necessary corrective 
action.
    (e) The Contractor (or subcontractor or supplier) shall insert the 
substance of this clause, including this paragraph (d) and any 
applicable Schedule provisions, with appropriate changes of designations 
of the parties, in subcontracts of every tier that exceed the micro-
purchase threshold.

                             (End of clause)

[66 FR 18052, Apr. 5, 2001, as amended at 67 FR 17017, Apr. 9, 2002]



Sec. 1852.223-73  Safety and Health Plan.

    As prescribed in 1823.7001(c), insert the following provision:

                   Safety and Health Plan (April 2002)

    (a) The offeror shall submit a detailed safety and occupational 
health plan as part of its proposal (see NPG 8715.3, NASA Safety Manual, 
Appendices). 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) When applicable, the plan shall address the policies, 
procedures, and techniques that will be used to ensure the safety and 
occupational health of the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), 
and high-value equipment and property.
    (c) The plan shall similarly address subcontractor employee safety 
and occupational health for those proposed subcontracts that contain one 
or more of the following conditions:
    (1) The work will be conducted completely or partly on premises 
owned or controlled by the government.
    (2) The work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold.
    (3) The work, regardless of place of performance, involves hazards 
that could endanger the public, astronauts and pilots, the NASA 
workforce (including Contractor employees working on NASA contracts), or 
high value equipment or property, and the hazards are not adequately 
addressed by Occupational Safety and Health Administration (OSHA) or 
Department of Transportation (DOT) regulations (if applicable).
    (4) When the assessed risk and consequences of a failure to properly 
manage and control the hazards warrants use of the clause.
    (d) This plan, as approved by the Contracting Officer, will be 
included in any resulting contract.
(End of provision)

                        Alternate I (April 2002)

    As prescribed in 1823.7001(c), 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 (see NPG 
8715.3, NASA Safety Manual, Appendices). 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.

[66 FR 48361, Sept. 20, 2001, as amended at 67 FR 17017, Apr. 9, 2002]



Sec. 1852.223-74  Drug- and alcohol-free workforce.

    As prescribed in 1823.570-3, insert the following clause:

               Drug- and Alcohol-Free Workforce (MAR 1996)

    (a) Definitions. As used in this clause the terms ``employee,'' 
``controlled substance,'' ``employee in a sensitive position,'' and 
``use, in violation of applicable law or Federal regulation, of 
alcohol'' are as defined in 48 CFR 1823.570-2.
    (b) (1) The Contractor shall institute and maintain a program for 
achieving a drug- and alcohol-free workforce. As a minimum, the program 
shall provide for preemployment, reasonable suspicion, random, post-
accident, and periodic recurring (follow-up) testing of contractor 
employees in sensitive positions for use, in violation of applicable law 
or Federal regulation, of alcohol or a controlled substance. The 
Contractor may establish its testing or rehabilitation program in 
cooperation with other contractors or organizations.
    (2) This clause neither prohibits nor requires the Contractor to 
test employees in a foreign country. If the Contractor chooses to 
conduct such testing, this does not authorize the Contractor to violate 
foreign law in conducting such testing.
    (3) The Contractor's program shall test for the use of marijuana and 
cocaine. The Contractor's program may test for the use of other 
controlled substances.
    (4) The Contractor's program shall conform to the ``Mandatory 
Guidelines for Federal Workplace Drug Testing Programs'' published by 
the Department of Health and Human Services (59 FR 29908, June 9, 1994) 
and the procedures in 49 CFR part 40, ``Procedures for Transportation 
Workplace Drug Testing Programs,'' in which references to ``DOT'' shall 
be read as ``NASA'', and the

[[Page 407]]

split sample method of collection shall be used.
    (c) (1) The Contractor's program shall provide, where appropriate, 
for the suspension, disqualification, or dismissal of any employee in a 
sensitive position in any instance where a test conducted and confirmed 
under the Contractor's program indicates that such individual has used, 
in violation of applicable law or Federal regulation, alcohol or a 
controlled substance.
    (2) The Contractor's program shall further prohibit any such 
individual from working in a sensitive position on a NASA contract, 
unless such individual has completed a program of rehabilitation 
described in paragraph (d) of this clause.
    (3) The Contractor's program shall further prohibit any such 
individual from working in any sensitive position on a NASA contract if 
the individual is determined under the Contractor's program to have 
used, in violation of applicable law or Federal regulation, alcohol or a 
controlled substance and the individual meets any of the following 
criteria:
    (i) The individual had undertaken or completed a rehabilitation 
program described in paragraph (d) of this clause prior to such use;
    (ii) Following such determination, the individual refuses to 
undertake such a rehabilitation program;
    (iii) Following such determination, the individual fails to complete 
such a rehabilitation program; or
    (iv) The individual used a controlled substance or alcohol while on 
duty.
    (d) The Contractor shall institute and maintain an appropriate 
rehabilitation program which shall, as a minimum, provide for the 
identification and opportunity for treatment of employees whose duties 
include responsibility for safety-sensitive, security, or National 
security functions who are in need of assistance in resolving problems 
with the use of alcohol or controlled substances.
    (e) The requirements of this clause shall take precedence over any 
state or local Government laws, rules, regulations, ordinances, 
standards, or orders that are inconsistent with the requirements of this 
clause.
    (f) For any collective bargaining agreement, the Contractor will 
negotiate the terms of its program with employee representatives, as 
appropriate, under labor relations laws or negotiated agreements. Such 
negotiation, however, cannot change the requirements of this clause. 
Employees covered under collective bargaining agreements will not be 
subject to the requirements of this clause until those agreements have 
been modified, as necessary; provided, however, that if one year after 
commencement of negotiation the parties have failed to reach agreement, 
an impasse will be determined to have been reached and the Contractor 
will unilaterally implement the requirements of this clause.
    (g) The Contractor shall insert a clause containing all the terms of 
this clause, including this paragraph (g), in all subcontracts in which 
work is performed by an employee in a sensitive position, except 
subcontracts for commercial items (see FAR parts 2 and 12).

                             (End of clause)

[61 FR 7226, Feb. 27, 1996]



Sec. 1852.223-75  Major breach of safety or security.

    As prescribed in 1823.7001(d), insert the following clause:

              Major Breach of Safety or Security (FEB 2002)

    (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. Safety is essential to NASA and 
is a material part of this contract. NASA's safety priority is to 
protect: (1) The public; (2) astronauts and pilots; (3) the NASA 
workforce (including contractor employees working on NASA contracts); 
and (4) high-value equipment and property. A major breach of safety may 
constitute a breach of contract that entitles the Government to exercise 
any of its rights and remedies applicable to material parts of this 
contract, including termination for default. A major breach of safety 
must be related directly to the work on the contract. A major breach of 
safety is an act or omission of the Contractor that consists of an 
accident, incident, or exposure resulting in a fatality or mission 
failure; or in damage to equipment or property equal to or greater than 
$1 million; or in any ``willful'' or ``repeat'' violation cited by the 
Occupational Safety and Health Administration (OSHA) or by a state 
agency operating under an OSHA approved plan.
    (b) Security is the condition of safeguarding against espionage, 
sabotage, crime (including computer crime), or attack. A major breach of 
security may constitute a breach of contract that entitles the 
Government to exercise any of its rights and remedies applicable to 
material parts of this contract, including termination for default. A 
major breach of security may occur on or off Government installations, 
but must be related directly to the work on the contract. A major breach 
of security is an act or omission by the Contractor that results in 
compromise of classified information, illegal technology transfer, 
workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.

[[Page 408]]

    (c) In the event of a major breach of safety or security, the 
Contractor shall report the breach to the Contracting Officer. If 
directed by the Contracting Officer, the Contractor shall conduct its 
own investigation and report the results to the Government. The 
Contractor shall cooperate with the Government investigation, if 
conducted.

                             (End of clause)

[65 FR 37061, June 13, 2000, as amended at 65 FR 70316, Nov. 22, 2000; 
66 FR 18053, Apr. 5, 2001; 67 FR 7618, Feb. 20, 2002]



Sec. 1852.225-8  Duty-free entry of space articles.

    As prescribed in 1825.1101(e), add the following paragraph (k) to 
the basic clause at FAR 52.225-8:

    (k) The following supplies will be given duty-free entry:
[Insert the supplies that are to be accorded duty-free entry.]

                            (End of addition)

[65 FR 10033, Feb. 25, 2000]



Sec. 1852.225-70  Export Licenses.

    As prescribed in 1825.1103-70(b), insert the following clause:

                       Export Licenses (FEB 2000)

    (a) The Contractor shall comply with all U.S. export control laws 
and regulations, including the International Traffic in Arms Regulations 
(ITAR), 22 CFR Parts 120-130, and the Export Administration Regulations 
(EAR), 15 CFR Parts 730-799, in the performance of this contract. In the 
absence of available license exemptions/exceptions, the Contractor shall 
be responsible for obtaining the appropriate licenses or other 
approvals, if required, for exports of hardware, technical data, and 
software, or for the provision of technical assistance.
    (b) The Contractor shall be responsible for obtaining export 
licenses, if required, before utilizing foreign persons in the 
performance of this contract, including instances where the work is to 
be performed on-site at [insert name of NASA installation], where the 
foreign person will have access to export-controlled technical data or 
software.
    (c) The Contractor shall be responsible for all regulatory record 
keeping requirements associated with the use of licenses and license 
exemptions/exceptions.
    (d) The Contractor shall be responsible for ensuring that the 
provisions of this clause apply to its subcontractors.

                             (End of clause)

    Alternate I (FEB 2000) As prescribed in 1825.1103-70(b), add the 
following paragraph (e) as Alternate I to the clause:

    (e) The Contractor may request, in writing, that the Contracting 
Officer authorizes it to export ITAR-controlled technical data 
(including software) pursuant to the exemption at 22 CFR 125.4(b)(3). 
The Contracting Officer or designated representative may authorize or 
direct the use of the exemption where the data does not disclose details 
of the design, development, production, or manufacture of any defense 
article.

[65 FR 6916, Feb. 11, 2000, as amended at 65 FR 10033, Feb. 25, 2000]



Sec. 1852.225-72  [Reserved]



Sec. 1852.227-11  Patent Rights--Retention by the Contractor (Short 
          Form).

    As prescribed at 1827.303-70(a), modify the clause at FAR 52.227-11 
by adding the following subparagraph (5) to paragraph (c) of the basic 
clause; adding the following subparagraph (5) to paragraph (f); and 
using the following subparagraph (2) in lieu of subparagraph (g)(2) of 
the basic clause:

    (c)(5) The Contractor may use whatever format is convenient to 
disclose subject inventions required in subparagraph (c)(1). NASA 
prefers that the contractor use either the electronic or paper version 
of NASA Form 1679, Disclosure of Invention and New Technology (Including 
Software) to disclose subject inventions. Both the electronic and paper 
versions of NASA Form 1679 may be accessed at the electronic New 
Technology Reporting Web site http://invention.nasa.gov.
    (End of addition)
    (f)(5) The Contractor shall provide the Contracting Officer the 
following:
    (i) A listing every 12 months (or such longer period as the 
Contracting Officer may specify) from the date of the contract, of all 
subject inventions required to be disclosed during the period.
    (ii) A final report prior to closeout of the contract listing all 
subject inventions or certifying that there were none.
    (iii) Upon request, the filing date, serial number and title, a copy 
of the patent application, and patent number and issue date for any 
subject invention in any country in which the contractor has applied for 
patents.
    (iv) An irrevocable power to inspect and make copies of the patent 
application file, by the Government, when a Federal Government employee 
is a coinventor.
    (End of addition)

[[Page 409]]

    (g)(2) The Contractor shall include the clause in the NASA FAR 
Supplement at 1852.227-70, New Technology, suitably modified to identify 
the parties, in all subcontracts, regardless of tier, for experimental, 
developmental, research, design, or engineering work to be performed by 
other than a small business firm or nonprofit organization.
    (End of substitution)

[67 FR 30604, May 7, 2002]



Sec. 1852.227-14  Rights in data--General.

    As prescribed in 1827.409(a), add the following subparagraph (3) to 
paragraph (d) of the basic clause at FAR 52.227-14:

    (3)(i) The Contractor agrees not to establish claims to copyright, 
publish or release to others any computer software first produced in the 
performance of this contract without the Contracting Officer's prior 
written permission.
    (ii) If the Government desires to obtain copyright in computer 
software first produced in the performance of this contract and 
permission has not been granted as set forth in paragraph (d)(3)(i) of 
this clause, the Contracting Officer may direct the contractor to 
assert, or authorize the assertion of, claim to copyright in such data 
and to assign, or obtain the assignment of, such copyright to the 
Government or its designated assignee.
    (iii) Whenever the word ``establish'' is used in this clause, with 
reference to a claim to copyright, it shall be construed to mean 
``assert''.

                            (End of addition)

[55 FR 27089, June 29, 1990, as amended at 60 FR 47312, Sept. 12, 1995; 
62 FR 36734, July 9, 1997]



Sec. 1852.227-17  Rights in data--Special works.

    As prescribed in 1827.409(i), add the following paragraph (f) to the 
basic clause at FAR 52.227-17:

    (f) Whenever the words ``establish'' and ``establishment'' are used 
in this clause, with reference to a claim to copyright, they shall be 
construed to mean ``assert'' and ``assertion'', respectively.

                            (End of addition)

[60 FR 47312, Sept. 12, 1995. Redesignated at 61 FR 5315, Feb. 12, 1996, 
as amended at 62 FR 36734, July 9, 1997]



Sec. 1852.227-19  Commercial computer software--Restricted rights.

    (a) As prescribed in 1827.409(k)(i), add the following paragraph (e) 
to the basic clause at FAR 52.227-19:

    (e) For the purposes of receiving updates, correction notices, 
consultation information, or other similar information regarding any 
computer software delivered under this contract/purchase order, the NASA 
Contracting Officer or the NASA Contracting Officer's Technical 
Representative/User may sign any vendor supplied agreements, 
registration forms, or cards and return them directly to the vendor; 
however, such signing shall not alter any of the rights or obligations 
of either NASA or the vendor set forth in this clause or elsewhere in 
this contract/purchase order.

                            (End of addition)

    (b) As prescribed in 1827.409(k)(ii), add the following paragraph 
(f) to the basic clause at FAR 52.227-19:

    (f) Subject to paragraphs (a) through (e) above, those applicable 
portions of the Contractor's standard commercial license or lease 
agreement pertaining to any computer software delivered under this 
purchase order/contract that are consistent with Federal laws, standard 
industry practices, and the Federal Acquisition Regulation (FAR) shall 
be incorporated into and made part of this purchase order/contract.

                            (End of addition)

[55 FR 27090, June 29, 1990, as amended at 55 FR 47480, Nov. 14, 1990; 
55 FR 53153, Dec. 27, 1990; 62 FR 36734, July 9, 1997]



Sec. 1852.227-70  New technology.

    As prescribed in 1827.303-70(b), insert the following clause:

                        New Technology (NOV 1998)

    (a) Definitions.
    Administrator, as used in this clause, means the Administrator of 
the National Aeronautics and Space Administration (NASA) or duly 
authorized representative.
    Contract, as used in this clause, 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, as used in this clause, means conception or first actual 
reduction to practice; provided, that in the case of a variety of plant, 
the date of determination (as defined

[[Page 410]]

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.
    Nonprofit organization, as used in this clause, means a domestic 
university or other institution of higher education or an organization 
of the type described in section 501(c)(3) of the Internal Revenue Code 
of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) 
of the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic 
nonprofit scientific or educational organization qualified under a State 
nonprofit organization statute.
    Practical application, as used in this clause, means to manufacture, 
in the case of a composition or product; to practice, in the case of a 
process or method; or to operate, in case of a machine or system; and, 
in each case, under such conditions as to establish that the invention 
is being utilized and that its benefits are, to the extent permitted by 
law or Government regulations, available to the public on reasonable 
terms.
    Reportable item, as used in this clause, 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 under any NASA contract or 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. Reportable items include, but are not 
limited to, new processes, machines, manufactures, and compositions of 
matter, and improvements to, or new applications of, existing processes, 
machines, manufactures, and compositions of matter. Reportable items 
also include new computer programs, and improvements to, or new 
applications of, existing computer programs, whether or not 
copyrightable or otherwise protectible under Title 17 of the United 
States Code.
    Small business firm, as used in this clause, means a domestic small 
business concern as defined at 15 U.S.C. 632 and implementing 
regulations of the Administrator of the Small Business Administration. 
(For the purpose of this definition, the size standard contained in 13 
CFR 121.3-8 for small business contractors and in 13 CFR 121.3-12 for 
small business subcontractors will be used.)
    Subject invention, as used in this clause, means any reportable item 
which 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.).
    (b) Allocation of principal rights--(1) Presumption of title. (i) 
Any reportable item that the Administrator considers to be a subject 
invention shall be presumed to have been made in the manner specified in 
paragraph (1) or (2) of section 305(a) of the National Aeronautics and 
Space Act of 1958 (42 U.S.C. 2457(a)) (hereinafter called ``the Act''), 
and the above presumption shall be conclusive unless at the time of 
reporting the reportable item the Contractor submits to the Contracting 
Officer a written statement, containing supporting details, 
demonstrating that the reportable item was not made in the manner 
specified in paragraph (1) or (2) of section 305(a) of the Act.
    (ii) Regardless of whether title to a given subject invention would 
otherwise be subject to an advance waiver or is the subject of a 
petition for waiver, the Contractor may nevertheless file the statement 
described in paragraph (b)(1)(i) of this clause. The Administrator will 
review the information furnished by the Contractor in any such statement 
and any other available information relating to the circumstances 
surrounding the making of the subject invention and will notify the 
Contractor whether the Administrator has determined that the subject 
invention was made in the manner specified in paragraph (1) or (2) of 
section 305(a) of the Act.
    (2) Property rights in subject inventions. Each subject invention 
for which the presumption of paragraph (b)(1)(i) of this clause is 
conclusive or for which there has been a determination that it was made 
in the manner specified in paragraph (1) or (2) of section 305(a) of the 
Act shall be the exclusive property of the United States as represented 
by NASA unless the Administrator waives all or any part of the rights of 
the United States, as provided in paragraph (b)(3) of this clause.
    (3) Waiver of rights. (i) Section 305(f) of the Act provides for the 
promulgation of regulations by which the Administrator may waive the 
rights of the United States with respect to any invention or class of 
inventions made or that may be made under conditions specified in 
paragraph (1) or (2) of section 305(a) of the Act. The promulgated NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1, have adopted the 
Presidential Memorandum on Government Patent Policy of February 18, 
1983, as a guide in acting on petitions (requests) for such waiver of 
rights.
    (ii) As provided in 14 CFR part 1245, subpart 1, Contractors may 
petition, either prior to execution of the contract or within 30 days 
after execution of the contract, for advance waiver of rights to any or 
all of the inventions that may be made under a contract. If such a 
petition is not submitted, or if after submission it is denied, the 
Contractor (or an employee inventor of the Contractor) may petition for 
waiver of rights to an identified subject invention within eight months 
of first disclosure of invention in accordance with paragraph (e)(2) of 
this clause, or within such longer period as may be authorized in 
accordance with 14 CFR 1245.105.

[[Page 411]]

    (c) Minimum rights reserved by the Government. (1) With respect to 
each subject invention for which a waiver of rights is applicable in 
accordance with 14 CFR part 1245, subpart 1, the Government reserves--
    (i) 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 with the United States; and
    (ii) Such other rights as stated in 14 CFR 1245.107.
    (2) Nothing contained in this paragraph (c) shall be considered to 
grant to the Government any rights with respect to any invention other 
than a subject invention.
    (d) Minimum rights to the Contractor. (1) The Contractor is hereby 
granted a revocable, nonexclusive, royalty-free license in each patent 
application filed in any country on a subject invention and any 
resulting patent in which the Government acquires title, unless the 
Contractor fails to disclose the subject invention within the times 
specified in paragraph (e)(2) of this clause. The Contractor's license 
extends to its domestic subsidiaries and affiliates, if any, within the 
corporate structure of which the Contractor is a party 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 is 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 Contractor's domestic license may be revoked or modified by 
the Administrator to the extent necessary to achieve expeditious 
practical application of the subject invention pursuant to an 
application for an exclusive license submitted in accordance with 37 CFR 
part 404, Licensing of Government Owned Inventions. This license will 
not be revoked in that field of use or the geographical areas in which 
the Contractor has achieved practical application and continues to make 
the benefits of the invention reasonably accessible to the public. The 
license in any foreign country may be revoked or modified at the 
discretion of the Administrator to the extent the Contractor, its 
licensees, or its domestic subsidiaries or affiliates have failed to 
achieve practical application in that foreign country.
    (3) Before revocation or modification of the license, the Contractor 
will be provided a written notice of the Administrator's intention to 
revoke or modify the license, and the Contractor will be allowed 30 days 
(or such other time as may be authorized by the Administrator for good 
cause shown by the Contractor) after the notice to show cause why the 
license should not be revoked or modified. The Contractor has the right 
to appeal to the Administrator any decision concerning the revocation or 
modification of its license.
    (e) Invention identification, disclosures, and reports. (1) The 
Contractor shall establish and maintain active and effective procedures 
to assure that reportable items are promptly identified and disclosed to 
Contractor personnel responsible for the administration of this New 
Technology clause within six months of conception and/or first actual 
reduction to practice, whichever occurs first in the performance of work 
under this contract. These procedures shall include the maintenance of 
laboratory notebooks or equivalent records and other records as are 
reasonably necessary to document the conception and/or the first actual 
reduction to practice of the reportable items, and records that show 
that the procedures for identifying and disclosing reportable items are 
followed. Upon request, the Contractor shall furnish the Contracting 
Officer a description of such procedures for evaluation and for 
determination as to their effectiveness.
    (2) The Contractor will disclose each reportable item to the 
Contracting Officer within two months after the inventor discloses it in 
writing to Contractor personnel responsible for the administration of 
this New Technology clause or, if earlier, within six months after the 
Contractor becomes aware that a reportable item has been made, but in 
any event for subject inventions before any on sale, public use, or 
publication of such invention known to the Contractor. The disclosure to 
the agency shall be in the form of a written report and shall identify 
the contract under which the reportable item was made and the 
inventor(s) or innovator(s). It shall be sufficiently complete in 
technical detail to convey a clear understanding, to the extent known at 
the time of the disclosure, of the nature, purpose, operation, and 
physical, chemical, biological, or electrical characteristics of the 
reportable item. The disclosure shall also identify any publication, on 
sale, or public use of any subject invention and whether a manuscript 
describing such invention has been submitted for publication and, if so, 
whether it has been accepted for publication at the time of disclosure. 
In addition, after disclosure to the agency, the Contractor will 
promptly notify the agency of the acceptance of any manuscript 
describing a subject invention for publication or of any on sale or 
public use planned by the Contractor for such invention.
    (3) The Contractor may use whatever format is convenient to disclose 
reportable items required in subparagraph (e)(2). NASA prefers that the 
Contractor use either the electronic or paper version of NASA Form

[[Page 412]]

1679, Disclosure of Invention and New Technology (Including Software) to 
disclose reportable items. Both the electronic and paper versions of 
NASA Form 1679 may be accessed at the electronic New Technology 
Reporting Web site http://invention.nasa.gov.
    (4) The Contractor shall furnish the Contracting Officer the 
following:
    (i) Interim reports every 12 months (or such longer period as may be 
specified by the Contracting Officer) from the date of the contract, 
listing reportable items during that period, and certifying that all 
reportable items have been disclosed (or that there are no such 
inventions) and that the procedures required by paragraph (e)(1) of this 
clause have been followed.
    (ii) A final report, within 3 months after completion of the 
contracted work, listing all reportable items or certifying that there 
were no such reportable items, and listing all subcontracts at any tier 
containing a patent rights clause or certifying that there were no such 
subcontracts.
    (5) The Contractor agrees, upon written request of the Contracting 
Officer, to furnish additional technical and other information available 
to the Contractor as is necessary for the preparation of a patent 
application on a subject invention and for the prosecution of the patent 
application, and to execute all papers necessary to file patent 
applications on subject inventions and to establish the Government's 
rights in the subject inventions.
    (6) The Contractor agrees, subject to section 27.302(i), of the 
Federal Acquisition Regulation (FAR), that the Government may duplicate 
and disclose subject invention disclosures and all other reports and 
papers furnished or required to be furnished pursuant to this clause.
    (f) Examination of records relating to inventions. (1) The 
Contracting Officer or any authorized representative shall, until 3 
years after final payment under this contract, have the right to examine 
any books (including laboratory notebooks), records, and documents of 
the Contractor relating to the conception or first actual reduction to 
practice of inventions in the same field of technology as the work under 
this contract to determine whether--
    (i) Any such inventions are subject inventions;
    (ii) The Contractor has established and maintained the procedures 
required by paragraph (e)(1) of this clause; and
    (iii) The Contractor and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported Contractor 
invention that the Contracting Officer believes may be a subject 
invention, the Contractor may be required to disclose the invention to 
the agency for a determination of ownership rights.
    (3) Any examination of records under this paragraph will be subject 
to appropriate conditions to protect the confidentiality of the 
information involved.
    (g) Withholding of payment (this paragraph does not apply to 
subcontracts). (1) Any time before final payment under this contract, 
the Contracting Officer may, in the Government's interest, withhold 
payment until a reserve not exceeding $50,000 or 5 percent of the amount 
of this contract, whichever is less, shall have been set aside if, in 
the Contracting Officer's opinion, the Contractor fails to--
    (i) Establish, maintain, and follow effective procedures for 
identifying and disclosing reportable items pursuant to paragraph (e)(1) 
of this clause;
    (ii) Disclose any reportable items pursuant to paragraph (e)(2) of 
this clause;
    (iii) Deliver acceptable interim reports pursuant to paragraph 
(e)(3)(i) of this clause; or
    (iv) Provide the information regarding subcontracts pursuant to 
paragraph (h)(4) of this clause.
    (2) Such reserve or balance shall be withheld until the Contracting 
Officer has determined that the Contractor has rectified whatever 
deficiencies exist and has delivered all reports, disclosures, and other 
information required by this clause.
    (3) Final payment under this contract shall not be made before the 
Contractor delivers to the Contracting Officer all disclosures of 
reportable items required by paragraph (e)(2) of this clause, and an 
acceptable final report pursuant to paragraph (e)(3)(ii) of this clause.
    (4) The Contracting Officer may decrease or increase the sums 
withheld up to the maximum authorized above. No amount shall be withheld 
under this paragraph while the amount specified by this paragraph is 
being withheld under other provisions of the contract. The withholding 
of any amount or the subsequent payment thereof shall not be construed 
as a waiver of any Government rights.
    (h) Subcontracts. (1) Unless otherwise authorized or directed by the 
Contracting Officer, the Contractor shall--
    (i) Include this clause (suitably modified to identify the parties) 
in any subcontract hereunder (regardless of tier) with other than a 
small business firm or nonprofit organization for the performance of 
experimental, developmental, or research work; and
    (ii) Include the clause at FAR 52.227-11 (suitably modified to 
identify the parties) in any subcontract hereunder (regardless of tier) 
with a small business firm or nonprofit organization for the performance 
of experimental, developmental, or research work.
    (2) In the event of a refusal by a prospective subcontractor to 
accept such a clause the Contractor--

[[Page 413]]

    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subcontractor's reasons for such refusal and 
other pertinent information that may expedite disposition of the matter; 
and
    (ii) Shall not proceed with such subcontract without the written 
authorization of the Contracting Officer.
    (3) In the case of subcontracts at any tier, the agency, 
subcontractor, and Contractor agree that the mutual obligations of the 
parties created by this clause constitute a contract between the 
subcontractor and NASA with respect to those matters covered by this 
clause.
    (4) The Contractor shall promptly notify the Contracting Officer in 
writing upon the award of any subcontract at any tier containing a 
patent rights clause by identifying the subcontractor, the applicable 
patent rights clause, the work to be performed under the subcontract, 
and the dates of award and estimated completion. Upon request of the 
Contracting Officer, the Contractor shall furnish a copy of such 
subcontract, and, no more frequently than annually, a listing of the 
subcontracts that have been awarded.
    (5) The subcontractor will retain all rights provided for the 
Contractor in the clause of paragraph (h)(1)(i) or (ii) of this clause, 
whichever is included in the subcontract, and the Contractor will not, 
as part of the consideration for awarding the subcontract, obtain rights 
in the subcontractor's subject inventions.
    (i) Preference for United States industry. Unless provided 
otherwise, no Contractor that receives title to any subject invention 
and no assignee of any such Contractor shall grant to any person the 
exclusive right to use or sell any subject invention in the United 
States unless such person agrees that any products embodying the subject 
invention will be manufactured substantially in the United States. 
However, in individual cases, the requirement may be waived by the 
Administrator upon a showing by the Contractor or assignee that 
reasonable but unsuccessful efforts have been made to grant licenses on 
similar terms to potential licensees that would be likely to manufacture 
substantially in the United States or that under the circumstances 
domestic manufacture is not commercially feasible.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 54 FR 53631, Dec. 29, 1989; 60 
FR 40521, Aug. 9, 1995; 62 FR 36734, July 9, 1997; 63 FR 63209, Nov. 12, 
1998; 67 FR 30604, May 7, 2002]



Sec. 1852.227-71  Requests for waiver of rights to inventions.

    As prescribed in 1827.30-70(c), insert the following provision in 
all solicitations that include the clause at 1852.227-70, New 
Technology:

         Requests for Waiver of Rights to Inventions (APR 1984)

    (a) In accordance with the NASA Patent Waiver Regulations, 14 CFR 
part 1245, subpart 1, waiver of rights to any or all inventions made or 
that may be made under a NASA contract or subcontract with other than a 
small business firm or a domestic nonprofit organization may be 
requested at different time periods. Advance waiver of rights to any or 
all inventions that may be made under a contract or subcontract may be 
requested prior to the execution of the contract or subcontract, or 
within 30 days after execution by the selected contractor. In addition, 
waiver of rights to an identified invention made and reported under a 
contract or subcontract may be requested, even though a request for an 
advance waiver was not made or, if made, was not granted.
    (b) Each request for waiver of rights shall be by petition to the 
Administrator and shall include an identification of the petitioner; 
place of business and address; if petitioner is represented by counsel, 
the name, address and telephone number of the counsel; the signature of 
the petitioner or authorized representative; and the date of signature. 
No specific forms need be used, but the request should contain a 
positive statement that waiver of rights is being requested under the 
NASA Patent Waiver Regulations; a clear indication of whether the 
request is for an advance waiver or for a waiver of rights for an 
individual identified invention; whether foreign rights are also 
requested and, if so, the countries, and a citation of the specific 
section or sections of the regulations under which such rights are 
requested; and the name, address, and telephone number of the party with 
whom to communicate when the request is acted upon. Requests for advance 
waiver of rights should, preferably, be included with the proposal, but 
in any event in advance of negotiations.
    (c) Petitions for advance waiver, prior to contract execution, must 
be submitted to the Contracting Officer. All other petitions will be 
submitted to the Patent Representative designated in the contract.
    (d) Petitions submitted with proposals selected for negotiation of a 
contract will be forwarded by the Contracting Officer to the 
installation Patent Counsel for processing and then to the Inventions 
and Contributions Board. The Board will consider these petitions and 
where the Board makes the findings to support the waiver, the Board will

[[Page 414]]

recommend to the Administrator that waiver be granted, and will notify 
the petitioner and the Contracting Officer of the Administrator's 
determination. The Contracting Officer will be informed by the Board 
whenever there is insufficient time or information or other reasons to 
permit a decision to be made without unduly delaying the execution of 
the contract. In the latter event, the petitioner will be so notified by 
the Contracting Officer. All other petitions will be processed by 
installation Patent Counsel and forwarded to the Board. The Board shall 
notify the petitioner of its action and if waiver is granted, the 
conditions, reservations, and obligations thereof will be included in 
the Instrument of Waiver. Whenever the Board notifies a petitioner of a 
recommendation adverse to, or different from, the waiver requested, the 
petitioner may request reconsideration under procedures set forth in the 
Regulations.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36734, July 9, 1997]



Sec. 1852.227-72  Designation of new technology representative and 
          patent representative.

    As prescribed in 1827.303-70(d), insert the following clause:

 Designation of New Technology Representative and Patent Representative 
                               (JUL 1997)

    (a) For purposes of administration of the clause of this contract 
entitled ``New Technology'' or ``Patent Rights--Retention by the 
Contractor (Short Form),'' whichever is included, the following named 
representatives are hereby designated by the Contracting Officer to 
administer such clause:

------------------------------------------------------------------------
                                                                Address
 Title                       Office code                      (including
                                                               zip code)
------------------------------------------------------------------------
         New Technology Representative
         Patent Representative
------------------------------------------------------------------------

    (b) Reports of reportable items, and disclosure of subject 
inventions, interim reports, final reports, utilization reports, and 
other reports required by the clause, as well as any correspondence with 
respect to such matters, should be directed to the New Technology 
Representative unless transmitted in response to correspondence or 
request from the Patent Representative. Inquiries or requests regarding 
disposition of rights, election of rights, or related matters should be 
directed to the Patent Representative. This clause shall be included in 
any subcontract hereunder requiring a ``New Technology'' clause or 
``Patent Rights--Retention by the Contractor (Short Form)'' clause, 
unless otherwise authorized or directed by the Contracting Officer. The 
respective responsibilities and authorities of the above-named 
representatives are set forth in 1827.305-370 of the NASA FAR 
Supplement.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36734, July 9, 1997; 62 
FR 40309, July 28, 1997]



Sec. 1852.227-84  Patent rights clauses.

    The contracting officer shall insert the following provision as 
prescribed in 1827.303-70(e):

                    Patent Rights Clauses (DEC 1989)

    This solicitation contains the patent rights clauses of FAR 52.227-
11 (as modified by the NFS) and NFS 1852.227-70. If the contract 
resulting from this solicitation is awarded to a small business or 
nonprofit organization, the clause at NFS 1852.227-70 shall not apply. 
If the award is to other than a small business or nonprofit 
organization, the clause at FAR 52.227-11 shall not apply.

                           (End of Provision)

[54 FR 53631, Dec. 29, 1989, as amended at 62 FR 36735, July 9, 1997]



Sec. 1852.227-85  Invention reporting and rights--Foreign.

    As prescribed in 1827.303-70(f), insert the following clause:

           Invention Reporting and Rights--Foreign (APR 1986)

    (a) As used in this clause, the term ``invention'' means any 
invention, discovery or improvement, and ``made'' means the conception 
or first actual demonstration that the invention is useful and operable.
    (b) The Contractor shall report promptly to the Contracting Officer 
each invention made in the performance of work under this contract. The 
report of each such invention shall:
    (1) Identify the inventor(s) by full name; and
    (2) Include such full and complete technical information concerning 
the invention as is necessary to enable an understanding of the nature 
and operation thereof.
    (c) The Contractor hereby grants to the Government of the United 
States of America as represented by the Administrator of the National 
Aeronautics and Space Administration the full right, title and interest 
in and to each such invention throughout the

[[Page 415]]

world, except for the State in which this contract is to be performed. 
As to such State, Contractor hereby grants to the Government of the 
United States of America as represented by the Administrator of the 
National Aeronautics and Space Administration only an irrevocable, 
nontransferable, nonexclusive, royalty-free license to practice each 
such invention by or on behalf of the United States of America or any 
foreign government pursuant to any treaty or agreement with the United 
States of America, provided that Contractor within a reasonable time 
files a patent application in that State for each such invention. Where 
Contractor does not elect to file such patent application for any such 
invention in that State, full right, title and interest in and to such 
invention in that State shall reside in the Government of the United 
States of America as represented by the Administrator of the National 
Aeronautics and Space Administration.
    (d) The Contractor agrees to execute or to secure the execution of 
such legal instruments as may be necessary to confirm and to protect the 
rights granted by paragraph (c) of this clause, including papers 
incident to the filing and prosecution of patent applications.
    (e) Upon completion of the contract work, and prior to final 
payment, Contractor shall submit to the Contracting Officer a final 
report listing all inventions reportable under this contract or 
certifying that no such inventions have been made.
    (f) In each subcontract, the Contractor awards under this contract 
where the performance of research, experimental design, engineering, or 
developmental work is contemplated, the Contractor shall include this 
clause and the name and address of the Contracting Officer.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 36735, July 9, 1997]



Sec. 1852.227-86  Commercial computer software--Licensing.

    As prescribed in 1827.409-70, insert the following clause:

           Commercial Computer Software--Licensing (DEC 1987)

    (a) Any delivered commercial computer software (including 
documentation thereof) developed at private expense and claimed as 
proprietary shall be subject to the restricted rights in paragraph (d) 
of this clause. Where the vendor/contractor proposes its standard 
commercial software license, those applicable portions thereof 
consistent with Federal laws, standard industry practices, the Federal 
Acquisition Regulations (FAR) and the NASA FAR Supplement, including the 
restricted rights in paragraph (d) of this clause, are incorporated into 
and made a part of this purchase order/contract.
    (b) Although the vendor/contractor may not propose its standard 
commercial software license until after this purchase order/contract has 
been issued, or at or after the time the computer software is delivered, 
such license shall nevertheless be deemed incorporated into and made a 
part of this purchase order/contract under the same terms and conditions 
as in paragraph (a) of this clause. For purposes of receiving updates, 
correction notices, consultation, and similar activities on the computer 
software, the NASA Contracting Officer or the NASA Contracting Officer's 
Technical Representative/User may sign any agreement, license, or 
registration form or card and return it directly to the vendor/
contractor; however, such signing shall not alter any of the terms and 
conditions of this clause.
    (c) The vendor's/contractor's acceptance is expressly limited to the 
terms and conditions of this purchase order/contract. If the specified 
computer software is shipped or delivered to NASA, it shall be 
understood that the vendor/contractor has unconditionally accepted the 
terms and conditions set forth in this clause, and that such terms and 
conditions (including the incorporated license) constitute the entire 
agreement between the parties concerning rights in the computer 
software.
    (d) The following restricted rights shall apply:
    (1) The commercial computer software may not be used, reproduced, or 
disclosed by the Government except as provided below or otherwise 
expressly stated in the purchase order/contract.
    (2) The commercial computer software may be--
    (i) Used, or copied for use, in or with any computer owned or leased 
by, or on behalf of, the Government; provided, the software is not used, 
nor copied for use, in or with more than one computer simultaneously, 
unless otherwise permitted by the license incorporated under paragraph 
(a) or (b) of this clause;
    (ii) Reproduced for safekeeping (archives) or backup purposes;
    (iii) Modified, adapted, or combined with other computer software, 
provided that the modified, combined, or adapted portions of the 
derivative software incorporating restricted computer software shall be 
subject to the same restricted rights; and
    (iv) Disclosed and reproduced for use by Government contractors or 
their subcontractors in accordance with the restricted rights in 
paragraphs (d)(2) (i), (ii), and (iii) of this clause; provided they 
have the Government's permission to use the computer software and have 
also agreed to protect the computer

[[Page 416]]

software from unauthorized use and disclosure.
    (3) If the incorporated vendor's/contractor's software license 
contains provisions or rights that are less restrictive than the 
restricted rights in paragraph (d)(2) of this clause, then the less 
restrictive provisions or rights shall prevail.
    (4) If the computer software is published, copyrighted computer 
software, it is licensed to the Government, without disclosure 
prohibitions, with the rights in paragraphs (d) (2) and (3) of this 
clause.
    (5) The computer software may be marked with any appropriate 
proprietary notice that is consistent with the rights in paragraphs (d) 
(2), (3), and (4) of this clause.

                             End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 62 
FR 36735, July 9, 1997]



Sec. 1852.227-87  Transfer of technical data under Space Station 
          International Agreements.

    As prescribed at 1827.670-2, insert the following clause:

 Transfer of Technical Data Under Space Station International Agreement 
                               (APR 1989)

    1. In the cooperative Space Station Freedom program, NASA has the 
authority to provide to the international partners all information 
necessary to implement the multilateral Space Station Intergovernmental 
Agreement and the Space Station Memoranda of Understanding. NASA is 
committed under these Space Station agreements to provide its 
international Space Station partners with certain technical data which 
are subject to the U.S. export control laws and regulations. NASA will 
have obtained any necessary approvals from the Department of State for 
the transfer of any such technical data. Space Station contractors, 
acting as agents of NASA under the specific written direction of the 
Contracting Officer, or designated representative, require no other 
separate approval under the International Traffic in Arms Regulations 
(ITAR) to transfer such data.
    2. The Contractor agrees, when specifically directed in writing by 
the Contracting Officer, or designated representative, to transfer 
identified technical data to a named foreign recipient, in the manner 
directed. No export control marking should be affixed to the data unless 
so directed. If directed, the text of the marking to be affixed will be 
furnished by the Contracting Officer or designated representative.
    3. It should be emphasized that the transfer is limited solely to 
those technical data which NASA specifically identifies and directs the 
Contractor to transfer in accordance with paragraph 2 of this clause, 
and that all other transfers of technical data to foreign entities are 
subject to the requirements of the U.S. export control laws and 
regulations.
    4. Nothing contained in this clause affects the allocation of 
technical data rights between NASA and the Contractor or any 
subcontractors as set forth in the Rights in Data clause of this 
Contract, nor the protection of any proprietary technical data which may 
be available to the Contractor or any subcontractor under that clause.
    5. The Contractor agrees to include this clause, including this 
paragraph 5, in all subcontracts hereunder, appropriately modified to 
reflect the relationship of the parties.

                             (End of clause)

[54 FR 39375, Sept. 26, 1989]



Sec. 1852.228-70   Aircraft ground and flight risk.

    As prescribed in 1828.370(a), insert the following clause. The 
purpose of this clause is to have the Government assume risks that 
generally entail unusually high insurance premiums and are not covered 
by the contractor's contents, work-in-process, and similar insurance. 
Since the definitions in the clause may not cover every situation that 
should be covered to achieve this purpose, the clause may be modified as 
follows: If the contract covers helicopters, vertical take-off aircraft, 
lighter-than-air airships, or other nonconventional types of aircraft, 
the definition of ``aircraft'' should be modified to specify that the 
aircraft has reached a point of manufacture comparable to that specified 
in the standard definition, which is written for conventional winged 
aircraft. The definition of ``in the open'' may be modified to include 
``hush houses,'' test hangars, comparable structures, and other 
designated areas. In addition, clause paragraph (d)(3) may be modified 
to provide for Government assumption of risk of transportation by 
conveyance on streets or highways if the contracting officer determines 
that this transportation is limited to the vicinity of the contractor's 
premises and is merely incident to work being performed under the 
contract.

[[Page 417]]

               Aircraft Ground and Flight Risk (OCT 1996)

    (a) Notwithstanding any other provisions of this contract, except as 
may be specifically provided in the Schedule as an exception to this 
clause, the Government, subject to the definitions and limitations of 
this clause, assumes the risk of damage to, or loss or destruction of, 
aircraft in the open, during operation, or in flight and agrees that the 
Contractor shall not be liable to the Government for any such damage, 
loss, or destruction.
    (b) For the purposes of this clause, the following definitions 
apply:
    (1) Unless otherwise specifically provided in the Schedule, 
``aircraft'' includes--
    (i) Aircraft (including both complete aircraft and aircraft in the 
course of being manufactured, disassembled, or reassembled; provided 
that an engine, wing, or a portion of a wing is attached to the 
fuselage) to be furnished to the Government under this contract (whether 
before or after Government acceptance); and
    (ii) Aircraft (regardless of whether in a state of disassembly or 
reassembly) furnished by the Government to the Contractor under this 
contract, including all property installed in, being installed in, or 
temporarily removed from them, unless the aircraft and property are 
covered by a separate bailment agreement.
    (2) ``In the open'' means located wholly outside of buildings on the 
Contractor's premises, or at such other places as may be described in 
the Schedule as being in the open for the purposes of this clause, 
except that aircraft furnished by the Government are considered to be in 
the open at all times while in the Contractor's possession, care, 
custody, or control.
    (3) ``Flight'' includes any flight demonstration, flight test, taxi 
test, or other flight made in the performance of this contract, or for 
the purpose of safeguarding the aircraft, or previously approved in 
writing by the Contracting Officer.
    (i) With respect to land-based aircraft, flight commences with the 
taxi roll from a flight line on the Contractor's premises and continues 
until the aircraft has completed the taxi roll in returning to a flight 
line on the Contractor's premises.
    (ii) With respect to seaplanes, flight commences with the launching 
from a ramp on the Contractor's premises and continues until the 
aircraft has completed its landing run upon return and is beached at a 
ramp on the Contractor's premises.
    (iii) With respect to helicopters, flight commences upon engagement 
of the rotors for the purpose of take-off from the Contractor's premises 
and continues until the aircraft has returned to the ground on the 
Contractor's premises and the rotors are disengaged.
    (iv) With respect to vertical take-off aircraft, flight commences 
upon disengagement from any launching platform or device on the 
Contractor's premises and continues until the aircraft has been re-
engaged to any launching platform or device on the Contractor's 
premises; provided, however, that aircraft off the Contractor's premises 
shall be deemed to be in flight when on the ground or water only during 
periods of reasonable duration following emergency landing, other 
landings made in the performance of this contract, or landings approved 
by the Contracting Officer in writing.
    (4) ``Contractor's premises'' means those premises designated as 
such in the Schedule or in writing by the Contracting Officer, and any 
other place to which aircraft are moved for the purpose of safeguarding 
the aircraft.
    (5) ``Operation'' means operations and tests, other than on any 
production line, of aircraft not in flight, whether or not the aircraft 
is in the open or in motion. It includes operations and tests of 
equipment, accessories, and power plants only when installed in 
aircraft.
    (6) ``Flight crew members'' means the pilot, copilot, and, unless 
otherwise specifically provided in the Schedule, the flight engineer and 
navigator when requirement or assigned to their respective crew 
positions to conduct any flight on behalf of the Contractor.
    (7) ``Contractor's managerial personnel'' means the Contractor's 
directors, officers, and any managers, superintendents, or equivalent 
representatives who have supervision or direction of all or 
substantially all of the Contractor's business or of the Contractor's 
operations at any one plant, a separate location at which this contract 
is performed, or a separate and complete major industrial operation in 
connection with the performance of this contract.
    (c)(1) The Government's assumption of risk under this clause, as to 
aircraft in the open, shall continue in effect unless terminated 
pursuant to paragraph (c)(3) of this clause. If the Contracting Officer 
finds that an aircraft is in the open under unreasonable conditions, the 
Contracting Officer shall notify the Contractor in writing of the 
conditions found to be unreasonable and require the Contractor to 
correct them within a reasonable time.
    (2) Upon receipt of this notice, the Contractor shall act promptly 
to correct these conditions, regardless of whether it agrees that they 
are in fact unreasonable. To the extent that the Contracting Officer may 
later determine that they were not in fact unreasonable, an equitable 
adjustment shall be made in the contract price to compensate the 
Contractor for any additional costs incurred in correcting them, and the 
contract shall be modified in writing accordingly.

[[Page 418]]

    (3)(i) If the Contracting Officer finds that the Contractor has 
failed to act promptly to correct unreasonable conditions or has failed 
to correct them within a reasonable time, the Contracting Officer may by 
written notice terminate the Government's assumption of risk under this 
clause for any aircraft which is in the open under those conditions. 
This termination shall be effective at 12:01 A.M. on the 15th day 
following the day of receipt by the Contractor of the notice.
    (ii) If the Contracting Officer later determines that the Contractor 
acted promptly to correct the conditions or that the time taken by the 
Contractor was not in fact unreasonable, an equitable adjustment shall, 
notwithstanding paragraph (g) of this clause, be made to compensate the 
Contractor for any additional costs incurred as a result of the 
termination, and the contract shall be modified in writing accordingly.
    (4) If the Government's assumption of risk under this clause is 
terminated in accordance with paragraph (c)(3) of this clause, the risk 
of loss with respect to Government-furnished property shall be 
determined in accordance with the Government property clause of this 
contract, if any, until the Government's assumption of risk is 
reinstated in accordance with paragraph (c)(5) of this clause.
    (5)(i) When unreasonable conditions have been corrected, the 
Contractor shall promptly notify the Government. The Government may or 
may not elect to reassume the risks and relieve the Contractor of 
liabilities as provided in this clause, and the Contracting Officer 
shall notify the Contractor of the Government's election.
    (ii) If, after correction of the conditions, the Government elects 
to reassume the risks and relieve the Contractor of liabilities, the 
Contractor shall be entitled to an equitable adjustment for any costs of 
insurance extending from the end of the third working day after the 
Contractor notifies the Government of the correction until the 
Government notifies the Contractor of that election.
    (iii) If the Government elects not to reassume the risks and the 
conditions have in fact been corrected, the Contractor shall be entitled 
to an equitable adjustment for any costs of insurance extending after 
the third working day referred to in paragraph (c)(5)(ii) of this 
clause.
    (d) The Government's assumption of risk shall not extend to damage 
to, or loss or destruction of aircraft--
    (1) Resulting from failure of the Contractor, due to willful 
misconduct or lack of good faith of any of the Contractor's managerial 
personnel, to maintain and administer a program for protecting and 
preserving aircraft in the open and during operation, in accordance with 
sound industrial practice;
    (2) Sustained during flight if the flight crew members conducting 
the flight have not been approved in writing by the Contracting Officer;
    (3) While in the course of transportation by rail or by conveyance 
on public streets, highways, or waterways, except for Government-
furnished property;
    (4) The extent that the damage, loss, or destruction is in fact 
covered by insurance;
    (5) Consisting of wear and tear, deterioration (including rust and 
corrosion), freezing, or mechanical, structural, or electrical breakdown 
or failure, unless this damage is the result of other loss, damage, or 
destruction covered by this clause (except that, in the case of 
Government-furnished property, if the damage consists of reasonable wear 
and tear or deterioration or results from an inherent defect in such 
property, this exclusion shall not apply); or
    (6) Sustained while the aircraft is being worked upon and directly 
resulting from the work, including but not limited to any repairing, 
adjusting, servicing, or maintenance operation, unless the damage, loss, 
or destruction is of a type that would be covered by insurance that 
would customarily have been maintained by the Contractor at the time of 
the damage, loss, or destruction, but for the Government's assumption of 
risk under this clause.
    (e)(1) With the exception of damage to, or loss or destruction of, 
aircraft in flight, the Government's assumption of risk under this 
clause shall not extend to the first $1,000 of loss or damage resulting 
from each separately occurring event. The Contractor assumes the risk of 
and shall be responsible for the first $1,000 of loss of or damage to 
aircraft in the open or during operation resulting from each separately 
occurring event, except for reasonable wear and tear and except to the 
extent the loss or damage is caused by negligence of Government 
personnel.
    (2) If the Government elects to require that the aircraft be 
replaced or restored by the Contractor to its condition immediately 
prior to the damage, the equitable adjustment in the price authorized by 
paragraph (i) of this clause shall not include the dollar amount of the 
risk assumed by the Contractor under this paragraph (e). If the 
Government does not elect repair or replacement, the Contractor agrees 
to credit the contract price or pay the Government $1,000 (or the amount 
of the loss if smaller) as directed by the Contracting Officer.
    (f) No subcontractor may be relieved from liability for damage to, 
or loss or destruction of, aircraft while in its possession or control, 
except to the extent that the subcontract, with the Contracting 
Officer's prior written approval, provides for relief of the 
subcontractor from that liability. In the absence of such approval, the 
subcontract shall require the return of the aircraft in as good 
condition as when received, except for reasonable

[[Page 419]]

wear and tear or for the utilization of the property in accordance with 
the provisions of this contract. If a subcontractor has not been 
relieved from liability and any damage, loss, or destruction occurs, the 
Contractor shall enforce the liability of the subcontractor for that 
damage to, or loss or destruction of, the aircraft for the benefit of 
the Government.
    (g) The Contractor warrants that the contract price does not and 
will not include, except as this clause may otherwise authorize, any 
charge or contingency reserve for insurance (including self-insurance 
funds or reserves) covering any damage to, or loss or destruction of, 
aircraft while in the open, during operation, or in flight, the risk of 
which has been assumed by the Government under this clause, whether or 
not such assumption may be terminated as to aircraft in the open.
    (h)(1) In the event of damage to, or loss or destruction of, 
aircraft in the open, during operation, or in flight, the Contractor 
shall take all reasonable steps to protect the aircraft from further 
damage, separate damaged and undamaged aircraft, and put all aircraft in 
the best possible order. Further, except in cases covered by paragraph 
(e) of this clause, the Contractor should furnish to the Contracting 
Officer a statement of--
    (i) The damaged, lost, or destroyed aircraft;
    (ii) The time and origin of the damage, loss, or destruction;
    (iii) All known interests in commingled property of which aircraft 
are a part; and
    (iv) Any insurance covering any part of the interest in the 
commingled property.
    (2) Except in cases covered by paragraph (e) of this clause, an 
equitable adjustment shall be made in the amount due under this contract 
for expenditures made by the Contractor in performing its obligations 
under this paragraph (h), and this contract shall be modified in writing 
accordingly.
    (i)(1) If, before delivery and acceptance by the Government, any 
aircraft is damaged, lost, or destroyed and the Government has under 
this clause assumed the risk of that damage, loss, or destruction, the 
Government shall either
    (i) Require that the aircraft be replaced or restored by the 
Contractor to its condition immediately prior to the damage or
    (ii) Terminate this contract with respect to that aircraft.
    (2) If the Government requires that the aircraft be replaced or 
restored, an equitable adjustment shall be made in the amount due under 
this contract and in the time required for its performance, and the 
contract shall be modified in writing accordingly.
    (3) If this contract is terminated under this paragraph (i)(1)(ii) 
with respect to the aircraft, and under this clause the Government has 
assumed the risk of the damage, loss, or destruction, the Contractor 
shall be paid the contract price for the aircraft (or, if applicable, 
any work to be performed on the aircraft) less any amounts the 
Contracting Officer determines (i) that it would have cost the 
Contractor to complete the aircraft (or any work to be performed on it), 
together with any anticipated profit on the uncompleted work and (ii) to 
be the value, if any, of the damaged aircraft or any remaining portion 
of it retained by the Contractor. The Contracting Officer shall have the 
right to prescribe the manner of disposition of the damaged, lost, or 
destroyed aircraft or any remaining parts of it, and, if the Contractor 
incurs additional costs as a result of such disposition, a further 
equitable adjustment shall be made in the amount due to the Contractor.
    (j)(1) If the Contractor is at any time reimbursed or compensated by 
any third person for any damage, loss, or destruction of any aircraft, 
the risk of which has been assumed by the Government under this clause 
and for which the Contractor has been compensated by the Government, it 
shall equitably reimburse the Government.
    (2) The Contractor shall do nothing to prejudice the Government's 
rights to recover against third parties for any such damage, loss, or 
destruction and, upon the request of the Contracting Officer, shall at 
the Government's expense furnish to the Government all reasonable 
assistance and cooperation (including the prosecution of suits and the 
execution of instruments of assignment or subrogation in favor of the 
Government) in obtaining recovery.

[61 FR 55772, Oct. 29, 1996]



Sec. 1852.228-71  Aircraft flight risks.

    (a) As prescribed in 1828.311-2, insert the following clause:

                    Aircraft Flight Risks (DEC 1988)

    (a) Notwithstanding any other provision of this contract 
(particularly paragraph (g) of the Government Property (Cost-
Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause and 
paragraph (c) of the Insurance--Liability to Third Persons clause), the 
Contractor shall not: (1) Be relieved of liability for damage to, or 
loss or destruction of, aircraft sustained during flight or (2) be 
reimbursed for liabilities to third persons for loss of or damage to 
property or for death or bodily injury caused by aircraft during flight, 
unless the flight crew members have previously been approved in writing 
by the Contracting Officer.
    (b) For the purposes of this clause--
    (1) Unless otherwise specifically provided in the Schedule, 
``aircraft'' includes any aircraft, whether furnished by the Contractor 
under this contract (either before or after

[[Page 420]]

Government acceptance) or furnished by the Government to the Contractor 
under this contract, including all Government property placed or 
installed or attached to the aircraft, unless the aircraft and property 
are covered by a separate bailment agreement.
    (2) ``Flight'' includes any flight demonstration, flight test, taxi 
test, or other flight made in the performance of this contract, or for 
the purpose of safeguarding the aircraft, or previously approved in 
writing by the Contracting Officer.
    (i) With respect to land-based aircraft, flight commences with the 
taxi roll from a flight line and continues until the aircraft has 
completed the taxi roll to a flight line.
    (ii) With respect to seaplanes, flight commences with the launching 
from a ramp and continues until the aircraft has completed its landing 
run and is beached at a ramp.
    (iii) With respect to helicopters, flight commences upon engagement 
of the rotors for the purpose of take-off and continues until the 
aircraft has returned to the ground and rotors are disengaged.
    (iv) With respect to vertical take-off aircraft, flight commences 
upon disengagement from any launching platform or device and continues 
until the aircraft has been re-engaged to any launching platform or 
device.
    (3) ``Flight crew members'' means the pilot, copilot, and, unless 
otherwise specifically provided in the Schedule, the flight engineer and 
navigator when required or assigned to their respective crew positions 
to conduct any flight on behalf of the Contractor.
    (c) (1) If any aircraft is damaged, lost, or destroyed during flight 
and the amount of the damage, loss, or destruction exceeds $100,000 or 
20 percent of the estimated cost, exclusive of any fee, of this 
contract, whichever is less, and if the Contractor is not liable for the 
damage, loss, or destruction under the Government Property (Cost-
Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause of 
this contract or under paragraph (a) of this clause, an equitable 
adjustment for any resulting repair, restoration, or replacement 
required under this contract shall be made: (i) In the estimated cost, 
the delivery schedule, or both and (ii) in the amount of any fee to be 
paid to the Contractor, and the contract shall be modified in writing 
accordingly.
    (2) In determining the amount of adjustment in the fee that is 
equitable, any fault of the Contractor, its employees, or any 
subcontractor that materially contributed to the damage, loss, or 
destruction shall be taken into consideration.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 61 FR 55774, Oct. 29, 1996]



Sec. 1852.228-72  Cross-waiver of liability for space shuttle services.

    As prescribed in 1828.371 (b) and (e), insert the following clause:

     Cross-Waiver of Liability for Space Shuttle Services (SEP 1993)

    (a) As prescribed by regulation (14 CFR part 1266), NASA agreements 
involving Space Shuttle flights are required to contain broad cross-
waivers of liability among the parties and the parties related entities 
to encourage participation in space exploration, use, and investment. 
The purpose of this clause is to extend this cross-waiver requirement to 
Contractors and related entities under their contracts. This cross-
waiver of liability shall be broadly construed to achieve the objective 
of encouraging participation in space activities.
    (b) As used in this clause, the term:
    (1) Contractors and Subcontractors include suppliers of any kind.
    (2) Damage means:
    (i) Bodily injury to, or other impairment of health of, or death of, 
any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential damage;
    (3) Party means a person or entity that signs an agreement involving 
a Space Shuttle service;
    (4) Payload means all property to be flown or used on or in the 
Space Shuttle; and
    (5) Protected Space Operations means all Space Shuttle and payload 
activities on Earth, in outer space, or in transit between Earth and 
outer space performed in furtherance of an agreement involving Space 
Shuttle services or performed under this contract. ``Protected Space 
Operations'' excludes activities on Earth which are conducted on return 
from space to develop further a payload's product or process except when 
such development is for Space Shuttle-related activities necessary to 
implement an agreement involving Space Shuttle services or to perform 
this contract. It includes, but is not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of the Space Shuttle, transfer vehicles, 
payloads, related support equipment, and facilities and services;
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services.
    (6) Related entity means:
    (i) A party's Contractors or subcontractors at any tier;
    (ii) A party's users or customers at any tier; or

[[Page 421]]

    (iii) A Contractor or subcontractor of a party's user or customer at 
any tier.
    (c) (1) The Contractor agrees to a waiver of liability pursuant to 
which the Contractor waives all claims against any of the entities or 
persons listed in paragraph (c)(1)(i) through (c)(1)(iii) of this clause 
based on damage arising out of Protected Space Operations. This waiver 
shall apply only if the person, entity, or property causing the damage 
is involved in Protected Space Operations and the person, entity, or 
property damaged is damaged by virtue of its involvement in Protected 
Space Operations. This waiver shall apply to any claims for damage, 
whatever the legal basis for such claims, including but not limited to 
delict (a term used in civil law countries to denote a class of cases 
similar to tort) and tort (including negligence of every degree and 
kind) and contract, against:
    (i) Any party other than the Government;
    (ii) A related entity of any party other than the Government; and
    (iii) The employees of any of the entities identified in (c)(1)(i) 
and (c)(1)(ii) of this clause.
    (2) The Contractor agrees to extend the waiver of liability as set 
forth in paragraph (c)(1) of this clause to subcontractors at any tier 
by requiring them, by contract or otherwise, to agree to waive all 
claims against the entities or persons identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this clause.
    (3) For avoidance of doubt, this cross-waiver includes a cross-
waiver of liability arising from the Convention on International 
Liability for Damage Caused by Space Objects, (March 29, 1972, 24 United 
States Treaties and other International Agreements (U.S.T.) 2389, 
Treaties and Other International Acts Series (T.I.A.S.) No. 7762 in 
which the person, entity, or property causing the damage is involved in 
Protection Space Operations, and the person, entity, or property damaged 
is damaged by virtue of its involvement in Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this waiver 
of liability shall not be applicable to:
    (i) Claims between any party and its related entities or claims 
between the Government's related entities (e.g., claims between the 
Government and the Contractor are included within this exception);
    (ii) Claims made by a natural person, his/her estate, survivors, or 
subrogees for injury or death of such natural person;
    (iii) Claims for damage caused by willful misconduct; and
    (iv) Intellectual property claims.
    (5) Nothing in this clause shall be construed to create the basis 
for a claim or suit where none would otherwise exist.

                             (End of clause)

[59 FR 65730, Dec. 21, 1994]



Sec. 1852.228-73  Bid bond.

    As prescribed in 1828.101-70, insert the following provision:

                           Bid Bond (OCT 1988)

    (a) Each bidder shall submit with its bid a bid bond (Standard Form 
24) with good and sufficient surety or sureties acceptable to the 
Government, or other security as provided in Federal Acquisition 
Regulation clause 52.228-1, in the amount of twenty percent (20%) of the 
bid price, or $3 million, whichever is the lower amount.
    (b) Bid bonds shall be dated the same date as the bid or earlier.

                           (End of provision)



Sec. 1852.228-75  Minimum insurance coverage.

    As prescribed in 1828.372, insert the following clause:

                  Minimum Insurance Coverage (OCT 1988)

    The Contractor shall obtain and maintain insurance coverage as 
follows for the performance of this contract:
    (a) Worker's compensation and employer's liability insurance as 
required by applicable Federal and state workers' compensation and 
occupational disease statutes. If occupational diseases are not 
compensable under those statutes, they shall be covered under the 
employer's liability section of the insurance policy, except when 
contract operations are so commingled with the Contractor's commercial 
operations that it would not be practical. The employer's liability 
coverage shall be at least $100,000, except in States with exclusive or 
monopolistic funds that do not permit workers' compensation to be 
written by private carriers.
    (b) Comprehensive general (bodily injury) liability insurance of at 
least $500,000 per occurrence.
    (c) Motor vehicle liability insurance written on the comprehensive 
form of policy which provides for bodily injury and property damage 
liability covering the operation of all motor vehicles used in 
connection with performing the contract. Policies covering motor 
vehicles operated in the United States shall provide coverage of at 
least $200,000 per person and $500,000 per occurrence for bodily injury 
liability and $20,000 per occurrence for property damage. The amount of 
liability coverage on other policies shall be commensurate with any 
legal requirements of the locality and sufficient to meet normal and 
customary claims.

[[Page 422]]

    (d) Comprehensive general and motor vehicle liability policies shall 
contain a provision worded as follows:
    ``The insurance company waives any right of subrogation against the 
United States of America which may arise by reason of any payment under 
the policy.''
    (e) When aircraft are used in connection with performing the 
contract, aircraft public and passenger liability insurance of at least 
$200,000 per person and $500,000 per occurrence for bodily injury, other 
than passenger liability, and $200,000 per occurrence for property 
damage. Coverage for passenger liability bodily injury shall be at least 
$200,000 multiplied by the number of seats or passengers, whichever is 
greater.

                             (End of clause)



Sec. 1852.228-76  Cross-waiver of liability for space station 
          activities.

    As prescribed in 1828.371(d) and (e), insert the following clause:

    Cross-Waiver of Liability for Space Station Activities (DEC 1994)

    (a) The Intergovernmental Agreement for the Space Station contains a 
broad cross-waiver provision to encourage participation in the 
exploration and use of outer space through the Space Station. The 
purpose of this clause is to extend this cross-waiver requirement to 
Contractors and subcontractors as related entities of NASA. This cross-
waiver of liability shall be broadly construed to achieve this objective 
of encouraging participation in space activities.
    (b) As used in this clause, the term:
    (1) Damage means:
    (i) Bodily injury to, or other impairment of health of, or death of, 
any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential damage.
    (2) Launch Vehicle means an object (or any part thereof) intended 
for launch, launched from Earth, or returning to Earth which carries 
payloads or persons, or both.
    (3) Partner State means each contracting party for which the 
``Agreement among the Government of the United States of America, 
Governments of Member States of the European Space Agency, Government of 
Japan, and the Government of Canada on Cooperation in the Detailed 
Design, Development, Operation, and Utilization of the Permanently 
Manned Civil Space Station'' (the ``Intergovernmental Agreement'') has 
entered into force, in accordance with Article 25 of the 
Intergovermental Agreement, and also includes any future signatories of 
the Intergovernmental Agreement. It includes the Cooperating Agency of a 
Partner State. The National Aeronautics and Space Administration (NASA) 
for the United States, the Canadian Space Agency (CSA) for the 
Government of Canada, the European Space Agency (ESA) and the Science 
and Technology Agency of Japan (STA) are the Cooperating Agencies 
responsible for implementing Space Station cooperation. A Partner State 
also includes any entity specified to the Memorandum of Understanding 
(MOU) between NASA and the Government of Japan to assist the Government 
of Japan Cooperating Agency in the implementation of that MOU.
    (4) Payload means all property to be flown or used on or in a launch 
vehicle or the Space Station.
    (5) Protected Space Operations means all launch vehicle activities, 
space station activities, and payload activities on Earth, in outer 
space, or in transit between Earth and outer space performed in 
furtherance of the Intergovernmental Agreement or performed under this 
contract. ``Protected Space Operations'' also includes all activities 
related to evolution of the Space Station as provided for in Article 14 
of the Intergovernmental Agreement. ``Protected Space Operations'' 
excludes activities on Earth which are conducted on return from the 
Space Station to develop further a payload's product or process except 
when such development is for Space Station-related activities in 
implementation of the Intergovernmental Agreement or in performance of 
this contract. It includes, but is not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of launch or transfer vehicles, payloads, 
related support equipment, and facilities and services;
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services.
    (6) Related entity means:
    (i) A Partner State's Contractors or sub-contractors at any tier;
    (ii) A Partner State's users or customers at any tier; or
    (iii) A Contractor or subcontractor of a Partner States's user or 
customer at any tier.
    (7) Contractors and Subcontractors include suppliers of any kind.
    (c) (1) The Contractor agrees to a cross-waiver of liability 
pursuant to which the Contractor waives all claims against any of the 
entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) 
of this clause based on damage arising out of Protected Space 
Operations. This waiver shall apply only if the person, entity, or 
property causing the damage is involved in Protected Space Operations 
and the person, entity, or property damaged is damaged by virtue of its 
involvement in Protected Space Operations. The

[[Page 423]]

cross-waiver shall apply to any claims for damage, whatever the legal 
basis for such claims, including but not limited to delict (a term used 
in civil law countries to denote a class of cases similar to tort) and 
tort (including negligence of every degree and kind) and contract 
against:

    (i) Any Partner State other than the United States;
    (ii) A related entity of any Partner State other than the United 
States; and
    (iii) The employee of any of the entities identified in paragraphs 
(c)(1) (i) and (ii) of this clause.
    (2) The Contractor agrees to extend the waiver of liability as set 
forth in paragraph (c)(1) of this clause to subcontractors at any tier 
by requiring them, by contract or otherwise, to agree to waive all 
claims against the entities or persons identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this clause.
    (3) For avoidance of doubt, this cross-waiver includes a cross-
waiver of liability arising from the Convention on International 
Liability for Damage Caused by Space Objects, (March 29, 1972, 24 United 
States Treaties and other International Agreements (U.S.T.) 2389, 
Treaties and other International Acts Series (T.I.A.S.) No. 7762) in 
which the person, entity, or property causing the damage is involved in 
Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this cross-
waiver of liability shall not be applicable to:
    (i) Claims between the United States and its related entities or 
claims between the related entities of any Partner State (e.g., claims 
between the Government and the Contractor are included within this 
exception);
    (ii) Claims made by a natural person, his/her estate, survivors, or 
subrogees for injury or death of such natural person;
    (iii) Claims for damage caused by willful misconduct; and
    (iv) Intellectual property claims.
    (5) Nothing in this clause shall be construed to create the basis 
for a claim or suit where none would otherwise exist.

                             (End of clause)

[59 FR 65730, Dec. 21, 1994]



Sec. 1852.228-78  Cross-waiver of liability for NASA expendable launch 
          vehicle launches.

    As prescribed in 1828.371 (c) and (e), insert the following clause:

   Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) 
                           Launches (SEP 1993)

    (a) As prescribed by regulation (14 CFR part 1266), NASA agreements 
involving ELV launches are required to contain broad cross-waivers of 
liability among the parties and the parties related entities to 
encourage participation in space exploration, use, and investment. The 
purpose of this clause is to extend this cross-waiver requirement to 
contractors and subcontractors as related entities of NASA. This cross-
waiver of liability shall be broadly construed to achieve the objective 
of encouraging participation in space activities.
    (b) As used in this clause, the term:
    (1) Contractors and Subcontractors include suppliers of any kind.
    (2) Damage means:
    (i) Bodily injury to, or other impairment of health of, or death of, 
any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential damage;
    (3) Party means a person or entity that signs an agreement involving 
an ELV launch;
    (4) Payload means all property to be flown or used on or in the ELV; 
and
    (5) Protected Space Operations means all ELV and payload activities 
on Earth, in outer space, or in transit between Earth and outer space 
performed in furtherance of an agreement involving an ELV launch or 
performed under the contract. ``Protected Space Operations'' excludes 
activities on Earth which are conducted on return from space to develop 
further a payload's product or process except when such development is 
for ELV-related activities necessary to implement an agreement involving 
an ELV launch or to perform this contract. It includes, but is not 
limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of ELVs, transfer vehicles, payloads, 
related support equipment, and facilities and services;
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services.
    (6) Related entity means:
    (i) A party's Contractors or subcontractors at any tier;
    (ii) A party's users or customers at any tier; and
    (iii) A Contractor or subcontractor of a party's user or customer at 
any tier.
    (c) (1) The Contractor agrees to a waiver of liability pursuant to 
which the Contractor waives all claims against any of the entities or 
persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of this 
clause based on damage arising out of Protected Space Operations. This 
waiver shall apply only if the person, entity, or property causing the 
damage is involved in Protected Space Operations and the persons, 
entity, or property

[[Page 424]]

damaged is damaged by virtue of its involvement in Protected Space 
Operations. The waiver shall apply to any claims for damage, whatever 
the legal basis for such claims, including but not limited to delict (a 
term used in civil law countries to denote a class of cases similar to 
tort) and tort (including negligence of every degree and kind) and 
contract, against:
    (i) Any party other than the Government;
    (ii) A related entity of any party other than the Government; and
    (iii) The employees of any of the entities identified in (c)(1) (i) 
and (ii) of this clause.
    (2) The Contractor agrees to extend the waiver of liability as set 
forth in paragraph (c)(1) of this clause to subcontractors at any tier 
by requiring them, by contract or otherwise, to agree to waive all 
claims against the entities or persons identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this clause.
    (3) For avoidance of doubt, this cross-waiver includes a cross-
waiver of liability arising from the Convention on International 
Liability for Damage Caused by Space Objects, (March 29, 1972, 24 United 
States Treaties and other International Agreements (U.S.T.) 2389, 
Treaties and other International Acts Series (T.I.A.S.) No. 7762) in 
which the person, entity, or property causing the damage is involved in 
Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this cross-
waiver of liability shall not be applicable to:
    (i) Claims between any party and its related entities or claims 
between any party's related entities (e.g., claims between the 
Government and the Contractor are included within this exception);
    (ii) Claims made by a natural person, his/her estate, survivors, or 
subrogees for injury or death of such natural person;
    (iii) Claims for damage caused by willful misconduct; and
    (iv) Intellectual property claims.
    (5) Nothing in this clause shall be construed to create the basis 
for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when the Commercial 
Space Launch Act cross-waiver (49 U.S.C. App. 2615) is applicable.

                             (End of clause)

[59 FR 56731, Dec. 21, 1994]



Sec. 1852.228-80  Insurance--Immunity From Tort Liability.

    As prescribed in 1828.311-270(b), insert the following provision:

           Insurance--Immunity From Tort Liability (SEP 2000)

    If the offeror is partially or totally immune from tort liability to 
third persons as a State agency or as a charitable institution, the 
offeror will include in its offer a representation to that effect. When 
the successful offeror represented in its offer that it is immune from 
tort liability, the following clause(s) will be included in the 
resulting contract:
    (a) When the offeror represents that it is partially immune from 
tort liability to third persons as a State agency or as a charitable 
institution, the clause at FAR 52.228-7, Insurance--Liability To Third 
Persons, and the associated NFS clause 1852.228-81, Insurance--Partial 
Immunity From Tort Liability, will be included in the contract.
    (b) When the offeror represents that it is totally immune from tort 
liability to third persons as a State agency or as a charitable 
institution. the clause at NFS 1852.228-82 Insurance--Total Immunity 
From Tort Liability, will be included in the contract.

                           (End of provision)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.228-81  Insurance--Partial Immunity From Tort Liability.

    As prescribed in 1828.311-270(c), insert the following clause:

       Insurance--Partial Immunity From Tort Liability (SEP 2000)

    (a) Except as provided for in paragraph (b) of this clause, the 
Government does not assume any liability to third persons, nor will the 
Government reimburse the contractor for its liability to third persons, 
with respect to loss due to death, bodily injury, or damage to property 
resulting in any way from the performance of this contract; and
    (b) The contractor need not provide or maintain insurance coverage 
as required by paragraph (a) of FAR clause 52.228-7, Insurance--
Liability To Third Persons, provided that the contractor may obtain any 
insurance coverage deemed necessary, subject to approval by the 
Contracting Officer as to form, amount, and duration. The Contractor 
shall be reimbursed for the cost of such insurance and, to the extent 
provided in paragraph (c) of FAR clause 52.228-7, for liabilities to 
third person for which the contractor has obtained insurance coverage as 
provided in this paragraph, but for which such coverage is insufficient 
in amount.

                             (End of clause)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.228-82  Insurance--Total Immunity From Tort Liability.

    As prescribed in 1828.311-270(d), insert the following clause:

[[Page 425]]

        Insurance--Total Immunity From Tort Liability (SEP 2000)

    (a) The Government does not assume any liability to third persons, 
nor will the Government reimburse the Contractor for its liability to 
third persons, with respect to loss due to death, bodily injury, or 
damage to property resulting in any way from the performance of this 
contract or any subcontract under this contract.
    (b) If any suit or action is filed, or if any claim is made against 
the Contractor, the cost and expense of which may be reimbursable to the 
contractor under this contract, the Contractor will immediately notify 
the contracting officer and promptly furnish copies of all pertinent 
papers received by the contractor. The Contractor will, if required by 
the Government, authorize Government representatives to settle or defend 
the claim and to represent the contractor in or take charge of any 
litigation. The Contractor may, at its own expense, be associated with 
the Government representatives in any such claim or litigation.

                             (End of clause)

[65 FR 54440, Sept. 8, 2000]



Sec. 1852.231-70  Precontract costs.

    As prescribed in 1831.205-70, insert the following clause:

                      Precontract Costs (JUN 1995)

    The contractor shall be entitled to reimbursement for costs incurred 
on or after ---------------- in an amount not to exceed $-------- that, 
if incurred after this contract had been entered into, would have been 
reimbursable under this contract.

                             (End of clause)

[60 FR 29505, June 5, 1995]



Sec. 1852.231-71   Determination of compensation reasonableness.

    As prescribed at 1831.205-671, insert the following provision.

         Determination of Compensation Reasonableness (MAR 1994)

    (a) The proposal shall include a total compensation plan. This plan 
shall address all proposed labor categories, including those personnel 
subject to union agreements, the Service Contract Act, and those exempt 
from both of the above. The total compensation plan shall include the 
salaries/wages, fringe benefits and leave programs proposed for each of 
these categories of labor. The plan also shall include a discussion of 
the consistency of the plan among the categories of labor being 
proposed. Differences between benefits offered professional and non-
professional employees shall be highlighted. The requirements of this 
plan may be combined with that required by the clause at FAR 52.222-46, 
``Evaluation of Compensation for Professional Employees.''
    (b) The offeror shall provide written support to demonstrate that 
its proposed compensation is reasonable.
    (c) The offeror shall include the rationale for any conformance 
procedures used or those Service Contract Act employees proposed that do 
not fail within the scope of any classification listed in the applicable 
wage determination.
    (d) The offeror shall require all service subcontractors (1) with 
proposed cost reimbursement or non-competitive fixed-price type 
subcontracts having a total potential value in excess of $500,000 and 
(2) the cumulative value of all their service subcontracts under the 
proposed prime contract in excess of 10 percent of the prime contract's 
total potential value, provide as part of their proposals the 
information identified in (a) through (c) of this provision.

                           (End of provision)

[62 FR 4474, Jan. 30, 1997]



Sec. 1852.232-70  NASA modification of FAR 52.232-12.

    As prescribed at 1832.412-70, make the following modifications:

             NASA Modification of FAR 52.232-12, (MAR 1998)

    (a) Basic Clause. (1) In paragraph (e), Maximum Payment, in the 
sentence that begins ``When the sum of,'' change the word ``When'' to 
lower case and insert before it: ``Unliquidated advance payments shall 
not exceed $---- at any time outstanding. In addition. * * *.''
    (2) In paragraph (m)(1), delete ``in the form prescribed by the 
administering office'' and substitute ``and Standard Form 272, Federal 
Cash Transactions Report, and, if appropriate, Standard Form 272-A, 
Federal Cash Transactions Report Continuation.''
    (b) Alternate II (if incorporated in the contract). In paragraph 
(e), Maximum Payment, in the sentence that begins ``When the sum of,'' 
change the word ``When'' to lower case and insert before it: 
``Unliquidated advance payments shall not exceed $---- at any time 
outstanding. In addition. * * *.''
    (c) Alternate V (if incorporated in the contract). (1) Substitute 
the following for paragraph (b): ``(b) Use of funds. The Contractor may 
use advance payment funds only to pay for properly allocable, allowable, 
and reasonable costs for direct materials, direct labor, indirect costs, 
or such other costs approved

[[Page 426]]

in writing by the administering contracting office. Payments are subject 
to any restrictions in other clauses of this contract. Determinations of 
whether costs are properly allocable, allowable, and reasonable shall be 
in accordance with generally accepted accounting principles, subject to 
any applicable subparts of Part 31 of the Federal Acquisition 
Regulation, other applicable regulations referenced in Part 31, or 
subpart 1831.2.''
    (2) In paragraph (d), Maximum Payment, in the sentence that begins 
``When the sum of,'' change the word ``When'' to lower case and insert 
before it: ``Unliquidated advance payments shall not exceed $---- at any 
time outstanding. In addition. * * *.''
    (3) In paragraph (j)(1), insert between ``statements,'' and ``and'' 
``together with Standard Form 272, Federal Cash Transactions Report, 
and, if appropriate, Standard Form 272-A, Federal Cash Transactions 
Report Continuation''
    (4) If this is a Phase I contract awarded under the SBIR or STTR 
programs, delete paragraph (a) and substitute the following: ``(a) 
Requirements for payment. Advance payments will be made under this 
contract upon receipt of invoices from the Contractor. Invoices should 
be clearly marked ``Small Business Innovation Research Contract'' or 
``Small Business Technology Transfer Contract,'' as appropriate, to 
expedite payment processing. One-third of the total contract price will 
be available to be advanced to the contractor immediately after award, 
another one-third will be advanced three months after award, and the 
final one-third will be paid upon acceptance by NASA of the Contractor's 
final report. By law, full payment must be made no later than 12 months 
after the date that contract requirements are completed. The Contractor 
shall flow down the terms of this clause to any subcontractor requiring 
advance payments.''

                             (End of clause)

[63 FR 14040, Mar. 24, 1998]



Sec. 1852.232-77  Limitation of funds (fixed-price contract).

    As prescribed in 1832.705-270(a), insert the following clause. 
Contracting officers are authorized, in appropriate cases, to revise 
clause paragraphs (a), (b), and (g) to specify the work required under 
the contract, in lieu of using contract item numbers. The 60-day period 
may be varied from 30 to 90 days, and the 75 percent from 75 to 85 
percent:

          Limitation of Funds (Fixed-Price Contract) (MAR 1989)

    (a) Of the total price of items ---- through ----, the sum of $---- 
is presently available for payment and allotted to this contract. It is 
anticipated that from time to time additional funds will be allocated to 
the contract in accordance with the following schedule, until the total 
price of said items is allotted:

                     Schedule for Allotment of Funds

Date        Amounts

    (b) The Contractor agrees to perform or have performed work on the 
items specified in paragraph (a) of this clause up to the point at 
which, if this contract is terminated pursuant to the Termination for 
Convenience of the Government clause of this contract, the total amount 
payable by the Government (including amounts payable for subcontracts 
and settlement costs) pursuant to paragraphs (f) and (g) of that clause 
would, in the exercise of reasonable judgment by the Contractor, 
approximate the total amount at the time allotted to the contract. The 
Contractor is not obligated to continue performance of the work beyond 
that point. The Government is not obligated in any event to pay or 
reimburse the Contractor more than the amount from time to time allotted 
to the contract, anything to the contrary in the Termination for 
Convenience of the Government clause notwithstanding.
    (c) (1) It is contemplated that funds presently allotted to this 
contract will cover the work to be performed until ----.
    (2) If funds allotted are considered by the Contractor to be 
inadequate to cover the work to be performed until that date, or an 
agreed date substituted for it, the Contractor shall notify the 
Contracting Officer in writing when within the next 60 days the work 
will reach a point at which, if the contract is terminated pursuant to 
the Termination for Convenience of the Government clause of this 
contract, the total amount payable by the Government (including amounts 
payable for subcontracts and settlement costs) pursuant to paragraphs 
(f) and (g) of that clause will approximate 75 percent of the total 
amount then allotted to the contract.
    (3) (i) The notice shall state the estimated date when the point 
referred to in paragraph (c)(2) of this clause will be reached and the 
estimated amount of additional funds required to continue performance to 
the date specified in paragraph (c)(1) of this clause, or an agreed date 
substituted for it.
    (ii) The Contractor shall, 60 days in advance of the date specified 
in paragraph (c)(1) of this clause, or an agreed date substituted for 
it, advise the Contracting Officer in writing as to the estimated amount 
of additional funds required for the timely performance of the contract 
for a further period

[[Page 427]]

as may be specified in the contract or otherwise agreed to by the 
parties.
    (4) If, after the notification referred to in paragraph (c)(3)(ii) 
of this clause, additional funds are not allotted by the date specified 
in paragraph (c)(1) of this clause, or an agreed date substituted for 
it, the Contracting Officer shall, upon the Contractor's written 
request, terminate this contract on that date or on the date set forth 
in the request, whichever is later, pursuant to the Termination for 
Convenience of the Government clause.
    (d) When additional funds are allotted from time to time for 
continued performance of the work under this contract, the parties shall 
agree on the applicable period of contract performance to be covered by 
these funds. The provisions of paragraphs (b) and (c) of this clause 
shall apply to these additional allotted funds and the substituted date 
pertaining to them, and the contract shall be modified accordingly.
    (e) If, solely by reason of the Government's failure to allot 
additional funds in amounts sufficient for the timely performance of 
this contract, the Contractor incurs additional costs or is delayed in 
the performance of the work under this contract, and if additional funds 
are allotted, an equitable adjustment shall be made in the price or 
prices (including appropriate target, billing, and ceiling prices where 
applicable) of the items to be delivered, or in the time of delivery, or 
both.
    (f) The Government may at any time before termination, and, with the 
consent of the Contractor, after notice of termination, allot additional 
funds for this contract.
    (g) The provisions of this clause with respect to termination shall 
in no way be deemed to limit the rights of the Government under the 
default clause of this contract. The provisions of this Limitation of 
Funds clause are limited to the work on and allotment of funds for the 
items set forth in paragraph (a). This clause shall become inoperative 
upon the allotment of funds for the total price of said work except for 
rights and obligations then existing under this clause.
    (h) Nothing in this clause shall affect the right of the Government 
to terminate this contract pursuant to the Termination for Convenience 
of the Government clause of this contract.

                             (End of clause)



Sec. 1852.232-79  Payment for on-site preparatory costs.

    As prescribed in 1832.111-70, insert the following clause:

            Payment for On-Site Preparatory Costs (SEP 1987)

    Costs associated with on-site preparatory work (start-up or set-up 
costs) will be prorated over all work activities of a Critical Path 
Method (CPM) network or Progress Chart against which progress payments 
will be sought. Separate payment for on-site preparatory costs will not 
be made by the Government.

                             (End of clause)



Sec. 1852.232-81  Contract funding.

    As prescribed in 1832.705-270(b), insert the following clause:

                       Contract Funding (JUN 1990)

    (a) For purposes of payment of cost, exclusive of fee, in accordance 
with the Limitation of Funds clause, the total amount allotted by the 
Government to this contract is $--------. This allotment is for [Insert 
applicable item number(s), task(s), or work description] ---------- and 
covers the following estimated period of performance: ----------.
    (b) An additional amount of $ ------ is obligated under this 
contract for payment of fee.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 57 
FR 40856, Sept. 8, 1992]



Sec. 1852.232-82  Submission of requests for progress payments.

    As prescribed in 1832.502-470, insert the following clause:

         Submission of Requests for Progress Payments (MAR 1989)

    The Contractor shall request progress payments in accordance with 
the Progress Payments clause by submitting to the Contracting Officer an 
original and two copies of Standard Form (SF) 1443, Contractor's Request 
for Progress Payment, and the contractor's invoice (if applicable). The 
Contracting Officer's office is the designated billing office for 
progress payments for purposes of the Prompt Payment clause.

                             (End of clause)



Sec. 1852.233-70  Protests to NASA.

    As prescribed in 1833.106-70, insert the following provision:

                       Protests to NASA (OCT 2002)

    Potential bidders or offerors may submit a protest under 48 CFR part 
33 (FAR Part 33)

[[Page 428]]

directly to the Contracting Officer. As an alternative to the 
Contracting Officer's consideration of a protest, a potential bidder or 
offeror may submit the protest to the Assistant Administrator for 
Procurement, who will serve as or designate the official responsible for 
conducting an independent review. Protests requesting an independent 
review shall be addressed to Assistant Administrator for Procurement, 
NASA Code H, Washington, DC 20546-0001.

[62 FR 11108, Mar. 11, 1997, as amended at 67 FR 61519, Oct. 1, 2002]



Sec. 1852.235-70  Center for AeroSpace Information--final scientific and 
          technical reports.

    As prescribed in 1835.070(a), insert the following clause:

Center for Aerospace Information--Final Scientific and Technical Reports 
                               (JUL 2000)

    (a) The Contractor should register with and avail itself of the 
services provided by the NASA Center for AeroSpace Information (CASI) 
(http://www.sti.nasa.gov) for the conduct of research or research and 
development required under this contract. CASI provides a variety of 
services and products as a central NASA repository of research 
information, which may enhance contract performance. The address is set 
out in paragraph (d) of this clause.
    (b) Should the CASI information or service requested by the 
Contractor be unavailable or not in the exact form necessary by the 
Contractor, neither CASI nor NASA is obligated to search for or change 
the format of the information. A failure to furnish information shall 
not entitle the Contractor to an equitable adjustment under the terms 
and conditions of this contract.
    (c) In addition to the final report, as defined at 1827.406-
70(a)(3), submitted to the contracting officer, a reproducible copy and 
a printed or reproduced copy of the final report or data shall be 
concurrently submitted to: Center for AeroSpace Information (CASI), 
Attn: Document Processing Section, 7121 Standard Drive, Hanover, 
Maryland 21076-1320, Phone: 301-621-0390, FAX: 301-621-0134.
    (d) The last page of the final report submitted to CASI shall be a 
completed Standard Form (SF) 298, Report Documentation Page. In addition 
to the copy of the final report, the contractor shall provide, to CASI, 
a copy of the letter transmitting the final report to NASA for its 
Document Availability Authorization (DAA) review.
    (e) The contractor shall not release the final report, outside of 
NASA, until the DAA review has been completed by NASA and availability 
of the report has been determined.

                             (End of clause)

[65 FR 45307, July 21, 2000]



Sec. 1852.235-71  Key personnel and facilities.

    As prescribed in 1835.070(b), insert the following clause:

                 Key Personnel and Facilities (MAR 1989)

    (a) The personnel and/or facilities listed below (or specified in 
the contract Schedule) are considered essential to the work being 
performed under this contract. Before removing, replacing, or diverting 
any of the listed or specified personnel or facilities, the Contractor 
shall (1) notify the Contracting Officer reasonably in advance and (2) 
submit justification (including proposed substitutions) in sufficient 
detail to permit evaluation of the impact on this contract.
    (b) The Contractor shall make no diversion without the Contracting 
Officer's written consent; provided, that the Contracting Officer may 
ratify in writing the proposed change, and that ratification shall 
constitute the Contracting Officer's consent required by this clause.
    (c) The list of personnel and/or facilities (shown below or as 
specified in the contract Schedule) may, with the consent of the 
contracting parties, be amended from time to time during the course of 
the contract to add or delete personnel and/or facilities.

[List here the personnel and/or facilities considered essential, unless 
they are specified in the contract Schedule.]

                             (End of clause)



Sec. 1852.235-72  Instructions for responding to NASA Research 
          Announcements.

    As prescribed in 1835.070(c), insert the following provision:

  Instructions for Responding to NASA Research Announcements (OCT 2002)

    (a) General.
    (1) Proposals received in response to a NASA Research Announcement 
(NRA) will be used only for evaluation purposes. NASA does not allow a 
proposal, the contents of which are not available without restriction 
from another source, or any unique ideas submitted in response to an NRA 
to be used as the basis of a solicitation or in negotiation with other 
organizations, nor is a pre-award synopsis published for individual 
proposals.
    (2) A solicited proposal that results in a NASA award becomes part 
of the record of

[[Page 429]]

that transaction and may be available to the public on specific request; 
however, information or material that NASA and the awardee mutually 
agree to be of a privileged nature will be held in confidence to the 
extent permitted by law, including the Freedom of Information Act.
    (3) NRAs contain programmatic information and certain requirements 
which apply only to proposals prepared in response to that particular 
announcement. These instructions contain the general proposal 
preparation information which applies to responses to all NRAs.
    (4) A contract, grant, cooperative agreement, or other agreement may 
be used to accomplish an effort funded in response to an NRA. NASA will 
determine the appropriate award instrument. Contracts resulting from 
NRAs are subject to the Federal Acquisition Regulation and the NASA FAR 
Supplement. Any resultant grants or cooperative agreements will be 
awarded and administered in accordance with the NASA Grant and 
Cooperative Agreement Handbook (NPG 5800.1).
    (5) NASA does not have mandatory forms or formats for responses to 
NRAs; however, it is requested that proposals conform to the guidelines 
in these instructions. NASA may accept proposals without discussion; 
hence, proposals should initially be as complete as possible and be 
submitted on the proposers' most favorable terms.
    (6) To be considered for award, a submission must, at a minimum, 
present a specific project within the areas delineated by the NRA; 
contain sufficient technical and cost information to permit a meaningful 
evaluation; be signed by an official authorized to legally bind the 
submitting organization; not merely offer to perform standard services 
or to just provide computer facilities or services; and not 
significantly duplicate a more specific current or pending NASA 
solicitation.
    (b) NRA-Specific Items. Several proposal submission items appear in 
the NRA itself: the unique NRA identifier; when to submit proposals; 
where to send proposals; number of copies required; and sources for more 
information. Items included in these instructions may be supplemented by 
the NRA.
    (c) The following information is needed to permit consideration in 
an objective manner. NRAs will generally specify topics for which 
additional information or greater detail is desirable. Each proposal 
copy shall contain all submitted material, including a copy of the 
transmittal letter if it contains substantive information.
    (1) Transmittal Letter or Prefatory Material.
    (i) The legal name and address of the organization and specific 
division or campus identification if part of a larger organization;
    (ii) A brief, scientifically valid project title intelligible to a 
scientifically literate reader and suitable for use in the public press;
    (iii) Type of organization: e.g., profit, nonprofit, educational, 
small business, minority, women-owned, etc;
    (iv) Name and telephone number of the principal investigator and 
business personnel who may be contacted during evaluation or 
negotiation;
    (v) Identification of other organizations that are currently 
evaluating a proposal for the same efforts;
    (vi) Identification of the NRA, by number and title, to which the 
proposal is responding;
    (vii) Dollar amount requested, desired starting date, and duration 
of project;
    (viii) Date of submission; and
    (ix) Signature of a responsible official or authorized 
representative of the organization, or any other person authorized to 
legally bind the organization (unless the signature appears on the 
proposal itself).
    (2) Restriction on Use and Disclosure of Proposal Information. 
Information contained in proposals is used for evaluation purposes only. 
Offerors or quoters should, in order to maximize protection of trade 
secrets or other information that is confidential or privileged, place 
the following notice on the title page of the proposal and specify the 
information subject to the notice by inserting an appropriate 
identification in the notice. In any event, information contained in 
proposals will be protected to the extent permitted by law, but NASA 
assumes no liability for use and disclosure of information not made 
subject to the notice.

    Notice--Restriction on Use and Disclosure of Proposal Information

    The information (data) contained in [insert page numbers or other 
identification] of this proposal constitutes a trade secret and/or 
information that is commercial or financial and confidential or 
privileged. It is furnished to the Government in confidence with the 
understanding that it will not, without permission of the offeror, be 
used or disclosed other than for evaluation purposes; provided, however, 
that in the event a contract (or other agreement) is awarded on the 
basis of this proposal the Government shall have the right to use and 
disclose this information (data) to the extent provided in the contract 
(or other agreement). This restriction does not limit the Government's 
right to use or disclose this information (data0 if obtained from 
another source without restriction.
    (3) Abstract. Include a concise (200-300 word if not otherwise 
specified in the NRA) abstract describing the objective and the method 
of approach.
    (4) Project Description.

[[Page 430]]

    (i) The main body of the proposal shall be a detailed statement of 
the work to be undertaken and should include objectives and expected 
significance; relation to the present state of knowledge; and relation 
to previous work done on the project and to related work in progress 
elsewhere. The statement should outline the plan of work, including the 
broad design of experiments to be undertaken and a description of 
experimental methods and procedures. The project description should 
address the evaluation factors in these instructions and any specific 
factors in the NRA. Any substantial collaboration with individuals not 
referred to in the budget or use of consultants should be described. 
Subcontracting significant portions of a research project is 
discouraged.
    (ii) When it is expected that the effort will require more than one 
year, the proposal should cover the complete project to the extent that 
it can be reasonably anticipated. Principal emphasis should be on the 
first year of work, and the description should distinguish clearly 
between the first year's work and work planned for subsequent years.
    (5) Management Approach. For large or complex efforts involving 
interactions among numerous individuals or other organizations, plans 
for distribution of responsibilities and arrangements for ensuring a 
coordinated effort should be described.
    (6) Personnel. The principal investigator is responsible for 
supervision of the work and participates in the conduct of the research 
regardless of whether or not compensated under the award. A short 
biographical sketch of the principal investigator, a list of principal 
publications and any exceptional qualifications should be included. Omit 
social security number and other personal items which do not merit 
consideration in evaluation of the proposal. Give similar biographical 
information on other senior professional personnel who will be directly 
associated with the project. Give the names and titles of any other 
scientists and technical personnel associated substantially with the 
project in an advisory capacity. Universities should list the 
approximate number of students or other assistants, together with 
information as to their level of academic attainment. Any special 
industry-university cooperative arrangements should be described.
    (7) Facilities and Equipment.
    (i) Describe available facilities and major items of equipment 
especially adapted or suited to the proposed project, and any additional 
major equipment that will be required. Identify any Government-owned 
facilities, industrial plant equipment, or special tooling that are 
proposed for use. Include evidence of its availability and the cognizant 
Government points of contact.
    (ii) Before requesting a major item of capital equipment, the 
proposer should determine if sharing or loan of equipment already within 
the organization is a feasible alternative. Where such arrangements 
cannot be made, the proposal should so state. The need for items that 
typically can be used for research and non-research purposes should be 
explained.
    (8) Proposed Costs (U.S. Proposals Only).
    (i) Proposals should contain cost and technical parts in one volume: 
do not use separate ``confidential'' salary pages. As applicable, 
include separate cost estimates for salaries and wages; fringe benefits; 
equipment; expendable materials and supplies; services; domestic and 
foreign travel; ADP expenses; publication or page charges; consultants; 
subcontracts; other miscellaneous identifiable direct costs; and 
indirect costs. List salaries and wages in appropriate organizational 
categories (e.g., principal investigator, other scientific and 
engineering professionals, graduate students, research assistants, and 
technicians and other non-professional personnel). Estimate all staffing 
data in terms of staff-months or fractions of full-time.
    (ii) Explanatory notes should accompany the cost proposal to provide 
identification and estimated cost of major capital equipment items to be 
acquired; purpose and estimated number and lengths of trips planned; 
basis for indirect cost computation (including date of most recent 
negotiation and cognizant agency); and clarification of other items in 
the cost proposal that are not self-evident. List estimated expenses as 
yearly requirements by major work phases.
    (iii) Allowable costs are governed by FAR Part 31 and the NASA FAR 
Supplement Part 1831 (and OMB Circulars A-21 for educational 
institutions and A-122 for nonprofit organizations).
    (iv) Use of NASA funds--NASA funding may not be used for foreign 
research efforts at any level, whether as a collaborator or a 
subcontract. The direct purchase of supplies and/or services, which do 
not constitute research, from non-U.S. sources by U.S award recipients 
is permitted. Additionally, in accordance with the National Space 
Transportation Policy, use of a non-U.S. manufactured launch vehicle is 
permitted only on a no-exchange-of-funds basis.
    (9) Security. Proposals should not contain security classified 
material. If the research requires access to or may generate security 
classified information, the submitter will be required to comply with 
Government security regulations.
    (10) Current Support. For other current projects being conducted by 
the principal investigator, provide title of project, sponsoring agency, 
and ending date.
    (11) Special Matters.
    (i) Include any required statements of environmental impact of the 
research, human subject or animal care provisions, conflict of

[[Page 431]]

interest, or on such other topics as may be required by the nature of 
the effort and current statutes, executive orders, or other current 
Government-wide guidelines.
    (iii) Proposers should include a brief description of the 
organization, its facilities, and previous work experience in the field 
of the proposal. Identify the cognizant Government audit agency, 
inspection agency, and administrative contracting officer, when 
applicable.
    (ii) Identify and discuss risk factors and issues throughout the 
proposal where they are relevant, and your approach to managing these 
risks.
    (d) Renewal Proposals.
    (1) Renewal proposals for existing awards will be considered in the 
same manner as proposals for new endeavors. A renewal proposal should 
not repeat all of the information that was in the original proposal. The 
renewal proposal should refer to its predecessor, update the parts that 
are no longer current, and indicate what elements of the research are 
expected to be covered during the period for which support is desired. A 
description of any significant findings since the most recent progress 
report should be included. The renewal proposal should treat, in 
reasonable detail, the plans for the next period, contain a cost 
estimate, and otherwise adhere to these instructions.
    (2) NASA may renew an effort either through amendment of an existing 
contract or by a new award.
    (e) Length. Unless otherwise specified in the NRA, effort should be 
made to keep proposals as brief as possible, concentrating on 
substantive material. Few proposals need exceed 15-20 pages. Necessary 
detailed information, such as reprints, should be included as 
attachments. A complete set of attachments is necessary for each copy of 
the proposal. As proposals are not returned, avoid use of ``one-of-a-
kind'' attachments.
    (f) Joint Proposals.
    (1) Where multiple organizations are involved, the proposal may be 
submitted by only one of them. It should clearly describe the role to be 
played by the other organizations and indicate the legal and managerial 
arrangements contemplated. In other instances, simultaneous submission 
of related proposals from each organization might be appropriate, in 
which case parallel awards would be made.
    (2) Where a project of a cooperative nature with NASA is 
contemplated, describe the contributions expected from any participating 
NASA investigator and agency facilities or equipment which may be 
required. The proposal must be confined only to that which the proposing 
organization can commit itself. ``Joint'' proposals which specify the 
internal arrangements NASA will actually make are not acceptable as a 
means of establishing an agency commitment.
    (g) Late Proposals. Proposals or proposal modifications received 
after the latest date specified for receipt may be considered if a 
significant reduction in cost to the Government is probable or if there 
are significant technical advantages, as compared with proposals 
previously received.
    (h) Withdrawal. Proposals may be withdrawn by the proposer at any 
time before award. Offerors are requested to notify NASA if the proposal 
is funded by another organization or of other changed circumstances 
which dictate termination of evaluation.
    (i) Evaluation Factors
    (1) Unless otherwise specified in the NRA, the principal elements 
(of approximately equal weight) considered in evaluating a proposal are 
its relevance to NASA's objectives, intrinsic merit, and cost.
    (2) Evaluation of a proposal's relevance to NASA's objectives 
includes the consideration of the potential contribution of the effort 
to NASA's mission.
    (3) Evaluation of its intrinsic merit includes the consideration of 
the following factors of equal importance:
    (i) Overall scientific or technical merit of the proposal or unique 
and innovative methods, approaches, or concepts demonstrated by the 
proposal.
    (ii) Offeror's capabilities, related experience, facilities, 
techniques, or unique combinations of these which are integral factors 
for achieving the proposal objectives.
    (iii) The qualifications, capabilities, and experience of the 
proposed principal investigator, team leader, or key personnel critical 
in achieving the proposal objectives.
    (iv) Overall standing among similar proposals and/or evaluation 
against the state-of-the-art.
    (4) Evaluation of the cost of a proposed effort may include the 
realism and reasonableness of the proposed cost and available funds.
    (j) Evaluation Techniques. Selection decisions will be made 
following peer and/or scientific review of the proposals. Several 
evaluation techniques are regularly used within NASA. In all cases 
proposals are subject to scientific review by discipline specialists in 
the area of the proposal. Some proposals are reviewed entirely in-house, 
others are evaluated by a combination of in-house and selected external 
reviewers, while yet others are subject to the full external peer review 
technique (with due regard for conflict-of-interest and protection of 
proposal information), such as by mail or through assembled panels. The 
final decisions are made by a NASA selecting official. A proposal which 
is scientifically and programmatically meritorious, but not selected for 
award during its initial review, may be included in subsequent reviews 
unless the proposer requests otherwise.
    (k) Selection for Award.

[[Page 432]]

    (1) When a proposal is not selected for award, the proposer will be 
notified. NASA will explain generally why the proposal was not selected. 
Proposers desiring additional information may contact the selecting 
official who will arrange a debriefing.
    (2) When a proposal is selected for award, negotiation and award 
will be handled by the procurement office in the funding installation. 
The proposal is used as the basis for negotiation. The contracting 
officer may request certain business data and may forward a model award 
instrument and other information pertinent to negotiation.
    (l) Additional Guidelines Applicable to Foreign Proposals and 
Proposals Including Foreign Participation
    (1) NASA welcomes proposals from outside the U.S. However, foreign 
entities are generally not eligible for funding from NASA. Therefore, 
unless otherwise noted in the NRA, proposals from foreign entities 
should not include a cost plan unless the proposal involves 
collaboration with a U.S. institution, in which case a cost plan for 
only the participation of the U.S. entity must be included. Proposals 
from foreign entities and proposals from U.S. entities that include 
foreign participation must be endorsed by the respective government 
agency or funding/sponsoring institution in the country from which the 
foreign entity is proposing. Such endorsement should indicate that the 
proposal merits careful consideration by NASA, and if the proposal is 
selected, sufficient funds will be made available to undertake the 
activity as proposed.
    (2) All foreign proposals must be typewritten in English and comply 
with all other submission requirements stated in the NRA. All foreign 
proposals will undergo the same evaluation and selection process as 
those originating in the U.S. All proposals must be received before the 
established closing date. Those received after the closing date will be 
treated in accordance with paragraph (g) of this provision. Sponsoring 
foreign government agencies or funding institutions may, in exceptional 
situations, forward a proposal without endorsement if endorsement is not 
possible before the announced closing date. In such cases, the NASA 
sponsoring office should be advised when a decision on endorsement can 
be expected.
    (3) Successful and unsuccessful foreign entities will be contacted 
directly by the NASA sponsoring office. Copies of these letters will be 
sent to the foreign sponsor. Should a foreign proposal or a U.S. 
proposal with foreign participation be selected, NASA's Office of 
External Relations will arrange with the foreign sponsor for the 
proposed participation on a no-exchange-of-funds basis, in which NASA 
and the non-U.S. sponsoring agency or funding institution will each bear 
the cost of discharging their respective responsibilities.
    (4) Depending on the nature and extent of the proposed cooperation, 
these arrangements may entail:
    (i) An exchange of letters between NASA and the foreign sponsor; or
    (ii) A formal Agency-to-Agency Memorandum of Understanding (MOU).
    (m) Cancellation of NRA. NASA reserves the right to make no awards 
under this NRA and to cancel this NRA. NASA assumes no liability for 
canceling the NRA or for anyone's failure to receive actual notice of 
cancellation.

[62 FR 4475, Jan. 30, 1997, as amended at 64 FR 48561, Sept. 7, 1999; 65 
FR 3153, Jan. 20, 2000; 67 FR 30604, May 7, 2002; 67 FR 61520, Oct. 1, 
2002]



Sec. 1852.236-71  Additive or deductive items.

    As prescribed in 1836.570(a), insert the following provision:

                 Additive or Deductive Items (MAR 1989)

    (a) The low bidder for purposes of award shall be the conforming 
responsible bidder offering the low aggregate amount for the first or 
base bid item, plus or minus (in order of priority listed in the 
Schedule) those additive or deductive bid items providing the most 
features of the work within the funds determined by the Government to be 
available before bids are opened. If addition of another bid item in the 
listed order of priority would make the award exceed those funds for all 
bidders, it shall be skipped and the next subsequent additive bid item 
in a lower amount shall be added for each bid if award on it can be made 
within the funds.
    (b) An example for one bid is an amount available of $100,000, a 
bidder's base bid of $85,000, and four successive additives of $10,000, 
$8,000, $6,000, and $4,000. In this example, the aggregate amount of the 
bid for purposes of award would be $99,000 for the base bid plus the 
first and fourth additives, the second and third additives being skipped 
because either of them would cause the aggregate bid to exceed $100,000.
    (c) All bids shall be evaluated on the basis of the same additive or 
deductive bid items. The listed order of priority must be followed only 
for determining the low bidder. After determination of the low bidder, 
award in the best interests of the Government may be made to that bidder 
on its base bid and any combination of its additive or deductive bid 
items for which funds are determined to be available at the time of the 
award, provided that award of the combination of bid items does not 
exceed the amount offered by any other conforming responsible bidder for 
the same combination of bid items.

[[Page 433]]

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-72  Bids with unit prices.

    As prescribed in 1836.570(b), insert the following provision:

                    Bids With Unit Prices (MAR 1989)

    (a) All extensions of the unit prices bid will be subject to 
verification by the Government. If there is variation between the unit 
price and any extended amounts, the unit price will be considered to be 
the bid.
    (b) If a modification to a bid based on unit prices that provides 
for a lump-sum adjustment to the total estimated cost is submitted, the 
application of the lump sum adjustment to each unit price in the bid 
must be stated. If it is not stated, the lump-sum adjustment shall be 
applied on a pro rata basis to every unit price in the bid.

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-73  Hurricane plan.

    As prescribed in 1836.570(c), insert the following clause:

                        Hurricane Plan (DEC 1988)

    In the event of a hurricane warning, the Contractor shall--
    (a) Inspect the area and place all materials possible in a protected 
location;
    (b) Tie down, or identify and store, all outside equipment and 
materials;
    (c) Clear all surrounding areas and roofs of buildings, or tie down 
loose material, equipment, debris, and any other objects that could 
otherwise be blown away or blown against existing buildings; and
    (d) Ensure that temporary erosion controls are adequate.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-74  Magnitude of requirement.

    As prescribed in 1836.570(d), insert the following provision:

                   Magnitude of Requirement (DEC 1988)

    The Government estimated price range of this project is between $--
------ and $--------. [Insert the estimated dollar range.]

                           (End of provision)

[54 FR 28340, July 5, 1989, as amended at 62 FR 4476, Jan. 30, 1997]



Sec. 1852.236-75  Partnering for construction contracts.

    As prescribed in 1836.7004, insert the following clause:

            Partnering for Construction Contracts (AUG 1998)

    (a) The terms ``partnering'' and ``partnership'' used herein shall 
mean a relationship of open communication and close cooperation that 
involves both Government and Contractor personnel working together for 
the purpose of establishing a mutually beneficial, proactive, 
cooperative environment within which to achieve contract objectives and 
resolve issues and implementing actions as required.
    (b) Partnering will be a voluntary commitment mutually agreed upon 
by at least NASA and the prime contractor, and preferably the 
subcontractors and the A&E design contractor, if applicable. Sustained 
commitment to the process is essential to assure success of the 
relationship.
    (c) NASA intends to facilitate contract management by encouraging 
the foundation of a cohesive partnership with the Contractor, its 
subcontractors, the A&E design contractor, and NASA's contract 
management staff. This partnership will be structured to draw on the 
strengths of each organization to identify and achieve mutual 
objectives. The objectives are intended to complete the contract 
requirements within budget, on schedule, and in accordance with the 
plans and specifications.
    (d) To implement the partnership, it is anticipated that within 30 
days of the Notice to Proceed the prime Contractor's key personnel, its 
subcontractors, the A&E design contractor, and NASA personnel will 
attend a partnership development and team building workshop. Follow-up 
team building workshops will be held periodically throughout the 
duration of the contract as agreed to by the Government and the 
Contractor.
    (e) Any cost with effectuating the partnership will be agreed to in 
advance by both parties and will be shared with no change in the 
contract price. The contractor's share of the costs are not recoverable 
under any other Government award.

                             (End of clause)

[63 FR 44171, Aug. 18, 1998]

[[Page 434]]



Sec. 1852.237-70  Emergency evacuation procedures.

    As prescribed at 1837.110-70(a), insert the following clause:

               Emergency Evacuation Procedures (DEC 1988)

    The contractor shall assure that its personnel at Government 
facilities are familiar with the functions of the Government's emergency 
evacuation procedures. If requested by the Contracting Officer, the 
Contractor shall designate an individual or individuals as contact 
points to provide for efficient and rapid evacuation of the facility if 
and when required.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 54 FR 39376, Sept. 26, 1989; 
62 FR 4476, Jan. 30, 1997]



Sec. 1852.237-71  Pension portability.

    As prescribed at 1837.110-70(b), insert the following clause:

                     Pension Portability (JAN 1997)

    (a) In order for pension costs attributable to employees assigned to 
this contract to be allowable costs under this contract, the plans 
covering such employees must:
    (1) Comply with all applicable Government laws and regulations;
    (2) Be a defined contribution plan, or a multiparty defined benefit 
plan operated under a collective bargaining agreement. In either case, 
the plan must be portable, i.e., the plan follows the employee, not the 
employer;
    (3) Provide for 100 percent employee vesting at the earlier of one 
year of continuous employee service or contract termination; and
    (4) Not be modified, terminated, or a new plan adopted without the 
prior written approval of the cognizant NASA Contracting Officer.
    (b) The Contractor shall include paragraph (a) of this clause in 
subcontracts for continuing services under a service contract if:
    (1) The prime contract requires pension portability;
    (2) The subcontracted labor dollars (excluding any burdens or 
profit/fee) exceed $2,500,000 and ten percent of the total prime 
contract labor dollars (excluding any burdens or profit/fee); and
    (3) Either of the following conditions exists:
    (i) There is a continuing need for the same or similar subcontract 
services for a minimum of five years (inclusive of options), and if the 
subcontractor changes, a high percentage of the predecessor 
subcontractor's employees are expected to remain with the program; or
    (ii) The employees under a predecessor subcontract were covered by a 
portable pension plan, a follow-on subcontract or a subcontract 
consolidating existing services is awarded, and the total subcontract 
period covered by the plan covers a minimum of five years (including 
both the predecessor and successor subcontracts).

                             (End of clause)

[62 FR 4477, Jan. 30, 1997]



Sec. Sec. 1852.239-70  Alternate delivery points.

    As prescribed in 1839.106-70(a)(1), insert the following clause:

                  Alternate Delivery Points (NOV 1993)

    (a) The first priority of this contract is to satisfy the 
anticipated requirements of ---- (identify contracting activity). 
However, should the actual requirements of ---- (contracting activity) 
be less than the maximum quantities/values specified in section B of 
this contract, ---- (contracting activity) may order the remaining 
available quantities/values to satisfy the requirements of other 
installations. The other installations at which delivery may be required 
are:

(List installations and their locations)

    (b) The prices of the deliverables in section B are F.O.B. 
destination to ---- (contracting activity). If delivery to an alternate 
location is ordered, an equitable adjustment may be negotiated to 
recognize any variances in transportation costs associated with delivery 
to that alternate location.

                             (End of clause)

    Alternate I (NOV 1993). As prescribed in 1839.7008(b), delete 
paragraph (b) and substitute the following:

    (b) The prices of the deliverables in section B are F.O.B. origin 
with delivery to NASA via Government bill of lading (GBL). If delivery 
to an alternate location is ordered, the same delivery procedures will 
be used and no equitable adjustment to any price, term, or condition of 
this contract will be made as a result of such order.

                             (End of clause)

[58 FR 59189, Nov. 8, 1993; 58 FR 62556, Nov. 29, 1993, as amended at 62 
FR 4477, Jan. 30, 1997; 62 FR 36735, July 9, 1997]



Sec. 1852.241-70  Renewal of contract.

    As prescribed in 48 CFR 1841.501-70, insert the following clause:

[[Page 435]]

                     Renewal of Contract (DEC 1988)

    This contract is renewable on an annual basis at the option of the 
Government, by the Contracting Officer giving written notice of renewal 
to the Contractor at least ---------- days before expiration. If the 
Government exercises this option for renewal, the contract as renewed 
shall be deemed to include this option provision. However, the total 
duration of this contract, including the exercise of any options under 
this clause, shall not exceed ---------- years.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 12460, Mar. 26, 1991. 
Redesignated and amended at 60 FR 16063, Mar. 29, 1995; 62 FR 4477, Jan. 
30, 1997]



Sec. 1852.242-70  Technical direction.

    As prescribed in 1842.271, insert the following clause:

                     Technical Direction (SEP 1993)

    (a) Performance of the work under this contract is subject to the 
written technical direction of the Contracting Officer Technical 
Representative (COTR), who shall be specifically appointed by the 
Contracting Officer in writing in accordance with NASA FAR Supplement 
1842.270. ``Technical direction'' means a directive to the Contractor 
that approves approaches, solutions, designs, or refinements; fills in 
details or otherwise completes the general description of work or 
documentation items; shifts emphasis among work areas or tasks; or 
furnishes similar instruction to the Contractor. Technical direction 
includes requiring studies and pursuit of certain lines of inquiry 
regarding matters within the general tasks and requirements in Section C 
of this contract.
    (b) The COTR does not have the authority to, and shall not, issue 
any instruction purporting to be technical direction that--
    (1) Constitutes an assignment of additional work outside the 
statement of work;
    (2) Constitutes a change as defined in the changes clause;
    (3) Constitutes a basis for any increase or decrease in the total 
estimated contract cost, the fixed fee (if any), or the time required 
for contract performance;
    (4) Changes any of the expressed terms, conditions, or 
specifications of the contract; or
    (5) Interferes with the contractor's rights to perform the terms and 
conditions of the contract.
    (c) All technical direction shall be issued in writing by the COTR.
    (d) The Contractor shall proceed promptly with the performance of 
technical direction duly issued by the COTR in the manner prescribed by 
this clause and within the COTR's authority. If, in the Contractor's 
opinion, any instruction or direction by the COTR falls within any of 
the categories defined in paragraph (b) of this clause, the Contractor 
shall not proceed but shall notify the Contracting Officer in writing 
within 5 working days after receiving it and shall request the 
Contracting Officer to take action as described in this clause. Upon 
receiving this notification, the Contracting Officer shall either issue 
an appropriate contract modification within a reasonable time or advise 
the Contractor in writing within 30 days that the instruction or 
direction is--
    (1) Rescinded in its entirety; or
    (2) Within the requirements of the contract and does not constitute 
a change under the Changes clause of the contract, and that the 
Contractor should proceed promptly with its performance.
    (e) A failure of the Contractor and the Contracting Officer to agree 
that the instruction or direction is both within the requirements of the 
contract and does not constitute a change under the Changes clause, or a 
failure to agree upon the contract action to be taken with respect to 
the instruction or direction, shall be subject to the Disputes clause of 
this contract.
    (f) Any action(s) taken by the contractor in response to any 
direction given by any person other than the Contracting Officer or the 
COTR shall be at the Contractor's risk.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 56 FR 32119, July 15, 1991; 59 
FR 21668, Apr. 26, 1994; 62 FR 36735, July 9, 1997]



Sec. 1852.242-71  Travel outside of the United States.

    As prescribed in 1842.7002, insert the following clause:

             Travel Outside of the United States (DEC 1988)

    (a) The Contracting Officer must authorize in advance and in writing 
travel to locations outside of the United States by Contractor employees 
that is to be charged as a cost to this contract. This approval may be 
granted when the travel is necessary to the efforts required under the 
contract and it is otherwise in the best interest of NASA.
    (b) The Contractor shall submit requests to the Contracting Officer 
at least 30 days in advance of the start of the travel.
    (c) The Contractor shall submit a travel report at the conclusion of 
the travel. The Contracting Officer's approval of the travel will 
specify the required contents and distribution of the travel report.

[[Page 436]]

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 29, 1990; 56 
FR 12460, Mar. 26, 1991]



Sec. 1852.242-72  Observance of legal holidays.

    As prescribed in 1842.7001(a), insert the following clause:

                 Observance of Legal Holidays (AUG 1992)

    (a) The on-site Government personnel observe the following holidays:

    New Year's Day
    Labor Day
    Martin Luther King, Jr.'s Birthday
    Columbus Day
    President's Birthday
    Veterans Day
    Memorial Day
    Thanksgiving Day
    Independence Day
    Christmas Day

    Any other day designated by Federal statute, Executive Order, or the 
President's proclamation.
    (b) When any holiday falls on a Saturday, the preceding Friday is 
observed. When any holiday falls on a Sunday, the following Monday is 
observed. Observance of such days by Government personnel shall not by 
itself be cause for an additional period of performance or entitlement 
of compensation except as set forth within the contract.

                             (End of clause)

    Alternate I (SEP 1989). As prescribed in 1842.7001(b), add the 
following paragraphs (c) and (d) as Alternate I to the clause.

    (c) On-site personnel assigned to this contract shall not be granted 
access to the installation during the holidays in paragraph (a) of the 
clause, except as follows: the Contractor shall provide sufficient on-
site personnel to perform round-the-clock requirements of critical work 
already in process, unless otherwise instructed by the Contracting 
Officer or authorized representative. If the Contractor's on-site 
personnel work during a holiday other than those in paragraph (a) of the 
clause, no form of holiday or other premium compensation shall be 
reimbursed as either a direct or indirect cost. However, this does not 
preclude reimbursement for authorized overtime work that would have been 
overtime regardless of the status of the day as a holiday.
    (d) The Contractor shall place identical requirements, including 
this paragraph, in all subcontracts that require performance of work on-
site, unless otherwise instructed by the Contracting Officer.

    Alternate II (OCT 2000). As prescribed in 1842.7001(c), add the 
following as paragraphs (e) and (f) if Alternate I is used, or as 
paragraphs (c) and (d) if Alternate I is not used. If added as 
paragraphs (c) and (d), amend the first sentence of paragraph (d) by 
deleting ``(e)'' and adding ``(c)'' in its place.

    (e) When the NASA installation grants administrative leave to its 
Government employees (e.g., as a result of inclement weather, 
potentially hazardous conditions, or other special circumstances), 
Contractor personnel working on-site should also be dismissed. However, 
the contractor shall provide sufficient onsite personnel to perform 
round-the-clock requirements of critical work already in process, unless 
otherwise instructed by the Contracting Officer or authorized 
representative.
    (f) Whenever administrative leave is granted to Contractor personnel 
pursuant to paragraph (e) of this clause, it shall be without loss to 
the Contractor. The cost of salaries and wages to the Contractor for the 
period of any such excused absence shall be a reimbursable item of cost 
under this contract for employees in accordance with the Contractor's 
established accounting policy.

[54 FR 39376, Sept. 26, 1989, as amended at 57 FR 40856, Sept. 8, 1992; 
62 FR 36735, July 9, 1997; 63 FR 32764, June 16, 1998; 65 FR 58932, Oct. 
3, 2000]



Sec. 1852.242-73  NASA contractor financial management reporting.

    As prescribed in 1842.7202, insert the following clause:

        NASA Contractor Financial Management Reporting (JUL 2000)

    (a) The Contractor shall submit NASA Contractor Financial Management 
Reports on NASA Forms 533 in accordance with the instructions in NASA 
Procedures and Guidelines (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

[[Page 437]]

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)

[62 FR 36735, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 65 
FR 46628, July 31, 2000]



Sec. 1852.242-74  Notice of Earned Value Management System.

    As prescribed in 1842.7402(a)(1), insert the following provision:

           Notice of Earned Value Management System (MAR 1999)

    (a) The offeror shall provide documentation that the 
cognizantAdministrative Contracting Officer (ACO) has recognized that:
    (1) The proposed earned value management system (EVMS) complies with 
the EVMS criteria of NASA Policy Directive (NPD) 9501.3, Earned Value 
Management, or DoD 5000.2-R, Mandatory Procedures for Major Defense 
Acquisition Programs and Major Automated Information Systems Acquisition 
Programs; or
    (2) The company EVM system conforms with the full intentions of the 
guidelines presented in ANSI/EIA Standard 748, Industry Guidelines for 
Earned Value Management Systems.
    (b) If the offeror proposes to use a system that does not meet the 
requirements of paragraph (a) of this provision, the successful offeror 
shall submit a plan for compliance with the NASA EVM criteria as 
described in NPD 9501.3.
    (1) The plan shall--
    (i) Describe the EVMS the offeror intends to use in performance of 
the contract;
    (ii) Distinguish between the offeror's existing management system 
and modifications proposed to meet the criteria;
    (iii) Describe the management system and its application in terms of 
the criteria;
    (iv) Describe the proposed procedure for administration of the 
criteria as applied to subcontractors; and
    (v) Provide documentation describing the process and results of any 
third-party or self-evaluation of the system's compliance with EVMS 
criteria.
    (2) The Government will review the offeror's plan for EVMS before 
contract award. The offeror shall provide information and assistance as 
required by the Contracting Officer to support review of the plan.
    (c) Offerors shall identify in their proposals the major 
subcontractors, or major subcontracted efforts if major subcontractors 
have not been selected, planned for application of EVMS. The prime 
contractor and the Government shall agree to subcontractors selected for 
application of EVMS.

                           (End of provision)

[64 FR 10574, Mar. 5, 1999]



Sec. 1852.242-75  Earned Value Management Systems.

    As prescribed at 1842.7402(a)(2), insert the following clause:

                Earned Value Management System (MAR 1999)

    (a) In the performance of this contract, the Contractor shall use:
    (1) An earned value management system (EVMS) that has been 
recognized by the cognizant Administrative Contracting Officer (ACO) as 
complying with the criteria provided in NASA Policy Directive 9501.3, 
Earned Value Management, or DoD 5000.2-R, Mandatory Procedures for Major 
Defense Acquisition Programs and Major Automated Information Systems 
Acquisition Programs; or
    (2) A company EVMS that the ACO has recognized as conforming with 
the full intentions of the guidelines presented in ANSI/EIA Standard 
748, Industry Guidelines for Earned Value Management Systems.
    (b) If, at the time of award, the Contractor's EVMS has not been 
recognized by the cognizant ACO per paragraph (a) of this clause or the 
Contractor does not have an existing cost schedule control system (C/
SCS) that has been accepted by the Government, the Contractor shall 
apply the Contractor's EVMS to the contract and be prepared to 
demonstrate to the ACO that its system complies with the EVMS criteria 
referenced in paragraph (a) of this clause.
    (c) The Government may require integrated baseline reviews. Such 
reviews shall be scheduled as early as practicable and should be 
conducted within 180 calendar days after contract award, exercise of 
significant contract options, or incorporation of major

[[Page 438]]

contract modifications. The objective of the integrated baseline review 
is for the Government and the Contractor to jointly assess areas, such 
as the Contractor's planning, to ensure complete coverage of the 
statement of work, logical scheduling of the work activities, adequate 
resourcing, and identification of inherent risks.
    (d) Unless a waiver is granted by the ACO, Contractor proposed EVMS 
changes require approval of the ACO prior to implementation.
    The ACO shall advise the Contractor of the acceptability of such 
changes within 30 calendar days after receipt of the notice of proposed 
changes from the Contractor. If the advance approval requirements are 
waived by the ACO, the Contractor shall disclose EVMS changes to the ACO 
and provide an information copy to the NASA Contracting Officer at least 
14 calendar days prior to the effective date of implementation.
    (e) The Contractor agrees to provide access to all pertinent records 
and data requested by the ACO or a duly authorized representative. 
Access is to permit Government surveillance to ensure that the EVMS 
complies, and continues to comply, with the criteria referenced in 
paragraph (a) of this clause.
    (f) The Contractor shall require the subcontractors specified below 
to comply with the requirements of this clause: (Insert list of 
applicable subcontractors)

                             (End of clause)

[64 FR 10575, Mar. 5, 1999]



Sec. 1852.242-76  Modified Cost Performance Report.

    As prescribed in 1842.7402(b), insert the following clause:

               Modified Cost Performance Report (MAR 1999)

    (a) The Contractor shall use management procedures in the 
performance of this contract that provide for:
    (1) Planning and control of costs;
    (2) Measurement of performance (value for completed tasks); and
    (3) Generation of timely and reliable information for the Modified 
Cost Performance Report (M/CPR).
    (b) As a minimum, these procedures must provide for:
    (1) Establishing the time-phase budgeted cost of work scheduled 
(including work authorization, budgeting, and scheduling), the budgeted 
cost for work performed, the actual cost of work performed, the budget 
at completion, the estimate at completion, and provisions for 
subcontractor performance measurement and reporting;
    (2) Applying all direct and indirect costs and provisions for use 
and control of management reserve and undistributed budget;
    (3) Incorporating changes to the contract budget base for both 
Government directed changes and internal replanning;
    (4) Establishing constraints to preclude subjective adjustment of 
data to ensure performance measurement remains realistic. The total 
allocated budget may exceed the contract budget base only after 
consultation with the Contracting Officer. For cost-reimbursement 
contracts, the contract budget base shall exclude changes for cost 
growth increases, other than for authorized changes to the contract 
scope; and
    (5) Establishing the capability to accurately identify and explain 
significant cost and schedule variances, both on a cumulative basis and 
a projected-at-completion basis.
    (c) The Contractor may use a cost/schedule control system that has 
been recognized by the cognizant Administrative Contracting Officer 
(ACO) as:
    (1) Complying with the earned value management system criteria 
provided in NASA Policy Directive 9501.3, Earned Value Management, or 
DoD 5000.2-R, Mandatory Procedures for Major Defense Acquisition 
Programs and Major Automated Information Systems Acquisition Programs; 
or
    (2) Conforming with the full intentions of the guidelines presented 
in ANSI/EIA Standard 748, Industry Guidelines for Earned Value 
Management Systems.
    (d) The Government may require integrated baseline reviews. Such 
reviews shall be scheduled as early as practicable and should be 
conducted within 180 calendar days after contract award, exercise of 
significant contract options, or incorporation of major modifications. 
The objective of the integrated baseline review is for the Government 
and the Contractor to jointly assess areas, such as the Contractor's 
planning, to ensure complete coverage of the statement of work, logical 
scheduling of the work activities, adequate resourcing, and 
identification of inherent risks.
    (e) The Contractor shall provide access to all pertinent records, 
company procedures, and data requested by the ACO, or authorized 
representative, to:
    (1) Show proper implementation of the procedures generating the cost 
and schedule information being used to satisfy the M/CPR contractual 
data requirements to the Government; and
    (2) Ensure continuing application of the accepted company procedures 
in satisfying the M/CPR data item.
    (f) The Contractor shall submit any substantive changes to the 
procedures and their impact to the ACO for review.
    (g) The Contractor shall require a subcontractor to furnish M/CPR in 
each case where

[[Page 439]]

the subcontract is other than firm-fixed-price, time-and-materials, or 
labor-hour; is 12 months or more in duration; and has critical or 
significant tasks related to the prime contract. Critical or significant 
tasks shall be defined by mutual agreement between the Government and 
Contractor. Each subcontractor's reported cost and schedule information 
shall be incorporated into the Contractor's M/CPR.

                             (End of clause)

[64 FR 10575, Mar. 5, 1999]



Sec. 1852.242-77  Modified Cost Performance Report Plans.

    As prescribed in 1842.7402(c), insert the following provision;

               Modified Cost Performance Plans (MAR 1999)

    (a) The offeror shall submit in its proposal a written summary of 
the management procedures it will establish, maintain, and use in the 
performance of any resultant contract to comply with the requirements of 
the clause at 1852.242-76, Modified Cost Performance Report.
    (b) The offeror may propose to use a cost/schedule control system 
that has been recognized by the cognizant Administrative Contracting 
Officer as:
    (1) Complying with the earned value management system criteria of 
NASA Policy Directive 9501.3, Earned Value Management, or DoD 5000.2-R, 
Mandatory Procedures for Major Defense Acquisition Programs and Major 
Automated Information Systems Acquisition Programs; or
    (2) Conforming with the full intentions of the guidelines presented 
in ANSI/EIA Standard 748, Industry Guidelines for Earned Value 
Management Systems. In such cases, the offeror may submit a copy of the 
documentation of such recognition instead of the written summary 
required by paragraph (a) of this provision.

                           (End of provision)

[64 FR 10575, Mar. 5, 1999]



Sec. 1852.242-78  Emergency Medical Services and Evacuation.

    As prescribed in 1842.7003, insert the following clause:

          Emergency Medical Services and Evacuation--April 2001

    The Contractor shall, at its own expense, be responsible for making 
all arrangements for emergency medical services and evacuation, if 
required, for its employees while performing work under this contract 
outside the United States or in remote locations in the United States. 
If necessary to deal with certain emergencies, the Contractor may 
request the Government to provide medical or evacuation services. If the 
Government provides such services, the Contractor shall reimburse the 
Government for the costs incurred.

                             (End of clause)

[66 FR 18054, Apr. 5, 2001]



Sec. 1852.243-70  Engineering change proposals.

    As prescribed in 1843.205-70(a)(1), insert the following clause, 
modified to suit contract type:

                 Engineering Change Proposals (FEB 1998)

    (a) Definitions.
    ``ECP'' means an Engineering Change Proposal (ECP) which is a 
proposed engineering change and the documentation by which the change is 
described, justified, and submitted to the procuring activity for 
approval or disapproval.
    (b) Either party to the contract may originate ECPs. Implementation 
of an approved ECP may occur by either a supplemental agreement or, if 
appropriate, as a written change order to the contract
    (c) Any ECP submitted to the Contracting Officer shall include a 
``not-to-exceed'' ------ [price or estimated cost] increase or decrease 
adjustment amount, if any, and the required [time of delivery or period 
of performance] adjustment, if any, acceptable to the originator of the 
ECP. If the change is originated within the Government, the Contracting 
Officer shall obtain a written agreement with the Contractor regarding 
the ``not-to-exceed'' ------ [price or estimated cost] and [delivery or 
period of performance] adjustments, if any, prior to issuing an order 
for implementation of the change.
    (d) After submission of a Contractor initiated ECP, the Contracting 
Officer may require the Contractor to submit the following information:
    (1) Cost or pricing data in accordance with FAR 15.403-5 if the 
proposed change meets the criteria for its submission under FAR 15.403-
4; or

[[Page 440]]

    (2) Information other than cost or pricing data adequate for 
Contracting Officer determination of price reasonableness or cost 
realism. The Contracting Officer reserves the right to request 
additional information if that provided by the Contractor is considered 
inadequate for that purpose. If the Contractor claims applicability of 
one of the exceptions to submission of cost or pricing data, it shall 
cite the exception and provide rationale for its applicability.
    (e) If the ECP is initiated by NASA, the Contracting Officer shall 
specify the cost information requirements, if any.

                             (End of clause)

    Alternate I (JUL 1997). As prescribed in 1843.205-70(a)(2), 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].

    Alternate II (SEPT 1990). As prescribed in 1843.205-70(a)(3), add 
the following sentence at the end of paragraph (c) of the basic clause:

    An ECP accepted in accordance with the Changes clause of this 
contract shall not be considered an authorization to the Contractor to 
exceed the estimated cost in the contract Schedule, unless the estimated 
cost is increased by the change order or other contract modification.

[62 FR 14033, Mar. 25, 1997, as amended at 62 FR 36735, July 9, 1997; 62 
FR 40309, July 28, 1997; 63 FR 9966, Feb. 27, 1998; 63 FR 11480, Mar. 9, 
1998; 63 FR 17339, Apr. 9, 1998]



Sec. 1852.243-71  Shared savings.

    As prescribed in 1843.7102, insert the following clause:

                        Shared Savings (MAR 1997)

    (a) The Contractor is entitled, under the provisions of this clause, 
to share in cost savings resulting from the implementation of cost 
reduction projects which are presented to the Government in the form of 
Cost Reduction Proposals (CRP) and approved by the Contracting Officer. 
These cost reduction projects may require changes to the terms, 
conditions or statement of work of this contract. Any cost reduction 
projects must not change the essential function of any products to be 
delivered or the essential purpose of services to be provided under the 
contract.
    (b) Definitions:
    (1) Cost savings, as contemplated by this clause mean savings that 
result from instituting changes to the covered contract, as identified 
in an approved Cost Reduction Proposal.
    (2) Cost Reduction Proposal--For the purposes of this clause, a Cost 
Reduction Proposal means a proposal that recommends alternatives to the 
established procedures and/or organizational support of a contract or 
group of contracts. These alternatives must result in a net reduction of 
contract cost and price to NASA. The proposal will include technical and 
cost information sufficient to enable the Contracting Officer to 
evaluate the CRP and approve or disapprove it.
    (3) Covered contract--As used in this provision, covered contract 
means the contract, including unexercised options but excluding future 
contracts, whether contemplated or not, against which the CRP is 
submitted.
    (4) Contractor implementation costs--As used in this provision, 
Contractor implementation costs, or ``implementation costs'', shall mean 
those costs which the Contractor incurs on covered contracts 
specifically in developing, preparing, submitting, and negotiating a 
CRP, as well as those costs the Contractor will incur on covered 
contracts to make any structural or organizational changes in order to 
implement an approved CRP.
    (5) Government costs--As used in this provision, the term Government 
costs means internal costs of NASA, or any other Government agency, 
which result directly from development and implementation of the CRP. 
These may include, but are not limited to, costs associated with the 
administration of the contract or with such contractually related 
functions such as testing, operations, maintenance and logistics 
support. These costs also include costs associated with other Agency 
contracts (including changes in contract price or cost and fee) that may 
be affected as a result of the implementation of a CRP. They do not 
include the normal administrative costs of reviewing and processing the 
Cost Reduction Proposal.
    (c) General. The Contractor will develop, prepare and submit CRP's 
with supporting information as detailed in paragraph (e) of this clause, 
to the Contracting Officer. The CRP will describe the proposed cost 
reduction activity in sufficient detail to enable the Contracting 
Officer to evaluate it and to approve or disapprove it. The Contractor 
shall share in any net cost savings realized from approved and 
implemented CRPs in accordance with the terms of this clause. The 
Contractor's actual percentage share of the cost savings shall be a 
matter for negotiation with the Contracting Officer, but shall not, in 
any event, exceed 50 percent of the

[[Page 441]]

total cost savings recognized by the Contracting Officer. The Contractor 
may propose changes in other activities that impact performance on its 
contract, including Government and other Contractor operations, if such 
changes will optimize cost savings. A Contractor shall not be entitled 
to share, however, in any cost savings that are internal to the 
Government, or which result from changes made to any contracts to which 
it is not a party even if those changes were proposed as a part of its 
CRP. Early communication between the Contractor and Government is 
encouraged. The communication may be in the form of a concept paper or 
preliminary proposal. The Government is not committed to accepting any 
proposal as a result of these early discussions.
    (d) Computation of cost savings. The cost savings to be shared 
between the Government and the Contractor will be computed by the 
Contracting Officer by comparing a current estimate to complete (ETC) 
for the covered contract, as structured before implementation of the 
proposed CRP, to a revised ETC which takes into account the 
implementation of that CRP. The cost savings to be shared shall be 
reduced by any cost overrun, whether experienced or projected, that is 
identified on the covered contract before implementation of the CRP. 
Although a CRP may result in cost savings that extend far into the 
future, the period in which the Contractor may share in those savings 
will be limited to no more than five years. Implementation costs of the 
Contractor must be considered and specifically identified in the revised 
ETC. The Contracting Officer shall offset Contractor cost savings by any 
increased costs (whether implementing or recurring) to the Government 
when computing the total cost savings to be shared. The Contractor shall 
not be entitled, under the provisions of this clause, to share in any 
cost reductions to the contract that are the result of changes stemming 
from any action other than an approved CRP. However, this clause does 
not limit recovery of any such reimbursements that are allowed as a 
result of other contract provisions.
    (e) Supporting Information. As a minimum, the Contractor shall 
provide the following supporting information with each CRP:
    (1) Identification of the current contract requirements or 
established procedures and/or organizational support which are proposed 
to be changed.
    (2) A description of the difference between the current process or 
procedure and the proposed change. This description shall address how 
proposed changes will meet NASA requirements and discuss the advantages 
and disadvantages of the existing practice and the proposed changes.
    (3) A list of contract requirements which must be revised, if any, 
if the CRP is approved, along with proposed revisions. Any changes to 
NASA or delegated contract management processes should also be 
addressed.
    (4) Detailed cost estimates which reflect the implementation costs 
of the CRP.
    (5) An updated ETC for the covered contract, unchanged, and a 
revised ETC for the covered contract which reflects changes resulting 
from implementing the CRP. If the CRP proposes changes to only a limited 
number of elements of the contract, the ETCs need only address those 
portions of the contract that have been impacted. Each ETC shall depict 
the level of costs incurred or to be incurred by year, or to the level 
of detail required by the Contracting Officer. If other CRPs have been 
proposed or approved on a contract, the impact of these CRPs must be 
addressed in the computation of the cost savings to ensure that the cost 
savings identified are attributable only to the CRP under consideration 
in the instant case.
    (6) Identification of any other previous submissions of the CRP, 
including the dates submitted, the agencies and contracts involved, and 
the disposition of those submittals.
    (f) Administration.
    (1) The Contractor shall submit proposed CRPs to the Contracting 
Officer who shall be responsible for the review, evaluation and 
approval. Normally, CRP's should not be entertained for the first year 
of performance to allow the Contracting Officer to assess performance 
against the basic requirements. If a cost reduction project impacts more 
than a single contract, the Contractor may, upon concurrence of the 
Contracting Officers responsible for the affected contracts, submit a 
single CRP which addresses fully the cost savings projected on all 
affected contracts that contain this Shared Savings Clause. In the case 
of multiple contracts affected, responsibility for the review and 
approval of the CRP will be a matter to be decided by the affected 
Contracting Officers.
    (2) Within 60 days of receipt, the Contracting Officer shall 
complete an initial evaluation of any proposed cost reduction plan to 
determine its feasibility. Failure of the Contracting Officer to provide 
a response within 60 days shall not be construed as approval of the CRP. 
The Government shall promptly notify the Contractor of the results of 
its initial evaluation and indicate what, if any, further action will be 
taken. If the Government determines that the proposed CRP has merit, it 
will open discussions with the Contractor to establish the cost savings 
to be recognized, the Contractor's share of the cost savings, and a 
payment schedule. The Contractor shall continue to perform in accordance 
with the terms and conditions of the existing contract until a contract 
modification is executed by the Contracting Officer. The modification 
shall

[[Page 442]]

constitute approval of the CRP and shall incorporate the changes 
identified by the CRP, adjust the contract cost and/or price, establish 
the Contractor's share of cost savings, and incorporate the agreed to 
payment schedule.
    (3) The Contractor will receive payment by submitting invoices to 
the Contracting Officer for approval. The amount and timing of 
individual payments will be made in accordance with the schedule to be 
established with the Contracting Officer. Notwithstanding the overall 
savings recognized by the Contracting Officer as a result of an approved 
CRP, payment of any portion of the Contractor's share of savings shall 
not be made until NASA begins to realize a net cost savings on the 
contract (i.e., implementation, startup and other increased costs 
resulting from the change have been offset by cumulative cost savings). 
Savings associated with unexercised options will not be paid unless and 
until the contract options are exercised. It shall be the responsibility 
of the Contractor to provide such justification as the Contracting 
Officer deems necessary to substantiate that cost savings are being 
achieved.
    (4) Any future activity, including a merger or acquisition 
undertaken by the Contractor (or to which the Contractor becomes an 
involved party), which has the effect of reducing or reversing the cost 
savings realized from an approved CRP for which the Contractor has 
received payment may be cause for recomputing the net cost savings 
associated with any approved CRP. The Government reserves the right to 
make an adjustment to the Contractor's share of cost savings and to 
receive a refund of moneys paid if necessary. Such adjustment shall not 
be made without notifying the Contractor in advance of the intended 
action and affording the Contractor an opportunity for discussion.
    (g) Limitations. Contract requirements that are imposed by statute 
shall not be targeted for cost reduction exercises. The Contractor is 
precluded from receiving reimbursements under both this clause and other 
incentive provisions of the contract, if any, for the same cost 
reductions.
    (h) Disapproval of, or failure to approve, any proposed cost 
reduction proposal shall not be considered a dispute subject to remedies 
under the Disputes clause.
    (i) Cost savings paid to the Contractor in accordance with the 
provisions of this clause do not constitute profit or fee within the 
limitations imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 254(b).

                             (End of clause)

[62 FR 14033, Mar. 25, 1997]



Sec. 1852.243-72  Equitable adjustments.

    As prescribed in 1843.205-70(b), insert the following clause.

                    Equitable Adjustments (APR 1998)

    (a) The provisions of all other clauses contained in this contract 
which provide for an equitable adjustment, including those clauses 
incorporated by reference with the exception of the ``Suspension of 
Work'' clause (FAR 52.242-14), are supplemented as follows:
    Upon written request, the Contractor shall submit a proposal for 
review by the Government. The proposal shall be submitted to the 
contracting officer within the time limit indicated in the request or 
any extension thereto subsequently granted. The proposal shall provide 
an itemized breakdown of all increases and decreases in the contract for 
the Contractor and each subcontractor in at least the following detail: 
material quantities and costs; direct labor hours and rates for each 
trade; the associated FICA, FUTA, SUTA, and Workmen's Compensation 
Insurance; and equipment hours and rates.
    (b) The overhead percentage cited below shall be considered to 
include all indirect costs including, but not limited to, field and 
office supervisors and assistants, incidental job burdens, small tools, 
and general overhead allocations. ``Commission'' is defined as profit on 
work performed by others. The percentages for overhead, profit, and 
commission are negotiable according to the nature, extent, and 
complexity of the work involved, but in no case shall they exceed the 
following ceilings:

----------------------------------------------------------------------------------------------------------------
                                                                             Overhead      Profit
                                                                            (percent)    (percent)    Commission
----------------------------------------------------------------------------------------------------------------
To Contractor on work performed by other than its own forces.............        -----        -----           10
To first tier subcontractor on work performed by its subcontractors......        -----        -----           10
To Contractor and/or subcontractors on work performed with their own                10           10        -----
 forces..................................................................
----------------------------------------------------------------------------------------------------------------

    (c) Not more than four percentages for overhead, profit, and 
commission shall be allowed regardless of the number of subcontractor 
tiers.
    (d) The Contractor or subcontractor shall not be allowed overhead or 
commission on the overhead, profit, and/or commission received by its 
subcontractors.

[[Page 443]]

    (e) Equitable adjustments for deleted work shall include credits, 
limited to the same percentages for overhead, profit, and commission in 
paragraph (b) of this clause.
    (f) On proposals covering both increases and decreases in the amount 
of the contract, the application of the overhead, profit, and commission 
shall be on the net change in direct costs for the Contractor or the 
subcontractor performing the work.
    (g) After receipt of the Contractor's proposal, the contracting 
officer shall act within a reasonable period, provided that when the 
necessity to proceed with a change does not permit time to properly 
check the proposal, or in the event of a failure to reach an agreement 
on a proposal, the contracting officer may order the Contractor to 
proceed on the basis of the price being determined at the earliest 
practicable date. In such a case, the price shall not be more than the 
increase or less than the decrease proposed.

                             (End of clause)

[63 FR 17339, Apr. 9, 1998]



Sec. 1852.244-70  Geographic participation in the aerospace program.

    As prescribed in 1844.204-70, insert the following clause:

      Geographic Participation in the Aerospace Program (APR 1985)

    (a) It is the policy of the National Aeronautics and Space 
Administration to advance a broad participation by all geographic 
regions in filling the scientific, technical, research and development, 
and other needs of the aerospace program.
    (b) The Contractor agrees to use its best efforts to solicit 
subcontract sources on the broadest feasible geographic basis consistent 
with efficient contract performance and without impairment of program 
effectiveness or increase in program cost.
    (c) The Contractor further agrees to insert this clause in all 
subcontracts of $100,000 and over.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 14034, Mar. 25, 1997]



Sec. 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 (JUL 1997)

    (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)

[62 FR 36735, July 9, 1997; 62 FR 40309, July 28, 1997]



Sec. 1852.245-71  Installation-accountable Government property.

    As prescribed in 1845.106-70(b), insert the following clause:

         Installation-Accountable Government Property (JUN 1998)

    (a) The Government property described in the clause at 1852.245-77, 
List of Installation-Accountable Property and Services, shall be made 
available to the contractor on a no-charge basis for use in performance 
of this

[[Page 444]]

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 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 (MAR 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.

[62 FR 36735, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 63 
FR 32764, June 16, 1998]



Sec. 1852.245-72  Liability for Government property furnished for repair 
          or other services.

    As prescribed in 1845.106-70(c), insert the following clause:

Liability for Government Property Furnished for Repair or Other Services 
                               (MAR 1989)

    (a) This clause shall govern with respect to any Government property 
furnished to the Contractor for repair or other services that is to be 
returned to the Government. Such property, hereinafter referred to as 
``Government property furnished for servicing,'' shall not be subject to 
any clause of this contract entitled Government-Furnished Property or 
Government Property.
    (b) The official accountable recordkeeping and financial control and 
reporting of the property subject to this clause shall be retained by 
the Government. The Contractor shall maintain adequate records and 
procedures to ensure that the Government property furnished for 
servicing can be readily accounted for and identified at all times while 
in its custody or possession or in the custody or possession of any 
subcontractor.
    (c) The Contractor shall be liable for any loss or destruction of or 
damage to the Government property furnished for servicing: (1) Caused by 
the Contractor's failure to exercise such care and diligence as a 
reasonable prudent owner of similar property would exercise under 
similar circumstances, or (2) sustained while the property is being 
worked upon and directly resulting from that work, including, but not 
limited to, any repairing, adjusting, inspecting, servicing, or 
maintenance operation. The Contractor shall not be liable for loss or 
destruction of or damage to Government property furnished for servicing 
resulting from any other cause except to the extent that the loss, 
destruction, or damage is covered by insurance (including self-insurance 
funds or reserves).
    (d) In addition to any insurance (including self-insurance funds or 
reserves) carried by

[[Page 445]]

the Contractor and in effect on the date of this contract affording 
protection in whole or in part against loss or destruction of or damage 
to such Government property furnished for servicing, the amount and 
coverage of which the Contractor agrees to maintain, the Contractor 
further agrees to obtain any additional insurance covering such loss, 
destruction, or damage that the Contracting Officer may from time to 
time require. The requirements for this additional insurance shall be 
effected under the procedures established by the FAR 52.243 changes 
clause of this contract.
    (e) The Contractor shall hold the Government harmless and shall 
indemnify the Government against all claims for injury to persons or 
damage to property of the Contractor or others arising from the 
Contractor's possession or use of the Government property furnished for 
servicing or arising from the presence of that property on the 
Contractor's premises or property.

                             (End of clause)



Sec. 1852.245-73  Financial reporting of NASA property in the custody of 
          contractors.

    As prescribed in 1845.106-70(d), insert the following clause:

Financial Reporting of NASA Property in the Custody of Contractors (AUG 
                                  2001)

    (a) The Contractor shall submit annually a NASA Form (NF) 1018, NASA 
Property in the Custody of Contractors, in accordance with the 
provisions of 1845.505-14, the instructions on the form, subpart 
1845.71, and any supplemental instructions for the current reporting 
period issued by NASA.
    (b)(1) Subcontractor use of NF 1018 is not required by this clause; 
however, the Contractor shall include data on property in the possession 
of subcontractors in the annual NF 1018.
    (2) The Contractor shall mail the original signed NF 1018 directly 
to the cognizant NASA Center Deputy Chief Financial Officer, Finance, 
unless the Contractor uses the NF 1018 Electronic Submission System 
(NESS) for report preparation and submission.
    (3) One copy shall be submitted (through the Department of Defense 
(DOD) Property Administrator if contract administration has been 
delegated to DOD) to the following address: [Insert name and address of 
appropriate NASA Center office.], unless the Contractor uses the NF 1018 
Electronic Submission System (NESS) for report preparation and 
submission.
    (c) The annual reporting period shall be from October 1 of each year 
through September 30 of the following year. The report shall be 
submitted in time to be received by October 31. The information 
contained in these reports is entered into the NASA accounting system to 
reflect current asset values for agency financial statement purposes. 
Therefore, it is essential that required reports be received no later 
than October 31. The Contracting Officer may, in NASA's interest, 
withhold payment until a reserve not exceeding $25,000 or 5 percent of 
the amount of the contract, whichever is less, has been set aside, if 
the Contractor fails to submit annual NF 1018 reports in accordance with 
1845.505-14 and any supplemental instructions for the current reporting 
period issued by NASA. Such reserve shall be withheld until the 
Contracting Officer has determined that the required reports have been 
received by NASA. The withholding of any amount or the subsequent 
payment thereof shall not be construed as a waiver of any Government 
right.
    (d) A final report shall be submitted within 30 days after 
disposition of all property subject to reporting when the contract 
performance period is complete in accordance with (b)(1) through (3) of 
this clause.

                             (End of clause)

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



Sec. 1852.245-74  Contractor accountable on-site Government property.

    As prescribed in 1845.106-70(e), insert the following clause:

      Contractor Accountable On-Site Government Property (MAR 1989)

    (a) In performance of work under this contract, certain Government 
property identified in the contract shall be provided to the Contractor 
on a no-charge-for-use basis by the installation's Supply and Equipment 
Management Officer. That property shall be utilized in the performance 
of this contract at the installation that provided the property or at 
such other installations or locations as may be specified elsewhere in 
this contract. The Contractor assumes accountability and user 
responsibilities for the property.
    (b) Government property provided shall in every respect be subject 
to the provisions of the FAR 52.245 Government property clause of this 
contract. In addition, the contractor is responsible for managing this 
property in accordance with the guidelines provided by the 
installation's Supply and Equipment Management Officer or any other 
formally designated representatives of the Contracting Officer. The 
guidelines include but are not limited to requiring the Contractor to--
    (1) Use economic order quantity (EOQ) methods for routine stock 
replenishment;
    (2) Utilize the Federal Cataloging System;

[[Page 446]]

    (3) Comply with shelf-life requirements;
    (4) Provide for accountability and control (using the NASA Equipment 
Management System (NEMS)) of all equipment costing $1000 and over, plus 
that equipment designated as ``sensitive'';
    (5) Provide for physical inventory of all controlled equipment at 
least every 3 years;
    (6) Provide for sample inventories of materials plus complete 
inventories every 5 years;
    (7) Conduct walk-through utilization inspections;
    (8) Screen NEMS before acquiring any equipment costing $1000 or 
over, plus equipment designated by the installation as sensitive and 
costing $500 and over;
    (9) Support the Equipment Acquisition Document (EAD) process; and
    (10) Use Government sources as the first source of supply.
    (c) Data requirements relating to the guidelines in paragraph (b) of 
this clause are specified under section F, Deliveries or performance.

                             (End of clause)



Sec. 1852.245-75  Title to equipment.

    As prescribed in 1845.106-70(f), insert the following clause:

                      Title to Equipment (MAR 1989)

    (a) In accordance with the FAR 52.245 Government property clause of 
this contract, title to equipment and other tangible personal property 
acquired by the Contractor with funds provided for conducting research 
under this contract and having an acquisition cost less than $-------- 
[Insert a dollar value not less than $5,000] shall vest in the 
Contractor upon acquisition, provided that the Contractor has complied 
with the requirements of the FAR 52.245 Government property clause.
    (b) Upon completion or termination of this contract, the Contractor 
shall submit to the Contracting Officer a list of all equipment with an 
acquisition cost of $-------- [Insert the dollar value specified in 
paragraph (a)] or more acquired under the contract during the contract 
period. The list shall include a description, manufacturer and model 
number, date acquired, cost, and condition information, and shall be 
submitted within 30 calendar days after completion or termination of the 
contract, in accordance with Federal Acquisition Regulation subsection 
45.606-5.
    (c) Title to the property specified in paragraph (b) of this clause 
vests in the Contractor, but the Government retains the right to direct 
transfer of title to property specified in paragraph (b) of this clause 
to the Government or to a third party within 180 calendar days after 
completion or termination of the contract. Such transfer shall not be 
the basis for any claim by the Contractor.
    (d) Title to all Government-furnished property remains vested with 
the Government (see the FAR 52.245 Government property clause).
    (e) Title to the contractor-acquired property listed below shall 
vest with the Government.
    [List any contractor-acquired property for which vesting of title 
with the Government is appropriate or insert ``None''].

                             (End of clause)



Sec. 1852.245-76  List of Government-furnished property.

    As prescribed in 1845.106-70(g), insert the following clause:

            List of Government-furnished Property (OCT 1988)

    For performance of work under this contract, the Government will 
make available Government property identified below or in Attachment --
------ [Insert attachment number or ``not applicable''] of this contract 
on a no-charge-for-use basis. The Contractor shall use this property in 
the performance of this contract at --------[Insert applicable site(s) 
where property will be used] and at other location(s) as may be approved 
by the Contracting Officer. Under the FAR 52.245 Government property 
clause of this contract, the Contractor is accountable for the 
identified property.

------------------------------------------------------------------------
                                                              Date to be
                                                Acquisition   furnished
               Item                  Quantity       cost        to the
                                                              contractor
------------------------------------------------------------------------
                                    ..........  ...........  ...........
                                    ..........  ...........  ...........
                                    ..........  ...........  ...........
------------------------------------------------------------------------

    [Insert a description of the item(s), quantity, acquisition cost, 
and date the property will be furnished to the Contractor]

                             (End of clause)



Sec. 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 (JUL 1997)

    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

[[Page 447]]

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)

[62 FR 36736, July 9, 1997; 62 FR 40309, July 28, 1997]



Sec. 1852.245-79  Use of Government-owned property.

    As prescribed in 1845.106-70(i), insert the following provision:

               Use of Government-Owned Property (JUL 1997)

    (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

[[Page 448]]

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)

[62 FR 36736, July 9, 1997; 62 FR 40309, July 28, 1997, as amended at 63 
FR 32764, June 16, 1998]



Sec. 1852.245-80  Use of Government production and research property on 
          a no-charge basis.

    As prescribed in 1845.106-70(k), insert the following clause:

Use of Government Production and Research Property on a No-Charge Basis 
                               (MAR 1989)

    In performing this contract, the Contractor is authorized to use on 
a no-charge, noninterference basis the Government-owned production and 
research property provided to the Contractor under the contract(s) 
specified below and identified in the cognizant Contracting Officer's 
letter approving use of the property. Use is authorized on the basis 
that it will not interfere with performance of the Government 
contract(s) under which the property was originally furnished. Use shall 
be in accordance with the terms and conditions of these contracts and 
the cognizant Contracting Officer's approval letter.
    Contract No(s): [Insert the contract number(s) under which the 
Government property is accountable].

                             (End of clause)



Sec. 1852.246-70  Mission Critical Space System Personnel Reliability 
          Program.

    As prescribed in 1846.370(a), insert the following clause:

 Mission Critical Space System Personnel Reliability Program (MAR 1997)

    (a) In implementation of the Mission Critical Space System Personnel 
Reliability Program, described in 14 CFR 1214.5, the Government shall 
identify personnel positions that are mission critical. Some of the 
positions as identified may now or in the future be held by employees of 
the Contractor. Upon notification by the Contracting Officer that a 
mission-critical position is being or will be filled by one or more of 
the Contractor's employees, the Contractor shall (1) provide the 
affected employees with a clear understanding of the investigative and 
medical requirements and, (2) to the extent permitted by applicable law, 
assist the Government by furnishing personal data and medical records.
    (b) The standard that will be used in certifying individuals for a 
mission-critical position is that they must be determined to be 
suitable, competent, and reliable in the performance of their assigned 
duties in accordance with the screening requirements 14 CFR 1214.5. If 
the Government determines that a Contractor employee occupying or 
nominated to occupy a mission-critical position will not be certified 
for such duty, the Contracting Officer shall (1) furnish to the employee 
the specific reasons for its action; (2) advise the employee that he/she 
may avail himself/herself of the review procedures that are a part of 
the certification system; and (3) furnish him/her a copy of those 
procedures upon request.
    (c) If a Contractor employee who has been nominated for (but has not 
yet filled) a mission-critical position is not certified, the Contractor 
agrees to defer the appointment to the position until the employee has 
had an opportunity to pursue the referenced procedures. If the employee 
is an incumbent to the position, the Contractor agrees, upon the request 
of the Government, to remove him/her from the position temporarily 
pending an appeal of the action under the review procedures. If any 
employee not certified elects not to take action under the procedures, 
or, if having taken action, is not successful in obtaining a reversal of 
the determination, the Contractor agrees not to appoint the employee to 
the position, or if already appointed, to promptly remove the employee.

                             (End of clause)

[62 FR 14034, Mar. 25, 1997]



Sec. 1852.246-71  Government contract quality assurance functions.

    As prescribed in 1846.470, insert the following clause:

       Government Contract Quality Assurance Functions (OCT 1988)

    In accordance with the inspection clause of this contract, the 
Government intends to perform the following functions at the locations 
indicated:

 
                                   Quality Assurance
              Item                     Function            Location
 
 
 

[Insert the items involving quality assurance, the quality assurance 
functions, and where the functions will be performed]

[[Page 449]]

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 55 FR 27090, June 19, 1990; 62 
FR 14035, Mar. 25, 1997]



Sec. 1852.246-72  Material inspection and receiving report.

    As prescribed in 1846.674, insert the following clause:

           Material Inspection and Receiving Report (JUN 1995)

    (a) At the time of each delivery to the Government under this 
contract, the Contractor shall furnish a Material Inspection and 
Receiving Report (DD Form 250 series) prepared in ---- [Insert number of 
copies, including original] copies, an original and ---- copies [Insert 
number of copies].

    (b) The Contractor shall prepare the DD Form 250 in accordance with 
NASA FAR Supplement 1846.672-1. The Contractor shall enclose the copies 
of the DD Form 250 in the package or seal them in a waterproof envelope, 
which shall be securely attached to the exterior of the package in the 
most protected location.
    (c) When more than one package is involved in a shipment, the 
Contractor shall list on the DD Form 250, as additional information, the 
quantity of packages and the package numbers. The Contractor shall 
forward the DD Form 250 with the lowest numbered package of the shipment 
and print the words ``CONTAINS DD FORM 250'' on the package.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 60 FR 40521, Aug. 9, 1995; 62 
FR 14035, Mar. 25, 1997]



Sec. 1852.246-73  Human space flight item.

    As prescribed in 1845.370(b), insert the following clause:

                   Human Space Flight Item (MAR 1997)

    The Contractor shall include the following statement in all 
subcontracts and purchase orders placed by it in support of this 
contract, without exception as to amount or subcontract level:
    ``FOR USE IN HUMAN SPACE FLIGHT; MATERIALS, MANUFACTURING, AND 
WORKMANSHIP OF HIGHEST QUALITY STANDARDS ARE ESSENTIAL TO ASTRONAUT 
SAFETY.
    IF YOU ARE ABLE TO SUPPLY THE DESIRED ITEM WITH A HIGHER QUALITY 
THAN THAT OF THE ITEMS SPECIFIED OR PROPOSED, YOU ARE REQUESTED TO BRING 
THIS FACT TO THE IMMEDIATE ATTENTION OF THE PURCHASER.''

                             (End of clause)

[62 FR 14035, Mar. 25, 1997]



Sec. 1852.247-71  Protection of the Florida manatee.

    As prescribed in 1847.7001, insert the following clause:

              Protection of the Florida Manatee (MAR 1989)

    (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 Banana and Indian Rivers within and adjacent 
to NASA's Kennedy Space Center (KSC) have been designated as a critical 
habitat of the Florida Manatee.
    (b) Contractor personnel involved in vessel operations, dockside 
work, and selected disassembly functions shall be provided training 
relative to (1) habits and characteristics of the Florida Manatee, (2) 
provisions of the applicable laws, (3) personal liability of workers 
under the laws, and (4) operational restrictions imposed by KSC.
    (c) All vessel operations shall be conducted within the posted speed 
restrictions, and vessels shall be operated at minimum controllable 
speeds in all KSC waters. Shallow-water operations are prohibited.
    (d) Training will be conducted by personnel of the U.S. Fish and 
Wildlife Service (USFWS). The contractor agrees to cooperate with the 
USFWS by allowing access at reasonable times and places (including 
shipboard) to USFWS personnel, and by making available such contractor 
personnel as are required to have the training. Arrangements for 
training will be made as follows:
    (1) For personnel involved in tug, barge, or marine operations, 
through the Lockheed Space Operations Contractor, Transportation 
Coordination Center, Kennedy Space Center, Florida, telephone (407) 867-
5330.
    (2) For all other personnel, through the Systems Training and 
Employee Development Branch, Code PM-TNG, telephone (407) 867-2737.
    (e) The contractor shall incorporate the provisions of this clause 
in applicable subcontracts (including vendor deliveries).

                             (End of clause)



Sec. 1852.247-72  Advance notice of shipment.

    As prescribed in 1847.305-70(a), insert the following clause:

[[Page 450]]

                  Advance Notice of Shipment (OCT 1988)

    ------[Insert number of work days] work days prior to shipping 
item(s)------[Insert items to be shipped], the Contractor shall furnish 
the anticipated shipment date, bill of lading number (if applicable), 
and carrier identity to --------[Insert individual(s) to receive 
notification] and to the Contracting Officer.

                             (End of clause)

[54 FR 28340, July 5, 1989, as amended at 62 FR 14035, Mar. 25, 1997]



Sec. 1852.247-73  Bills of Lading.

    As prescribed in 1847.305-70(b), insert a clause substantially as 
follows:

                       Bills of Lading (JUN 2002)

    The purpose of this clause is to define when a commercial bill of 
lading or a government bill of lading is to be used when shipments of 
deliverable items under this contract are f.o.b. origin.
    (a) Commercial Bills of Lading. All domestic shipments shall be made 
via commercial bills of lading (CBLs). The Contractor shall prepay 
domestic transportation charges. The Government shall reimburse the 
Contractor for these charges if they are added to the invoice as a 
separate line item supported by the paid freight receipts. If paid 
receipts in support of the invoice are not obtainable, a statement as 
described below must be completed, signed by an authorized company 
representative, and attached to the invoice.

``I certify that the shipments identified below have been made, 
transportation charges have been paid by (company name), and paid 
freight or comparable receipts are not obtainable.
    Contract or Order Number: ------
    Destination: ------''.

    (b) Government Bills of Lading. (1) International (export) and 
domestic overseas shipments of items deliverable under this contract 
shall be made by Government bills of lading (GBLs). As used in this 
clause, ``domestic overseas'' means non-continental United States, i.e. 
Hawaii, Commonwealth of Puerto Rico, and possessions of the United 
States.
    (2) At least 15 days before shipment, the Contractor shall request 
in writing GBLs from: ------ [Insert name, title, and mailing address of 
designated transportation officer or other official delegated 
responsibility for GBLs]. If time is limited, requests may be by 
telephone: ------ [Insert appropriate telephone number]. Requests for 
GBLs shall include the following information.
    (i) Item identification/ description.
    (ii) Origin and destination.
    (iii) Individual and total weights.
    (iv) Dimensional Weight.
    (v) Dimensions and total cubic footage.
    (vi) Total number of pieces.
    (vii) Total dollar value.
    (viii) Other pertinent data.
    (End of clause)

[67 FR 38908, June 6, 2002]



Sec. 1852.249-72  Termination (utilities).

    As prescribed in 1849.505-70, insert the following clause. The 
period of 30 days may be varied not to exceed 90 days.

                   Termination (Utilities) (MAR 1989)

    The Government, at its option, may terminate this contract by giving 
written notice not less than 30 days in advance of the termination's 
effective date.

                             (End of clause)

               Subpart 1852.3--Provision and Clause Matrix



Sec. 1852.300  Scope of subpart.

    The matrix in this subpart contains a column for each principal type 
and/or purpose of contract. See the first page of the matrix for the key 
to column headings, the dollar threshold chart, and requirement symbols.

[57 FR 40856, Sept. 8, 1992]



Sec. 1852.301  Solicitation provisions and contract clauses (Matrix).

                            PART 1853--FORMS

                         Subpart 1853.1--General

Sec.

Sec. 1853.100  Scope of subpart.

Sec. 1853.101  Requirements for use of forms.

Sec. 1853.103  Exceptions.

Sec. 1853.105  Computer generation.

Sec. 1853.107  Obtaining forms.

Sec. 1853.108  Recommendations concerning forms.

                  Subpart 1853.2--Prescription of Forms


Sec. 1853.200  Scope of subpart.

Sec. 1853.204  Administrative matters.

Sec. 1853.204-70  General (NASA Forms 507, 507A, 507B, 507G, 507M, 531, 
          533M, 533Q, 1098, 1356, 1611, 1612, and Department of Defense 
          Form 1593).

Sec. 1853.208  Required sources of supplies and services.

Sec. 1853.208-70  Other Government sources (Standard Form 1080, Air 
          force Form 858, Department of Energy Form CA-10-

[[Page 451]]

          90.COM, Nuclear Regulatory Commission Form 313).

Sec. 1853.215  Contracting by negotiation.

Sec. 1853.215-70  Price negotiation (NASA Form 634 and Department of 
          Defense Form 1861).

Sec. 1853.216  Types of contracts.

Sec. 1853.216-70  Assignees under cost-reimbursement contracts (NASA 
          Forms 778, 779, 780, and 781).

Sec. 1853.217  Special contracting methods (NASA Form 523).

Sec. 1853.225  Foreign Acquisition (Customs Form 7501).

Sec. 1853.232-70  Contract financing (Standard Forms 272, 272A).

Sec. 1853.242  Contract administration.

Sec. 1853.242-70  Delegation (NASA Forms 1430, 1430A, 1431, 1432, 1433, 
          and 1634) and service request (NASA Form 1434).

Sec. 1853.242-71  Notifications (NASA Form 456).

Sec. 1853.242-72  Evaluation of performance (NASA Form 1680).

Sec. 1853.245-70  Property (NASA Form 1018, Department of Defense Form 
          1419).

Sec. 1853.246  Quality assurance (Department of Defense Forms 250 and 
          250c).

Sec. 1853.249-70  Termination of contracts (NASA Forms 1412, 1413).

Sec. 1853.271  MidRange procurement procedures (NASA Forms 1667 and 
          1668).

                 Subpart 1853.3--Illustrations of Forms


Sec. 1853.300  Scope of subpart.

Sec. 1853.301  Standard forms.

Sec. 1853.303  Agency forms.

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

    Source: 62 FR 36737, July 9, 1997, unless otherwise noted.

                         Subpart 1853.1--General



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 1853.108  Recommendations concerning forms.

    Code HK is the office responsible for submitting form 
recommendations.

                  Subpart 1853.2--Prescription of Forms



Sec. 1853.200  Scope of subpart.

    This subpart summarizes the prescriptions of NASA forms and other 
forms adopted by NASA for use in acquisition.

[[Page 452]]



Sec. 1853.204  Administrative matters.



Sec. 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.



Sec. 1853.208  Required sources of supplies and services.



Sec. 1853.208-70  Other Government sources (Standard Form 1080, Air 
          force Form 858, Department of Energy Form CA-10-90.COM, 
          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) U.S. Department of Energy Isotope and Technical Service Order 
Form CA-10-90.COM. Prescribed in 1808.002-70(a).
    (d) Nuclear Regulatory Commission Form 313, Application for Material 
License. Prescribed in 1808.002-70(a).

[62 FR 36737, July 9, 1997, as amended at 64 FR 5621, Feb. 4, 1999]



Sec. 1853.215  Contracting by negotiation.



Sec. 1853.215-70  Price negotiation (NASA Form 634 and Department of 
          Defense Form 1861).

    (a) NASA Form 634, Structured Approach--Profit/Fee Objective. 
Prescribed in 1815.404-470.
    (b) DD Form 1861, Contract Facilities Capital Cost of Money. 
Prescribed in 1830.70, and instructions for completion are in 1830.7001-
2.

[62 FR 36737, July 9, 1997. Redesignated and amended at 63 FR 9966, Feb. 
27, 1998]



Sec. 1853.216  Types of contracts.



Sec. 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.



Sec. 1853.217  Special contracting methods (NASA Forms 523).

    NASA Form 523, NASA-Defense Purchase Request. Prescribed in 
1808.002-72(b) and 1817.7002.



Sec. 1853.225  Foreign Acquisition (Customs Form 7501).

    Customs Form 7501, Entry Summary. Prescribed in 1825.903 and 14 CFR 
1217.104.

[65 FR 10033, Feb. 25, 2000]

[[Page 453]]



Sec. 1853.232-70  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.

[62 FR 36737, July 9, 1997. Redesignated at 63 FR 9966, Feb. 27, 1998]



Sec. 1853.242  Contract administration.



Sec. 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 1815.404-2(a)(1)(D).

[62 FR 36737, July 9, 1997, as amended at 63 FR 9967, Feb. 27, 1998]



Sec. 1853.242-71  Notifications (NASA Form 456).

    NASA Form 456, Notice of Contract Costs Suspended and/or 
Disapproved. Prescribed in 1842.803(b)(2).



Sec. 1853.242-72   Evaluation of Performance (NASA Form 1680).

    NASA Form 1680, Evaluation of Performance. Prescribed in 1842.1503.

[63 FR 27860, May 21, 1998]



Sec. 1853.245-70  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.

[62 FR 36737, July 9, 1997. Redesignated at 63 FR 9966, Feb. 27, 1998]



Sec. 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.



Sec. 1853.249-70  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.

[62 FR 36737, July 9, 1997. Redesignated at 63 FR 9966, Feb. 27, 1998]



Sec. 1853.271  MidRange procurement procedures (NASA Forms 1667 and 
          1668).

    The following forms are prescribed in 1871.105(f):
    (a) NASA Form 1667, Request for Offer.
    (b) NASA Form 1668, Contract.

[64 FR 19926, Apr. 23, 1999]

[[Page 454]]

                 Subpart 1853.3--Illustrations of Forms



Sec. 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.



Sec. 1853.301  Standard forms.

    This section illustrates standard forms (SFs) specified for use in 
acquisitions.



Sec. 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.

[[Page 455]]

             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS

                PART 1871--MIDRANGE PROCUREMENT PROCEDURES

Sec.

Sec. 1871.000  Scope of part.

                         Subpart 1871.1--General


Sec. 1871.101  Purpose.

Sec. 1871.102  Applicability.

Sec. 1871.103  Definitions.

Sec. 1871.104  Policy.

            Subpart 1871.2--Planning and Requirements Process


Sec. 1871.201  Use of buying team.

Sec. 1871.202  Organizational responsibilities.

Sec. 1871.202-1  Requiring organization.

Sec. 1871.202-2  Procurement organization.

Sec. 1871.202-3  Supporting organizations.

Sec. 1871.202-4  Center management.

Sec. 1871.203  Buying team responsibilities.

Sec. 1871.204  Small business set-asides.

                 Subpart 1871.4--Request for Offer (RFO)


Sec. 1871.400  General.

Sec. 1871.401  Types of RFO's.

Sec. 1871.401-1  Sealed offers.

Sec. 1871.401-2  Two-step competitive acquisition.

Sec. 1871.401-3  Competitive negotiated acquisition not using 
          qualitative criteria.

Sec. 1871.401-4  Competitive negotiations using qualitative criteria 
          (Best Value Selection).

Sec. 1871.401-5  Noncompetitive negotiations.

Sec. 1871.401-6  Commercial items.

Sec. 1871.402  Preparation of the RFO.

Sec. 1871.404  Protection of offers.

                          Subpart 1871.5--Award


Sec. 1871.501  Representations and certifications.

Sec. 1871.502  Determination of responsible contractor.

Sec. 1871.503  Negotiation documentation.

Sec. 1871.504  Award documents.

Sec. 1871.505  Notifications to unsuccessful offerors.

Sec. 1871.506  Publication of award.

Sec. 1871.507  Debriefing of unsuccessful offerors.

                Subpart 1871.6--``Best Value Selection''


Sec. 1871.601  General.

Sec. 1871.602  Specifications for MidRange procurements.

Sec. 1871.603  Establishment of evaluation criteria.

Sec. 1871.604  Evaluation phases.

Sec. 1871.604-1  Initial evaluation.

Sec. 1871.604-2  Determination of ``Finalists''.

Sec. 1871.604-3  Discussions with ``Finalists''.

Sec. 1871.604-4  Selection of ``Best Value'' Offer.

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

    Source: 61 FR 55758, Oct. 29, 1996, unless otherwise noted.



Sec. 1871.000  Scope of part.

    This part prescribes policies and procedures for the acquisition of 
supplies, including commercial items, and services.

                         Subpart 1871.1--General

    Source: 64 FR 19926, Apr. 23, 1999, unless otherwise noted.



Sec. 1871.101  Purpose.

    The purpose of this part is to establish policies and procedures 
that implement the MidRange procurement process.



Sec. 1871.102  Applicability.

    (a) This part applies to all acquisitions at NASA, except as 
provided in 1871.401-4(a)(3), the aggregate amount of which is not more 
than $10,000,000 including options, and for commercial items (FAR Part 
12) not more than $25,000,000 including options. This part may be used 
for commercial item contracts above $25,000,000 at the installation's 
discretion.
    (b) For other than commercial items, if the Government estimate 
exceeds the limits of paragraph (a) of this section, the acquisition 
will be processed under FAR and NFS procedures applicable to large 
acquisitions (see FAR Parts 14 and 15). When the estimate is within the 
threshold of paragraph (a) of this section and the acquisition was 
started using these procedures but the offered prices/costs exceed the 
MidRange ceiling, the acquisition may continue under MidRange 
procedures, provided that--
    (1) The price/cost can be determined to be fair and reasonable;
    (2) The successful offeror accepts incorporation of required FAR and 
NFS clauses applicable to large acquisitions; and

[[Page 456]]

    (3) The acquisition does not exceed $15,000,000 for the total 
requirement.



Sec. 1871.103  Definitions.

    The following terms are used throughout part 1871 as defined in this 
subpart.
    (a) MidRange procurement procedure means a set of procedures 
contained in this part and within the applicability of 1871.102.
    (b) Request for Offer (RFO) means the solicitation used to request 
offers for all authorized MidRange procurements.
    (c) Clarification and Discussion are used as defined in FAR 15.306.
    (d) Commercial item is used as defined in FAR 2.101.



Sec. 1871.104  Policy.

    (a) Unless stated otherwise, acquisitions conducted using MidRange 
procedures shall comply with all applicable parts of the FAR and NFS 
(e.g. FAR 15.4 and 1815.4--Contract Pricing, and FAR 19.7 and 1819.7--
The Small Business Subcontracting Program).
    (b) Acquisitions conducted under Part 1871, unless otherwise 
properly restricted under the provisions of FAR Part 6, are considered 
to be full and open competition after exclusion of sources when set 
aside for competitions among small business concerns (FAR 6.203), 8(a) 
concerns (FAR 6.204), or HUBZone small businesses (FAR 6.205).
    (c) Options may be included in the acquisition provided they conform 
to 1871.102(a).
    (d) The appropriate part 1871 post-selection processes (negotiation, 
award, and publication of award) may be used to the extent applicable 
for Small Business Innovation Research (SBIR), broad agency 
announcements, unsolicited proposals, and Small Business Administration 
8(a) acquisitions within the applicability of 1871.102(a).
    (e) The NASA Acquisition Internet Service (NAIS) will be used to the 
maximum extent practicable to disseminate advance acquisition 
information and conduct part 1871 acquisitions.
    (f) Use of locally generated forms is encouraged where their use 
will contribute to the efficiency and economy of the process. NASA Forms 
1667, Request for Offer, and 1668, Contract, or computer generated 
versions of these forms, may be used as the solicitation and contract 
cover sheets, respectively, except that the SF1442, Solicitation, Offer, 
and Award (Construction, Alteration, or Repair), shall be used for 
construction acquisitions and the SF1449, Solicitation/Contract/Order 
for Commercial Items, shall be used for commercial item acquisitions. 
Contractor generated forms or formats for solicitation response should 
be allowed whenever possible. There is no requirement for uniform 
formats (see FAR 15.204).

            Subpart 1871.2--Planning and Requirements Process



Sec. 1871.201  Use of buying team.

    MidRange procedures are based on the use of a buying team to conduct 
the procurement. The concept is to designate individuals who are 
competent in their respective functional areas, provide those 
individuals with the basic authority to conduct the procurement and hold 
them accountable for the results. The buying team will normally consist 
of one technical member and one procurement member, but may be augmented 
with additional members as necessary, Personnel providing normal 
functional assistance to the team (e.g., legal, financial) will not be 
considered a part of the team unless so designated. To function 
properly, the team should be given the maximum decision authority in 
matters related to the procurement. When higher level management 
approvals remain essential, it will be incumbent upon the functional 
team member to obtain such approvals.



Sec. 1871.202  Organizatonal responsibilities.



Sec. 1871.202-1  Requiring organization.

    The requirements organization shall appoint, by name, the technical 
member of the buying team. This individual will normally be an end user 
or the one most familiar with the technical aspects of the requirement. 
The individual appointed, whatever the relationship with the procured 
item, is expected to totally fulfill the responsibilities to the buying 
team.

[[Page 457]]



Sec. 1871.202-2  Procurement organization.

    The procurement organization shall appoint the procurement member of 
the buying team. This individual shall be a warranted contracting 
officer or a contract specialist with broad latitude to act for the 
contracting officer. The procurement member shall be the team leader 
with the ultimate responsibility to conduct the procurement.



Sec. 1871.202-3  Supporting organizations.

    Buying team members may require additional team members to perform 
specialized functions or to assist in the evaluation of offers. Requests 
for supporting members shall be made by the organization identifying the 
need for the support and directed to the appropriate management level in 
the supporting organization. Supporting team members, once designated 
for the team, shall fulfill all applicable responsibilities to the team 
as other members.



Sec. 1871.202-4  Center management.

    Center managers shall, to the maximum extent practical and 
consistent with their responsibilities to manage the Center mission, 
convey sufficient authority to members of the buying team to conduct the 
procurement. Administrative or technical approvals should be minimized, 
and where deemed essential, facilitated to the maximum extent 
practicable. Center managers should lend their full support to the 
buying team should problems arise from the procurement.



Sec. 1871.203  Buying team responsibilities.

    (a) The buying team shall conduct the procurement in a manner that 
best satisfies the user requirements and meets the norms expected of a 
Government procurement. Team members should develop open communications, 
rely on decisions of other responsible functional team members and meet 
their obligations to the team. The team will typically--
    (1) Refine the final specifications for the solicitation;
    (2) Decide the most appropriate solicitation method;
    (3) Establish milestones for the procurement;
    (4) Finalize the evaluation criteria;
    (5) Develop the RFO and model contract; and
    (6) Evaluate offers and determine the awardee.
    (b) The procurement member of the buying team shall lead 
clarifications, discussions, and negotiations; shall be the source 
selection official; and shall conduct debriefings.



Sec. 1871.204  Small business set-asides.

    (a) Except as provided in paragraphs (b) through (f) of this 
section, each MidRange acquisition shall be reserved exclusively for 
small business concerns. (See FAR subparts 19.5 and 19.13. See FAR 
19.1305(a) regarding priority considerations).
    (b) The requirement for small business MidRange set-asides does not 
relieve the buying office of its responsibility to procure from required 
sources of supply, such as Federal Prison Industries, Industries for the 
Blind and Other Severely Handicapped, and multiple award Federal Supply 
Schedule contracts.
    (c) Procurements not conducted as small business set-asides and 
under less than full and open competition require a Justification for 
Other than Full and Open Competition pursuant to FAR Part 6.
    (d) If the buying team procurement member determines that the 
conditions for a HUBZone set-aside, HUBZone sole source, or small 
business set-aside cannot be satisfied, the buying team may purchase on 
an unrestricted basis utilizing MidRange procedures. The buying team 
procurement member shall document the contract file with the reason for 
the unrestricted acquisition.
    (e) Acquisitions required to be conducted under Full and Open 
Competition by the Small Business Competitiveness Demonstration Program, 
FAR subpart 19.10, will not be set aside for small business.
    (f) If the buying team proceeds with a small business MidRange set-
aside and receives an offer from only one responsible small business 
concern at a reasonable price, the contracting officer will normally 
make an award to that concern. However, if the buying team does not 
receive a reasonable offer

[[Page 458]]

from a responsible small business concern, the buying team procurement 
member may cancel the small business set-aside and complete the 
acquisition on an unrestricted basis utilizing MidRange procedures. If 
the acquisition is a HUBZone set-aside and only one acceptable offer is 
received, the buying team should proceed with the award in accordance 
with FAR 19.1305(d). The buying team procurement members shall document 
in the file the reason for the unrestricted purchase.
    (g) Each model contract under a small business MidRange set-aside 
shall contain the clause at FAR 52.219-6, Notice of Total Small Business 
Set-Aside.
    (h) Each model contract under a HUBZone MidRange set-aside shall 
contain the clause at FAR 52.219-3, Notice of Total HUBZone Set-Aside.

[63 FR 71604, Dec. 29, 1998, as amended at 64 FR 19927, Apr. 23, 1999]

                 Subpart 1871.4--Request for Offer (RFO)



Sec. 1871.400  General.

    In MidRange procedures, solicitation of sources shall be 
accomplished by use of an RFO. The RFO will be solely a solicitation 
document incorporating only those elements of information required to 
solicit the offer. Offers will be provided on a model contract furnished 
with the RFO.



Sec. 1871.401  Types of RFO'S.

    The RFO may be used for all types of procurements to which MidRange 
is applicable. The distinguishing difference will be the evaluation and 
award criteria specified in the RFO. This, in turn, will be driven by 
the buying team's decisions on the extent of discussion required, the 
amount of non-price factors that will influence the award and the amount 
of competition available. If the conditions in FAR 6.401(a) are met, the 
RFO's described in 1871.401-1 and 1871.401-2 shall be used; otherwise, 
RFO's described in 1871.401-3, 1871.401-4, 1871.401-5, or 1871.401-6 may 
be used. Once the evaluation and award criteria have been specified in 
the RFO, the procurement must conform to the procedures applicable to 
these criteria, unless changed by formal amendment to the RFO.



Sec. 1871.401-1  Sealed offers.

    (a) Policy. RFO's may specify that award will be made to the low, 
responsive, responsible offeror providing the most advantageous offer 
considering only price and price-related factors. This method shall be 
used when (1) time permits the solicitation, submission, and evaluation 
of sealed offers; (2) award will be made on the basis of price and other 
price-related factors; (3) conducting discussions with the offerors is 
not necessary; and (4) a reasonable expectation of receiving more than 
one offer exists. The RFO shall be in compliance with the requirements 
of FAR part 14 relating to Sealed Bidding.
    (b) Procedures. (1) The RFO shall request offerors to provide a 
complete offer by the closing date specified.
    (2) In accordance with FAR part 14, offers (whether received by 
facsimile or sealed envelope delivery) shall be publicly opened at the 
designated time and place. Interested members of the public will be 
permitted to attend the opening. Offers shall be abstracted pursuant to 
FAR part 14 and be available for public inspection. The abstract shall 
be included in the contract file.
    (3) All offers shall be examined for mistakes in accordance with FAR 
14.407-1 and 14.407-2. The buying team shall determine that a 
prospective contractor is responsible and that the prices offered are 
reasonable (see FAR 14.408-2).
    (4) The Government will award a contract to the low, responsive, 
responsible offeror, whose offer conforms to the RFO and will be most 
advantageous to the Government, considering only price and the price-
related factors included in the solicitation.
    (5) When proceeding with an unrestricted acquisition see--
    (i) FAR Subpart 19.11 regarding use of the price evaluation 
adjustment for small disadvantaged business (SDB) concerns; and
    (ii) FAR Subpart 19.13 regarding use of the price evaluation 
preference for HUBZone small business concerns.

[61 FR 55758, Oct. 29, 1996, as amended at 64 FR 19927, Apr. 23, 1999]

[[Page 459]]



Sec. 1871.401-2  Two-step competitive acquisition.

    (a) Policy. (1) RFO's may specify that evaluation and award may be 
conducted in two distinct steps, similar in concept to ``Two Step Sealed 
Bidding.'' The MidRange Two Step process should be used when it is 
desirable to award to the lowest, responsive, responsible offeror after 
determining that the initial technical offer, or the revised technical 
offer, is acceptable.
    (2) The procedures of FAR 14.503-2(a) shall be used once Step Two of 
this process begins.
    (b) Procedures. (1) The RFO shall request offerors to provide both a 
technical and a price offer by the closing date specified. Price offers 
are requested to ensure that they are accomplished in a timely manner 
and to reduce the time required for Step Two.
    (2) Step One. The technical offer will be evaluated to determine if 
the product or service offered is acceptable. The buying team may 
proceed directly to Step Two if there are sufficient acceptable offers 
to ensure adequate price competition, and if further time, effort and 
delay to make additional offers acceptable and thereby increase 
competition would not be in the Government's interest. If this is not 
the case, the buying team procurement member shall enter into 
discussions and request offeror(s) whose offer(s) is susceptible to 
being made acceptable to submit additional clarifying or supplementing 
information to make it acceptable (see FAR 14.503-1). It is expected 
that these discussions will be conducted on an informal basis. After 
completion of discussions, the buying team shall proceed to Step Two.
    (3) Step Two. If discussions were held, the buying team shall afford 
all offerors who have submitted acceptable offers and those offers with 
whom discussions were conducted, an opportunity, by a common date, to 
revise their price offers. No changes to technical offers will be 
permitted during this process. A reasonable amount of time (normally 
less than 5 working days) will be afforded for the revision. The amount 
of time given shall be the same for each offeror. The procedures at 
1871.401-1(b) (2) and (3) shall then be followed.
    (4) The Government will award a contract to the low, responsive, 
responsible offeror, whose offer conforms to the RFO and will be most 
advantageous to the Government, considering only price and the price-
related factors included in the solicitation.
    (5) When proceeding with an unrestricted acquisition see--
    (i) FAR Subpart 19.11 regarding use of the price evaluation 
adjustment for SDB concerns; and
    (ii) FAR Subpart 19.13 regarding use of the price evaluation 
preference for HUBZone small business concerns.

[61 FR 55758, Oct. 29, 1996, as amended at 64 FR 19927, Apr. 23, 1999]



Sec. 1871.401-3  Competitive negotiated acquisition not using 
          qualitative criteria.

    (a) Policy. (1) RFO's may provide for discussion of all aspects of 
the offer but award is based on the technically acceptable offer having 
the lowest price (if fixed price) or the lowest most probable cost (if 
cost reimbursable). This method should be used when qualitative factors 
are not material in the award decision, but it is important to assure 
that technical offers and contract terms are fully compliant with the 
Government's needs. This method also permits direct discussion of price 
with offerors and is particularly appropriate when different approaches 
can be offered to satisfy the Government's need.
    (2) The RFO should reserve the right to award without discussion 
based on the initial offers submitted. FAR 52.215-1, will be included in 
all RFO's for competitive negotiated procurements not using qualitative 
criteria except for solicitations for commercial item acquisitions.
    (3) See FAR 15.304, FAR 15.305(a)(2), and 1815.305(a)(2) regarding 
the evaluation of past performance.
    (4) When proceeding with an unrestricted acquisition see--
    (i) FAR Subpart 19.11 regarding use of the price evaluation 
adjustment for SDB concerns; and
    (ii) FAR Subpart 19.13 regarding use of the price evaluation 
preference for HUBZone small business concerns.

[[Page 460]]

    (b) Procedures. (1) The RFO shall request offerors to provide both a 
technical and a price offer by the closing date specified.
    (2) Initial evaluation. The buying team shall review each offer to 
determine if all required information has been provided. No further 
evaluation shall be made of any offer that is deemed unacceptable 
because it does not meet the technical requirements of the RFO and is 
not reasonably susceptible to being made so. Offerors may be contacted 
for clarification purposes only during the initial evaluation. Offerors 
determined not to be acceptable shall be notified of their rejection and 
the reasons therefore and excluded from further consideration. 
Documentation for such rejection should consist of one or more succinct 
statements of fact that show the offer is not acceptable. No 
documentation is required if all offers are deemed to be acceptable or 
reasonably susceptible to being made so.
    (3) Determination of finalists. From among the acceptable offers and 
those susceptible to being made acceptable, the buying team shall rank 
the offers based on price (or most probable cost) and exclude any whose 
price/most probable cost precludes any reasonable chance of being 
selected for final award. The remaining offers constitute the 
``finalists'' for the contract. Only in exceptional cases will this 
number be less than two offers. The procurement buying team member shall 
succinctly record the basis for the decision.
    (4) Discussions. The procurement buying team member shall lead 
discussions with each finalist. The discussions are intended to assist 
the buying team in fully understanding each finalist's offer and to 
assure that all finalists are competing equally on the basis intended. 
Care must be exercised to ensure these discussions adhere, to the extent 
applicable, to the guidelines set forth in FAR 15.306. It is expected 
that discussions will be conducted on an informal basis with each 
finalist. After completion of discussions, each finalist shall be 
afforded an opportunity to revise its offer to support and clarify its 
offer. A reasonable amount of time (Normally less than 5 working days) 
will be afforded for the revision. The amount of time given shall be the 
same for each finalist. Such discussions are not required if there are 
sufficient acceptable offers to ensure adequate price competition, and 
if further time, effort and delay to make additional proposals 
acceptable and thereby increase competition, would not be in the 
Government's interest.
    (5) Selection. The procurement team member shall be the source 
selection official. The source selection official may elect to make 
selection in lieu of determining finalists provided that it can be 
demonstrated that (i) selection of an initial offer(s) will result in 
the lowest price/cost to the Government and (ii) discussions with other 
acceptable offerors are not anticipated to change the outcome of the 
initial evaluation relative to evaluated price/cost. It is expected that 
the source selection statement will not ordinarily exceed one page and 
that the basis for the decision will be apparent upon review of the 
informal worksheets used in the evaluation process. These informal 
worksheets shall be included in the contract file.
    (6) The names of offerors determined to be finalists or the name of 
the offeror selected for contract award will be electronically 
transmitted to all offerors. This will serve as notification to those 
offers that were not selected for further evaluation (see 1871.505).

[61 FR 55758, Oct. 29, 1996, as amended at 63 FR 9966, 9967, Feb. 27, 
1998; 64 FR 19927, Apr. 23, 1999]



Sec. 1871.401-4   Competitive negotiations using qualitative criteria 
          (Best Value Selection).

    (a) Policy. (1) MidRange procurements shall normally use the BVS 
source selection method, prescribed in part 1871, subpart 1871.6, when 
it is desirable to base evaluation and award on a combination of price 
and non-price qualitative criteria.
    (2) The RFO should reserve the right to award without discussion 
based on the initial offers submitted. FAR 52.215-1, will be included in 
all RFO's for competitive negotiated procurements using qualitative 
criteria except for solicitations for commercial item acquisitions.

[[Page 461]]

    (3) In exceptionally complex procurements, a source selection method 
other than MidRange Best Value Selection may be more appropriate. This 
may be appropriate in cases in which the following factors cannot be 
accommodated within the MidRange/BVS selection methodology:
    (i) The ability to predefine the value characteristics that will 
constitute the discriminators among the offers;
    (ii) The complexity of the interrelationships that must be 
evaluated;
    (iii) The number of evaluators required to address the disciplines 
that will be involved in the offers; or
    (iv) The impact that the procurement may have on higher level 
mission management (level of selection official) or future procurements.
    (4) See FAR 15.304, FAR 15.305(a)(2), and 1815.305(a)(2) regarding 
the evaluation of past performance.
    (5) When proceeding with an unrestricted acquisition see--
    (i) FAR Subpart 19.11 regarding use of the price evaluation 
adjustment for SDB concerns. SDB concerns that choose the FAR 19.11 
price evaluation adjustment shall receive no consideration under a 
MidRange BVS value characteristic that addresses the FAR 19.1202 SDB 
participation evaluation;
    (ii) FAR 19.1202 regarding the evaluation of the participation of 
SDB concerns in performance of the contract. For BVS MidRange 
acquisitions, SDB participation shall be evaluated as a BVS value 
characteristic (see 1871.603(b)); and
    (iii) FAR Subpart 19.13 regarding use of the price evaluation 
preference for HUBZone small business concerns.
    (b) Procedures. (1) The buying team will determine which of the 
source selection methodologies is most appropriate to the specific 
procurement.
    (2) The team shall record its rationale for selecting a methodology 
rather than BVS. Once this decision is made, the team shall no longer 
function as a MidRange buying team, but shall follow the instructions 
prescribed in the local procedures for the source selection method.

[61 FR 55758, Oct. 29, 1996, as amended at 63 FR 9966, 9967, Feb. 27, 
1998; 64 FR 19928, Apr. 23, 1999]



Sec. 1871.401-5  Noncompetitive negotiations.

    (a) Policy. (1) The RFO may be used as the solicitation method for 
noncompetitive procurements.
    (2) MidRange procedures may be used in noncompetitive acquisitions 
to the extent they are applicable.
    (b) Procedures.
    (1) The buying team shall request pricing information in accordance 
with FAR 15.402 and 15.403.
    (2) The technical member of the buying team shall provide technical 
assistance to the procurement member during evaluation and negotiation 
of the contractor's offer.

[61 FR 55758, Oct. 29, 1996, as amended at 64 FR 19928, Apr. 23, 1999]



Sec. 1871.401-6  Commercial items.

    (a) Policy. (1) MidRange procedures are considered consistent with 
the requirements of FAR part 12, Acquisition of Commercial Items. In the 
event of a conflict, however, FAR part 12 takes precedence.
    (2) MidRange procedures may also be used, to the extent applicable, 
for commercial item acquisitions accomplished under FAR subpart 13.5, 
Text Program for Certain Commercial Items.
    (3) Contract type shall be in accordance with FAR 12.207.
    (b) Procedures. The offices will be evaluated in accordance with 
applicable procedures, and shall include consideration of technical, 
past performance, and price.

[61 FR 55758, Oct. 29, 1996, as amended at 62 FR 4477, Jan. 30, 1997; 63 
FR 71604, Dec. 29, 1998]



Sec. 1871.402  Preparation of the RFO.

    (a) The RFO shall provide all standard information required for the 
offeror to submit an offer.
    (b) The RFO shall contain space for all necessary additional 
instructions to offerors. As a minimum, the RFO shall contain the 
following:
    (1) Incorporation by reference of all required standard provisions.
    (2) A provision notifying offerors that standard Representations and 
Certifications will be required.
    (3) Evaluation and award criteria.

[[Page 462]]

    (4) A provision requiring offerors to submit offers on an attached 
model contract.
    (c) Requirements for the content and format of the offer should be 
the minimum required to provide for proper evaluation. Offerors' formats 
should be allowed to the maximum extent possible.
    (d) Facsimile offers, defined by FAR 14.202-7 and FAR 15.203(d), are 
authorized for MidRange procurements.

[61 FR 55758, Oct. 29, 1996, as amended at 63 FR 9967, Feb. 27, 1998]



Sec. 1871.404  Protection of offers.

    A facsimile machine(s) shall be dedicated for receipt of offers and 
placed in a secure location where offers received on it can be 
safeguarded. All offers submitted shall be recorded, sealed in an 
envelope marked with the RFO number and taken to the buying team 
procurement member. Facsimile attendants shall make a good faith effort 
to inspect the document for completeness and legibility. If the 
attendant believes there are missing or illegible pages, the document 
will be promptly referred to the buying team procurement member for 
notification to the offeror that it should resubmit the offer. The 
Government shall not assume responsibility for proper transmission.

                          Subpart 1871.5--Award



Sec. 1871.501  Representations and certifications.

    Upon determination of the successful offeror, the buying team 
procurement member will determine if the offeror has on file valid 
Representations and Certifications. If the offeror has not completed the 
required forms, or they have expired, the offeror will be requested to 
provide the forms promptly. Should the offeror refuse to provide the 
required Representations and Certifications or fail to meet a required 
condition, the buying team shall reject the offer and proceed to the 
next highest ranked offeror who is responsive and responsible.



Sec. 1871.502  Determination of responsible contractor.

    Contractor responsibility shall be determined in accordance with FAR 
part 9.



Sec. 1871.503  Negotiation documentation.

    The prenegotiation memorandum, if required, and the results of 
negotiation will be in abbreviated form and will be approved by the 
buying team.



Sec. 1871.504  Award documents.

    Contract award shall be accomplished by contracting officer 
execution of the contract document and providing a paper copy to the 
successful offeror. If facsimile documents were used in the evaluation 
process, the successful offeror may be required to execute original 
copies of the contract to facilitate legibility during the 
administration phase of the contract.



Sec. 1871.505  Notifications to unsuccessful offerors.

    For solicitations that were posted on the NAIS, a preaward notice 
shall be electronically transmitted to the offerors. In addition, 
contracting officers shall comply with the preaward notices for small 
business programs in FAR 15.503(a)(2).

[64 FR 19928, Apr. 23, 1999]



Sec. 1871.506  Publication of award.

    An award notice shall be posted on the NAIS for 7 calendar days 
after posting, if the contract offers subcontracting opportunities or if 
it is subject to the Trade Agreements Act. The information required by 
FAR 5.207 shall be included in the award notice in abbreviated form.



Sec. 1871.507  Debriefing of unsuccessful offerors.

    The procurement buying team member shall conduct debriefings if 
requested.

[[Page 463]]

                Subpart 1871.6--``Best Value Selection''



Sec. 1871.601  General.

    (a) Best Value Selection (BVS) seeks to select an offer based on the 
best combination of price and qualitative merit of the offers submitted 
and reduce the administrative burden on the offerors and the Government.
    (b) BVS takes advantage of the lower complexity of MidRange 
procurements and predefines the value characteristics which will serve 
as the discriminators among offers. It eliminates the use of area 
evaluation factors and the highly structured scoring.



Sec. 1871.602  Specifications for MidRange procurements.

    BVS refines the traditional approach to preparing specifications. 
BVS envisions that the requirement will focus on the end result that is 
to be achieved and will serve as a statement of the Government's 
baseline requirements. The offeror will be guided in meeting the 
Government's needs by a separate set of value characteristics which 
establish what the Government considers to be valuable in an offer 
beyond the baseline requirement. These value characteristics will be 
performance based and will permit the selection of the offer which 
provides better results for a reasonable marginal increase in price.

[64 FR 36606, July 7, 1999]



Sec. 1871.603  Establishment of evaluation criteria.

    (a) The requiring organization will provide, along with the 
requirement, a list of value characteristics against which the offers 
will be judged. There is no limit to the number or the type of 
characteristics that may be specified. The only standard will be whether 
the characteristic is rationally related to the need specified in the 
specification. Characteristics may include such factors as improved 
reliability, innovativeness of ideas, speed of service, demonstrated 
delivery performance, higher speeds, ease of use, qualifications of 
personnel, solutions to operating problems, level of service provided on 
previous similar contracts, or any of numerous other characteristics 
that may be of value to the Government in satisfying its needs.
    (b) For unrestricted acquisitions, small disadvantaged business 
(SDB) participation shall be evaluated as a BVS value characteristic 
(see FAR 19.1202-3). In order to receive consideration under the value 
characteristic, the offeror must propose a target for SDB participation 
greater than the baseline requirement. The baseline requirement for SDB 
participation is zero or no SDB participation. SDB concerns that choose 
the price evaluation adjustment under FAR 19.11 shall receive no 
consideration under this MidRange BVS value characteristic. Like other 
value characteristics, offerors meeting the baseline, but proposing no 
value above the baseline, and which are otherwise acceptable, are to be 
considered for award if they are finalists.
    (c) Past performance may be included as a value characteristic or 
considered as a separate evaluation criteria. If considered as a 
separate criterion, the relative importance of past performance in 
relation to cost and technical must be defined in the solicitation.
    (d) Cost and technical will be considered equal in importance. The 
value characteristics will not be assigned weights.
    (e) All subsequent evaluations will consider these characteristics 
when determining the finalists or making the final selection for award.

[61 FR 55758, Oct. 29, 1996, as amended at 64 FR 19928, Apr. 23, 1999]



Sec. 1871.604  Evaluation phases.



Sec. 1871.604-1  Initial evaluation.

    (a) Offers will be reviewed to determine if all required information 
has been provided and the offeror has made a reasonable attempt to 
present an acceptable offer. Offerors may be contacted only for 
clarification purposes during the initial evaluation. No further 
evaluation shall be made of any offer that is deemed unacceptable 
because:
    (1) It does not represent a reasonable effort to address itself to 
the essential requirements of the RFO or clearly demonstrates that the 
offeror does not

[[Page 464]]

understand the requirements of the RFO;
    (2) It contains major technical or business deficiencies or 
omissions or out-of-line costs which discussions with the offeror could 
not reasonably be expected to cure; or
    (3) In R&D procurement, a substantial design drawback is evident in 
the offer and sufficient correction or improvement to consider the offer 
acceptable would require virtually an entirely new offer.
    (b) Offerors determined not to be acceptable shall be notified of 
their rejection and the reasons therefor and excluded from further 
consideration.
    (c) Documentation. If it is concluded that all offers are 
acceptable, then no documentation is required and evaluation proceeds. 
If one or more offers are not acceptable, the procurement member of the 
team will notify the offeror of the rejection and the reasons therefor. 
The documentation should consist of one or more succinct statements of 
fact that show the offer is not acceptable.



Sec. 1871.604-2  Determination of ``Finalists''.

    (a) All acceptable offers will be evaluated against the requirement 
and the value characteristics. Based on this evaluation, the team will 
identify the finalists from among the offers submitted. Finalists will 
include the most highly rated offerors in accordance with FAR 
15.306(c)(1) and 1815.306(c)(2). Generally, finalists will include the 
offer having the best price (or lowest most probable cost) and the offer 
having the highest qualitative merit, plus those determined to have the 
best combination of price and merit. Offers not qualifying as finalists 
will be excluded from the balance of the evaluation process.
    (b) The selection official may elect to make selection in lieu of 
determining finalists, provided it can be clearly demonstrated that
    (1) Selection of an initial offer(s) will result in the best value 
for the Government, considering both price and non-price qualitative 
criteria;
    (2) Discussions with other acceptable offerors are not anticipated 
to change the outcome of the initial evaluation relative to the best 
value offer(s), and
    (3) The solicitation contains a provision permitting award without 
discussions.
    (c) Documentation. If finalists are identified as discussed in 
paragraph (a) of this section, the documentation expected and required 
to result from this phase of evaluation is approximately one-quarter of 
a page for each finalist. The documentation shall succinctly describe 
how the value characteristics in the RFO were provided by the offeror 
and cost/price considerations that caused the offer to qualify as a 
finalist. The evaluator(s) shall not be required to justify why other 
offers provided less qualitative merit. It is expected that, should the 
decision be challenged, the documented reason for selection, when 
compared with the non-selected offer, shall clearly demonstrate the 
difference that resulted in non-selection. It is expected and 
recommended that all informal worksheets used in the evaluation process 
be included in the contract file. When selection of the successful 
offeror(s) is made, the buying team shall document the selection in 
accordance with 1871.604-4(c).
    (d) Offerors determined not to be finalists or not selected for 
contract award will be electronically notified.

[61 FR 55758, Oct. 29, 1996, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1871.604-3  Discussions with ``Finalists''.

    (a) The procurement team member shall lead discussions with each 
finalist. Care must be exercised to ensure these discussions adhere, to 
the extent applicable, to the guidelines set forth in FAR 15.306. It is 
expected that these discussions will be conducted on an informal basis 
with each finalist.
    (b) After completion of discussions, each finalist shall be afforded 
an opportunity to revise its offer. A reasonable amount of time 
(normally less than 5 working days) will be afforded for the revision. 
The amount of time given shall be the same for each finalist.

[61 FR 55758, Oct. 29, 1996, as amended at 63 FR 9967, Feb. 27, 1998]

[[Page 465]]



Sec. 1871.604-4  Selection of ``Best Value'' Offer.

    (a) The procurement team member shall be the source selection 
official.
    (b) The BVS source selection is based on the premise that, if all 
offers are of approximately equal qualitative merit, award will be made 
to the offer with the lowest evaluated price (fixed-price contracts) or 
the lowest most probable cost (cost type contracts). However, the 
Government will consider awarding to an offeror with higher qualitative 
merit if the difference in price is commensurate with added value. 
Conversely, the Government will consider making award to an offeror 
whose offer has lower qualitative merit if the price (or cost) 
differential between it and other offers warrant doing so.
    (c) Documentation. Rationale for selection of the successful offeror 
shall be recorded in a selection statement which succinctly records the 
value characteristics upon which selection was made. The statement need 
not and should not reveal details of the successful offer that are 
proprietary or business sensitive. Since the value characteristics are 
expressed in performance terms, the reasons for selection can focus on 
results to be achieved, rather than the detailed approach the offeror 
will use. The statement shall also comment on the rationale used to 
equate cost and qualitative merit. Little or no additional analysis is 
required when the selected offeror possessed the highest merit and 
lowest price. When a marginal analysis is made between value 
characteristics and price (or cost)--in most cases this will be a 
subjective, integrated assessment of all pertinent factors--specific 
rationale should be provided to the extent possible. It is expected that 
the statement will not ordinarily exceed one page. Where the procurement 
is closely contested, it would be prudent to expand on the rationale 
provided in the statement.
    (d) The name of the offeror(s) selected for award shall be 
electronically transmitted to the offerors which will serve as a 
notification to those offerors that were not selected (see 1871.505). 
The selection statement may be made available at the buying team's 
discretion.

                PART 1872--ACQUISITIONS OF INVESTIGATIONS

Sec.

Sec. 1872.000  Scope of part.

          Subpart 1872.1--The Investigation Acquisition System


Sec. 1872.101  General.

Sec. 1872.102  Key features of the system.

Sec. 1872.103  Management responsibilities.

              Subpart 1872.2--Applicability of the Process


Sec. 1872.201  General.

Sec. 1872.202  Criteria for determining applicability.

Sec. 1872.203  Applicable programs and activities.

Sec. 1872.204  Approval.

             Subpart 1872.3--The Announcement of Opportunity


Sec. 1872.301  General.

Sec. 1872.302  Preparatory effort.

Sec. 1872.303  Responsibilities.

Sec. 1872.304  Proposal opportunity period.

Sec. 1872.305  Guidelines for Announcement of Opportunity.

Sec. 1872.306  Announcement of opportunity soliciting foreign 
          participation.

Sec. 1872.307  Guidelines for proposal preparation.

                 Subpart 1872.4--Evaluation of Proposals


Sec. 1872.401  General.

Sec. 1872.402  Criteria for evaluation.

Sec. 1872.403  Methods of evaluation.

Sec. 1872.403-1  Advisory subcommittee evaluation process.

Sec. 1872.403-2  Contractor evaluation process.

Sec. 1872.403-3  Government evaluation process.

Sec. 1872.404  Engineering, integration, and management evaluation.

Sec. 1872.405  Program office evaluation.

Sec. 1872.406  Steering committee review.

Sec. 1872.407  Principles to apply.

                  Subpart 1872.5--The Selection Process


Sec. 1872.501  General.

Sec. 1872.502  Decisions to be made.

Sec. 1872.503  The selection statement.

Sec. 1872.504  Notification of proposers.

Sec. 1872.505  Debriefing.

                   Subpart 1872.6--Payload Formulation


Sec. 1872.601  Payroll formulation.

          Subpart 1872.7--Acquisition and Other Considerations


Sec. 1872.701  Early involvement essential.

[[Page 466]]


Sec. 1872.702  Negotiation, discussions, and contract award.

Sec. 1872.703  Application of the Federal Acquisition Regulation (FAR) 
          and the NASA FAR Supplement.

Sec. 1872.704  Other administrative and functional requirements.

Sec. 1872.705  Format of Announcement of Opportunity (AO).

Sec. 1872.705-1  Appendix A: General Instructions and Provisions.

Sec. 1872.705-2  Appendix B: Guidelines for Proposal Preparation.

Sec. 1872.705-3  Appendix C: Glossary of Terms and Abbreviations 
          Associated with Investigations.

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

    Source: 62 FR 4477, Jan. 30, 1997, unless otherwise noted.



Sec. 1872.000  Scope of part.

    This part prescribes policies and procedures for the acquisition of 
investigations.

          Subpart 1872.1--The Investigation Acquisition System



Sec. 1872.101  General.

    The investigation acquisition system encourages the participation of 
investigators and the selection of investigations which contribute most 
effectively to the advancement of NASA's scientific and technological 
objectives. It is a system separate from the acquisition process, but 
requiring the same management and discipline to assure compliance with 
statutory requirements and considerations of equity.



Sec. 1872.102  Key features of the system.

    (a)(1) Use of the system commences with the Enterprise Associate 
Administrator's determination that the investigation acquisition process 
is appropriate for a program. An Announcement of Opportunity (AO) is 
disseminated to the interested scientific and technical communities. The 
AO is a form of broad agency announcement (BAA) (see FAR 35.016 and 
1835.016 for general BAA requirements). This solicitation does not 
specify the investigations to be proposed but solicits investigative 
ideas which contribute to broad objectives. In order to determine which 
of the proposals should be selected, a formal competitive evaluation 
process is utilized. The evaluation for merit is normally made by 
experts in the fields represented by the proposals. Care should be taken 
to avoid conflicts of interest. These evaluators may be from NASA, other 
Government agencies, universities, or the commercial sector. Along with 
or subsequent to the evaluation for merit, the other factors of the 
proposals, such as engineering, cost, and integration aspects, are 
reviewed by specialists in those areas. The evaluation conclusions as 
well as considerations of budget and other factors are used to formulate 
a complement of recommended investigations. A steering committee, 
serving as staff to the Enterprise Associate Administrator or designee 
when source selection authority is delegated, reviews the proposed 
payload or program of investigation, the iterative process, and the 
selection recommendations. The steering committee serves as a forum 
where different interests, such as flight program, discipline 
management, and administration, can be weighed.
    (2) The Program AA, or designee, selects the proposals that will 
participate in the program. Once selected, an investigator is assigned 
appropriate responsibilities relating to the investigation through a 
contract with the institution. For foreign investigators, these 
responsibilities will usually be outlined in an agreement between NASA 
and the sponsoring governmental agency in the investigator's country.
    (b) The AO process provides a disciplined approach to investigation 
acquisition. The following major steps must be followed in each case:
    (1) The AO shall be signed by the Program AA and shall be widely 
distributed to the scientific, technological, and applications user 
communities, as appropriate.
    (2) An evaluation team shall be formed including recognized peers of 
the investigators.
    (3) A project office will be assigned to assess the engineering, 
cost, integration, and management aspects of the proposals.
    (4) A program office will be responsible to formulate a complement 
of investigations consistent with the objectives stated in the AO, cost, 
and schedule constraints.

[[Page 467]]

    (5) A steering committee appointed by the appropriate Program AA 
shall review the proposed investigations for relevance and merit, will 
assure compliance with the system as described in this Handbook, and 
make selection recommendations.
    (6) The Source Selection Official shall be the Program AA or the 
Program AA's designee.
    (c) Payloads will be formulated consisting of investigations 
selected through the AO process and/or other authorized methods.

[62 FR 4477, Jan. 30, 1997, as amended at 64 FR 14641, Mar. 26, 1999]



Sec. 1872.103  Management responsibilities.

    (a) Program AAs are responsible for overseeing the process and for 
making key decisions essential to the process including:
    (1) Determination to use the investigation acquisition system.
    (2) Appointment of the steering committee members.
    (3) Designation of a staff to assure uniformity in the issuance of 
the AO and conformity with the required procedures in the evaluation and 
selection.
    (4) Reuse, to the maximum extent practicable, of space hardware and 
support equipment.
    (5) Determination to use advisory subcommittees, contractor, or 
full-time Government employees only in the evaluation process.
    (6) Issuance of the AO.
    (7) Selection of investigations and investigators, determination of 
need of a definition phase, determination of the role of the 
investigator with regard to providing essential investigation hardware 
and services, and determination of the need for payload specialists.
    (8) Assure consideration is given to minorities in the establishment 
of peer groups, distribution of the AO and in the selection of 
investigations.
    (9) Provide a framework for cooperative foreign participation in 
Space Shuttle, Spacelab, and Space Station missions.
    (b) The Program AA should call upon any required experts throughout 
the process.

              Subpart 1872.2--Applicability of the Process



Sec. 1872.201  General.

    The system used for acquisition of investigations is separate from 
the agency procedures for acquisition of known requirements. A decision 
to use this special acquisition process will be based on a determination 
that it is the most suitable to meet program needs. The decision-making 
official will consider the criteria for use of the system. The project 
plan or other documentation should discuss the proposed mode of 
investigations selection.



Sec. 1872.202  Criteria for determining applicability.

    (a) The decision to use the investigations acquisition process as an 
alternative to the normal planning and acquisition process can only be 
made after consideration of the conditions which require its use. All of 
the following conditions should exist before deciding that the system is 
applicable:
    (1) NASA has a general objective which can be furthered through 
novel experimental approaches. To develop such approaches, NASA wishes 
to draw upon the broadest possible reservoir of ideas.
    (2) Choices must be made among competing ideas in expanding 
knowledge.
    (3) Individual participation of an investigator is essential to 
exploitation of the opportunity.
    (b) The investigations acquisition process shall not be used when 
any of the following characteristics are present:
    (1) The requiring office can define a requirement sufficiently to 
allow for normal acquisition.
    (2) The program is extremely complex, requiring specialized 
integration, coordination, or other special handling, or extending over 
a lengthy period wherein individual participation is not essential.



Sec. 1872.203  Applicable programs and activities.

    The investigation acquisition process is most suitable for 
investigations aimed at exploration requiring several unique sensors or 
instruments, but it

[[Page 468]]

has been used successfully in the following types of activities:
    (a) Exploration and space research flights. (1) Examples include 
Space Transportation System (STS) flights with attached payloads, 
generally Spacelab payloads; and free-flying spacecraft, such as 
Explorers, Pioneers, Space Telescope, Landsats, and Long Duration 
Exposure Facilities.
    (2) Types of opportunity include:
    (i) Participation as a Principal Investigator (PI) responsible for 
conceiving and conducting a space investigation (This may involve a 
major piece of instrumentation. In the case of a ``facility'' or 
``multiuser'' payload, each PI's responsibilities would ordinarily 
involve a relatively minor portion of the total instrument.);
    (ii) An opportunity to serve on a PI's team as a member or Co-
Investigator;
    (iii) An opportunity that generally involves the use of data from 
another investigator's instrument as a guest investigator or guest 
observer (Guest investigators usually participate after the primary 
objectives have been satisfied for the investigations involved.); and
    (iv) A team formed from selected investigators to assist in defining 
planned mission objectives and/or to determine, in a general manner, the 
most meaningful instruments to accomplish the mission objectives.
    (3) The investigation acquisition process may be applicable to all 
types of opportunities. The supposition common in these opportunities is 
that the best ideas and approaches are likely to result from the 
broadest possible involvement of the scientific, technological or 
applications user communities.
    (b) Minor missions. (1) Examples include research aircraft, sounding 
rockets, balloons, and minor missions that are generally of short 
duration, small in size, often single purpose, and subject to 
repetition. Many investigations are follow-on to past-flight 
investigations.
    (2) Types of opportunity include:
    (i) PIs responsible for investigation; and
    (ii) Data use or analysis.
    (3) Opportunities for participation on minor missions are generally 
suitable for normal acquisition procedures. The use of an announcement 
describing the general nature and schedule of flights may be appropriate 
when considered necessary to broaden participation by requesting 
investigator-initiated research proposals. Normal acquisition procedures 
shall be used for follow-on repeat flights. Although NASA seeks unique, 
innovative ideas for these missions, the prospect of reflight and the 
latitude in determining number and schedule of flights argue against the 
need for the use of the investigations acquisition process to force 
dissimilar proposals into an annual or periodic competitive structure. 
On the other hand, there are some minor missions addressed to specific 
limited opportunities; for example, a solar eclipse. When such 
limitations indicate that the special competitive structure is needed, 
it should be authorized.
    (c) Operational and operational prototype spacecraft. (1) Examples 
include spacecraft built for NASA and other agencys' missions.
    (2) The user agency can be expected to specify performance 
parameters. Payload definition will be the responsibility of the user 
agency and NASA. Specifications sufficient for normal acquisition 
procedures can be produced. Use of data from the mission is the 
responsibility of the user agency. Thus, the investigation acquisition 
process is not required.
    (d) Supporting Research and Technology (SR&T). (1) Examples include 
studies, minor developments, instrument conceptualization, ground-based 
observations, laboratory and theoretical supporting research, and data 
reduction and analysis which is unconstrained by a specific opportunity.
    (2) Programs in these areas tend to go forward on a continuing 
basis, rather than exploiting unique opportunities. Normal acquisition 
procedures should be used. A general announcement of area of interest 
could be made when greater participation is deemed advisable.



Sec. 1872.204  Approval.

    The Program AA is responsible for determining whether or not to use 
the investigations acquisition process. Normally on major projects, or 
when a

[[Page 469]]

project plan is required, use of the investigation acquisition system 
will be justified and recommended in the project planning documentation 
and will be coordinated with staff offices and discussed in the planning 
presentation to the Deputy Administrator or designee.

             Subpart 1872.3--The Announcement of Opportunity



Sec. 1872.301  General.

    An announcement of opportunity (AO) is characterized by its 
generality. However, it is essential that the AO contains sufficient 
data in order to obtain meaningful proposals. To a considerable extent, 
the detail and depth of the AO will depend on the objective. The purpose 
is to get adequate information to assess the relevance, merit, cost, and 
management requirements without overburdening the proposer.



Sec. 1872.302  Preparatory effort.

    (a) Headquarters offices and the responsible project installation 
must consult prior to release of the AO.
    (b) The program office shall:
    (1) Synopsize the AO in the Commerce Business Daily and on the NAIS 
prior to release.
    (2) Determine if there is instrumentation or support equipment 
available which may be appropriate to the AO with all necessary 
background data considered essential for use by a proposer;
    (3) Determine mailing lists, including the mailing list maintained 
by the International Affairs Division, Office of External Relations, for 
broad dissemination of the AO; and
    (4) Assure mandatory provisions are contained in the AO.
    (c) Other methods of dissemination of the AO may also be used, such 
as the use of press releases, etc. When possible, the AO should be 
widely publicized through publications of appropriate professional 
societies; however, NASA policy does not allow payment for the placement 
of advertisements.

[62 FR 4477, Jan. 30, 1997, as amended at 63 FR 9966, Feb. 27, 1998]



Sec. 1872.303  Responsibilities.

    (a) The program office originator is responsible for the content of 
the AO and coordination with concerned Headquarters offices and field 
installations. All personnel involved in the evaluation of proposals are 
responsible for familiarizing themselves and complying with this part 
and other applicable regulations. To this end, they are expected to seek 
the advice and guidance of appropriate Headquarters program and staff 
offices, and Project Installation management.
    (b) The Program Office is also responsible for coordinating the AO 
with the International Affairs, Educational Affairs, Management Support 
Divisions, Office of External Relations, Office of General Counsel, 
Office of Safety and Mission Assurance, and Office of Procurement prior 
to issuance (see NPD 1360.2, Initiation and Development of International 
Cooperation in Space and Aeronautical Programs).
    (c) Concurrence of the Office of Procurement is required before 
issuance of an AO.

[62 FR 4477, Jan. 30, 1977, as amended at 63 FR 32764, June 16, 1998; 64 
FR 36606, July 7, 1999; 67 FR 61520, Oct. 1, 2002]



Sec. 1872.304  Proposal opportunity period.

    (a) The AO must accommodate to the maximum extent practicable 
opportunities afforded by the Shuttle/Spacelab flights. The following 
methods may be used to enable an AO to be open for an extended period of 
time and/or to cover a series or range of flight possibilities or 
disciplines:
    (1) The AO may be issued establishing a number of proposal 
submission dates. Normally, no more than three proposal submission dates 
should be established. The submittal dates may be spread over the number 
of months most compatible with the possible flight opportunities and the 
availability of resources necessary to evaluate and fund the proposals.
    (2) The AO may be issued establishing a single proposal submission 
date. However, the AO could provide that NASA amend the AO to provide 
for subsequent dates for submission of proposals, if additional 
investigations are desired within the AO objectives.

[[Page 470]]

    (3) The AO may provide for an initial submission date with the AO to 
remain open for submission of additional proposals up to a final cutoff 
date. This final date should be related to the availability of resources 
necessary to evaluate the continuous flow of proposals, the time 
remaining prior to the flight opportunity(s) contemplated by the AO, and 
payload funding and availability.
    (b) Generally, a core payload of investigations would be selected 
from the initial submission of proposals under the above methods of 
open-ended AOs. These selections could be final or tentative recognizing 
the need for further definition. Proposals received by subsequent 
submission dates would be considered in the scope of the original AO but 
would be subject to the opportunities and resources remaining available 
or the progress being made by prior selected investigations.
    (c) Any proposal, whether received on the initial submission or 
subsequent submission, requires notification to the investigator and the 
investigator's institution of the proposal disposition. Some of the 
proposals will be rejected completely and the investigators immediately 
notified. The remaining unselected proposals may, if agreeable with the 
proposers, be held for later consideration and funding and the 
investigator so notified. However, if an investigator's proposal is 
considered at a later date, the investigator must be given an 
opportunity to validate the proposal with the investigator's institution 
and for updating the cost and other data contained in the original 
submission prior to a final selection. In summary, NASA may retain 
proposals, receiving Category I, II, or III classifications (see 
1872.403-1(e)), for possible later sponsorship until no longer feasible 
to consider the proposal. When this final stage is reached, the 
investigator must be promptly notified. Proposing investigators not 
desiring their proposals be held for later consideration should be given 
the opportunity to so indicate in their original submissions.



Sec. 1872.305  Guidelines for Announcement of Opportunity.

    (a) The AO should be tailored to the particular needs of the 
contemplated investigations and be complete in itself. Each AO will 
identify the originating program office and be numbered consecutively by 
calendar year, e.g., OA-1-95, OA-2-95; OLMSA-1-95; OSS-1-95; etc. The 
required format and detailed instructions regarding the contents of the 
AO are contained in 1872.705.
    (b) The General Instructions and Provisions, (see 1872.705-1) are 
necessary to accommodate the unique aspects of the AO process. 
Therefore, they must be appended to each AO.
    (c) At the time of issuance, copies of the AO must be furnished to 
Headquarters, Office of Procurement (Code HS) and Office of General 
Counsel (Code GK).
    (d) Proposers should be informed of significant departures from 
scheduled dates for activities related in the AO.

[62 FR 4477, Jan. 30, 1997, as amended at 64 FR 36606, July 7, 1999; 65 
FR 82297, Dec. 28, 2000]



Sec. 1872.306  Announcement of opportunity soliciting foreign 
          participation.

    Foreign proposals or U.S. proposals with foreign participation shall 
be treated in accordance with 1835.016-70. Additional guidelines 
applicable to foreign proposers are contained in the Management Plan 
Section of 1872.705-2 and must be included in any Guidelines for 
Proposal Preparation or otherwise furnished to foreign proposers.

[64 FR 48562, Sept. 7, 1999, as amended at 65 FR 82297, Dec. 28, 2000]



Sec. 1872.307  Guidelines for proposal preparation.

    While not all of the guidelines outlined in 1872.705-2 will be 
applicable in response to every AO, the investigator should be informed 
of the relevant information required. The proposal may be submitted on a 
form supplied by the Program Office. However, the proposal should be 
submitted in at least two sections:

[[Page 471]]

    (a) Investigation and Technical Plan; and
    (b) Management and Cost Plan as described in 1872.705-2. 
Investigators shall be required to identify and discuss risk factors and 
issues throughout the proposal where they are relevant, and describe 
their approach to managing these risks.

[65 FR 82297, Dec. 28, 2000, as amended at 67 FR 61520, Oct. 1, 2002]

                 Subpart 1872.4--Evaluation of Proposals



Sec. 1872.401  General.

    (a) The evaluation process considers the aspects of each proposal by 
the following progressive sorting:
    (1) A review resulting in a categorization is performed by using one 
of the methods or combination of the methods outlined in 1872.403. The 
purpose of this initial review is to determine the scientific and/or 
technological merit of the proposals in the context of the AO 
objectives.
    (2) Those proposals which are considered to have the greatest 
scientific or technological merit are then reviewed in detail for the 
engineering, management, and cost aspects, usually by the project office 
at the installation responsible for the project.
    (3) Final reviews are performed by the program office and the 
steering committee and are aimed at developing a group of investigations 
which represent an integrated payload or a well-balanced program of 
investigation which has the best possibility for meeting the AO's 
objectives within programmatic constraints.
    (b) The importance of considering the interrelationship of the 
several aspects of the proposals to be reviewed in the process and the 
need for carefully planning their treatment should not be overlooked. An 
evaluation plan should be developed before issuance of the AO. It should 
cover the recommended staffing for any subcommittee or contractor 
support, review guidelines as well as the procedural flow and schedule 
of the evaluation. While not mandatory, such a plan should be considered 
for each AO. A fuller discussion of the evaluation and selection process 
is included in the following sections of this subpart.



Sec. 1872.402  Criteria for evaluation.

    (a) Each AO must indicate those criteria which the evaluators will 
apply in evaluating a proposal. The relative importance of each 
criterion must also be stated. This information will allow investigators 
to make informed judgments in formulating proposals that best meet the 
stated objectives.
    (b) Following is a list of general evaluation criteria appropriate 
for inclusion in most AOs:
    (1) The scientific, applications, and/or technological merit of the 
investigation.
    (2) The relevance of the proposed investigation to the AO's stated 
scientific, applications, and/or technological objectives.
    (3) The competence and experience of the investigator and any 
investigative team.
    (4) Adequacy of whatever apparatus may be proposed with particular 
regard to its ability to supply the data needed for the investigation.
    (5) The reputation and interest of the investigator's institution, 
as measured by the willingness of the institution to provide the support 
necessary to ensure that the investigation can be completed 
satisfactorily.
    (6) Cost and management aspects will be considered in all 
selections.
    (7) The proposed approach to managing risk (e.g., level of 
technology maturity being applied or developed, technical complexity, 
performance specifications and tolerances, delivery schedule, etc.).
    (8) Other or additional criteria may be used, but the evaluation 
criteria must be germane to the accomplishment of the stated objectives.
    (c) Once the AO is issued, it is essential that the evaluation 
criteria be applied in a uniform manner. If it becomes apparent, before 
the date set for receipt of proposals, that the criteria or their 
relative importance should be changed, the AO will be amended, and all 
known recipients will be informed of the change and given an adequate 
opportunity to consider it in submission of their proposals. Evaluation 
criteria and/or their relative importance

[[Page 472]]

will not be changed after the date set for receipt of proposals.

[62 FR 4472, Jan. 30, 1997, as amended at 67 FR 61520 Oct. 1, 2002]



Sec. 1872.403  Methods of evaluation.

    Alternative methods are available to initiate the evaluation of 
proposals received in response to an AO. These are referred to as the 
Advisory Subcommittee Evaluation Process, the Contractor Evaluation 
Process, and the Government Evaluation Process. In all processes, a 
subcommittee of the appropriate Program Office Steering Committee will 
be formed to categorize the proposals. Following categorization, those 
proposals still in consideration will be processed to the selection 
official.



Sec. 1872.403-1  Advisory subcommittee evaluation process.

    (a) Evaluation of scientific and/or technological merit of proposed 
investigations is the responsibility of an advisory subcommittee of the 
Steering Committee. The subcommittee constitutes a peer group qualified 
to judge the scientific and technological aspects of all investigation 
proposals. One or more subcommittees may be established depending on the 
breadth of the technical or scientific disciplines inherent in the AO's 
objectives. Each subcommittee represents a discipline or grouping of 
closely related disciplines. To maximize the quality of the subcommittee 
evaluation and categorization, the following conditions of selection and 
appointment should be considered.
    (1) The subcommittee normally should be established on an ad hoc 
basis.
    (2) Qualifications and acknowledgment of the professional abilities 
of the subcommittee members are of primary importance. Institutional 
affiliations are not sufficient qualifications.
    (3) The executive secretary of the subcommittee must be a full-time 
NASA employee.
    (4) Subcommittee members should normally be appointed as early as 
possible and prior to receipt of proposals.
    (5) Care must be taken to avoid conflicts of interest. These include 
financial interests, institutional affiliations, professional biases and 
associations, as well as familiar relationships. Conflicts could further 
occur as a result of imbalance between Government and non-Government 
appointees or membership from institutions representing a singular 
school of thought in discipline areas involving competitive theories in 
approach to an investigation.
    (6) The subcommittee should convene as a group in closed sessions 
for proposal evaluation to protect the proposer's proprietary ideas and 
to allow frank discussion of the proposer's qualifications and the merit 
of the proposer's ideas. Lead review responsibility for each proposal 
may be assigned to members most qualified in the involved discipline. It 
is important that each proposal be considered by the entire 
subcommittee.
    (b) It may not be possible to select a subcommittee fully satisfying 
all of the conditions described in paragraph (a) of this section. It is 
the responsibility of the nominating and appointing officials to make 
trade-offs, where necessary, among the criteria in paragraph (a) of this 
section. This latitude permits flexibility in making decisions in accord 
with circumstances of each application. In so doing, however, it is 
emphasized that recognized expertise in evaluating dissimilar proposals 
is essential to the continued workability of the investigation 
acquisition process.
    (c) Candidate subcommittee members should be nominated by the office 
having responsibility for the evaluation. Nominations should be approved 
in accordance with NMI 1150.2, ``Establishment, Operation, and Duration 
of NASA Advisory Committees.'' The notification of appointment should 
specify the duration of assignment on the subcommittee, provisions 
concerning conflicts of interest, and arrangements regarding honoraria, 
per diem, and travel when actually employed.
    (d) It is important that members of the subcommittee be formally 
instructed as to their responsibilities with respect to the 
investigation acquisition process, even where several or all of the 
members have served previously. This briefing of subcommittee members 
should include:

[[Page 473]]

    (1) Instruction of subcommittee members on agency policies and 
procedures pertinent to acquisition of investigations.
    (2) Review of the program goals, AO objectives, and evaluation 
criteria, including relative importance, which provide the basis for 
evaluation.
    (3) Instruction on the use of preliminary proposal evaluation data 
furnished by the Installation Project Office. The subcommittee should 
examine these data to gain a better understanding of the proposed 
investigations, any associated problems, and to consider cost in 
relation to the value of the investigations' objectives.
    (4) Definition of responsibility of the subcommittee for evaluation 
and categorization with respect to scientific and/or technical merit in 
accordance with the evaluation criteria.
    (5) Instruction for documentation of deliberations and 
categorizations of the subcommittee.
    (6) Inform the chairperson of the subcommittee and all members that 
they should familiarize themselves with the provisions of the Standards 
of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 
2635, and the Supplemental Standards of Ethical Conduct for employees of 
the National Aeronautics and Space Administration, 5 CFR part 6901, 
regarding conflicts of interest. Members should inform the appointing 
authority if their participation presents a real or apparent conflict of 
interest situation. In addition, all participants should inform the 
selection official in the event they are subjected to pressure or 
improper contacts.
    (7) Inform members that prior to the selection and announcement of 
the successful investigators and investigations, subcommittee members 
and NASA personnel shall not reveal any information concerning the 
evaluation to anyone who is not also participating in the same 
evaluation proceedings, and then only to the extent that such 
information is required in connection with such proceedings. Also, 
inform members that subsequent to selection of an investigation and 
announcement of negotiations with the investigator's institution, 
information concerning the proceedings of the subcommittee and data 
developed by the subcommittee will be made available to others within 
NASA only when the requestor demonstrates a need to know for a NASA 
purpose. Such information will be made available to persons outside NASA 
including other Government agencies, only when such disclosure is 
concurred in by the Office of General Counsel. In this connection, 
reference is made to 18 U.S.C. 1905 which provides criminal sanctions if 
any officer or employee (including special employees) of the United 
States discloses or divulges certain kinds of business confidential and 
trade secret information unless authorized by law.
    (e) The product of an advisory subcommittee is the classification of 
proposals into four categories. The categories are:
    (1) Category I--Well conceived and scientifically and technically 
sound investigations pertinent to the goals of the program and the AO's 
objectives and offered by a competent investigator from an institution 
capable of supplying the necessary support to ensure that any essential 
flight hardware or other support can be delivered on time and that data 
can be properly reduced, analyzed, interpreted, and published in a 
reasonable time. Investigations in Category I are recommended for 
acceptance and normally will be displaced only by other Category I 
investigations.
    (2) Category II--Well conceived and scientifically or technically 
sound investigations which are recommended for acceptance, but at a 
lower priority than Category I.
    (3) Category III--Scientifically and technically sound 
investigations which require further development. Category III 
investigations may be funded for development and may be reconsidered at 
a later time for the same or other opportunities.
    (4) Category IV--Proposed investigations which are recommended for 
rejection for the particular opportunity under consideration, whatever 
the reason.
    (f) A record of the deliberations of the subcommittee shall be 
prepared by the assigned executive secretary and shall be signed by the 
Chairperson. The

[[Page 474]]

minutes shall contain the categorizations with basic rationale for such 
ratings and the significant strengths and weaknesses of the proposals 
evaluated.



Sec. 1872.403-2  Contractor evaluation process.

    (a) The use of the contractor method for obtaining support for 
evaluation purposes of proposals received in response to an AO requires 
the approval of the Program AA. Prior to the use of this method, 
discussion should be held with the Office of Acquisition.
    (b) It is NASA policy to avoid situations in the acquisition process 
where, by virtue of the work or services performed for NASA, or as a 
result of data acquired from NASA or from other entities, a particular 
company:
    (1) Is given an unfair competitive advantage over other companies 
with respect to future NASA business;
    (2) Is placed in position to affect Government actions under 
circumstances in which there is potential that the company's judgment 
may be biased; or
    (3) Otherwise finds that a conflict exists between the performance 
of work or services for the Government in an impartial manner and the 
company's own self-interest.
    (c) To reduce the possibility of an organizational conflict of 
interest problem arising, the following minimum restrictions will be 
incorporated into the contract:
    (1) No employee of the contractor will be permitted to propose in 
response to the AO;
    (2) The ``Limitation on Future Contracting'' clause contained in 
1852.209-71 will be included in all such contracts; and
    (3) Unless authorized by the NASA contracting officer, the 
contractor shall not contact the originator of any proposal concerning 
its contents.
    (d) The scope of work for the selected contractor will provide for 
an identification of strengths and weaknesses and a summary of the 
proposals. The contractor will not make selections nor recommend 
investigations.
    (e) The steps to be taken in establishing evaluation panels and the 
responsibilities of NASA and the contractor in relation to the panels 
will be as follows:
    (1) The contractor will be required to establish and provide support 
to panels of experts for review of proposals to evaluate their 
scientific and technical merit;
    (2) These panels will be composed of scientists and specialists 
qualified to evaluate the proposals;
    (3) The agency may provide to the contractor lists of scientist(s) 
and specialist(s) in the various disciplines it believes are qualified 
to serve on the panels;
    (4) The contractor will report each panel's membership to NASA for 
approval; and
    (5) The contractor must make all the necessary arrangements with the 
panel members.
    (f) The evaluation support by the contractor's panels of experts 
will be accomplished as follows:
    (1) The panels will review the scientific and technical merit of the 
proposals in accordance with the evaluation criteria in the AO and will 
record their strengths and weaknesses;
    (2) The contractor will make records of each panel's deliberations 
which will form the basis for a report summarizing the results of the 
evaluations. Upon request, the contractor shall provide all such records 
to NASA;
    (3) The chairperson of each panel shall certify that the evaluation 
report correctly represents the findings of the review panel; and
    (4) A final report will be submitted as provided in the contract.
    (g) A subcommittee of the Program Office Steering Committee will be 
established on an ad hoc basis. Utilizing furnished data, the 
subcommittee will classify the proposals into the four categories 
enumerated in 1872.403-1(e)(1), Advisory Subcommittee Evaluation 
Process. A record of the deliberations of the subcommittee should be 
prepared by an assigned executive secretary and signed by the 
chairperson. The minutes should contain the categorizations with the 
basic rationale for such ratings and the significant strengths and 
weaknesses of the proposals evaluated.

[62 FR 4477, Jan. 30, 1997, as amended at 63 FR 9966, Feb. 27, 1998]

[[Page 475]]



Sec. 1872.403-3  Government evaluation process.

    (a) The Program AA may, in accordance with NMI 1150.2, appoint one 
or more full-time Government employees as subcommittee members of the 
Program Office Steering Committee to evaluate and categorize the 
proposals.
    (b) Each subcommittee member should be qualified and competent to 
evaluate the proposals in accordance with the AO evaluation criteria. It 
is important that a subcommittee's evaluation not be influenced by 
others either within or outside of NASA.
    (c) The subcommittee members will not contact the proposers for 
additional information.
    (d) The subcommittee members will classify the proposals in 
accordance with the four categories indicated in 1872.403-1(e)(1). Each 
categorization will be supported by an appropriate rationale including a 
narrative of each proposal's strengths and weaknesses.



Sec. 1872.404  Engineering, integration, and management evaluation.

    (a) The subcommittee responsible for categorization of each proposal 
in terms of its scientific applications, or technical merit should 
receive information on probable cost, technical status, developmental 
risk, integration and safety problems, and management arrangements in 
time for their deliberations.
    (b) This information should be provided at the discretion of the 
Headquarters Program Office by the Project Office at the installation. 
This information can be in general terms and should reflect what 
insights the Project Office can provide without requesting additional 
details from the proposers. This limited Project Office review will not 
normally give the subcommittees information of significant precision. 
The purpose is to give the subcommittee sufficient information so it can 
review the proposals in conjunction with available cost, integration, 
and management considerations to gain an impression of each 
investigator's understanding of the problems of the experiment and to 
permit gross trade-offs of cost versus value of the investigation 
objective.
    (c) Following categorization, the Project Office shall evaluate 
proposals in contention, in depth, including a thorough review of each 
proposal's engineering, integration, management, and cost aspects. This 
review should be accomplished by qualified engineering, cost, and 
business analysts at the project center.
    (d) In assessing proposed costs, the evaluation must consider:
    (1) The investigation objective.
    (2) Comparable, similar or related investigations.
    (3) Whether NASA or the investigator should procure the necessary 
supporting instrumentation or services and the relative cost of each 
mode.
    (4) Total overall or probable costs to the Government including 
integration and data reduction and analysis. In the case of 
investigations proposed by Government investigators, this includes all 
associated direct and indirect cost. With respect to cooperative 
investigations, integration, and other applicable costs should be 
considered.
    (e) The Project Office, as part of the in-depth evaluation of 
proposals that require instrumentation or support equipment, will survey 
all potential sources for Government-owned instrumentation or support 
equipment that may be made available, with or without modifications, to 
the potential investigator. Such items contributed by foreign 
cooperating groups which are still available under cooperative project 
agreements will also be considered for use under the terms and 
conditions specified in the agreements. As part of the evaluation report 
to the Program Office, the availability or nonavailability of 
instrumentation or support equipment will be indicated.
    (f) Proposals which require instrumentation should be evaluated by 
project personnel. This evaluation should cover the inter-faces and the 
assessment of development risks. This evaluation should furnish the 
selection official with sufficient data to contribute to the instrument 
determinations. Important among these are:
    (1) Whether the instrument requires further definition;
    (2) Whether studies and designs are necessary to provide a 
reasonably accurate appreciation of the cost;

[[Page 476]]

    (3) Whether the investigation can be carried out without incurring 
undue cost, schedule, or risk of failure penalties; and
    (4) Whether integration of the instrument is feasible.
    (g) In reviewing an investigator's management plan, the Project 
Office should evaluate the investigator's approach for efficiently 
managing the work, the recognition of essential management functions, 
and the effective overall integration of these functions. Evaluation of 
the proposals under final consideration should include, but not be 
limited to: workload--present and future related to capacity and 
capability; past experience; management approach and organization; e.g.:
    (1) With respect to workload and its relationship to capacity and 
capability, it is important to ascertain the extent to which the 
investigator is capable of providing facilities and personnel skills 
necessary to perform the required effort on a timely basis. This review 
should reveal the need for additional facilities or people, and provide 
some indication of the Government support the investigator will require.
    (2) A review should be made of the investigator, the investigator's 
institution, and any supporting contractor's performance on prior 
investigations. This should assist in arriving at an assessment of the 
investigator and the institution's ability to perform the effort within 
the proposed cost and time constraints.
    (3) The proposed investigator's management arrangements should be 
reviewed, including make or buy choices, support of any co-investigator, 
and preselected subcontractors or other instrument fabricators to 
determine whether such arrangements are justified. The review should 
determine if the proposed management arrangements enhance the 
investigator's ability to devote more time to the proposed experiment 
objectives and still effectively employ the technical and administrative 
support required for a successful investigation. In making these 
evaluations, the Project Office should draw on the installation's 
engineering, business, legal, and other staff resources, as necessary, 
as well as its scientific resources. If further information is needed 
from the proposers, it should be obtained through the proper contacts.



Sec. 1872.405  Program office evaluation.

    (a) A Program Office responsible for the project or program at 
Headquarters will receive the evaluation of the proposals, and weigh the 
evaluative data to determine an optimum payload or program of 
investigation. This determination will involve recommendations 
concerning individual investigations; but, more importantly, should 
result in a payload or program which is judged to optimize total mission 
return within schedule, engineering, and budgetary constraints. The 
recommendations should facilitate sound selection decisions by the 
Program AA. Three sets of recommendations result from the Program Office 
evaluation:
    (1) Optimum payload or program of investigations, or options for 
alternative payloads or programs.
    (2) Recommendation for final or tentative selection based on a 
determination of the degree of uncertainty associated with individual 
investigations. A tentative selection may be considered step one of a 
two-step selection technique.
    (3) Upon consideration of the guidelines contained in 
1872.502(a)(3), recommending responsibility for instrument development.
    (b) The Installation Project Office evaluation is principally 
concerned with ensuring that the proposed investigation can be managed, 
developed, integrated, and executed with an appropriate probability of 
technical success within the estimated probable cost. The Headquarters 
Program Director, drawing upon these inputs, should be mainly concerned 
with determining a payload or program from the point of view of 
programmatic goals and budgetary constraints. Discipline and cost trade-
offs are considered at this level. The Headquarters Program Office 
should focus on the potential contribution to program objectives that 
can be achieved under alternative feasible payload integration options.
    (c) It may be to NASA's advantage to consider certain investigations 
for tentative selection pending resolution of uncertainties in their 
development.

[[Page 477]]

Tentative selections should be reconsidered after a period of time for 
final selection in a payload or program of investigations. This two-step 
selection process should be considered when:
    (1) The potential return from the investigation is sufficient, 
relative to that of the other investigations under consideration, and 
that its further development appears to be warranted before final 
selection.
    (2) The investigation potential is of such high priority to the 
program that the investigation should be developed for flight if at all 
possible.
    (3) The investigative area is critical to the program and 
competitive approaches need to be developed further to allow selection 
of the optimum course.
    (d) Based on evaluation of these considerations associated with the 
investigations requiring further development of hardware, the following 
information should be provided to the Steering Committee and the Program 
AA responsible for selection:
    (1) The expected gain in potential return associated with the 
eventual incorporation of tentatively recommended investigations in the 
payload(s) or program.
    (2) The expected costs required to develop instrumentation to the 
point of ``demonstrated capability.''
    (3) The risk involved in added cost, probability of successfully 
developing the required instrument capability, and the possibility of 
schedule impact.
    (4) Identification of opportunities, if any, for inclusion of such 
investigations in later missions.
    (e) In those cases where investigations are tentatively selected, an 
explicit statement should be made of the process to be followed in 
determining the final payload or program of investigations and the 
proposers so informed. The two-phase selection approach provides the 
opportunity for additional assurance of development potential and 
probable cost prior to a final commitment to the investigation.
    (f) As instruments used in investigations become increasingly 
complex and costly, the need for greater control of their development by 
the responsible Headquarters Program Office also grows. Accordingly, as 
an integral part of the evaluation process, a deliberate decision should 
be made regarding the role of the Principal Investigator with respect to 
the provision of the major hardware associated with that person's 
investigation. The guidelines for the hardware acquisition determination 
are discussed in 1872.502(a)(3).
    (g) The range of options for responsibility for the instrumentation 
consists of:
    (1) Assignment of full responsibility to the Principal Investigator. 
The responsibility includes all in-house or contracted activity to 
provide the instrumentation for integration.
    (2) Retention of developmental responsibility by the Government with 
participation by the Principal Investigator in key events defined for 
the program. In all cases the right of the Principal Investigator to 
counsel and recommend is paramount. Such involvement of the Principal 
Investigator may include:
    (i) Provision of instrument specifications.
    (ii) Approval of specifications.
    (iii) Independent monitorship of the development and advice to the 
Government on optimization of the instrumentation for the investigation.
    (iv) Participation in design reviews and other appropriate reviews.
    (v) Review and concurrence in changes resulting from design reviews.
    (vi) Participation in configuration control board actions.
    (vii) Advice in definition of test program.
    (viii) Review and approval of test program and changes thereto.
    (ix) Participation in conduct of the test program.
    (x) Participation in calibration of instrument.
    (xi) Participation in final inspection and acceptance of the 
instrument.
    (xii) Participation in subsequent test and evaluation processes 
incident to integration and flight preparation.
    (xiii) Participation in the development and support of the 
operations plan.
    (xiv) Analysis and interpretation of data.
    (h) The Principal Investigator should as a minimum:

[[Page 478]]

    (1) Approve the instrument specification.
    (2) Advise the project manager in development and fabrication.
    (3) Participate in final calibration.
    (4) Develop and support the operations plan.
    (5) Analyze and interpret the data.
    (i) The Project Installation is responsible for implementing the 
program or project and should make recommendations concerning the role 
for the Principal Investigators. The Program AA will determine the role, 
acting upon the advice of the Headquarters Program Office and the 
Steering Committee. The Principal Investigator's desires will be 
respected in the negotiation of the person's role allowing an appeal to 
the Program AA and the right to withdraw from participation.
    (j) The Program Office should make a presentation to the Steering 
Committee with supporting documentation on the decisions to be made by 
the responsible Program AA.



Sec. 1872.406  Steering committee review.

    (a) The most important role of the Steering Committee is to provide 
a substantive review of a potential payload or program of investigations 
and to recommend a selection to the Program AA. The Steering Committee 
applies the collective experience of representatives from the program 
and discipline communities and offers a forum for discussing the 
selection from those points of view. In addition to this mission-
specific evaluation function, the Steering Committee provides guidance 
to subcommittee chairpersons and serves as a clearinghouse for problems 
and complaints regarding the process. The Steering Committee is 
responsible for assuring adherence to required procedures. Lastly, it is 
the forum where discipline objectives are weighed against program 
objectives and constraints.
    (b) The Steering Committee represents the means for exercising three 
responsibilities in the process of selecting investigations to:
    (1) Review compliance with procedures governing application of the 
AO process.
    (2) Ensure that adequate documentation has been made of the steps in 
the evaluation process.
    (3) Review the results of the evaluation by the subcommittee, 
Project, and Program Offices and prepare an assessment or endorsement of 
a recommended payload or program of investigations to the Program AA.
    (c) The Purpose in exercising the first of the responsibilities in 
paragraph (b) of this section is to ensure equity and consistency in the 
application of the process. The Steering Committee is intended to 
provide the necessary reviews and coordination inherent in conventional 
acquisition practices.
    (d) The second and third responsibilities of the Steering Committee 
in paragraph (b) are technical. They require that the Steering Committee 
review the evaluations by subcommittee, the Project Office, and the 
Program Office for completeness and appropriateness before forwarding to 
the Program AA. Most important in this review are:
    (1) Degree to which results of evaluations and recommendations 
follow logically from the criteria in the AO.
    (2) Consistency with objectives and policies generally beyond the 
scope of Project/Program Offices.
    (3) Sufficiency of reasons stated for tentative recommendations of 
those investigations requiring further instrument research and 
development.
    (4) Sufficiency of reasons stated for determining responsibilities 
for instrument development.
    (5) Sufficiency of consideration of reusable space flight hardware 
and support equipment for the recommended investigations.
    (6) Sufficiency of reasons for classifying proposed investigations 
in their respective categories.
    (7) Fair treatment of all proposals.
    (e) The Steering Committee makes recommendations to the selection 
official on the payload or program of investigations and notes caveats 
or provisions important for consideration of the selection official.



Sec. 1872.407  Principles to apply.

    (a) 1872.406 contains a description of the evaluation function 
appropriate for a major payload or very significant

[[Page 479]]

program of investigation. The levels of review, evaluation, and 
refinement described should be applied in those selections where 
warranted but could be varied for less significant selection situations. 
It is essential to consider the principles of the several evaluative 
steps, but it may not be essential to consider the principles of the 
several evaluative steps, but it may not be essential to maintain strict 
adherence to the sequence and structure of the evaluation system 
described. The selection official is responsible for determining the 
evaluation process most appropriate for the selection situation using 
this subpart 1872.4 as a guide.
    (b) Significant deviations from the provisions of this part 1872 
must be fully documented and be approved by the Program AA after 
concurrence by the Office of General Counsel and Office of Acquisition.

                  Subpart 1872.5--The Selection Process



Sec. 1872.501  General.

    The Program AA is responsible for selecting investigations for 
contract negotiation. This decision culminates the evaluations and 
processes that can be summarized as follows:

----------------------------------------------------------------------------------------------------------------
           Evaluation stage                 Principal emphasis                        Results
----------------------------------------------------------------------------------------------------------------
Contractor (when authorized)..........  Summary evaluation         Report to Subcommittee.
                                         (strengths and
                                         weaknesses).
Subcommittee individual...............  Science and technological  Categorization of proposals.
                                         relevance, value, and
                                         feasibility.
Project Office........................  Engineering/cost/          Reports to Subcommittee and Program Office.
                                         integration/management
                                         assessment.
Program Office........................  Consistency with           Recommendations to Steering Committee of
                                         Announcement and program   payload or program of investigations.
                                         objectives, and cost and
                                         schedule constraints.
Steering Committee....................  Logic of proposed          Recommendations to Program Associate
                                         selections and             Administrator.
                                         compliance with proper
                                         procedures.
----------------------------------------------------------------------------------------------------------------



Sec. 1872.502  Decisions to be made.

    (a) The selection decisions by the Program AA constitute management 
judgments balancing individual and aggregate scientific or technological 
merit, the contribution of the recommended investigations to the AO's 
objectives, and their consonance with budget constraints to make the 
following decisions:
    (1) Determination of the adequacy of scientific/technical analysis 
supporting the recommended selections. This supporting rationale should 
involve considerations including:
    (i) Assurance that the expected return contributes substantially to 
program objectives and is likely to be realized.
    (ii) Assurance that the evaluation criteria were applied 
consistently to all proposed investigations.
    (iii) Assurance that the set of recommended investigations 
constitutes the optimum program or payload considering potential value 
and constraints.
    (iv) Assurance that only one investigator is assigned as the 
Principal Investigator to each investigation and that the Principal 
Investigator will assume the associated responsibilities and be the 
single point of contact and leader of any other investigators selected 
for the same investigation.
    (2) Determination as to whether available returned space hardware or 
support equipment, with or without modification, would be adequate to 
meet or support investigation objectives.
    (3) Determination as to whether the proposed instrument fabricator 
qualifies and should be accepted as a sole source or whether the 
requirement should be competitively procured. The following guidelines 
apply:
    (i) The hardware required should be subjected to competitive 
solicitation where it is clear that the capability is not sufficiently 
unique to justify sole source acquisition.
    (ii) The hardware requirement should be purchased from the 
fabricator proposed by the investigator, which may be the investigator's 
own institution,

[[Page 480]]

    (A) When the fabricator's proposal contains technical data that are 
not available from another source, and it is not feasible or practicable 
to define the fabrication requirement in such a way as to avoid the 
necessity of using the technical data contained in the proposal;
    (B) When the fabricator offers unique capabilities that are not 
available from another source;
    (C) When the selection official determines that the proposed 
hardware contributes so significantly to the value of the investigator's 
proposal as to be an integral part of it.
    (iii) If a producer other than the one proposed by the investigator 
offers unique capabilities to produce the hardware requirement, NASA may 
buy the hardware from the qualified fabricator.
    (iv) If a NASA employee submits a proposal as a principal 
investigator, any requirement for hardware necessary to perform the 
investigation must either be competed by the installation acquisition 
office or a justification must be written, synopsized, and approved in 
accordance with the requirements of FAR and the NASA FAR Supplement.
    (4) Determination of the desirability for tentative selection of 
investigations. This determination involves considerations including:
    (i) Assessment of the state of development of the investigative 
hardware, the cost and schedule for development in relation to the gain 
in potential benefits at the time of final selection.
    (ii) Assurance that there is adequate definition of investigation 
hardware to allow parallel design of other project hardware.
    (iii) Assurance that appropriate management procedures are contained 
in the project plan for reevaluation and final selection (or rejection) 
on an appropriate time scale.
    (5) Determination of the acceptability of the proposer's management 
plan, including the proposed hardware development plan, and the 
necessity, if any, of negotiating modifications to that plan.
    (b) In the process of making the determinations described in 
paragraph (a) (1) of this section, the Program AA may request additional 
information or evaluations. In most instances, this information can be 
provided by the Program Office responsible for the mission, project, or 
program. However, the Program AA may reconvene the subcommittee or poll 
the members individually or provide for additional analysis or require 
additional data from evaluators or proposers as considered necessary to 
facilitate the Program AA's decision.



Sec. 1872.503  The selection statement.

    Upon completion of deliberations, the responsible Program AA shall 
issue a selection statement. Ordinarily this statement will, upon 
request, be releasable to the public. As a minimum, the selection 
statement should include:
    (a) The general and specific evaluation criteria and relative 
importance used for the selection.
    (b) The categorizations provided by the subcommittee and the 
rationale for accepting or not accepting each Category I proposal and a 
succinct statement concerning the nonacceptance of all other proposals.
    (c) A concise description of each investigation accepted including 
an indication as to whether the selection is a partial acceptance of a 
proposal and/or a combination with other investigators.
    (d) The role of the Principal Investigator with regard to hardware 
essential to the investigation and whether the Principal Investigator 
will be responsible for hardware acquisition and the basis therefor.
    (e) An indication of the plan and acquisition using the regular 
acquisition processes, if the Principal Investigator is not to acquire 
the hardware.
    (f) A statement indicating whether the selection is final or 
tentative, recognizing the need for better definition of the 
investigation and its cost.
    (g) A statement indicating use of Government-owned space flight 
hardware and/or support equipment.



Sec. 1872.504  Notification of proposers.

    (a) It is essential that investigators whose proposals have no 
reasonable chance for selection be so apprised as soon as practicable. 
The responsible

[[Page 481]]

Program Office will, upon such determination, notify investigators of 
that fact with the major reason(s) why the proposals were so considered. 
The notification letter should also inform such investigators that they 
may obtain a detailed oral debriefing provided they request it in 
writing.
    (b) Letters of notification will be sent to those Principal 
Investigators selected to participate. This letter should not commit the 
agency to more than negotiations for the selected investigation, but it 
should indicate the decision made and contain:
    (1) A concise description of the Principal Investigator's 
investigation as selected, noting substantive changes, if any, from the 
investigation originally proposed by the Principal Investigator.
    (2) The nature of the selection, i.e., whether it should be 
considered final or tentative requiring additional hardware or cost 
definition.
    (3) A description of the role of the Principal Investigator 
including the responsibility for the provision of instruments for flight 
experiments.
    (3) Identification of the principal technical and management points 
to be treated in subsequent negotiations.
    (5) Any rights to be granted on use of data, publishing of data, and 
duration of use of the data.
    (6) Where applicable, indication that a foreign selectee's 
participation in the program will be arranged between the Office of 
External Relations, and the foreign government agency which endorsed the 
proposal.
    (c) In conjunction with the notification of successful foreign 
proposers, the Program Office shall forward a letter to the responsible 
Office of External Relations, addressing the following:
    (1) The scientific technological objective of the effort.
    (2) The period of time for the effort.
    (3) The responsibilities of NASA and of the sponsoring governmental 
agency; these may include:
    (i) Provision and disposition of hardware and software.
    (ii) Responsibilities for reporting, reduction and dissemination of 
data.
    (iii) Responsibilities for transportation of hardware.
    (4) Any additional information pertinent to the conduct of the 
experiment.
    (d) Using the information provided above, the Office of External 
Relations will negotiate an agreement with the sponsoring foreign 
agency.
    (e) Notices shall also be sent to those proposers not notified 
pursuant to paragraphs (a) through (d) of this section, and, as 
applicable, a copy to the sponsoring foreign government agency. It is 
important that these remaining proposers be informed at the same time as 
those selected. Other agency notifications and press release procedures 
will apply, as appropriate.

[62 FR 4477, Jan. 30, 1997, as amended at 48562, Sept. 7, 1999]



Sec. 1872.505  Debriefing.

    It is the policy to debrief, if requested, unsuccessful proposers of 
investigations in accordance with FAR 15.5. The following shall be 
considered in arranging and conducting debriefings:
    (a) Debriefing shall be done by an official designated by the 
responsible Program AA. Any other personnel receiving requests for 
information concerning the rejection of a proposal shall refer to the 
designated official.
    (b) Debriefing of unsuccessful offerors shall be made at the 
earliest possible time; debriefing will generally be scheduled 
subsequent to selection but prior to award of contracts to the 
successful proposers.
    (c) Material discussed in debriefing shall be factual and consonant 
with the documented findings of several stages of the evaluation process 
and the selection statement.
    (d) The debriefing official shall advise of weak or deficient areas 
in the proposal, indicate whether those weaknesses were factors in the 
selection, and advise of the major considerations in selecting the 
competing successful proposer where appropriate.
    (e) The debriefing official shall not discuss other unsuccessful 
proposals, rankings, votes of members, or attempt to make a point-by-
point comparison with successful proposals.
    (f) A memorandum of record of the debriefing shall be provided the 
Chairperson of the Steering Committee.

[62 FR 4477, Jan. 30, 1997, as amended at 63 FR 9967, Feb. 27, 1998]

[[Page 482]]

                   Subpart 1872.6--Payload Formulation



Sec. 1872.601  Payroll formulation.

    (a) Payload elements for Space Transportation System (STS) missions 
can come from many sources. These include those selected through AOs, 
those generated by in-house research, unsolicited proposals and those 
derived from agreements between NASA and external entities. However, it 
is anticipated that the primary source of NASA payload elements will be 
the AO process. Generally, proposals for payload elements submitted 
outside the AO process will not be selected if they would have been 
responsive to an AO objective.
    (b) Payload elements for STS flights fall into two major categories. 
``NASA or NASA-related'' payload elements are those which are developed 
by a NASA Program Office or by another party with which NASA has a 
shared interest. ``Non-NASA'' payload elements are those which require 
only STS operation services from NASA and interface with NASA through 
the Office of Space Flight.
    (c) In general, a Program Office will be designated responsibility 
for formulating the ``NASA or NASA-related'' portion of an STS payload. 
The Office of Space Flight will be responsible for formulating the 
``non-NASA'' portion of an STS payload. Flights may, of course, consist 
wholly of payload elements of either type. Resource allocation for mixed 
missions will be determined by the Program Office and the Office of 
Space Flight.

          Subpart 1872.7--Acquisition and Other Considerations



Sec. 1872.701  Early involvement essential.

    (a) The distinctive feature of the AO process is that it is both a 
program planning system and an acquisition system in one procedure. The 
choice of what aeronautical and space phenomena to investigate is 
program planning. Acquisition is involved with the purchase of property 
and services to carry out the selected investigations.
    (b) Because of both the programmatic and multi-functional aspects of 
the AO process, early involvement of external program office elements is 
essential. Success of the process requires that it proceed in a manner 
that meets program goals and complies with statutory requirements and 
acquisition policy.
    (c) The planning, preparation and selection schedule for the 
investigation should commence early enough to meet statutory and 
regulatory requirements. Chief of these are the requirements for 
soliciting maximum feasible competition and for conducting discussions 
with offerors within the competitive range by the Project Office and/or 
any other evaluation group or office authorized by the selection 
official.



Sec. 1872.702  Negotiation, discussions, and contract award.

    (a) The AO shall be synopsized in the Commerce Business Daily. 
Responses to the synopsis must be added to the AO mailing list. Every 
effort should be made to publish opportunities far enough in advance to 
encourage a broad response. (In no case less than 45 days before the 
date set for receipt of proposals).
    (b) Significant items for consideration after receipt of proposals:
    (1) Late proposals--The policy on late proposals contained in 
1815.208 is applicable. Potential investigators should be informed of 
this policy. In the AO context, the selection official or designee will 
determine whether a late proposal will be considered.
    (2) Competitive considerations. (i) The proposals submitted in 
response to the AOs are not necessarily fully comparable. However, all 
proposals within the scope of an opportunity must be evaluated in 
accordance with the criteria in the AO.
    (ii) Cost must be considered in the evaluation if costs are involved 
in the investigation. General cost information should be given to the 
subcommittee by the Installation Project Office for use in determining 
the categories into which the subcommittee places proposals.
    (iii) Further information should be obtained, as necessary, by the 
Installation Project Office and/or any other

[[Page 483]]

evaluation group authorized by the selection official and from the 
investigators whose proposals are being considered. This is similar to 
the acquisition procedure for conducting written and oral discussions. A 
major consideration during discussions is to avoid unfairness and 
unequal treatment. Good judgment is required by in the extent and 
content of the discussions. There should be no reluctance in obtaining 
the advice and guidance of management and staff offices during the 
discussion phase. A summary should be prepared of the primary points 
covered in the written and oral discussions and show the effect of the 
discussions on the evaluation of proposals. This summary should also 
contain general information about the questions submitted to the 
investigators, the amount of time spent in oral discussion, and 
revisions in proposals, if any, resulting from the discussions.
    (iv) During the conduct of discussions, all proposers being 
considered shall be offered an equitable opportunity to submit cost, 
technical, or other revisions in their proposals as may result from the 
discussions. All proposers shall be informed that any revisions to their 
proposals must be submitted by a common cut-off date in order to be 
considered. The record should note compliance of the investigators with 
that cut-off date.
    (c) Significant items for consideration before award:
    (1) Issuance of a Request for Proposal (RFP)--A formal RFP should 
not be issued to obtain additional information on proposals accepted 
under the AO process. Additional technical, cost, or other data received 
should be considered as a supplement to the original proposal.
    (2) Selection of Investigator/Contractor--The selection decision of 
the Program AA approves the selected investigators and their 
institutions as the only satisfactory sources for the investigations. 
The selection of the investigator does not constitute the selection of 
that person's proposed supporting hardware fabricator unless the 
selection official specifically incorporates the fabricator in the 
selection decision.

[62 FR 4477, Jan. 30, 1997, as amended at 63 FR 9967, Feb. 27, 1998]



Sec. 1872.703  Application of the Federal Acquisition Regulation (FAR) 
          and the NASA FAR Supplement.

    The AO process supplants normal acquisition procedures only to the 
extent necessary to meet the distinctive features of the process. This 
process is not intended to conflict with any established statutory 
requirements.



Sec. 1872.704  Other administrative and functional requirements.

    After selection, all other applicable administrative and functional 
requirements will be complied with or incorporated in any resultant 
contract.



Sec. 1872.705  Format of Announcement of Opportunity (AO).

    Use the following format instructions when drafting AOs:

                      OMB Approval Number 2700-0085

              National Aeronautics and Space Administration

                          Washington, DC 20546

                       Announcement of Opportunity

AO No. ---------------- (Issuance Date)


(Descriptive Heading)

                    I. Description of the Opportunity

    This section should set forth the basic purpose of the AO and 
describe the opportunity in terms of NASA's desire to obtain proposals 
which will meet the stated scientific, applications and/or technological 
objectives. These objectives may be directed to the generation of 
proposals for investigations and/or they may pertain to the acquisition 
of dissimilar ideas leading to selection of investigators, guest 
observers, guest investigators, or theorists. In those instances where 
proposals for investigations are sought, this section should describe 
the requirement, if any, for selected investigators to serve on advisory 
or working groups. In those instances where the project or program has 
not yet been approved, a

[[Page 484]]

qualifying statement should be included to indicate that this AO does 
not constitute an obligation for the Government to carry the effort to 
completion.

                       II. NASA's Safety Priority

    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. NASA's safety priority is to 
protect:
    (1) The public,
    (2) Astronauts and pilots,
    (3) The NASA workforce (including NASA employees working under NASA 
instruments), and
    (4) High-value equipment and property.

                           III. AO Objectives

    This section will give a succinct statement of the specific 
scientific, applications, and/or technological objective(s) for the 
opportunity(s) for which proposals are sought.

                             IV. Background

    This section should provide an explanation of the context of the 
opportunity, i.e., information which will help the reader understand the 
relevance of the opportunity.

                     V. Proposal Opportunity Period

    This section should provide the proposal opportunity period(s). The 
following methods may be used individually or in conjunction for 
establishing the proposal opportunity period(s):
    (a) The AO may be issued establishing a single date by which 
proposals may be received. However, the AO could provide that the agency 
may amend the AO to provide for subsequent dates for submission of 
proposals, if additional investigations are desired.
    (b) The AO may be issued to provide for an initial submission date 
with the AO to remain open for submission of additional proposals up to 
a final cutoff date. This final date should be related to the 
availability of resources necessary to evaluate the continuous flow of 
proposals and the time remaining prior to the flight opportunities 
contemplated by the AO.
    (c) The AO may be issued establishing a number of dates by which 
proposals may be received. Normally no more than three proposal 
submission dates should be established. The submittal dates may be 
spread over the number of months most compatible with the possible 
flight opportunities and the availability of resources necessary to 
evaluate and fund the proposal. If desired, this section should further 
inform the reader that if a proposal receives a Category I, II, or III 
rating but is not selected for immediate support, the proposal may, if 
desired by the proposer, be held by NASA for later consideration within 
the ground rules set forth in paragraphs 1 and 2. The section should 
inform the reader that if the person wishes the proposal to be so 
treated, it should be indicated in the proposal. This section should 
further indicate that offerors whose proposals are to be considered at a 
later time will be given the opportunity to revalidate their proposals 
with their institution and update cost data.

                    VI. Requirements and Constraints

    (a) This section will include technical, programmatic, cost, and 
schedule requirements or constraints, as applicable, and will specify 
performance limits such as lifetime, flight environment, safety, 
reliability, and quality assurance provisions for flight-worthiness. It 
will specify the requirements and constraints related to the flight crew 
and the ground support. It will also include requirements for data 
analysis, estimated schedule of data shipment to user for observer, need 
for preliminary or raw data analysis and interim reports. It will 
specify the planned period (time) for data analysis to be used for 
budgeting. It will provide any additional information necessary for a 
meaningful proposal.
    (b) When NASA determines that instrumentation, ground support 
equipment, or NASA supporting effort will be required or may be expected 
to be required by the contemplated investigations, the AO should 
indicate to the potential investigators that they

[[Page 485]]

must submit specific information regarding this requirement to allow an 
in-depth evaluation of the technical aspects, cost, management, and 
other factors by the Installation Project Office.

                  VII. Proposal Submission Information

    (a) Preproposal Activities--In this section, the AO will indicate 
requirements and activities such as the following:
    (1) Submittal of ``Notice of Intent'' to propose (if desired), date 
for submission, and any additional required data to be submitted. 
Indicate whether there are information packages which will only be sent 
to those who submit ``Notice of Intent.''
    (2) Attendance at the preproposal conference (if held). Information 
should be provided as to time, place, whether attendance will be 
restricted in number from each institution, and whether prior notice of 
intention to attend is required. If desired, a request may be included 
that questions be submitted in writing several days before the 
conference in order to prepare replies.
    (3) The name and address of the scientific or technical contact for 
questions or inquiries.
    (4) Any other preproposal data considered necessary.
    (b) Format of Proposals--This section should provide the 
investigator with the information necessary to enable an effective 
evaluation of the proposal. The information is as follows:
    (1) Proposal--The AO should indicate how the proposal should be 
submitted to facilitate evaluation. The proposal should be submitted in 
at least two sections; (i) Investigation and Technical Section; and (ii) 
Management and Cost Section.
    (2) Signatory--The proposal must be signed by an institutional 
official authorized to ensure institutional support, sponsorship of the 
investigation, management, and financial aspects of the proposal.
    (3) Quantity--The number of copies of the proposal should be 
specified. One copy should be clear black and white, and on white paper 
of quality suitable for reproduction.
    (4) Submittal Address--Proposals from domestic sources should be 
mailed to arrive not later than the time indicated for receipt of 
proposals to:

   National Aeronautics and Space Administration, Office of (Program)

Code____________________________________________________________________

AO No.__________________________________________________________________

Washington, DC 20546

    (5) Format--To aid in proposal evaluation, and to facilitate 
comparative analysis, a uniform proposal format will be required for 
each AO. The number of pages, page size, and restriction on photo 
reduction, etc., may be included. The format contained in Appendix B can 
be used as a guide. Proposers may be requested to respond to all of the 
items or the AO may indicate that only selected items need be addressed. 
Using the Appendix format as a guide, specific guidelines may be 
prepared for the AO or an appropriate form developed.
    (c) Additional Information--This section may be used to request or 
furnish data necessary to obtain clear proposals that should not require 
further discussions with the proposer by the evaluators. Other pertinent 
data could also be included, such as significant milestones.
    (d) Foreign Proposals--The procedures for submission of proposals 
from outside the U.S. are contained in Appendix B, ``Guidelines for 
Proposal Preparation.'' This section will describe any additional 
requirements, for example, if information copies of proposals are 
required to be furnished by the proposer to other organizations at the 
same time the proposal is submitted.
    (e) Cost Proposals (U.S. Investigators Only)--This section defines 
any special requirements regarding cost proposals of domestic 
investigators. Reference than should be made to the cost proposal 
certifications indicated in Appendix B, ``Guidelines for Proposal 
Preparation.''

        VIII. Proposal Evaluation, Selection, and Implementation

    (a) Evaluation and Selection Procedure.

[[Page 486]]

    (1) This section should notify the proposers of the evaluation 
process.
    (2) For example, a statement similar to the following should be 
included:
    ``Proposals received in response to this AO will be reviewed by a 
subcommittee appointed by the (appropriate Program AA). The purpose of 
the review is to determine the scientific/technical merit of the 
proposals in the context of this AO and so categorize the proposals. 
Those proposals with are considered to have the greatest scientific/
technical merit are further reviewed for engineering, integration, 
management, and cost aspects by the Project Office at the installation 
responsible for the project. On the basis of these reviews, and the 
reviews of the responsible Program Office and the Steering Committee, 
the (appropriate Program Associate Administrator) will appoint/select 
the investigators/investigations.''
    (b) Evaluation Criteria.
    (1) This section should indicate that the selection proposals which 
best meet the specific scientific, applications, and/or technological 
objectives, stated in the AO, is the aim of the solicitation. This 
section should list the criteria to be used in the evaluation of 
proposals and indicate their relative importance. See NASA FAR 
Supplement 1872.402 for a listing of criteria generally appropriate.
    (2) This section will also inform the proposers that cost and 
management factors, e.g., proposed small business participation in 
instrumentation fabrication or investigation support, will be separately 
considered.

                              IX. Schedule

    This section should include the following, as applicable:
    (a) Preproposal conference date.
    (b) Notice of Intent submittal date.
    (c) Proposal submittal date(s).
    (d) Target date for announcement of selections.

                              X. Appendices

    (a) General Instructions and Provisions (must be attached to each 
AO).
    (b) Other Pertinent Data, e.g., Spacelab Accommodations Data.


/s/ Associate Administrator

for (Program)

[62 FR 4477, Jan. 30, 1997, as amended at 65 FR 82298, Dec. 28, 2000; 67 
FR 61520, Oct. 1, 2002]



Sec. 1872.705-1  Appendix A: General Instructions and Provisions.

    Include the following in all Announcements of Opportunity:

               I. Instrumentation and/or Ground Equipment

    By submitting a proposal, the investigator and institution agree 
that NASA has the option to accept all or part of the offeror's plan to 
provide the instrumentation or ground support equipment required for the 
investigation or NASA may furnish or obtain such instrumentation or 
equipment from any other source as determined by the selecting official. 
In addition, NASA reserves the right to require use, by the selected 
investigator, of Government instrumentation or property that becomes 
available, with or without modification, that will meet the 
investigative objectives.

 II. Tentative Selections, Phased Development, Partial Selections, and 
                        Participation With Others

    By submitting a proposal, the investigator and the organization 
agree that NASA has the option to make a tentative selection pending a 
successful feasibility or definition effort. NASA has the option to 
contract in phases for a proposed experiment, and to discontinue the 
investigative effort at the completion of any phase. The investigator 
should also understand that NASA may desire to select only a portion of 
the proposed investigation and/or that NASA may desire the individual's 
participation with other investigators in a joint investigation, in 
which case the investigator will be given the opportunity to accept or 
decline such partial acceptance or participation with other 
investigators prior to a selection. Where participation with other 
investigators as a team is agreed to, one of the team members will 
normally be designated as its team leader or contact point.

[[Page 487]]

                    III. Selection Without Discussion

    The Government reserves the right to reject any or all proposals 
received in response to this AO when such action shall be considered in 
the best interest of the Government. Notice is also given of the 
possibility that any selection may be made without discussion (other 
than discussions conducted for the purpose of minor clarification). It 
is therefore emphasized that all proposals should be submitted initially 
on the most favorable terms that the offeror can submit.

                         IV. Foreign Prosposals

    See Appendix B, Management Plan and Cost Plan, paragraph (a)(3).

                      V. Treatment of Proposal Data

    It is NASA policy to use information contained in proposals and 
quotations for evaluation purposes only. While this policy does not 
require that the proposal or quotation bear a restrictive notice, 
offerors or quoters should place the following notice on the title page 
of the proposal or quotation and specify the information, subject to the 
notice by inserting appropriate identification, such as page numbers, in 
the notice. Information (data) contained in proposals and quotations 
will be protected to the extent permitted by law, but NASA assumes no 
liability for use and disclosure of information not made subject to the 
notice. To prevent inadvertent disclosure, proposal data shall not be 
included in submissions (e.g. final reports) that are routinely released 
to the public.

Restriction on Use and Disclosure of Proposal and Quotation Information 
                                 (Data)

    The information (data) contained in [insert page numbers or other 
identification] of this proposal or quotation constitutes a trade secret 
and/or information that is commercial or financial and confidential or 
privileged. It is furnished to the Government in confidence with the 
understanding that it will not, without permission of the offeror, be 
used or disclosed for other than evaluation purposes; provided, however, 
that in the event a contract is awarded on the basis of this proposal or 
quotation the Government shall have the right to use and disclose this 
information (data) to the extent provided in the contract. This 
restriction does not limit the Government's right to use or disclose 
this information (data) if obtained from another source without 
restriction.

           VI. Status of Cost Proposals (U.S. Proposals Only)

    The investigator's institution agrees that the cost proposal is for 
proposal evaluation and selection purposes, and that following selection 
and during negotiations leading to a definitive contract, the 
institution may be required to resubmit cost information in accordance 
with FAR 15.403-5.

                           VII. Late Proposals

    Proposals or proposal modifications received after the latest date 
specified for receipt may be considered if a significant reduction in 
cost to the Government is probable or if there are significant technical 
advantages, as compared with proposals previously received.

       VIII. Source of Space Transportation System Investigations

    Investigators are advised that candidate investigations for Space 
Transportation System (STS) missions can come from many sources.

             IX. Disclosure of Proposals Outside Government

    NASA may find it necessary to obtain proposal evaluation assistance 
outside the Government. Where NASA determines it is necessary to 
disclose a proposal outside the Government for evaluation purposes, 
arrangements will be made with the evaluator for appropriate handling of 
the proposal information. Therefore, by submitting a proposal the 
investigator and institution agree that NASA may have the proposal 
evaluated outside the Government. If the investigator or institution 
desire to preclude NASA from using an outside evaluation, the 
investigator or institution should so indicate on the cover. However, 
notice is given that if NASA is precluded from using outside

[[Page 488]]

evaluation, it may be unable to consider the proposal.

               X. Equal Opportunity (U.S. Proposals Only)

    By submitting a proposal, the investigator and institution agree to 
accept the following clause in any resulting contract:

                            Equal Opportunity

    During the performance of this contract, the Contractor agrees as 
follows:
    (a) The Contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, or 
national origin.
    (b) The Contractor will take affirmative action to ensure that 
applicants are employed, and that employees are treated during 
employment without regard to their race, color, religion, sex, or 
national origin. This shall include, but not be limited to, (1) 
employment, (2) upgrading, (3) demotion, (4) transfer, (5) recruitment 
or recruitment advertising, (6) layoff or termination, (7) rates of pay 
or other forms of compensation, and (8) selection for training, 
including apprenticeship.
    (c) The Contractor shall post in conspicuous places available to 
employees and applicants for employment the notices to be provided by 
the Contracting Officer that explain this clause.
    (d) The Contractor shall, in all solicitations or advertisements for 
employees placed by or on behalf of the Contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, religion, sex, or national origin.
    (e) The Contractor shall send to each labor union or representative 
of workers with which it has a collective bargaining agreement or other 
contract or understanding the notice to be provided by the Contracting 
Officer, advising the labor union or workers' representative of the 
Contractor's commitments under this clause, and post copies of the 
notice in conspicuous places available to employees and applicants for 
employment.
    (f) The Contractor shall comply with Executive Order 11246, as 
amended, and the rules, regulations, and orders of the Secretary of 
Labor.
    (g) The Contractor shall furnish to the contracting agency all 
information required by Executive Order 11246, as amended, and by the 
rules, regulations, and orders of the Secretary of Labor. Standard Form 
100 (EEO-1), or any successor form, is the prescribed form to be filed 
within 30 days following the award, unless filed within 12 months 
preceding the date of award.
    (h) The Contractor shall permit access to its books, records, and 
accounts by the contracting agency or the Office of Federal Contract 
Compliance Programs (OFCCP) for the purposes of investigation to 
ascertain the Contractor's compliance with the applicable rules, 
regulations, and orders.
    (i) If the OFCCP determines that the Contractor is not in compliance 
with this clause or any rule, regulation, or order of the Secretary of 
Labor, the contract may be canceled, terminated, or suspended in whole 
or in part, and the Contractor may be declared ineligible for further 
Government contracts, under the procedures authorized in Executive Order 
11246, as amended. In addition, sanctions may be imposed and remedies 
invoked against the Contractor as provided in Executive Order 11246, as 
amended, the rules, regulations, and orders of the Secretary of Labor, 
or as otherwise provided by law.
    (j) The Contractor shall include the terms and conditions of 
subparagraph 1 through 9 of this clause in every subcontract or purchase 
order that is not exempted by the rules, regulations, or orders of the 
Secretary of Labor issued under Executive Order 11246, as amended, so 
that these terms and conditions will be binding upon each subcontractor 
or vendor.
    (k) The Contractor shall take such action with respect to any 
subcontract or purchase order as the contracting agency may direct as a 
means of enforcing these terms and conditions, including sanctions for 
non-compliance; provided, that if the Contractor becomes involved in, or 
is threatened with, litigation with a subcontractor or vendor as a 
result of direction, the Contractor may request the United States to 
enter into the litigation to protect the interests of the United States.

[[Page 489]]

                            XI. Patent Rights

    (a) For any contract resulting from this solicitation awarded to 
other than a small business firm or nonprofit organization, the clause 
at 1852.227-70, ``New Technology,'' shall apply. Such contractor may, in 
advance of contract, request waiver of rights as set forth in the 
provision at 1852.227-71, ``Request for Waiver of Rights to 
Inventions.''
    (b) For any contract resulting from this solicitation awarded to a 
small business firm or nonprofit organization, the clause at FAR 52.227-
11, ``Patent Rights--Retention by the Contractor (Short Form)'' (as 
modified by 1852.227-11), shall apply.

[62 FR 4477, Jan. 30, 1997, as amended at 63 FR 9967, Feb. 27, 1998; 64 
FR 48562, Sept. 7, 1999]



Sec. 1872.705-2  Appendix B: Guidelines for Proposal Preparation.

    The following guidelines apply to the preparation of proposals in 
response to an AO. The material is a guide for the proposer and not 
intended to be encompassing or directly applicable to the various types 
of proposals which can be submitted. The proposer should provide 
information relative to those items applicable or as required by the AO.

                             I. Cover Letter

    A letter or cover page should be forwarded with the proposal signed 
by the investigator and an official by title of the investigator's 
organization who is authorized to commit the organization responsible 
for the proposal.

                          II. Table of Contents

    The proposal should contain a table of contents.

                      III. Identifying Information

    The proposal should contain a short descriptive title for the 
investigation, the names of all investigators, the name of the 
organization or institution and the full name, address, and telephone 
number of the Principal Investigator.

                    Investigation and Technical Plan

                  (a) Investigation and Technical Plan

    The investigation and technical plan generally will contain the 
following:
    (1) Summary. A concise statement about the investigation, its 
conduct, and the anticipated results.
    (2) Objective and Significant Aspects. A brief definition of the 
objectives, their value, and their relationships to past, current, and 
future effort. The history and basis for the proposal and a 
demonstration of the need for such an investigation. A statement of 
present development in the discipline field.
    (3) Investigation Approach.
    (i) Fully describe the concept of the investigation.
    (ii) Detail the method and procedure for carrying out the 
investigation.

                           (b) Instrumentation

    This section should describe all information necessary to plan for 
experiment development, integration, ground operations, and flight 
operations. This section must be complete in itself without need to 
request additional data. Failure to furnish complete data may preclude 
evaluation of the proposal.
    (1) Instrument Description--This section should fully describe the 
instrument and indicate items which are proposed to be developed as well 
as any existing instrumentation. Performance characteristics should be 
related to the experiment objectives as stated in the proposal.
    (2) Instrument Integration--This section should describe all 
parameters of the instrument pertinent to the accommodation of the 
instrument in the spacecraft, Spacelab, Shuttle Orbiter, Space Station, 
etc. These include, but are not limited to, volumetric envelope; weight; 
power requirements; thermal requirements; telemetry requirement; 
sensitivity to or generation of contamination (e.g., EMI gaseous 
effluent); data processing requirements.
    (3) Ground Operations--This section should identify requirements for 
pre-launch or post-launch ground operations support.
    (4) Flight Operations--This section should identify any requirements 
for flight operations support including

[[Page 490]]

mission planning. Operational constraints, viewing requirements, and 
pointing requirements should also be identified. Details of 
communications needs, tracking needs, and special techniques, such as 
extravehicular activity or restrictions in the use of control thrusters 
at stated times should be delineated. Special communications facilities 
that are needed must be described. Any special orbital requirements, 
such as time of month, of day, phase of moon, and lighting conditions 
are to be given in detail. Describe real-time ground support 
requirements and indicate any special equipment or skills required of 
ground personnel.

                     (c) Data Reduction and Analysis

    A discussion of the data reduction and analysis plan including the 
method and format. A section of the plan should include a schedule for 
the submission of reduced data to the receiving point. In the case of 
Space Science programs, the National Space Science Data Center, 
Greenbelt, MD, will be the repository for such data and the Department 
of Interior, Sioux Falls, SD, for earth observations data.

     (d) Orbiter Crew and/or Payload Specialist Training Requirement

    A description of the tasks required of each crew member (Commander, 
Pilot, Mission Specialist) or payload specialist should be provided, 
including the task duration and equipment involved. Indicate special 
training necessary to provide the crew members or payload specialist(s) 
with the capability for performing the aforementioned tasks.

                      Management Plan and Cost Plan

                           (a) Management Plan

    The management plan should summarize the management approach and the 
facilities and equipment required. Additional guidelines applicable to 
non-U.S. proposers are contained herein:

                             (1) Management

    (i) The management plan sets forth the approach for managing the 
work, the recognition of essential management functions, and the overall 
integration of these functions.
    (ii) The management plan gives insight into the organization 
proposed for the work, including the internal operations and lines of 
authority with delegations, together with internal interfaces and 
relationships with the NASA major subcontractors and associated 
investigators. Likewise, the management plan usually reflects various 
schedules necessary for the logical and timely pursuit of the work 
accompanied by a description of the investigator's work plan and the 
responsibilities of the co-investigators.
    (iii) The plan should describe the proposed method of instrument 
acquisition. It should include the following, as applicable.
    (A) Rationale for the investigator to obtain the instrument through 
or by the investigator's institution.
    (B) Method and basis for the selection of the instrument fabricator.
    (C) Unique capabilities of the instrument fabricator that are not 
available from any other source.
    (D) Characteristics of the proposed fabricator's instrument that 
make it an inseparable part of the investigation.
    (E) Availability of personnel to administer the instrument contract 
and technically monitor the fabrication.
    (F) Status of development of the instrument.
    (G) Method by which the investigator proposes to:
    (a) Prepare instrument specifications.
    (b) Review development progress.
    (c) Review design and fabrication changes.
    (d) Participate in testing program.
    (e) Participate in final checkout and calibration.
    (f) Provide for integration of instrument.
    (g) Support the flight operations.
    (h) Coordinate with co-investigators, other related investigations, 
and the payload integrator.
    (i) Assure safety, reliability, and quality.
    (j) Provide required support for Payload Specialist(s), if 
applicable.

[[Page 491]]

    (H) Planned participation by small and/or minority business in any 
subcontracting for instrument fabrication or investigative support 
functions.

                      (2) Facilities and Equipment

    All major facilities, laboratory equipment, and ground-support 
equipment (GSE) (including those of the investigator's proposed 
contractors and those of NASA and other U.S. Government agencies) 
essential to the experiment in terms of its system and subsystems are to 
be indicated, distinguishing insofar as possible between those already 
in existence and those that will be developed in order to execute the 
investigation. The outline of new facilities and equipment should also 
indicate the lead time involved and the planned schedule for 
construction, modification, and/or acquisition of the facilities.

     (3) Additional Guidelines Applicable to Non-U.S. Proposers Only

    The following guidelines are established for foreign responses to 
NASA's AO. Unless otherwise indicated in a specific announcement, these 
guidelines indicate the appropriate measures to be taken by foreign 
proposers, prospective foreign sponsoring agencies, and NASA leading to 
the selection of a proposal and execution of appropriate arrangements. 
They include the following:
    (i) Where a ``Notice of Intent'' to propose is requested, 
prospective foreign proposers should write directly to the NASA official 
designated in the AO.
    (ii) Unless otherwise indicated in the AO, proposals will be 
submitted in accordance with this Appendix. Proposals should be 
typewritten and written in English. Foreign entities are generally not 
eligible for funding from NASA. Therefore, proposals from foreign 
entities should not include a cost plan unless the proposal involves 
collaboration with a U.S. institution, in which case a cost plan for 
only the participation of the U.S. entity must be included (unless 
otherwise noted in the AO).
    (iii) Persons planning to submit a proposal should arrange with an 
appropriate foreign governmental agency for a review and endorsement of 
the proposed activity. Such endorsement by a foreign organization 
indicates that the proposal merits careful consideration by NASA and 
that, if the proposal is selected, sufficient funds will be available to 
undertake the activity envisioned.
    (iv) Proposals including the requested number of copies and letters 
of endorsement from the foreign governmental agency must be forwarded to 
NASA in time to arrive before the deadline established for each AO.
    (v) Those proposals received after the closing date will be treated 
in accordance with NASA's provisions for late proposals. Sponsoring 
foreign government agencies may, in exceptional situations, forward a 
proposal directly to the above address if review and endorsement is not 
possible before the announced closing date. In such cases, NASA should 
be advised when a decision on endorsement can be expected.
    (vi) Shortly after the deadline for each AO, the Program Office will 
advise the appropriate sponsoring agency which proposals have been 
received and when the selection process should be completed. A copy of 
this acknowledgment will be provided to each proposer.
    (vii) Successful and unsuccessful proposers will be contacted 
directly by the NASA Program Officer coordinating the AO. Copies of 
these letters will be sent to the sponsoring Government agency.
    (viii) NASA's Office of External Relations will then begin making 
the arrangements to provide for the selectee's participation in the 
appropriate NASA program. Depending on the nature and extent of the 
proposed cooperation, these arrangements may entail:
    (A) An exchange of letters between NASA and the sponsoring foreign 
governmental agency.
    (B) An agreement or Memorandum of Understanding between NASA and the 
sponsoring foreign governmental agency.

                (b) Cost Plan (U.S. Investigations Only)

    The cost plan should summarize the total investigation cost by major 
categories of cost as well as by function.
    (1) The categories of cost should include the following:

[[Page 492]]

    (i) Director Labor--List by labor category, with labor hours and 
rates for each. Provide actual salaries of all personnel and the 
percentage of time each individual will devote to the effort.
    (ii) Overhead--Include indirect costs. Usually this is in the form 
of a percentage of the direct labor costs.
    (iii) Materials--This should give the total cost of the bill of 
materials including estimated cost of each major item. Include lead time 
of critical items.
    (iv) Subcontracts--List those over $25,000, specify the vendor and 
the basis for estimated costs. Include any baseline or supporting 
studies.
    (v) Special Equipment--Include a list of special equipment with lead 
and/or development time.
    (vi) Travel--List estimated number of trips, destinations, duration, 
purpose, number of travelers, and anticipated dates.
    (vii) Other Costs--Costs not covered elsewhere.
    (viii) General and Administrative Expense--This includes the 
expenses of the institution's general and executive offices and other 
miscellaneous expenses related to the overall business.
    (ix) Fee (if applicable).
    (2) Separate schedules, in the above format, should be attached to 
show total cost allocable to the following:
    (i) Principal Investigator and other Investigators' costs.
    (ii) Instrument costs.
    (iii) Integration costs.
    (iv) Data reduction and analysis including the amount and cost of 
computer time.
    (3) If the effort is sufficiently known and defined, a funding 
obligation plan should provide the proposed funding requirements of the 
investigations by quarter and/or annum keyed to the work schedule.
    (4) Use of NASA funds. NASA funding may not be used for foreign 
research efforts at any level, whether as a collaborator or a 
subcontract. The direct purchase of supplies and/or services, which do 
not constitute research, from non-U.S. sources by U.S award recipients 
is permitted. Additionally, in accordance with the National Space 
Transportation Policy, use of a non-U.S. manufactured launch vehicle is 
permitted only on a no-exchange-of-funds basis.

[62 FR 4477, Jan. 30, 1997, as amended at 64 FR 48562, Sept. 7, 1999; 65 
FR 3154, Jan. 20, 2000]



Sec. 1872.705-3  Appendix C: Glossary of Terms and Abbreviations 
          Associated with Investigations.

    Advisory Committee Subcommittee--Any committee, board, commission, 
council, conference, panel, task force; or other similar group, or any 
subcommittee or other subgroup thereof, that is not wholly composed of 
full-time Federal Government employees, and that is established or 
utilized by NASA in the interest of obtaining advice or recommendations.
    Announcement of Opportunity (AO)--A document used to announce 
opportunities to participate in NASA programs.
    AO Process--A term used to describe the program planning and 
acquisition procedure used to acquire investigative effort, initiated by 
an AO.
    Categorization--The process whereby proposed investigations are 
classified into four categories: synopsized here as Category I--
recommended for immediate acceptance; Category II--recommended for 
acceptance but at a lower priority than Category I proposals; Category 
III--sound investigations requiring further development; Category IV--
rejected.
    Co-Investigator (Co-I)--Associate of a Principal Investigator, 
responsible to the Principal Investigator for discrete portions or tasks 
of the investigation. A NASA employee can participate as a Co-I on an 
investigation proposed by a private organization.
    Data Users--Participants in NASA programs, selected to perform 
investigations utilizing data from NASA payloads or facilities.
    Experiments--Activities or effort aimed at the generation of data. 
NASA-sponsored experiments generally concern generation of data obtained 
through measurement of aeronautical and space phenomena or use of space 
to observe earth phenomena.
    Federal Acquisition Regulation (FAR)--The regulations governing the 
conduct of acquisition.

[[Page 493]]

    Flight--That portion of the mission encompassing the period from 
launch to landing or launch to termination of the active life of 
spacecraft. The term shuttle ``flight'' means a single shuttle round 
trip--its launch, orbital activity, and return; one flight might deliver 
more than one payload. More than one flight might be required to 
accomplish one mission.
    Flight Investigaton--Investigation conducted utilizing aeronautical 
or space instrumentation.
    Flight Opportunity--A flight mission designed to accommodate one or 
more experiments or investigations.
    Guest Investigators--Investigators selected to conduct observations 
and obtain data within the capability of a NASA mission, which are 
additional to the mission's primary objectives. Sometimes referred to as 
Guest Observers
    Investigaton--Used interchangeably with ``Experiments.''
    Investigation Team--A group of investigators collaborating on a 
single investigation.
    Investigator--A participant in an investigation. May refer to the 
Principal Investigator, Co-Investigator, or member of an investigation 
team.
    Mission--The performance of a coherent set of investigations or 
operations in space to achieve program goals. (Example: Measure detailed 
structure of Sun's chromosphere; survey mineral resources of North 
America.)
    NASA FAR Supplement--Acquisition regulations promulgated by NASA in 
addition to the FAR.
    NMI--NASA Management Instruction.
    Notice of Intent--A notice or letter submitted by a potential 
investigator indicating the intent to submit a proposal in response to 
an AO.
    Payload--A specific complement of instruments, space equipment, and 
support hardware carried to space to accomplish a mission or discrete 
activity in space.
    Peer Group--A gathering of experts in related disciplinary areas 
convened as a subcommittee of the Program Office Steering Committee to 
review proposals for flight investigations.
    Peer Review--The process of proposal review utilizing a group of 
peers in accordance with the categorization criteria as outlined in this 
Handbook.
    Principal Investigator (PI)--A person who conceives an investigation 
and is responsible for carrying it out and reporting its results. A NASA 
employee can participate as a PI only on a government-proposed 
investigation.
    Program--An activity involving human resources, materials, funding, 
and scheduling necessary to achieve desired goals.
    Project--Within a program, an undertaking with a scheduled beginning 
and ending, which normally involves the design, construction, and 
operation of one or more aeronautical or space vehicles and necessary 
ground support in order to accomplish a scientific or technical 
objective.
    Project Office--An office generally established at a NASA field 
installation to manage a project.
    Selection Official--The NASA official designated to determine the 
source for award of a contract or grant.
    Space Facility--An instrument or series of instruments in space 
provided by NASA to satisfy a general objective or need.
    Steering Committee--A standing NASA sponsored committee providing 
advice to the Program Associate Administrators and providing procedural 
review over the investigation selection process. Composed wholly of 
full-time Federal Government employees.
    Study Office--An office established at a NASA field installation to 
manage a potential undertaking which has not yet developed into project 
status.
    Subcommittee--An arm of the Program Office Steering Committee 
consisting of experts in relevant disciplines to review and categorize 
proposals for investigations submitted in response to an AO.
    Supporting Research and Technology (SR&T)--The programs devoted to 
the conduct of research and development necessary to support and sustain 
NASA programs.
    Team--A group of investigators responsible for carrying out and 
reporting the results of an investigation or group of investigations.
    Team Leader--The person appointed to manage and be the point of 
contact for the team and who is responsible for

[[Page 494]]

assigning respective roles and privileges to the team members and 
reporting the results of the investigation.
    Team Member--A person appointed to a team who is an associate of the 
other members of the team and is responsible to the team leader for 
assigned tasks or portions of the investigation.


[[Page 495]]



               CHAPTER 19--BROADCASTING BOARD OF GOVERNORS




                          (Parts 1900 to 1999)

  --------------------------------------------------------------------


  Editorial Notes: 1. For a waiver document affecting chapter 19, see 56 
FR 22661, May 16, 1991.

  2. For nomenclature changes affecting chapter 19, see 64 FR 54541, 
Oct. 7, 1999.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1901            Broadcasting Board of Governors acquisition 
                    regulation system.......................         497
1902            Definitions of words and terms..............         498
1903            Improper business practices and personal 
                    conflicts of interest...................         498
1904            Administrative matters......................         499
                   SUBCHAPTER B--ACQUISITION PLANNING
1909            Contractor qualifications...................         500
1910            Specifications, standards and other purchase 
                    descriptions............................         501
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1913            Small purchases and other simplified 
                    purchase procedures.....................         503
1915            Contracting by negotiation..................         503
1917            Special contracting methods.................         503
                       SUBCHAPTERS D-F [RESERVED]
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1942            Contract administration.....................         504
1946            Quality assurance...........................         504
                     SUBCHAPTER H--CLAUSES AND FORMS
1952            Solicitation provisions and contract clauses         505
1953            Forms.......................................         506

[[Page 497]]

                          SUBCHAPTER A--GENERAL

 PART 1901--THE BROADCASTING BOARD OF GOVERNORS ACQUISITION REGULATION 
                                 SYSTEM

Sec.

Sec. 1901.000  Scope of part.

              Subpart 1901.1--Purpose, Authority, Issuance


Sec. 1901.101  Purpose.

Sec. 1901.102  Authority.

Sec. 1901.103  Applicability.

Sec. 1901.104  Issuance.

Sec. 1901.104-1  Publication and code arrangement.

Sec. 1901.104-2  Arrangement of regulations.

                 Subpart 1901.4--Deviations From the FAR


Sec. 1901.403  Individual deviations.

Sec. 1901.404  Class deviations.

       Subpart 1901.6--Contracting Authority and Responsibilities


Sec. 1901.601  General.

Sec. 1901.602  Contracting officers.

Sec. 1901.602-1  Authority.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13200, Apr. 3, 1985, unless otherwise noted.



Sec. 1901.000  Scope of part.

    This part describes the method by which the Broadcasting Board of 
Governors implements and supplements the Federal Acquisition Regulation 
and contains policies and procedures that implement and supplement 
Chapter 1 of the Federal Acquisition Regulation (48 CFR).

              Subpart 1901.1--Purpose, Authority, Issuance



Sec. 1901.101  Purpose.

    This subpart establishes the Broadcasting Board of Governors 
Acquisition Regulation as Chapter 19 of the Federal Acquisition 
Regulations System (48 CFR chapter 19) and states the relationship of 
the IAAR to the Federal Acquisition Regulation (FAR), 48 CFR chapter 1.



Sec. 1901.102  Authority.

    The the Broadcasting Board of Governors Acquisition Regulation is 
prescribed by the Director of the Broadcasting Board of Governors 
pursuant to the authority of the Reorganization Plan No. 2 of 1977 and 
the Federal Property and Administrative Services Act of 1949, as 
amended, and other applicable law.



Sec. 1901.103  Applicability.

    Except where a deviation is specifically authorized in accordance 
with subpart 1901.4 or otherwise authorized by law, the FAR and the IAAR 
govern all the Broadcasting Board of Governors acquisitions within the 
United States.



Sec. 1901.104  Issuance.



Sec. 1901.104-1  Publication and code arrangement.

    (a) The IAAR is published in the Federal Register and, in cumulative 
form in the Code of Federal Regulations (CFR).
    (b) The IAAR is issued as chapter 19 of title 48, CFR.



Sec. 1901.104-2  Arrangement of regulations.

    The IAAR uses the same numbering system and arrangement used in the 
FAR. Where the IAAR implements the FAR, it is numbered and captioned to 
correspond to the FAR. Where there is no corresponding material in the 
FAR, numbers beginning with 70 or higher are assigned to the IAAR 
supplementing part. Where the subject matter is the FAR requires no 
implementation, the IAAR contains no corresponding part.

                 Subpart 1901.4--Deviations From the FAR



Sec. 1901.403  Individual deviations.

    Deviations from the IAAR or the FAR in individual cases shall be 
authorized by the Board Procurement Executive or a designee unless FAR 
1.405(e) is applicable. The request shall

[[Page 498]]

cite the specific part of the IAAR or FAR from which it is desired to 
deviate; shall set forth the nature of the deviation(s); and shall give 
the reason for the action requested.



Sec. 1901.404  Class deviations.

    Class deviations affecting more than one contracting action shall be 
authorized only by the Board Procurement Executive, unless FAR 1.405(e) 
is applicable, and shall be subject to the limitations set forth in FAR 
1.404. Requests shall include the same information as cited in 1901.403.

       Subpart 1901.6--Contracting Authority and Responsibilities



Sec. 1901.601  General.

    The Director, Office of Contracts, is designated the Board 
Procurement Executive. The Board Procurement Executive is delegated the 
full delegable authority of the Director of this Board with respect to 
the acquisition of goods and services by contract and such other methods 
as may be prescribed in the FAR. The Board Procurement Executive is 
delegated overall responsibility by the Director for the Board's 
contracting activities.



Sec. 1901.602  Contracting officers.



Sec. 1901.602-1  Authority.

    The Broadcasting Board of Governors Contracting Officers designated 
by name on Certificates of Appointment by the Board Procurement 
Executive are authorized to enter into, administer, and terminate 
contracts and make related determinations and findings, subject to all 
requirements and limitations set forth in the Certificate of 
Appointment. A list of the Broadcasting Board of Governors employees who 
have been appointed as Contracting Officers and the limits of their 
authority is available from the Policy and Procedures Staff, Office of 
Contracts.

                PART 1902--DEFINITIONS OF WORDS AND TERMS

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13202, Apr. 3, 1985, unless otherwise noted.

                       Subpart 1902.1--Definitions



Sec. 1902.101  Definitions.

    As used throughout this regulation, the following words and terms 
are used as defined in this subpart unless (a) the context in which they 
are used clearly requires a different meaning or (b) a different 
definition is prescribed for a particular part or portion of a part.
    Board means the Broadcasting Board of Governors, acting through any 
of its duty authorized officials.
    Board Procurement Executive means the Director, Office of Contracts.
    AR/CO means Authorized Representative of the Contracting Officer 
(see 1942.202-70).
    Contracting activity means the Office of Contracts, which has the 
responsibility to contract for the acquisition of supplies and services 
(including construction).
    Head of the Board (also called Board head) means the Board Director 
or Deputy Director; and the term authorized representative means any 
person, persons or board (other than the contracting officer) authorized 
to act for the Head of the Board.
    Purchasing Activity means an office with one or more Level I or 
Level II Small Purchases Contracting Officer(s) exercising limited 
redelegations of contracting officer authority.
    BBG means the Broadcating Board of Governors.

    PART 1903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

  Subpart 1903.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them

Sec.

Sec. 1903.602  Exceptions.

Sec. 1903.670  Contracts between the Broadcasting Board of Governors and 
          former employees.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13202, Apr. 3, 1985, unless otherwise noted.

[[Page 499]]

  Subpart 1903.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 1903.602  Exceptions.

    To avoid potential conflicts of interest or the appearance of 
preferential treatment, it is the Broadcasting Board of Governors policy 
not to award contracts, purchase orders, grants or cooperative 
agreements to Government employees or their family members or business 
concerns owned or controlled by Government employees or their family 
members. Exceptions to this policy must be approved by the Board 
Director or Board Procurement Executive and supported by written 
Findings and Determination. A contract with an employee for services may 
result in violation of the dual salary compensation statutes (5 U.S.C. 
5533). Nothing in this paragraph is intended to render inapplicable the 
conflict of interest prohibition set out in 18 U.S.C. 208.



Sec. 1903.670  Contracts between the Broadcasting Board of Governors and 
          former employees.

    To avoid conflicts of interest or the appearance of preferential 
treatment, purchase orders, contracts, grants or cooperative agreements 
with former employees of the Broadcasting Board of Governors, or with 
firms in which former employees or their family members are known to 
have controlling interest, may be entered into within two years 
following separation from employment only with the written approval of 
the Board Director. A written justification shall be made a part of the 
file. The justification must address the issue of conflict of interest 
and conclude that it does not exist; or that in spite of its existence, 
the Board's ability to meet its mission would be seriously harmed 
without the award.

                    PART 1904--ADMINISTRATIVE MATTERS

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13203, Apr. 3, 1985, unless otherwise noted.

                  Subpart 1904.70--Procurement Requests



Sec. 1904.7001  General.

    (a) Procurement requests will be prepared and submitted to the 
contracting office in accordance with Board procedures.
    (b) Except in unusual circumstances, the contracting office will not 
issue solicitations until an approved procurement request, containing a 
certification that funds are available, has been received. However, the 
contracting office may take all necessary actions up to the point of 
contract award prior to the receipt of the approved procurement request 
certifying that funds are available when:
    (1) Such action is necessary to meet critical program schedules;
    (2) It has been established that program authority has been issued 
and that funds to cover the acquisition will be available prior to the 
date set for contract award or contract modification;
    (3) A person at a level above the contracting officer authorizes 
such action prior to the issuance of the solicitation, and the contract 
file is properly documented; and
    (4) The solicitation document clearly indicates that the award is 
subject to the availability of funds.
    (c) The procurement request shall be assigned within the contracting 
office to an individual who, if not the contracting officer, will be 
responsible to the contracting officer for conducting the business 
aspects of the transaction. This individual shall review the request to 
ensure that it complies with the FAR and this Regulation and that the 
information contained in the request is in sufficient detail to prepare 
presolicitation and solicitation documents. The contracting officer, or 
other designated individual in the contracting office, shall discuss 
uncertain requirements or inconsistencies in the procurement request 
with the initiator of the request and obtain clarification prior to 
taking any further action.

[[Page 500]]

                   SUBCHAPTER B--ACQUISITION PLANNING

                  PART 1909--CONTRACTOR QUALIFICATIONS

        Subpart 1909.4--Debarment, Suspension, and Ineligibility

Sec.

Sec. 1909.403  Definitions.

Sec. 1909.404  Consolidated list of debarred, suspended, and ineligible 
          contractors.

Sec. 1909.406  Debarment, suspension, and ineligibility.

Sec. 1909.406-3  Procedures.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13203, Apr. 3, 1985, unless otherwise noted.

        Subpart 1909.4--Debarment, Suspension, and Ineligibility



Sec. 1909.403  Definitions.

    The Board Procurement Executive, is designated the ``debarring 
official'' and the ``suspending official'' as defined in FAR 9.403 and 
is designated as the Board official authorized to make the decisions 
required in FAR 9.405(a), 9.405-1(b), 9.405-2, 9.406-1(c), and 9.407-
1(d).



Sec. 1909.404  Consolidated list of debarred, suspended, and ineligible 
          contractors.

    (a) The Policy and Procedures Staff, Office of Contracts, shall be 
responsible for the maintenance and distribution of the GSA Consolidated 
List of Debarred, Suspended, and Ineligible Contractors. It will be 
coordinated with the Solicitation Mailing List and appropriate notations 
will be made on both lists, when additions or deletions are necessary. 
Contracting Officers shall notify the Policy and Procedures Staff, 
Office of Contracts, of their distribution needs and shall ensure the 
list is used effectively.
    (b) The Board Procurement Executive (or designee) is responsible for 
notifying GSA of the information required by FAR 9.404(b).



Sec. 1909.406  Debarment, suspension, and ineligibility.



Sec. 1909.406-3  Procedures.

    (a) Investigation and referral. Any officer of the Board who becomes 
aware of circumstances which may serve as a basis for a debarment, 
suspension, or ineligibility shall report the circumstances by 
memorandum to the Board Procurement Executive for consideration of 
debarment, suspension or ineligibility action.
    (b) Decision-making process. (1) Contractors shall be given the 
opportunity to submit, in person, in writing, or through a 
representative, information and arguments in opposition to a proposed 
debarment or suspension. All rebuttals shall be addressed to the Board 
Procurement Executive. However, if a response to the proposed debarment 
or suspension is not received by the Board Procurement Executive within 
30 calendar days of receipt of the notice, the debarment or suspension 
shall become final.
    (2) If a contractor, or a representative, desires to present 
information and arguments in person to the Board Procurement Executive, 
an oral presentation will be held within 20 calendar days of receipt of 
the request, unless a longer period of time is requested by the 
contractor. Hearings will be held before a three-person fact-finding 
board composed of one member each from the Office of General Counsel and 
Congressional Liaison, the Bureau of Management, and the Office of 
Contracts, other than the initiating officer. The fact-finding board 
shall deliver written findings to the Board Procurement Executive 
(together with a transcription of the proceedings, if made) within 10 
calendar days after the hearing. The findings shall resolve any facts in 
dispute based on a preponderance of the evidence presented and determine 
whether a cause for debarment or suspension exists.
    (c) Debarring/suspending official's decision. The debarring/
suspending official's final decision shall be made in

[[Page 501]]

writing in accordance with FAR 9.406-3 and notice of the decision will 
be given in accordance with FAR 9.406-3. A copy of the notice shall be 
given to the affected agency component.

  PART 1910--SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS

Sec.

Sec. 1910.004-70  Brand name products or equal.

Sec. 1910.004-71  Limits on the use of brand name or equal purchase 
          descriptions.

Sec. 1910.004-72  Solicitations, brand name or equal descriptions.

Sec. 1910.004-73  Offer evaluation and award, brand name or equal 
          descriptions.

Sec. 1910.004-74  Procedure for negotiated procurements and small 
          purchases.

Sec. 1910.011  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13204, Apr. 3, 1985, unless otherwise noted.



Sec. 1910.004-70  Brand name products or equal.

    (a) General. Consistent with the policy stated in FAR 10.004(a)(2), 
the Broadcasting Board of Governors acquisitions will generally not be 
based on a specifically identified product or feature(s) thereof. 
However, under unusual circumstances such an approach may be used as 
described below.
    (b) Citing brand name products. Brand name or equal purchase 
descriptions shall cite all brand name products known to be acceptable 
and of current manufacture. If the use of a brand name or equal purchase 
description results in the purchase of an acceptable brand name product 
which was not listed as an ``equal'' product, a reference to that brand 
name product should be included in the purchase description for later 
acquisitions. If a brand name product is no longer applicable, the 
reference thereto shall be deleted from subsequent purchase description.
    (c) Specifying essential characteristics. (1) It is imperative that 
brand name or equal purchase descriptions specify each physical or 
functional characteristic of the product that is essential to the 
intended use. Failure to do so may result in a defective solicitation 
and the necessity to resolicit the requirements. (See 1910.004-73.) Care 
must be taken to avoid specifying characteristics that cannot be shown 
to materially affect the intended end use and which unnecessarily 
restrict competition.
    (2) When describing essential characteristics, permissible 
tolerances should be indicated. Avoid specifying a characteristic (e.g., 
a specific dimension) of a brand name product unless it is essential to 
the Government's need. The contracting officer must be able to justify 
the requirement.



Sec. 1910.004-71  Limits on the use of brand name or equal purchase 
          descriptions.

    (a) General. The use of brand name or equal purchase descriptions in 
solicitations is intended to promote competition by encouraging the 
offering of products that are equal in all material respects to brand 
name products cited in such descriptions. Identification by brand name 
does not indicate a preference for the products mentioned but indicates 
the quality and characteristics of products that will meet the 
Government's needs. Where a component of an item is described in the 
solicitation by a brand name or equal purchase description and the 
contracting officer determines that application of the provision of 
1952.210-70 would be impracticable, the requirement to include the entry 
described in 1910.004-72(a) shall not apply. If the provision is 
included in the solicitation for other reasons, there also shall be 
included in the solicitation a statement to identify either the 
component parts (described by brand name or equal descriptions) to which 
the provision applies or those to which it does not apply. This also 
applies to accessories related to an end item where a brand name or 
equal purchase description of the accessories is a part of the 
description of an end item. Brand name or equal descriptions shall not 
be used to acquire a particular product under the guise of competitive 
acquisition to the exclusion of other products that would meet the 
actual needs.
    (b) In small purchases within the open market limitations, brand 
name policies and procedures shall be applicable to the extent 
practicable.

[[Page 502]]

    (c) Approval required. A brand name or equal purchase description 
shall not be used unless it has been approved at one level above the 
contracting officer.



Sec. 1910.004-72  Solicitations, brand name or equal descriptions.

    (a) An entry substantially as follows shall be prominently inserted 
in the item listing after each item or component part of an end item to 
which a brand name or equal purchase description applies.

    Bidding on:

Manufacturer's Name:____________________________________________________
Brand:__________________________________________________________________
No.:____________________________________________________________________

    (b) Because bidders frequently overlook the requirements of the 
clause at 1952.210-70 ``Brand Name or Equal,'' the following note shall 
be inserted in the item listing after each brand name or equal item (or 
component part), or at the bottom of each page, listing several such 
items, or in a manner that may otherwise direct the offeror's attention 
to this clause.

    Offerors offering other than brand name items identified herein 
should furnish with their offers adequate information to ensure that a 
determination can be made as to equality of the product(s) offered (see 
the provision ``Brand Name or Equal'' set forth in 1952.210-70 of the 
solicitation).

    (c) If offeror samples are requested for brand name or equal 
acquisitions, the above notice shall not be included in the 
solicitation.



Sec. 1910.004-73  Offer evaluation and award, brand name or equal 
          descriptions.

    An offer may not be rejected for failure of the offered product to 
equal a characteristic of a brand name product if it was not specified 
in the brand name or equal description. However, if it is clearly 
established that the unspecified characteristic is essential to the 
intended end use, the solicitation is defective and no award may be 
made. In such cases, the contracting officer should resolicit the 
requirements, using a purchase description that sets forth the essential 
characteristics.



Sec. 1910.004-74  Procedure for negotiated procurements and small 
          purchases.

    (a) The policies and procedures prescribed for sealed bid 
procurements shall be generally applicable to negotiated procurements.
    (b) The clause set forth at 1952.210-70 may be adapted for use in 
negotiated procurements. If use of the clause is not practicable (as may 
be the case in unusual and compelling urgency purchases), suppliers 
shall be suitably informed that proposals offering products different 
from the products referenced by brand name will be considered if the 
contracting officer determines that the offered products meet fully the 
salient characteristics requirements of the solicitation.
    (c) In small purchases within open-market limitations, such policies 
and procedures shall be applicable to the extent practicable.



Sec. 1910.011  Solicitation provisions and contract clauses.

    The Contracting Officer shall include the provision at 1952.210-70, 
Brand Name or Equal, in solicitations for which brand name or equal 
purchase is used.

[[Page 503]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

   PART 1913--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES

Sec.

                     Subpart 1913.5--Purchase Orders


Sec. 1913.505  Purchase order and related forms.

Sec. 1913.505-2  Board order forms in lieu of Optional and Standard 
          Forms.

    Authority: 40 U.S.C. 486(c).

                     Subpart 1913.5--Purchase Orders



Sec. 1913.505  Purchase order and related forms.



Sec. 1913.505-2  Board order forms in lieu of Optional and Standard 
          Forms.

    (a) Optional Forms 347 and 348 shall be used as prescribed in FAR 
13.505 unless an equivalent form has been authorized for use by the 
Board Procurement Executive (or Designee). Exceptions may be granted, on 
a case-by-case basis, in order to accommodate computer-generated 
purchase order forms. Exception approval for over printing (FAR 53.104) 
is not needed.
    (b) The Broadcasting Board of Governors Form IA-44 (see 1953.370-44) 
is authorized for use when obtaining nonpersonal services on an 
intermittent basis for such services as script writers, translators, 
narrators, etc.

[50 FR 13205, Apr. 3, 1985]

                  PART 1915--CONTRACTING BY NEGOTIATION

          Subpart 1915.1--General Requirements for Negotiation

Sec.

Sec. 1915.106  Contract clauses.

Sec. 1915.106-70  Key personnel and facilities.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13205, Apr. 3, 1985, unless otherwise noted.

          Subpart 1915.1--General Requirements for Negotiation



Sec. 1915.106  Contract clauses.



Sec. 1915.106-70  Key personnel and facilities.

    Whenever contractor selection has been substantially predicated on 
the contractor's possession of special capabilities (i.e., personnel 
and/or facilities) the contracting officer shall include the clause at 
1952.215-70 in the awarded contract.

                 PART 1917--SPECIAL CONTRACTING METHODS

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13205, Apr. 3, 1985, unless otherwise noted.

                  Subpart 1917.1--Multiyear Contracting



Sec. 1917.102  Policy.

    When consistent with 22 U.S.C. 1472(b), the Head of the Board may 
approve multiyear contracts up to five years.

                       SUBCHAPTERS D-F [RESERVED]

[[Page 504]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                   PART 1942--CONTRACT ADMINISTRATION

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.

          Subpart 1942.2--Assignment of Contract Administration



Sec. 1942.202-70  Authorized Representative of the Contracting Officer 
          (AR/CO).

    The Contracting Officer may designate an appropriately qualified 
Government employee to act as the Authorized Representative of the 
Contracting Officer (AR/CO). Such designation shall apply to a single 
contract, must be in writing, and shall define the scope and limitations 
of the AR/CO's authority. The instrument designating an AR/CO shall not 
contain authority to sign or agree to any contract or major modification 
to a contract. Contractual commitments shall be made only by a duly 
certified contracting officer. The Contracting Officer shall insert the 
clause at 1952.242-70, Authorized Representative of the Contracting 
Officer, in solicitations and contracts when an individual is to be 
selected and designated by the Contracting Officer to perform 
administration of a given contract(s).

                      PART 1946--QUALITY ASSURANCE

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.

                       Subpart 1946.7--Warranties



Sec. 1946.704  Authority for use of warranties.

    (a) The procurement request initiator is responsible for preparing a 
written recommendation for those purchases deemed to be appropriate for 
application of warranty provisions. The recommendation shall state why a 
warranty is appropriate by specifically addressing the criteria set 
forth in FAR 46.703. The recommendation shall also identify the specific 
parts, subassemblies, assemblies, systems, or contract line items to 
which a warranty should apply.
    (b) Prior to solicitation of the requirement, the contracting 
officer shall make a written determination when a warranty provision is 
to be included.

[[Page 505]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 1952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 1952.000  Scope of part.

      Subpart 1952.1--Instructions for Using Provisions and Clauses


Sec. 1952.102-2  Incorporation in full text.

Sec. 1952.104  Procedures for modifying and completing provisions and 
          clauses.

             Subpart 1952.2--Texts of Provisions and Clauses


Sec. 1952.215-70  Key personnel and facilities.

Sec. 1952.227-76  Government rights (unlimited).

Sec. 1952.227-77  Rights in shop drawings.

Sec. 1952.227-78  Disposition of prints and videotape recordings.

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13212, Apr. 3, 1985, unless otherwise noted.



Sec. 1952.000  Scope of part.

    This part implements and supplements FAR part 52 which sets forth 
solicitation provisions and contract clauses for use in the acquisition 
of personal property and nonpersonal services (including construction).

      Subpart 1952.1--Instructions for Using Provisions and Clauses



Sec. 1952.102-2  Incorporation in full text.

    All IAAR provisions and clauses shall be incorporated in 
solicitations and/or contracts in full text.



Sec. 1952.104  Procedures for modifying and completing provisions and 
          clauses.

    IAAR provisions and clauses shall not be modified (see FAR 
1952.101(a) unless authorized by the Director, Office of Contracts, and 
when so authorized, contracting officers must comply with the procedures 
in FAR 1952.104.

             Subpart 1952.2--Texts of Provisions and Clauses



Sec. 1952.215-70  Key personnel and facilities.

    As prescribed in 1915.106-70 insert the following clause in 
appropriate contracts:

                 Key Personnel and Facilities (FEB 1985)

    The personnel and/or facilities listed below (or as specified in the 
Schedule of this contract) are considered essential to the work being 
performed hereunder. Prior to removing, replacing, or diverting any of 
the specified individuals or facilities, the Contractor shall notify the 
Contracting Officer reasonably in advance and shall submit justification 
(including proposed substitutions) in sufficient detail to permit 
evaluation of the impact on this contract. No diversion shall be made by 
the Contractor without the written consent of the Contracting Officer; 
provided, that the Contracting Officer may ratify in writing the change 
and such ratification shall constitute the consent of the Contracting 
Officer required by this clause. The personnel and/or facilities listed 
below (or as specified in the Schedule of this contract) may, with the 
consent of the contracting parties, be amended from time to time during 
the course of the contract to either add or delete personnel and/or 
facilities, as appropriate.

                             (End of clause)



Sec. 1952.227-76  Government rights (unlimited).

    As prescribed in 1927.405(g), insert the following clause:

                Government Rights (Unlimited) (FEB 1985)

    The Government shall have unlimited rights, in all drawings, 
designs, specifications, notes and other works developed in the 
performance of this contract, including the right to use same on any 
other Government design or construction without additional compensation 
to the Contractor. The Contractor hereby grants to the government a 
paid-up license throughout the world to all such works to which he may 
assert or establish any claim under design patent or copyrights laws. 
The Contractor for a period of three years after completion of the 
project agrees to furnish the original or copies of all such works on 
the request of the Contracting Officer.

[[Page 506]]

                             (End of clause)



Sec. 1952.227-77  Rights in shop drawings.

    As prescribed in 1927.405(h), insert the following clause:

                   Rights in Shop Drawings (FEB 1985)

    (a) Shop drawings for construction means drawings, submitted to the 
Government by the Construction Contractor, subcontractor or any lower 
tier subcontractor pursuant to a construction contract, showing in 
detail (i) the proposed fabrication and assembly of structural elements 
and (ii) the installation (i.e., form, fit, and attachment details) of 
materials or equipment. The Government may duplicate, use, and disclose 
in any manner and for any purpose shop drawings delivered under this 
contract.
    (b) This clause, including this paragraph (b), shall be included in 
all subcontracts hereunder at any tier.

                             (End of clause)



Sec. 1952.227-78  Disposition of prints and videotape recordings.

    As prescribed in 1927.405(j) insert the following clause in License 
Agreements:

        Disposition of Prints and Videotape Recordings (FEB 1985)

    If the Board elects to discontinue distribution and exhibition 
hereunder, or upon expiration of the term of this License Agreement, the 
Board will destroy all prints and erase all videotape recordings of the 
Film. A certificate(s) attesting to such destruction and/or erasure will 
be furnished the Licensor upon its written request.

                             (End of clause)

                            PART 1953--FORMS

    Editorial Note: IAAR forms referenced in this subpart do not appear 
in the Code of Federal Regulations. The list of forms following 1953.370 
is set forth for the convenience of the user. Forms may be obtained by 
writing: Office of Contracts, The Broadcasting Board of Governors, 
Washington, DC 20547.

                 Subpart 1953.3--Illustrations of Forms

Sec.

Sec. 1953.300  Scope of subpart.

Sec. 1953.370  The Broadcasting Board of Governors forms.


Sec. List of IAAR Forms

    Authority: 40 U.S.C. 486(c).

    Source: 50 FR 13224, Apr. 3, 1985, unless otherwise noted.

                 Subpart 1953.3--Illustrations of Forms



Sec. 1953.300  Scope of subpart.

    This subpart contains illustrations of some forms referenced in this 
IAAR.



Sec. 1953.370  The Broadcasting Board of Governors forms.

    This section contains illustrations of The Broadcasting Board of 
Governors forms references in this IAAR.



                         Sec. List of IAAR Forms

1953.370-21  The Broadcasting Board of Governors Form IA-21, Abstract of 
          Quotations.
1953.370-44  The Broadcasting Board of Governors Form IA-44, 
          Requisition-Purchase--Order-Invoice for Professional Services.

[[Page 507]]



                CHAPTER 20--NUCLEAR REGULATORY COMMISSION




                          (Parts 2000 to 2099)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2001            Nuclear Regulatory Commission Acquisition 
                    Regulation System.......................         509
2002            Definitions.................................         513
2003            Improper business practices and personal 
                    conflicts of interest...................         513
2004            Administrative matters......................         514
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2005            Publicizing contract actions................         515
2009            Contractor qualifications...................         515
2011            Describing agency needs.....................         524
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2013            Simplified acquisition procedures [Reserved]         525
2014            Sealed bidding..............................         525
2015            Contracting by negotiation..................         525
2016            Types of contracts..........................         528
2017            Special contracting methods.................         528
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2019            Small business programs.....................         530
2022            Application of labor laws to government 
                    acquisitions............................         530
2024            Protection of privacy and freedom of 
                    information.............................         530
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2027            Patents, data, and copyrights...............         532
2030            Cost accounting standards...................         532
2031            Contract cost principles and procedures.....         532
2032            Contract financing..........................         533

[[Page 508]]

2033            Protests, disputes, and appeals.............         533
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2035            Research and development contracting........         535
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2042            Contract administration.....................         536
2045            Government property.........................         537
                     SUBCHAPTER H--CLAUSES AND FORMS
2052            Solicitation provisions and contract clauses         539

[[Page 509]]

                          SUBCHAPTER A--GENERAL

 PART 2001--NUCLEAR REGULATORY COMMISSION ACQUISITION REGULATION SYSTEM

              Subpart 2001.1--Purpose, Authority, Issuance

Sec.

Sec. 2001.101  Purpose.

Sec. 2001.102  Authority.

Sec. 2001.103  Applicability.

Sec. 2001.104  Issuance.

Sec. 2001.104-1  Publication and code arrangement.

Sec. 2001.104-2  Arrangement of the regulations.

Sec. 2001.104-3  Copies.

Sec. 2001.105  Information collection requirements: OMB approval.

             Subpart 2001.3--Agency Acquisition Regulations


Sec. 2001.301  Policy.

Sec. 2001.303  Public participation.

          Subpart 2001.4--Deviations from the FAR and the NRCAR


Sec. 2001.402  Policy.

Sec. 2001.403  Individual deviations.

Sec. 2001.404  Class deviations.

       Subpart 2001.6--Contracting Authority and Responsibilities


Sec. 2001.600-70  Scope of subpart.

Sec. 2001.601  General.

Sec. 2001.602-3  Ratification of unauthorized commitments.

Sec. 2001.603  Selection, appointment, and termination of appointment.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49324, Sept. 10, 1999, unless otherwise noted.

              Subpart 2001.1--Purpose, Authority, Issuance



Sec. 2001.101  Purpose.

    This subpart establishes Chapter 20, the Nuclear Regulatory 
Commission Acquisition Regulation (NRCAR), and provides for the 
codification and publication of uniform policies and procedures for 
acquisitions by the NRC. The NRCAR is not, by itself, a complete 
document. It must be used in conjunction with the Federal Acquisition 
Regulation (FAR) (48 CFR Chapter 1).



Sec. 2001.102  Authority.

    The NRCAR and the amendments to it are issued by the Senior 
Procurement Executive under a delegation from the Executive Director for 
Operations dated May 16, 1997, in accordance with the authority of the 
Atomic Energy Act of 1954, as amended (42. U.S.C. 161), the Energy 
Reorganization Act of 1974 (42 U.S.C. 5841, 5872), the Federal Property 
and Administrative Services Act of 1949 (40 U.S.C. 486(c)), as amended, 
FAR subpart 1.3, and other applicable law.



Sec. 2001.103  Applicability.

    The FAR and NRCAR apply to all NRC acquisitions of supplies and 
services which obligate appropriated funds, unless exempted by Sections 
31 and 161 of the Atomic Energy Act of 1954 as amended, and Section 205 
of the Energy Reorganization Act of 1974 as amended. For procurements 
made from nonappropriated funds, the Director, Division of Contracts and 
Property Management, shall determine the rules and procedures that 
apply.



Sec. 2001.104  Issuance.



Sec. 2001.104-1  Publication and code arrangement.

    (a) The NRCAR and its subsequent changes are:
    (1) Published in the daily issue of the Federal Register; and
    (2) Codified in the Code of Federal Regulations (CFR).
    (b) The NRCAR is issued as 48 CFR Chapter 20.



Sec. 2001.104-2  Arrangement of the regulations.

    (a) General. Chapter 20 is divided into parts, subparts, sections, 
subsections, paragraphs, and further subdivisions as necessary.
    (b) Numbering. The numbering system and part, subpart and section 
titles used in this Chapter conform with those used in the FAR as 
follows:

[[Page 510]]

    (1) Where Chapter 20 implements the FAR or supplements a parallel 
part, subpart, section, subsection, or paragraph of the FAR, that 
implementation or supplementation is numbered and captioned to the FAR 
part, subpart, section, or subsection being implemented or supplemented, 
except that the implementation or supplementation is preceded with a 20 
or 200 so that there will always be four numbers to the left of the 
decimal. For example, NRC's implementation of FAR 1.104-1 is shown as 
2001.104-1 and the NRC's implementation of FAR 24.1 is shown as 2024.1.
    (2) When the NRC supplements material contained in the FAR, it is 
given a unique number containing the numerals ``70'' or higher. The rest 
of the number parallels the FAR part, subpart, section, subsection, or 
paragraph it is supplementing. For example, Section 170A of the Atomic 
Energy Act of 1954, as amended, requires a more comprehensive 
organizational conflict of interest review for NRC than is contemplated 
by FAR 9.5. This supplementary material is identified as 2009.570.
    (3) Where material in the FAR requires no implementation or 
supplementation, there is no corresponding numbering in the NRCAR. 
Therefore, there may be gaps in the NRCAR sequence of numbers where the 
FAR requires no further implementation.
    (c) Citation. The NRCAR will be cited in accordance with Office of 
the Federal Register standards approved for the FAR. Thus, this section 
when referred to in the NRCAR is cited as 2001.104-2(c). When this 
section is referred to formally in official documents, such as legal 
briefs, it should be cited as ``48 CFR 2001.104-2(c).'' Any section of 
the NRCAR may be formally identified by the section number, e.g., 
``NRCAR 2001.104-2.'' In the NRCAR, any reference to the FAR will be 
indicated by ``FAR'' followed by the section number, for example FAR 1-
104.



Sec. 2001.104-3  Copies.

    Copies of the NRCAR in Federal Register and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.



Sec. 2001.105  Information collection requirements: OMB approval.

    (a) The Nuclear Regulatory Commission has submitted the information 
collection requirements contained in this part to the Office of 
Management and Budget (OMB) for approval as required by the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. OMB 
has approved the information collection requirements contained in this 
part under control number 3150-0169.
    (b) The information collection requirements contained in this part 
appear in 2009.570-3, 2009.570-5, 2009.570-8, 2014.201-670, 2027.305-3, 
2042.570-1, 2042.803, 2045.371, 2052.204-70, 2052.204-71, 2052.209-70, 
2052.209-71, 2052.209-72, 2052.211-70, 2052.211-71, 2052.211-72, 
2052.211-72 Alternate 1, 2052.214-71, 2052.214-72, 2052.214-74, 
2052.215-70, 2052.215-71, 2052.215-74, 2052.215-75, 2052.215-75 
Alternate 1, 2052.215-75 Alternate 2, 2052.215-78, 2052.216-72, 
2052.227-70, 2052.235-70, 2052.235-71, 2052.242-70, and 2052.242-71.
    (c) This part contains information collection requirements in 
addition to those approved under the control number specified in 
paragraph (a) of this section. These information collection requirements 
and control numbers under which they are approved are as follows:
    (1) In 2052.215-77(a) and 2052.215-78(b), NRC Form 445 is approved 
under control number 3150-0193.
    (2) [Reserved]

             Subpart 2001.3--Agency Acquisition Regulations



Sec. 2001.301  Policy.

    Policy, procedures, and guidance of an internal nature will be 
promulgated through internal NRC issuances such as Management Directives 
or Division of Contracts and Property Management Instructions.

[[Page 511]]



Sec. 2001.303  Public participation.

    FAR 1.301 and section 22 of the Office of Federal Procurement Policy 
Act, as amended (41 U.S.C. 418b) require rulemaking for substantive 
acquisition rules, but allow discretion in the matter for other than 
significant issues meeting the stated criteria. Accordingly, the NRCAR 
has been promulgated and may be revised from time to time in accordance 
with FAR 1.301. This procedure for significant subject matter generally 
involves issuing a notice of proposed rulemaking that invites public 
comment, review and analysis of comments received, and publication of a 
final rule. The final rule includes a discussion of the public comments 
received and describes any changes made as a result of the comments.

          Subpart 2001.4--Deviations From the FAR and the NRCAR



Sec. 2001.402  Policy.

    (a) Deviations from the provisions of the FAR or NRCAR may be 
granted as specified in this subpart when necessary to meet the specific 
needs of the requesting office. The development and testing of new 
techniques and methods of acquisition should not be discouraged simply 
because the action would require a FAR or NRCAR deviation.
    (b) Requests for authority to deviate from the provisions of the FAR 
or the NRCAR must be signed by the requesting office and submitted to 
the Director, Division of Contracts and Property Management, in writing, 
as far in advance as possible. Each request for deviation must contain 
the following:
    (1) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the FAR or NRCAR from which a 
deviation is requested;
    (2) The reason why the deviation is considered necessary or would be 
in the best interest of the Government;
    (3) If applicable, the name of the contractor and identification of 
the contract affected;
    (4) A description of the intended effect of the deviation;
    (5) A statement of the period of time for which the deviation is 
needed; and
    (6) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.



Sec. 2001.403  Individual deviations.

    In individual cases, deviations from either the FAR or the NRCAR 
will be authorized only when essential to effect only one contracting 
action or where special circumstances make the deviations clearly in the 
best interest of the Government. Individual deviations must be 
authorized in advance by the Director, Division of Contracts and 
Property Management.



Sec. 2001.404  Class deviations.

    Class deviations affect more than one contracting action. Where 
deviations from the FAR or NRCAR are considered necessary for classes of 
contracts, requests for authority to deviate must be submitted in 
writing to the Director, Division of Contracts and Property Management, 
who will consider the submission jointly with the Chairperson of the 
Civilian Agency Acquisition Council, as appropriate.

       Subpart 2001.6--Contracting Authority and Responsibilities



Sec. 2001.600-70  Scope of subpart.

    This subpart deals with the placement of contracting authority and 
responsibility within the agency, the selection and designation of 
contracting officers, and the authority of contracting officers.



Sec. 2001.601  General.

    (a) Contracting authority vests in the Chairman. The Chairman has 
delegated this authority to the Executive Director for Operations (EDO). 
The EDO has delegated this authority to the Deputy Executive Director 
for Management Services (DEDM). The DEDM has delegated this authority to 
the Director, Office of Administration (ADM). The Director, ADM, has 
delegated the authority to the Director, Division of Contracts and 
Property Management (DCPM), who, in turn, makes contracting officer 
appointments within Headquarters and Regional Offices. All of these 
delegations

[[Page 512]]

are formal written delegations containing dollar limitations and 
conditions.
    (b) The Director, Division of Contracts Division of Contracts and 
Property Management, establishes contracting policy throughout the 
agency; monitors the overall effectiveness and efficiency of the 
agency's contracting office; establishes controls to assure compliance 
with laws, regulations, and procedures; and delegates contracting 
officer authority.



Sec. 2001.602-3  Ratification of unauthorized commitments.

    (a) The Government is not bound by agreements or contractual 
commitments made to prospective contractors by persons to whom 
contracting authority has not been delegated. Any unauthorized 
commitment may be in violation of the Federal Property and 
Administrative Services Act, other Federal laws, the FAR, the NRCAR, and 
good acquisition practice. Certain requirements of law and regulation 
necessary for the proper establishment of a contractual obligation may 
not be met under an unauthorized commitment; for example, the 
certification of the availability of funds, justification for other than 
full and open competition, competition of sources, determination of 
contractor responsibility, certification of current pricing data, price/
cost analysis, administrative approvals, and negotiation of appropriate 
contract clauses.
    (b) The execution of otherwise proper contracts made by individuals 
without contracting authority, or by contracting officers in excess of 
the limits of their delegated authority, may later be ratified. To be 
effective, the ratification must be in the form of a written procurement 
document clearly stating that ratification of a previously unauthorized 
commitment is intended. All ratifications of procurement actions valued 
at $2,500 or less may be approved by the appropriate regional 
administrator or Headquarters contracting officer. For any such action, 
all other terms of subpart 2001.6 are applicable. All ratification 
actions exceeding $2,500 shall be approved by the Competition Advocate.
    (c) Requests received by contracting officers for ratification of 
commitments made by personnel lacking contracting authority must be 
processed as follows:
    (1) The Designating Official that is responsible for the office 
request shall furnish the contracting officer all records and documents 
concerning the commitment and a complete written statement of facts, 
including, but not limited to:
    (i) A written statement consistent with the complexity and size of 
the action as to why the contracting office was not used including the 
name of the employee who made the commitment;
    (ii) A statement as to why the proposed contractor was selected;
    (iii) A list of other sources considered;
    (iv) A description of work performed, or to be performed, or 
products to be furnished;
    (v) The estimated or agreed upon contract price;
    (vi) A certification of the appropriated funds available;
    (vii) A description of how unauthorized commitments in similar 
circumstances will be avoided in the future.
    (2) The contracting officer shall review the written statement of 
facts for a determination of approval of all actions valued at $2,500 or 
less. For actions greater than $2,500, the contracting officer shall 
forward the written statement of facts to the Competition Advocate 
through the Director, Division of Contracts and Property Management with 
any comments or information that should be considered in evaluating the 
request for ratification.
    (3) The NRC legal advisor may be asked for an opinion, advice, or 
concurrence if there is concern regarding the propriety of the funding 
source, appropriateness of the expense, or when some other legal issue 
is involved.



Sec. 2001.603  Selection, appointment, and termination of appointment.

    The Director, Division of Contracts and Property Management, is 
authorized by the Director, Office of Administration, to select and 
appoint contracting officers and to terminate their appointment as 
prescribed in FAR

[[Page 513]]

1.603. Delegations of contracting officer authority are issued by 
memorandum which includes a clear statement of the delegated authority, 
including responsibilities and limitations in addition to the 
``Certificate of Appointment'', SF 1402. The Director, Division of 
Contracts and Property Management, may delegate micro-purchase authority 
in accordance with agency procedures. This delegation may be 
accomplished by written memorandum. (ref. FAR 1.603-3(b))

                         PART 2002--DEFINITIONS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49326, Sept. 10, 1999, unless otherwise noted.

                       Subpart 2002.1--Definitions



Sec. 2002.100  Definitions.

    Agency means the Nuclear Regulatory Commission (NRC).
    Agency Head or Head of the Agency means the NRC Executive Director 
for Operations, for the purposes specified in the regulations in this 
chapter and the FAR. This delegation does not extend to internal NRC 
requirements such as clearance levels and Commission papers which 
specify higher levels of authority.
    Commission means the NRC Commission of five members, or a quorum 
thereof, sitting as a body, as provided by Section 201 of the Energy 
Reorganization Act of 1974 (42 U.S.C. 5841).
    Competition Advocate means the individual appointed as such by the 
Agency Head as required by Public Law 98-369. The Director, Division of 
Contracts and Property Management, has been appointed the Competition 
Advocate for the NRC.
    Head of the Contracting Activity means the Director, Division of 
Contracts and Property Management.
    Senior Procurement Executive means the individual appointed as such 
by the Agency Head pursuant to Executive Order 12352. The Deputy 
Executive Director for Management Services, has been appointed the NRC 
Senior Procurement Executive.
    Simplified acquisitions means those acquisitions conducted using the 
methods, policies, and procedures of FAR part 13 for making purchases of 
supplies or services.
    Task and Delivery Order Ombudsman means the Director, Division of 
Contracts and Property Management, or designee pursuant to section 
1004(a) of Pub. L. 103-355, the Federal Acquisition Streamlining Act.

    PART 2003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

                       Subpart 2003.1--Safeguards

Sec.

Sec. 2003.101-3  Agency regulations.

      Subpart 2003.2--Contractor Gratuities to Government Personnel


Sec. 2003.203  Reporting suspected violations of the gratuities clause.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49326, Sept. 10, 1999, unless otherwise noted.

                       Subpart 2003.1--Safeguards



Sec. 2003.101-3  Agency regulations.

    Standards of conduct for Federal employees are published in 5 CFR 
parts 2635 and 5801. Requirements for financial disclosure are published 
in 5 CFR part 2634.

      Subpart 2003.2--Contractor Gratuities to Government Personnel



Sec. 2003.203  Reporting suspected violations of the gratuities clause.

    (a) Suspected violations of the ``Gratuities'' clause, FAR 52.203.3, 
must be reported orally or in writing directly to the NRC Office of the 
Inspector General. A report must include all facts and circumstances 
related to the case. Refer to 5 CFR part 2635 for an explanation 
regarding what is prohibited and what is permitted.
    (b) When appropriate, discussions with the contracting officer or a 
higher

[[Page 514]]

procurement official, procurement policy staff, and the procurement 
legal advisor before filing a report are encouraged.

                    PART 2004--ADMINISTRATIVE MATTERS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.



Sec. 2004.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 2052.204-70 
Security, in all solicitations and contracts under which the contractor 
may have access to, or contact with, classified information, including 
National Security information, restricted data, formerly restricted 
data, and other classified data.
    (b) The contracting officer shall insert the clause 2052.204-71 Site 
Access Badge Requirements, in all solicitations and contracts under 
which the contractor will require access to Government facilities. The 
clause may be altered to reflect any special conditions to be applied to 
foreign nationals.

[[Page 515]]

           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

                 PART 2005--PUBLICIZING CONTRACT ACTIONS

                   Subpart 2005.5--Paid Advertisements

Sec.

Sec. 2005.502  Authority.

    Authority: (42 U.S.C. 2201); 42 U.S.C. 5841; 41 U.S.C. 401 et seq.

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.

                   Subpart 2005.5--Paid Advertisements



Sec. 2005.502  Authority.

    Before placing paid advertisements in newspapers and trade journals 
to publicize contract actions, written authority must be obtained from 
the Director, Division of Contracts and Property Management, for 
Headquarters activities, or the Director, Division of Resource 
Management and Administration, within each regional office for a 
regional procurement.

                  PART 2009--CONTRACTOR QUALIFICATIONS

           Subpart 2009.1--Responsible Prospective Contractors

Sec.

Sec. 2009.100  NRC policy.

Sec. 2009.105-70  Contract provisions.

        Subpart 2009.4--Debarment, Suspension, and Ineligibility


Sec. 2009.403  Definitions.

Sec. 2009.404  Consolidated lists of parties excluded from Federal 
          procurement or non-procurement programs.

Sec. 2009.405  Effect of listing.

Sec. 2009.405-1  Continuation of current contracts.

Sec. 2009.405-2  Restrictions on subcontracting.

Sec. 2009.406  Debarment.

Sec. 2009.406-3  Procedures.

Sec. 2009.407  Suspension.

Sec. 2009.407-3  Procedures.

Sec. 2009.470  Appeals.

          Subpart 2009.5--Organizational Conflicts of Interest


Sec. 2009.500  Scope of subpart.

Sec. 2009.570  NRC organizational conflicts of interest.

Sec. 2009.570-1  Scope of policy.

Sec. 2009.570-2  Definitions.

Sec. 2009.570-3  Criteria for recognizing contractor organizational 
          conflicts of interest.

Sec. 2009.570-4  Representation.

Sec. 2009.570-5  Contract clauses.

Sec. 2009.570-6  Evaluation, findings, and contract award.

Sec. 2009.570-7  Conflicts identified after award.

Sec. 2009.570-8  Subcontracts.

Sec. 2009.570-9  Waiver.

Sec. 2009.570-10  Remedies.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C 418(b).

    Source: 64 FR 49327, Sept. 10, 1999, unless otherwise noted.

           Subpart 2009.1--Responsible Prospective Contractors



Sec. 2009.100  NRC policy.

    (a) It is NRC policy that only competitively awarded contracts shall 
be placed with an individual who was employed by the NRC within two 
years from the date of the Request for Procurement Action. This policy 
also applies to:
    (1) The noncompetitive award of contracts to organizations where 
former NRC employees have dominant ownership interests in the 
organization, such as partners or majority stockholders;
    (2) The noncompetitive award of contracts to organizations where 
former NRC employees have dominant management interests, such as 
principal officers, or where the organization is predominantly staffed 
by former NRC employees; and
    (3) The noncompetitive award of contracts, task orders or other NRC 
work assignments where the particular assignment is to be performed by 
designated former NRC employees, including principal investigators, key 
personnel, and others who will perform more than a nominal amount of the 
work in question.

[[Page 516]]

    (b) The following procurement actions are considered noncompetitive 
for the purposes of this policy:
    (1) Contracts awarded noncompetitively under the Small Business 
Administration's 8(a) Program;
    (2) Individual task orders if the former employee was not identified 
as ``key personnel'' in a proposal which was evaluated under competitive 
procedures;
    (3) Unsolicited proposals;
    (4) Subcontracts that require review for the purpose of granting 
consent under NRC prime contracts.
    (c) The term NRC employee includes special Government employees 
performing services for NRC as experts, advisors, consultants, or 
members of advisory committees, if--
    (1) The contract arises directly out of the individual's activity as 
a special employee;
    (2) The individual is in a position to influence the award of the 
contract; or
    (3) The Contracting Officer determines that another conflict of 
interest exists.
    (d) A justification explaining why it is in the best interest of the 
Government to contract with an individual or firm described in 
paragraphs (a) and (b) of this section on a noncompetitive basis may be 
approved by the Senior Procurement Executive after consulting with the 
Executive Director for Operations. This is in addition to any 
justification and approvals which may be required by the FAR for use of 
other than full and open competition.
    (e) Nothing in this policy statement relieves former employees from 
obligations prescribed by law, such as 18 U.S.C. 207, Restrictions on 
Former Officers, Employees, and Elected Officials of the Executive and 
Legislative Branches.



Sec. 2009.105-70  Contract provisions.

    The contracting officer shall insert the following provisions in all 
solicitations:
    (a) Section 2052.209-70 Current/Former Agency Employee Involvement.

        Subpart 2009.4--Debarment, Suspension, and Ineligibility



Sec. 2009.403  Definitions.

    As used in 2009.4:
    Debarring official means the Senior Procurement Executive.
    Suspending official means the Senior Procurement Executive.



Sec. 2009.404  Consolidated list of parties excluded from Federal 
          procurement or non-procurement programs.

    The contracting officer responsible for the contract affected by the 
debarment or suspension shall perform the actions required by FAR 
9.404(c) (1) through (6).



Sec. 2009.405  Effect of listing.

    Compelling reasons are considered to be present where failure to 
contract with the debarred or suspended contractor would seriously harm 
the agency's programs and prevent accomplishment of mission 
requirements. The Senior Procurement Executive is authorized to make the 
determinations under FAR 9.405. Requests for these determinations must 
be submitted from the Head of the Contracting Activity, through the 
Director, Office of Administration, to the Senior Procurement Executive.



Sec. 2009.405-1  Continuation of current contracts.

    The Head of the Contracting Activity is authorized to make the 
determination to continue contracts or subcontracts in existence at the 
time the contractor was debarred, suspended, or proposed for debarment 
in accordance with FAR 9.405-1.



Sec. 2009.405-2  Restrictions on subcontracting.

    The Head of the Contracting Activity is authorized to approve 
subcontracts with debarred or suspended subcontractors under FAR 9.405-
2.



Sec. 2009.406  Debarment.



Sec. 2009.406-3  Procedures.

    (a) Investigation and referral. (1) When a contracting officer 
becomes aware of possible irregularities or any information which may be 
sufficient cause for

[[Page 517]]

debarment, the contracting officer must first submit a complete 
statement of facts (including a copy of any criminal indictments, if 
applicable) and a recommendation for action to the Head of the 
Contracting Activity. If the contracting officer's statement of facts 
indicates misconduct on the part of the contractor in regard to an NRC 
contract, the Head of the Contracting Activity will refer the matter of 
misconduct to the Inspector General to determine if an investigation is 
required prior to referring the case to the debarring official.
    (2) To the extent the Head of the Contracting Activity believes that 
sufficient grounds for debarment exist, independent of any pending 
investigation by the Inspector General, the Head of the Contracting 
Activity shall immediately forward the case, without reference to any 
pending investigation, and a recommendation for action to the Senior 
Procurement Executive for review. In such circumstances, the Head of the 
Contracting Activity will take no additional action in regard to a 
specific matter of misconduct referred to the Inspector General prior to 
consulting with the Inspector General.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of the General Counsel and, if 
appropriate, the Office of the Inspector General, the debarring official 
determines debarment is justified, the debarring official shall initiate 
the proposed debarment in accordance with FAR 9.406-3(c) and notify the 
Head of the Contracting Activity of the action taken. If the contractor 
fails to submit a timely written response within 30 days after receipt 
of the notice in accordance with FAR 9.406-3(c)(4), the debarring 
official may notify the contractor in accordance with FAR 9.406-3(d) 
that the contractor is debarred.
    (c) Fact-finding proceedings. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing. The hearing should be held at a location and time that 
is convenient to the parties concerned and no later than 30 days after 
the contractor received the notice, if at all possible. The contractor 
and any specifically named affiliates may be represented by counsel or 
any duly authorized representative. Witnesses may be called by either 
party. The proceedings must be conducted expeditiously and in such a 
manner that each party will have an opportunity to present all 
information considered pertinent to the proposed debarment.



Sec. 2009.407  Suspension.



Sec. 2009.407-3  Procedures.

    (a) Investigation and referral. (1) When a contracting officer 
becomes aware of possible irregularities or any information which may be 
sufficient cause for suspension, the contracting officer must first 
submit a complete statement of facts (including a copy of any criminal 
indictments, if applicable) and a recommendation for action to the Head 
of the Contracting Activity. If the contracting officer's statement of 
facts indicates misconduct on the part of the contractor in regard to an 
NRC contract, the Head of the Contracting Activity will refer the matter 
of misconduct to the Inspector General to determine if an investigation 
is required prior to referring the case to the suspension official.
    (2) To the extent the Head of the Contracting Activity believes that 
sufficient grounds for debarment exist, independent of any pending 
investigation by the Inspector General, the Head of the Contracting 
Activity shall immediately forward the case, without reference to any 
pending investigation, and a recommendation for action to the Senior 
Procurement Executive for review. In such circumstances, the Head of the 
Contracting Activity will take no additional action in regard to a 
specific matter of misconduct referred to the Inspector General prior to 
consulting with the Inspector General.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of the General Counsel, and if 
appropriate, the Office of the Inspector General, the suspending 
official determines suspension is justified, the suspending official 
shall initiate the proposed suspension in accordance with FAR 9.407-
3(b)(2). The contractor shall be given the opportunity to appear at an 
informal

[[Page 518]]

hearing, similar in nature to the hearing for debarments as discussed in 
FAR 9.406-3(b)(2). If the contractor fails to submit a timely written 
response within 30 days after receipt of the notice in accordance with 
FAR 9.407-3(c)(5), the suspending official may notify the contractor in 
accordance with FAR 9.407-3(d) that the contractor is suspended.



Sec. 2009.470  Appeals.

    A debarred or suspended contractor may appeal the debarring/
suspending official's decision by mailing or otherwise furnishing a 
written notice within 90 days from the date of the decision to the 
Executive Director for Operations. A copy of the notice of appeal must 
be furnished to the debarring/suspending official.

          Subpart 2009.5--Organizational Conflicts of Interest



Sec. 2009.500  Scope of subpart.

    In accordance with 42 U.S.C. 2210a., NRC acquisitions are processed 
in accordance with 2009.570, which takes precedence over FAR 9.5 with 
respect to organizational conflicts of interest. Where non-conflicting 
guidance appears in FAR 9.5, that guidance must be followed.



Sec. 2009.570  NRC organizational conflicts of interest.



Sec. 2009.570-1  Scope of policy.

    (a) It is the policy of NRC to avoid, eliminate, or neutralize 
contractor organizational conflicts of interest. The NRC achieves this 
objective by requiring all prospective contractors to submit information 
describing relationships, if any, with organizations or persons 
(including those regulated by the NRC) which may give rise to actual or 
potential conflicts of interest in the event of contract award.
    (b) Contractor conflict of interest determinations cannot be made 
automatically or routinely. The application of sound judgment on 
virtually a case-by-case basis is necessary if the policy is to be 
applied to satisfy the overall public interest. It is not possible to 
prescribe in advance a specific method or set of criteria which would 
serve to identify and resolve all of the contractor conflict of interest 
situations that might arise. However, examples are provided in the 
regulations in this chapter to guide application of this policy 
guidance. The ultimate test is as follows: Might the contractor, if 
awarded the contract, be placed in a position where its judgment may be 
biased, or where it may have an unfair competitive advantage?
    (c) The conflict of interest rule contained in this subpart applies 
to contractors and offerors only. Individuals or firms who have other 
relationships with the NRC (e.g., parties to a licensing proceeding) are 
not covered by the regulations in this chapter. This rule does not apply 
to the acquisition of consulting services through the personnel 
appointment process. NRC agreements with other Govern ment agencies, 
international organizations, or state, local, or foreign Governments. 
Separate procedures for avoiding conflicts of interest will be employed 
in these agreements, as appropriate.



Sec. 2009.570-2  Definitions.

    Affiliates means business concerns which are affiliates of each 
other when either directly or indirectly one concern or individual 
controls or has the power to control another, or when a third party 
controls or has the power to control both.
    Contract means any contractual agreement or other arrangement with 
the NRC except as provided in 2009.570-1(c).
    Contractor means any person, firm, unincorporated association, joint 
venture, co-sponsor, partnership, corporation, affiliates thereof, or 
their successors in interest, including their chief executives, 
directors, key personnel (identified in the contract), proposed 
consultants or subcontractors, which are a party to a contract with the 
NRC.
    Evaluation activities means any effort involving the appraisal of a 
technology, process, product, or policy.
    Offeror or prospective contractor means any person, firm, 
unincorporated association, joint venture, co-sponsor, partnership, 
corporation, or their affiliates or successors in interest, including 
their chief executives, directors, key personnel, proposed consultants, 
or subcontractors, submitting a bid or

[[Page 519]]

proposal, solicited or unsolicited, to the NRC to obtain a contract.
    Organizational conflicts of interest means that a relationship 
exists whereby a contractor or prospective contractor has present or 
planned interests related to the work to be performed under an NRC 
contract which:
    (1) May diminish its capacity to give impartial, technically sound, 
objective assistance and advice, or may otherwise result in a biased 
work product; or
    (2) May result in its being given an unfair competitive advantage.
    Potential conflict of interest means that a factual situation exists 
that suggests that an actual conflict of interest may arise from award 
of a proposed contract. The term potential conflict of interest is used 
to signify those situations that--
    (1) Merit investigation before contract award to ascertain whether 
award would give rise to an actual conflict; or
    (2) Must be reported to the contracting officer for investigation if 
they arise during contract performance.
    Research means any scientific or technical work involving 
theoretical analysis, exploration, or experimentation.
    Subcontractor means any subcontractor of any tier who performs work 
under a contract with the NRC except subcontracts for supplies and 
subcontracts in amounts not exceeding $10,000.
    Technical consulting and management support services means internal 
assistance to a component of the NRC in the formulation or 
administration of its programs, projects, or policies which normally 
require that the contractor be given access to proprietary information 
or to information that has not been made available to the public. These 
services typically include assistance in the preparation of program 
plans, preliminary designs, specifications, or statements of work.



Sec. 2009.570-3  Criteria for recognizing contractor organizational 
          conflicts of interest.

    (a) General. (1) Two questions will be asked in determining whether 
actual or potential organizational conflicts of interest exist:
    (i) Are there conflicting roles which might bias an offeror's or 
contractor's judgment in relation to its work for the NRC?
    (ii) May the offeror or contractor be given an unfair competitive 
advantage based on the performance of the contract?
    (2) NRC's ultimate determination that organizational conflicts of 
interest exist will be made in light of common sense and good business 
judgment based upon the relevant facts. While it is difficult to 
identify and to prescribe in advance a specific method for avoiding all 
of the various situations or relationships that might involve potential 
organizational conflicts of interest, NRC personnel will pay particular 
attention to proposed contractual requirements that call for the 
rendering of advice, consultation or evaluation activities, or similar 
activities that directly lay the groundwork for the NRC's decisions on 
regulatory activities, future procurements, and research programs. Any 
work performed at an applicant or licensee site will also be closely 
scrutinized by the NRC staff.
    (b) Situations or relationships. The following situations or 
relationships may give rise to organizational conflicts of interest:
    (1) The offeror or contractor shall disclose information that may 
give rise to organizational conflicts of interest under the following 
circumstances. The information may include the scope of work or 
specification for the requirement being performed, the period of 
performance, and the name and telephone number for a point of contact at 
the organization knowledgeable about the commercial contract.
    (i) Where the offeror or contractor provides advice and 
recommendations to the NRC in the same technical area where it is also 
providing consulting assistance to any organization regulated by the 
NRC.
    (ii) Where the offeror or contractor provides advice to the NRC on 
the same or similar matter on which it is also providing assistance to 
any organization regulated by the NRC.
    (iii) Where the offeror or contractor evaluates its own products or 
services,

[[Page 520]]

or has been substantially involved in the development or marketing of 
the products or services of another entity.
    (iv) Where the award of a contract would result in placing the 
offeror or contractor in a conflicting role in which its judgment may be 
biased in relation to its work for the NRC, or would result in an unfair 
competitive advantage for the offeror or contractor.
    (v) Where the offeror or contractor solicits or performs work at an 
applicant or licensee site while performing work in the same technical 
area for the NRC at the same site.
    (2) The contracting officer may request specific information from an 
offeror or contractor or may require special contract clauses such as 
provided in 2009.570-5(b) in the following circumstances:
    (i) Where the offeror or contractor prepares specifications that are 
to be used in competitive procurements of products or services covered 
by the specifications.
    (ii) Where the offeror or contractor prepares plans for specific 
approaches or methodologies that are to be incorporated into competitive 
procurements using the approaches or methodologies.
    (iii) Where the offeror or contractor is granted access to 
information not available to the public concerning NRC plans, policies, 
or programs that could form the basis for a later procurement action.
    (iv) Where the offeror or contractor is granted access to 
proprietary information of its competitors.
    (v) Where the award of a contract might result in placing the 
offeror or contractor in a conflicting role in which its judgment may be 
biased in relation to its work for the NRC or might result in an unfair 
competitive advantage for the offeror or contractor.
    (c) Policy application guidance. The following examples are 
illustrative only and are not intended to identify and resolve all 
contractor organizational conflict of interest situations.
    (1)(i) Example. The ABC Corp., in response to a Request For Proposal 
(RFP), proposes to undertake certain analyses of a reactor component as 
called for in the RFP. The ABC Corp. is one of several companies 
considered to be technically well qualified. In response to the inquiry 
in the RFP, the ABC Corp. advises that it is currently performing 
similar analyses for the reactor manufacturer.
    (ii) Guidance. An NRC contract for that particular work normally 
would not be awarded to the ABC Corp. because the company would be 
placed in a position in which its judgment could be biased in 
relationship to its work for the NRC. Because there are other well-
qualified companies available, there would be no reason for considering 
a waiver of the policy.
    (2)(i) Example. The ABC Corp., in response to an RFP, proposes to 
perform certain analyses of a reactor component that is unique to one 
type of advanced reactor. As is the case with other technically 
qualified companies responding to the RFP, the ABC Corp. is performing 
various projects for several different utility clients. None of the ABC 
Corp. projects have any relationship to the work called for in the RFP. 
Based on the NRC evaluation, the ABC Corp. is considered to be the best 
qualified company to perform the work outlined in the RFP.
    (ii) Guidance. An NRC contract normally could be awarded to the ABC 
Corp. because no conflict of interest exists which could motivate bias 
with respect to the work. An appropriate clause would be included in the 
contract to preclude the ABC Corp. from subsequently contracting for 
work with the private sector that could create a conflict during the 
performance of the NRC contract. For example, ABC Corp. would be 
precluded from the performance of similar work for the company 
developing the advanced reactor mentioned in the example.
    (3)(i) Example. The ABC Corp., in response to a competitive RFP, 
submits a proposal to assist the NRC in revising NRC's guidance 
documents on the respiratory protection requirements of 10 CFR part 20. 
ABC Corp. is the only firm determined to be technically acceptable. ABC 
Corp. has performed substantial work for regulated utilities in the past 
and is expected to continue similar efforts in the future. The work has 
and will cover the writing, implementation, and administration of 
compliance respiratory protection programs for nuclear power plants.

[[Page 521]]

    (ii) Guidance. This situation would place the firm in a role where 
its judgment could be biased in relationship to its work for the NRC. 
Because the nature of the required work is vitally important in terms of 
the NRC's responsibilities and no reasonable alternative exists, a 
waiver of the policy, in accordance with 2009.570-9 may be warranted. 
Any waiver must be fully documented in accordance with the waiver 
provisions of this policy with particular attention to the establishment 
of protective mechanisms to guard against bias.
    (4)(i) Example. The ABC Corp. submits a proposal for a new system to 
evaluate a specific reactor component's performance for the purpose of 
developing standards that are important to the NRC program. The ABC 
Corp. has advised the NRC that it intends to sell the new system to 
industry once its practicability has been demonstrated. Other companies 
in this business are using older systems for evaluation of the specific 
reactor component.
    (ii) Guidance. A contract could be awarded to the ABC Corp. if the 
contract stipulates that no information produced under the contract will 
be used in the contractor's private activities unless this information 
has been reported to the NRC. Data on how the reactor component 
performs, which is reported to the NRC by contractors, will normally be 
disseminated by the NRC to others to preclude an unfair competitive 
advantage. When the NRC furnishes information about the reactor 
component to the contractor for the performance of contracted work, the 
information may not be used in the contractor's private activities 
unless the information is generally available to others. Further, the 
contract will stipulate that the contractor will inform the NRC 
contracting officer of all situations in which the information, 
developed about the performance of the reactor component under the 
contract, is proposed to be used.
    (5)(i) Example. The ABC Corp., in response to a RFP, proposes to 
assemble a map showing certain seismological features of the Appalachian 
fold belt. In accordance with the representation in the RFP and 
2009.570-3(b)(1)(i), ABC Corp. informs the NRC that it is presently 
doing seismological studies for several utilities in the eastern United 
States, but none of the sites are within the geographic area 
contemplated by the NRC study.
    (ii) Guidance. The contracting officer would normally conclude that 
award of a contract would not place ABC Corp. in a conflicting role 
where its judgment might be biased. Section 2052.209-72(c) Work for 
Others, would preclude ABC Corp. from accepting work which could create 
a conflict of interest during the term of the NRC contract.
    (6)(i) Example. AD Division of ABC Corp., in response to a RFP, 
submits a proposal to assist the NRC in the safety and environmental 
review of applications for licenses for the construction, operation, and 
decommissioning of fuel cycle facilities. ABC Corp. is divided into two 
separate and distinct divisions, AD and BC. The BC Division performs the 
same or similar services for industry. The BC Division is currently 
providing the same or similar services required under the NRC's contract 
for an applicant or licensee.
    (ii) Guidance. An NRC contract for that particular work would not be 
awarded to the ABC Corp. The AD Division could be placed in a position 
to pass judgment on work performed by the BC Division, which could bias 
its work for NRC. Further, the Conflict of Interest provisions apply to 
ABC Corp. and not to separate or distinct divisions within the company. 
If no reasonable alternative exists, a waiver of the policy could be 
sought in accordance with 2009.570-9.
    (7)(i) Example. The ABC Corp. completes an analysis for NRC of steam 
generator tube leaks at one of a utility's six sites. Three months 
later, ABC Corp. is asked by this utility to perform the same analysis 
at another of its sites.
    (ii) Guidance. Section 2052.290-72(c)(3) would prohibit the 
contractor from beginning this work for the utility until one year after 
completion of the NRC work at the first site.
    (8)(i) Example. ABC Corp. is assisting NRC in a major on-site 
analysis of a utility's redesign of the common areas between its twin 
reactors. The contract is for two years with an estimated

[[Page 522]]

value of $5 million. Near the completion of the NRC work, ABC Corp. 
requests authority to solicit for a $100K contract with the same utility 
to transport spent fuel to a disposal site. ABC Corp. is performing no 
other work for the utility.
    (ii) Guidance. The Contracting Officer would allow the contractor to 
proceed with the solicitation because it is not in the same technical 
area as the NRC work; and the potential for technical bias by the 
contractor because of financial ties to the utility is slight due to the 
relative value of the two contracts.
    (9)(i) Example. The ABC Corp. is constructing a turbine building and 
installing new turbines at a reactor site. The contract with the utility 
is for five years and has a total value of $100 million. ABC Corp. has 
responded to an NRC Request For Proposal requiring the contractor to 
participate in a major team inspection unrelated to the turbine work at 
the same site. The estimated value of the contract is $75K.
    (ii) Guidance. An NRC contract would not normally be awarded to ABC 
Corp. because these factors create the potential for financial loyalty 
to the utility that may bias the technical judgment of the contractor.
    (d) Other considerations. (1) The fact that the NRC can identify and 
later avoid, eliminate, or neutralize any potential organizational 
conflicts arising from the performance of a contract is not relevant to 
a determination of the existence of conflicts prior to the award of a 
contract.
    (2) It is not relevant that the contractor has the professional 
reputation of being able to resist temptations which arise from 
organizational conflicts of interest, or that a follow-on procurement is 
not involved, or that a contract is awarded on a competitive or a sole 
source basis.



Sec. 2009.570-4  Representation.

    (a) The following procedures are designed to assist the NRC 
contracting officer in determining whether situations or relationships 
exist which may constitute organizational conflicts of interest with 
respect to a particular offeror or contractor. The procedures apply to 
small purchases meeting the criteria stated in the following paragraph 
(b) of this section.
    (b) The organizational conflicts of interest representation 
provision at 2052.209-71 must be included in solicitations and contracts 
resulting from unsolicited proposals. The contracting officer must also 
include this provision for task orders and contract modifications for 
new work for:
    (1) Evaluation services or activities;
    (2) Technical consulting and management support services;
    (3) Research; and
    (4) Other contractual situations where special organizational 
conflicts of interest provisions are noted in the solicitation and would 
be included in the resulting contract. This representation requirement 
also applies to all modifications for additional effort under the 
contract except those issued under the ``Changes'' clause. Where, 
however, a statement of the type required by the organizational 
conflicts of interest representation provisions has previously been 
submitted with regard to the contract being modified, only an updating 
of the statement is required.
    (c) The offeror may, because of actual or potential organizational 
conflicts of interest, propose to exclude specific kinds of work 
contained in a RFP unless the RFP specifically prohibits the exclusion. 
Any such proposed exclusion by an offeror will be considered by the NRC 
in the evaluation of proposals. If the NRC considers the proposed 
excluded work to be an essential or integral part of the required work 
and its exclusion would be to the detriment of the competitive posture 
of the other offerors, the NRC shall reject the proposal as 
unacceptable.
    (d) The offeror's failure to execute the representation required by 
paragraph (b) of this section with respect to an invitation for bids is 
considered to be a minor informality. The offeror will be permitted to 
correct the omission.



Sec. 2009.570-5  Contract clauses.

    (a) General contract clause. All contracts and simplified 
acquisitions of the types set forth in 2009.570-4(b) must include the 
clause entitled,

[[Page 523]]

``Contractor Organizational Conflicts of Interest,'' set forth in 
2052.209-72.
    (b) Other special contract clauses. If it is determined from the 
nature of the proposed contract that an organizational conflict of 
interest exists, the contracting officer may determine that the conflict 
can be avoided, or, after obtaining a waiver in accordance with 
2009.570-9, neutralized through the use of an appropriate special 
contract clause. If appropriate, the offeror may negotiate the terms and 
conditions of these clauses, including the extent and time period of any 
restriction. These clauses include but are not limited to:
    (1) Hardware exclusion clauses which prohibit the acceptance of 
production contracts following a related non-production contract 
previously performed by the contractor;
    (2) Software exclusion clauses;
    (3) Clauses which require the contractor (and certain of its key 
personnel) to avoid certain organizational conflicts of interest; and
    (4) Clauses which provide for protection of confidential data and 
guard against its unauthorized use.



Sec. 2009.570-6  Evaluation, findings, and contract award.

    The contracting officer shall evaluate all relevant facts submitted 
by an offeror and other relevant information. After evaluating this 
information against the criteria of 2009.570-3, the contracting officer 
shall make a finding of whether organizational conflicts of interest 
exist with respect to a particular offeror. If it has been determined 
that real or potential conflicts of interest exist, the contracting 
officer shall:
    (a) Disqualify the offeror from award;
    (b) Avoid or eliminate such conflicts by appropriate measures; or
    (c) Award the contract under the waiver provision of 2009.570-9.



Sec. 2009.570-7  Conflicts identified after award.

    If potential organizational conflicts of interest are identified 
after award with respect to a particular contractor and the contracting 
officer determines that conflicts do exist and that it would not be in 
the best interest of the Government to terminate the contract, as 
provided in the clauses required by 2009.570-5, the contracting officer 
shall take every reasonable action to avoid, eliminate, or, after 
obtaining a waiver in accordance with 2009.570-9, neutralize the effects 
of the identified conflict.



Sec. 2009.570-8  Subcontracts.

    The contracting officer shall require offerors and contractors to 
submit a representation statement from all subcontractors (other than a 
supply subcontractor) and consultants performing services in excess of 
$10,000 in accordance with 2009.570-4(b). The contracting officer shall 
require the contractor to include contract clauses in accordance with 
2009.570-5 in consultant agreements or subcontracts involving 
performance of work under a prime contract.



Sec. 2009.570-9  Waiver.

    (a) The contracting officer determines the need to seek a waiver for 
specific contract awards with the advice and concurrence of the program 
office director and legal counsel. Upon the recommendation of the Senior 
Procurement Executive, and after consultation with legal counsel, the 
Executive Director for Operations may waive the policy in specific cases 
if he determines that it is in the best interest of the United States to 
do so.
    (b) Waiver action is strictly limited to those situations in which:
    (1) The work to be performed under contract is vital to the NRC 
program;
    (2) The work cannot be satisfactorily performed except by a 
contractor whose interests give rise to a question of conflict of 
interest.
    (3) Contractual and/or technical review and surveillance methods can 
be employed by the NRC to neutralize the conflict.
    (c) The justification and approval documents for any waivers must be 
placed in the NRC Public Document Room.



Sec. 2009.570-10  Remedies.

    In addition to other remedies permitted by law or contract for a 
breach of the restrictions in this subpart or for any intentional 
misrepresentation

[[Page 524]]

or intentional nondisclosure of any relevant interest required to be 
provided for this section, the NRC may debar the contractor from 
subsequent NRC contracts.

                   PART 2011--DESCRIBING AGENCY NEEDS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

   Subpart 2011.4--Delivery or Performance Schedules--Contract Clauses



Sec. 2011.104-70  NRC Clauses.

    (a) The contracting officer shall insert the clause at 2052.211-70 
Preparation of Technical Reports, when deliverables include a technical 
report.
    (b) The contracting officer shall insert the clause at 2052.211-71 
Technical Progress Report, in all solicitations and contracts except--
    (1) Firm fixed price; or
    (2) Indefinite-delivery contracts to be awarded on a time-and-
materials or labor-hour basis, or that provide for issuing delivery 
orders for specific products/services (line items).
    (c) The contracting officer shall insert the clause at 2052.211-72 
Financial Status Report, in applicable cost reimbursement solicitations 
and contracts when detailed assessment of costs is warranted and a 
Contractor Spending Plan is required. The contracting officer shall use 
the clause at 2052.211-72 Financial Status Report--Alternate 1 when no 
Contractor Spending Plan is required.
    (d) The contracting officer may alter clauses at 2052.211-70, 
2052.211-71, 2052.211-72, and 2052.211-72, Alternate 1 before issuing 
the solicitation or during competition by solicitation amendment. 
Reporting requirements should be set at a meaningful and productive 
frequency. Insignificant changes may also be made by the contracting 
officer on a case-by-case basis during negotiations without solicitation 
amendment.

[[Page 525]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

         PART 2013--SIMPLIFIED ACQUISITION PROCEDURES [RESERVED]

                        PART 2014--SEALED BIDDING

                  Subpart 2014.2--Solicitation of Bids

Sec.

Sec. 2014.201  Preparation of invitation for bids.

Sec. 2014.201-670  Solicitation provisions.

          Subpart 2014.4--Opening of Bids and Award of Contract


Sec. 2014.407  Mistakes in bids.

Sec. 2014.407-3  Other mistakes disclosed before award.

Sec. 2014.407-4  Mistakes after award.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

                  Subpart 2014.2--Solicitation of Bids



Sec. 2014.201  Preparation of invitation for bids.



Sec. 2014.201-670  Solicitation provisions.

    (a) The contracting officer may insert the provision at 2052.214-70, 
Prebid Conference, in Invitations for Bids (IFB) where there will be a 
prebid conference. This provision may be altered by the contracting 
officer to fit the circumstances of the procurement.
    (b) The contracting officer may insert the provision at 2052.214-71, 
Bidder Qualifications and Past Experience in IFBs on an optional basis 
to fit the circumstances of the requirement;
    (c) The contracting officer shall insert the provision at 2052.214-
72 Bid Evaluation in all IFBs. Paragraph(f) of this provision is 
optional.
    (d) The contracting officer shall insert the provision at 2052.214-
73 Timely Receipt of Bids in all IFBs.
    (e) The contracting officer shall insert the provision at 2052.214-
74 Disposition of Bids in all IFBs.

          Subpart 2014.4--Opening of Bids and Award of Contract



Sec. 2014.407  Mistakes in bids.



Sec. 2014.407-3  Other mistakes disclosed before award.

    The Director, Division of Contracts and Property Management, is 
delegated the authority to make the determinations concerning mistakes 
in bids, including those with obvious clerical errors, discovered prior 
to award. These determinations will be concurred in by legal counsel 
prior to notification of the bidder.



Sec. 2014.407-4  Mistakes after award.

    The cognizant contracting officer is delegated the authority to make 
determinations concerning mistakes disclosed after award in accordance 
with FAR 14.407-4. These determinations will be concurred in by legal 
counsel prior to notification of the contractor.

                  PART 2015--CONTRACTING BY NEGOTIATION

Subpart 2015.2--Solicitation and Receipt of Proposals and Implementation

Sec.

Sec. 2015.209-70  Solicitation provisions and contract clauses.

        Subpart 2015.3--Source Selection Processes and Techniques


Sec. 2015.300  Scope of subpart.

Sec. 2015.303  Responsibilities.

Sec. 2015.304  Evaluation factors.

Sec. 2015.305  Proposal evaluation.

                  Subpart 2015.6--Unsolicited Proposals


Sec. 2015.606  Agency procedures.

Sec. 2015.606-1  Receipt and initial review.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49332, Sept. 10, 1999, unless otherwise noted.

[[Page 526]]

Subpart 2015.2--Solicitation and Receipt of Proposals and Implementation



Sec. 2015.209-70  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the following clauses in 
solicitations and contracts that are applicable to the requirement:
    (1) Section 2052.215-70, Key Personnel in applicable solicitations 
and contracts;
    (2)(i) Section 2052.215-71, Project Officer Authority in applicable 
solicitations and contracts for cost-reimbursement, cost-plus-fixed-fee, 
cost-plus-award-fee, cost sharing, labor-hour or time-and-materials, 
including task order contracts. This clause and the following alternate 
clauses are intended for experienced, trained project officers, and may 
be altered to delete duties where appropriate:
    (ii) Section 2052.215-71 Alternate 1. For solicitations for issuance 
of delivery orders for specific products/services;
    (iii) Section 2052.215-71 Alternate 2. For solicitations for firm 
fixed price contracts, with paragraph (b)(1) of Alternate 1 deleted and 
the remainder of the clause renumbered.
    (3) The contracting officer shall insert the provision at 2052.215-
72, Timely Receipt of Proposals in all solicitations;
    (4) The contracting officer shall insert the provision at 2052.215-
73, Award Notification and Commitment of Public Funds in all 
solicitations; and
    (5) The contracting officer shall insert the provision at 2052.215-
74, Disposition of Proposals in all solicitations.
    (b) The contracting officer may insert the following provisions in 
all solicitations as applicable. These provisions may be altered to fit 
the circumstances of the requirement. These provisions shall be tailored 
to assure that all sections of the instructions for the Technical and 
Management Proposal, or Oral Presentation and Supporting Documentation, 
reflect a one-to-one relationship to the evaluation criteria:
    (1) Section 2052.215-75, Proposal Presentation and Format for 
negotiated procurements for cost type contracts;
    (2) Section 2052.215-75 Alternate 1 may be used for all 
solicitations for negotiated task order contracts;
    (3) Section 2015.215-75 Alternate 2 may be used for all 
solicitations for negotiated fixed price, labor hour, or time and 
materials contracts:
    (c) The contracting officer shall insert the provision at 2052.215-
76, PreProposal Conference, in solicitations which include a PreProposal 
conference. This provision may be altered to fit the circumstances of 
the requirement.
    (d) The contracting officer shall insert the following clauses in 
solicitations and contracts as applicable:
    (1) Section 2052.215-77, Travel Approvals and Reimbursement, must be 
inserted in cost reimbursement solicitations and contracts which require 
travel but do not set a specific ceiling amount on that travel. Requests 
for foreign travel must be submitted to the NRC 30 days in advance of 
the travel date.
    (2) Section 2052.215-78, Travel Approvals and Reimbursement--
Alternate 1, shall be inserted in cost reimbursement solicitations and 
contracts which include a ceiling amount on travel. Requests for foreign 
travel must be submitted to the NRC 30 days in advance of the travel.
    (e) The contracting officer shall include the following provisions 
in all solicitations for competitive procurements to describe the 
relationship of technical considerations to cost considerations. The 
contracting officer may make appropriate changes to these provisions to 
accurately reflect other evaluation procedures, such as evaluation of 
proposals against mandatory criteria and bench marking criteria for 
Information Technology (IT) procurements:
    (1) Section 2052.215-79 Contract Award and Evaluation of Proposals, 
shall be included in all solicitations where technical merit is more 
important than cost,
    (2) Section 2052.215-79 Alternate 1 must be included when proposals 
are to be evaluated on a lowest price, technically acceptable basis.

[[Page 527]]

    (3) Section 2052.215-79 Alternate 2 shall be included where cost and 
technical merit are of equal significance.

        Subpart 2015.3--Source Selection Processes and Techniques



Sec. 2015.300  Scope of subpart.

    This subpart applies to all contracts awarded on a competitive basis 
in accordance with FAR part 15. This subpart does not apply to contracts 
awarded on a non-competitive basis to the Small Business Administration 
under Section 8(a) of the Small Business Act.



Sec. 2015.303  Responsibilities.

    (a) The source selection authority is the contracting officer. The 
contracting officer, acting as the source selection authority, shall 
select an offer for award based on review of the Source Evaluation 
Panel's recommendation contained in the reports described in paragraph 
(c) of this section.
    (b) Any cancellation of solicitations and subsequent rejection of 
all proposals must be approved by the Head of the Contracting Activity.
    (c) For all proposed contracts with total estimated values in excess 
of the simplified acquisition threshold and expected to result from 
competitive technical and price/cost negotiations, the cooperative 
review efforts of technical, contracting, and other administrative 
personnel are formalized through establishment of a Source Evaluation 
Panel. A single technical member may be appointed to the Source 
Evaluation Panel to evaluate proposals with the contracting officer's 
approval. In these instances, the Designating Official may appoint 
technical advisors (non-voting members) to assist the single technical 
member. The Source Evaluation Panel should not exceed five members, 
including the Chairperson except in unusual cases. The Source Evaluation 
Panel's proposal evaluation report(s) may include a Competitive Range 
Report and a Final Evaluation Report (to be used when award will be made 
after conducting discussions), or a Recommendation for Award Report (to 
be used when award will be made without discussions).
    (d) The Designating Official (Office Director or designee) is 
responsible for appointing a Source Evaluation Panel to evaluate 
competitive technical proposals in accordance with the solicitation 
technical criteria. The Designating Official is also responsible for 
conducting an independent review and evaluation of the Source Evaluation 
Panel's proposal evaluation report(s) to the contracting officer.



Sec. 2015.304  Evaluation factors.

    The evaluation factors included in the solicitation serve as the 
standard against which all proposals are evaluated and are the basis for 
the development of proposal preparation instructions in accordance with 
FAR 15.304(b). The solicitation may indicate the relative importance of 
evaluation factors and subfactors by assigning a numerical weight to 
each factor. If a solicitation uses numerical weights, those weights 
shall be stated in the solicitation. The relative importance of factors 
that are not numerically weighted will be stated in the solicitation. 
Examples of factors which may not be numerically weighted are conflict 
of interest, estimated cost, and ``go/no go'' evaluation factors.



Sec. 2015.305  Proposal evaluation.

    The contracting officer may provide offerors' cost proposals and 
supporting financial information to members of the Source Evaluation 
Panel at the same time technical proposals are distributed for 
evaluation. The Source Evaluation Panel shall use this information to 
perform an accurate integrated assessment of each offeror's proposal 
based on all the facts presented to them.

                  Subpart 2015.6--Unsolicited Proposals



Sec. 2015.606  Agency procedures.

    (a) The Division of Contracts and Property Management is the point 
of contact for the receipt, acknowledgment, and handling of unsolicited 
proposals.
    (b) An original and two copies of the unsolicited proposal as well 
as requests for additional information regarding their preparation, must 
be submitted

[[Page 528]]

to: U.S. Nuclear Regulatory Commission, Division of Contracts and 
Property Management, Mail Stop T-7-I-2, Washington, DC 20555.
    (c) The Division of Contracts and Property Management shall enter 
each unsolicited proposal into the unsolicited proposal tracking system.



Sec. 2015.606-1  Receipt and initial review.

    (a) The Division of Contracts and Property Management shall 
acknowledge receipt of an unsolicited proposal, complete a preliminary 
review, assign a docket number, and send copies of the unsolicited 
proposal to the appropriate program office Director(s) or designee for 
evaluation.
    (b) The Division of Contracts and Property Management shall be 
responsible for controlling reproduction and distribution of proposal 
material by notifying evaluators of their responsibilities and tracking 
the number of proposals received and forwarded to evaluators.
    (c) An acknowledgment letter will be sent to the proposer by The 
Division of Contracts and Property Management. The letter will provide 
an estimated date for a funding decision or identifying the reasons for 
non-acceptance of the proposal for review in accordance with FAR 15.606-
1(b) and FAR 15.606-1(c).

                      PART 2016--TYPES OF CONTRACTS

              Subpart 2016.3--Cost Reimbursement Contracts

Sec.

Sec. 2016.307-70  Contract provisions and clauses.

              Subpart 2016.5--Indefinite-Delivery Contracts


Sec. 6016.506-70  Contract provisions and clauses.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

              Subpart 2016.3--Cost Reimbursement Contracts



Sec. 2016.307-70  Contract provisions and clauses.

    (a) The contracting officer shall insert the provision at 2052.216-
70, Level of Effort, in solicitations for negotiated procurements 
containing labor costs other than maintenance services to be awarded on 
a cost reimbursement, cost sharing, cost-plus-award fee, cost-plus-fixed 
fee, time and materials, or labor hour basis.
    (b) The contracting officer may insert the following provisions and 
clauses in cost reimbursement contracts as applicable:
    (1) Section 2052.216-71, Indirect Cost Rates (where provisional 
rates without ceilings apply).
    (2) Section 2052.216-71, Indirect Cost Rates--Alternate 1 (where 
redetermined rates apply).
    (3) Section 2052.216-71, Indirect Cost Rates (Ceiling)--Alternate 2 
(where provisional rates with ceilings apply).
    (c) The contracting officer may make appropriate changes to these 
clauses to reflect different arrangements.

              Subpart 2016.5--Indefinite-Delivery Contracts



Sec. 2016.506-70  Contract provisions and clauses.

    The contracting officer shall insert the following clauses in all 
solicitations and contracts that contain task order procedures. These 
clauses may be altered by the contracting officer to fit the 
circumstances of the requirement.
    (a) Section 2052.216-72, Task Order Procedures;
    (b) Section 2052.216-73, Accelerated Task Order Procedures.

                 PART 2017--SPECIAL CONTRACTING METHODS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 481(b).

[[Page 529]]


    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

                         Subpart 2017.2--Options



Sec. 2017.204  Contracts

    (a) The contracting officer may approve non-competitive extensions, 
within the limits of his/her delegation, to five-year contracts up to a 
total of an additional 6 months for the purpose of completing the 
competitive process for a follow-on contract if the request for 
procurement action for a follow-on or replacement contract was received 
in the Division of Contracts and Property Management not less than 6 
months before the end of the fifth year.
    (b) Other extensions beyond five years must be approved by the 
Competition Advocate.

[[Page 530]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

                   PART 2019--SMALL BUSINESS PROGRAMS

Subpart 2019.7--Subcontracting With Small Business, Small Disadvantaged 
            Business, and Women-Owned Small Business Concerns

Sec.

Sec. 2019.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 2019.705-4  Reviewing the subcontracting plan.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

Subpart 2019.7--Subcontracting With Small Business, Small Disadvantaged 
            Business, and Women-Owned Small Business Concerns



Sec. 2019-705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 2019.705-4  Reviewing the subcontracting plan.

    The contracting officer may accept the terms of an overall or 
``master'' company subcontracting plan incorporated by reference into a 
specific subcontracting plan submitted by the apparent successful 
offeror/bid for a specific contract, only upon ensuring that the 
required information, goals, and assurances are included in accordance 
with FAR 19.704.

     PART 2022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                  Subpart 2022.1--Basic Labor Policies

Sec.

Sec. 2022.101-1  General.

Sec. 2022.103-4  Approvals.

            Subpart 2022.9--Nondiscrimination Because of Age


Sec. 2022.901-70  Contract provisions.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 4186 (b)

    Source: 64 FR 49334, Sept. 10, 1999, unless otherwise noted.

                  Subpart 2022.1--Basic Labor Policies



Sec. 2022.101-1  General.

    The Head of the Contracting Activity shall designate programs or 
requirements for which it is necessary that contractors be required to 
notify the Government of actual or potential labor disputes that are 
delaying or threaten to delay the timely contract performance. 
Contractor notification shall be made in accordance with FAR 52.222-1, 
``Notice to the Government of Labor Disputes.''



Sec. 2022.103-4  Approvals.

    The agency approving official for contractor overtime is the 
contracting officer.

            Subpart 2022.9--Nondiscrimination Because of Age



Sec. 2022.901-70  Contract provisions.

    The contracting officer shall insert the provision found at 
2052.222-70, Nondiscrimination Because of Age, in all solicitations.

       PART 2024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 2024.1--Protection of Individual Privacy

Sec.

Sec. 2024.103  Procedures.

               Subpart 2024.2--Freedom of Information Act


Sec. 2024.202  Policy.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

[[Page 531]]

            Subpart 2024.1--Protection of Individual Privacy



Sec. 2024.103  Procedures.

    The provisions at 10 CFR part 9, subpart B, Privacy Act Regulations, 
are applicable to the maintenance or disclosure of information for a 
system of records on individuals.

               Subpart 2024.2--Freedom of Information Act



Sec. 2024.202  Policy.

    The provisions at 10 CFR part 9, subpart A, Freedom of Information 
Act Regulations, are applicable to the availability of NRC records to 
the public.

[[Page 532]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                PART 2027--PATENTS, DATA, AND COPYRIGHTS

         Subpart 2027.3--Patent Rights Under Government Contract

Sec.

Sec. 2027.305-3  Follow-up by Government.

Sec. 2027.305-70  Solicitation provisions and contract clauses.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

        Subpart 2027.3--Patent Rights Under Government Contracts



Sec. 2027.305-3  Follow-up by Government.

    (a) The contracting officer shall, as a part of the closeout of a 
contract, require each contractor to report any patents, copyrights, or 
royalties attained using any portion of the contract funds in writing.
    (b) If no activity is to be reported, the contractor shall provide 
the following written determination before final payment and closeout of 
the contract:
    (1) No inventions or discoveries were made,
    (2) No copyrights were secured, produced, or composed,
    (3) No notices or claims of patent or copyright infringement have 
been received by the contractor or its subcontractors; and
    (4) No royalty payments were directly involved in the contract or 
reflected in the contract price to the Government, nor were any 
royalties or other payments paid or owed directly to others.
    (c) The contracting officer may waive any of the requirements in 
paragraphs (b) (1) through (4) of this section, after documenting the 
file to indicate the--
    (1) Impracticality of obtaining the document(s); and
    (2) Steps taken to attempt to obtain them.
    (d) The contracting officer shall notify agency legal counsel 
responsible for patents whenever a contractor reports any patent, 
copyright, or royalty activity. The contract officer shall document the 
official file with the resolution to protect the Government's rights 
before making any final payment and closing out the contract.



Sec. 2027.305-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 2052.227-70, 
Drawings, Designs, Specifications, and Data, in all solicitations and 
contracts in which drawings, designs, specifications, or other data will 
be developed and the NRC is required to retain full rights to them 
(except for the contractor's right to retain a copy for its own use). 
When any of the clauses prescribed at FAR 27.409, Solicitation 
Provisions and Contract Clauses, are included in the solicitation/
contract, this clause will not be used.

                  PART 2030--COST ACCOUNTING STANDARDS

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                Subpart 2030.2--CAS Program Requirements



Sec. 2030.201-5  Waiver.

    Requests to waive Cost Accounting Standards (CAS) requirements must 
be submitted to the Chairman, CAS Board by the Competition Advocate. The 
requests for waiver must be forwarded through the Head of the 
Contracting Activity with supporting documentation and rationale in 
accordance with FAR 30.201-5.

           PART 2031--CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2031.1--Applicability

Sec.

Sec. 2031.109-70  Contract clauses.


[[Page 533]]


    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                      Subpart 2031.1--Applicability



Sec. 2031.109-70  Contract clauses.

    The contracting officer shall insert the clause at 2052.231-70, 
Precontract Costs, in all cost type contracts when costs in connection 
with work under the contract will be incurred by the contractor before 
the effective date of the contract. Approval for use of this clause must 
be obtained at one level above the contracting officer.

                      PART 2032--CONTRACT FINANCING

        Subpart 2032.4--Advance Payments for Non-Commercial Items

Sec.

Sec. 2032.402  General.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

        Subpart 2032.4--Advance Payments for Non-Commercial Items



Sec. 2032.402  General.

    (a) The contracting officer has the responsibility and authority for 
making findings and determinations and for approval of contract terms 
concerning advance payments.
    (b) Before authorizing any advance payment agreements, except for 
subscriptions to publications, the contracting officer shall coordinate 
with the Office of the Chief Financial Officer, Division of Accounting 
and Finance, to ensure completeness of contractor submitted 
documentation.

               PART 2033--PROTESTS, DISPUTES, AND APPEALS

                        Subpart 2033.1--Protests

Sec.

Sec. 2033.103  Protests to the agency.

                  Subpart 2033.2--Disputes and Appeals


Sec. 2033.204  Policy.

Sec. 2033.211  Contract Claims--Contracting officer's decision.

Sec. 2033.215  Contract clause.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49335, Sept. 10, 1999, unless otherwise noted.

                        Subpart 2033.1--Protests



Sec. 2033.103  Protests to the agency.

    Protests to the agency are first considered by the contracting 
officer. In accordance with FAR 33.103(d)(4), the protestor may appeal 
the contracting officer's decision by delivering or providing a written 
request to the agency Director, Division of Contracts or Property 
Management, or designee, to conduct an independent review of the 
Contracting Officer's decision.

[[Page 534]]

                  Subpart 2033.2--Disputes and Appeals



Sec. 2033.204  Policy.

    Final decisions of the NRC contracting officer on contract disputes 
and appeals issued under to the Contracts Disputes Act will be heard by 
the Department of Energy Board of Contract Appeals (EBCA) under an 
interagency agreement between the NRC and the Department of Energy. The 
EBCA rules appear in 10 CFR part 1023.



Sec. 2033.211  Contract Claims--Contracting officer's decision.

    The contracting officer shall alter the paragraph at FAR 
33.211(a)(4)(v) to identify the Energy Board of Contract Appeals and 
include its address: U.S. Department of Energy, Board of Contract 
Appeals, HG-50, Building 950, 1000 Independence Ave., SW., Washington, 
DC 20585, when preparing a written decision.



Sec. 2033.215  Contract clause.

    The contracting officer shall use the clause at FAR 52.233-1, 
Disputes, with its Alternate I, where continued performance is vital to 
national security, the public health and safety, critical and major 
agency programs, or other essential supplies or services whose timely 
reprocurement from other sources would be impractical.

[[Page 535]]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

             PART 2035--RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 2035.70  Contract clauses.

Sec. 2035.71  Broad agency announcements.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; and 41 U.S.C. 418(b).

    Source: 64 FR 49336, Sept. 10, 1999, unless otherwise noted.



Sec. 2035.70  Contract clauses.

    (a) The contracting officer shall insert the following clause in all 
solicitations and contracts for research and development by private 
contractors and universities and for other technical services, as 
appropriate:
    (1) Section 2052.235-70, Publication of Research Results;
    (2) Section 2052.235-72 Safety, Health and Fire Protection.



Sec. 2035.71  Broad agency announcements.

    (a) Criteria for selecting contractors may include such factors as:
    (1) Unique and innovative methods, approaches, or concepts 
demonstrated by the proposal.
    (2) Overall scientific, technical, or economic merits of the 
proposal.
    (3) The offeror's capabilities, related experience, facilities, 
techniques, or unique combinations of these which are integral factors 
for achieving the proposal objectives.
    (4) The qualifications, capabilities, and experience of the proposed 
principal investigator, team leader, or key personnel who are critical 
in achieving the proposal objectives.
    (5) Potential contribution of the effort to NRC's mission.
    (6) Overall standing among similar proposals available for 
evaluation and/or evaluation against the known state-of-the-art 
technology.
    (b) Once a proposal is received, communication between the agency's 
scientific or engineering personnel and the principal investigator is 
permitted for clarification purposes only and must be coordinated 
through the Division of Contracts and Property Management.
    (c) After evaluation of the proposals, the Designating Official 
shall submit a comprehensive evaluation report to the contracting 
officer which recommends the source(s) for contract award. The report 
must reflect the basis for the selection or nonselection of each 
proposal received.

[[Page 536]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                   PART 2042--CONTRACT ADMINISTRATION

          Subpart 2042.570--Differing Professional Views (DPV)

Sec.

Sec. 2042.570-1  Policy.

Sec. 2042.570-2  Solicitation provisions and contract clauses.

                  Subpart 2042.8--Disallowance of Costs


Sec. 2042.803  Disallowing costs after incurrence.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49336, Sept. 10, 1999, unless otherwise noted.

          Subpart 2042.570--Differing Professional Views (DPV)



Sec. 2042.570-1  Policy.

    The Nuclear Regulatory Commission's (NRC) policy is to support the 
contractor's expression of professional health and safety-related 
concerns associated with the contractor's work for the NRC that may 
differ from a prevailing NRC staff view, disagree with an NRC decision 
or policy position, or take issue with proposed or established agency 
practices. An occasion may arise when an NRC contractor, contractor's 
personnel, or subcontractor personnel believes that a conscientious 
expression of a competent judgement is required to document these 
concerns on matters directly associated with its performance of the 
contract. The procedure described in 2052.242-71, Procedures for 
Resolving NRC Contractor Differing Professional Views, provides for the 
expression and resolution of DPVs of health and safety-related concerns 
associated with the mission of the agency by NRC contractors, contractor 
personnel, or subcontractor personnel on matters directly associated 
with its performance of the contract. The contractor shall provide a 
copy of the NRC DPV procedure to all of its employees performing under 
this contract and to all subcontractors who shall, in turn, provide a 
copy of the procedure to its employees. The prime contractor or 
subcontractor shall submit all DPV's received but need not endorse them.



Sec. 2042.570-2  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 2052.242-70, 
Resolving NRC Contractor Differing Professional Views, in the body of 
cost reimbursement solicitations and contracts for professional 
services, as appropriate. This clause may not be altered by the 
contracting officer.
    (b) The contracting officer shall include the clause at 2052.242-71, 
Procedures for Resolving NRC Contractor Differing Professional Views, as 
an attachment to cost reimbursement solicitations and contracts for 
professional services, as appropriate. This clause may not be altered by 
the contracting officer.

                  Subpart 2042.8--Disallowance of Costs



Sec. 2042.803  Disallowing costs after incurrence.

    (a) Vouchers and invoices submitted to NRC must be submitted to the 
contracting officer or designee for review and approval for payment. If 
the examination of a voucher or invoice raises a question regarding the 
allowability of a cost submitted, the contracting officer or designee 
shall:
    (1) Hold informal discussions with the contractor as appropriate.
    (2) If the discussions do not resolve the matter, the contracting 
officer shall issue a notice advising the contractor of costs 
disallowed. The notice must advise the contractor that it may:
    (i) If in disagreement with the disallowance, submit a written claim 
to the contracting officer for payment of the disallowed cost and 
explain why the cost should be reimbursed; or
    (ii) If the disagreement(s) cannot be settled, file a claim under 
the disputes clause which will be processed in accordance with disputes 
procedures found at FAR subpart 33.2; and

[[Page 537]]

    (3) Process the voucher or invoice for payment and advise the NRC 
Division of Accounting and Finance to deduct the disallowed costs when 
scheduling the voucher for payment.
    (b) When audit reports or other notifications question costs or 
consider them unallowable, the contracting officer shall resolve all 
cost issues through discussions with the contractor and/or auditor 
within six months of receipt of the audit report whenever possible.
    (1) One of the following courses of action must be pursued:
    (i) Accept and implement audit recommendations as submitted;
    (ii) Accept the principle of the audit recommendation but adjust the 
amount of the questioned costs;
    (iii) Reject audit findings and recommendations.
    (2) When implementing the chosen course of action, the contracting 
officer shall:
    (i) Hold discussions with the auditor and contractor, as 
appropriate;
    (ii) If the contracting officer agrees with the auditor concerning 
the questioned costs, attempt to negotiate a mutual settlement of 
questioned costs;
    (iii) Issue a final decision, including any disallowance of 
questioned costs; inform the contractor of his/her right to appeal the 
decision under the disputes procedures found at FAR subpart 33.2; and 
provide a copy of the final decision to the Office of the Inspector 
General; and
    (iv) Initiate immediate recoupment actions for all disallowed costs 
owed the Government by one or more of the following methods:
    (A) Request that the contractor provide a credit adjustment (offset) 
and an adequate description/explanation of the adjustment against 
amounts billed the Government on the next or other future invoice(s) 
submitted under the contract for which the disallowed costs apply;
    (B) Deduct the disallowed costs from the next invoice submitted 
under the contract;
    (C) Deduct the disallowed costs on a schedule determined by the 
contracting officer after discussion with the contractor (if the 
contracting officer determines that an immediate and complete deduction 
is inappropriate); and
    (D) Advise the contractor that a refund is immediately payable to 
the Government (in situations where there are insufficient payments owed 
by the Government to effect recovery from the contract).

                     PART 2045--GOVERNMENT PROPERTY

      Subpart 2045.3--Providing Government Property to Contractors

Sec.

Sec. 2045.370  Providing Government property (in general).

Sec. 2045.371  Property accountability procedures.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49337, Sept. 10, 1999, unless otherwise noted.

      Subpart 2045.3--Providing Government Property to Contractors



Sec. 2045.370  Providing Government property (in general).

    (a) Unless otherwise provided for in FAR 45.302-1(d), applicable to 
Government facilities with a unit cost of less than $10,000, a 
contractor may be provided Government property or allowed to purchase 
the property at Government expense if the contracting officer, with the 
advice of the agency property official determines that:
    (1) No practicable or economical alternative exists; e.g., 
acquisition from other sources, utilization of subcontractors, rental of 
property, or modification of program project requirements;
    (2) Furnishing Government property is likely to result in 
substantially lower costs to the Government for the items produced or 
services rendered when all costs involved (e.g., transportation, 
installation, modification, maintenance, etc.) are compared with the 
costs to the Government of the contractor's use of privately-owned 
property; and
    (3) The Government receives adequate consideration for providing the 
property.

[[Page 538]]



Sec. 2045.371  Property accountability procedures.

    (a) The threshold for detailed reporting of capitalized equipment by 
contractors is $50,000.
    (b) The contractor shall send a copy of each Financial Status Report 
(NRCAR 2052.211-72, and 2052.211-72 Alternate 1), that references the 
acquisition of, or change in status of, contractor-held property 
purchased with government funds valued at the time of purchase at 
$50,000 or more to the Chief, Property and Acquisition Oversight Branch, 
Division of Contracts and Property Management.

[[Page 539]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 2052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

             Subpart 2052.2--Text of Provisions and Clauses

Sec.

Sec. 2052.200  Authority.

Sec. 2052.204-70  Security.

Sec. 2052.204-71  Site access badge requirements.

Sec. 2052.209-70  Current/former agency employee involvement.

Sec. 2052.209-71  Contractor organizational conflicts of interest 
          (representation).

Sec. 2052.209-72  Contractor organizational conflicts of interest.

Sec. 2052.211-70  Preparation of technical reports.

Sec. 2052.211-71  Technical progress report.

Sec. 2052.211-72  Financial status report.

Sec. 2052.214-70  Prebid conference.

Sec. 2052.214-71  Bidder qualifications and past experiences.

Sec. 2052.214-72  Bid evaluation.

Sec. 2052.214-73  Timely receipt of bids.

Sec. 2052.214-74  Disposition of bids.

Sec. 2052.215-70  Key personnel.

Sec. 2052.215-71  Project officer authority.

Sec. 2052.215-72  Timely receipt of proposals.

Sec. 2052.215-73  Award notification and commitment of public funds.

Sec. 2052.215-74  Disposition of proposals.

Sec. 2052.215-75  Proposal presentation and format.

Sec. 2052.215-76  Preproposal conference.

Sec. 2052.215-77  Travel approvals and reimbursement.

Sec. 2052.215-78  Travel approvals and reimbursement--Alternate 1.

Sec. 2052.215-79  Contract award and evaluation of proposals.

Sec. 2052.216-70  Level of effort.

Sec. 2052.216-71  Indirect cost rates.

Sec. 2052.216-72  Task order procedures.

Sec. 2052.216-73  Accelerated task order procedures.

Sec. 2052.222-70  Nondiscrimination because of age.

Sec. 2052.227-70  Drawings, designs, specifications, and other data

Sec. 2052.231-70  Precontract costs.

Sec. 2052.235-70  Publication of research results.

Sec. 2052.235-71  Safety, health, and fire protection.

Sec. 2052.242-70  Resolving differing professional views.

Sec. 2052.242-71  Procedures for resolving differing professional views.

    Authority: 42 U.S.C. 2201; 42 U.S.C. 5841; 41 U.S.C. 418(b).

    Source: 64 FR 49337, Sept. 10, 1999, unless otherwise noted.

             Subpart 2052.2--Text of Provisions and Clauses



Sec. 2052.200  Authority.



Sec. 2052.204-70  Security.

    As prescribed at 2004.404(a), the contracting officer shall insert 
the following clause in solicitations and contracts during which the 
contractor may have access to, or contact with classified information, 
including National Security information, restricted data, formerly 
restricted data, and other classified data:

                           Security (OCT 1999)

    (a) Security/Classification Requirements Form. The attached NRC Form 
187 (See List of Attachments) furnishes the basis for providing security 
and classification requirements to prime contractors, subcontractors, or 
others (e.g., bidders) who have or may have an NRC contractual 
relationship that requires access to classified information or matter, 
access on a continuing basis (in excess of 90 or more days) to NRC 
Headquarters controlled buildings, or otherwise requires NRC photo 
identification or card-key badges.
    (b) It is the contractor's duty to safeguard National Security 
Information, Restricted Data, and Formerly Restricted Data. The 
contractor shall, in accordance with the Commission's security 
regulations and requirements, be responsible for safeguarding National 
Security Information, Restricted Data, and Formerly Restricted Data, and 
for protecting against sabotage, espionage, loss, and theft, the 
classified documents and material in the contractor's possession in 
connection with the performance of work under this contract. Except as 
otherwise expressly provided in this contract, the contractor shall 
transmit to the Commission any classified matter in the possession of 
the contractor or any person under the contractor's control in 
connection with performance of this contract upon completion or 
termination of this contract.
    (1) The contractor shall complete a certificate of possession to be 
furnished to the Commission specifying the classified matter to be 
retained if the retention is:
    (i) Required after the completion or termination of the contract; 
and
    (ii) Approved by the contracting officer.
    (2) The certification must identify the items and types or 
categories of matter retained, the conditions governing the retention of 
the matter and their period of retention, if known. If the retention is 
approved

[[Page 540]]

by the contracting officer, the security provisions of the contract 
continue to be applicable to the matter retained.
    (c) In connection with the performance of the work under this 
contract, the contractor may be furnished, or may develop or acquire, 
proprietary data (trade secrets) or confidential or privileged 
technical, business, or financial information, including Commission 
plans, policies, reports, financial plans, internal data protected by 
the Privacy Act of 1974 (Pub. L. 93-579), or other information which has 
not been released to the public or has been determined by the Commission 
to be otherwise exempt from disclosure to the public. The contractor 
agrees to hold the information in confidence and not to directly or 
indirectly duplicate, disseminate, or disclose the information, in whole 
or in part, to any other person or organization except as necessary to 
perform the work under this contract. The contractor agrees to return 
the information to the Commission or otherwise dispose of it at the 
direction of the contracting officer. Failure to comply with this clause 
is grounds for termination of this contract.
    (d) Regulations. The contractor agrees to conform to all security 
regulations and requirements of the Commission which are subject to 
change as directed by the NRC Division of Facilities and Security and 
the Contracting Officer. These changes will be under the authority of 
the FAR Changes clause referenced in Section I of this document.
    (e) Definition of National Security Information. As used in this 
clause, the term National Security Information means information that 
has been determined pursuant to Executive Order 12958 or any predecessor 
order to require protection against unauthorized disclosure and that is 
so designated.
    (f) Definition of Restricted Data. As used in this clause, the term 
Restricted Data means all data concerning design, manufacture, or 
utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy, but does not include data declassified or removed from the 
Restricted Data category under to Section 142 of the Atomic Energy Act 
of 1954, as amended.
    (g) Definition of Formerly Restricted Data. As used in this clause 
the term Formerly Restricted Data means all data removed from the 
Restricted Data category under Section 142-d of the Atomic Energy Act of 
1954, as amended.
    (h) Security clearance personnel. The contractor may not permit any 
individual to have access to Restricted Data, Formerly Restricted Data, 
or other classified information, except in accordance with the Atomic 
Energy Act of 1954, as amended, and the Commission's regulations or 
requirements applicable to the particular type or category of classified 
information to which access is required. The contractor shall also 
execute a Standard Form 312, Classified Information Nondisclosure 
Agreement, when access to classified information is required.
    (i) Criminal liabilities. Disclosure of National Security 
Information, Restricted Data, and Formerly Restricted Data relating to 
the work or services ordered hereunder to any person not entitled to 
receive it, or failure to safeguard any Restricted Data, Formerly 
Restricted Data, or any other classified matter that may come to the 
contractor or any person under the contractor's control in connection 
with work under this contract, may subject the contractor, its agents, 
employees, or subcontractors to criminal liability under the laws of the 
United States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 
2011 et seq.; 18 U.S.C. 793 and 794; and Executive Order 12958.)
    (j) Subcontracts and purchase orders. Except as otherwise 
authorized, in writing, by the contracting officer, the contractor shall 
insert provisions similar to the foregoing in all subcontracts and 
purchase orders under this contract.
    (k) In performing contract work, the contractor shall classify all 
documents, material, and equipment originated or generated by the 
contractor in accordance with guidance issued by the Commission. Every 
subcontract and purchase order issued under the contract that involves 
originating or generating classified documents, material, and equipment 
must provide that the subcontractor or supplier assign the proper 
classification to all documents, material, and equipment in accordance 
with guidance furnished by the contractor.

                             (End of clause)



Sec. 2052.204-71  Site access badge requirements.

    As prescribed at 2004.404(b), the contracting officer shall insert 
the following clause in all solicitations and contracts under which the 
contractor will require access to Government facilities. The clause may 
be altered to reflect any special conditions to be applied to foreign 
nationals:

                Site Access Badge Requirements (JAN 1993)

    During the life of this contract, the rights of ingress and egress 
for contractor personnel must be made available as required. In this 
regard, all contractor personnel whose duties under this contract 
require their presence on-site shall be clearly identifiable by a 
distinctive badge furnished by the Government. The Project Officer shall 
assist the contractor in obtaining the badges for

[[Page 541]]

contractor personnel. It is the sole responsibility of the contractor to 
ensure that each employee has proper identification at all times. All 
prescribed identification must be immediately delivered to the Security 
Office for cancellation or disposition upon the termination of 
employment of any contractor personnel. Contractor personnel shall have 
this identification in their possession during on-site performance under 
this contract. It is the contractor's duty to assure that contractor 
personnel enter only those work areas necessary for performance of 
contract work and to assure the safeguarding of any Government records 
or data that contractor personnel may come into contact with.

                             (End of clause)



Sec. 2052.209-70  Current/former agency employee involvement.

    As prescribed at 2009.105-70, the contracting officer shall insert 
the following provision in all solicitations:

          Current/Former Agency Employee Involvement (OCT 1999)

    (a) The following representation is required by the NRC Acquisition 
Regulation 2009.105-70(b). It is not NRC policy to encourage offerors 
and contractors to propose current/former agency employees to perform 
work under NRC contracts and as set forth in the above cited provision, 
the use of such employees may, under certain conditions, adversely 
affect NRC's consideration of non-competitive proposals and task orders.
    (b) There ( ) are ( ) are no current/former NRC employees (including 
special Government employees performing services as experts, advisors, 
consultants, or members of advisory committees) who have been or will be 
involved, directly or indirectly, in developing the offer, or in 
negotiating on behalf of the offeror, or in managing, administering, or 
performing any contract, consultant agreement, or subcontract resulting 
from this offer. For each individual so identified, the Technical and 
Management proposal must contain, as a separate attachment, the name of 
the individual, the individual's title while employed by the NRC, the 
date individual left NRC, and a brief description of the individual's 
role under this proposal.

                           (End of provision)



Sec. 2052.209-71  Contractor organizational conflicts of interest 
          (representation).

    As prescribed in 2009.570-4(b) and 2009.570-8, the contracting 
officer must insert the following provision in applicable solicitations 
and in contracts resulting from unsolicited proposals. The contracting 
officer must also include the following in task orders and contract 
modifications for new work.

  Contractor Organizational Conflicts of Interest Representation (OCT 
                                  1999)

    I represent to the best of my knowledge and belief that:
    The award to ---------------- of a contract or the modification of 
an existing contract does / / does not / / involve situations or 
relationships of the type set forth in 48 CFR 2009.570-3(b).
    (a) If the representation, as completed, indicates that situations 
or relationships of the type set forth in 48 CFR 2009.570-3(b) are 
involved, or the contracting officer otherwise determines that potential 
organizational conflicts of interest exist, the offeror shall provide a 
statement in writing that describes in a concise manner all relevant 
factors bearing on his representation to the contracting officer. If the 
contracting officer determines that organizational conflicts exist, the 
following actions may be taken:
    (1) Impose appropriate conditions which avoid such conflicts;
    (2) Disqualify the offeror; or
    (3) Determine that it is otherwise in the best interest of the 
United States to seek award of the contract under the waiver provisions 
of 48 CFR 2009-570-9.
    (b) The refusal to provide the representation required by 48 CFR 
2009.570-4(b), or upon request of the contracting officer, the facts 
required by 48 CFR 2009.570-3(b), must result in disqualification of the 
offeror for award.

                           (End of provision)



Sec. 2052.209-72  Contractor organizational conflicts of interest.

    As prescribed at 2009.570-5(a) and 2009.570-8, the contracting 
officer must insert the following clause in all applicable 
solicitations, contracts, and simplified acquisitions of the types 
described; 2009.570-4(b):

       Contractor Organizational Conflicts of Interest (JAN 1993)

    (a) Purpose. The primary purpose of this clause is to aid in 
ensuring that the contractor:
    (1) Is not placed in a conflicting role because of current or 
planned interests (financial, contractual, organizational, or otherwise) 
which relate to the work under this contract; and
    (2) Does not obtain an unfair competitive advantage over other 
parties by virtue of its performance of this contract.

[[Page 542]]

    (b) Scope. The restrictions described apply to performance or 
participation by the contractor, as defined in 48 CFR 2009.570-2 in the 
activities covered by this clause.
    (c) Work for others.
    (1) Notwithstanding any other provision of this contract, during the 
term of this contract, the contractor agrees to forego entering into 
consulting or other contractual arrangements with any firm or 
organization the result of which may give rise to a conflict of interest 
with respect to the work being performed under this contract. The 
contractor shall ensure that all employees under this contract abide by 
the provision of this clause. If the contractor has reason to believe, 
with respect to itself or any employee, that any proposed consultant or 
other contractual arrangement with any firm or organization may involve 
a potential conflict of interest, the contractor shall obtain the 
written approval of the contracting officer before the execution of such 
contractual arrangement.
    (2) The contractor may not represent, assist, or otherwise support 
an NRC licensee or applicant undergoing an NRC audit, inspection, or 
review where the activities that are the subject of the audit, 
inspection, or review are the same as or substantially similar to the 
services within the scope of this contract (or task order as 
appropriate) except where the NRC licensee or applicant requires the 
contractor's support to explain or defend the contractor's prior work 
for the utility or other entity which NRC questions.
    (3) When the contractor performs work for the NRC under this 
contract at any NRC licensee or applicant site, the contractor shall 
neither solicit nor perform work in the same or similar technical area 
for that licensee or applicant organization for a period commencing with 
the award of the task order or beginning of work on the site (if not a 
task order contract) and ending one year after completion of all work 
under the associated task order, or last time at the site (if not a task 
order contract).
    (4) When the contractor performs work for the NRC under this 
contract at any NRC licensee or applicant site,
    (i) The contractor may not solicit work at that site for that 
licensee or applicant during the period of performance of the task order 
or the contract, as appropriate.
    (ii) The contractor may not perform work at that site for that 
licensee or applicant during the period of performance of the task order 
or the contract, as appropriate, and for one year thereafter.
    (iii) Notwithstanding the foregoing, the contracting officer may 
authorize the contractor to solicit or perform this type of work (except 
work in the same or similar technical area) if the contracting officer 
determines that the situation will not pose a potential for technical 
bias or unfair competitive advantage.
    (d) Disclosure after award.
    (1) The contractor warrants that to the best of its knowledge and 
belief, and except as otherwise set forth in this contract, that it does 
not have any organizational conflicts of interest as defined in 48 CFR 
2009.570-2.
    (2) The contractor agrees that if, after award, it discovers 
organizational conflicts of interest with respect to this contract, it 
shall make an immediate and full disclosure in writing to the 
contracting officer. This statement must include a description of the 
action which the contractor has taken or proposes to take to avoid or 
mitigate such conflicts. The NRC may, however, terminate the contract if 
termination is in the best interest of the Government.
    (3) It is recognized that the scope of work of a task-order-type 
contract necessarily encompasses a broad spectrum of activities. 
Consequently, if this is a task-order-type contract, the contractor 
agrees that it will disclose all proposed new work involving NRC 
licensees or applicants which comes within the scope of work of the 
underlying contract. Further, if this contract involves work at a 
licensee or applicant site, the contractor agrees to exercise diligence 
to discover and disclose any new work at that licensee or applicant 
site. This disclosure must be made before the submission of a bid or 
proposal to the utility or other regulated entity and must be received 
by the NRC at least 15 days before the proposed award date in any event, 
unless a written justification demonstrating urgency and due diligence 
to discover and disclose is provided by the contractor and approved by 
the contracting officer. The disclosure must include the statement of 
work, the dollar value of the proposed contract, and any other documents 
that are needed to fully describe the proposed work for the regulated 
utility or other regulated entity. NRC may deny approval of the 
disclosed work only when the NRC has issued a task order which includes 
the technical area and, if site-specific, the site, or has plans to 
issue a task order which includes the technical area and, if site-
specific, the site, or when the work violates paragraphs (c)(2), (c)(3) 
or (c)(4) of this section.
    (e) Access to and use of information.
    (1) If, in the performance of this contract, the contractor obtains 
access to information, such as NRC plans, policies, reports, studies, 
financial plans, internal data protected by the Privacy Act of 1974 (5 
U.S.C. Section 552a (1988)), or the Freedom of Information Act (5 U.S.C. 
Section 552 (1986)), the contractor agrees not to:
    (i) Use this information for any private purpose until the 
information has been released to the public;
    (ii) Compete for work for the Commission based on the information 
for a period of six

[[Page 543]]

months after either the completion of this contract or the release of 
the information to the public, whichever is first;
    (iii) Submit an unsolicited proposal to the Government based on the 
information until one year after the release of the information to the 
public; or
    (iv) Release the information without prior written approval by the 
contracting officer unless the information has previously been released 
to the public by the NRC.
    (2) In addition, the contractor agrees that, to the extent it 
receives or is given access to proprietary data, data protected by the 
Privacy Act of 1974 (5 U.S.C. Section 552a (1988)), or the Freedom of 
Information Act (5 U.S.C. Section 552 (1986)), or other confidential or 
privileged technical, business, or financial information under this 
contract, the contractor shall treat the information in accordance with 
restrictions placed on use of the information.
    (3) Subject to patent and security provisions of this contract, the 
contractor shall have the right to use technical data it produces under 
this contract for private purposes provided that all requirements of 
this contract have been met.
    (f) Subcontracts. Except as provided in 48 CFR 2009.570-2, the 
contractor shall include this clause, including this paragraph, in 
subcontracts of any tier. The terms contract, contractor, and 
contracting officer, must be appropriately modified to preserve the 
Government's rights.
    (g) Remedies. For breach of any of the above restrictions, or for 
intentional nondisclosure or misrepresentation of any relevant interest 
required to be disclosed concerning this contract or for such erroneous 
representations that necessarily imply bad faith, the Government may 
terminate the contract for default, disqualify the contractor from 
subsequent contractual efforts, and pursue other remedies permitted by 
law or this contract.
    (h) Waiver. A request for waiver under this clause must be directed 
in writing to the contracting officer in accordance with the procedures 
outlined in 48 CFR 2009.570-9.
    (i) Follow-on effort. The contractor shall be ineligible to 
participate in NRC contracts, subcontracts, or proposals therefor 
(solicited or unsolicited) which stem directly from the contractor's 
performance of work under this contract. Furthermore, unless so directed 
in writing by the contracting officer, the contractor may not perform 
any technical consulting or management support services work or 
evaluation activities under this contract on any of its products or 
services or the products or services of another firm if the contractor 
has been substantially involved in the development or marketing of the 
products or services.
    (1) If the contractor under this contract, prepares a complete or 
essentially complete statement of work or specifications, the contractor 
is not eligible to perform or participate in the initial contractual 
effort which is based on the statement of work or specifications. The 
contractor may not incorporate its products or services in the statement 
of work or specifications unless so directed in writing by the 
contracting officer, in which case the restrictions in this paragraph do 
not apply.
    (2) Nothing in this paragraph precludes the contractor from offering 
or selling its standard commercial items to the Government.

                             (End of clause)



Sec. 2052.211-70  Preparation of technical reports.

    As prescribed at 2011.104-70(a), the contracting officer shall 
insert the following clause in solicitations and contracts when 
deliverables include a technical report. The contracting officer may 
alter this clause before issuing the solicitation or during competition 
by solicitation amendment. Insignificant changes may also be made by the 
contracting officer on a case-by-case basis during negotiation without 
amending the solicitation.

               Preparation of Technical Reports (JAN 1993)

    All technical reports required by Section C and all Technical 
Progress Reports required by Section F are to be prepared in accordance 
with the attached Management Directive 3.8, ``Unclassified Contractor 
and Grantee Publications in the NUREG Series.'' Management Directive 3.8 
is not applicable to any Contractor Spending Plan (CSP) and any 
Financial Status Report that may be included in this contract. (See List 
of Attachments).

                             (End of clause)



Sec. 2052.211-71  Technical progress report.

    As prescribed at 2011.104-70(b), the contracting officer shall 
insert the following clause in all solicitations and contracts except 
firm fixed price or indefinite delivery contracts to be awarded on a 
time-and-materials or labor-hour basis, or which provide for issuance of 
delivery orders for specific products/serviced line items. The 
contracting officer may alter this clause prior to issuance of the 
solicitation or during competition by solicitation amendment. 
Insignificant changes may also be made by the contracting officer

[[Page 544]]

on a case-by-case basis during negotiation without amending the 
solicitation.

                  Technical Progress Report (JAN 1993)

    The contractor shall provide a monthly Technical Progress Report to 
the project officer and the contracting officer. The report is due 
within 15 calendar days after the end of the report period and must 
identify the title of the project, the contract number, appropriate 
financial tracking code specified by the NRC Project Officer, project 
manager and/or principal investigator, the contract period of 
performance, and the period covered by the report. Each report must 
include the following for each discrete task/task order:
    (a) A listing of the efforts completed during the period, and 
milestones reached or, if missed, an explanation provided;
    (b) Any problems or delays encountered or anticipated and 
recommendations for resolution. If the recommended resolution involves a 
contract modification, e.g., change in work requirements, level of 
effort (cost) or schedule delay, the contractor shall submit a separate 
letter to the contracting officer identifying the required change and 
estimated cost impact;
    (c) A summary of progress to date; and
    (d) Plans for the next reporting period.

                             (End of clause)



Sec. 2052.211-72  Financial status report.

    As prescribed at 2011.104-70(c), the contracting officer shall 
insert the following clause in applicable cost reimbursement 
solicitations and contracts when a detailed assessment of costs is 
warranted and a contractor spending plan is required. The contracting 
officer may alter this clause and Alternate 1 of this clause before 
issuing the solicitation or during competition by amending the 
solicitation. Insignificant changes may also be made by the contracting 
officer on a case-by-case basis during negotiation, without amending the 
solicitation.

                   Financial Status Report (OCT 1999)

    The contractor shall provide a monthly Financial Status Report (FSR) 
to the project officer and the contracting officer. The FSR shall 
include the acquisition of, or changes in the status of, contractor-held 
property acquired with government funds valued at the time of purchase 
at $50,000 or more. Whenever these types of property changes occur, the 
contractor shall send a copy of the report to the Chief, Property and 
Acquisition Oversight Branch, Office of Administration. The report is 
due within 15 calendar days after the end of the report period and must 
identify the title of the project, the contract number, the appropriate 
financial tracking code (e.g., Job Code Number or JCN) specified by the 
NRC Project Officer, project manager and/or principal investigator, the 
contract period of performance, and the period covered by the report. 
Each report must include the following information for each discrete 
task:
    (a) Total estimated contract amount.
    (b) Total funds obligated to date.
    (c) Total costs incurred this reporting period.
    (d) Total costs incurred to date.
    (e) Detail of all direct and indirect costs incurred during the 
reporting period for the entire contract or each task, if it is a task 
ordering contract.
    (f) Balance of obligations remaining.
    (g) Balance of funds required to complete contract/task order.
    (h) Contractor Spending Plan (CSP) status: A revised CSP is required 
with the Financial Status Report whenever the contractor or the 
contracting officer has reason to believe that the total cost for 
performance of this contract will be either greater or substantially 
less than what had been previously estimated.
    (1) Projected percentage of completion cumulative through the report 
period for the project/task order as reflected in the current CSP.
    (2) Indicate significant changes in the original CSP projection in 
either dollars or percentage of completion. Identify the change, the 
reasons for the change, whether there is any projected overrun, and when 
additional funds would be required. If there have been no changes to the 
original NRC-approved CSP projections, a written statement to that 
effect is sufficient in lieu of submitting a detailed response to item 
``h''.
    (i) Property status:
    (1) List property acquired for the project during the month with an 
acquisition cost between $500 and $49,999. Give the item number for the 
specific piece of equipment.
    (2) Provide a separate list of property acquired for the project 
during the month with an acquisition cost of $50,000 or more. Provide 
the following information for each item of property: item description or 
nomenclature, manufacturer, model number, serial number, acquisition 
cost, and receipt date. If no property was acquired during the month, 
include a statement to that effect. The same information must be 
provided for any component or peripheral equipment which is part of a 
``system or system unit.''
    (3) For multi-year projects, in the September monthly financial 
status report provide a cumulative listing of property with an 
acquisition cost of $50,000 or more showing

[[Page 545]]

the information specified in paragraph (i)(2) of this clause.
    (4) In the final financial status report provide a closeout property 
report containing the same elements as described above for the monthly 
financial status reports, for all property purchased with NRC funds 
regardless of value unless title has been vested in the contractor. If 
no property was acquired under the contract, provide a statement to that 
effect. The report should note any property requiring special handling 
for security, health, safety, or other reasons as part of the report.
    (j) Travel status. List the starting and ending dates for each trip, 
the starting point and destination, and the traveler(s) for each trip.
    (k) If the data in this report indicates a need for additional 
funding beyond that already obligated, this information may only be used 
as support to the official request for funding required in accordance 
with the Limitation of Cost (LOC) Clause (FAR 52.232-20) or the 
Limitation of Funds (LOF) Clause FAR 52.232-22.

                             (End of clause)

    Alternate 1 (Oct 1999). As prescribed in 2011.104-70(c), the 
contracting officer shall insert the following clause in applicable cost 
reimbursement solicitations and contracts when no contractor spending 
plan is required:

             Financial Status Report--Alternate 1 (OCT 1999)

    The contractor shall provide a monthly Financial Status Report (FSR) 
to the Project Officer and the contracting officer. The FSR shall 
include the acquisition of, or changes in the status of, contractor-held 
property acquired with government funds valued at the time of purchase 
at $50,000 or more. Whenever these types of changes occur, the 
contractor shall send a copy of the report to the Chief, Property and 
Acquisition Oversight Branch, Office of Administration. The report is 
due within 15 calendar days after the end of the report period and shall 
identify the title of the project, the contract number, project manager 
and/or principal investigator, the contract period of performance, and 
the period covered by the report. Each report shall include the 
following information for each discrete task:
    (a) Total estimated contract amount.
    (b) Total funds obligated to date.
    (c) Total costs incurred this reporting period.
    (d) Total costs incurred to date.
    (e) Detail of all direct and indirect costs incurred during the 
reporting period for the entire contract or each task, if it is a task 
ordering contract.
    (f) Balance of obligations remaining.
    (g) Balance of funds required to complete contract/task order.
    (h) Property status:
    (1) List property acquired for the project during the month with an 
acquisition cost between $500 and $49,999. Give the item number for the 
specific piece of equipment.
    (2) Provide a separate list of property acquired for the project 
during the month with an acquisition cost of $50,000 or more. Provide 
the following information for each item of property: item description or 
nomenclature, manufacturer, model number, serial number, acquisition 
cost, and receipt date. If no property was acquired during the month, 
include a statement to that effect. The same information must be 
provided for any component or peripheral equipment which is part of a 
``system or system unit.''
    (3) For multi-year projects, in the September monthly financial 
status report provide a cumulative listing of property with an 
acquisition cost of $50,000 or more showing the information specified in 
paragraph (h)(3) of this clause.
    (4) In the final financial status report provide a closeout property 
report containing the same elements as described above for the monthly 
financial status reports, for all property purchased with NRC funds 
regardless of value unless title has been vested in the contractor. If 
no property was acquired under the contract, provide a statement to that 
effect. The report should note any property requiring special handling 
for security, health, safety, or other reasons as part of the report.
    (i) Travel status: List the starting and ending dates for each trip, 
the starting point and destination, and the traveler(s) for each trip.
    (j) If the data in this report indicates a need for additional 
funding beyond that already obligated, this information may only be used 
as support to the official request for funding required in accordance 
with the Limitation of Cost (LOC) Clause (FAR 52.232-20) or the 
Limitation of Funds (LOF) Clause FAR 52.232-22.

                             (End of clause)



Sec. 2052.214-70  Prebid conference.

    As prescribed at 2014.201-670(a), the contracting officer may insert 
the following provision in invitations for bids which require a prebid 
conference:

                      Prebid Conference (JAN 1993)

    (a) A prebid conference is scheduled for:

Date: *
Location: *
Time: *


[[Page 546]]


    (b) This conference is to afford interested parties an opportunity 
to present questions and clarify uncertainties regarding this 
solicitation. You are requested to mail written questions concerning 
those areas of uncertainty which, in your opinion, require clarification 
or correction. You are encouraged to submit your questions in writing 
not later than * working day(s) before the conference date. Receipt of 
late questions may result in the questions not being answered at the 
conference although they will be considered in preparing any necessary 
amendment to the solicitation. If you plan to attend the conference, 
notify * by letter or telephone * , no later than close of business * . 
Notification of your intention to attend is essential in the event the 
conference is rescheduled or canceled. (Optional statement: Due to space 
limitations, each potential bidder is limited to * representatives at 
the conference.)
    (c) Written questions must be submitted to: U.S. Nuclear Regulatory 
Commission, Division of Contracts and Property Management, Attn: *, Mail 
Stop T-7-I-2, Washington, DC 20555.
    (d) The envelope must be marked ``Solicitation No. * /Prebid 
Conference.''
    (e) A transcript of the conference will be furnished to all 
prospective bidders through the issuance of an amendment to the 
solicitation.
    *To be incorporated into the solicitation.

                           (End of provision)



Sec. 2052.214-71  Bidder qualifications and past experiences.

    As prescribed in 2014.201-670(b), the contracting officer may insert 
the following provision on an optional basis to fit the circumstances of 
the invitation for bid.

          Bidder Qualifications and Past Experience (OCT 1999)

    (a) The bidder shall list previous/current contracts performed 
within the past * years (with no omissions) in which the Bidder was the 
prime or principal subcontractor. This information will assist the 
contracting officer in his/her Determination of Responsibility. Lack of 
previous/current contracts or failure to submit this information will 
not necessarily result in an unfavorable Determination of 
Responsibility.
    (b) The following information shall be provided for each previous/
current contract listed:
    (1) Contract No.:
    (2) Contract performance dates:
    (3) Estimated total value of the contract (base plus all option 
years):
    (4) Brief description of work performed under the contract:
    (5) Contract Standard Industrial Code:
    (6) Name and address of Government agency or commercial entity:
    (7) Technical Point of Contact and current telephone number:
    (8) Contracting Officer name and current telephone number:
    (c) The bidder shall also provide the name, title and full telephone 
number of its technical representative and contracts/business 
representative:

(1) Technical Representative name:
Title:
Telephone No.( )
(2) Contracts/Business Representative name:
Title:
Telephone No. ( )

    *To be incorporated into the solicitation

                           (End of provision)



Sec. 2052.214-72  Bid evaluation.

    As prescribed at 2014.201-670(c), the contracting officer shall 
insert the following provision in applicable invitations for bids 
(paragraph ``(f)'' of this provision is optional):

                        Bid Evaluation (JAN 1993)

    (a) Award will be made to that responsive, responsible bidder within 
the meaning of FAR Subpart 9.1 whose total bid amount, as set forth by 
the bidder in Section B of this Invitation for Bid (IFB), constitutes 
the lowest overall evaluated final contract price to the Government 
based upon the requirements for the schedule. Bids will be evaluated for 
purposes of award by first ascertaining the sum of the total amount for 
each of the items specified in Section B of this solicitation. This will 
constitute the bidder's ``Total Bid Amount.''
    (b) Bidders shall insert a definite price or indicate ``no charge'' 
in the blank space provided for each item and/or sub-item listed in 
Section B. Unless expressly provided for in the bid, no additional 
charge will be allowed for work performed under the contract other than 
the unit prices stipulated for each item and/or sub-item.
    (c) Any bid which is materially unbalanced as to price for the 
separate items specified in Section B of this IFB may be rejected as 
nonresponsive. An unbalanced bid is defined as one which is based on 
prices which, in the opinion of the NRC, are significantly less than 
cost for some work and/or prices that may be significantly overstated 
for other work.
    (d) Separation charges, in any form, are not solicited. Bids 
containing charges for discontinuance, termination, failure to exercise 
an option, or for any other purpose will cause the bid to be rejected as 
nonresponsive.

[[Page 547]]

    (e) A preaward on-site survey of the bidder's facilities, equipment, 
etc., in accordance with FAR 9.105 and 9.106, may be made by 
representatives of the Commission for the purpose of determining whether 
the bidder is responsible within the meaning of FAR 9.1, and whether the 
bidder possesses qualifications that are conducive to the production of 
work that will meet the requirements, specifications, and provisions of 
this contract. If requested by the Commission, the prospective 
contractor may also be required to submit statements within * hours 
after receiving the request:
    (1) Concerning their ability to meet any of the minimum standards 
set forth in FAR 9.104,
    (2) Samples of work, and
    (3) Names and addresses of additional clients, Government agencies, 
and/or commercial firms which the bidder is now doing or had done 
business with.
    (f) Notwithstanding paragraph (b) of this section, the award of any 
contract resulting from this solicitation will be made on an ``all or 
none'' basis. Thus, bids submitted on fewer than the items listed in 
Section B of this IFB, or on fewer than the estimated quantity, will 
cause the bid to be rejected as nonresponsive.
    *To be inserted into solicitation.

                           (End of provision)



Sec. 2052.214-73  Timely receipt of bids.

    As prescribed at 2014.670(b), the contracting officer shall insert 
the following provision in all invitations for bids:

                    Timely Receipt of Bids (OCT 1999)

    Sealed offers for furnishing the services or supplies in the 
schedule are due at the date and time stated in block 9 of Standard Form 
33, Solicitation, Offer and Award. Offers sent through the U.S. Mail 
(including U.S. Postal Service Express Mail Next Day Service--Post 
Office to Addressee) must be addressed to the place specified in the 
solicitation. All hand-carried offers including those made by private 
delivery services (e.g., Federal Express and Airborne Express) must be 
delivered to the NRC loading dock security station located at 11545 
Rockville Pike, Rockville, Maryland 20852 and received in the depository 
located in Room T-7-I-2. All offerors should allow extra time for 
internal mail distribution or for pick up of hand-carried deliveries. 
The NRC is a secure facility with perimeter access-control and NRC 
personnel are only available to receive hand-carried offers during 
normal working hours, 7:30 AM-3:30 PM, Monday through Friday, excluding 
Federal holidays.

                           (End of provision)



Sec. 2052.214-74  Disposition of bids.

    As prescribed at 2014.670(b), the contracting officer shall insert 
the following provision in applicable invitation for bids:

                     Disposition of Bids (JAN 1993)

    After award of the contract, one copy of each unsuccessful bid will 
be retained by the NRC's Division of Contracts and Property Management 
in accordance with the General Records Schedule 3(5)(b). Unless return 
of the additional copies of the bid is requested by the bidder upon 
submission of the bid, all other copies will be destroyed. This request 
should appear in a cover letter accompanying the bid.

                           (End of provision)



Sec. 2052.215-70  Key personnel.

    As prescribed at 2015.209-70(a)(1), the contracting officer shall 
insert in solicitations and contracts the following clause as applicable 
to the requirement:

                        Key Personnel (JAN 1993)

    (a) The following individuals are considered to be essential to the 
successful performance of the work hereunder:

*

The contractor agrees that personnel may not be removed from the 
contract work or replaced without compliance with paragraphs (b) and (c) 
of this section.
    (b) If one or more of the key personnel, for whatever reason, 
becomes, or is expected to become, unavailable for work under this 
contract for a continuous period exceeding 30 work days, or is expected 
to devote substantially less effort to the work than indicated in the 
proposal or initially anticipated, the contractor shall immediately 
notify the contracting officer and shall, subject to the con currence of 
the contracting officer, promptly replace the personnel with personnel 
of at least substantially equal ability and qualifications.
    (c) Each request for approval of substitutions must be in writing 
and contain a detailed explanation of the circumstances necessitating 
the proposed substitutions. The request must also contain a complete 
resume for the proposed substitute and other information requested or 
needed by the contracting officer to evaluate the proposed substitution. 
The contracting officer and the project officer shall evaluate the 
contractor's request and the contracting officer shall promptly notify 
the contractor of his or her decision in writing.

[[Page 548]]

    (d) If the contracting officer determines that suitable and timely 
replacement of key personnel who have been reassigned, terminated, or 
have otherwise become unavailable for the contract work is not 
reasonably forthcoming, or that the resultant reduction of productive 
effort would be so substantial as to impair the successful completion of 
the contract or the service order, the contract may be terminated by the 
contracting officer for default or for the convenience of the 
Government, as appropriate. If the contracting officer finds the 
contractor at fault for the condition, the contract price or fixed fee 
may be equitably adjusted downward to compensate the Government for any 
resultant delay, loss, or damage.

                             (End of clause)

    *To be incorporated into any resultant contract



Sec. 2052.215-71  Project officer authority.

    As prescribed in 2015.209-70(a)(2)(i), the contracting officer shall 
insert the following clause in applicable solicitations and contracts 
for cost-reimbursement, cost-plus-fixed-fee, cost-plus-award-fee, cost 
sharing, labor-hour or time-and-materials, including task order 
contracts. This clause and the following alternate clauses are intended 
for experienced, trained projects officers, and may be altered to delete 
duties where appropriate:

                  Project Officer Authority (OCT 1999)

    (a) The contracting officer's authorized representative hereinafter 
referred to as the project officer for this contract is:

Name: *
Address: *
Telephone Number: *

    (b) Performance of the work under this contract is subject to the 
technical direction of the NRC project officer. The term technical 
direction is defined to include the following:
    (1) Technical direction to the contractor which shifts work emphasis 
between areas of work or tasks, authorizes travel which was 
unanticipated in the Schedule (i.e., travel not contemplated in the 
Statement of Work or changes to specific travel identified in the 
Statement of Work), fills in details, or otherwise serves to accomplish 
the contractual statement of work.
    (2) Provide advice and guidance to the contractor in the preparation 
of drawings, specifications, or technical portions of the work 
description.
    (3) Review and, where required by the contract, approve technical 
reports, drawings, specifications, and technical information to be 
delivered by the contractor to the Government under the contract.
    (c) Technical direction must be within the general statement of work 
stated in the contract. The project officer does not have the authority 
to and may not issue any technical direction which:
    (1) Constitutes an assignment of work outside the general scope of 
the contract.
    (2) Constitutes a change as defined in the ``Changes'' clause of 
this contract.
    (3) In any way causes an increase or decrease in the total estimated 
contract cost, the fixed fee, if any, or the time required for contract 
performance.
    (4) Changes any of the expressed terms, conditions, or 
specifications of the contract.
    (5) Terminates the contract, settles any claim or dispute arising 
under the contract, or issues any unilateral directive whatever.
    (d) All technical directions must be issued in writing by the 
project officer or must be confirmed by the project officer in writing 
within ten (10) working days after verbal issuance. A copy of the 
written direction must be furnished to the contracting officer. A copy 
of NRC Form 445, Request for Approval of Official Foreign Travel, which 
has received final approval from the NRC must be furnished to the 
contracting officer.
    (e) The contractor shall proceed promptly with the performance of 
technical directions duly issued by the project officer in the manner 
prescribed by this clause and within the project officer's authority 
under the provisions of this clause.
    (f) If, in the opinion of the contractor, any instruction or 
direction issued by the project officer is within one of the categories 
defined in paragraph (c) of this section, the contractor may not proceed 
but shall notify the contracting officer in writing within five (5) 
working days after the receipt of any instruction or direction and shall 
request that contracting officer to modify the contract accordingly. 
Upon receiving the notification from the contractor, the contracting 
officer shall issue an appropriate contract modification or advise the 
contractor in writing that, in the contracting officer's opinion, the 
technical direction is within the scope of this article and does not 
constitute a change under the ``Changes'' clause.
    (g) Any unauthorized commitment or direction issued by the project 
officer may result in an unnecessary delay in the contractor's 
performance and may even result in the contractor expending funds for 
unallowable costs under the contract.
    (h) A failure of the parties to agree upon the nature of the 
instruction or direction or upon the contract action to be taken with 
respect to the instruction or direction is subject to 52.233-1--
Disputes.

[[Page 549]]

    (i) In addition to providing technical direction as defined in 
paragraph (b) of the section, the project officer shall:
    (1) Monitor the contractor's technical progress, including 
surveillance and assessment of performance, and recommend to the 
contracting officer changes in requirements.
    (2) Assist the contractor in the resolution of technical problems 
encountered during performance.
    (3) Review all costs requested for reimbursement by the contractor 
and submit to the contracting officer recommendations for approval, 
disapproval, or suspension of payment for supplies and services required 
under this contract.

                             (End of clause)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(a)(2)(ii), the 
contracting officer shall insert the following clause in solicitations 
and contracts which require issuance of delivery orders for specific 
products/services.

            Project Officer Authority--Alternate 1 (OCT 1999)

    (a) The contracting officer's authorized representative, hereinafter 
referred to as the project officer, for this contract is:

Name: *
Address: *
Telephone Number: *

    (b) The project officer shall:
    (1) Place delivery orders for items required under this contract up 
to the amount obligated on the contract award document.
    (2) Monitor contractor performance and recommend changes in 
requirements to the contracting officer.
    (3) Inspect and accept products/services provided under the 
contract.
    (4) Review all contractor invoices/vouchers requesting payment for 
products/services provided under the contract and make recommendations 
for approval, disapproval, or suspension.
    (c) The project officer may not make changes to the express terms 
and conditions of this contract.
    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 2 (OCT 1999). As prescribed at 2015.209(a)(2)(iii), the 
contracting officer shall insert in solicitations for firm fixed price 
contracts, the clause at 2052.215-71 Project Officer Authority Alternate 
1 which shall be used with paragraph (b)(1) deleted and the remainder of 
the clause renumbered.



Sec. 2052.215-72  Timely receipt of proposals.

    As prescribed in 2015.209-70(a)(3), the contracting officer shall 
insert the following provision in all solicitations:

                 Timely Receipt of Proposals (OCT 1999)

    Sealed offers for furnishing the services or supplies in the 
schedule are due at the date and time stated in block 9 of Standard Form 
33, Solicitation, Offer and Award. Offers sent through the U.S. Mail 
(including U.S. Postal Service Express Mail Next Day Service--Post 
Office to Addressee) must be addressed to the place specified in the 
solicitation. All hand-carried offers including those made by private 
delivery services (e.g., Federal Express and Airborne Express) must be 
delivered to the NRC loading dock security station located at 11545 
Rockville Pike, Rockville, Maryland 20852 and received in the depository 
located in Room T-7-I-2. All offerors should allow extra time for 
internal mail distribution or for pick up of hand-carried deliveries. 
The NRC is a secure facility with perimeter access-control and NRC 
personnel are only available to receive hand-carried offers during 
normal working hours, 7:30 AM--3:30 PM, Monday through Friday, excluding 
Federal holidays.

                           (End of provision)



Sec. 2052.215-73  Award notification and commitment of public funds.

    As prescribed at 2015.209-70 (a)(4), the contracting officer shall 
insert the following clause in applicable solicitations:

      Award Notification and Commitment of Public Funds (OCT 1999)

    (a) All offerors will be notified of their exclusion from the 
competitive range in accordance with FAR 15.503(a)(1). Under the 
requirements of FAR 15.503(a)(2), preliminary notification will be 
provided before award for small business set-aside procurements on 
negotiated procurements. The contracting officer shall provide written 
postaward notice to each unsuccessful offeror in accordance with FAR 
15.503(b).
    (b) The contracting officer is the only individual who can legally 
commit the NRC to the expenditure of public funds in connection with 
this procurement. This means that, unless provided in a contract 
document or specifically authorized by the contracting officer, NRC 
technical personnel may not issue contract modifications, give informal 
contractual commitments, or otherwise bind, commit, or obligate the NRC 
contractually. Informal contractual commitments include:

[[Page 550]]

    (1) Encouraging a potential contractor to incur costs before 
receiving a contract;
    (2) Requesting or requiring a contractor to make changes under a 
contract without formal contract modifications;
    (3) Encouraging a contractor to incur costs under a cost-
reimbursable contract in excess of those costs contractually allowable; 
and
    (4) Committing the Government to a course of action with regard to a 
potential contract, contract change, claim, or dispute.

                             (End of clause)



Sec. 2052.215-74  Disposition of proposals.

    As prescribed in 2015.209-70(a)(5), the contracting officer shall 
insert the following provision in all solicitations:

                   Disposition of Proposals (JAN 1993)

    After award of the contract, one copy of each unsuccessful proposal 
is retained by the NRC's Division of Contracts and Property Management 
in accordance with the General Records Schedule 3(5)(b). Unless return 
of the additional copies of the proposals is requested by the offeror 
upon submission of the proposals, all other copies will be destroyed. 
This request should appear in a cover letter accompanying the proposal.

                           (End of provision)



Sec. 2052.215-75  Proposal presentation and format.

    As prescribed at 2015.209-70(b)(1), the contracting officer may 
insert the following provision in applicable negotiated procurements for 
cost type solicitations. This clause may be tailored to each procurement 
and solicitation evaluation criteria by the contracting officer to fit 
the circumstances of the procurement.

               Proposal Presentation and Format (OCT 1999)

    (a) Information submitted in response to this solicitation must be 
typed, printed, or reproduced on letter-size paper and each copy must be 
legible. All information provided, including all resumes, must be 
accurate, truthful, and complete to the best of the offeror's knowledge 
and belief. The Commission will rely upon all representations made by 
the offeror both in the evaluation process and for the performance of 
the work by the offeror selected for award. The Commission may require 
the offeror to substantiate the credentials, education, and employment 
history of its employees, subcontractor personnel, and consultants, 
through submission of copies of transcripts, diplomas, licenses, etc.
    (b) The offeror shall submit the following material which 
constitutes its offer, as defined by FAR 2.101, in two separate and 
distinct parts at the date and time specified in * of the solicitation 
for receipt of sealed offers.
    (1) Part 1--Solicitation Package/Offer. Two (2) original signed 
copies of this solicitation package/offer. All applicable sections must 
be completed by the offeror.
    (2) Part 2--Cost Proposal. One (1) original and * copies of the 
``Cost Proposal.''
    (i) The cost proposal shall be submitted separately from the 
Technical and Management Proposal or Oral Presentation and Supporting 
Documentation (as applicable).
    (ii) The offeror's request for an exception to submitting cost or 
pricing data shall be made in accordance with FAR 52.215-20(a).
    (iii) If the contracting officer does not grant the offeror an 
exception from the requirement to submit cost or pricing data, the 
offeror's cost proposal shall conform with the requirements of FAR 
52.215-20(b). Cost information shall include pertinent details 
sufficient to show the elements of cost upon which the total cost is 
predicted in accordance with the requirement of FAR 52.215-20 (b)(1).
    (iv) When the offeror's estimated cost for the proposed work exceeds 
$100,000 and the duration of the contract period exceeds six months, the 
offeror shall submit a Contractor Spending Plan (CSP) as part of its 
cost proposal. Guidance for completing the CSP is attached.
    (v) For any subcontract discussed under the Technical and Management 
Proposal, or Oral Presentation Material, provide supporting 
documentation on the selection process, i.e., competitive vs. 
noncompetitive, and the cost evaluation.
    (c) ``Written Technical and Management Proposal'' or ``Oral 
Presentation and Supporting Documentation'' (as applicable). One (1) 
original and * copies.
    (1) The written Technical and Management Proposal or Oral 
Presentation and Supporting Documentation may not contain any reference 
to cost. Resource information, such as data concerning labor hours and 
categories, materials, subcontracts, travel, computer time, etc., must 
be included so that the offeror's understanding of the scope of work may 
be evaluated.
    (2) The offeror shall submit in the written Technical and Management 
Proposal or Oral Presentation and Supporting Documentation full and 
complete information as set forth below to permit the Government to make 
a thorough evaluation and a sound determination that the proposed 
approach will have a reasonable likelihood of meeting the requirements 
and objectives of this procurement.
    (3) The written Technical Proposal or Oral Presentation and 
Supporting Documentation

[[Page 551]]

must be tailored to assure that all information reflects a one-to-one 
relationship to the evaluation criteria.
    (4) Statements which paraphrase the statement of work without 
communicating the specific approach proposed by the offeror, or 
statements to the effect that the offeror's understanding can or will 
comply with the statement of work may be construed as an indication of 
the offeror's lack of understanding of the statement of work and 
objectives.
    (d) Written Technical or Oral Presentation and Supporting 
Documentation Requirements--Instructions.

*

    *To be incorporated into the solicitation.

                           (End of provision)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(b)(2), this 
Alternate 1 may be used for solicitations for negotiated task orders. 
Include the following paragraph (iv) in place of paragraph (b)(2)(iv) of 
the basic provision:

    (b)(2)(iv) The offeror's cost proposal shall be based on the NRC's 
estimated level of effort. The NRC's estimated level of effort for this 
procurement is approximately * professional and * clerical staff-years 
for the duration of this contract. This information is advisory and is 
not to be considered as the sole basis for the development of the 
staffing plan. For the purposes of the Government estimate, 2000 hours 
constitute a staff year. The total estimated cost proposed by the 
offeror is used for evaluation purposes only. Any resultant contract, 
except a requirements contract, contains an overall cost ceiling whereby 
individual task orders may be issued. The cost and fee, if any, for each 
task order is individually negotiated and also contains a cost ceiling.

    Alternate 2 (OCT 1999). As proposed at 2015.209-70(b)(3), Alternate 
2 may be used for solicitations for negotiated fixed price, labor hour, 
or time and materials contracts. Substitute the following paragraph 
(b)(2)(ii) for the paragraph (b)(2)(ii) of the basic provision, delete 
paragraphs (b)(2)(iii)--(iv) of the basic provision, and renumber the 
remaining paragraphs.

    (ii) Submittal of information other than cost or pricing data shall 
be made in accordance with FAR 52.215-20 Alternate IV.



Sec. 2052.215-76  Preproposal conference.

    As prescribed at 2015.407-70(c), the contracting officer may insert 
the following provision in applicable solicitations which include a 
preproposal conference:

                    Preproposal Conference (JAN 1993)

    (a) A preproposal conference is scheduled for:

Date: *
Location: *
Time: *
    (b) This conference is to afford interested parties an opportunity 
to present questions and clarify uncertainties regarding this 
solicitation. You are requested to mail written questions concerning 
those areas of uncertainty which, in your opinion, require clarification 
or correction. You are encouraged to submit your questions in writing 
not later than * working day(s) before the conference date. Receipt of 
late questions may result in the questions not being answered at the 
conference although they will be considered in preparing any necessary 
amendment to the solicitation. If you plan to attend the conference, 
notify * by letter or telephone * , no later than close of business * . 
Notification of your intention to attend is essential in the event the 
conference is rescheduled or canceled. (Optional statement: Due to space 
limitations, each potential offeror is limited to * representatives at 
the conference.)
    (c) Written questions must be submitted to: U.S. Nuclear Regulatory 
Commission, Division of Contracts and Property Management, Attn: *, Mail 
Stop T-7-I-2, Washington, DC 20555.
    (d) The envelope must be marked ``Solicitation No. */Preproposal 
Conference.''
    *To be incorporated into the solicitation.
    (e) A transcript of the conference will be furnished to all 
prospective offerors through the issuance of an amendment to the 
solicitation.

                           (End of provision)



Sec. 2052.215-77  Travel approvals and reimbursement.

    As prescribed at 2015.209-70(d), the contracting officer shall 
insert the following clause in cost reimbursement solicitations and 
contracts which require travel but do not set a specific ceiling amount 
on that travel. Requests for foreign travel must be submitted to the NRC 
30 days in advance of the travel date.

              Travel Approvals and Reimbursement (OCT 1999)

    (a) All foreign travel must be approved in advance by the NRC on NRC 
Form 445, Request for Approval of Official Foreign Travel, and must be 
in compliance with FAR

[[Page 552]]

52.247-63 Preference for U.S. Flag Air Carriers. The contractor shall 
submit NRC Form 445 to the NRC no later than 30 days before beginning 
travel.
    (b) The contractor must receive written approval from the NRC 
Project Officer before taking travel that was unanticipated in the 
Schedule (i.e., travel not contemplated in the Statement of Work, or 
changes to specific travel identified in the Statement of Work).
    (c) The contractor will be reimbursed only for travel costs incurred 
that are directly related to this contract and are allowable subject to 
the limitations prescribed in FAR 31.205-46.
    (d) It is the responsibility of the contractor to notify the 
contracting officer in accordance with the Limitations of Cost clause of 
this contract when, at any time, the contractor learns that travel 
expenses will cause the contractor to exceed the estimated costs 
specified in the Schedule.
    (e) Reasonable travel costs for research and related activities 
performed at State and nonprofit institutions, in accordance with 
Section 12 of Pub. L. 100-679, must be charged in accordance with the 
contractor's institutional policy to the degree that the limitations of 
Office of Management and Budget (OMB) guidance are not exceeded. 
Applicable guidance documents include OMB Circular A-87, Cost Principles 
for State and Local Governments; OMB Circular A-122, Cost Principles for 
Nonprofit Organizations; and OMB Circular A-21, Cost Principles for 
Educational Institutions.

                             (End of clause)



Sec. 2052.215-78  Travel approvals and reimbursement--Alternate 1.

    As prescribed in 2015.209-70(d), the contracting officer shall 
insert the following clause in cost reimbursement solicitations and 
contracts which include a ceiling amount on travel. Requests for foreign 
travel must be submitted to the NRC 30 days in advance of the travel 
date.

       Travel Approvals and Reimbursement--Alternate 1 (OCT 1999)

    (a) Total expenditure for travel may not exceed ------ * ------ 
without the prior approval of the contracting officer.
    (b) All foreign travel must be approved in advance by the NRC on NRC 
Form 445, Request for Approval of Official Foreign Travel, and must be 
in compliance with FAR 52.247-63 Preference for U.S. Flag Air Carriers. 
The contractor shall submit NRC Form 445 to the NRC no later than 30 
days prior to the commencement of travel.
    (c) The contractor will be reimbursed only for travel costs incurred 
that are directly related to this contract and are allowable subject to 
the limitations prescribed in FAR 31.205-46.
    (d) It is the responsibility of the contractor to notify the 
contracting officer in accordance with the FAR Limitations of Cost 
clause of this contract when, at any time, the contractor learns that 
travel expenses will cause the contractor to exceed the travel ceiling 
amount identified in paragraph (a) of this clause.
    (e) Reasonable travel costs for research and related activities 
performed at State and nonprofit institutions, in accordance with 
Section 12 of Pub. L. 100-679, must be charged in accordance with the 
contractor's institutional policy to the degree that the limitations of 
Office of Management and Budget (OMB) guidance are not exceeded. 
Applicable guidance documents include OMB Circular A-87, Cost Principles 
for State and Local Governments; OMB Circular A-122, Cost Principles for 
Nonprofit Organizations; and OMB Circular A-21, Cost Principles for 
Educational Institutions.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.215-79  Contract award and evaluation of proposals.

    As prescribed in 2015.209(a)(1), the contracting officer shall 
insert the following provision in solicitations when technical merit is 
more important than cost:

          Contract Award and Evaluation of Proposals (OCT 1999)

    (a) By use of narrative and numerical (as appropriate) scoring 
techniques, proposals are evaluated against the evaluation factors 
specified in paragraph * below. These factors are listed in their 
relative order of importance.
    (b) The Government intends to award a contract or contracts 
resulting from this solicitation to the responsible offeror(s) whose 
proposal(s) represents the best value, as defined in FAR 2.101, after 
evaluation in accordance with the factors and subfactors in the 
solicitation.
    (c) The Government may:
    (1) Reject any or all proposals if the action is in the Government's 
interest.
    (2) Waive informalities and minor irregularities in proposals 
received.
    (d) The Government intends to evaluate proposals and award a 
contract without discussions with offerors. The Government reserves the 
right to seek proposal clarifications (e.g., capability issues as 
described in FAR 15.306(a) or minor or clerical errors as

[[Page 553]]

described in FAR 14.407); and hold communications as described in FAR 
15.306(b)). Therefore, the offeror's initial proposal should contain the 
offeror's best terms from a cost or price and technical standpoint. The 
Government reserves the right to conduct discussions if the Contracting 
Officer later determines them to be necessary. If the Contracting 
Officer determines that the number of proposals that would otherwise be 
in the competitive range exceeds the number at which an efficient 
competition can be conducted, the Contracting Officer may limit the 
number of proposals in the competitive range to the greatest number that 
will permit an efficient competition among the most highly rated 
proposals.
    (e) The Government reserves the right to make an award on any item 
for a quantity less than the quantity offered, at the unit cost or 
prices offered, unless the offeror specifies otherwise in the proposal.
    (f) The Government reserves the right to make multiple awards if, 
after considering the additional administrative costs, it is in the 
Government's best interest to do so.
    (g) Exchanges with offerors after receipt of a proposal do not 
constitute a rejection or counteroffer by the Government.
    (h) The Government may determine that a proposal is unacceptable if 
the prices proposed are materially unbalanced between line items or 
subline items. Unbalanced pricing exists when, despite an acceptable 
total evaluated price, the price of one or more contract line items is 
significantly overstated or understated as indicated by the application 
of cost or price analysis techniques. A proposal may be rejected if the 
Contracting Officer determines that the lack of balance poses an 
unacceptable risk to the Government.
    (i) If a cost realism analysis is performed, cost realism may be 
considered by the source selection authority in evaluating performance 
or schedule risk.
    (j) A written award or acceptance of proposal mailed or otherwise 
furnished to the successful offeror within the time specified in the 
proposal shall result in a binding contract without further action by 
either party.
    (k) A separate cost analysis is performed on each cost proposal. To 
provide a common base for evaluation of cost proposals, the level of 
effort data must be expressed in staff hours. Where a Contractor 
Spending Plan (CSP) is required by other provisions of this 
solicitation, consideration is given to the Plan for completeness, 
reasonableness, and as a measure of effective management of the effort.
    * To be incorporated into the solicitation.

                           (End of provision)

    Alternate 1 (OCT 1999). As prescribed at 2015.209-70(e)(2), 
Alternate 1 may be used when proposals are to be evaluated on a lowest 
price, technically acceptable basis. Substitute the following paragraph 
for paragraph (b) in the clause at 2052.215-79:

    (b) Although technical merit in the evaluation criteria set forth 
below is a factor in the evaluation of proposals, award will be made on 
the basis of the lowest evaluated price of proposals meeting or 
exceeding the acceptability standards for non-cost factors,

    Alternate 2 (OCT 1999). As prescribed at 2015.209-70(e)(2), 
Alternate 2 may be used when cost and technical merit are of equal 
significance. Substitute the following paragraph for paragraph (b) in 
the clause at 2052.215-79:

    (b) In the selection of a contractor, technical merit in the 
evaluation criteria set forth below and cost bear equal significance. To 
be selected for an award, the proposed cost must be realistic and 
reasonable.



Sec. 2052.216-70  Level of effort.

    As prescribed at 2016.307-70(a) the contracting officer shall insert 
the following provision in solicitations for negotiated procurements 
containing labor costs other than maintenance services, to be awarded on 
a cost reimbursement, cost sharing, cost-plus-award-fee, cost-plus-
fixed-fee, time and materials, or labor hours basis.

                       Level of Effort (JAN 1993)

    The NRC's estimate of the total effort for this project is 
approximately * professional and * clerical staff-years for the duration 
of this contract. This information is advisory and is not to be 
considered as the sole basis for the development of the staffing plan. 
For the purposes of the Government estimate, 2000 hours constitute a 
staff year.
    *To be incorporated into any resultant contract.

                           (End of provision)



Sec. 2052.216-71  Indirect cost rates.

    As prescribed at 2016.307-70(b), the contracting officer may insert 
the following clause in solicitations and contracts where provisional 
rates without ceiling apply.

                     Indirect Cost Rates (JAN 1993)

    (a) Pending the establishment of final indirect rates which must be 
negotiated based on audit of actual costs, the contractor shall be 
reimbursed for allowable indirect costs as follows:

[[Page 554]]

*

    (b) The contracting officer may adjust these rates as appropriate 
during the term of the contract upon acceptance of any revisions 
proposed by the contractor. It is the contractor's responsibility to 
notify the contracting officer in accordance with FAR 52.232-20, 
Limitation of Cost, or FAR 52.232-22, Limitation of Funds, as 
applicable, if these changes affect performance of work within the 
established cost or funding limitations.
    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 1. As prescribed at 2016.307-70(b)(2), the contracting 
officer may insert the following clause in applicable solicitations and 
contracts where predetermined rates apply:

               Indirect Cost Rates--Alternate 1 (JAN 1993)

    The contractor is reimbursed for allowable indirect costs in 
accordance with the following predetermined rates:

*

    *To be incorporated into any resultant contract.

                             (End of clause)

    Alternate 2 (OCT 1999). As prescribed at 2016.307-70(b), the 
contracting officer may insert the following clause in applicable 
solicitations and contracts where provisional rates with ceilings apply:

            Indirect Costs (Ceiling)--Alternate 2 (Oct 1999)

    (a) For this contract, the ceiling amount reimbursable for indirect 
costs is as follows:

*

    (b) In the event that indirect rates developed by the cognizant 
audit activity on the basis of actual allowable costs result in a lower 
amount for indirect costs, the lower amount will be paid. The Government 
may not be obligated to pay any additional amounts for indirect costs 
above the ceiling rates set forth above for the applicable period.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.216-72  Task order procedures.

    As prescribed at 2016.506-70(a), the contracting officer may insert 
the following clause in applicable solicitations and contracts that 
contain task order procedures. This clause may be altered to fit the 
circumstances of the requirement.

                    Task Order Procedures (OCT 1999)

    (a) Task order request for proposal. When a requirement within the 
scope of work for this contract is identified, the contracting officer 
shall transmit to the contractor a Task Order Request for Proposal 
(TORFP) which may include the following, as appropriate:
    (1) Scope of work/meetings/travel and deliverables;
    (2) Reporting requirements;
    (3) Period of performance--place of performance;
    (4) Applicable special provisions;
    (5) Technical skills required; and
    (6) Estimated level of effort.
    (b) Task order technical proposal. By the date specified in the 
TORFP, the contractor shall deliver to the contracting officer a written 
or verbal (as specified in the TORFP technical proposal submittal 
instructions) technical proposal that provides the technical information 
required by the TORFP.
    (c) Cost proposal. The contractor's cost proposal for each task 
order must be fully supported by cost and pricing data adequate to 
establish the reasonableness of the proposed amounts. When the 
contractor's estimated cost for the proposed task order exceeds $100,000 
and the period of performance exceeds six months, the contractor may be 
required to submit a Contractor Spending Plan (CSP) as part of its cost 
proposal. The TORP indicates if a CSP is required.
    (d) Task order award. The contractor shall perform all work 
described in definitized task orders issued by the contracting officer. 
Definitized task orders include the following:
    (1) Statement of work/meetings/travel and deliverables;
    (2) Reporting requirements;
    (3) Period of performance;
    (4) Key personnel;
    (5) Applicable special provisions; and
    (6) Total task order amount including any fixed fee.

                             (End of clause)



Sec. 2052.216-73  Accelerated task order procedures.

    As prescribed at 2016.506-70(b), the contracting officer may insert 
the following clause in applicable solicitations and contracts that 
contain task order procedures. This clause may be altered to fit the 
circumstances of the requirement.

[[Page 555]]

              Accelerated Task Order Procedures (JAN 1993)

    (a) The NRC may require the contractor to begin work before 
receiving a definitized task order from the contracting officer. 
Accordingly, when the contracting officer verbally authorizes the work, 
the contractor shall proceed with performance of the task order subject 
to the monetary limitation established for the task order by the 
contracting officer.
    (b) When this accelerated procedure is employed by the NRC, the 
contractor agrees to begin promptly negotiating with the contracting 
officer the terms of the definitive task order and agrees to submit a 
cost proposal with supporting cost or pricing data. If agreement on a 
definitized task order is not reached by the target date mutually agreed 
upon by the contractor and contracting officer, the contracting officer 
may determine a reasonable price and/or fee in accordance with Subpart 
15.8 and Part 31 of the FAR, subject to contractor appeal as provided in 
52.233-1, Disputes. In any event, the contractor shall proceed with 
completion of the task order subject only to the monetary limitation 
established by the contracting officer and the terms and conditions of 
the basic contract.

                             (End of clause)



Sec. 2052.222-70  Nondiscrimination because of age.

    As prescribed at 2022.901-70, the contracting officer shall insert 
the following clause in all solicitations:

               Nondiscrimination Because of Age (JAN 1993)

    It is the policy of the Executive Branch of the Government that:
    (a) Contractors and subcontractors engaged in the performance of 
Federal contracts may not, in connection with the employment, 
advancement, or discharge of employees or in connection with the terms, 
conditions, or privileges of their employment, discriminate against 
persons because of their age except upon the basis of a bona fide 
occupational qualification, retirement plan, or statutory requirement; 
and
    (b) That contractors and subcontractors, or persons acting on their 
behalf, may not specify, in solicitations or advertisements for 
employees to work on Government contracts, a maximum age limit for 
employment unless the specified maximum age limit is based upon a bona 
fide occupational qualification, retirement plan, or statutory 
requirement.

                           (End of provision)



Sec. 2052.227-70  Drawings, designs, specifications, and other data.

    As prescribed at 2027.305-70, the contracting officer shall insert 
the following clause in all solicitations and contracts in which 
drawings, designs, specifications, and other data will be developed and 
the NRC must retain full rights to them (except for the contractor's 
right to retain a copy for its own use). When any of the clauses 
prescribed at FAR 27.409 are included in the solicitation and contract, 
this clause will not be used.

      Drawings, Designs, Specifications, and Other Data (JAN 1993)

    All drawings, sketches, designs, design data, specifications, 
notebooks, technical and scientific data, and all photographs, 
negatives, reports, findings, recommendations, other data and memoranda 
of every description relating thereto, as well as all copies of the 
foregoing relating to the work or any part thereto, are subject to 
inspection by the Commission at all reasonable times. Inspection of the 
proper facilities must be afforded the Commission by the contractor and 
its subcontractors. These data are the property of the Government and 
may be used by the Government for any purpose whatsoever without any 
claim on the part of the contractor and its subcontractors and vendors 
for additional compensation and must, subject to the right of the 
contractor to retain a copy of the material for its own use, be 
delivered to the Government, or otherwise disposed of by the contractor 
as the contracting officer may direct during the progress of the work or 
upon completion or termination of this contract. The contractor's right 
of retention and use is subject to the security, patent, and use of 
information provisions, if any, of this contract.

                             (End of clause)



Sec. 2052.231-70  Precontract costs.

    As prescribed in 2031.109-70, following clause may be used in all 
cost type contracts when costs in connection with work under the 
contract will be incurred by the contractor before the effective date of 
the contract. Approval for use of this clause must be obtained at one 
level above the contracting officer.

                      Precontract Costs (JAN 1993)

    Allowable costs under this contract include costs incurred by the 
contractor in

[[Page 556]]

connection with the work covered by this contract during the period from 
* and including * to the effective date of this contract that would have 
been allowable under the terms of this contract if this contract had 
been in effect during that period. However, the costs may not in 
aggregate exceed * which is included in the estimated cost of this 
contract.
    *To be incorporated into any resultant contract.

                             (End of clause)



Sec. 2052.235-70  Publication of research results.

    As prescribed in 2035.70(a)(1), the contracting officer shall insert 
the following clause in applicable solicitations and contracts for 
research and development by private contractors and universities and for 
other technical services as appropriate.

               Publication of Research Results (OCT 1999)

    (a) The principal investigator(s)/contractor shall comply with the 
provisions of NRC Management Directive 3.8 (Vol. 3, Part 1) and NRC 
Handbook 3.8 (Parts I-IV) regarding publication in refereed scientific 
and engineering journals or dissemination to the public of any 
information, oral or written, concerning the work performed under this 
contract. Failure to comply with this clause shall be grounds for 
termination of this contract.
    (b) The principal investigator(s)/contractor may publish the results 
of this work in refereed scientific and engineering journals or in open 
literature and present papers at public or association meetings at 
interim stages of work, in addition to submitting to NRC the final 
reports and other deliverables required under this contract. However, 
such publication and papers shall focus on advances in science and 
technology and minimize conclusions and/or recommendations which may 
have regulatory implications.
    (c) The principal investigator(s) shall coordinate all such 
publications with, and transmit a copy of the proposed article or paper 
to, the NRC Contracting Officer or Project Officer, prior to 
publication. The NRC agrees to review and provide comments within thirty 
(30) days after receipt of a proposed publication. However, in those 
cases where the information to be published is (1) subject to Commission 
approval, (2) has not been ruled upon, or (3) disapproved by the 
Commission, the NRC reserves the right to disapprove or delay the 
publication. Further, if the NRC disagrees with the proposed publication 
for any reason, it reserves the right to require that any publication 
not identify the NRC's sponsorship of the work and that any associated 
publication costs shall be borne by the contractor.

                             (End of clause)



Sec. 2052.235-71  Safety, health, and fire protection.

    As prescribed in 2035.70(a)(2), the contracting officer shall insert 
the following clause in applicable solicitations and contracts for 
research and development by private contractors and universities and for 
other technical services as appropriate:

             Safety, Health, and Fire Protection (JAN 1993)

    The contractor shall take all reasonable precautions in the 
performance of the work under this contract to protect the health and 
safety of its employees and of members of the public, including NRC 
employees and contractor personnel, and to minimize danger from all 
hazards to life and property. The contractor shall comply with all 
applicable health, safety, and fire protection regulations and 
requirements (including reporting requirements) of the Commission and 
the Department of Labor. If the contractor fails to comply with these 
regulations or requirements, the contracting officer may, without 
prejudice to any other legal or contractual rights of the Commission, 
issue an order stopping all or any part of the work. Thereafter, a start 
work order for resumption of work may be issued at the discretion of the 
contracting officer. The contractor may not make a claim for an 
extension of time or for compensation or damages by reason of, or in 
connection with, this type of work stoppage.

                             (End of clause)



Sec. 2052.242-70  Resolving differing professional views.

    As prescribed in 2042.570-1, the contracting officer shall insert 
the following clause in the body of cost reimbursement solicitations and 
contracts for professional services, as appropriate. This clause may not 
be altered by the contracting officer.

   Resolving NRC Contractor Differing Professional Views (DPVs) (Date)

    (a) The Nuclear Regulatory Commission's (NRC) policy is to support 
the contractor's expression of professional health and safety related 
concerns associated with the contractor's work for NRC that may differ 
from a prevailing NRC staff view, disagree with an NRC decision or 
policy position, or take issue with proposed or established agency

[[Page 557]]

practices. An occasion may arise when an NRC contractor, contractor's 
personnel, or subcontractor personnel believes that a conscientious 
expression of a competent judgement is required to document such 
concerns on matters directly associated with its performance of the 
contract. The NRC's policy is to support these instances as Differing 
Professional Views (DPVs).
    (b) The procedure that will be used provides for the expression and 
resolution of differing professional views (DPVs) of health and safety 
related concerns associated with the mission of the agency by NRC 
contractors, contractor personnel or subcontractor personnel on matters 
directly associated with its performance of the contract. This procedure 
may be found in Attachments to this document. The contractor shall 
provide a copy of the NRC DPV procedure to all of its employees 
performing under this contract and to all subcontractors who shall, in 
turn, provide a copy of the procedure to its employees. The prime 
contractor or subcontractor shall submit all DPV's received but need not 
endorse them.

                             (End of clause)



Sec. 2052.242-71  Procedures for Resolving Differing Professional Views.

    As prescribed in 2042.570-2(b), the contracting officer shall 
include the following clause as an attachment to cost reimbursement 
solicitations and contracts for professional services, as appropriate. 
This clause may not be altered by the contracting officer.

  Procedures for Resolving NRC Contractor Differing Professional Views 
                            (DPVs) (OCT 1999)

    (a) The following procedure provides for the expression and 
resolution of differing professional views (DPVs) of health and safety 
related concerns of NRC contractors and contractor personnel on matters 
connected to the subject of the contract. Subcontractor DPVs must be 
submitted through the prime contractor. The prime contractor or 
subcontractor shall submit all DPV's received but need not endorse them.
    (b) The NRC may authorize up to eight reimbursable hours for the 
contractor to document, in writing, a DPV by the contractor, the 
contractor's personnel, or subcontractor personnel. The contractor shall 
not be entitled to any compensation for effort on a DPV which exceeds 
the specified eight hour limit.
    (c) Before incurring costs to document a DPV, the contractor shall 
first determine whether there are sufficient funds obligated under the 
contract which are available to cover the costs of writing a DPV. If 
there are insufficient obligated funds under the contract, the 
contractor shall first request the NRC contracting officer for 
additional funding to cover the costs of preparing the DPV and 
authorization to proceed.
    (d) Contract funds shall not be authorized to document an allegation 
where the use of this NRC contractor DPV process is inappropriate. 
Examples of such instances are: allegations of wrongdoing which should 
be addressed directly to the NRC Office of the Inspector General (OIG), 
issues submitted anonymously, or issues raised which have already been 
considered, addressed, or rejected, absent significant new information. 
This procedure does not provide anonymity. Individuals desiring 
anonymity should contact the NRC OIG or submit the information under 
NRC's Allegation Program, as appropriate.
    (e) When required, the contractor shall initiate the DPV process by 
submitting a written statement directly to the NRC Office Director or 
Regional Administrator responsible for the contract, with a copy to the 
Contracting Officer, Division of Contracts and Property Management, 
Office of Administration. Each DPV submitted will be evaluated on its 
own merits.
    (f) The DPV, while being brief, must contain the following as it 
relates to the subject matter of the contract:
    (1) A summary of the prevailing NRC view, existing NRC decision or 
stated position, or the proposed or established NRC practice.
    (2) A description of the submitter's views and how they differ from 
any of the above items.
    (3) The rationale for the submitter's views, including an assessment 
based on risk, safety and cost benefit considerations of the 
consequences should the submitter's position not be adopted by NRC.
    (g) The Office Director or Regional Administrator will immediately 
forward the submittal to the NRC DPV Review Panel and acknowledge 
receipt of the DPV, ordinarily within five (5) calendar days of receipt.
    (h) The panel will normally review the DPV within seven calendar 
days of receipt to determine whether enough information has been 
supplied to undertake a detailed review of the issue. Typically, within 
30 calendar days of receipt of the necessary information to begin a 
review, the panel will provide a written report of its findings to the 
Office Director or Regional Administrator and to the Contracting 
Officer, which includes a recommended course of action.
    (i) The Office Director or Regional Administrator will consider the 
DPV Review Panel's report, make a decision on the DPV and provide a 
written decision to the contractor and the Contracting Officer normally 
within seven calendar days after receipt of the panel's recommendation.
    (j) Subsequent to the decision made regarding the DPV Review Panel's 
report, a

[[Page 558]]

summary of the issue and its disposition will be included in the NRC 
Weekly Information Report submitted by the Office Director. The DPV file 
will be retained in the Office or Region for a minimum of one year 
thereafter. For purposes of the contract, the DPV shall be considered a 
deliverable under the contract. Based upon the Office Director or 
Regional Administrator's report, the matter will be closed.

                             (End of clause)

[[Page 559]]



CHAPTER 21--OFFICE OF PERSONNEL MANAGEMENT, FEDERAL EMPLOYEES GROUP LIFE 
                INSURANCE FEDERAL ACQUISITION REGULATION




                          (Parts 2100 to 2199)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2101            Federal Acquisition Regulations System......         561
2102            Definitions of words and terms..............         562
2103            Improper business practices and personal 
                    conflicts of interest...................         563
2104            Administrative matters......................         564
                   SUBCHAPTER B--ACQUISITION PLANNING
2105            Publicizing contract actions................         565
2106            Competition requirements....................         565
2109            Contractor qualifications...................         565
2110            Specifications, standards, and other 
                    purchase descriptions...................         566
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2114            Sealed bidding..............................         568
2115            Contracting by negotiation..................         568
2116            Types of contracts..........................         571
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2122            Application of labor laws to government 
                    acquisitions............................         572
2124            Protection of privacy and freedom of 
                    information.............................         572
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2128            Bonds and Insurance.........................         573
2129            Taxes.......................................         573

[[Page 560]]

2131            Contract cost principles and procedures.....         574
2132            Contract financing..........................         576
2133            Protests, disputes, and appeals.............         577
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2137            Service contracting.........................         578
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2143            Contract modifications......................         579
2144            Subcontracting policies and procedures......         579
2146            Quality Assurance...........................         579
2149            Termination of contracts....................         580
                     SUBCHAPTER H--CLAUSES AND FORMS
2152            Precontract provisions and contract clauses.         582

[[Page 561]]

                          SUBCHAPTER A--GENERAL

            PART 2101--FEDERAL ACQUISITION REGULATIONS SYSTEM

              Subpart 2101.1--Purpose, Authority, Issuance

Sec.

Sec. 2101.101  Purpose.

Sec. 2101.102  Authority.

Sec. 2101.103  Applicability.

Sec. 2101.104  Issuance.

Sec. 2101.104-1  Publication and code arrangement.

Sec. 2101.104-2  Arrangement of regulations.

             Subpart 2101.3--Agency Acquisition Regulations


Sec. 2101.301  Policy.

Sec. 2101.370  Effective date of LIFAR amendments.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40372, July 28, 1993, unless otherwise noted.

              Subpart 2101.1--Purpose, Authority, Issuance



Sec. 2101.101  Purpose.

    (a) This subpart establishes Chapter 21, Office of Personnel 
Management Federal Employees' Group Life Insurance Federal Acquisition 
Regulation, within title 48, the Federal Acquisition Regulations System, 
of the Code of Federal Regulations. The short title of this regulation 
shall be LIFAR.
    (b) The purpose of the LIFAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering a contract, or contracts, for life insurance under the 
Federal Employees' Group Life Insurance (FEGLI) Program.



Sec. 2101.102  Authority.

    (a) The LIFAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. Chapter 87 and 
other applicable laws and regulations.
    (b) The LIFAR does not replace or incorporate regulations found at 5 
CFR Parts 870 through 874, which provide the substantive policy guidance 
for administration of the FEGLI program under 5 U.S.C. chapter 87. The 
following is the order of precedence in interpreting a contract 
provision under the FEGLI Program:
    (1) 5 U.S.C. chapter 87.
    (2) 5 CFR parts 870 through 874.
    (3) 48 CFR chapters 1 and 21.
    (4) The FEGLI Program contract.



Sec. 2101.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEGLI 
Program pursuant to 5 U.S.C. chapter 87. The LIFAR implements and 
supplements the FAR where necessary to identify basic and significant 
acquisition policies unique to the FEGLI Program.



Sec. 2101.104  Issuance.



Sec. 2101.104-1  Publication and code arrangement.

    (a) The LIFAR and its subsequent changes are published in:
    (1) Daily issues of the Federal Register; and
    (2) The Code of Federal Regulations, in cumulative form.
    (b) The LIFAR is issued as chapter 21 of title 48 of the Code of 
Federal Regulations.



Sec. 2101.104-2  Arrangement of regulations.

    (a) General. The LIFAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104 and 1.303. However, when a FAR part or 
subpart is adequate for use without further OPM implementation or 
supplementation, there will be no corresponding LIFAR part, subpart, 
etc. The LIFAR is to be used in conjunction with the FAR and the order 
for use is:
    (1) FAR;
    (2) LIFAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of Chapter 21 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.

[[Page 562]]

    (2) In informal documents, any section of chapter 21 may be 
identified as ``LIFAR'' followed by the section number.

             Subpart 2101.3--Agency Acquisition Regulations



Sec. 2101.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEGLI Program shall be 
consistent with the principles of the FAR. Changes to the FAR that are 
otherwise authorized by statute or applicable regulation, dictated by 
the practical realities associated with certain unique aspects of life 
insurance, or necessary to satisfy specific needs of the Office of 
Personnel Management, to the extent not otherwise regulated in the FAR, 
shall be implemented as amendments to the LIFAR and published in the 
Federal Register, or as deviations to the FAR in accordance with FAR 
subpart 1.4.
    (b) Internal procedures, instructions, and guides which are 
necessary to clarify or implement the LIFAR within OPM may be issued by 
agency officials designated by the Director, OPM. Normally, such 
designations will be specified in the OPM Administrative Manual, which 
is routinely available to agency employees and will be made available to 
interested outside parties upon request. Clarifying or implementing 
procedures, instructions, and guides issued pursuant to this section of 
the LIFAR must:
    (1) Be consistent with the policies and procedures contained in this 
regulation as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
regulation to the extent practicable.



Sec. 2101.370  Effective date of LIFAR amendments.

    (a) Except as provided in paragraphs (b) and (c) of this section, an 
amendment to the LIFAR is effective when promulgated or as provided in 
the amendment.
    (b) Except as provided in paragraphs (c) and (d) of this section, if 
the LIFAR is amended in a manner which would increase the 
contractor's(s') costs or liabilities under the contract(s), the 
amendment will be made effective the October 1 subsequent to the 
amendment's promulgation, unless the contractor(s) agree(s) in writing 
to an earlier date.
    (c) Except as provided for in paragraph (d) of this section, if the 
LIFAR is amended between July 31 and October 1 in a manner which would 
increase the contractor's(s') costs or liabilities under the 
contract(s), the amendment will not be effective until the October 1 in 
the year following the amendment's promulgation, unless the 
contractor(s) agree(s) in writing to an earlier date.
    (d) Paragraphs (b) and (c) of this section are not applicable to 
amendments that are necessary to implement new or existing legislation.

                PART 2102--DEFINITIONS OF WORDS AND TERMS

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

                       Subpart 2102.1--Definitions



Sec. 2102.101  Definitions.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.
    Contract means a policy or policies of group life and accidental 
death and dismemberment insurance to provide the benefits specified by 5 
U.S.C. chapter 87.
    Contractor means an insurance company contracted to provide the 
benefits specified by 5 U.S.C. chapter 87.
    Director means the Director of the Office of Personnel Management.
    Employees' Life Insurance Fund means the trust fund established 
under 5 U.S.C. 8714.
    FEGLI Program means the Federal Employees' Group Life Insurance 
Program.
    Fixed price with limited cost redetermination plus fixed fee 
contract means a contract which provides for:
    (1) A fixed price during the contract year with a cost element that 
is adjusted at the end of the contract term based on costs incurred 
under the contract; and

[[Page 563]]

    (2) A profit or fee that is fixed at the beginning of the contract 
term. The amount of adjustment for costs is limited to the amount in the 
Employees' Life Insurance Fund. The fee will be in the form of either a 
risk charge or a service charge.
    Insurance company, as provided in 5 U.S.C. 8709, means a company 
licensed to transact life and accidental death and dismemberment 
insurance under the laws of all the States and the District of Columbia. 
It must have in effect, on the most recent December 31 for which 
information is available to the Office of Personnel Management, an 
amount of employee group life insurance equal to at least 1 percent of 
the total amount of employee group life insurance in the United States 
in all life insurance companies.
    OPM means the Office of Personnel Management.
    Reinsurer means a company that reinsures portions of the total 
amount of insurance under the contract as specified in 5 U.S.C. 8710 and 
is not an agent or representative of the contractor.
    Subcontract means a contract entered into by any subcontractor that 
furnishes supplies or services for performance of a prime contract under 
the FEGLI Program. Except for the purpose of FAR Subpart 22.8--Equal 
Employment Opportunity, the term ``subcontract'' does not include a 
contract with a reinsurer under the FEGLI Program.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor under the 
FEGLI Program contract. Except for the purpose of FAR Subpart 22.8--
Equal Employment Opportunity, the term ``subcontractor'' does not 
include reinsurers under the FEGLI Program.

[58 FR 40373, July 28, 1993]

    PART 2103--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

            Subpart 2103.5--Other Improper Business Practices

Sec.

Sec. 2103.570  Misleading, Deceptive, or Unfair Advertising.

Sec. 2103.571  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40373, July 28, 1993, unless otherwise noted.

            Subpart 2103.5--Other Improper Business Practices



Sec. 2103.570  Misleading, Deceptive, or Unfair Advertising.

    (a) OPM prepares and makes available to enrolled Federal employees a 
booklet describing the provisions of the FEGLI Program which includes 
information about eligibility, enrollment, and general procedures. The 
booklet also operates as a certification of the employee's enrollment in 
the FEGLI Program. Because all necessary information is made available 
by OPM, advertising directed specifically at Federal employees and life 
insurance agent contacts with Federal employees for the purpose of 
selling FEGLI Program coverage are prohibited.
    (b) The contractor is prohibited from making incomplete, incorrect 
comparisons or using disparaging or minimizing techniques to compare its 
other products or services to the benefits of the FEGLI Program. The 
contractor agrees that any advertising material authorized and released 
by the contractor which mentions the FEGLI Program shall be truthful and 
not misleading, and shall present an accurate statement of FEGLI Program 
benefits. The contractor will use its best efforts to assure that its 
life insurance agents

[[Page 564]]

are aware of and abide by this prohibition.
    (c) The contractor's failure to conform to the requirements of this 
subpart shall be considered by OPM in the determination of the service 
charge prenegotiation objective.



Sec. 2103.571  Contract clause.

    The clause at 2152.203-70 shall be inserted in FEGLI Program 
contracts and in subcontracts.

                    PART 2104--ADMINISTRATIVE MATTERS

              Subpart 2104.7--Contractor Records Retention

Sec.

Sec. 2104.703  Policy.

          Subpart 2104.70--Designation of Authorized Personnel


Sec. 2104.7001  Designation of authorized personnel.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40373, July 28, 1993, unless otherwise noted.

              Subpart 2104.7--Contractor Records Retention



Sec. 2104.703  Policy.

    In view of the unique payment schedules of FEGLI Program contracts 
and the compelling need for records retention periods sufficient to 
protect the Government's interest, contractors shall be required to 
maintain records for periods determined in accordance with the 
provisions of FAR 4.703(b)(1) and LIFAR 2115.106-270.

          Subpart 2104.70--Designation of Authorized Personnel



Sec. 2104.7001  Designation of authorized personnel.

    The contractor shall notify the contracting officer in writing of 
the name(s), title(s), and address(es) of the individual(s) authorized 
to act on behalf of the contractor regarding a LIFAR Program contract. 
The notice shall include any restriction(s) upon the authority of the 
individual(s). Any change to the notice must also be provided to the 
contracting officer in writing.

[[Page 565]]

                   SUBCHAPTER B--ACQUISITION PLANNING

                 PART 2105--PUBLICIZING CONTRACT ACTIONS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                     Subpart 2105.70--Applicability



Sec. 2105.7001  Applicability.

    FAR part 5 has no practical application to the FEGLO Program because 
OPM does not issue solicitations. Eligible contractors (i.e., qualified 
life insurance companies) are identified in accordance with 5 U.S.C. 
8709.

[58 FR 40373, July 28, 1993]

                   PART 2106--COMPETITION REQUIREMENTS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                     Subpart 2106.70--Applicability



Sec. 2106.7001  Applicability.

    FAR part 6 has no practical application to the FEGLI Program in view 
of the statutory exception provided by 5 U.S.C. 8709.

[58 FR 40374, July 28, 1993]

                  PART 2109--CONTRACTOR QUALIFICATIONS

        Subpart 2109.4--Debarment, Suspension, and Ineligibility

Sec.

Sec. 2109.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

Sec. 2109.409  Certification and contract clause.

    Subpart 2109.70--Minimum Standards for FEGLI Program Contractors


Sec. 2109.7001  Minimum standards for FEGLI Program contractors.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40374, July 28, 1993, unless otherwise noted.

        Subpart 2109.4--Debarment, Suspension, and Ineligibility



Sec. 2109.408  Certification regarding debarment, suspension, proposed 
          debarment and other responsibility matters.

    FAR subpart 9.4 is implemented by changing the FAR offeror's 
certification at FAR 52.209-5 (which is part of a solicitation) to a 
pre-contract certificate and a contract clause. These provisions reflect 
the FEGLI Program's statutory exemption from competitive bidding (5 
U.S.C. 8709), which obviates the issuance of solicitations.



Sec. 2109.409  Certification and contract clause.

    (a) The contracting officer may require the precontract certificate 
in 2152.209-70 to be filed prior to or during negotiations.
    (b) The contracting officer shall insert the clause at 2152.209-71 
in all FEGLI Program contracts.

    Subpart 2109.70--Minimum Standards for FEGLI Program Contractors



Sec. 2109.7001  Minimum standards for FEGLI Program contractors.

    (a) The contractor must meet the requirements of chapter 87 of title 
5, United States Code; parts 870, 871, 872, 873, and 874 of title 5, 
Code of Federal Regulations; chapter 1 of title 48, Code of Federal 
Regulations, and the standards in this subpart. The contractor shall 
continue to meet these and the following statutory and regulatory 
requirements while under contract with OPM. Failure to meet these 
requirements and standards is cause for OPM's termination of the 
contract in accordance with part 2149 of this chapter.
    (b) The contractor must actually be engaged in the life insurance 
business and must be licensed to transact life and accidental death and 
dismemberment insurance under the laws of all the States and the 
District of Columbia at the time of application.

[[Page 566]]

    (c) The contractor must not be a Federal, State, local or 
territorial government entity.
    (d) The contractor must not be debarred, suspended or ineligible to 
participate in Government contracting or subcontracting for any reason.
    (e) The contractor must keep statistical and financial records 
regarding the FEGLI Program separate from that of all its other lines of 
business.
    (f) The contractor must enter into rate redeterminations as deemed 
necessary by OPM.
    (g) The contractor must furnish such reasonable reports as OPM 
determines are necessary to administer the FEGLI Program.
    (h) The contractor must establish and maintain a system of internal 
control that provides reasonable assurance that:
    (1) The payment of claims and other expenses is in compliance with 
legal, regulatory, and contractual guidelines;
    (2) Funds, property, and other FEGLI Program assets are safeguarded 
against waste, loss, unauthorized use, or misappropriation;
    (3) Revenues and expenditures applicable to FEGLI Program operations 
are properly recorded and accounted for to permit the preparation of 
reliable financial reporting and to maintain accountability over assets; 
and,
    (4) Data are accurately and fairly disclosed in all reports required 
by OPM.
    (i) The contractor must permit representatives of OPM and of the 
General Accounting Office to audit and examine records and accounts 
pertaining to the FEGLI Program at such reasonable times and places as 
may be designated by OPM or the General Accounting Office.

  PART 2110--SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS

                Subpart 2110.70--Contract Specifications

Sec.

Sec. 2110.7000  Scope of subpart.

Sec. 2110.7001  Definitions.

Sec. 2110.7002  Contractor investment of FEGLI Program funds.

Sec. 2110.7003  Significant events.

Sec. 2110.7004  Contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40374, July 28, 1993, unless otherwise noted.

                Subpart 2110.70--Contract Specifications



Sec. 2110.7000  Scope of subpart.

    This subpart prescribes mandatory specifications for performance 
under FEGLI Program contracts.



Sec. 2110.7001  Definitions.

    Investment income, as used in this subpart, means the net amount on 
an investment of FEGLI Program funds earned by the contractor after 
deducting reasonable, necessary, and properly allocated investment 
expenses.
    Significant event, as used in this subpart, means any occurrence or 
anticipated occurrence that might reasonably be expected to have a 
material effect upon the contractor's ability to meet its obligations 
under the LIFAR.



Sec. 2110.7002  Contractor investment of FEGLI Program funds.

    (a) The contractor is required to invest and reinvest all FEGLI 
Program funds on hand, including any attributable to the special 
contingency reserve (as used in 5 U.S.C. 8712), until needed to 
discharge promptly the obligations incurred under the contract. Within 
the constraints of safety and liquidity of investments, the contractor 
shall seek to maximize investment income.

[[Page 567]]

    (b) The contractor is required to credit income earned from its 
investment of FEGLI Program funds to the FEGLI Program. Thus, the 
contractor must be able to allocate investment income to the FEGLI 
Program in an appropriate manner. If the contractor fails to invest 
funds on hand, properly allocate investment income, or credit any income 
due to the contract, for whatever reason, it shall return or credit any 
investment income lost to OPM or the FEGLI Program, retroactive to the 
date that such funds should have been originally invested in accordance 
with 2152.210-70.



Sec. 2110.7003  Significant events.

    The contractor is required to inform the contracting officer of all 
significant events.



Sec. 2110.7004  Contract clauses.

    (a) The clause at 2152.210-70 shall be inserted in all FEGLI Program 
contracts.
    (b) The clause at 2152.210-71 shall be inserted in all FEGLI Program 
contracts.

[[Page 568]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

                        PART 2114--SEALED BIDDING

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                     Subpart 2114.70--Applicability



Sec. 2114.7001  Applicability.

    FAR part 14 has no practical application to the FEGLI Program in 
view of the statutory exemption provided by 5 U.S.C. 8709, 8714a, 8714b, 
and 8714c.

[58 FR 40375, July 28, 1993]

                  PART 2115--CONTRACTING BY NEGOTIATION

          Subpart 2115.1--General Requirements for Negotiation

Sec.

Sec. 2115.106  Contract clauses.

Sec. 2115.106-270  Specific retention periods.

Sec. 2115.170  Negotiation authority.

  Subpart 2115.4--Solicitation and Receipt of Proposals and Quotations


Sec. 2115.401  Applicability.

                    Subpart 2115.6--Source Selection


Sec. 2115.602  Applicability.

                    Subpart 2115.8--Price Negotiation


Sec. 2115.802  Policy.

                         Subpart 2115.9--Profit


Sec. 2115.902  Policy.

Sec. 2115.905  Profit analysis factors.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40375, July 28, 1993, unless otherwise noted.

          Subpart 2115.1--General Requirements for Negotiation



Sec. 2115.106  Contract clauses.



Sec. 2115.106-270  Specific retention periods.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2, ``Audit--Negotiation,'' the contracting officer shall also 
insert the clause at 2152.215-70 in all FEGLI Program contracts.



Sec. 2115.170  Negotiation authority.

    The authority to negotiate FEGLI Program contracts is conferred by 5 
U.S.C. 8709.

  Subpart 2115.4--Solicitation and Receipt of Proposals and Quotations



Sec. 2115.401  Applicability.

    (a) FAR Subpart 15.4 has no practical application to the FEGLI 
Program because OPM does not issue solicitations.
    (b) OPM will announce any opportunities to submit applications to 
provide life insurance through the FEGLI Program in insurance industry 
periodicals and other publications as deemed appropriate by OPM. The 
announcement will contain information on the address to which requests 
for application packages should be submitted and on deadline dates for 
submission of completed applications.
    (c) Eligible contractors (i.e., qualified life insurance companies) 
are identified in accordance with 5 U.S.C. 8709. Offerors voluntarily 
come forth in accordance with procedures provided in 2115.602.
    (d) OPM may approve one or more life insurance companies that, in 
its judgment, are best qualified to provide life insurance coverage to 
Federal enrollees.

[[Page 569]]

                    Subpart 2115.6--Source Selection



Sec. 2115.602  Applicability.

    FAR Subpart 15.6 has no practical application to the FEGLI Program 
because prospective contractors (insurance companies) are considered for 
inclusion in the FEGLI Program in accordance with criteria provided in 5 
U.S.C. chapter 87, LIFAR 2109.7001, and the following:
    (a) Applications must be signed by an individual with legal 
authority to enter into a contract on behalf of the company for the 
dollar level of claims and expenses anticipated.
    (b) Applications will be reviewed for evidence of substantial 
compliance in the following areas:
    (1) Management: Stable management with experience pertinent to the 
life insurance industry and, in particular, large group management; 
sufficient operating experience to enable OPM to evaluate past and 
expected future performance.
    (2) Marketing: Past ability to attract and retain large group 
contracts; steady or increasing amount of group life insurance in force.
    (3) Legal expertise: Demonstrated competence in researching, 
compiling, and implementing various Federal and State laws that may 
impact payment of benefits; ability to defend legal challenges to 
payment of benefits.
    (4) Financial condition: Establishment of firm budget projections 
and demonstrated success in keeping costs at or below those projections 
on a regular basis; evidence of the ability to sustain operations in the 
future and to meet obligations under the contract OPM might enter into 
with the company; adequate reserve levels; assets exceeding liabilities.
    (5) Establishment of office: Ability to establish an administrative 
office capable of assessing, tracking, and paying claims.
    (6) Internal controls: Ability to establish and maintain a system of 
internal control that provides reasonable assurance that the payment of 
claims and other expenses will be in compliance with legal, regulatory, 
and contractual guidelines; funds, property, and other FEGLI Program 
assets will be safeguarded against waste, loss, unauthorized use, or 
misappropriation; and revenues and expenditures applicable to FEGLI 
Program operations will be properly recorded and accounted for to permit 
the preparation of timely and accurate financial reporting and to 
maintain accountability over assets.

                    Subpart 2115.8--Price Negotiation



Sec. 2115.802  Policy.

    Pricing of FEGLI Program premium rates is governed by 5 U.S.C. 8707, 
8708, 8711, 8714a, 8714b, and 8714c. FAR Subpart 15.8 shall be 
implemented by applying cost analysis policies and procedures. To the 
extent that reasonable or good faith actuarial estimates are used for 
pricing, such estimates will be deemed acceptable and, if inaccurate, 
will not constitute defective pricing.

                         Subpart 2115.9--Profit



Sec. 2115.902  Policy.

    (a) Risk charge. (1) Section 8711(d) of title 5, United States Code, 
provides for payment of a risk charge to FEGLI Program contractors as 
compensation for the risk assumed under the FEGLI Program. It is 
appropriate to pay such a charge when substantial risk is borne by the 
contractor; that is, when the balance in the Employees' Life Insurance 
Fund is no larger than five times annual claims.
    (2) The risk charge is determined by agreement between the 
contractor and OPM. The amount of risk charge shall be specified in the 
contract.
    (b) Waiver of the risk charge. (1) When the Fund balance is greater 
than five times annual claims, OPM and the contractor may agree that the 
contractor will relinquish the risk charge in favor of a profit 
opportunity in the form of a service charge for the contractor. The 
service charge so determined shall be the total service charge that may 
be negotiated for the contract and shall encompass any service charge 
(whether entitled service charge, profit, fee, contribution to 
surpluses, etc.) that may have been negotiated by the prime contractor 
with any subcontractor. At no time may both a risk charge and a service 
charge be paid for the same portion of a policy year.

[[Page 570]]

    (2) Once agreement to relinquish the risk charge is made, the 
agreement may not be cancelled unless OPM and the contractor mutually 
agree to reinstitute payment of a risk charge; or unless the Fund 
balance falls below the level defined in 2115.902(a) and 30 days notice 
of cancellation is provided; or unless the contractor or OPM provide 
notice of cancellation for any reason 1 year prior to the date 
cancellation is sought.
    (c) Any profit prenegotiation objective (service charge) will be 
determined on the basis of a weighted guidelines structured approach.



Sec. 2115.905  Profit analysis factors.

    (a) The OPM contracting officer will apply a weighted guidelines 
method when developing the prenegotiation objective (service charge) for 
the FEGLI Program contract. In accordance with the factors defined in 
FAR 15.905-1, OPM will apply the appropriate weights derived from the 
ranges specified in paragraph (b) of this section and will determine the 
prenegotiation objective based on the contractor's Basic and Family 
Optional insurance claims paid in the previous contract year.
    (1) Contractor performance. OPM will consider such elements as the 
accurate and timely processing of benefit claims, the volume and 
validity of complaints received by OPM, effectiveness of internal 
controls systems in place, the timeliness and adequacy of reports on 
operations, and responsiveness to OPM offices, enrollees, beneficiaries, 
and Congress as measures of economical and efficient contract 
performance. This factor will be judged apart from the contractor's 
basic responsibility for contract compliance and will be a measure of 
the extent and nature of the contractor's contribution to the FEGLI 
Program through the application of managerial expertise and effort. 
Evidence of effective contract performance will receive a plus weight, 
and poor performance or failure to comply with contract terms and 
conditions a zero weight. Innovations of benefit to the FEGLI Program 
will generally receive a plus weight; documented inattention or 
indifference to effective operations, a zero weight.
    (2) Contract cost risk. OPM will evaluate the contractor's risk 
annually in relation to the amount in the Employees' Life Insurance Fund 
and will evaluate this factor accordingly.
    (3) Federal socioeconomic programs. OPM will consider documented 
evidence of successful, contractor-initiated efforts to support such 
Federal socioeconomic programs as drug and substance abuse deterrents, 
and other concerns of the type enumerated in FAR 15.905-1(c) as a factor 
in negotiating profit. This factor will be related to the quality of the 
contractor's policies and procedures and the extent of unusual effort or 
achievement demonstrated. Evidence of effective support of Federal 
socioeconomic programs will result in a plus weight; indifference to 
Federal socioeconomic programs will result in a zero weight; and only 
deliberate failure to provide opportunities to persons and organizations 
that would benefit from these programs will result in a negative weight.
    (4) Capital investments. This factor is generally not applicable to 
FEGLI Program contracts because facilities capital cost of money may be 
an allowable administrative expense. Generally, this factor shall be 
given a weight of zero. However, special purpose facilities or 
investment costs of direct benefit to the FEGLI Program that are not 
recoverable as allowable or allocable administrative expenses may be 
taken into account in assigning a plus weight.
    (5) Cost Control. This factor is based on the contractor's 
previously demonstrated ability to perform effectively and economically. 
In addition, consideration will be given to measures taken by the 
contractor that result in productivity improvements and other cost 
containment accomplishments that will be of future benefit to the FEGLI 
Program. Examples are containment of costs associated with processing 
claims; success at preventing waste, loss, unauthorized use, or 
misappropriation of FEGLI Program assets; and success at limiting and 
recovering erroneous benefit payments.
    (6) Independent Development. Consideration will be given to 
independent contractor-initiated efforts, such as the development of a 
unique and enhanced customer support system, that

[[Page 571]]

are of demonstrated value to the FEGLI Program and for which 
developmental costs have not been recovered directly or indirectly 
through allowable or allocable administrative expenses. This factor will 
be used to provide additional profit opportunities based upon an 
assessment of the contractor's investment and risk in developing 
techniques, methods, practices, etc., having viability to the Program at 
large. Improvements and innovations recognized and rewarded under any 
other profit factor cannot be considered.
    (b) The weight ranges for each factor to be used in the weighted 
guidelines approach are set forth below:

------------------------------------------------------------------------
                 Profit factor                        Weight ranges
------------------------------------------------------------------------
1. Contractor performance......................              0 to +.0005
2. Contract cost risk..........................      +.000001 to +.00001
3. Federal socioeconomic programs..............             - to +.00003
4. Capital investment..........................             0 to +.00001
5. Cost control................................         -.0002 to +.0002
6. Independent development.....................             0 to +.00003
------------------------------------------------------------------------

                      PART 2116--TYPES OF CONTRACTS

                Subpart 2116.1--Selecting Contract Types

Sec.

Sec. 2116.105  Solicitation provision.

                  Subpart 2116.2--Fixed-Price Contracts


Sec. 2116.270  FEGLI Program contracts.

Sec. 2116.270-1  Contract clauses.

    Authority: 5 U.S.C. 8709; 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 
1.301.

    Source: 58 FR 40376, July 28, 1993, unless otherwise noted.

                Subpart 2116.1--Selecting Contract Types



Sec. 2116.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 87 obviate the issuance of solicitations.

                  Subpart 2116.2--Fixed-Price Contracts



Sec. 2116.270  FEGLI Program contracts.

    FEGLI Program contracts will be fixed price with limited cost 
redetermination plus fixed fee. The premium to the contractor will be 
based on an estimate of benefits and administrative costs, plus the 
fixed service or risk charge, and will be determined annually. Claims 
costs, including benefits and administrative expenses, in excess of 
premiums will be paid up to the amount in the Employees' Life Insurance 
Fund. Payment for costs exceeding the amount in the Fund are the 
responsibility of the contractor and reinsurers. The fee is fixed at the 
inception of each contract year. The fee does not vary with the actual 
costs, but may be adjusted as a result of changes in the work to be 
performed under the contract. The fee will be in the form of either a 
risk charge or a service charge.
    (a) Risk charge. The risk charge will be determined as prescribed in 
5 U.S.C. 8711(d) and paragraph 2115.902(a)(2) of this subchapter. It 
will consist of a negotiated amount which will reflect the risk assumed 
by the contractor and the reinsurers and may be adjusted as a result of 
increased or decreased risk under the contract. When the applicable fee 
is a risk charge, no service charge shall be payable for the same period 
of time.
    (b) Service charge. The amount of the service charge will be 
determined using a weighted guidelines structured approach in accordance 
with 2115.905 and negotiated with the contractor at the beginning of the 
contract term. When the applicable fee is a service charge, no risk 
charge will be paid for the same portion of a policy year in which a 
service charge is paid.



Sec. 2116.270-1  Contract clauses.

    (a) The clause at 2152.216-70 shall be inserted in all FEGLI Program 
contracts when a risk charge is negotiated.
    (b) The clause at 2152.216-71 shall be inserted in all FEGLI Program 
contracts when a service charge is negotiated.

[[Page 572]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

     PART 2122--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    Authority: 5 U.S.C. 8709; 40 U.S.C. 486(c); 48 CFR 1.301.

                  Subpart 2122.1--Basic Labor Policies



Sec. 2122.170  Contract clauses.

    The provisions at FAR sections 52.222-21, 52.222-22, 52-222.25 are 
implemented by changing the word ``offeror'' to ``Contractor'' and the 
word ``solicitation'' to ``contract'' wherever they appear in the text 
to reflect the FEGLI Program's statutory exemption from competitive 
bidding (5 U.S.C. 8709), which obviates the issuance of solicitations.

[58 FR 40377, July 28, 1993]

       PART 2124--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 2124.70--Protection of Individual Privacy

Sec.

Sec. 2124.102  General.

Sec. 2124.102-70  Policy.

Sec. 2124.104  Contract clauses.

Sec. 2124.104-70  Contract clause.

    Authority: 5 U.S.C. 8716, 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40377, July 28, 1993, unless otherwise noted.

            Subpart 2124.70--Protection of Individual Privacy



Sec. 2124.102  General.



Sec. 2124.102-70  Policy.

    Records retained by FEGLI Program contractors on Federal insureds 
and members of their families serve the contractors' own commercial 
function of paying FEGLI Program claims and are not maintained to 
accomplish an agency function of OPM. Consequently, the records do not 
fall within the provisions of the Privacy Act. Nevertheless, OPM 
recognizes the need for the contractors to keep certain records 
confidential. The clause at 2152.224-70 addresses this concern.



Sec. 2124.104  Contract clauses.



Sec. 2124.104-70  Contract clause.

    The clause at 2152.224-70 shall be inserted in all FEGLI Program 
contracts.

[[Page 573]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                     PART 2128--BONDS AND INSURANCE

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

                        Subpart 2128.3--Insurance



Sec. 2128.370  Contract clause.

    The contract clause at FAR 52.228-7 is a mandatory clause in FEGLI 
Program contracts, except paragraph (d) is modified as follows:
    (d) The Government's liability under paragraph (c) of this clause is 
limited to the amount available in the Employee's Life Insurance Fund. 
Nothing in this contract shall be construed as implying that the 
Government will make additional funds available later or that Congress 
will appropriate funds later sufficient to meet deficiencies.

[58 FR 40377, July 28, 1993]

                            PART 2129--TAXES

                         Subpart 2129.1--General

Sec.

Sec. 2129.170   Policy.

                  Subpart 2129.3--State and Local Taxes


Sec. 2129.302  Application of State and local taxes to the Government.

Sec. 2129.305  State and local tax exemptions.

                    Subpart 2129.4--Contract Clauses


Sec. 2129.401  Domestic contracts.

Sec. 2129.401-70  FEGLI Program contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40377, July 28, 1993, unless otherwise noted.

                         Subpart 2129.1--General



Sec. 2129.170  Policy.

    (a) OPM shall consider taxes as a FEGLI Program cost under 2131.205-
41.
    (b) For purposes of the limited cost redetermination of a FEGLI 
Program contract, taxes are not limited to those in effect as of the 
contract date, but shall include any taxes enacted, modified, or 
repealed, by legislative, judicial, or administrative means, during the 
contract year.

                  Subpart 2129.3--State and Local Taxes



Sec. 2129.302  Application of State and local taxes to the Government.

    (a) 5 U.S.C. 8714(c)(1) prohibits the imposition of taxes, fees, or 
other monetary payment on FEGLI Program premiums by any State, the 
District of Columbia, the Commonwealth of Puerto Rico, or any political 
subdivision or governmental authority of those entities.
    (b) Paragraph (a) of this section shall not be construed to exempt 
the contractor from the imposition, payment, or collection of a tax, 
fee, or other monetary payment on the net income or profit accruing to 
or realized by it from business conducted under the FEGLI Program if the 
tax, fee, or payment is applicable to a broad range of business 
activity.



Sec. 2129.305  State and local tax exemptions.

    (a) FAR 29.305 is modified for the FEGLI Program by substituting 
paragraph (b) of this section in the place of paragraph (b) of FAR 
29.305.
    (b) Furnishing proof of exemption. If a reasonable basis to sustain 
a claimed exemption exists, the seller will be furnished evidence of 
exemption if requested by the contractor and approved by the contracting 
officer or at the discretion of the contracting officer.

                    Subpart 2129.4--Contract Clauses



Sec. 2129.401  Domestic contracts.



Sec. 2129.401-70  FEGLI Program contract clauses.

    The fixed-price contract clauses in FAR subpart 29.4 are 
inappropriate for the FEGLI Program because of the limited cost-
redetermination of FEGLI Program contracts. The clauses at FAR 52.229-1, 
52.229-2, 52.229-3, and

[[Page 574]]

52.229-4 shall not be inserted into FEGLI Program contracts.

           PART 2131--CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2131.1--Applicability

Sec.

Sec. 2131.103  Contracts with commercial organizations.

Sec. 2131.109  Advance agreements.

         Subpart 2131.2--Contracts With Commercial Organizations


Sec. 2131.201  General.

Sec. 2131.201-5   Credits.

Sec. 2131.203  Indirect costs.

Sec. 2131.205  Selected costs.

Sec. 2131.205-1  Public relations and advertising costs.

Sec. 2131.205-3  Bad debts.

Sec. 2131.205-6  Compensation for personal services.

Sec. 2131.205-32  Precontract costs.

Sec. 2131.205-38  Selling costs.

Sec. 2131.205-41  Taxes.

Sec. 2131.205-43  Trade, business, technical and professional activity 
          costs.

Sec. 2131.205-70  Major subcontractor service charge.

Sec. 2131.205-71  Reinsurer administrative expense costs.

Sec. 2131.270  Contract clauses.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40378, July 28, 1993, unless otherwise noted.

                      Subpart 2131.1--Applicability



Sec. 2131.103  Contracts with commercial organizations.

    The contracting officer shall incorporate the cost principles and 
procedures of FAR subpart 31.2 and this part by reference in all FEGLI 
Program contracts because of the nature of a fixed price with limited 
cost redetermination plus fixed fee contract.



Sec. 2131.109  Advance agreements.

    FAR 31.109 is applicable to FEGLI Program contracts, except that 
precontract costs and nonrecurring costs that exceed $25,000 shall not 
be allowed in the absence of an advance agreement.

         Subpart 2131.2--Contracts With Commercial Organizations



Sec. 2131.201  General.



Sec. 2131.201-5  Credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates and 
other credits resulting from benefit payments that include, but are not 
limited to--
    (a) Uncashed and returned checks.
    (b) Refunds attributable to litigation with regard to payments of 
FEGLI Program life insurance monies.
    (c) Erroneous benefit payment, refunds, overpayment, and duplicate 
payment recoveries.
    (d) Escheatments.



Sec. 2131.203  Indirect costs.

    The provisions of FAR 31.203 apply to the allocation of indirect 
costs by means of a ``dividend or retention formula.''



Sec. 2131.205  Selected costs.



Sec. 2131.205-1  Public relations and advertising costs.

    The provisions of FAR 31.205-1 shall be modified to include the 
following:
    (a) Costs of media messages are allowable if approved by the 
contracting officer and all of the following criteria are met:
    (1) The primary objective of the message is to disseminate 
information on general health and fitness or encouraging healthful 
lifestyles;
    (2) The costs of the contractor's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
contractor's messages to be charged to the FEGLI Program in advance of 
the policy year.
    (b) Costs of media messages that inform enrollees about the FEGLI 
Program are allowable if approved by the contracting officer.
    (c) In those instances where contracting officer approval of the 
total dollar amount is not solicited in advance, it is incumbent upon 
the contractor to show the contracting officer, for subsequent approval, 
that the costs

[[Page 575]]

are reasonable and do not unduly burden the administrative cost to the 
contract.
    (d) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the contractor or 
subcontractor for the purpose of enhancing its overall image or selling 
its product or services are not allowable.



Sec. 2131.205-3  Bad debts.

    Erroneous benefit payments. If the contractor or OPM determines that 
a FEGLI Program benefit has been paid in error for any reason, the 
contractor shall make a diligent effort to recover such erroneous 
payment from the recipient. The contracting officer shall allow an 
unrecovered erroneous payment to be charged to the contract provided the 
contractor demonstrates that the recovery of the erroneous payment was 
attempted in accordance with a system that is approved under 2146.270(b) 
and that either a diligent effort was made to recover the erroneous 
overpayment or it would not be cost effective to recover the erroneous 
overpayment. The contractor's compliance with a system that is approved 
under 2146.270(b) will be deemed to be a diligent effort to recover the 
erroneous overpayment.



Sec. 2131.205-6  Compensation for personal services.

    FAR 31.205-6 is supplemented as follows: Overtime on a FEGLI Program 
contract normally would meet the conditions specified in FAR 22.103. 
Advance approval of the contracting officer is not required for 
overtime, extra-pay shifts, and multi-shifts.



Sec. 2131.205-32  Precontract costs.

    Precontract costs shall be allowable in accordance with FAR Part 31, 
but precontract costs that exceed $25,000 shall not be allowable except 
to the extent allowable under an advance agreement negotiated in 
accordance with 2131.109.



Sec. 2131.205-38  Selling costs.

    Selling costs are not allowable costs to FEGLI contracts except to 
the extent that they are attributable to conducting contract 
negotiations with the Government and for liaison activities involving 
ongoing contract administration, including the conduct of informational 
and enrollment activities as directed by the contracting officer.



Sec. 2131.205-41  Taxes.

    (a) FAR 31.205-41, as modified in paragraphs (b) through (e), is 
applicable to contracts in the FEGLI Program.
    (b) As long as 5 U.S.C. 8714(c) or other Federal law prohibits the 
imposition of taxes, fees, or other monetary payments on FEGLI Program 
premiums by any State, the District of Columbia, the Commonwealth of 
Puerto Rico, or any other political subdivision or governmental 
authority of those entities, payment of such preempted tax is an 
unallowable expense under FAR 31.205-41(b)(3).
    (c) Paragraph (b)(1) of FAR 31.205-41 is not applicable to the FEGLI 
Program.
    (d) Notwithstanding any other provision in FAR 31.205-41, the 
portion of the contractor's income or excess profits taxes allocated to 
the FEGLI Program, except those allocated to the risk charge or the 
service charge, are allowable costs under the FEGLI Program, including 
any income or excess profit taxes that arise from the operation of this 
paragraph. Income or excess profits taxes allocated to the risk charge 
or the service charge are not allowable costs.
    (e) Notwithstanding any other provision in FAR 31.205-41, an amount 
equal to the ``DAC Tax'' is an allowable tax expense under FAR 31.205-
41. ``DAC Tax'' means an amount equal to: (1) the amount of the 
contractor's Federal, state, and local income tax allocated to payments 
under the FEGLI Program, less (2) the amount of the contractor's 
Federal, state, and local income tax allocated to payments under the 
FEGLI Program computed without regard to the operation of 26 U.S.C. 848, 
which requires that certain policy acquisition expenses be capitalized 
over a 60- or 120-month period, plus (3) the amount of the increase, if 
any, in the contractor's Federal, state, and local income tax that 
results from the operation of this section 2131.205-41(e).

[[Page 576]]



Sec. 2131.205-43  Trade, business, technical and professional activity 
          costs.

    (a) FEGLI Program contractors shall seek the advance written 
approval of the contracting officer for allowability of all or part of 
the costs associated with trade, business, technical, and professional 
activities when the allocable costs of such participation to the FEGLI 
Program will exceed $2,500 annually and the contractor allocates more 
than 50 percent of the membership cost of a trade, business, technical, 
or professional organization to the FEGLI Program.
    (b) When approval of costs for membership in an organization is 
required, the contractor must demonstrate conclusively that membership 
in such an organization and participation in its activities extend 
beyond the contractual relationship with OPM, have a reasonable 
relationship to providing services to FEGLI Program insureds, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



Sec. 2131.205-70  Major subcontractor service charge.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits and any other 
subcontract for which prior approval is necessary, when costs are 
determined on the basis of actual costs incurred, any amount that 
exceeds the allowable cost of a major subcontract (whether entitled 
service charge, incentive fee, profit, fee, surplus, or any other title) 
is not allowable under the contract. Amounts which exceed allowable 
costs may be paid to a major subcontractor only from the risk charge or 
service charge negotiated between OPM and the contractor.



Sec. 2131.205-71  Reinsurer administrative expense costs.

    A charge of $500 per policy year per reinsurer of the FEGLI Program 
as set forth in the contract is an allowable cost when documented 
through an internal accounting entry of the contractor and actually 
paid. This amount is deemed to be sufficient to reimburse reinsurers for 
the minor administrative expenses incurred in reinsuring the FEGLI 
Program.



Sec. 2131.270  Contract clauses.

    The clause at 2152.231-70 shall be inserted in all FEGLI Program 
contracts.

                      PART 2132--CONTRACT FINANCING

                         Subpart 2132.1--General

Sec.

Sec. 2132.170  Recurring premium payments to contractors.

Sec. 2132.171  Contract clause.

                     Subpart 2132.6--Contract Debts


Sec. 2132.607  Tax credit.

Sec. 2132.617  Contract clause.

                    Subpart 2132.7--Contract Funding


Sec. 2132.770  Insurance premium payments and special contingency 
          reserve.

Sec. 2132.771  Non-commingling of FEGLI Program funds.

Sec. 2132.772  Contract clause.

                  Subpart 2132.8--Assignment of Claims


Sec. 2132.806  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40379, July 28, 1993, unless otherwise noted.

                         Subpart 2132.1--General



Sec. 2132.170  Recurring premium payments to contractors.

    OPM and the contractor will concur on an estimate of benefits and 
administrative costs plus the fixed service or risk charge for the 
forthcoming contract year, as specified in the contract. The annual 
premium to the contractor will be determined based on this estimate. The 
premium will be determined annually and will be provided to the 
contractor in 12 equal monthly installments due on the first day of each 
month. Following the close of the contract year, a reconciliation of 
premiums, benefits, and other costs will be performed as a limited cost 
redetermination.

[[Page 577]]



Sec. 2132.171  Contract clause.

    The clause at 2152.232-70 shall be inserted in all FEGLI Program 
contracts.

                     Subpart 2132.6--Contract Debts



Sec. 2132.607  Tax credit.

    FAR 32.607 has no practical application to FEGLI Program contracts. 
The statutory provisions at 5 U.S.C. 8707 and 8708 authorize joint 
enrollee and Government contributions to the Employees' Life Insurance 
Fund. Because the Fund is comprised of contributions by enrollees as 
well as the Government, contractors may not offset debts to the Fund by 
a tax credit that is solely a Government obligation.



Sec. 2132.617  Contract clause.

    The clause at FAR 52.232-17 is modified in FEGLI Program contracts 
to exclude the parenthetical phrase ``(net of any applicable tax credit 
under the Internal Revenue Code (26 U.S.C. 1481)).''

                    Subpart 2132.7--Contract Funding



Sec. 2132.770  Insurance premium payments and special contingency 
          reserve.

    Insurance premium payments and a special contingency reserve are 
made available to FEGLI Program contractors in accordance with 5 U.S.C. 
8712 and 8714.



Sec. 2132.771  Non-commingling of FEGLI Program funds.

    (a) FEGLI Program funds shall be maintained in such a manner as to 
be separately identifiable from other assets of the contractor. Cash and 
investment balances reported on the FEGLI Program Annual Accounting 
Statement must be supported by the contractor's books and records.
    (b) This requirement may be modified by the contracting officer in 
accordance with the clause at 2152.232-71 when adequate accounting and 
other controls are in effect. If the requirement is modified, such 
modification will remain in effect until rescinded by OPM.



Sec. 2132.772  Contract clause.

    The clause at 2152.232-71 shall be inserted in all FEGLI Program 
contracts.

                  Subpart 2132.8--Assignment of Claims



Sec. 2132.806  Contract clause.

    The clause set forth in 2152.232-72 shall be inserted in all FEGLI 
Program contracts.

               PART 2133--PROTESTS, DISPUTES, AND APPEALS

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

                  Subpart 2133.2--Disputes and Appeals



Sec. 2133.270  Designation of Board of Contract Appeals.

    The Armed Services Board of Contract Appeals [ASBCA] serves as the 
board of contract appeals for the FEGLI Program. The rules of procedure 
followed in a dispute shall be those prescribed by the ASBCA.

[58 FR 40379, July 28, 1993]

[[Page 578]]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

                     PART 2137--SERVICE CONTRACTING

               Subpart 2137.1--Service Contracts--General

Sec.

Sec. 2137.102  Policy.

Sec. 2137.110  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

               Subpart 2137.1--Service Contracts--General



Sec. 2137.102  Policy.

    (a) The services under this contract are of vital interest to the 
Government and must be continued without interruption in the event the 
contract is terminated.
    (b) The contractor shall be reimbursed for all reasonable phase-in 
and phase-out costs (i.e., costs incurred within the agreed upon period 
after contract termination that result from phase-in and phase-out 
operations). The contractor also shall receive a risk or service charge 
for the full period after contract termination during which services are 
continued, not to exceed a pro rata portion of the risk or service 
charge for the final contract year. The amount of risk or service charge 
shall be based upon the accurate and timely processing of benefit 
claims, the volume and validity of complaints received by OPM, the 
timeliness and adequacy of reports on operations, and responsiveness to 
OPM offices, enrollees, beneficiaries, and Congress.



Sec. 2137.110  Contract clause.

    The clause at 2152.237-70 shall be inserted in all FEGLI Program 
contracts in lieu of the clause at 52.237-3 that is prescribed by FAR 
37.110(c).

[[Page 579]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                    PART 2143--CONTRACT MODIFICATIONS

                         Subpart 2143.1--General

Sec.

Sec. 2143.101  Definitions.

                      Subpart 2143.2--Change Orders


Sec. 2143.205  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

                         Subpart 2143.1--General



Sec. 2143.101  Definitions.

    The effective date of a FEGLI contract modification is as defined in 
FAR 43.101, except to the extent that the definition conflicts with 
LIFAR 2101.370.

                      Subpart 2143.2--Change Orders



Sec. 2143.205  Contract clause.

    The clause at 2152.243-70 shall be inserted in all FEGLI Program 
contracts in lieu of the clauses in FAR 52.243-1 that are prescribed by 
FAR 43.205(a).

            PART 2144--SUBCONTRACTING POLICIES AND PROCEDURES

                         Subpart 2144.1--General

Sec.

Sec. 2144.102  Policy.

                 Subpart 2144.2--Consent to Subcontracts


Sec. 2144.204  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

                         Subpart 2144.1--General



Sec. 2144.102  Policy.

    For all FEGLI Program contracts, advance approval shall be required 
on subcontracts or modifications to subcontracts when the cost of that 
portion of the subcontract that is charged the FEGLI Program contract 
exceeds $200,000, but only if more than 25 percent of the subcontract 
cost is charged to the FEGLI Program contract.

                 Subpart 2144.2--Consent to Subcontracts



Sec. 2144.204  Contract clause.

    The clause set forth at 2152.244-70 shall be inserted in all FEGLI 
Program contracts.

                      PART 2146--QUALITY ASSURANCE

              Subpart 2146.2--Contract Quality Requirements

Sec.

Sec. 2146.201  General.

Sec. 2146.270  FEGLI Program quality assurance requirements.

Sec. 2146.270-1  Contract clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.

              Subpart 2146.2--Contract Quality Requirements



Sec. 2146.201  General.

    (a) This part prescribes policies and procedures to ensure that 
services acquired under the FEGLI Program contract conform to the 
contract's quality requirements.
    (b) OPM shall evaluate the contractor's system of internal controls 
under the quality assurance program required by 2146.270 prior to each 
contract year and will acknowledge in writing whether or not the system 
is consistent with the requirements set forth in this Subpart. After the 
initial review, each annual review may be limited to changes in the 
contractor's internal control guidelines. However, a limited review does 
not diminish the contractor's obligation to apply the full internal 
control system.

[[Page 580]]



Sec. 2146.270  FEGLI Program quality assurance requirements.

    (a) The contractor shall develop and apply a quality assurance 
program specifying procedures for assuring contract quality, as directed 
by the contracting officer. At a minimum, the program should include 
procedures to address:
    (1) Accuracy of payments and recovery of overpayments;
    (2) Timeliness of payments to beneficiaries;
    (3) Quality of services and responsiveness to beneficiaries;
    (4) Quality of service and responsiveness to OPM; and
    (5) Detection and recovery of fraudulent claims.
    (b) The contractor shall prepare overpayment recovery guidelines to 
include a system of internal control for approval annually by the 
contracting officer. The contracting officer may withdraw such approval 
with 90 days' notice of prospective withdrawal.
    (c) The contracting officer may order the correction of a deficiency 
or a modification in the contractor's services and/or quality assurance 
program. The contractor shall take the necessary action promptly to 
implement the contracting officer's order. If the contracting officer 
orders the correction of a deficiency or a modification of the 
contractor's services and/or quality assurance program pursuant to this 
paragraph after the contract year has begun, the costs incurred in 
correcting the deficiency or making the modification will not be 
considered to the contractor's detriment in the cost control factor of 
the service charge [if applicable] for the following contract year. 
However, if there is a deficiency, the deficiency itself may be taken 
into consideration.



Sec. 2146.270-1  Contract clause.

    The clause at 2152.246-70 shall be inserted in all FEGLI Program 
contracts.

                   PART 2149--TERMINATION OF CONTRACTS

Sec.

Sec. 2149.002  Applicability.

              Subpart 2149.5--Contract Termination Clauses


Sec. 2149.505  Other termination clauses.

Sec. 2149.505-70  FEGLI Program contract termination clause.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 58 FR 40380, July 28, 1993, unless otherwise noted.



Sec. 2149.002  Applicability.

    (a) Termination. (1) Termination of FEGLI Program contracts is 
controlled by 5 U.S.C. 8709(c) and this chapter. The procedures for 
termination of FEGLI Program contracts shall be those contained in FAR 
part 49. For the purpose of this part, terminate means to 
``discontinue'' as used in 5 U.S.C. 8709(c).
    (2) A life insurance contract entered into by OPM may be terminated 
by OPM at any time for default by the contractor. A life insurance 
contract entered into by OPM may be terminated at the end of the 31st 
day after default for nonpayment by OPM [see 2152.232-70, Payments].

[[Page 581]]

    (3) A life insurance contract entered into by OPM may be terminated 
for convenience of the Government 60 days after the contractor's receipt 
of OPM's notice to terminate.
    (4) The contractor may terminate its contract with OPM at the end of 
any policy year when notice of intent to terminate is given to OPM in 
writing at least 60 days prior to the end of the policy year (i.e., no 
later than July 31).
    (b) Continuation of services. The services under this contract are 
of vital interest to the Government and must be continued without 
interruption in the event the contract is terminated. Consequently, the 
contract termination procedures contained in this paragraph must be used 
in conjunction with 2137.102, 2137.110, and the provisions of the 
``Continuity of Services'' clause at 2152.237-70.
    (c) Settlement. The procedures for settlement of contracts after 
they are terminated shall be those contained in FAR Part 49.

              Subpart 2149.5--Contract Termination Clauses



Sec. 2149.505  Other termination clauses.



Sec. 2149.505-70  FEGLI Program contract termination clause.

    The clause in 2152.249-70 shall be inserted in all FEGLI Program 
contracts.

[[Page 582]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 2152--PRECONTRACT PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 2152.070  Applicable clauses.

             Subpart 2152.2--Text of Provisions and Clauses


Sec. 2152.203-70  Misleading, deceptive, or unfair advertising.

Sec. 2152.209-70  Certification regarding debarment, suspension, 
          proposed debarment and other responsibility matters during 
          negotiations.

Sec. 2152.209-71  Certification regarding debarment, suspension, 
          proposed debarment and other responsibility matters.

Sec. 2152.210-70  Investment income.

Sec. 2152.210-71  Notice of significant events.

Sec. 2152.215-70  Contractor records retention.

Sec. 2152.216-70  Fixed price with limited cost redetermination--risk 
          charge.

Sec. 2152.216-71  Fixed price with limited cost redetermination--service 
          charge.

Sec. 2152.224-70  Confidentiality of records.

Sec. 2152.231-70  Accounting and allowable cost.

Sec. 2152.232-70  Payments.

Sec. 2152.232-71  Non-commingling of FEGLI Program funds.

Sec. 2152.232-72  Approval for assignment of claims.

Sec. 2152.237-70  Continuity of services.

Sec. 2152.243-70  Changes.

Sec. 2152.244-70  Subcontracts.

Sec. 2152.246-70  Quality assurance requirements.

Sec. 2152.249-70  Renewal and termination.

               Subpart 2152.3--Provision and Clause Matrix


Sec. 2152.370  Use of the matrix.

    Authority: 5 U.S.C. 8716; 40 U.S.C. 486(c), 48 CFR 1.301.

    Source: 58 FR 40381, July 28, 1993, unless otherwise noted.



Sec. 2152.070  Applicable clauses.

    The clauses of FAR subpart 52.2 specified below shall be applicable 
to FEGLI Program contracts. The most recent edition of the clause in the 
FAR shall be applied unless otherwise provided in the contract.

                        Section and Clause Title


Sec. 52.202-1  Definitions

Sec. 52.203-1  Officials Not to Benefit

Sec. 52.203-3  Gratuities

Sec. 52.203-5  Covenant Against Contingent Fees

Sec. 52.203-6  Restrictions on Subcontractor Sales to the Government

Sec. 52.203-7  Anti-Kickback Procedures

Sec. 52.203-9  Requirement for Certificate of Procurement Integrity--
          Modification

Sec. 52.203-10  Price or Fee Adjustment for Illegal or Improper Activity

Sec. 52.203-12  Limitation on Payments to Influence Certain Federal 
          Transactions

Sec. 52.209-6  Protecting the Government's Interest When Subcontracting 
          With Contractors Debarred, Suspended, or Proposed for 
          Debarment

Sec. 52.215-1  Examination of Records by Comptroller General

Sec. 52.215-2  Audit--Negotiation

Sec. 52.215-22  Price Reduction for Defective Cost or Pricing Data

Sec. 52.215-24  Subcontractor Cost or Pricing Data

Sec. 52.215-27  Termination of Defined Benefit Pension Plans

Sec. 52.215-30  Facilities Capital Cost of Money

Sec. 52.215-31  Waiver of Facilities Capital Cost of Money

Sec. 52.215-39  Reversion or Adjustment of Plans for Postretirement 
          Benefits (PRB) Other Than Pensions

Sec. 52.219-8  Utilization of Small Business Concerns and Small 
          Disadvantaged Business Concerns

Sec. 52.219-13  Utilization of Women-Owned Small Businesses

Sec. 52.220-3  Utilization of Labor Surplus Area Concerns

Sec. 52.222-1  Notice to the Government of Labor Disputes

Sec. 52.222-3  Convict Labor

Sec. 52.222-4  Contract Work Hours and Safety Standards Act--Overtime 
          Compensation-General

Sec. 52.222-21  Certification of NonSegregated Facilities

Sec. 52.222-22  Previous Contracts and Compliance Reports

Sec. 52.222-25  Affirmative Action Compliance

Sec. 52.222-26  Equal Opportunity

Sec. 52.222-28  Equal Opportunity Preaward Clearance of Subcontracts

Sec. 52.222-29  Notification of Visa Denial

Sec. 52.222-35  Affirmative Action for Special Disabled and Vietnam Era 
          Veterans

Sec. 52.222-36  Affirmative Action for Handicapped Workers

Sec. 52.222-37  Employment Reports on Special Disabled Veterans and 
          Veterans of the Vietnam Era

Sec. 52.222-41  Service Contract Act of 1965, as Amended

Sec. 52.223-2  Clean Air and Water

Sec. 52.223-6  Drug-Free Workplace

Sec. 52.227-1  Authorization and Consent

Sec. 52.227-2  Notice and Assistance

[[Page 583]]


Sec. 52.232-9  Limitation on Withholding of Payments

Sec. 52.232-17  Interest

Sec. 52.232-23  Assignment of Claims

Sec. 52.232-28  Electronic Funds Transfer Payment Method

Sec. 52.233-1  Disputes (Alternate I)

Sec. 52.242-1  Notice of Intent to Disallow Costs

Sec. 52.242-13  Bankruptcy

Sec. 52.244-5  Competition in Subcontracting

Sec. 52.245-2  Government Property (Fixed-Price Contracts)

Sec. 52.246-4  Inspection of Services--Fixed Price

Sec. 52.246-25  Limitation of Liability--Services

Sec. 52.247-63  Preference for U.S.-Flag Air Carriers

Sec. 52.249-2  Termination for Convenience of the Government (Fixed-
          Price)

Sec. 52.249-8  Default (Fixed Price Supply and Service)

Sec. 52.251-1  Government Supply Sources

Sec. 52.252-4  Alterations in Contract

Sec. 52.252-6  Authorized Deviations in Clauses

             Subpart 2152.2--Text of Provisions and Clauses



Sec. 2152.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 2103.571, insert the following clause:

         Misleading, Deceptive, or Unfair Advertising (OCT 1993)

    The Contractor agrees that any advertising material authorized and 
released by the Contractor which mentions the FEGLI Program shall be 
truthful and not misleading, and shall present an accurate statement of 
FEGLI Program benefits. The Contractor is prohibited from making 
incomplete, incorrect comparisons or using disparaging or minimizing 
techniques to compare its other products or services to the benefits of 
the FEGLI Program. The Contractor agrees to use its best efforts to 
assure that its agents are aware of and abide by this provision.
    The Contractor agrees to incorporate this clause in all subcontracts 
as defined at LIFAR 2102.101.

                             (End of clause)



Sec. 2152.209-70  Certification regarding debarment, suspension, 
          proposed debarment and other responsibility matters during 
          negotiations.

    As prescribed in 2109.409(a), the contracting officer may require a 
potential contractor to provide the following certification:

 Certification Regarding Debarment, Suspension, Proposed Debarment, and 
                 Other Responsibility Matters (OCT 1993)

    (a)(1) The undersigned certifies, to the best of its knowledge and 
belief, that--
    (i) The undersigned and/or any of its Principals--
    (A) Are (  ) are not (  ) presently debarred, suspended, proposed 
for debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (B) Have (  ) have not (  ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (C) Are (  ) are not (  ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of any of the offenses enumerated in subdivision (a)(2) of this clause.
    (ii) The undersigned has (  ) has not (  ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (2) ``Principals,'' for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the undersigned subject to 
prosecution under section 1001, title 18, United States Code.
    (b) The undersigned shall provide immediate written notice to the 
Contracting Officer if, at any time prior to the contract award, the 
undersigned learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances.
    (c) A certification that any of the actions mentioned in paragraph 
(a) of this provision exists will not necessarily result in the 
withholding of an award under a contract under the FEGLI Program. 
However, the certification, or the undersigned's failure to provide such 
additional information as requested by the Contracting Officer will be 
considered in connection with a determination of the undersigned's 
responsibility under LIFAR subpart 2109.70, Minimum Standards for FEGLI 
Program Contractors.

[[Page 584]]

    (d) Nothing contained in this certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by paragraph (a). The knowledge and 
information of the undersigned is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (e) The certification in (a) is a material representation of fact 
upon which reliance is placed during negotiation of a FEGLI Program 
contract. If it is later determined that the undersigned knowingly 
rendered an erroneous certification, in addition to other remedies 
available to the Government, the Contracting Officer may terminate the 
contract resulting from this certification for default.



(Name of Company)

By:_____________________________________________________________________

(Signature)

________________________________________________________________________

(Name and Title of Signatory)

Date signed:____________________________________________________________

                          (End of certificate)



Sec. 2152.209-71  Certification regarding debarment, suspension, 
          proposed debarment, and other responsibility matters.

    As prescribed in 2109.409(b), insert the following clause:

     Certification by FEGLI Program Contractor Regarding Debarment, 
 Suspension, Proposed Debarment, and Other Responsibility Matters (OCT 
                                  1993)

    (a)(1) The Contractor certifies, to the best of its knowledge and 
belief, that--
    (i) The Contractor and/or any of its Principals--
    (A) Are (  ) are not (  ) presently debarred, suspended, proposed 
for debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (B) Have (  ) have not (  ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (C) Are (  ) are not (  ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of any of the offenses enumerated in subdivision (a)(2) of this clause.
    (ii) The Contractor has (  ) has not (  ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (2) ``Principals,'' for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the Contractor subject to 
prosecution under section 1001, title 18, United States Code.
    (b) The Contractor shall provide immediate written notice to the 
Contracting Officer if, at any time, the Contractor learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (c) A Contractor's certification that any of the actions mentioned 
in the certification exists will not necessarily result in termination 
of the contract. However, the certification, or the Contractor's failure 
to provide such additional information as requested by the Contracting 
Officer will be considered in connection with a determination of the 
Contractor's responsibility under LIFAR subpart 2109.70, Minimum 
Standards for FEGLI Program Contractors.
    (d) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Contractor is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (e) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer in 
making this contract. If it is later determined that the Contractor 
knowingly rendered an erroneous certification, in addition to other 
remedies available to the Government, the Contracting Officer may 
terminate the contract for default.

                             (End of clause)



Sec. 2152.210-70  Investment income.

    As prescribed in 2110.7004(a), insert the following clause:

                      Investment Income (OCT 1993)

    (a) The Contractor shall invest and reinvest all FEGLI Program funds 
on hand until

[[Page 585]]

needed to discharge promptly the obligations incurred under the 
contract. Within the constraints of safety and liquidity of investments, 
the Contractor shall seek to maximize investment income.
    (b) All investment income earned on FEGLI Program funds shall be 
credited to the FEGLI Program.
    (c) When the Contracting Officer concludes that the Contractor 
failed to comply with paragraphs (a) or (b) of this clause, the 
Contractor shall pay to the Office of Personnel Management (OPM) the 
investment income that would have been earned, at the rate(s) specified 
in paragraph (d) of this clause, had it not been for the Contractor's 
noncompliance. ``Failed to comply with paragraphs (a) or (b)'' means: 
(1) Making any charges against the contract which are not allowable, 
allocable, or reasonable; or (2) failing to credit any income due the 
contract and/or failing to place funds on hand, including premium 
payments and payments from OPM not needed to discharge promptly the 
obligations incurred under the contract, tax refunds, credits, deposits, 
investment income earned, uncashed checks, or other amounts owed OPM in 
income-producing investments and accounts.
    (d)(1) Investment income lost as a result of unallowable, 
unallocable, or unreasonable charges against the contract shall be paid 
from the 1st day of the contract term following the contract term in 
which the unallowable charge was made and shall end on the earlier of: 
(i) The date the amounts are returned to OPM; (ii) the date specified by 
the Contracting Officer; or, (iii) the date of the Contracting Officer's 
Final Decision.
    (2) Investment income lost as a result of failure to credit income 
due the contract or failure to place funds on hand in income-producing 
investments and accounts shall be paid from the date the funds should 
have been invested or appropriate income was not credited and shall end 
on the earlier of: (i) The date the amounts are returned to OPM; (ii) 
the date specified by the Contracting Officer; or, (iii) the date of the 
Contracting Officer's Final Decision.
    (3) The Contractor shall credit to the FEGLI Program income that is 
due in accordance with this clause. All amounts payable shall bear lost 
investment income compounded semiannually at the rate established by the 
Secretary of the Treasury as provided in section 12 of the Contract 
Disputes Act of 1978 (Pub. L. 95-563), during the periods specified in 
paragraphs (d)(1) and (d)(2).
    (4) All amounts due and unpaid after the periods specified in 
paragraphs (d)(1) and (d)(2) shall bear simple interest at the rate 
applicable for each 6-month period as fixed by the Secretary of the 
Treasury until the amount is paid [see FAR 32.614-1].

                             (End of clause)



Sec. 2152.210-71  Notice of significant events.

    As prescribed in 2110.7004(b), insert the following clause:

                 Notice of Significant Events (OCT 1993)

    (a) The Contractor agrees to notify OPM of any significant event 
within 10 working days after the Contractor becomes aware of it. As used 
in this section, a ``significant event'' is any occurrence of 
anticipated occurrence that might reasonably be expected to have a 
material effect upon the Contractor's ability to meet its obligations 
under this contract, including, but not limited to, any of the 
following:
    (1) Disposal of 25 percent or more of the Contractor's assets within 
a six-month period;
    (2) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Contractor's obligations under this contract;
    (3) Loss of 20 percent or more of FEGLI Program reinsurers in a 
policy year;
    (4) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;
    (5) The withdrawal of, or notice of intent to withdraw, by any 
State, its license to do business or any other change of status under 
Federal or State law;
    (6) The Contractor's default on a loan or other financial 
obligation;
    (7) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Contractor's facilities or facilities used by the Contractor in the 
performance of the contract;
    (8) Any change in its charter, constitution, or by-laws which 
affects any provision of this contract or the Contractor's participation 
in the Federal Employees' Group Life Insurance Program;
    (9) Any significant changes in policies and procedures or 
interpretations of the contract which would affect the benefits payable 
under the contract or the costs charged to the contract;
    (10) Any fraud, embezzlement or misappropriation of FEGLI Program 
funds; or
    (11) Any written exceptions, reservations or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Contractor to provide an opinion on the annual 
accounting statements required by OPM for the FEGLI Program.
    (b) Upon learning of a significant event, OPM may institute action, 
in proportion to the seriousness of the event, to protect the

[[Page 586]]

interest of insureds, including, but not limited to--
    (1) Directing the Contractor to take corrective action;
    (2) Making a downward adjustment to the weight in the ``Contractor 
Performance'' factor of the service charge; or,
    (3) Withholding payments of the service charge.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, OPM will notify the Contractor and offer an opportunity to 
respond.
    (d) The Contractor agrees to insert this clause in any subcontract 
or subcontract modification if the amount of the subcontract or 
modification that is charged to the FEGLI Program exceeds $200,000, but 
only if more than 25 percent of the subcontract cost is charged to the 
FEGLI contract.

                             (End of clause)



Sec. 2152.215-70  Contractor records retention.

    As prescribed in 2115.106-270, insert the following clause:

                 Contractor Records Retention (OCT 1993)

    Notwithstanding the provisions of FAR 52.215-2(d), ``Audit-
Negotiation,'' the Contractor will retain and make available all records 
applicable to a contract term that support the annual statement of 
operations for a period of 5 years after the end of the contract term to 
which the records relate. Individual enrollee and/or beneficiary claim 
records shall be maintained for 10 years after the end of the policy 
year to which the claim records relate.

                             (End of clause)



Sec. 2152.216-70  Fixed price with limited cost redetermination--risk 
          charge.

    As prescribed in 2116.270-1(a), insert the following clause when a 
risk charge is negotiated:

 Fixed Price With Limited Cost Redetermination Plus Fixed Fee Contract--
                         Risk Charge (OCT 1993)

    (a) This is a fixed price with limited cost redetermination plus 
fixed fee contract, with the fixed fee in the form of a risk charge.
    (b) OPM shall pay the Contractor the risk charge specified in 
Appendix ------ for the risk assumed in performing this contract.
    (End of clause)



Sec. 2152.216-71  Fixed price with limited cost redetermination--service 
          charge.

    As prescribed in 2116.270-1(b), insert the following clause when a 
service charge is negotiated:

 Fixed Price With Limited Cost Redetermination Plus Fixed Fee Contract--
                        Service Charge (OCT 1993)

    (a) This is a fixed price with limited cost redetermination plus 
fixed fee contract, with the fixed fee in the form of a service charge.
    (b) OPM shall pay the Contractor the service charge specified in 
Appendix ------.

                             (End of clause)



Sec. 2152.224-70  Confidentiality of records.

    As prescribed in 2124.104-70, insert the following clause:

                  Confidentiality of Records (OCT 1993)

    (a) The Contractor shall use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published annually in the Federal Register as a part of OPM's notice 
of systems of records.
    (b) The Contractor shall also hold all medical records, evidence of 
insurability for insurance coverage, designations of beneficiaries, 
amounts of insurance, and information relating thereto, of the insured 
and family members confidential except for disclosure as follows:
    (1) as may be reasonably necessary for the administration of this 
contract;
    (2) as authorized by the insured or his or her estate;
    (3) as necessary to permit Government officials having authority to 
investigate and prosecute alleged civil or criminal actions; and
    (4) as necessary to audit the contract.

                             (End of clause)



Sec. 2152.231-70  Accounting and allowable cost.

    As prescribed in 2131.270, insert the following clause:

                Accounting and Allowable Cost (OCT 1993)

    (a) Annual Accounting Statement. (1) The Contractor shall prepare 
annually an accounting statement summarizing the financial results of 
the FEGLI Program for the previous contract year. This statement shall 
be prepared in accordance with the requirements issued annually by OPM 
and shall be due to OPM in accordance with a date established by those 
requirements.

[[Page 587]]

    (2) The Contractor shall have the most recent financial statement 
for the FEGLI Program audited by an accounting firm that ascribes to the 
standards of the American Institute of Certified Public Accountants. The 
report shall be submitted to OPM along with the annual accounting 
statement.
    (3) Based on the results of either the independent audit or a 
Government audit, the annual accounting statements for the FEGLI Program 
may be (i) adjusted by amounts found not to constitute properly 
allocable or allowable costs; or (ii) adjusted for prior overpayments or 
underpayments.
    (b) Definition of costs. (1) The allowable costs chargeable to the 
contract for a policy year shall be the actual, necessary, reasonable, 
and allocable amounts incurred with proper justification and accounting 
support, determined in accordance with Subpart 31.2 of the Federal 
Acquisition Regulation (FAR) and Subpart 2131.2 of the Federal Employees 
Group Life Insurance Program Acquisition Regulation (LIFAR) applicable 
on October 1 of each year, and the terms of this contract.
    (2) In the absence of specific contract terms to the contrary, 
contract costs shall be classified in accordance with the following 
criteria:
    (i) Benefits. Claims costs consist of payments made and costs 
incurred for life insurance and accidental death and dismemberment 
insurance on behalf of FEGLI Program subscribers, including interest 
paid on delayed claims, less any overpayments (subject to the terms of 
2131.205-3), refunds, or other credits received.
    (ii) Administrative expenses. Administrative expenses consist of all 
allocable, allowable, and reasonable expenses incurred in the 
adjudication of beneficiary claims or incurred in the Contractor's 
overall operation of the business. Unless otherwise provided in the 
contract, FAR, or LIFAR, administrative expenses include, but are not 
limited to, taxes, insurance and reinsurance premiums, the cost of 
investigation and settlement of policy claims, the cost of maintaining 
files regarding payment of claims, and legal expenses incurred in the 
litigation of benefit payments. Administrative expenses exclude the 
expenses related to investment income in paragraph (b)(2)(iii) of this 
clause.
    (iii) Investment income. Investment income represents the amount 
earned by the Contractor after deducting reasonable, necessary, and 
properly allocable investment expenses as a result of investing of FEGLI 
Program funds. The direct or allocable indirect expenses incurred with 
respect to the investment of Program funds, such as brokerage fees, are 
netted against investment income earned rather than as part of 
administrative expenses.
    (c) Certification of Annual Accounting Statement. (1) The Contractor 
shall certify the annual accounting statement in the form set forth in 
paragraph (c)(2) of this clause. The certificate shall be signed by the 
chief executive officer for the Contractor's FEGLI Program operations 
and the chief financial officer for the Contractor's FEGLI Program 
operations and shall be returned with the annual accounting statement.
    (2) The certification required shall be in the following form:

              Certification of Annual Accounting Statement

    This is to certify that I have reviewed this accounting statement 
and, to the best of my knowledge and belief, attest that:
    1. The statement was prepared in conformity with the guidelines 
issued by the Office of Personnel Management and fairly presents the 
financial results of this policy year in conformity with those 
guidelines;
    2. The costs included in the statement are allowable and allocable 
in accordance with the terms of the contract and with the cost 
principles of the Federal Employees' Group Life Insurance Program 
Acquisition Regulation (LIFAR) and the Federal Acquisition Regulation 
(FAR);
    3. Income, overpayments, refunds, and other credits made or owed in 
accordance with the terms of the contract and applicable cost principles 
have been included in the statement.

Contractor Name:________________________________________________________

(Chief Executive Officer for FEGLI Operations)

Date signed:____________________________________________________________

(Chief Financial Officer for FEGLI Operations)

Date signed:____________________________________________________________

(Type or print and sign)
(End of Certificate)

                             (End of clause)



Sec. 2152.232-70  Payments.

    As prescribed in 2132.171, insert the following clause:

                           Payments (OCT 1993)

    (a) OPM will provide to the Contractor, in full settlement of its 
obligations under this contract, subject to adjustment based on actual 
claims and administrative cost or for Contractor fraud, a fixed premium 
once per month on the first business day of the month. The premium will 
be determined by an estimate of costs for the contract year as provided 
in Section ------, and will be redetermined annually. In addition, an 
annual reconciliation of premiums and actual costs will be performed, 
and additional payment by OPM or reimbursement by the Contractor will be 
paid as necessary.

[[Page 588]]

    (b) If OPM fails to provide the premium in full by the due date, a 
grace period of 31 days shall be granted to OPM for providing any 
premium due, unless OPM has previously given written notice to the 
Contractor that the contract is to be discontinued on the premium due 
date. The contract shall continue in force during the grace period.
    (c) If OPM fails to provide any premiums within the grace period, 
the contract shall be discontinued at the end of the 31st day of the 
grace period, unless the Contractor and OPM agree to continue the 
contract. OPM shall be liable to the Contractor for all premiums then 
due and unpaid. If during the grace period OPM presents written notice 
to the Contractor that the contract is to be discontinued before the 
expiration of the grace period, the contract shall be discontinued the 
later of the date of receipt of such written notice by the Contractor or 
the date specified by OPM for discontinuance. OPM shall be liable to the 
Contractor for all premiums then due and unpaid.
    (d) The specific premium rates, charges, allowances and limitations 
applicable to the contract are set forth in 5 CFR Parts 870 through 874, 
48 CFR chapter 1, LIFAR, and this contract.
    (e) In accordance with FAR 52.243-2, if a change is made to the 
contract that increases or decreases the cost of performance of the work 
under this contract, the Contracting Officer shall make an equitable 
adjustment to the estimate on which the monthly premiums are based.
    (f) In the event this contract is terminated in accordance with 
LIFAR Part 2149, the special contingency reserve held by the Contractor 
shall be available to pay the necessary and proper charges against this 
contract after other Program assets held by the Contractor are 
exhausted.

                             (End of clause)



Sec. 2152.232-71  Non-commingling of FEGLI Program funds.

    As prescribed in 2132.772, insert the following clause:

                   Non-Commingling of Funds (OCT 1993)

    (a) FEGLI Program funds shall be maintained in such a manner as to 
be separately identifiable from other assets of the Contractor. Cash and 
investment balances reported on the FEGLI Program Annual Accounting 
Statement must be supported by the Contractor's books and records.
    (b) The Contractor may request a modification of this requirement 
from the Contracting Officer. The modification shall be requested in 
advance and the Contractor shall demonstrate that accounting techniques 
have been established that will clearly measure FEGLI Program cash and 
investment income (i.e., subsidiary ledgers). Reconciliations between 
amounts reported and actual amounts shown in accounting records shall be 
provided as supporting schedules to the Annual Accounting Statements.

                             (End of clause)



Sec. 2152.232-72  Approval for assignment of claims.

    As prescribed in 2132.806, insert the following clause:

              Approval For Assignment of Claims (OCT 1993)

    (a) The Contractor shall not make any assignment of FEGLI Program 
funds under the Assignment of Claims Act without the prior written 
approval of the Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment of FEGLI Program funds shall 
be in force only for a period of 1 year from the date of the Contracting 
Officer's approval. However, assignments may be renewed upon their 
expiration.

                             (End of clause)



Sec. 2152.237-70  Continuity of services.

    As prescribed in 2137.110, insert the following clause:

                    Continuity of Service (OCT 1993)

    (a) The Contractor recognizes that the services under this contract 
are vital to the Government and must be continued without interruption 
and that, upon contract expiration or termination, including termination 
by the Contractor, a successor, either the Government or another 
contractor, may continue them. The Contractor agrees to (1) furnish 
phase-in training and (2) exercise its best efforts and cooperation to 
effect an orderly and efficient transition to a successor.
    (b) The Contractor shall, upon the Contracting Officer's written 
notice, (1) furnish phase-in and phase-out services for up to 10 months 
after this contract expires and (2) negotiate in good faith a plan with 
a successor to determine the nature and extent of phase-in and phase-out 
services required. The plan shall specify a training program and a date 
for transferring responsibilities for each division of work described in 
the plan, and shall be subject to the Contracting Officer's approval. 
The Contractor shall provide sufficient experienced personnel during the 
phase-in and phase-out period to ensure that the services called for by 
this contract are maintained at the required level of proficiency.
    (c) The Contractor shall allow as many personnel as practicable to 
remain on the job

[[Page 589]]

to help the successor maintain the continuity and consistency of the 
services required by this contract. The Contractor also shall disclose 
necessary personnel records and allow the successor to conduct onsite 
interviews with these employees. If selected employees are agreeable to 
the change, the Contractor shall release them at a mutually agreeable 
date and negotiate transfer of their earned fringe benefits to the 
successor.
    (d) The Contractor shall be reimbursed for all reasonable phase-in, 
phase-out costs (i.e., costs incurred within the agreed period after 
contract termination that result from phase-in and phase-out operations) 
and a risk or service charge not to exceed a pro rata portion of the 
risk or service charge under this contract. The amount of profit shall 
be based upon the accurate and timely processing of benefit claims, the 
volume and validity of complaints received by OPM, the timeliness and 
adequacy of reports on operations, and responsiveness to OPM offices, 
enrollees, beneficiaries, and Congress. In setting the final profit 
figure, obstacles overcome by the Contractor during the phase-in and 
phase-out period will be taken into consideration.

                             (End of clause)



Sec. 2152.243-70  Changes.

    As prescribed in 2143.205, insert the following clause:

                           Changes (OCT 1993)

    (a) Except as provided in paragraph (f) of this clause, the 
Contracting Officer may at any time, by written order, and without 
notice to the sureties, if any, make changes within the general scope of 
this contract in any one or more of the following:
    (1) Description of services to be performed.
    (2) Time of performance (i.e.: hours of the day, days of the week, 
etc.).
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, or the Contractor's liability under this contract, 
whether or not changed by the order, the Contracting Officer shall make 
an equitable adjustment in the contract price, the delivery schedule, or 
both, and shall modify the contract.
    (c) The Contractor must assert its right to an adjustment under this 
clause with 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.
    (d) If the Contractor's proposal includes the cost of property made 
obsolete or excess by the change, the Contracting Officer shall have the 
right to prescribe the manner of the disposition of the property.
    (e) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Contractor from proceeding with the contract as changed.
    (f) The Contracting Officer shall not make any changes pursuant to 
paragraph (a) of this clause to conform this contract to any amendment 
in the LIFAR before the effective date of the amendment as provided for 
in LIFAR 2101.370.

                             (End of clause)



Sec. 2152.244-70  Subcontracts.

    As prescribed by 2144.204, insert the following clause:

                         Subcontracts (OCT 1993)

    (a) The Contractor shall notify the Contracting Officer reasonably 
in advance of entering into any subcontract or subcontract modification, 
or as otherwise specified by this contract, when the cost of that 
portion of the subcontract that is charged the FEGLI Program contract 
exceeds $200,000 and more than 25 percent of the subcontract cost is 
charged to the FEGLI Program contract.
    (b) The advance notification required by paragraph (a) of this 
clause shall include the following information:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontract and an explanation of 
why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the Contractor's cost or 
price analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and Certificate of Current Cost or Pricing Data, if 
required by other contract provisions.
    (6) The subcontractor's Disclosure Statement or Certificate relating 
to Cost Accounting Standards when such data are required by other 
provisions of this contract; and
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) The reason cost or pricing data were or were not required;
    (iv) The extent, if any, to which the Contractor did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;

[[Page 590]]

    (v) The extent to which it was recognized in the negotiation that 
the subcontractor's cost or pricing data were not accurate, complete, or 
current; the action taken by the Contractor and the subcontractor; and 
the effect of any such defective data on the total price negotiated;
    (vi) The reasons for any significant difference between the 
Contractor's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan 
when incentives are used. The explanation shall identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The Contractor shall obtain the Contracting Officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
Officer may ratify in writing any such subcontract. Ratification shall 
constitute the consent of the Contracting Officer.
    (d) The Contracting Officer may waive the requirement for advance 
notification and consent required by paragraph (a), (b), and (c) of this 
clause where the Contractor and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting Officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
plan's rates that were reviewed and approved by the Contracting Officer 
during negotiations of the contract or contract renewal.
    (e) Unless the consent or approval specifically provides otherwise, 
consent by the Contracting Office to any subcontract shall not 
constitute a determination (1) of the acceptability of any subcontract 
terms or conditions; (2) of the allowability of any cost under this 
contract; or (3) to relieve the Contractor of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract shall provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts shall not exceed the fee 
limitations in FAR 15.903(d). Any profit or fee payable under a 
subcontract shall be in accordance with the provisions of Section ------
, Service Charge.
    (g) The Contractor shall give the Contracting Officer immediate 
written notice of any action or suit filed and prompt notice of any 
claim made against the Contractor by any subcontractor or vendor that, 
in the opinion of the Contractor, may result in litigation related in 
any way to this contract with respect to which the Contractor may be 
entitled to reimbursement from the Government.

                             (End of clause)



Sec. 2152.246-70  Quality assurance requirements.

    As prescribed by 2146.270-1 insert the following clause:

                Quality Assurance Requirements (OCT 1993)

    (a) The Contractor shall develop and apply a quality assurance 
program as directed by the Contracting Officer pursuant to LIFAR 
2146.270.
    (b) The Contractor shall keep complete records of its quality 
assurance procedures and the results of their implementation and make 
them available to the Government during contract performance and for as 
long afterwards as the contract requires.
    (c) The Contracting Officer or his or her representative has the 
right to inspect and test all services called for by the contract, to 
the extent practicable, at all times and places during the term of the 
contract and for as long afterward as the contract requires. The 
Contracting Officer or his or her representative shall perform any 
inspections and tests in a manner that will not unduly delay the work.

                             (End of clause)



Sec. 2152.249-70  Renewal and termination.

    As prescribed in 2149.505-70, insert the following clause:

                   Renewal and Termination (OCT 1993)

    (a) This contract renews automatically each October 1st, unless 
written notice of termination is given by the Contractor not less than 
60 calendar days before the renewal date.
    (b) This contract may be terminated by OPM at any time for default 
by the Contractor. This contract terminates at the end of the 31st day 
after default for nonpayment by the Government, unless the Contractor 
and OPM agree to continue the contract.
    (c) This contract may be terminated for convenience of the 
Government 60 days after the Contractor's receipt of OPM's written 
notice of termination.
    (d) Upon termination of the contract, the Contractor agrees to 
assist OPM with an orderly and efficient transition to a successor in 
accordance with LIFAR 2137.102, 2137.110, and the provisions of the 
``Continuity of Services'' clause at 2152.237-70.
    (e) After receipt of a termination notice, the prime Contractor 
shall, unless directed otherwise by the Contracting Officer, terminate 
all subcontracts to the extent that they

[[Page 591]]

relate to the performance of the FEGLI Program contract. The failure of 
the prime Contractor to include an appropriate termination clause in any 
subcontract, or to exercise the clause rights, shall not affect the 
Contracting Officer's right to require the termination of the 
subcontract; or increase the obligation of the Government beyond what it 
would have been if the subcontract had contained an appropriate clause.

                             (End of clause)

               Subpart 2152.3--Provision and Clause Matrix



Sec. 2152.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and LIFAR clauses to be 
used with the FEGLI Program contract. The clauses are to be incorporated 
in the contract in full text.
    (b) Certain contract clauses are mandatory for FEGLI Program 
contracts. Other clauses are to be used only when made applicable by 
pertinent sections of the FAR or LIFAR. An ``M'' in the ``Use Status'' 
column indicates that the clause is mandatory. An ``A'' indicates that 
the clause is to be used only when the applicable conditions are met.

                                           FEGLI Program Clause Matrix
----------------------------------------------------------------------------------------------------------------
        Clause No.                 Text reference                        Title                     Use status
----------------------------------------------------------------------------------------------------------------
FAR 52.202-1                FAR 2.2                       Definitions........................  M
FAR 52.203-1                FAR 3.102-2                   Officials Not to Benefit...........  M
FAR 52.203-3                FAR 3.202                     Gratuities.........................  M
FAR 52.203-5                FAR 3.404(c)                  Covenant Against Contingent Fees...  M
FAR 52.203-6                FAR 3.503-2                   Restrictions of Subcontractor Sales  M
                                                           to the Government.
FAR 52.203-7                FAR 3.502-3                   Anti-Kickback Procedures...........  M
FAR 52.203-9                FAR 3.104-10(b)               Requirement for Certificate of       M
                                                           Procurement Integrity--
                                                           Modification.
FAR 52.203-12               FAR 3.808                     Limitation on Payments to Influence  M
                                                           Certain Federal Transactions.
2152.203-70                 2103.571                      Misleading, Deceptive, or Unfair     M
                                                           Advertising.
FAR 52.209-6                FAR 9.409(b)                  Protecting the Government's          M
                                                           Interest When Subcontracting With
                                                           Contractors Debarred, Suspended,
                                                           or Proposed for Debarment.
2152.209-71                 2109.409(b)                   Certification Regarding Debarment,   M
                                                           Suspension, Proposed Debarment,
                                                           and Other Responsibility Matters.
2152.210-70                 2110.7004(a)                  Investment Income..................  M
2152.210-71                 2110.7004(b)                  Notice of Significant Events.......  M
FAR 52.215-1                FAR 15.106-1(b)               Examination of Records by            M
                                                           Comptroller General.
FAR 52.215-2                FAR 15.106-2(b)               Audit--Negotiation.................  M
FAR 52.215-22               FAR 15.804-8(a)               Price Reduction for Defective Cost   M
                                                           or Pricing Data.
FAR 52.215-24               FAR 15.804-8(c)               Subcontractor Cost or Pricing Data.  M
FAR 52.215-27               FAR 15.804-8(e)               Termination of Defined Benefit       M
                                                           Pension Plans.
FAR 52.215-30               FAR 15.904                    Facilities Capital Cost of Money...  M
FAR 52.215-31               FAR 15.904                    Waiver of Facilities Capital Cost    A
                                                           of Money.
FAR 52.215-39               FAR 15.804-8(f)               Reversion or Adjustment of Plans     A
                                                           for Post-retirement Benefits (PRB)
                                                           Other Than Pensions.
2152.215-70                 2115.106-270                  Contractor Records Retention.......
2152.216-70                 2116.270-1(a)                 Fixed Price With Limited Cost        A
                                                           Redetermination--Risk Charge.
2152.216-71                 2116.270-1(b)                 Fixed Price With Limited Cost        A
                                                           Redetermination--Service Charge.
FAR 52.219-8                FAR 19.708(a)                 Utilization of Small Business        M
                                                           Concerns and Small Disadvantaged
                                                           Business Concerns.
FAR 52.219-13               FAR 19.902                    Utilization of Women-Owned Small     M
                                                           Businesses.
FAR 52.220-3                FAR 21.302(a)                 Utilization of Labor Surplus Area    M
                                                           Concerns.
FAR 52.222-1                FAR 22.103-5(a)               Notice to the Government of Labor    M
                                                           Disputes.
FAR 52.222-3                FAR 22.202                    Convict Labor......................  M
FAR 52.222-4                FAR 22.305(a)                 Contract Work Hours and Safety       M
                                                           Standards Act--Overtime
                                                           Compensation--General.
FAR 52.222-21               FAR 22.810(a)(1)              Certification of NonSegregated       M
                                                           Facilities.
FAR 52.222-22               FAR 22.810(a)(2)              Previous Contracts and Compliance    M
                                                           Reports.
FAR 52.222-25               FAR 22.810(d)                 Affirmative Action Compliance......  M
FAR 52.222-26               FAR 22.810(e)                 Equal Opportunity..................  M
FAR 52.222-28               FAR 22.810(g)                 Equal Opportunity Preaward           M
                                                           Clearance of Subcontracts.
FAR 52.222-29               FAR 22.810(h)                 Notification of Visa Denial........  A
FAR 52.222-35               FAR 22.1308(a)                Affirmative Action for Special       M
                                                           Disabled and Vietnam Era Veterans.

[[Page 592]]

 
FAR 52.222-36               FAR 22.1408(a)                Affirmative Action for Handicapped   M
                                                           Workers.
FAR 52.222-37               FAR 22.1308(b)                Employment Reports on Special        M
                                                           Disabled Veterans and Veterans of
                                                           the Vietnam Era.
FAR 52.223-2                FAR 23.105(b)                 Clean Air and Water................  A
FAR 52.223-6                FAR 23.505(c)                 Drug-Free Workplace................  M
2152.224-70                 2124.104-70                   Confidentiality of Records.........  M
FAR 52.227-1                FAR 27.201-2(a)               Authorization and Consent..........  M
FAR 52.227-2                FAR 27.202-2                  Notice and Assistance..............  A
FAR 52.228-7                FAR 28.311-2 Modification:    Insurance--Liability to Third        M
                             2128.370                      Persons.
2152.231-70                 2131.270                      Accounting and Allowable Cost......  M
FAR 52.232-9                FAR 32.111(c)(2)              Limitation on Withholding of         M
                                                           Payments (Modified).
FAR 52.232-17               FAR 32.617 Modification:      Interest...........................  M
                             2132.617
FAR 52.232-23               FAR 32.806(a)(1)              Assignment of Claims...............  A
FAR 52.232-28               FAR 32.908(d)                 Electronic Funds Transfer Payment    M
                                                           Method.
2152.232-70                 2132.171                      Payments...........................  M
2152.232-71                 2132.772                      Non-Commingling of FEGLI Program     M
                                                           Funds.
2152.232-72                 2132.806                      Approval for Assignment of Claims..  M
FAR 52.233-1                FAR 33.214                    Disputes (Alternate I).............  M
2152.237-70                 2137.110                      Continuity of Services.............  M
FAR 52.242-1                FAR 42.802                    Notice of Intent to Disallow Costs.  M
FAR 52.242-13               FAR 42.903                    Bankruptcy.........................  M
2152.243-70                 2143.205                      Changes--FEGLI Program Contract....  M
FAR 52.244-5                FAR 44.204(e)                 Competition in Subcontracting......  M
2152.244-70                 2144.204                      Subcontracts.......................  M
4FAR 52.245-2               FAR 45.106(b)(1)              Government Property (Fixed-Price     M
                                                           Contracts).
FAR 52.246-4                FAR 46.304                    Inspection of Services--Fixed-Price  M
FAR 52.246-25               FAR 46.805(a)(4)              Limitation of Liability--Services..  M
2152.246-70                 2146.270-1                    Quality Assurance Requirements.....  M
FAR 52.247-63               FAR 47.405                    Preference for U.S.-Flag Air         M
                                                           Carriers.
FAR 52.249-2                FAR 49.502(b)(1)              Termination for Convenience of the   M
                                                           Government (Fixed Price).
FAR 52.249-8                FAR 49.504(a)(1)              Default (Fixed-Price Supply and      M
                                                           Service).
FAR 52.249-14               FAR 49.505(d)                 Excusable Delays...................  M
2152.249-70                 2149.505-70                   Renewal and Termination............  M
FAR 52.251-1                FAR 51.107                    Government Supply Sources..........  A
FAR 52.252-4                FAR 52.107(d)                 Alterations in Contract............  M
FAR 52.252-6                FAR 52.107(f)                 Authorized Deviations in Clauses...  M
----------------------------------------------------------------------------------------------------------------


[[Page 593]]



               CHAPTER 23--SOCIAL SECURITY ADMINISTRATION




                          (Parts 2300 to 2399)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2301            Social Security Acquisition Regulation 
                    System..................................         595

[[Page 595]]

                          SUBCHAPTER A--GENERAL

        PART 2301--SOCIAL SECURITY ACQUISITION REGULATION SYSTEM

              Subpart 2301.1--Purpose, Authority, Issuance


Sec. 2301.101  Purpose.

Sec. 2301.103  Authority.

Sec. 2301.104  Applicability.

Sec. 2301.105  Issuance.

Sec. 2301.105-1  Publication and code arrangement.

Sec. 2301.105-2  Arrangement of regulations.

    Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).

    Source: 61 FR 50738, Sept. 27, 1996, unless otherwise noted.

              Subpart 2301.1--Purpose, Authority, Issuance



Sec. 2301.101  Purpose.

    (a) The Social Security Acquisition Regulation (SSAR) is issued to 
establish uniform acquisition policies and procedures for the Social 
Security Administration (SSA) which conform to the Federal Acquisition 
Regulation (FAR) System.
    (b) The SSAR implements and supplements the FAR. (Implementing 
material expands upon or indicates the manner of compliance with related 
FAR material. Supplementing material refers to policies or procedures 
which have no corresponding counterpart in the FAR.)
    (c) The SSAR contains only formal agency policies and procedures 
which have a significant effect beyond SSA's internal operating 
procedures or which have a significant cost or administrative impact on 
contractors or offerors.



Sec. 2301.103  Authority.

    The SSAR is prescribed under the authority of 5 U.S.C. 301 and 
section 205(c) of the Federal Property and Administrative Services Act 
of 1949, as amended (40 U.S.C. 486(c)).



Sec. 2301.104  Applicability.

    The FAR and SSAR apply to all SSA acquisitions as stated in FAR 
1.104. Unless specified otherwise, the FAR and SSAR apply to 
acquisitions within and outside the United States.



Sec. 2301.105    Issuance.



Sec. 2301.105-1  Publication and code ar-rangement.

    (a) The SSAR is also published in the same forms as indicated in FAR 
1.105-1(a).
    (b) The SSAR is issued in the Code of Federal Regulations (CFR) as 
Chapter 23 of Title 48, Social Security Acquisition Regulation (SSAR). 
It may be referenced as ``48 CFR chapter 23.''



Sec. 2301.105-2  Arrangement of regulations.

    (a) General. The SSAR conforms to the FAR with respect to divisional 
arrangements; i.e., subchapters, parts, subparts, sections, subsections, 
and paragraphs.
    (b) Numbering. The FAR System of numbering permits the keying of the 
same or similar subject matter throughout Chapters 1 (FAR) and 23 (SSAR) 
of Title 48, CFR. However, SSA's system varies somewhat from that of the 
FAR numbering scheme, in the numbering to the left of the decimal point. 
Whereas the FAR only identifies the part number of 48 CFR to the left of 
the decimal point, our corresponding reference identifies the chapter as 
well. For example, the FAR paragraph corresponding to this SSAR 
paragraph is numbered 1.105-2(b) where ``1'' is the part number (may be 
one or two digits and is followed by a decimal point), ``1'' (to the 
right of the decimal point) is the subpart number, ``05'' (always two 
digits) is the section number, ``2'' is the subsection number (always 
hyphenated), and ``(b)'' is the paragraph reference. This SSAR reference 
is 2301.105-2(b) where the ``23'' is the chapter number assigned to SSA 
and the ``01'' represents the part number (part numbers will always be 
two digits for agencies implementing the FAR). The remaining numbers to 
the right of the decimal point are identical to and reflect the same 
divisions as in the FAR numbering scheme.

[[Page 596]]

    (c) References and citations. (1) Unless otherwise stated, 
references indicate parts, subparts, sections, subsections, etc., of 
this regulation, the SSAR.
    (2) This regulation shall be referred to as the Social Security 
Acquisition Regulation (SSAR). Any reference may be cited as ``SSAR'' 
followed by the appropriate number. Within the SSAR, the number alone 
will be used.
    (3) Citations of authority shall be incorporated where necessary. 
All FAR reference numbers shall be preceded by ``FAR.''

[[Page 597]]



         CHAPTER 24--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT




                          (Parts 2400 to 2499)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2401            Federal Acquisition Regulation System.......         599
2402            Definitions of words and terms..............         602
2403            Improper business practices and personal 
                    conflicts of interest...................         603
2404            Administrative matters......................         604
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2405            Publicizing contract actions................         606
2406            Competition requirements....................         606
2407            Acquisition planning........................         607
2409            Contractor qualifications...................         607
2411            Describing agency needs.....................         608
         SUBCHAPTER C--CONTRACTING METHODS AND CONTRACTING TYPES
2413            Small purchase and other simplified purchase 
                    procedures..............................         609
2414            Sealed bidding..............................         609
2415            Contracting by negotiation..................         610
2416            Types of contracts..........................         612
2417            Special contracting methods.................         612
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2419            Small business programs.....................         614
2420

[Reserved]

2422            Application of labor laws to government 
                    acquistions.............................         615
2424            Protection of privacy and freedom of 
                    information.............................         615
2425            Trade Agreements Act........................         615
2426            Other socioeconomic programs................         616

[[Page 598]]

2427            Patents, data, and copyrights...............         616
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2428            Bonds and insurance.........................         617
2429            Taxes.......................................         617
2432            Contract financing..........................         617
2433            Protests, disputes, and appeals.............         618
2434            Major system acquisitions...................         620
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2436            Construction and architect-engineer 
                    contracts...............................         621
2437            Service contracting.........................         621
2439            Acquisition of information technology.......         622
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2442            Contract adminstration......................         623
2446            Quality assurance...........................         623
2449            Termination of contracts....................         624
2451            Use of government sources by contractors....         624
                     SUBCHAPTER H--CLAUSES AND FORMS
2452            Solicitation provisions and contract clauses         625
2453            Forms.......................................         637

[[Page 599]]

                          SUBCHAPTER A--GENERAL

            PART 2401--FEDERAL ACQUISITION REGULATION SYSTEM

Sec.

Sec. 2401.000  Scope of part.

              Subpart 2401.1--Purpose, Authority, Issuance


Sec. 2401.100  Scope of subpart.

Sec. 2401.101  Purpose.

Sec. 2401.103  Authority.

Sec. 2401.104  Applicability.

Sec. 2401.105  Issuance.

Sec. 2401.105-2  Arrangement of regulations.

Sec. 2401.106  OMB approval under the Paperwork Reduction Act.

             Subpart 2401.3--Agency Acquisition Regulations


Sec. 2401.301  Policy.

Sec. 2401.302  Limitations.

                       Subpart 2401.4--Deviations


Sec. 2401.403  Individual deviations.

Sec. 2401.404  Class deviations.

     Subpart 2401.6--Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 2401.601  General.

Sec. 2401.601-70  Senior Procurement Executive.

Sec. 2401.601-71  Office of Procurement and Contracts.

Sec. 2401.602  Contracting Officers.

Sec. 2401.602-3  Ratification of unauthorized commitments.

Sec. 2401.603  Selection, appointment and termination of appointment.

Sec. 2401.603-2  Selection.

Sec. 2401.603-3  Appointment.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7697, Mar. 1, 1984, unless otherwise noted.



Sec. 2401.000  Scope of part.

    This part describes the method by which the Department of Housing 
and Urban Development (HUD) implements, supplements and deviates from 
the Federal Acquisition Regulation (FAR) through the establishment of 
the HUD Acquisition Regulation (HUDAR), which prescribes the 
Department's procurement policies and procedures under the FAR System.

              Subpart 2401.1--Purpose, Authority, Issuance



Sec. 2401.100  Scope of subpart.

    This subpart describes the HUDAR and states its relationship to the 
FAR System. This subpart also provides the explanation of the purpose 
and the authorities under which the HUDAR is issued.



Sec. 2401.101  Purpose.

    The Department of Housing and Urban Development Acquisition 
Regulation is hereby established as chapter 24 of the Federal 
Acquisition Regulation System (48 CFR chapter 24). It is issued to 
provide uniform Departmental policies and procedures for the acquisition 
of supplies, personal property and non-personal services by the 
Department's contracting activities and to make these policies and 
procedures readily available to Departmental personnel and to the 
public.



Sec. 2401.103  Authority.

    The HUDAR is prescribed by the Chief Procurement Officer under 
section 7(d) of the Department of HUD Act (42 U.S.C. 3535(d)), section 
205(c) of the Federal Property and Administrative Services Act of 1949 
(40 U.S.C. 486(c)), the Secretary's delegation effective January 19, 
1976, 41 FR 2665, and the general authorization in FAR 1.301.

[49 FR 7697, Mar. 1, 1984. Redesignated at 61 FR 19470, May 1, 1996, as 
amended at 64 FR 46094, Aug. 23, 1999]



Sec. 2401.104  Applicability.

    All acquisition of personal property and non-personal services 
(including construction) by HUD, except as may be otherwise authorized 
by law, must be accomplished in accordance with the HUDAR and the FAR.

[49 FR 7697, Mar. 1, 1984. Redesignated at 61 FR 19470, May 1, 1996]

[[Page 600]]



Sec. 2401.105  Issuance.



Sec. 2401.105-2  Arrangement of regulations.

    (a) General. Chapter 24 is divided into parts, subparts, sections, 
subsections, paragraphs and further subdivisions as necessary.
    (b) Numbering. Generally, the numbering system and part, subpart, 
and section titles used in the HUDAR conform with those used in the FAR 
or as follows:
    (1) When the HUDAR implements or deviates from a parallel part, 
subpart, section, subsection, or paragraph of the FAR, that 
implementation or deviation will be numbered and captioned where 
possible to correspond to the FAR part, subpart, section, subsection, or 
paragraph. For example, FAR subpart 1.4, Deviations, is implemented in 
HUD's acquisition regulations at subpart 2401.4, Deviations. (The ``24'' 
in the number indicates what chapter of title 48 contains the HUDAR.)
    (2) When HUD supplements material contained in the FAR, it is given 
a unique number containing the numerals ``70'' or higher. The rest of 
the number will parallel the FAR part, subpart, section, subsection, or 
paragraph it is supplementing. For example, FAR 14.407, Award, does not 
contain a provision for the steps to be taken when only one bid is 
received. The HUDAR provides this information. Since the subject matter 
supplements what is contained in FAR 14.407, the HUDAR section 
supplementing the FAR is numbered 2414.407-70.
    (3) Where material in the FAR requires no implementation or 
deviation, there is no corresponding numbering in the HUDAR. Therefore, 
there may be gaps in the HUDAR sequence of numbers where the FAR, as 
written, is applicable to the HUDAR and requires no further 
implementation.
    (c) Citation. The HUDAR will be cited in accordance with Federal 
Register standards approved for the FAR. Thus, this section when 
referred to in the HUDAR is cited as 2401.105-2(c). When this section is 
referred to formally in official documents, such as legal briefs, it 
should be cited as ``48 CFR 2401.105-2(c).'' Any section of the HUDAR 
may be formally identified by the section number, e.g., ``HUDAR 
2401.105-2.'' In the HUDAR, any reference to the FAR will be indicated 
by ``FAR'' followed by the section number, for example FAR 37.108.

[49 FR 7697, Mar. 1, 1984, as amended at 58 FR 49437, Sept. 23, 1993. 
Redesignated at 61 FR 19470, May 1, 1996, as amended at 64 FR 46094, 
Aug. 23, 1999]



Sec. 2401.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) requires 
that Federal agencies obtain approval from the Office of Management and 
Budget (OMB) before collecting information from 10 or more persons. HUD 
has received approval from OMB to collect information under the 
provisions of its Acquisition Regulation. The OMB Approval Number is 
2535-0091.

[50 FR 46575, Nov. 8, 1985. Redesignated at 61 FR 19470, May 1, 1996]

             Subpart 2401.3--Agency Acquisition Regulations



Sec. 2401.301  Policy.

    (a)(1) Implementation. The HUDAR implements and supplements the FAR. 
Implementation material is that which expands upon related FAR material. 
Supplementing material is that for which there is no counterpart in the 
FAR.



Sec. 2401.302  Limitations.

    (c) Exclusions. Certain HUD policies and procedures which come 
within the scope of this chapter are not included in the HUDAR. Not 
included is a policy or procedure of an internal nature or which is 
expected to be effective for a period of less than six months.

                       Subpart 2401.4--Deviations



Sec. 2401.403  Individual deviations.

    In individual cases, proposed deviations from the FAR or HUDAR shall 
be submitted to the Senior Procurement Executive (see 2401.601-70) for 
approval or other necessary or appropriate action. A supporting 
statement shall be submitted with the proposed deviation indicating 
briefly the nature of the deviation and the reasons for

[[Page 601]]

granting the deviation, consistent with FAR 1.402. The contract file 
shall include a copy of the request submitted and the approval. In 
emergency situations involving individual cases, deviation approvals may 
be processed by telephone and later confirmed in writing.

[49 FR 7697, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986; 53 FR 
46533, Nov. 17, 1988]



Sec. 2401.404  Class deviations.

    For deviations which affect more than one contracting action, 
proposed deviations from the FAR or HUDAR shall be submitted to the 
Senior Procurement Executive for approval or other necessary or 
appropriate action. Requests for deviations shall be supported by 
statements which fully disclose the nature of the deviation and the need 
there of. The Senior Procurement Executive will consider the proposal on 
an expedited basis and in the case of a proposed FAR deviation will 
comply with FAR 1.404.

[49 FR 7697, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

     Subpart 2401.6--Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 2401.601  General.



Sec. 2401.601-70  Senior Procurement Executive.

    The Chief Procurement Officer is the Department's Senior Procurement 
Executive and is responsible for all Departmental procurement policy, 
regulations, and procedures. The Senior Procurement Executive is also 
responsible for the development of HUD's procurement system standards, 
evaluation of the system in accordance with approved criteria, 
enhancement of career management of the procurement work force, and 
certification to the Secretary that the Department's procurement system 
meets approved criteria.

[57 FR 59787, Dec. 15, 1992, as amended at 64 FR 46094, Aug. 23, 1999]



Sec. 2401.601-71   Office of Procurement and Contracts.

    The Office of Procurement and Contracts, within the Office of the 
Chief Procurement Officer, including its Field Contracting Operations, 
is responsible for all Departmental procurement.

[64 FR 46094, Aug. 23, 1999]



Sec. 2401.602  Contracting Officers.



Sec. 2401.602-3  Ratification of unauthorized commitments.

    (b)(1) Policy. A request for ratification shall be sent to the 
Contracting Officer through the Head of the Contracting Activity (HCA). 
The request will include an explanation as to the need for the service, 
the reason why normal procurement procedures were not followed, to what 
extent price competition was received or the price otherwise justified, 
and, corrective management actions to avoid ratifications in the future. 
If the justification is adequate, the ratification will be signed by the 
Contracting Officer and forwarded to the HCA or designee for approval.
    (b)(3) The HCA may delegate authority to approve ratifications below 
the simplified acquisition threshold to:
    (i) Contracting division directors (Headquarters); or,
    (ii) Contracting branch chiefs (Field).
    (c)(5) Legal concurrence may be requested if there is a legal issue 
involved, e.g. the propriety of the funding source, appropriateness of 
the expense, etc.

[60 FR 46154, Sept. 5, 1995]



Sec. 2401.603  Selection, appointment and termination of appointment.



Sec. 2401.603-2  Selection.

    In selecting Contracting Officers, the appointing authorities shall 
consider the experience, education, training, business acumen, judgment, 
character, reputation and ethics of the individual to be appointed. The 
appointing authorities shall also consider the size and complexity of 
contracts the individual will be required to execute and/or administer, 
and any other limitations on the scope of the authority to be exercised. 
In the area of experience, education and training, the following shall 
be required, unless contracting authority is limited to simplified 
acquisition procedures:

[[Page 602]]

    (a) Experience, for appointment of an individual to a position 
having Contracting Officer authority, shall consist of a minimum of two 
years experience performing contracting, procurement or purchasing 
operations in a government or commercial procurement office. 
Alternatively, where appointment of a Contracting Officer involves a 
specialized procurement field, experience in that field may be 
considered as a criterion for the appointment.
    (b) Educational requirements for an individual in a position having 
Contracting Officer authority shall be, as a minimum, the equivalent of 
a Bachelor's Degree from an accredited college or institution preferably 
with major studies in Business Administration, Law, Accounting or 
related fields. Experience related to the field of procurement involved 
(e.g., supply construction, etc.), gained in a government or 
nongovernment contracting office, may be substituted for educational 
requirements when it is determined in writing and made a part of the 
appointment files (as stipulated in 2401.603-3(b)) that a potential 
appointee is otherwise qualified by virtue of extensive contract-related 
experience or training.
    (c) Training courses as prescribed by the Senior Procurement 
Executive.
    (d) The selection requirements specified in paragraphs (a) through 
(c) of this section are applicable to all personnel whose primary duties 
are performed as a Contracting Officer.

[49 FR 7697, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984, as amended at 57 
FR 59787, Dec. 15, 1992; 64 FR 46094, Aug. 23, 1999]



Sec. 2401.603-3  Appointment.

    (a) Appointments to officials not expressly delegated procurement 
authority by a published departmental delegation of authority shall be 
made in writing by the Head of the Contracting Activity. The Certificate 
of Appointment (SF 1402) shall constitute the appointing official's 
determination that the appointee meets the selection requirements set 
forth at 2401.603-2.

[64 FR 46094, Aug. 23, 1999]

                PART 2402--DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 2402.000  Scope of part.

                       Subpart 2402.1--Definitions


Sec. 2402.101  Definitions.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).



Sec. 2402.000  Scope of part.

    This part contains definitions of terms used generally throughout 
the HUDAR, in addition to those set forth in FAR part 2. Additional 
definitions will be found in individual subparts of the FAR and HUDAR 
covering terms used in those subparts only.

[49 FR 7699, Mar. 1, 1984]

                       Subpart 2402.1--Definitions



Sec. 2402.101  Definitions.

    Accounting Office means the Office of Accounting Operations within 
the Office of the Chief Financial Officer and includes that Office's 
field components.
    Chief Procurement Officer means the HUD official having authority 
for all of the Department's procurement activities.
    Department means the Department of Housing and Urban Development, 
which may also be designated as HUD.
    Government Technical Monitor (GTM) means the individual responsible 
for assisting a Government Technical Representative in the latter's 
performance of his/her duties.
    Government Technical Representative (GTR) means the individual 
serving as the Contracting Officer's representative responsible for 
monitoring the technical aspects of a contract, including guidance, 
oversight, and evaluation of the Contractor's performance and 
deliverables.
    Head of Contracting Activity (HCA) is defined in accordance with the 
FAR. The following HUD officials are designated HCAs:
    (1) Director, Office of Procurement and Contracts, for HUD 
Headquarters procurement; and
    (2) The Directors, Field Contracting Operations, for field 
procurement.

[[Page 603]]

    Legal Counsel means the Office of General Counsel in Headquarters, 
or the cognizant Assistant General Counsel in the field.
    Primary Organization Heads are those officials of the Department who 
are responsible for the major organizational components of HUD and who 
report directly to the Secretary or Deputy Secretary. The Primary 
Organization Heads of HUD include the Assistant Secretaries and 
equivalent Departmental management (e.g., President, GNMA, Inspector 
General, General Counsel, Chief Procurement Officer, etc.).
    Secretary means the Secretary of the Department of Housing and Urban 
Development, or his or her designee.
    Senior Procurement Executive means the Chief Procurement Officer.

[64 FR 46094, Aug. 23, 1999]

    PART 2403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

                       Subpart 2403.1--Safeguards

Sec.

Sec. 2403.101  Standards of conduct.

      Subpart 2403.2--Contractor Gratuities to Government Personnel


Sec. 2403.203  Reporting procedures.

Sec. 2403.204  Treatment of violations.

        Subpart 2403.3--Reports of Suspected Antitrust Violations


Sec. 2403.303-70  Reporting requirements.

                     Subpart 2403.4--Contingent Fees


Sec. 2403.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

            Subpart 2403.5--Other Improper Business Practices


Sec. 2403.502-70  Subcontractor kickbacks.

  Subpart 2403.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them


Sec. 2403.602  Policy.

Sec. 2403.670  Solicitation provision and contract clause.

    Authority: 42 U.S.C. 3535(d).

    Source: 49 FR 7700, Mar. 1, 1984, unless otherwise noted.

                       Subpart 2403.1--Safeguards



Sec. 2403.101  Standards of conduct.

    Detailed rules which apply to the conduct of HUD employees are set 
forth in 5 CFR part 2635 and 5 CFR part 7501.

[64 FR 46095, Aug. 23, 1999]

      Subpart 2403.2--Contractor Gratuities to Government Personnel



Sec. 2403.203  Reporting procedures.

    Suspected violations of the gratuities clause (FAR 52.203-3) shall 
be reported to the Head of the Contracting Activity (HCA) in writing. 
The HCA will request the Office of Inspector General (OIG) to conduct 
any necessary investigation. Upon receipt of the OIG report, the HCA 
will evaluate the circumstances to determine if a violation has 
occurred. The HCA will refer violations and recommended corrective 
actions to the Senior Procurement Executive for disposition.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]



Sec. 2403.204  Treatment of violations.

    The Senior Procurement Executive will process violations in 
accordance with FAR 3.204.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

        Subpart 2403.3--Reports of Suspected Antitrust Violations



Sec. 2403.303-70  Reporting requirements.

    Potential anti-competitive practices such as described in FAR 
subpart 3.3, evidenced in bids or proposals, shall be reported to the 
Office of General Counsel through the Head of the Contracting Activity 
with a copy to the Senior Procurement Executive and the Inspector 
General. The Office of General Counsel will provide reports to the 
Attorney General as appropriate.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

[[Page 604]]

                     Subpart 2403.4--Contingent Fees



Sec. 2403.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) Government personnel who suspect or have evidence of attempted 
or actual exercise of improper influence, misrepresentation of a 
contingent fee arrangement, or other violation of the Covenant against 
Contingent Fees shall report the matter promptly to the Head of the 
Contracting Activity.
    (b) When there is specific evidence or other reasonable basis to 
suspect one or more of the violations in paragraph (a) of this section, 
the Head of the Contracting Activity shall review the facts and, if 
appropriate, take or direct one or more of the following, or other, 
actions:
    (1) If before award, reject the bid or proposal.
    (2) If after award, enforce the government's right to void the 
contract or to recover the fee.
    (3) Initiate suspension or debarment action.
    (4) Refer suspected fraudulent or criminal matters to the Office of 
Inspector General for possible referral to the Department of Justice.

[49 FR 7700, Mar. 1, 1984. Redesignated at 64 FR 46095, Aug. 23, 1999]

            Subpart 2403.5--Other Improper Business Practices



Sec. 2403.502-70  Subcontractor kickbacks.

    Contracting Officers shall report suspected violations of the Anti-
Kickback Act through the Head of the Contracting Activity to the Office 
of the Inspector General consistent with the procedures for reporting 
any violation of law contained in the current HUD Handbook 2000.3, 
Office of Inspector General Activities.

[64 FR 46095, Aug. 23, 1999]

  Subpart 2403.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



Sec. 2403.602  Policy.

    The Senior Procurement Executive must approve exceptions to the 
restriction against contracts with Government employees under FAR 
subpart 3.6. In addition, the Contracting Officer shall comply with FAR 
subpart 9.5 before awarding any such contract.

[49 FR 7700, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986. 
Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2403.670  Solicitation provision and contract clause.

    Insert the clause at 48 CFR 2452.203-70 in all solicitations and 
contracts.

[65 FR 3576, Jan. 21, 2000]

                    PART 2404--ADMINISTRATIVE MATTERS

    Authority: 42 U.S.C. 3535(d).

                Subpart 2404.8--Government Contract Files



Sec. 2404.805  Storage, handling and disposal of contract files.

    (a) Unsuccessful cost and technical proposals shall be retained in 
the contracting activity for a period of two months following the 
contract award as reference material for debriefings. Upon expiration of 
the two month period, the contracting office shall either:
    (1) Retain one copy of each such proposal with the official contract 
file; or,
    (2) Ship one copy of each unsuccessful bid or proposal to the 
Federal Records Center unless a debriefing has been requested but not 
held, or a protest is pending concerning the procurement. In no event 
shall these documents be destroyed before expiration of the retention 
periods in FAR 4.805.
    (b) By the program office. Unsuccessful proposals shall be retained 
on file in the program office which conducted the technical evaluation 
for a period of two months following the contract award.

[[Page 605]]

Upon expiration of the two month period, the program office shall return 
one copy of each unsuccessful bid or proposal not required for the 
conduct of debriefings to the contracting activity for proper 
disposition. The remaining copies will be destroyed.

[49 FR 7700, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984. Redesignated and 
amended at 60 FR 46155, Sept. 5, 1995]

[[Page 606]]

           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

                 PART 2405--PUBLICIZING CONTRACT ACTIONS

          Subpart 2405.2--Synopses of Proposed Contract Actions

Sec.

Sec. 2405.202  Exceptions.

                   Subpart 2405.5--Paid Advertisements


Sec. 2405.502  Authority.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d); and 
FAR class deviation approved November 15, 1990.

          Subpart 2405.2--Synopses of Proposed Contract Actions



Sec. 2405.202  Exceptions.

    (b) The Senior Procurement Executive shall make the written 
determination in accordance with FAR 5.202(b) that advance notice of 
proposed contract actions is not appropriate or reasonable.

[50 FR 46576, Nov. 8, 1985]

                   Subpart 2405.5--Paid Advertisements



Sec. 2405.502  Authority.

    Use of paid advertisements in newspapers, trade journals, and other 
media are authorized by Delegations or Redelegations of Authority, 
subject to the availability of funds.

[49 FR 7701, Mar. 1, 1984]

                   PART 2406--COMPETITION REQUIREMENTS

  Subpart 2406.2--Full and Open Competition After Exclusion of Sources

Sec.

Sec. 2406.202  Establishing or maintaining alternative sources.

          Subpart 2406.3--Other Than Full and Open Competition


Sec. 2406.304  Approval of the justification.

Sec. 2406.304-70  Approval of the justification--field procurements.

                  Subpart 2406.5--Competition Advocates


Sec. 2406.501  Requirement.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 50 FR 46576, Nov. 8, 1985, unless otherwise noted.

  Subpart 2406.2--Full and Open Competition After Exclusion of Sources



Sec. 2406.202  Establishing or maintaining alternative sources.

    (b)(1) The HCA shall sign the Determination and Finding (D&F) 
required by FAR 6.202(b)(1).

          Subpart 2406.3--Other Than Full and Open Competition



Sec. 2406.304  Approval of the justification.

    (c) A class justification for other than full and open competition 
shall be approved in writing by the Senior Procurement Executive.



Sec. 2406.304-70  Approval of the justification--field procurements.

    (a) The justification for other than full and open competition for 
field procurements shall be approved in writing--
    (3) For a proposed contract more than $1 million but not exceeding 
$10 million, by the Director, Office of Procurement and Contracts.

[60 FR 46155, Sept. 5, 1995]

                  Subpart 2406.5--Competition Advocates



Sec. 2406.501  Requirement.

    The Senior Procurement Executive shall designate the Department's 
competition advocate by Federal Register notice. Contracting activity-
level competition advocates shall be appointed by each HCA.

[60 FR 46155, Sept. 5, 1995]

[[Page 607]]

                     PART 2407--ACQUISITION PLANNING

    Authority: Sec. 7(d) of the Department of Housing and Urban 
Development Act (42 U.S.C. 3535(d)).

                    Subpart 2407.1--Acquisition Plans



Sec. 2407.102  Policy.

    The Senior Procurement Executive is responsible for establishing and 
maintaining internal procedures to implement the Department's Advance 
Procurement Planning System (APPS). The APPS should generally meet the 
criteria contained in FAR subpart 7.1.

[49 FR 7701, Mar. 1, 1984, as amended at 51 FR 7948, Mar. 7, 1986]

                  PART 2409--CONTRACTOR QUALIFICATIONS

   Subpart 2409.5--Organizational and Consultant Conflicts of Interest

Sec.

Sec. 2409.503  Waiver.

Sec. 2409.507  Solicitation provisions and contract clause.

Sec. 2409.507-1  Solicitation provisions.

Sec. 2409.507-2  Contract clauses.

        Subpart 2409.70--Debarment, Suspension, and Ineligibility


Sec. 2409.7001  HUD regulations on debarment, suspension, and 
          ineligibility.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7701, Mar. 1, 1984, unless otherwise noted.

   Subpart 2409.5--Organizational and Consultant Conflicts of Interest



Sec. 2409.503  Waiver.

    The Senior Procurement Executive is authorized to waive any general 
rule or procedure in FAR Subpart 9.5 by determining that its application 
to a particular situation would not be in the Government's interest.

[57 FR 59788, Dec. 15, 1992]



Sec. 2409.507  Solicitation provisions and contract clause.



Sec. 2409.507-1  Solicitation provisions.

    The Contracting Officer shall insert a provision substantially the 
same as the provision at 48 CFR 2452.209-70, Potential Organizational 
Conflicts of Interest, in all solicitations over the simplified 
acquisition limitation when the Contracting Officer has reason to 
believe that a potential organizational conflict of interest exists. The 
Contracting Officer shall describe the nature of the potential conflict 
in the provision.

[65 FR 3576, Jan. 21, 2000]



Sec. 2409.507-2  Contract clauses.

    The Contracting Officer shall insert a clause substantially the same 
as the clause at 48 CFR 2452.209-71, Limitation on Future Contracts, in 
all contracts above the simplified acquisition threshold. The 
Contracting Officer shall describe in the clause the nature of the 
potential conflict, and the negotiated terms and the duration of the 
limitation. The Contracting Officer shall insert the clause at 2452.209-
72, Organizational Conflicts of Interest, in all contracts.

[65 FR 12951, Mar. 10, 2000]

[[Page 608]]

        Subpart 2409.70--Debarment, Suspension, and Ineligibility



Sec. 2409.7001  HUD regulations on debarment, suspension, and 
          ineligibility.

    Departmental policies and procedures concerning debarment and 
suspension are contained in 24 CFR part 24.

[49 FR 7701, Mar. 1, 1984. Redesignated at 64 FR 46095, Aug. 23, 1999]

                   PART 2411--DESCRIBING AGENCY NEEDS

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

            Subpart 2411.4--Delivery or Performance Schedules



Sec. 2411.404  Contract clause.

    (a) The Contracting Officer may insert the clause at 48 CFR 
2452.211-70, Contract Period, in all solicitations and contracts.

[61 FR 19470, May 1, 1996]

[[Page 609]]

         SUBCHAPTER C--CONTRACTING METHODS AND CONTRACTING TYPES

              PART 2413--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 2413.1--General [Reserved]

             Subpart 2413.3--Simplified Acquisition Methods

Sec.

Sec. 2413.301  Governmentwide commercial purchase card.

Sec. 2413.305-2  Agency responsibilities.

Sec. 2413.305-3  Conditions for use.

Sec. 2413.307  Forms.

Subpart 2413.4--Imprest Fund [Reserved]

Subpart 2413.5--Purchase Orders [Reserved]


Sec. 2413.505  Purchase order and related forms.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

Subpart 2413.1--General [Reserved]

             Subpart 2413.3--Simplified Acquisition Methods



Sec. 2413.301  Governmentwide commercial purchase card.

    (c) HUD's procedures concerning the use of the government-wide 
commercial purchase card are contained in its Handbook on the 
Government-wide Commercial Credit Card Program.

[60 FR 46155, Sept. 5, 1995. Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2413.305-2  Agency responsibilities.

    (c) Policies and procedures governing the operation of imprest funds 
are established in internal directives issued by HUD's Office of the 
Chief Financial Officer.

[60 FR 46155, Sept. 5, 1995. Redesignated at 64 FR 46095, Aug. 23, 1999]



Sec. 2413.305-3  Conditions for use.

    (a) Transaction limits above that established in FAR 13.305-3 may be 
approved by the Senior Procurement Executive.

[60 FR 46155, Sept. 5, 1995. Redesignated and amended at 64 FR 46095, 
Aug. 23, 1999]



Sec. 2413.307  Forms.

    (b) For purchases charged to the FHA Fund using simplified 
acquisition procedures, contracting officers may use Form HUD-2542, 
Purchase Order and Payment Authorization.

[61 FR 19470, May 1, 1996. Redesignated at 64 FR 46095, Aug. 23, 1999]

Subpart 2413.4--Imprest Fund [Reserved]

                     Subpart 2413.5--Purchase Orders



Sec. 2413.505  Purchase order and related forms.

                        PART 2414--SEALED BIDDING

         Subpart 2414.4--Opening of bids and Award of Contracts

Sec.

Sec. 2414.404  Rejection of bids.

Sec. 2414.404-1  Cancellation of invitations after opening.

Sec. 2414.407  Mistakes in bid.

Sec. 2414.407-3  Other mistakes disclosed before award.

Sec. 2414.407-4  Mistakes after award.

Sec. 2414.408  Award.

Sec. 2414.408-70  Award when only one bid is received.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7702, Mar. 1, 1984, unless otherwise noted.

         Subpart 2414.4--Opening of Bids and Award of Contracts



Sec. 2414.404  Rejection of bids.



Sec. 2414.404-1  Cancellation of invitations after opening.

    (c) Invitations may be cancelled and all bids rejected before award 
but after

[[Page 610]]

opening when the Head of the Contracting Activity, as described in 
subpart 2402.1, determines in writing that cancellation is appropriate 
and consistent with FAR 14.404-1.

[50 FR 46577, Nov. 8, 1985]



Sec. 2414.407  Mistakes in bids.



Sec. 2414.407-3  Other mistakes disclosed before award.

    (e) The determination to allow a bidder to: Correct a mistake in bid 
discovered before award (other than obvious clerical errors); withdraw a 
bid; or, neither correct nor withdraw a bid shall be submitted to the 
Head of the Contracting Activity for approval.

[57 FR 59788, Dec. 15, 1992. Redesignated at 61 FR 19470, May 1, 1996]



Sec. 2414.407-4  Mistakes after award.

    (d) For determinations under FAR 14.407-4(b), the Head of the 
Contracting Activity will obtain the concurrence of legal counsel before 
notification to the Contractor. The Contracting Officer shall be 
notified promptly of action to be taken.

[61 FR 19470, May 1, 1996, as amended at 64 FR 46095, Aug. 23, 1999]



Sec. 2414.408  Award.



Sec. 2414.408-70  Award when only one bid is received.

    When only one bid is received in response to an invitation for bids, 
such bid may be considered and accepted if the Contracting Officer makes 
a written determination that: (a) The specifications were clear and not 
unduly restrictive; (b) adequate competition was solicited and it could 
have been reasonably assumed that more than one bid would have been 
submitted; (c) the price is reasonable; and (d) the bid is otherwise in 
accordance with the invitation for bids. Such a determination shall be 
placed in the file.

[49 FR 7702, Mar. 1, 1984; 51 FR 7948, Mar. 7, 1986, as amended at 58 FR 
49437, Sept. 23, 1993. Redesignated at 61 FR 19471, May 1, 1996]

                  PART 2415--CONTRACTING BY NEGOTIATION

  Subpart 2415.2--Solicitation and Receipt of Proposals and Information

Sec.

Sec. 2415.204  Contract format.

Sec. 2415.209  Solicitation provisions.

                    Subpart 2415.3--Source Selection


Sec. 2415.303  Responsibilities.

Sec. 2415.304  Evaluation factors.

Sec. 2415.305  Proposal evaluation.

Sec. 2415.308  Source selection decision.

Subpart 2415.5--Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 2415.507  Protests against award.

                    Subpart 2415.6--Source Selection


Sec. 2415.605  Content of unsolicited proposals.

Sec. 2415.605-70  Unsolicited research proposals.

Sec. 2415.606  Agency procedures.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7703, Mar. 1, 1984, unless otherwise noted.

  Subpart 2415.2--Solicitation and Receipt of Proposals and Information



Sec. 2415.204  Contract format.

    (e) The cognizant HCA shall be responsible for making exemptions 
pursuant to FAR 15.204(e).

[64 FR 46095, Aug. 23, 1999]



Sec. 2415.209  Solicitation provisions.

    (a) The Contracting Officer shall insert a provision substantially 
the same as the provision at 48 CFR 2452.215-70, Proposal Content, in 
all solicitations for negotiated procurements using the trade-off 
selection process expected to exceed the simplified acquisition 
threshold. The Contracting Officer shall adapt paragraph (c) of the 
provision (i.e., include, delete or further supplement subparagraphs) to 
address the particular requirements of the immediate solicitation. The 
provisions may be used in simplified acquisitions when it is necessary 
to obtain technical and

[[Page 611]]

management information in making the award selection. When award 
selection will be made through the lowest price technically acceptable 
method, the provision shall be used with its Alternate I. If the 
proposed contract requires work on or access to sensitive automated 
systems or applications (see the clause at 48 CFR 2452.239-70), the 
provision shall be used with its Alternate II.

[64 FR 46095, Aug. 23, 1999]

                    Subpart 2415.3--Source Selection



Sec. 2415.303  Responsibilities.

    (a) In accordance with FAR 15.303, the source selection authorities 
are designated as follows:
    (1) The Contracting Officer, for contracts awarded using the 
``lowest-priced technically-acceptable proposal'' process; and,
    (2) The head of the office initiating the procurement, or his/her 
designee, for contracts awarded using the ``trade-off'' process. The 
head of the initiating office may also delegate this function to the 
Contracting Officer.
    (3) For procurements for the performance of legal services by 
outside counsel, using either the ``lowest-price technically 
acceptable'' or ``tradeoff'' approach, the General Counsel or his/her 
designee.
    (b) The technical requirements related to source selection shall be 
performed by a Technical Evaluation Panel (TEP). Generally, a TEP will 
consist of three to five members, with one member serving as the 
chairperson. For procurements involving technical complexity, the TEP 
may include advisors and committees to focus on specific technical areas 
or concerns. For relatively low dollar value and routine acquisitions of 
equipment, supplies or services, the TEP may consist of one technical 
representative. The TEP is responsible for documenting the evaluation of 
all proposals as appropriate to the source selection approach in use and 
for making the source selection recommendation to the source selection 
authority.

[64 FR 46096, Aug. 23, 1999]



Sec. 2415.304  Evaluation factors.

    (d)(1) The solicitation shall state the basis for the source 
selection decision as either ``lowest-price technically acceptable'' 
process (LPTA) or ``trade-off process'' (as defined at FAR subpart 
15.1).
    (2) When using the trade-off process, each technical evaluation 
factor and subfactor shall be assigned a numerical weight (except for 
pass-fail factors) which shall appear in the RFP. When using LPTA, each 
evaluation factor is applied on a ``pass-fail'' basis; numerical scores 
are not assigned. ``Pass-fail'' evaluation factors define a standard of 
comparison for solicitation/contract requirements which proposals either 
completely satisfy or fail to meet.

[64 FR 46096, Aug. 23, 1999, as amended at 65 FR 3573, Jan. 21, 2000]



Sec. 2415.305  Proposal evaluation.

    (a) After receipt of proposals, the Contracting Officer will forward 
copies of the technical portion of each proposal to the TEP Chairperson 
or his or her designee. The cost/price portion of each proposal shall be 
retained by the Contracting Officer pending initial technical evaluation 
by the TEP.
    (3) Technical evaluation. The TEP shall rate each proposal based on 
the evaluation factors specified in the solicitation. The TEP shall 
identify each proposal as being either acceptable, unacceptable but 
capable of being made acceptable, or unacceptable. A proposal shall be 
considered unacceptable if it is so clearly deficient that it cannot be 
corrected through written or oral discussions. Under the trade-off 
process, predetermined cut-off scores designed to determine a threshold 
level of acceptability of proposals shall not be employed. A technical 
evaluation report, which complies with FAR 15.305(a)(3), shall be 
prepared and signed by the technical evaluator(s), furnished to the 
contracting officer, and maintained as a permanent record in the 
official procurement file.

[50 FR 46577, Nov. 8, 1985, as amended at 57 FR 59789, Dec. 15, 1992; 60 
FR 46156, Sept. 5, 1995; 61 FR 19471, May 1, 1996. Redesignated and 
amended at 64 FR 46096, Aug. 23, 1999]

[[Page 612]]



Sec. 2415.308  Source selection decision.

    After receipt and evaluation of final proposal revisions, the TEP 
shall document its selection recommendation(s) in a final written 
report. The final report shall include sufficient information to support 
the recommendation(s) made, appropriate to the source selection approach 
and type and complexity of the acquisition.

[64 FR 46096, Aug. 23, 1999]

Subpart 2415.5--Preaward, Award, and Postaward notifications, Protests, 
                              and Mistakes



Sec. 2415.507  Protests against award.

    Protests against awards of negotiated procurements shall be 
processed in accordance with FAR subpart 33.1 and HUDAR subpart 2433.1

[50 FR 46578, Nov. 8, 1985. Redesignated at 61 FR 19471, May 1, 1996, 
and further redesignated at 64 FR 46096, Aug. 23, 1999]

                    Subpart 2415.6--Source Selection

    Source: 50 FR 46577, Nov. 8, 1985, unless otherwise noted.



Sec. 2415.605  Content of unsolicited proposals.



Sec. 2415.605-70  Unsolicited research proposals.

    FAR subpart 15.6 outlines the policies and procedures relating to 
unsolicited proposals. In addition to these requirements, the Department 
requires that each award made as the result of an unsolicited proposal 
for research contain a commitment to provide actual cost-sharing. This 
provision will be included in the award whether or not cost-sharing was 
part of the unsolicited proposal.

[49 FR 7703, Mar. 1, 1984. Redesignated and amended at 64 FR 46095, Aug. 
23, 1999]



Sec. 2415.606  Agency procedures.

    (a) The contact points shall ensure that unsolicited proposals are 
controlled, evaluated, safeguarded and disposed of in accordance with 
FAR subpart 15.6. Proposals, as used in this section shall mean 
proposals for procurement contracts with the Department and shall not 
include proposals or applications for assistance, including grants or 
cooperative agreements.
    (b) Unless otherwise specified in a Federal Register announcement, 
unsolicited proposals should be submitted to--
    (1) For research--Department of Housing and Urban Development, 
Office of Policy Development and Research, PD&R Correspondence Unit 
(Room 8228), 451 7th Street, SW, Washington, DC 20410.
    (2) For all others--Department of Housing and Urban Development, 
Director, Office of Procurement and Contracts (NC), 451 7th Street, SW, 
Washington, DC 20410.

[64 FR 46096, Aug. 23, 1999]

                      PART 2416--TYPES OF CONTRACTS

                   Subpart 2416.4--Incentive Contracts

Sec.

Sec. 2416.406  Contract clauses.

              Subpart 2416.5--Indefinite-Delivery Contracts


Sec. 2416.505  Ordering.

Sec. 2416.506  Solicitation provisions and contract clauses.

Sec. 2416.506-70  Unpriced delivery/task orders.

  Subpart 2416.6--Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 2416.603  Letter contracts.

Sec. 2416.603-2  Application.

    Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).

    Source: 49 FR 7706, Mar. 1, 1984, unless otherwise noted.

                   Subpart 2416.4--Incentive Contracts



Sec. 2416.406  Contract clauses.

    (e)(1) The Contracting Officer shall insert the clauses at 2452.216-
70, Estimated Cost, Base Fee, and Award Fee; 2452.216-71, Payment of 
Base and Award Fee; 2452.216-72, Determination of

[[Page 613]]

Award Fee Earned; 2452.216-73, Performance Evaluation Plan; and 
2452.216-74, Distribution of Award Fee, in all award fee contracts. The 
Contracting Officer may modify the clauses to meet individual situations 
and any clause or specific requirement therein may be deleted when it is 
not applicable to a given contract.

[53 FR 46535, Nov. 17, 1988. Redesignated at 64 FR 46096, Aug. 23, 1999]

              Subpart 2416.5--Indefinite-Delivery Contracts



Sec. 2416.505  Ordering.

    (b)(6) The Departmental competition advocate also serves as the 
Departmental ombudsman for task and delivery order contracts in 
accordance with FAR 16.505(b)(6).
    (i) Each HCA shall designate a contracting activity ombudsman for 
task and delivery order contracts.
    (ii) The contracting activity ombudsman shall:
    (A) Review complaints from contractors concerning task or delivery 
orders placed by the contracting activity;
    (B) Be independent of the contracting officer who awarded or is 
administering the contract under which a complaint is submitted;
    (C) Recommend any corrective action to the cognizant contracting 
officer; and
    (D) Refer to the Departmental ombudsman issues which cannot be 
resolved.
    (iii) Contractors may request that the Departmental Ombudsman review 
complaints when they disagree with the contracting activity ombudsman's 
review.

[64 FR 46096, Aug. 23, 1999]



Sec. 2416.506  Solicitation provisions and contract clauses.



Sec. 2416.506-70  Unpriced delivery/task orders.

    (e) The contracting officer shall insert the clause at 2452.216-75, 
Unpriced Task Orders, in contracts for which task orders are 
individually negotiated and there may be a need to issue unpriced task 
orders; provided, however, that the contracting officer shall ensure 
that the cost of the work authorized by the task order is not in excess 
of the funds obligated under the contract.

[57 FR 59790, Dec. 15, 1992. Redesignated at 61 FR 19471, May 1, 1996]

  Subpart 2416.6--Time-And-Materials, Labor-Hour, and Letter Contracts



Sec. 2416.603  Letter contracts.



Sec. 2416.603-2  Application.

    (c) The HCA shall approve additional time periods for definitization 
of letter contracts authorized by the Contracting Officer pursuant to 
FAR 16.603-2(c).

[64 FR 46096, Aug. 23, 1999]

                 PART 2417--SPECIAL CONTRACTING METHODS

                         Subpart 2417.2--Options


Sec. 2417.204  Contracts.

     Subpart 2417.5--Interagency Acquisitions Under the Economy Act


Sec. 2417.504  Ordering procedures.

    Authority: 31 U.S.C. 1535; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

                         Subpart 2417.2--Options



Sec. 2417.204  Contracts.

    (e) The Senior Procurement Executive shall approve any solicitation 
or contract which exceeds the five (5) year maximum for acquisitions of 
supplies or services.

[61 FR 19471, May 1, 1996]

     Subpart 2417.5--Interagency Acquisitions Under the Economy Act



Sec. 2417.504  Ordering procedures.

    (b) The Contracting Officer shall use HUD Form 730, Award/
Modification of Interagency Agreement, when placing or modifying an 
order for supplies or services from another Government agency.

[53 FR 46535, Nov. 17, 1988]

[[Page 614]]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

                   PART 2419--SMALL BUSINESS PROGRAMS

                        Subpart 2419.2--Policies

Sec.

Sec. 2419.201  General policy.

              Subpart 2419.5--Set-Asides for Small Business


Sec. 2419.503  Setting aside a class of acquisitions.

Subpart 2419.7--Subcontracting with Small Business, Small Disadvantaged 
            Business and Women-Owned Small Business Concerns


Sec. 2419.708  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

                        Subpart 2419.2--Policies



Sec. 2419.201  General policy.

    (c) The Director, Office of Small and Disadvantaged Business 
Utilization (OSDBU), Headquarters, is responsible for the administration 
of HUD's small business programs. This includes Department-wide 
responsibility for developing, implementing, executing, and managing 
these programs, providing advice on these programs, and representing HUD 
before other government agencies on matters primarily affecting small, 
small disadvantaged and women-owned small businesses.
    (d) Each head of a contracting activity shall designate a small 
business specialist who shall perform the following functions:
    (1) Maintain a program designed to locate capable small business 
sources as referenced in 48 CFR 2419.201(c) for current and future 
procurements;
    (2) Coordinate inquiries and requests for advice from such 
businesses on procurement matters;
    (3) Review proposed requirements for supplies and services, ensure 
that all such business concerns will be afforded an equitable 
opportunity to compete, and, as appropriate, initiate recommendation for 
small business or Section 8a set-asides (under the Small Business Act);
    (4) Take action to ensure the availability of adequate 
specifications and drawings, when necessary, to obtain participation by 
such businesses in a procurement;
    (5) Review proposed procurements for possible breakout of items 
suitable for procurement from such businesses;
    (6) Advise such businesses with respect to the financial assistance 
available under existing laws and regulations and assist such businesses 
in applying for financial assistance;
    (7) Ensure that adequate records are maintained and accurate reports 
are prepared concerning such businesses participation in the procurement 
program;
    (8) Make available to SBA copies of solicitations, when requested, 
and
    (9) Act as liaison between the Contracting Officer and the 
appropriate SBA office in connection with set-asides, certificates of 
competency, size classification, and any other matter in which the small 
business program may be involved.

[49 FR 7706, Mar. 1, 1984, as amended at 50 FR 46578, Nov. 8, 1985; 61 
FR 19471, May 1, 1996]

              Subpart 2419.5--Set-Asides for Small Business



Sec. 2419.503  Setting aside a class of acquisitions.

    (a) Class set-aside for construction under the Acquired Property 
Program. A class set-aside is hereby made for each proposed procurement 
for construction under the Real Estate Owned Program with an estimated 
cost of less than $1,000,000. Accordingly, Contracting Officers shall 
set aside for small business each such proposed procurement. If a 
Contracting Officer determines that any individual procurement falling 
within the class set-aside requirements of this section is unsuitable 
for such a set-aside in part or in total, the set-aside may be withdrawn 
with the concurrence of the Head of the Contracting Activity. Proposed 
procurements for construction which exceed

[[Page 615]]

an estimate of $1,000,000 shall be considered for set-aside on a case-
by-case basis.

[49 FR 7706, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984, as amended at 53 
FR 46535, Nov. 17, 1988; 64 FR 46097, Aug. 23, 1999]

Subpart 2419.7--Subcontracting with Small Business, Small Disadvantaged 
            Business and Women-Owned Small Business Concerns



Sec. 2419.708  Solicitation provisions and contract clauses.

    (d) The Contracting Officer shall insert the provision at 2452.219-
70 in negotiated solicitations exceeding $500,000 that are not set aside 
for small business or 8(a) concerns.
    (e) The Contracting Officer shall insert the provision at 2452.219-
70 with Alternate I in sealed bid solicitations exceeding $500,000 that 
are not set aside for small business or 8(a) concerns.
    (f) The Contracting Officer shall insert the clause at 48 CFR 
2452.219-71 in solicitations exceeding $500,000 that are not set aside 
for small businesses or to be accomplished under the 8(a) program. The 
Contracting Officer shall insert the clause in all contracts exceeding 
$500,000 ($1,000,000 for construction) that are not awarded to small 
businesses or to 8(a) business concerns.

[57 FR 59790, Dec. 15, 1992, as amended at 64 FR 46097, Aug. 23, 1999]

                          PART 2420 [RESERVED]

     PART 2422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    Authority: Sec. 205(c) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 486(c)); sec. 7(d) of the Department of 
Housing and Urban Development Act (42 U.S.C. 3535(d)).

    Source: 53 FR 46535, Nov. 17, 1988, unless otherwise noted.

             Subpart 2422.14--Employment of the Handicapped



Sec. 2422.1408  Contract clause.

    (c) The Contracting Officer shall insert the clause at 2452.222-70, 
Accessibility of Meetings, Conferences, and Seminars to Persons with 
Disabilities, in all solicitations and contracts.

       PART 2424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

            Subpart 2424.1--Protection of Individual Privacy

Sec.

Sec. 2424.103  Procedures.

               Subpart 2424.2--Freedom of Information Act


Sec. 2424.203  Policy.

    Authority: 5 U.S.C. 552, 552a; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

            Subpart 2424.1--Protection of Individual Privacy



Sec. 2424.103  Procedures.

    (b)(2) See 24 CFR part 16 for the HUD regulations which implement 
the Privacy Act.

               Subpart 2424.2--Freedom of Information Act



Sec. 2424.203  Policy.

    See 24 CFR part 15 for the HUD regulations which implement the 
Freedom of Information Act.

[49 FR 7708, Mar. 1, 1984. Redesignated at 64 FR 46097, Aug. 23, 1999]

                     PART 2425--TRADE AGREEMENTS ACT

    Authority: 42 U.S.C. 3535(d).



Sec. 2425.402  Policy.

    (a)(1) It is the Department's policy to determine whether the Trade 
Agreements Act applies based on the total estimated dollar value of the 
proposed

[[Page 616]]

acquisition before the solicitation is issued, including all line items 
and options.

[57 FR 59790, Dec. 15, 1992, as amended at 64 FR 46097, Aug. 23, 1999]

                 PART 2426--OTHER SOCIOECONOMIC PROGRAMS

             Subpart 2426.70--Minority Business Enterprises


Sec. 2426.7001  Policy.

Sec. 2426.7002  Responsibility.

Sec. 2426.7003  Solicitation provision.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

             Subpart 2426.70--Minority Business Enterprises



Sec. 2426.7001  Policy.

    It is the policy of the Department to foster and promote Minority 
Business Enterprise (MBE) participation in its procurement program, to 
the extent permitted by law and consistent with its primary mission. A 
``minority business enterprise'' is a business which is at least 51 
percent owned by one or more minority group members; or, in the case of 
a publicly-owned business, one in which at least 51 percent of its 
voting stock is owned by one or more minority group members, and whose 
management and daily business operations are controlled by one or more 
such individuals. For this purpose, minority group members are those 
groups of U.S. citizens found to be disadvantaged by the Small Business 
Administration pursuant to Section 8(d) of the Small Business Act.

[60 FR 46156, Sept. 5, 1995. Redesignated at 64 FR 46097, Aug. 23, 1999]



Sec. 2426.7002  Responsibility.

    The Director of the Office of Small and Disadvantaged Business 
Utilization (OSDBU) develops Departmental MBE plans and policies in 
accordance with Executive Orders 11625 and 12432 and by directive from 
the Secretary. He or she provides advice and guidance to the Secretary 
and Primary Organization Heads on MBE functions, reviews and makes 
recommendations to the Secretary on MBE annual plans and goals, monitors 
and evaluates the Department's MBE program, and reports on MBE program 
performance to the Department of Commerce.

[60 FR 46157, Sept. 5, 1995. Redesignated at 64 FR 46097, Aug. 23, 1999]



Sec. 2426.7003  Solicitation provision.

    Contracting officers shall request all interested contractors, 
bidders, or offerors (including those responding to requests for 
quotations) to complete the certification at 2452.226-70, Certification 
of Status as a Minority Business Enterprise. Completion of this 
certification is voluntary and is not a condition of eligibility for 
contract award.

[60 FR 46157, Sept. 5, 1995. Redesignated at 65 FR 3573, Jan. 21, 2000]

                PART 2427--PATENTS, DATA, AND COPYRIGHTS

        Subpart 2427.3--Patent Rights Under Government Contracts

Sec.

Sec. 2427.305  Administration of patent rights clauses.

Sec. 2427.305-2  Follow-up by contractor.

    Authority: Sec. 205(c) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 486(c)); sec. 7(d) of the Department of 
Housing and Urban Development Act (42 U.S.C. 3535(d)).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

        Subpart 2427.3--Patent Rights Under Government Contracts



Sec. 2427.305  Administration of patent rights clauses.



Sec. 2427.305-2  Follow-up by contractor.

    (b) Contractor reports. Contractors shall complete and submit to the 
Contracting Officer HUD Form 770, Report of Inventions and Subcontracts, 
upon receipt of said form. The Contracting Officer shall send the form 
to those contractors whose contract work may have required the 
development of inventions upon physical completion of the contract.

[[Page 617]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                     PART 2428--BONDS AND INSURANCE

                          Subpart 2428.1--Bonds

Sec.

Sec. 2428.106  Administrative.

Sec. 2428.106-6  Furnishing information.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 50 FR 46578, Nov. 8, 1985, unless otherwise noted.

                          Subpart 2428.1--Bonds



Sec. 2428.106  Administrative.



Sec. 2428.106-6  Furnishing information.

    (c) The Contracting Officer shall furnish the certified copy of the 
bond and the contract for which it was given to any person who requests 
them in accordance with FAR 28.106-6.

[64 FR 46097, Aug. 23, 1999]

                            PART 2429--TAXES

    Authority: 42 U.S.C. 3535(d).

                         Subpart 2429.1--General



Sec. 2429.101  Resolving tax problems.

    In order to have uniformity in HUD's treatment of the tax aspects of 
contracting and ensure effective cooperation with other Government 
agencies on tax matters of mutual interest, the Office of General 
Counsel has the responsibility within HUD for handling all those tax 
problems. Therefore, the contracting activity will not engage in 
negotiation with any taxing authority for the purpose of determining the 
validity or applicability of, or obtaining exemptions from or refund of, 
any tax. When a problem exists, the Contracting Officer shall request, 
in writing, the assistance of legal counsel. The request shall detail 
the problem and be accompanied by appropriate backup data. Counsel shall 
report to the Contracting Officer as to the necessary disposition of the 
tax problem. The Contracting Officer will notify the contractor of the 
outcome of the tax problem. Counsel is responsible for communications 
with the Department of Justice for representation or intervention in 
proceedings concerning taxes.

[60 FR 46157, Sept. 5, 1995]

                      PART 2432--CONTRACT FINANCING

         Subpart 2432.1--Non-Commercial Item Purchase Financing

Sec.

Sec. 2432.114  Unusual contract financing.

           Subpart 2432.2--Commercial Item Purchase Financing


Sec. 2432.201  Statutory authority.

        Subpart 2432.4--Advance Payments for Non-Commercial Items


Sec. 2432.402  General.

Sec. 2432.407  Interest.

                    Subpart 2432.7--Contract Funding


Sec. 2432.703-3  Contracts crossing fiscal years.

                     Subpart 2432.9--Prompt Payment


Sec. 2432.903  Policy.

Sec. 2432.906  Contract financing payments.

Sec. 2432.908  Contract clauses.

    Authority: 31 U.S.C. 3901-3906; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46536, Nov. 17, 1988, unless otherwise noted.

         Subpart 2432.1--Non-Commercial Item Purchase Financing



Sec. 2432.114  Unusual contract financing.

    The Senior Procurement Executive is the agency head for the purpose 
of FAR 32.114.

[65 FR 3573, Jan. 21, 2000; 65 FR 6444, Feb. 9, 2000]

[[Page 618]]

           Subpart 2432.2--Commercial Item Purchase Financing



Sec. 2432.201  Statutory authority.

    The head of the contracting activity is the agency head for the 
purpose of FAR 32.201.

[65 FR 3573, Jan. 21, 2000]

        Subpart 2432.4--Advance Payments for Non-Commercial Items



Sec. 2432.402  General.

    (e)(1) The determination and findings required by FAR 
32.402(c)(1)(iii) shall be made by the HCA.
    (2) Each advance payment situation shall be coordinated with the 
head of the cognizant accounting office, before authorization may be 
given, to ensure that there are controls in place to assure proper 
administration of advance payments.

[60 FR 46157, Sept. 5, 1995, as amended at 64 FR 46097, Aug. 23, 1999]



Sec. 2432.407  Interest.

    (d) The Senior Procurement Executive is the agency head's designee 
for the purposes of FAR 32.407(d).

[65 FR 3573, Jan. 21, 2000]

                    Subpart 2432.7--Contract Funding



Sec. 2432.703-3  Contracts crossing fiscal years.

    (b) The contracting officer may enter into a contract, exercise an 
option, or place an order under a contract for severable services for a 
period that begins in one fiscal year and ends in the next fiscal year 
if the period of the contract awarded, option exercised, or order placed 
does not exceed one year.

[65 FR 3573, Jan. 21, 2000]

                     Subpart 2432.9--Prompt Payment



Sec. 2432.903  Policy.

    The Senior Procurement Executive is the agency head's designee for 
the purposes of FAR 32.903(b).

[65 FR 3573, Jan. 21, 2000]



Sec. 2432.906  Contract financing payments.

    (a) Except for construction contracts (see FAR 52.232-27), periods 
for payment shorter than 30 days shall not be specified in contracts 
without the prior approval of the cognizant accounting office to ensure 
that procedures are in place to allow timely payment.

[60 FR 46157, Sept. 5, 1995, as amended at 64 FR 46097, Aug. 23, 1999]



Sec. 2432.908  Contract clauses.

    (c)(1) The Contracting Officer shall insert a clause substantially 
the same as provided at 48 CFR 2452.232-70, Payment Schedule and Invoice 
Submission (Fixed-Price), in all fixed-price solicitations and contracts 
except those for commercial services awarded pursuant to FAR part 12.
    (2) The Contracting Officer shall insert a clause substantially the 
same as provided at 48 CFR 2452.232-71, Voucher Submission (Cost-
Reimbursement), in all cost-reimbursement solicitations and contracts 
when vouchers are to be sent directly to the paying office.

[64 FR 46097, Aug. 23, 1999]

               PART 2433--PROTESTS, DISPUTES, AND APPEALS

Sec.

Sec. 2433.000  Scope of part.

                        Subpart 2433.1--Protests


Sec. 2433.102  General.

Sec. 2433.102-70  Responsibility.

Sec. 2433.103  Protests to the agency.

Sec. 2433.104  Protests to GAO.

Sec. 2433.106  Solicitation provision.

    Authority: 31 U.S.C. 3551-3556; 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 50 FR 46578, Nov. 8, 1985, unless otherwise noted.

[[Page 619]]



Sec. 2433.000  Scope of part.

    This part identifies the responsible agents and sets forth 
procedural requirements for handling protests.

[51 FR 40333, Nov. 6, 1986]

                        Subpart 2433.1--Protests



Sec. 2433.102  General.



Sec. 2433.102-70  Responsibility.

    With the exception of protests filed directly with the Department 
pursuant to FAR 33.103, the Office of General Counsel has responsibility 
for handling matters relating to protests against award of contracts by 
the Department. All written communications from the Department to the 
GAO or other adjudicating body shall be made by the Office of General 
Counsel. The Contracting Officer has responsibility for furnishing the 
Office of General Counsel with all information relating to a protest.

[64 FR 46097, Aug. 23, 1999]



Sec. 2433.103  Protests to the agency.

    (d)(2) Appeals of Contracting Officer protest decisions shall 
include the information required at FAR 33.103(d)(2)(i), (ii), (iii), 
(iv), (v) and (vi).
    (d)(4)(i) Protesters may request an appeal of the Contracting 
Officer's decision on a protest. Such requests shall be made in writing 
to the cognizant HCA not later than 10 days after receipt of the 
Contracting Officer's decision.
    (ii) The HCA, in consultation with the Office of General Counsel, 
shall make all independent reviews of the Contracting Officer's decision 
requested by protesters in accordance with FAR 33.103(d)(4) and provide 
the protester with the HCA's decision on the appeal.
    (f)(1) A determination by the Contracting Officer to award a 
contract pending resolution of a protest as authorized by FAR 33.103 
shall be approved by the HCA in consultation with the Office of General 
Counsel.
    (f)(3) A determination by the Contracting Officer to not suspend 
performance of a contract pending resolution of a protest as authorized 
by FAR 33.103 shall be approved by the HCA in consultation with the 
Office of General Counsel.

[64 FR 46097, Aug. 23, 1999]



Sec. 2433.104  Protests to GAO.

    (a)(1) General. When advised by GAO of the receipt of a protest, the 
Office of General Counsel shall immediately inform the contracting 
activity. The Contracting Officer shall notify the Office of General 
Counsel upon receipt of the copy of the protest from the protestor.
    (2) Upon receipt by the Department of a written request for a formal 
report relating to a protest, the Office of General Counsel, with 
appropriate assistance from the Contracting Officer, shall prepare and 
file the report in accordance with GAO requirements at 4 CFR part 21.
    (c) Protests after award. Protests received after award shall be 
treated in the same manner as those filed with GAO before award in 
accordance with paragraphs (a)(1) and (a)(2) of this section.
    (d) Findings and notice. When the Contracting Officer makes a 
determination to award a contract notwithstanding a protest as 
authorized by FAR 33.104(b)(1)(i-ii), or to continue contractor 
performance as authorized by FAR 33.104(c)(2), that determination of the 
intent to make an award or to continue contract performance shall be 
approved by the HCA after consultation with the Office of General 
Counsel.
    (g) Notice to GAO. If the HCA proposes not to comply with a GAO 
recommendation concerning the resolution of a protest of a procurement 
award, prior to reporting to the Comptroller General concerning that 
decision, the HCA shall obtain the concurrence of the Office of General 
Counsel and the Senior Procurement Executive.

[50 FR 46578, Nov. 8, 1985, as amended at 51 FR 40333, Nov. 6, 1986; 57 
FR 59790, Dec. 15, 1992]



Sec. 2433.106  Solicitation provision.

    The Contracting Officer shall insert the provision at 2452.233-70, 
Review of Contracting Officer Protest Decisions,

[[Page 620]]

in all solicitations for contracts expected to exceed the simplified 
acquisition threshold.

[64 FR 46097, Aug. 23, 1999]

                  PART 2434--MAJOR SYSTEM ACQUISITIONS

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).



Sec. 2434.003  Responsibilities.

    (a) The Senior Procurement Executive is responsible for establishing 
written procedures for implementation of A-109. Such procedures have 
been set out in internal Departmental directives.

[53 FR 46537, Nov. 17, 1988]

[[Page 621]]

             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

        PART 2436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

               Subpart 2436.6--Architect-Engineer Services

Sec.

Sec. 2436.602  Selection of firms for architect-engineer contracts.

Sec. 2436.602-2  Evaluation boards.

Sec. 2436.602-4  Selection authority.

Sec. 2436.602-5  Short selection processes for contracts not to exceed 
          the small purchase limitation.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

               Subpart 2436.6--Architect-Engineer Services



Sec. 2436.602  Selection of firms for architect-engineer contracts.



Sec. 2436.602-2  Evaluation boards.

    (a) Each architect-engineer evaluation board, whether permanent or 
ad hoc (which may include preselection boards), shall consist of at 
least three voting members who are Federal employees from the 
appropriate program area or from Federal offices outside the program 
area as appropriate. One member of each board shall be appointed 
chairperson. Non-voting advisors may also be appointed, including 
private practitioners in architecture, engineering and related 
professions. The members of a permanent board shall be appointed for a 
period of two years. Appointment shall be made by the following 
authorities with copies of appointment memoranda furnished to the 
appropriate contracting activity:
    (1) Assistant Secretary or equivalent for boards appointed at the 
Headquarters level;
    (2) The cognizant program office head for boards appointed at the 
field level.
    (c) Conflict of interest. Each board member, whether voting or 
nonvoting, shall be advised of, and presumed to be familiar with the 
regulations at 24 CFR Part 0, Standards of Conduct, regarding conflicts 
of interest. If at any time during the selection process a board member 
encounters a situation with one or more of the firms being considered 
that might be or might appear to be a conflict of interest, he or she 
will disqualify him or herself and call it to the attention of the 
chairperson for resolution and proper action. The chairperson will refer 
the matter to legal counsel.
    (d) Confidentiality. The evaluation board is to be insulated from 
outside pressures, to the extent practical. No person having knowledge 
of the activities of the board shall divulge information concerning the 
deliberations of the board to any other persons not having a need to 
know such information.

[49 FR 7708, Mar. 1, 1984, as amended at 57 FR 59790, Dec. 15, 1992; 60 
FR 46157, Sept. 5, 1995; 65 FR 3576, Jan. 21, 2000]



Sec. 2436.602-4  Selection authority.

    (a) The final selection decision shall be made by the cognizant 
Primary Organization Head in headquarters, or field program office head.

[65 FR 3577, Jan. 21, 2000]



Sec. 2436.602-5  Short selection processes for contracts not to exceed 
          the small purchase limitation.

    The short selection process described in FAR 36.602-5(a) is 
authorized for use for contracts not expected to exceed the simplified 
acquisition threshold.

[49 FR 7708, Mar. 1, 1984; 49 FR 10930, Mar. 23, 1984, as amended at 57 
FR 59791, Dec. 15, 1992; 64 FR 46098, Aug. 23, 1999]

                     PART 2437--SERVICE CONTRACTING

               Subpart 2437.1--Service Contracts--General

Sec.

Sec. 2437.110  Solicitation provisions and contract clauses.

Subpart 2437.2--Advisory and Assistance Services [Reserved]

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

[[Page 622]]

               Subpart 2437.1--Service Contracts--General



Sec. 2437.110  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause at 2452.237-70, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor Key personnel.
    (b) The Contracting Officer shall insert the clause at 2452.237-71, 
Reproduction of Reports, in solicitations and contracts where the 
Contractor is required to produce, as an end product, publications or 
other written materials.
    (c) The Contracting Officer shall insert the clause at 2452.237-72, 
Coordination of Data Collection Activities, in solicitations and 
contracts where the Contractor is required to collect information from 
ten or more public respondents.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
2452.237-73, Conduct of Work and Technical Guidance, in all service 
contracts other than contracts for commercial services awarded pursuant 
to FAR Part 12.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
2452.237-75, Clearance of Contractor Personnel, in solicitations and 
contracts when contractor personnel will be required to work in and/or 
will have access to HUD facilities on a routine, ongoing basis and/or at 
all hours, e.g., performing custodial, building operations, maintenance, 
or security services. The clause shall be inserted in all solicitations 
and contracts for building/facility management and operations services. 
The clause may be used for other types of contracts (e.g., information 
technology services) when suitable as determined by the Contracting 
Officer.
    (f) The Contracting Officer shall insert the clause at 2452.237-77, 
Observance of Legal Holidays and Administrative Leave, in all 
solicitations and contracts where contractor personnel will be working 
on-site in any HUD office.

[53 FR 46537, Nov. 17, 1988, as amended at 57 FR 59791, Dec. 15, 1992; 
61 FR 19472, May 1, 1996; 64 FR 46098, Aug. 23, 1999]

Subpart 2437.2--Advisory and Assistance Services [Reserved]

            PART 2439--ACQUISITION OF INFORMATION TECHNOLOGY

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).



Sec. 2439.107  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 48 CFR 
2452.239-70, Background Investigations for Sensitive Automated Systems/
Applications, in solicitations and contracts that involve work on, or 
access to, sensitive Departmental automated information systems or 
applications as they are defined in the clause.
    (b) The contracting officer shall insert the clause at 48 CFR 
2452.239-71, Information Technology Virus Security, in solicitations and 
contracts under which the contractor will provide information technology 
hardware, software or data products.

[64 FR 46098, Aug. 23, 1999, as amended at 65 FR 3577, Jan. 21, 2000]

[[Page 623]]

                    SUBCHAPTER G--CONTRACT MANAGEMENT

                   PART 2442--CONTRACT ADMINISTRATION

                   Subpart 2442.7--Indirect Cost Rates

Sec.

Sec. 2442.705  Final indirect cost rates.

Sec. 2442.705-70  Contract clause.

         Subpart 2442.11--Production Surveillance and Reporting


Sec. 2442.1106  Reporting requirements.

Sec. 2442.1107  Contract clause.

           Subpart 2442.15--Contractor Performance Information


Sec. 2442.1502  Policy.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46537, Nov 17, 1988, unless otherwise noted.

                   Subpart 2442.7--Indirect Cost Rates



Sec. 2442.705  Final indirect cost rates.



Sec. 2442.705-70  Contract clause.

    The Contracting Officer shall insert the clause at 2452.242-70, 
Indirect Costs, in cost-reimbursement type solicitations and contracts 
when it is determined that the Contractor will be compensated for 
negotiated or provisional indirect cost rates pending establishment of 
final indirect cost rates.

         Subpart 2442.11--Production Surveillance and Reporting



Sec. 2442.1106  Reporting requirements.

    (a) All contracts for professional or technical services of a 
developmental or advisory nature exceeding $500,000 shall include a 
requirement for the use of systematic project planning and progress 
reporting. The Contracting Officer may require the use of such project 
planning and reporting systems for contracts below the above threshold.

[65 FR 3577, Jan. 21, 2000]



Sec. 2442.1107  Contract clause.

    The Contracting Officer shall insert a clause substantially the same 
as the clause at 48 CFR 2452.242-71, Project Management System, in 
solicitations and contracts for services as described in 2442.1106 
expected to exceed $500,000. Use of this clause below the stated 
threshold is at the discretion of the Contracting Officer.

[65 FR 3577, Jan. 21, 2000]

           Subpart 2442.15--Contractor Performance Information

    Source: 64 FR 46098, Aug. 23, 1999, unless otherwise noted.



Sec. 2442.1502  Policy.

    The Chief Procurement Officer is responsible for establishing past 
performance evaluation procedures and systems as required by FAR 42.1502 
and 42.1503.

                      PART 2446--QUALITY ASSURANCE

                       Subpart 2446.5--Acceptance

Sec.

Sec. 2446.502  Responsibility for acceptance.

Sec. 2446.502-70  Contract clause.

                       Subpart 2446.7--Warranties


Sec. 2446.710  Contract clauses.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46537, Nov. 17, 1988, unless otherwise noted.

                       Subpart 2446.5--Acceptance



Sec. 2446.502  Responsibility for acceptance.



Sec. 2446.502-70  Contract clause.

    The Contracting Officer shall insert the clause at 2452.246-70, 
Inspection and Acceptance, in solicitations and contracts unless 
inspection and acceptance will be performed by someone other than the 
Government Technical Representative (GTR).

[[Page 624]]

                       Subpart 2446.7--Warranties



Sec. 2446.710  Contract clauses.

    (c)(1) The contracting officer may include a clause substantially 
the same as FAR 52.246-19, Warranty of Systems and Equipment under 
Performance Specifications or Design Criteria, whenever it is in the 
Government's interest.

[57 FR 59791, Dec. 15, 1992]

                   PART 2449--TERMINATION OF CONTRACTS

    Authority: Sec. 7(d) of the Department of Housing and Urban 
Development Act (42 U.S.C. 3535(d)).

    Source: 49 FR 7708, Mar. 1, 1984, unless otherwise noted.

                   Subpart 2449.1--General Principles



Sec. 2449.111  Review of proposed settlements.

    The Head of the Contracting Activity shall establish internal 
procedures to ensure the independent review of proposed termination 
settlements in excess of $100,000.

           PART 2451--USE OF GOVERNMENT SOURCES BY CONTRACTORS

   Subpart 2451.70--Contractor Use of Government Discount Travel Rates

Sec.

Sec. 2451.7001  Contract clause.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 64 FR 46098, Aug. 23, 1999, unless otherwise noted.

   Subpart 2451.70--Contractor Use of Government Discount Travel Rates



Sec. 2451.7001  Contract clause.

    The Contracting Officer shall insert the clause at 48 CFR 2452.251-
70, Contractor Employee Travel, in cost-reimbursement solicitations and 
contracts involving contractor travel.

[[Page 625]]

                     SUBCHAPTER H--CLAUSES AND FORMS

         PART 2452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

             Subpart 2452.2--Texts of Provisions and Clauses

Sec.

Sec. 2452.203-70  Prohibition against the use of Federal employees.

Sec. 2452.209-70  Potential organizational conflicts of interest.

Sec. 2452.209-71  Limitation on future contracts.

Sec. 2452.209-72  Organizational conflicts of interest.

Sec. 2452.211-70  Contract period.

Sec. 2452.215-70  Proposal content.

Sec. 2452.216-70  Estimated cost, base fee, and award fee.

Sec. 2452.216-71  Payment of base and award fee.

Sec. 2452.216-72  Determination of award fee earned.

Sec. 2452.216-73  Performance evaluation plan.

Sec. 2452.216-74  Distribution of award fee.

Sec. 2452.216-75  Unpriced task orders.

Sec. 2452.219-70  Small, small disadvantaged, and women-owned small 
          business subcontracting plan.

Sec. 2452.219-71  Submission of subcontracting reports.

Sec. 2452.222-70  Accessibility of meetings, conferences, and seminars 
          to persons with disabilities.

Sec. 2452.226-70  Certification of status as a minority business 
          enterprise.

Sec. 2452.232-70  Payment schedule and invoice submission (fixed-price).

Sec. 2452.232-71  Voucher submission (cost-reimbursement).

Sec. 2452.233-70  Review of contracting officer protest decisions.

Sec. 2452.237-70  Key personnel.

Sec. 2452.237-71  Reproduction of reports.

Sec. 2452.237-72  Coordination of data collection activities.

Sec. 2452.237-73  Conduct of work and technical guidance..

Sec. 2452.237-75  Clearance of contractor personnel.

Sec. 2452.237-77  Observance of legal holidays and administrative leave.

Sec. 2452.239-70  Background investigations for sensitive automated 
          systems/applications.

Sec. 2452.239-71  Information Technology Virus Security.

Sec. 2452.242-70  Indirect costs.

Sec. 2452.242-71  Project management system.

Sec. 2452.246-70  Inspection and acceptance.

Sec. 2452.251-70  Contractor employee travel.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46538, Nov. 17, 1988, unless otherwise noted.

             Subpart 2452.2--Texts of Provisions and Clauses



Sec. 2452.203-70  Prohibition against the use of Federal employees.\5\
---------------------------------------------------------------------------

    \5\ This HUDAR clause has been submitted to the FAR Secretariat for 
consideration as FAR coverage with Governmentwide application. In the 
event that similar FAR coverage is issued, HUD will rescind the 
corresponding HUDAR text.
---------------------------------------------------------------------------

    As prescribed in 2403.670, insert the following clause in 
solicitations and contracts:

       Prohibition Against the Use of Federal Employees (DEC 1992)

    In accordance with Federal Acquisition Regulation 3.601, contracts 
are not to be awarded to Federal employees or a business concern or 
other organization owned or substantially owned or controlled by one or 
more Federal employees. For the purposes of this contract, this 
prohibition against the use of Federal employees includes any work 
performed by the Contractor or any of its employees, subcontractors, or 
consultants.

                             (End of clause)

[57 FR 59791, Dec. 15, 1992]



Sec. 2452.209-70  Potential organizational conflicts of interest.

    As prescribed in 2409.507-1, the Contracting Officer may insert a 
provision substantially the same as follows in solicitations:

        Potential Organizational Conflicts of Interest (FEB 2000)

    (a) The Contracting Officer has determined that the proposed 
contract contains a potential organizational conflict of interest. 
Offerors are directed to FAR subpart 9.5 for detailed information 
concerning organizational conflicts of interest.
    (b) The nature of the potential conflict of interest is [Contracting 
Officer insert description]:
    (c) Offerors shall provide a statement which describes concisely all 
relevant facts concerning any past, present or planned interest 
(financial, contractual, organizational, or otherwise) relating to the 
work to

[[Page 626]]

be performed under the proposed contract and bearing on whether the 
offeror has a possible organizational conflict of interest with respect 
to:
    (1) Being able to render impartial, technically sound, and objective 
assistance or advice, or
    (2) Being given an unfair competitive advantage. The offeror may 
also provide relevant facts that show how its organizational structure 
and/or management systems limit its knowledge of possible organizational 
conflicts of interest relating to other divisions or sections of the 
organization and how that structure or system would avoid or mitigate 
such organizational conflict.
    (d) No award shall be made until any potential conflict of interest 
has been neutralized or mitigated to the satisfaction of the Contracting 
Officer.
    (e) Refusal to provide the requested information or the willful 
misrepresentation of any relevant information by an offeror shall 
disqualify the offeror from further consideration for award of a 
contract under this solicitation.
    (f) If the Contracting Officer determines that a potential conflict 
can be avoided, effectively mitigated, or otherwise resolved through the 
inclusion of a special contract clause, the terms of the clause will be 
subject to negotiation.

                           (End of provision)

[65 FR 3577, Jan. 21, 2000]



Sec. 2452.209-71  Limitation on future contracts.

    As prescribed in 2409.507-2, the Contracting Officer may insert a 
clause substantially the same as follows in solicitations and contracts 
for services:

                Limitation on Future Contracts (FEB 2000)

    (a) The Contracting Officer has determined that this contract may 
give rise to potential organizational conflicts of interest as defined 
at FAR subpart 9.5.
    (b) The nature of the potential conflict of interest is [Contracting 
Officer insert description]
    (c) If the contractor, under the terms of this contract or through 
the performance of tasks pursuant to this contract, is required to 
develop specifications or statements of work that are to be incorporated 
into a solicitation, the contractor shall be ineligible to perform the 
work described in that solicitation as a prime or first-tier 
subcontractor under any ensuing HUD contract.
    (d) Other restrictions--[Contracting Officer insert description].
    (e) The restrictions imposed by this clause shall remain in effect 
until [Contracting Officer insert period or date].

                             (End of clause)

[65 FR 3577, Jan. 21, 2000]



Sec. 2452.209-72  Organizational conflicts of interest.

    As prescribed in 2409.508-2, insert the following contract clause in 
all contracts.

             Organizational Conflicts of Interest (APR 1984)

    (a) The Contractor warrants that to the best of its knowledge and 
belief and except as otherwise disclosed, he or she does not have any 
organizational conflict of interest which is defined as a situation in 
which the nature of work under a Government contract and a Contractor's 
organizational, financial, contractual or other interests are such that:
    (1) Award of the contract may result in an unfair competitive 
advantage; or
    (2) The Contractor's objectivity in performing the contract work may 
be impaired.
    (b) The Contractor agrees that if after award he or she discovers an 
organizational conflict of interest with respect to this contract, he or 
she shall make an immediate and full disclosure in writing to the 
Contracting Officer which shall include a description of the action 
which the Contractor has taken or intends to take to eliminate or 
neutralize the conflict.
    The Government may, however, terminate the contract for the 
convenience of the Government if it would be in the best interest of the 
Government.
    (c) In the event the Contractor was aware of an organizational 
conflict of interest before the award of this contract and intentionally 
did not disclose the conflict to the Contracting Officer, the Government 
may terminate the contract for default.
    (d) The provisions of this clause shall be included in all 
subcontracts and consulting agreements wherein the work to be performed 
is similar to the service provided by the prime contractor. The 
Contractor shall include in such subcontracts and consulting agreements 
any necessary provisions to eliminate or neutralize conflicts of 
interest.

                             (End of clause)



Sec. 2452.211-70  Contract period.

    As prescribed in 2411.404(a), insert the following clause in all 
solicitations and contracts:

[[Page 627]]

                       Contract Period (APR 1984)

    The Contractor shall complete all work hereunder, including delivery 
of the final report, if required, within ---------- months from the 
effective date of the contract.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988. Redesignated and amended at 61 FR 19472, 
May 1, 1996]



Sec. 2452.215-70  Proposal Content.

    As prescribed in 2415.209(a), insert a provision substantially the 
same as the following:

                       Proposal Content (FEB 2000)

    (a) Proposals shall be submitted in two parts as described in 
paragraphs (b) and (c) below. Each of the parts must be complete in 
itself so that evaluation of each part may be conducted independently, 
and so that the technical and management part may be evaluated strictly 
on its own merit. Proposals shall be submitted in the format, if any, 
prescribed elsewhere in this solicitation. Proposals shall be enclosed 
in sealed packaging and addressed to the office specified in the 
solicitation. The offeror's name and address, the solicitation number 
and the date and time specified in the solicitation for proposal 
submission must appear in writing on the outside of the package.
    (b) Proposals shall be submitted in original and [insert number] 
copies of Part I and [insert number] copies of Part II.
    (c) Part I--Technical and Management.
    (1) Prior experience. The offeror shall provide evidence of the 
offeror's (i.e., firm's or organization's) prior and current experience 
in performing the work and/or providing the deliverables required by the 
solicitation.
    (2) Past Performance. The offeror shall provide evidence of the 
offeror's past performance in accomplishing work--including meeting 
delivery dates and schedules--the same as, or substantially similar to, 
that required by the solicitation. The offeror shall provide references 
as follows [Contracting Officer insert specific instruction for 
reference check information required].
    (3) Personnel qualifications. The offeror shall provide the names, 
position descriptions and information to support the qualifications--
including relevant experience, specialized training and education--of 
all proposed key personnel (see the clause entitled ``Key Personnel'' in 
this solicitation for further definition). The term ``personnel'' shall 
include any proposed consultants and subcontractor employees who will 
perform duties of key personnel.
    (4) Management Capability. The offeror shall provide evidence of 
his/her organization's ability to manage the work required under the 
proposed contract. The offeror shall describe how the work will be 
organized, the proposed staffing and the responsibilities and existing 
commitments of proposed staff.
    (5) Technical Capability. The offeror shall provide a detailed 
description of how he/she proposes to conduct the work required under 
the proposed contract.
    (6) Mandatory Minimum Requirements. The offeror shall provide 
evidence, including copies of documents, as appropriate of [contracting 
officer insert description of requirement(s), e.g., licenses, minimum 
experience, etc., or delete this paragraph if not applicable].
    (d) Part II--Business Proposal.
    (1) The Offeror shall complete the Representations and 
Certifications provided in Section K of this solicitation and include 
them in this Part II.
    (2) The offeror shall provide information to support the offeror's 
proposed costs or prices as prescribed elsewhere in this Section L.

                           (End of provision)

    Alternate I (OCT 1999). As prescribed in 2415.209(a), if the award 
selection will be made through the lowest-priced technically acceptable 
proposal method, substitute paragraph (c) with the following:

    (c) Part I--Technical and Management Information.
    (1) Prior experience. The offeror shall provide evidence that the 
offeror's (i.e., firm's or organization's) prior experience meets the 
following minimum standards: [contracting officer insert specific 
experience requirements].
    (2) Past Performance. The offeror shall provide evidence of the 
offeror's past performance as follows: [contracting officer insert 
specific performance requirements]. The offeror shall provide references 
as follows [contracting Officer insert specific instruction for 
reference check information required].
    (3) Personnel qualifications. The offeror shall provide the names, 
position descriptions and evidence that proposed key personnel (see the 
clause entitled ``Key Personnel'' elsewhere in this solicitation for 
definition) meet the minimum qualifications described below. The term 
``personnel'' includes any proposed consultants and subcontractor 
employees who will perform duties of key personnel. The minimum 
qualifications are: [contracting officer insert descriptions]
    (4) Management Capability. The offeror shall provide evidence of 
his/her organization's ability to manage the work required under the 
proposed contract. The offeror shall describe how the work will be 
organized, the proposed staffing and the responsibilities and existing 
commitments of proposed staff.

[[Page 628]]

                           (End of provision)

    Alternate II (OCT 1999). As prescribed in 2415.209(a), if the 
proposed contract requires work on, or access to, sensitive automated 
systems as described in 2452.239-70, add the following subparagraph, 
numbered sequentially, to paragraph (c):

    The offeror shall describe in detail how the offeror will maintain 
the security of automated systems as required by clause at 48 CFR 
2452.239-70 in Section I of this solicitation.

                           (End of provision)

[61 FR 19472, May 1, 1996, as amended at 64 FR 46098, Aug. 23, 1999; 65 
FR 3573, Jan. 21, 2000]



Sec. 2452.216-70  Estimated cost, base fee, and award fee.

    As prescribed in 2416.405(e)(1), insert the following clause in all 
award fee contracts.

           Estimated Cost, Base Fee, and Award Fee (APR 1984)

    The estimated cost of this contract is $ (Insert Amount). A base fee 
of $ (Insert Amount) is payable in accordance with the clause entitled 
Payment of Base and Award Fee. In addition, a maximum Award Fee of $ 
(Insert Amount) is available for payment in accordance with the clause 
entitled Payment of Base and Award Fee.

                             (End of clause)



Sec. 2452.216-71  Payment of base and award fee.

    As prescribed in 2416.405(e)(1), insert the following clause in all 
award fee contracts.

                Payment of Base and Award Fee (AUG 1987)

    (a) Base Fee. The Government will make payment of the base fee in 
(insert number) increments on the schedule set forth in the Performance 
Evaluation Plan established by the Government. The amount payable shall 
be based on the progress toward completion of contract tasks as 
determined by the Contracting Officer. Payment of the base fee is 
subject to any withholdings as provided for elsewhere in this contract.
    (b) Award Fee. The Government shall make payments of the award fee 
in accordance with the schedule established in the Performance 
Evaluation Plan and the Evaluation Period(s) set forth in the 
Distribution of Award Fee clause.

                             (End of clause)



Sec. 2452.216-72  Determination of award fee earned.

    As prescribed in 2416.405(e)(1), insert the following clause in all 
award fee contracts.

              Determination of Award Fee Earned (AUG 1987)

    (a) At the conclusion of each evaluation period specified in the 
Performance Evaluation Plan, the Government shall evaluate the 
contractor's performance and determine the amount, if any, of award fee 
earned by the contractor. The amount of award fee to be paid will be 
determined by the designated Fee Determination Official's (FDO) 
judgmental evaluation in accordance with the criteria set forth in the 
Performance Evaluation Plan. This decision is made unilaterally by the 
Government and is not subject to the disputes clause or the provisions 
of the Contract Disputes Act of 1978, 41 U.S.C. 601 et seq. In reaching 
this decision, the FDO may consider any justification of award fee the 
Contractor submits, provided that the justification is submitted within 
(insert number) days after the end of an evaluation period. The FDO 
determination shall be in writing, shall set forth the basis of the 
FDO's decision, and shall be sent to the Contractor within (insert 
number) days after the end of the evaluation period.
    (b) The FDO may specify in any fee determination that fee not earned 
during the period evaluated may be accumulated and be allocated for 
award during a later evaluation period. The Distribution of Award Fee 
clause shall be amended to reflect the allocation.

                             (End of clause)



Sec. 2452.216-73  Performance evaluation plan.

    As prescribed in 2416.405(e)(1), insert the following clause in all 
award fee contracts.

                 Performance Evaluation Plan (AUG 1987)

    (a) The Government shall unilaterally establish a Performance 
Evaluation Plan that will provide the basis for the determination of the 
amount of award fee awarded under the contract. The Plan shall set forth 
evaluation criteria and percentage of award fee available for (1) 
technical functions, including schedule requirements if appropriate, (2) 
management functions; and, (3) cost functions. The Government shall 
furnish a copy of the Plan to the Contractor (insert number) days before 
the start of the first evaluation period.

[[Page 629]]

    (b) The Government may unilaterally change the award fee plan prior 
to the beginning of subsequent evaluation periods. The Contracting 
Officer will provide such changes in writing to the Contractor prior to 
the beginning of the applicable evaluation period.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988, as amended at 64 FR 46098, Aug. 23, 1999]



Sec. 2452.216-74  Distribution of award fee.

    As prescribed in 2416.405(e)(1), insert the following clause in all 
award fee contracts.

                  Distribution of Award Fee (APR 1984)

    (a) The total amount of award fee available under this contract is 
assigned to the following evaluation periods in the following amounts:

Evaluation Period:______________________________________________________
Available Award Fee:____________________________________________________

    (b) In the event of contract termination, either in whole or in 
part, the amount of award fee available shall represent a pro-rata 
distribution associated with evaluation period activities or events as 
deteremined by the Fee Determination Official as designated in the 
contract. The contract clauses required for cost reimbursement contracts 
should be modified for use under award fee contracts as cited below:
    (1) The term ``base fee and award fee'' should be substituted for 
``fixed-fee'' where it appears in the clause at FAR 52.243-2, Changes.
    (2) The term ``base fee'' should be substituted for ``fee'' where it 
appears in the clauses at FAR 52.232-20, Limitation of Costs, and FAR 
52.232-22, Limitation of Funds.
    (3) The phrase ``base fee, if any, and such additional fee as may be 
awarded as provided for in the Schedule''; should be substituted for the 
term ``fee'' whenever it appears in the clause at FAR 52.216-7, 
Allowable Cost and Payment.

                             (End of clause)



Sec. 2452.216-75  Unpriced task orders.

    As prescribed in 2416.504(e), insert the following clause:

                     Unpriced Task Orders (APR 1984)

    (a) Although it is anticipated that the Government and the 
Contractor will reach agreement on the total cost and fee or profit (if 
applicable) for the effort to be undertaken, prior to the issuance of a 
Task Order, there may be occasions when the Government wishes to 
authorize commencement of work prior to agreement on price. If this is 
the case, a Task Order may be issued which provides that the Contractor 
shall immediately commence performance of the services specified in the 
order, and shall submit a pricing proposal within fifteen days of 
receipt of the Task Order. Upon negotiations of the cost, a supplemental 
agreement shall be executed to make specific all terms and conditions of 
the Task Order. Failure to agree for costs ordered under this procedure 
shall be considered a dispute within the meaning of the clause of this 
contract entitled Disputes.
    (b) Unpriced Task Orders shall indicate a ``not-to-exceed'' amount 
for the order; however, such amount shall not exceed 50 percent of the 
estimated cost of the Task Order. The Task Order shall only require the 
Contracting Officer's signature, but shall comply with all other Task 
Order requirements.

                             (End of clause)

[53 FR 46538, Nov. 17, 1988, as amended at 57 FR 59792, Dec. 15, 1992]



Sec. 2452.219-70  Small, small disadvantaged, and women-owned small 
          business subcontracting plan.

    As prescribed in 2419.708, insert the following provision:

Small, Small Disadvantaged and Women-Owned Small Business Subcontracting 
                             Plan (OCT 1995)

    (a) This provision is not applicable to small business concerns.
    (b) Consistent with the national interest, it is HUD policy that 
small business, women-owned small business and small business concerns 
that are owned and controlled by socially and economically disadvantaged 
individuals shall have the maximum practicable opportunity to 
participate in the performance of HUD work at the prime and subcontract 
level. Therefore, any contract awarded as a result of this solicitation 
shall fully comply with the intent of this policy, and the successful 
offeror shall agree to pursue an effective and comprehensive small 
business, small disadvantaged business and women-owned small business 
subcontracting program in compliance with the clause entitled 
``Utilization of Small, Small Disadvantaged and Women-Owned Small 
Business Concerns.''
    (c) Prior compliance with subcontracting plans shall be considered 
in determining the responsibility of an offeror (see FAR 9.104-3). 
Therefore, offerors having previous contracts with subcontracting plans 
shall provide the following information: agency name; agency point of 
contact; contract number; total contract value; a synopsis of the work 
required

[[Page 630]]

under the contract; the role(s) of the subcontractor(s) involved; and, 
the applicable goals and actual performance (dollars and percentages) 
for subcontracting with small, small disadvantaged and women-owned small 
business concerns. This information shall be provided for the three most 
recently (within the last three years) completed contracts with such 
subcontracting plans.
    (d) The contract expected to result from this solicitation will 
contain the clause at FAR 52.219-9, ``Small, Small Disadvantaged and 
Women-Owned Small Business Subcontracting Plan.'' In accordance with 
that clause, the offeror shall submit the complete subcontracting plan 
with the response to this solicitation. The content of the final plan is 
subject to negotiation. Failure to submit a complete subcontracting plan 
and negotiate its content in good faith shall make the offeror 
ineligible for the contract award.

                           (End of provision)

    Alternate I (DEC 1992). This alternate is required for all sealed 
bid solicitations exceeding $500,000 ($1,000,000 for construction) that 
are not set aside for small business. In such cases, insert the 
following paragraph (d) for that in the basic clause:

    (d) The contract expected to result from this solicitation will 
contain the clause at FAR 52.219-9, ``Small, Small Disadvantaged and 
Women-Owned Small Business Subcontracting Plan (Alternate I).'' The 
offeror submitting the apparent low bid, upon request by the Contracting 
Officer, shall submit a subcontracting plan, where applicable, which 
addresses separately subcontracting with small, small disadvantaged 
business and women-owned small business concerns, and which shall be 
included in and made a part of the resultant contract. The Contracting 
Officer will review the adequacy of the subcontracting plan as part of 
the responsibility determination (FAR Subpart 9.1). Failure to submit an 
adequate subcontracting plan where applicable shall make the bidder 
ineligible for the contract award.

                           (End of provision)

(Approved by the Office of Management and Budget under control number 
2535-0091)

[57 FR 59792, Dec. 15, 1992, as amended at 60 FR 46159, Sept. 5, 1995; 
61 FR 19473, May 1, 1996]



Sec. 2452.219-71  Submission of subcontracting reports.

    As prescribed in 2419.708(f) insert the following clause:

             Submission of Subcontracting Reports (OCT 1999)

    The Contractor shall submit the Standard Form (SF) 294, 
Subcontracting Report for Individual Contracts and SF 295, Summary 
Subcontract Report, in accordance with the instructions on the forms, 
except that, one copy of each form and any attachments shall be 
submitted to: Director, Office of Small and Disadvantaged Business 
Utilization, U.S. Department of HUD, 451 Seventh Street, SW, Room 3130 
(SS), Washington, DC 20410-1000.

                             (End of clause)

[64 FR 46098, Aug. 23, 1999]



Sec. 2452.222-70  Accessibility of meetings, conferences, and seminars 
          to persons with disabilities.

    As prescribed in 2422.1408(c), insert the following clause in all 
solicitations and contracts.

  Accessibility of Meetings, Conferences, and Seminars to Persons With 
                         Disabilities (JUL 1988)

    The contractor shall assure that any meeting, conference, or seminar 
held pursuant to the contract will meet all applicable standards for 
accessibility to persons with disabilities pursuant to section 504 of 
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) and any 
implementing regulations of the Department.

                             (End of clause)



Sec. 2452.226-70  Certification of status as a minority business 
          enterprise.

    As prescribed in 2426.222-7003, insert the following provision in 
all solicitations:

  Certification of Status as a Minority Business Enterprise (AUG 1995)

    Bidder, Offeror or Supplier certifies that he or she ------ is, ----
-- is not, (check one), a minority business enterprise which is defined 
as a business which is at least 51 percent owned by one or more minority 
group members or, in the case of a publicly owned business, at least 51 
percent of its voting stock is owned by one or more minority group 
members, and whose management and daily operations are controlled by one 
or more such individuals. For the purpose of this definition, minority 
group members are:

                    (Check the box applicable to you)

[  ] Black Americans
[  ] Hispanic Americans
[  ] Native Americans
[  ] Asian Pacific Americans

[[Page 631]]

[  ] Asian Indian Americans

[60 FR 46159, Sept. 5, 1995, as amended at 65 FR 3573, Jan. 21, 2000]



Sec. 2452.232-70  Payment schedule and invoice submission (fixed-price).

    As prescribed in 2432.908(a), insert a clause substantially the same 
as the following in all fixed-price solicitations and contracts:

    Payment Schedule and Invoice Submission (Fixed-Price) (OCT 1999)

    (a) General. The Government shall pay the Contractor as full 
compensation for all work required, performed and accepted under this 
contract, inclusive of all costs and expenses, the firm fixed-price 
stated in Part I, Section B of this contract.
    (b) Payment Schedule. Payment of the contract price will be made 
upon completion and acceptance of all work unless a partial payment 
schedule is included below [Contracting Officer insert schedule 
information]:

----------------------------------------------------------------------------------------------------------------
                                         Applicable contract
        Partial payment number               deliverable             Delivery date            Payment amount
----------------------------------------------------------------------------------------------------------------
1. [  ]
2. [  ]
3. [  ]
(Continue as necessary)
----------------------------------------------------------------------------------------------------------------

    (c) Submission of Invoices. Invoices shall be submitted as follows--
original to the payment office identified on the award document (e.g., 
in Block 12 on the SF-26 or Block 25 on the SF-33, or elsewhere in the 
contract) and one copy each to the Government Technical Representative 
and Contracting Officer. To constitute a proper invoice, the invoice 
must include all items required by FAR clause 52.232-25, ``Prompt 
Payment.''
    To assist the Government in making timely payments, the Contractor 
is also requested to include on each invoice the appropriation number 
shown on the contract award document (e.g., in Block 14 on the SF-26 or 
Block 21 on the SF-33). The Contractor is also requested to clearly 
indicate on the mailing envelope that an invoice is enclosed.
    (d) Contractor Remittance Information. The contractor shall provide 
the payment office with all information required by FAR clause 52.232-
33, ``Mandatory Information for Electronic Funds Transfer Payment,'' 
52.232.34, ``Optional Information for Electronic Funds Transfer 
Payment,'' or other supplemental information (contracts for commercial 
services) as applicable.

[64 FR 46099, Aug. 23, 1999]



Sec. 2452.232-71  Voucher submission (cost-reimbursement).

    As prescribed in 2432.908(b), insert a clause substantially the same 
as the following in all cost-reimbursement solicitations and contracts:

           Voucher Submission (Cost-Reimbursement) (OCT 1999)

    (a) The Contractor shall submit, on a monthly basis [Contracting 
Officer may substitute a different time frame, if appropriate], an 
original and two (2) copies of each voucher. In addition to the items 
necessary per FAR 52.232-25, ``Prompt Payment,'' the voucher shall show 
the elements of cost for the billing period and the cumulative costs to 
date. All vouchers shall be distributed as follows, except for the final 
voucher which shall be submitted in all copies to the Contracting 
Officer--original to the payment office (e.g., in Block 12 on the SF-26 
or Block 25 on the SF-33, or elsewhere in the contract) and one copy 
each to the Government Technical Representative and the Contracting 
Officer identified on the award document.
    To assist the Government in making timely payments, the Contractor 
is requested to include on each voucher the appropriation number shown 
on the award document (e.g., Block 14 of the SF-26 or Block 21 of the 
SF-33). The Contractor is also requested to clearly indicate on the 
mailing envelope that a payment voucher is enclosed.
    (b) Contractor Remittance Information. The contractor shall provide 
the payment office with all information required by FAR clause 52.232-
33, ``Mandatory Information for Electronic Funds Transfer Payment'' or 
52.232.34, ``Optional Information for Electronic Funds Transfer 
Payment,'' as applicable.

                             (End of clause)

[64 FR 46099, Aug. 23, 1999]



Sec. 2452.233-70  Review of Contracting Officer protest decisions.

    As prescribed in 2433.106, insert the following provision:

[[Page 632]]

       Review of Contracting Officer Protest Decisions (OCT 1999)

    (a) In accordance with FAR 33.103 and HUDAR 2433.103, a protester 
may request an appeal of the Contracting Officer's decision concerning a 
protest initially made by the protester to the Contracting Officer. Such 
requests shall be made in writing to the cognizant Head of the 
Contracting Activity (HCA, see definition at HUDAR subpart 2402.1) 
within 10 days (see FAR 33.101 for the definition of ``days'') of the 
protestor's notification of the Contracting Officer's decision.
    (b) The cognizant HCA shall make an independent review of the 
Contracting Officer's decision and provide the protester with the HCA's 
decision on the appeal.

                             (End of clause)

[64 FR 46099, Aug. 23, 1999]



Sec. 2452.237-70  Key personnel.

    As prescribed in 2347.110(a), insert the following clause in 
solicitations and contracts when it is necessary for contract 
performance to identify the Contractor's key personnel.

                        Key Personnel (APR 1984)

    The personnel specified below are considered to be essential to the 
work being performed under this contract. Prior to diverting any of the 
specified individuals to other projects, the Contractor shall notify the 
Contracting Officer reasonably in advance and shall submit justification 
(including proposed substitutions) in sufficient detail to permit 
evaluation of the impact on the program. No diversion shall be made by 
the Contractor without the written consent of the Contracting Officer: 
Provided, that the Contracting Officer may ratify in writing such 
diversion and such ratification shall constitute the consent of the 
Contracting Officer required by this clause. This clause may be amended 
from time to time during the course of the contract to either add or 
delete personnel, as appropriate.

                          (List Key Personnel)

                             (End of clause)



Sec. 2452.237-71  Reproduction of reports.

    As prescribed in 2437.110(b), insert the following clause in 
solicitations and contracts where the Contractor is required to produce, 
as an end product, publications or other written materials.

                   Reproduction of Reports (APR 1984)

    In accordance with Title I of the Government Printing and Binding 
Regulations, printing of reports, data, or other written material, if 
required herein, is authorized provided that the material produced does 
not exceed 5,000 production units of any page and that items consisting 
of multiple pages do not exceed 25,000 production units in aggregate. 
The aggregate number of production units is determined by multiplying 
pages times copies. A production unit is one set, size 8\1/2\ by 11 
inches or less, printed on one side only and in one color. All copy 
preparation to produce camera ready copy for reproduction must be set by 
methods other than hot metal typesetting. The reports should be produced 
by methods employing stencils, masters, and plates which are to be used 
in single unit duplicating equipment no larger than 11 by 17 inches with 
a maximum image of 10\3/4\ by 14\1/4\ inches and are prepared by methods 
or devices that do not utilize reusable contact negatives and/or 
positives prepared with a camera requiring a darkroom. All reproducibles 
(camera ready copies for reproduction by photo offset methods) shall 
become the property of the Government and shall be delivered to the 
Government with the report, data, or other written materials.

                             (End of clause)



Sec. 2452.237-72  Coordination of data collection activities.

    As prescribed in 2437.110(c), insert the following clause in 
solicitations and contracts where the Contractor is required to collect 
identical information from ten or more public respondents.

          Coordination of Data Collection Activities (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten or more public 
respondents, the Paperwork Reduction Act (44 U.S.C. 3501-3520) applies. 
In that event, the Contractor shall not take any action to solicit 
information from any of the public respondents until notified in writing 
by the Contracting Officer that the required Office of Management and 
Budget (OMB) final clearance was received.

                             (End of clause)



Sec. 2452.237-73   Conduct of work and technical guidance.

    As prescribed in 2437.110(d), insert the following clause in all 
contracts for services:

[[Page 633]]

            Conduct of Work and Technical Guidance (OCT 1999)

    (a) The Government Technical Representative (GTR) for liaison with 
the Contractor as to the conduct of work is [insert name] or a successor 
designated by the Contracting Officer. The Contracting Officer will 
notify the contractor in writing of any change to the current GTR's 
status or the designation of a successor GTR.
    (b) The GTR will provide guidance to the contractor on the technical 
performance of the contract. Such guidance shall not be of a nature 
which:
    (1) Causes the Contractor to perform work outside the scope of the 
contract;
    (2) Constitutes a change as defined in FAR 52.243-1;
    (3) Causes an increase or decrease in the cost of the contract;
    (4) Alters the period of performance or delivery dates; or,
    (5) Changes any of the other express terms or conditions of the 
contract.
    (c) The GTR will issue technical guidance in writing or, if issued 
orally, he/she will confirm such direction in writing within five 
calendar days after oral issuance. The GTR may issue such guidance via 
telephone facsimile or electronic mail.

                             (End of clause)

[64 FR 46099, Aug. 23, 1999]



Sec. 2452.237-75   Clearance of contractor personnel.

    As prescribed in 2437.110(e), insert the following clause in 
solicitations and contracts.

              Clearance of Contractor Personnel (OCT 1999)

    (a) General. This contract requires contractor employees to work in, 
and have access to, a HUD facility. All such employees shall be required 
to provide background information and obtain a HUD building pass prior 
to working in the HUD facility.
    (b) Background information. (1) For each contractor employee subject 
to the requirements of this clause, the contractor shall complete and 
deliver to the Government Technical Representative (GTR) the following 
forms: Form FD-258, ``Fingerprinting Charts'' (original and one copy); 
and GSA Form 176, ``Statement of Personal History'' (original and one 
copy). The GTR will provide the contractor with blank forms upon 
request.
    (2) The contractor shall deliver the forms required by paragraph 
(b)(1) to the GTR within five (5) calendar days after contract award or 
not later than five (5) calendar days before a covered employee will 
begin work at the HUD facility.
    (3) The information provided in accordance with paragraph (b)(1) 
will be used to perform a background check to determine the eligibility 
of the contractor employees to work in the HUD facility. After 
completion of such review, the GTR shall notify the contractor in 
writing of any contractor employees' ineligibility to work in the HUD 
facility. The contractor shall immediately remove such employees from 
work on this contract which requires the employees' physical presence in 
the HUD facility.
    (c) Building passes. (1) HUD will issue a building pass to each 
contractor employee determined to be eligible pursuant to the background 
check in paragraph (b). The Contractor shall provide the GTR with the 
names and Social Security numbers of all such employees. Contractor 
employees shall have their building passes on their persons at all times 
while working on HUD premises and shall present passes for inspection 
upon request by HUD officials or HUD security personnel.
    (2) Building passes shall identify individuals as contractor 
employees and shall have an expiration date not exceeding the current 
term of the contract. Passes shall be renewed for each succeeding 
contract period, if any.
    (3) The contractor shall return a contractor employee's pass to the 
GTR when the employment of any such employee is terminated, or when the 
employee no longer has a need for access to the HUD facility. Upon 
expiration of this contract, the contractor shall return to the GTR all 
building passes issued by HUD and not previously returned. The 
contractor is responsible for accounting for all passes issued to the 
contractor's employees.
    (d) Control of access. HUD shall have and exercise full and complete 
control over granting, denying, withholding, and terminating access of 
contractor employees to HUD facilities. The GTR will notify the 
contractor immediately when HUD has determined that an employee is 
unsuitable or unfit for his/her assigned contractual duties, and 
therefore will no longer be permitted access to the HUD facility. The 
contractor shall take immediate steps to remove such an employee from 
working on this contract and provide a suitable replacement.
    (e) Subcontracts. The contractor shall incorporate this clause in 
all subcontracts where the requirements specified in paragraph (a) of 
this section are applicable to performance of the subcontract.

                             (End of clause)

[64 FR 46099, Aug. 23, 1999]

[[Page 634]]



Sec. 2452.237-77  Observance of legal holidays and administrative leave.

    As prescribed in 2437.110(f), insert the following clause:

    Observance of Legal Holidays and Administrative Leave (OCT 1999)

    (a)(1) The Department of Housing and Urban Development observes the 
following days as holidays--

New Year's Day
Martin Luther King's Birthday
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veterans Day
Thanksgiving Day
Christmas Day

    Any other day designated by Federal law, Executive Order, or 
Presidential Proclamation.
    (2) When any holiday specified in (a)(1) falls on a Saturday, the 
preceding Friday shall be observed. When any such holiday falls on a 
Sunday, the following Monday shall be observed. Observances of such days 
by Government personnel shall not be cause for additional period of 
performance or entitlement to compensation except as set forth in the 
contract. If the contractor's personnel work on a holiday, no form of 
holiday or other premium compensation will be reimbursed either as a 
direct or indirect cost, unless authorized pursuant to an overtime 
clause elsewhere in this contract.
    (b)(1) HUD may close a HUD facility for all or a portion of a 
business day as a result of--
    (A) Granting administrative leave to non-essential HUD employees 
(e.g., unanticipated holiday);
    (B) Inclement weather;
    (C) Failure of Congress to appropriate operational funds;
    (D) Or any other reason.
    (2) In such cases, contractor personnel not classified as essential, 
i.e., not performing critical round-the-clock services or tasks, who are 
not already on duty at the facility shall not report to the facility. 
Such contractor personnel already present shall be dismissed and shall 
leave the facility.
    (3) The contractor agrees to continue to provide sufficient 
personnel to perform round-the-clock requirements of critical tasks 
already in operation or scheduled for performance during the period in 
which HUD employees are dismissed, and shall be guided by any specific 
instructions of the Contracting Officer or his/her duly authorized 
representative.
    (c) When contractor personnel services are not required or provided 
due to closure of a HUD facility as described in this clause, the 
contractor shall be compensated as follows--
    (1) For fixed-price contracts, deductions in the contractor's price 
will be computed as follows--
    (A) The deduction rate in dollars per day will be equal to the per 
month contract price divided by 21 days per month.
    (B) The deduction rate in dollars per day will be multiplied by the 
number of days services are not required or provided.
    If services are provided for portions of days, appropriate 
adjustment will be made by the Contracting Officer to ensure that the 
contractor is compensated for services provided.
    (2) For cost-reimbursement, time-and-materials and labor-hour type 
contracts, HUD shall not reimburse as direct costs, the costs of 
salaries or wages of contractor personnel for the period during which 
such personnel are dismissed from, or do not have access to, the 
facility.
    (d) If administrative leave is granted to contractor personnel as a 
result of conditions stipulated in any ``Excusable Delays'' clause of 
this contract, it will be without loss to the contractor. The cost of 
salaries and wages to the contractor for the period of any such excused 
absence shall be a reimbursable item of direct cost hereunder for 
employees whose regular time is normally charged, and a reimbursable 
item of indirect cost for employees whose time is normally charged 
indirectly in accordance with the contractor's accounting policy.

                             (End of clause)

[64 FR 46100, Aug. 23, 1999]



Sec. 2452.239-70   Background investigations for sensitive automated 
          systems/applications.

    As prescribed in 2439.107(a), insert the following clause:

 Background Investigations for Sensitive Automated Systems/Applications 
                               (OCT 1999)

    (a) General. This contract involves work on, or access to, [insert 
name or other identifier], a HUD information resource that is either a 
major application system or any general support system. A major 
application system is a mission critical system, a system or information 
resource which has high investment cost, or any system which contains 
Privacy Act-covered data. A general support system is any computer 
facility or major component thereof, or any network or 
telecommunications resource. All contractor employees working on this 
contract in positions which HUD has determined to have sensitive access 
to the information resource(s) identified above are required to

[[Page 635]]

have a background investigation. The investigation shall be commensurate 
with the risk and security controls involved in managing, using or 
operating the resources identified above, consistent with 5 CFR part 
731. HUD may bar contractor employees from working on this contract for 
failing to meet or maintain the applicable suitability standards 
administered by the Department's Personnel Security Branch.
    (b) Citizenship-related requirements. All contractor employees as 
described in paragraph (a) shall: (1) be United States (U.S.) citizens 
living in the U.S.; or (2) owe allegiance to the U.S.
    (c) Background investigation process. (1) The GTR shall notify the 
contractor of those contractor employee positions requiring background 
investigations. For each contractor employee in such a position, the 
contractor shall submit the following completed forms: Standard Form 
(SF) 85P, Questionnaire for Public Trust Positions; FD-258, Fingerprint 
Chart; Fair Credit Reporting Act authorization form; and other 
information as may be necessary. The contractor shall submit an original 
and one copy of the SF 85P.
    (2) The contractor shall deliver the forms and information required 
in paragraph (c)(1) to the GTR as soon as practicable once the 
contractor knows that the employee will be assigned to this contract, 
and no later than seven (7) calendar days after the employee begins work 
on this contract.
    (3) The investigation process shall consist of a range of personal 
background inquiries and contacts (written and personal) and 
verification of the information provided on the security forms described 
in paragraph (c)(1).
    (4) Upon completion of the investigation process, the GTR shall 
notify the contractor in writing of any contractor employees' 
ineligibility to work on this contract. The contractor shall immediately 
remove such employees from work on this contract.
    (5) The contractor shall notify the GTR in writing whenever a 
contractor employee for whom a background investigation package was 
required and submitted to HUD terminates employment or otherwise is no 
longer performing work under this contract. The contractor shall provide 
a copy of the written notice to the Contracting Officer.
    (d) Security breach notification. The contractor shall immediately 
notify the GTR and the Contracting Officer of any breach or suspected 
breach of security or any unauthorized disclosure of the information 
contained in the automated system specified in this contract.
    (e) Nondisclosure of information. (1) Neither the contractor nor any 
of its employees shall divulge or release data or information developed 
or obtained during performance of this contract, except to authorized 
Government personnel with an established need to know or upon written 
approval of the Contracting Officer. Information contained in all source 
documents and other media provided by HUD are the sole property of HUD.
    (2) The contractor shall require that any employees who may have 
access to the automated systems identified in paragraph (a) sign a 
pledge of nondisclosure of information. These pledges shall be signed by 
the employees before they are permitted to perform work under this 
contract. The contractor shall maintain the signed pledges for a period 
of three years after final payment under this contract.
    (f) Security procedures. The contractor shall establish personnel 
security procedures that meet, as a minimum, the requirements of HUD 
Handbook 2400.24. The contractor shall provide a copy of such procedures 
and any revisions made to them during the period of the contract to the 
GTR.
    (g) Contractor compliance. Failure on the part of the contractor to 
comply with the terms of this clause may result in termination of this 
contract for default.
    (h) Other clearance requirements. When any work performed by 
contractor personnel on-site in a HUD facility meets the criteria set 
forth in HUDAR 2437.110(e), the contractor shall also comply with the 
requirements of the clause at 48 CFR 2452.237-75, Clearance of 
Contractor Personnel.
    (i) Subcontracts. The contractor shall incorporate this clause in 
all subcontracts where the requirements specified in paragraph (a) of 
this section are applicable to performance of the subcontract.

                             (End of clause)

[64 FR 46100, Aug. 23, 1999]



Sec. 2452.239-71  Information Technology Virus Security.

    As prescribed in 2439.107(b), insert the following clause:

            Information Technology Virus Security (FEB 2000)

    (a) The contractor hereby agrees to make every reasonable effort to 
deliver information technology products to HUD free of known computer 
viruses. The contractor shall be responsible for examining all such 
products prior to their delivery to HUD using software tools and 
processes capable of detecting all known viruses.
    (b) The contractor shall include the following statement on 
deliveries of hardware, software, and data products, including 
diskettes, made under this contract:


Sec. [product description, part/catalog number, other identifier, and 
          serial number, if any]


[[Page 636]]


    ``This product has been scanned for known viruses using [name of 
virus-screening product, including version number, if any] and is 
certified to be free of known viruses at the time of delivery.''

    (c) The Contracting Officer may assess monetary damages against the 
contractor sufficient to compensate HUD for actual or estimated costs 
resulting from computer virus damage or malicious destruction of 
computer information arising from the contractor's failure to take 
adequate precautions to preclude delivery of virus-containing products 
in the delivery of hardware, software, or data on diskettes under this 
contract.
    (d) This clause shall not subrogate the rights of the Government 
under any other clause of this contract.

                             (End of clause)

[65 FR 3577, Jan. 21, 2000]



Sec. 2452.242-70  Indirect costs.

    As prescribed in 2442.705-70, insert the following clause in cost-
reimbursement type solicitations and contracts when it is determined 
that the Contractor will be compensated for negotiated or provisional 
indirect cost rates pending establishment of final indirect cost rates.

                        Indirect Costs (APR 1984)

    (a) Pursuant to the provisions of the clause of this contract 
entitled, ``Allowable Cost and Payment'' the rates listed below are 
established. If the column entitled, ``Ceiling Rate'' has rates listed, 
the ceiling applies for those rates only. If there are no ceiling rates 
listed, ceilings do not apply to this contract and the provisions of 
paragraph (b) of this clause are not applicable.

----------------------------------------------------------------------------------------------------------------
             Period                    Category        Provisional rate      Ceiling rate            Base
----------------------------------------------------------------------------------------------------------------
Effective date until amended:
  (b) For the term of this contract, the final indirect rates shall not exceed the ceiling rates listed above,
   if any. However, in the event the indirect rates developed by the cognizant audit activity on the basis of
   actual allowable costs are less than the ceiling rates agreed to herein, then the rates established by such
   cognizant audits shall apply (downward adjustment only). The Government shall not be obligated to pay any
   additional amounts on indirect rates above the ceiling rates set forth for the applicable period.
----------------------------------------------------------------------------------------------------------------

                             (End of clause)



Sec. 2452.242-71  Project management system.

    As prescribed in 2442.1107, insert the following clause:

                  Project Management System (FEB 2000)

    (a) Within the time period specified elsewhere in this contract, or 
as directed by the Contracting Officer, the Contractor shall provide to 
the GTR and Contracting Officer a project management baseline plan and 
routine reports showing the Contractor's actual progress against the 
baseline plan.
    (b) The project management system shall consist of two parts:
    (1) Baseline plan. The baseline plan shall consist of--
    (i) A narrative portion that:
    (A) Identifies each task and significant activity required for 
completing the contract work, critical path activities, task 
dependencies, task milestones, and related deliverables;
    (B) Describes the project schedule, including the period of time 
needed to accomplish each task and activity (see i(B));
    (C) Describes staff (e.g., hours per individual), financial, and 
other resources allocated to each task and significant activity; and,
    (D) Provides the rationale for project organization and resource 
allocation.
    (ii) A graphic portion showing:
    (A) Cumulative planned or budgeted costs of work scheduled for each 
reporting period over the life of the contract; and
    (B) The planned start and completion dates of all planned and 
budgeted tasks and activities.
    (2) Progress reports. Progress reports shall consist of:
    (i) A narrative portion that:
    (A) Provides a brief, concise summary of technical progress made and 
the costs incurred for each task during the reporting period; and (B) 
Identifies significant problems, or potential problems, their causes, 
proposed corrective actions, and the net effect on contract completion.
    (ii) A graphic portion showing:
    (A) The schedule status and degree of completion of the tasks, 
activities and deliverables shown in the baseline plan for the reporting 
period, including actual start and completion dates for all tasks and 
activities in the baseline plan;
    (B) The costs incurred during the reporting period, the current 
total amount of costs incurred through the end date of the reporting 
period for budgeted work, and the projected costs required to complete 
the work under the contract.

[[Page 637]]

    (c) The formats, forms and/or software to be used for the project 
management system under this contract shall be [Contracting Officer 
insert appropriate language--``as prescribed in the schedule;'' ``a 
format, forms and/or software designated by the GTR;'' or, ``the 
contractor's own format, forms and/or software, subject to the approval 
of the GTR.'']

                             (End of clause)

[65 FR 3578, Jan. 21, 2000]



Sec. 2452.246-70  Inspection and acceptance.

    As prescribed in 2446.502-70, insert the following clause in 
solicitations and contracts unless inspection and acceptance will be 
performed by someone other than the GTR.

                  Inspection and Acceptance (APR 1984)

    Inspection and acceptance of all work required under this contract 
shall be performed by the Government Technical Representative (GTR) 
identified in Block 11 of the SF-26, or other individual as designated 
by the Contracting Officer of GTR.

                             (End of clause)



Sec. 2452.251-70  Contractor employee travel.

    As prescribed in 2451.7001, insert the following clause in all cost-
reimbursement solicitations and contracts involving travel:

                  Contractor Employee Travel (OCT 1999)

    (a) To the maximum extent practical, the Contractor shall make use 
of travel discounts which are available to Federal employees while 
traveling in the conduct of official Government business. Such discounts 
may include, but are not limited to, lodging and rental car rates.
    (b) The Contractor shall be responsible for obtaining and/or 
providing to his/her employees written evidence of their status with 
regard to their performance of Government contract work needed to obtain 
such discounts.

                             (End of clause)

[64 FR 46101, Aug. 23, 1999]

                            PART 2453--FORMS

Sec.

Sec. 2453.000  Scope of part.

                  Subpart 2453.2--Prescription of Forms


Sec. 2453.215  Contracting by negotiation.

Sec. 2453.217  Special contracting methods.

Sec. 2453.217-70  Form HUD-730, Award/Modification of Interagency 
          Agreement.

Sec. 2453.227  Patents, data, and copyrights.

Sec. 2453.227-70  Form HUD-770, Report of Inventions and Subcontracts.

Sec. 2453.242  Contract administration.

Sec. 2453.246  Quality Assurance.

    Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).

    Source: 53 FR 46543, Nov. 17, 1988, unless otherwise noted.

    Editoral Note: Nomenclature changes to part 2453 appear at 64 FR 
46101, Aug. 23, 1999.



Sec. 2453.000  Scope of part.

    This part prescribes Agency forms for use in acquisition and 
contains requirements and information generally applicable to the forms.

                  Subpart 2453.2--Prescription of Forms



Sec. 2453.215  Contracting by negotiation.



Sec. 2453.217  Special contracting methods.



Sec. 2453.217-70  Form HUD-730, Award/Modification of Interagency 
          Agreement.

    As prescribed in 2417.504(b), form HUD-730 shall be used by 
Contracting Officers when placing or modifying an order for supplies or 
services from another Government agency.



Sec. 2453.227  Patents, data, and copyrights.



Sec. 2453.227-70  Form HUD-770, Report of Inventions and Subcontracts.

    As prescribed in 2427.305-2, form HUD-770 shall be completed by the 
Contractor, and submitted to the Contracting Officer, if requested, upon 
completion of the contract.



Sec. 2453.242  Contract administration.



Sec. 2453.246  Quality Assurance.

[[Page 639]]



                 CHAPTER 25--NATIONAL SCIENCE FOUNDATION




                          (Parts 2500 to 2599)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2501            Federal Acquisition Regulations System......         641
                   SUBCHAPTER B--ACQUISITION PLANNING
2509            Contractor qualifications...................         643
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2515            Contracting by negotiation..................         645
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2527            Patents, data, and copyrights...............         646
2532            Contract financing..........................         646

[[Page 641]]

                          SUBCHAPTER A--GENERAL

            PART 2501--FEDERAL ACQUISITION REGULATIONS SYSTEM

              Subpart 2501.1--Purpose, Authority, Issuance

Sec.

Sec. 2501.101  Purpose.

Sec. 2501.102  Authority.

Sec. 2501.103  Applicability.

Sec. 2501.104  Issuance.

Sec. 2501.104-1  Publication and code arrangement.

Sec. 2501.104-2  Arrangement of regulations.

                 Subpart 2501.4--Deviations From the FAR


Sec. 2501.403  Individual deviations.

Sec. 2501.404  Class deviations.

       Subpart 2501.6--Contracting Authority and Responsibilities


Sec. 2501.601  General.

Sec. 2501.602  Contracting officers.

Sec. 2501.602-1  Authority.

    Authority: 42 U.S.C. 1870(a).

    Source: 49 FR 46744, Nov. 28, 1984, unless otherwise noted.

              Subpart 2501.1--Purpose, Authority, Issuance



Sec. 2501.101  Purpose.

    These regulations implement and supplement the Federal Acquisition 
Regulations (FAR).



Sec. 2501.102  Authority.

    The NSF Acquisition Regulations are issued under the authority of 
section 11(a) of the National Science Foundation Act of 1950, as amended 
(42 U.S.C. 1870(a)).



Sec. 2501.103  Applicability.

    Except where a deviation is specifically authorized in accordance 
with subpart 2501.4 or otherwise authorized by law, the FAR and the 
NSFAR govern all NSF acquisitions.



Sec. 2501.104  Issuance.



Sec. 2501.104-1  Publication and code arrangement.

    (a) The NSFAR is published in the daily issues of the Federal 
Register and, in cumulative form, in the Code of Federal Regulations.
    (b) The NSFAR is issued as chapter 25 of title 48, CFR.



Sec. 2501.104-2  Arrangement of regulations.

    The NSFAR uses the same numbering system and arrangement used in the 
FAR. Where the NSFAR implements the FAR it is numbered and captioned to 
correspond to the FAR. Where there is no corresponding material in the 
FAR, Parts 70 and up are used by the NSFAR. Where the subject matter in 
the FAR requires no implementation the NSFAR contains no corresponding 
part.

                 Subpart 2501.4--Deviations From the FAR



Sec. 2501.403  Individual deviations.

    Individual deviations, affecting only one contracting action may be 
authorized by the NSF Procurement Executive.



Sec. 2501.404  Class deviations.

    Class deviations may be authorized by the NSF Procurement Executive 
subject to the limitations set forth in FAR subpart 1.4.

[[Page 642]]

       Subpart 2501.6--Contracting Authority and Responsibilities



Sec. 2501.601  General.

    Authority and responsibility to contract for authorized supplies and 
services is vested in the Director, NSF, within the limits expressly 
provided by the National Science Foundation Act of 1950 (42 U.S.C. 1861 
et seq.). The NSF Procurement Executive is delegated overall 
responsibility by the Director for the Foundation's contracting 
activities.



Sec. 2501.602  Contracting officers.



Sec. 2501.602-1  Authority.

    NSF Contracting Officers have authority to enter into, administer, 
or terminate contracts and make related determinations and findings to 
the extent of the authority delegated to them in writing by the NSF 
Procurement Executive.

[[Page 643]]

                   SUBCHAPTER B--ACQUISITION PLANNING

                  PART 2509--CONTRACTOR QUALIFICATIONS

        Subpart 2509.4--Debarment, Suspension, and Ineligibility

Sec.

Sec. 2509.400  Scope of subpart.

Sec. 2509.403  Definitions.

Sec. 2509.405  Effect of listing.

Sec. 2509.405-1  Continuation of current contracts.

Sec. 2509.405-2  Restrictions on subcontracting.

Sec. 2509.406  Debarment.

Sec. 2509.406-1  General.

Sec. 2509.406-3  Procedures.

Sec. 2509.407  Suspension.

Sec. 2509.407-1  General.

Sec. 2509.407-3  Procedures.

Sec. 2509.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

Sec. 2509.410  Appeals.

    Authority: Sec. 11(a), National Science Foundation Act of 1950, as 
amended (42 U.S.C. 1870(a)).

    Source: 57 FR 34881, Aug. 7, 1992, unless otherwise noted.

        Subpart 2509.4--Debarment, Suspension, and Ineligibility



Sec. 2509.400  Scope of subpart.

    This subpart supplements subpart 9.4 of the Federal Acquisition 
Regulation by prescribing NSF policies and procedures and assigning 
responsibility for making debarment and suspension decisions. Nothing in 
this subpart is intended to alter the effect of subpart 9.4.



Sec. 2509.403  Definitions.

    The NSF Deputy Director is the ``debarring official'' and 
``suspending official'' for the Foundation. All duties assigned to the 
NSF Deputy Director by this regulation or by subpart 9.4 of the Federal 
Acquisition Regulation may be delegated by him or her to any officer or 
employee of the Foundation.



Sec. 2509.405  Effect of listing.



Sec. 2509.405-1  Continuation of current contracts.

    (a) The NSF Deputy Director will decide whether to continue NSF 
contracts or subcontracts in existence at the time a contractor is 
debarred, suspended, or proposed for debarment.
    (b) The NSF Deputy Director will decide whether to renew or 
otherwise extend the duration of NSF contracts, or consent to 
subcontracts, with contractors debarred, suspended, or proposed for 
debarment. He or she will prepare a written statement of the compelling 
reasons for renewal and extension.



Sec. 2509.405-2  Restrictions on subcontracting.

    The NSF Deputy Director may authorize a contracting officer to 
consent to a subcontract with a contractor debarred, suspended, or 
proposed for debarment. He or she will prepare a written statement of 
the compelling reasons for such approval.



Sec. 2509.406    Debarment.



Sec. 2509.406-1  General.

    (c) The NSF Deputy Director will decide whether to enter into a 
contract with a contractor that is debarred or proposed for debarment. 
He or she will prepare a written statement of the compelling reasons 
justifying continued business dealings between the Foundation and the 
contractor.



Sec. 2509.406-3  Procedures.

    (a) Any NSF employee who becomes aware of circumstances that may 
serve as the basis for debarment of a contractor will promptly report 
them to the NSF Office of Inspector General (OIG) and the debarring 
official. OIG will investigate the circumstances and, if it determines 
appropriate, prepare a written referral of the matter to the debarring 
official.
    (b) Upon receipt of a referral from the NSF Office of Inspector 
General, the debarring official will determine, in consultation as 
appropriate with OIG, the NSF Office of the General Counsel, the NSF 
Procurement Executive, and program officials, what additional steps are 
necessary and appropriate to make a decision in accordance with the 
requirements of 48 CFR 9.406-3.

[[Page 644]]



Sec. 2509.407  Suspension.



Sec. 2509.407-1  General.

    (d) The NSF Deputy Director will decide whether to enter into a 
contract with a suspended contractor. He or she will prepare a written 
statement of the compelling reasons justifying continued business 
dealings between the Foundation and the contractor.



Sec. 2509.407-3  Procedures.

    (a) Any NSF employee who becomes aware of circumstances that may 
serve as the basis for suspension of a contractor will promptly report 
them to the NSF Office of Inspector General (OIG) and the suspending 
official. OIG will investigate the circumstances and, if it determines 
appropriate, prepare a written referral of the matter to the suspending 
official.
    (b) Upon receipt of a referral from the NSF Office of Inspector 
General, the suspending official will determine, in consultation as 
appropriate with OIG, the NSF Office of the General Counsel, the NSF 
Procurement Executive, and program officials, what additional steps are 
necessary and appropriate to make a decision in accordance with the 
requirements of 48 CFR 9.407-3.



Sec. 2509.408  Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.

    (a)(2) NSF contracting officers will notify the Office of Inspector 
General and the Deputy Director whenever information submitted by 
offerors in compliance with the Certifications Regarding Debarment, 
Suspension, Proposed Debarment, and Other Responsibility Matters 
provisions in solicitations indicates the existence of an indictment, 
charge, conviction, or civil judgment.



Sec. 2509.410  Appeals.

    (a) A debarred or suspended contractor may appeal to the Director in 
writing within 30 days after receiving notice of the debarring or 
suspending official's decision in accordance with 48 CFR 9.406-3(e) or 
Sec. 9.407-3(d)(4). The debarring or suspending official's decision 
becomes a final administrative action if not appealed within the 30 day 
period.
    (b) The Director may appoint an uninvolved NSF officer or employee 
to review an appeal and make recommendations.
    (c) The Director will inform the appellant of a final decision 
within 30 days after receiving the appeal. That decision will be the 
final administrative action of the Foundation.

[[Page 645]]

          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

                  PART 2515--CONTRACTING BY NEGOTIATION

    Authority: 42 U.S.C. 1870(c).

    Source: 49 FR 46744, Nov. 28, 1984, unless otherwise noted.

                 Subpart 2515.2--Negotiation Authorities



Sec. 2515.215-70  NSF negotiation authorities.

    (a) Authorities. Citation: 42 U.S.C. 1870(c).
    (b) Application. When an NSF contract is for scientific activities 
which are determined by the NSF contracting officer to be ``necessary to 
carry out the purposes of the NSF Act,'' then 41 U.S.C. 252(c)(15) is 
applicable and the contract may be entered into through negotiation 
rather than formal advertising. The Foundation's contracting officer 
may, in lieu of reliance on 42 U.S.C. 1870(c) and 41 U.S.C. 252(c)(15), 
utilize other applicable negotiating authorities at his or her 
discretion. 42 U.S.C. 1870(c) and 41 U.S.C. 252(c)(15) may also be used 
to authorize negotiation if the Foundation is carrying out, ``at the 
request of the Secretary of State or Secretary of Defense, specific 
scientific activities in connection with matters relating to 
international cooperation or national security.'' Contracts or their 
modifications entered into under this authority may be done so without 
legal consideration and without performance or other bonds.

[[Page 646]]

             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

                PART 2527--PATENTS, DATA, AND COPYRIGHTS

          Subpart 2527.70--Disposition of Rights in Inventions

Sec.

Sec. 2527.7001  General.

Sec. 2527.7002  NSF patent policy.

                 Subpart 2527.71--Data Rights [Reserved]

    Authority: 35 U.S.C. 200-212; 42 U.S.C. 1870(e) and 1871); and the 
Presidential Memorandum entitled ``Government Patent Policy'', issued 
February 18, 1983.

          Subpart 2527.70--Disposition of Rights in Inventions



Sec. 2527.7001  General.

    National Science Foundation policies, procedures, and clauses 
governing allocation of rights to inventions made under NSF contracts, 
grants, and cooperative agreements are codified as part 650 of title 45 
of the Code of Federal Regulations.

[57 FR 34882, Aug. 7, 1992, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 2527.7002  NSF patent policy.

    As authorized by the National Science Board at its 230th meeting, 
October 15-16, 1981, the Director of the National Science Foundation has 
adopted the following statement of NSF patent policy.
    (a) In accordance with by the Bayh-Dole Act and the Presidential 
Memorandum entitled ``Government Patent Policy'' issued February 18, 
1983, the Foundation will use the Patent Rights clause prescribed by the 
Department of Commerce in all its funding agreements for the performance 
of experimental, developmental, or research work, including awards made 
to foreign entities, unless the Foundation determines that some other 
provision would better serve the purposes of that Act or the interests 
of the United States and the general public.
    (b) In funding agreements covered by a treaty or agreement that 
provides that an international organization or foreign government, 
research institute, or inventor will own or share patent rights, the 
Foundation will acquire such patent rights as are necessary to comply 
with the applicable treaty or agreement.
    (c) If an awardee elects not to retain rights to an invention, the 
Foundation will allow the inventor to retain the principal patent rights 
unless the awardee, or the inventor's employer if other than the 
awardee, shows that it would be harmed by that action.
    (d) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific journals or as a statutory invention 
registration. However, if another Federal agency is known to be 
interested in the relevant technology, the Foundation may give it an 
opportunity to review and patent the invention so long as that does not 
inhibit the dissemination of the research results to the scientific 
community.

[57 FR 34882, Aug. 7, 1992]

Subpart 2527.71  Data Rights [Reserved]

                      PART 2532--CONTRACT FINANCING

                    Subpart 2532.4--Advance Payments

Sec.

Sec. 2532.401  Statutory authority.

Sec. 2532.403  Applicability.

    Authority: 42 U.S.C. 1870(d).

    Source: 49 FR 46745, Nov. 28, 1984, unless otherwise noted.

                    Subpart 2532.4--Advance Payments



Sec. 2532.401  Statutory authority.

    The NSF Act (42 U.S.C. 1870(d)) provides that advance, progress, or 
other payments which relate to scientific activities or scientific 
information may

[[Page 647]]

be made without regard to the provisions of section 3324 of title 31 of 
the United States Code.

[49 FR 46745, Nov. 28, 1984, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 2532.403  Applicability.

    Advance payments may be made in any amount not exceeding the 
contract price, provided (a) the amount of the advance payment is based 
upon an analysis of the financing required by the contractor for the 
contract and does not exceed reasonable financial requirements between 
payments, and (b) such advance payment is appropriate in order to 
contract for the required work.

[[Page 649]]



                    CHAPTER 28--DEPARTMENT OF JUSTICE




                          (Parts 2800 to 2899)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
2801            Department of Justice Acquisition Regulation 
                    System..................................         651
2802            Definitions of Words and Terms..............         654
2803            Improper Business Practices and Personal 
                    Conflicts of Interest...................         655
2804            Administrative Matters......................         657
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
2805            Publicizing Contract Actions................         660
2806            Competition Requirements....................         661
2807            Acquisition Planning........................         662
2808            Required Sources of Supplies and Services...         664
2809            Contractor Qualifications...................         664
2811            Describing Agency Needs.....................         665
2812            Acquisition of Commercial Items.............         667
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
2813            Simplified Acquisition Procedures...........         668
2814            Sealed Bidding..............................         669
2815            Contracting By Negotiation..................         669
2816            Types of Contracts..........................         670
2817            Special Contracting Methods.................         672
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
2819            Small Business Programs.....................         673
2822            Application of Labor Laws to Government 
                    Acquisitions............................         674
2823            Environment, Conservation, Occupational 
                    Safety, and Drug-Free Workplace.........         674
2824            Protection of Privacy and Freedom of 
                    Information.............................         676

[[Page 650]]

2825            Foreign Acquisition.........................         676
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
2828            Bonds and Insurance.........................         677
2829            Taxes.......................................         677
2830            Cost Accounting Standards (CAS) 
                    Administration..........................         678
2831            Contract Cost Principles and Procedures.....         678
2832            Contract Financing..........................         679
2833            Protests, Disputes, and Appeals.............         680
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
2834            Major System Acquisition....................         683
                    SUBCHAPTER G--CONTRACT MANAGEMENT
2842            Contract Administration.....................         684
2845            Government Property.........................         684
2846            Quality Assurance...........................         685
                     SUBCHAPTER H--CLAUSES AND FORMS
2852            Solicitation Provisions and Contract Clauses         686

[[Page 651]]

                          Subchapter A--General

     Part 2801--Department of Justice Acquisition Regulations System

              Subpart 2801.1--Purpose, Authority, Issuance

Sec.

Sec. 2801.101  Purpose.

Sec. 2801.106  OMB approval under the Paperwork Reduction Act.

                     Subpart 2801.2--Administration


Sec. 2801.270-1  Revisions.

             Subpart 2801.3--Agency Acquisition Regulations


Sec. 2801.304  Agency control and compliance procedures.

             Subpart 2801.4--Deviations From the FAR and JAR


Sec. 2801.403  Individual deviations.

Sec. 2801.404  Class deviations.

Sec. 2801.470  Requests for class deviations.

     Subpart 2801.6--Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 2801.601  General.

Sec. 2801.602  Contracting officers.

Sec. 2801.602-3  Ratification of unauthorized commitments.

Sec. 2801.603  Selection, appointment and termination of appointment.

Sec. 2801.603-1  Department of Justice Acquisition Career Management 
          Program.

Sec. 2801.603-3  Appointment.

     Subpart 2801.70--Contracting Officer's Technical Representative


Sec. 2801.7001-701  General.

Sec. 2801.7001-702  Selection, appointment, and limitation of authority.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16118, Apr. 2, 1998, unless otherwise noted.

              Subpart 2801.1--Purpose, Authority, Issuance



Sec. 2801.101  Purpose.

    (a) The Justice Acquisition Regulations (JAR) in this chapter are 
established to provide procurement regulations that supplement the 
Federal Acquisition Regulation (FAR), 48 CFR chapter 1. As such, the 
regulations contained in the JAR will include coverage of only those 
areas where agency implementation is required by the FAR, or where 
Department of Justice (DOJ) policies and procedures exist that 
supplement FAR coverage and directly affect the contractual relationship 
between the Department and potential or existing contractors. The JAR 
will not repeat FAR coverage.
    (b) The FAR contains many references to agency procedures. If the 
JAR does not include supplemental guidance under the corresponding part 
or subpart, it is because the FAR language is considered to be 
sufficient. In those instances where the JAR states ``in accordance with 
bureau procedures,'' it does not mean that the bureau must have a 
procedure. It is intended that the bureau procedures are to be followed 
if they exist, however, it does not mean that the bureau must have a 
formal written procedure. Where both the JAR and bureau procedures do 
not address a FAR subject, the FAR guidance is to be followed.
    (c) The JAR is not a complete system of regulations and must be used 
in conjunction with the FAR.



Sec. 2801.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) and the 
Office of Management and Budget's (OMB) implementing regulations at 5 
CFR part 1320, require that reporting and record keeping requirements 
affecting 10 or more members of the public be cleared by that office. 
The OMB control number for the collection of information under 48 CFR 
chapter 28 is 1103-0018.

                     Subpart 2801.2--Administration



Sec. 2801.270-1  Revisions.

    In addition to changes published in the Federal Register, the JAR 
will be amended by issuance of Justice Acquisition Circulars (JACs) 
containing

[[Page 652]]

loose-leaf replacement pages which revise parts, subparts, sections, 
subsections, paragraphs or subparagraphs. A vertical bar (edit bar) at 
the beginning or end of a line indicates that a change has been made 
within that line.

             Subpart 2801.3--Agency Acquisition Regulations



Sec. 2801.304  Agency control and compliance procedures.

    Pursuant to FAR 1.304, the Procurement Executive (PE) is responsible 
for ensuring that bureau acquisition regulations and directives do not 
restrain the flexibilities found in the FAR. For this reason, bureau 
acquisition regulations shall be forwarded to the PE upon issuance. The 
PE reserves the right to revoke the regulations and directives in this 
chapter if they are determined to be restrictive.

             Subpart 2801.4--Deviations From the FAR and JAR



Sec. 2801.403  Individual deviations.

    Individual deviations from the FAR or the JAR shall be approved by 
the head of the contracting activity (HCA). A copy of the deviation 
shall be included in the contract file. Copies of all deviations will be 
provided to the PE.



Sec. 2801.404  Class deviations.

    Requests for class deviations from the FAR or the JAR shall be 
submitted to the PE. The PE will consult with the chairperson of the 
Civilian Agency Acquisition Council, as appropriate, and send his/her 
recommendations to the Assistant Attorney General for Administration 
(AAG/A). The AAG/A will grant or deny requests for such deviations. For 
the purposes of this chapter, requests for deviations involving basic 
ordering agreements, master type contracts, or situations where multiple 
awards are made from one solicitation, are considered to involve more 
than one contract and therefore considered to be class deviation 
requests.



Sec. 2801.470  Requests for class deviations.

    Requests for approval of class deviations from the FAR or the JAR 
shall be forwarded to the PE. Such requests will be signed by the Bureau 
Procurement Chief (BPC). Requests for class deviations shall be 
submitted as far in advance as the exigencies of the situation permit 
and shall contain sufficient written justification to evaluate the 
request.

     Subpart 2801.6--Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 2801.601  General.

    (a) In accordance with Attorney General Order 1687-93, the authority 
vested in the Attorney General with respect to contractual actions, for 
goods and services, is delegated to the following officials:
    (1) AAG/A (for the offices, boards, and divisions (OBDs);
    (2) Director, Federal Bureau of Investigation;
    (3) Director, Federal Bureau of Prisons;
    (4) Commissioner, Federal Prison Industries;
    (5) Commissioner, Immigration and Naturalization Service;
    (6) Administrator, Drug Enforcement Administration;
    (7) Assistant Attorney General, Office of Justice Programs;
    (8) Director, U.S. Marshals Service;
    (9) Inspector General, Office of the Inspector General.
    (b) The acquisition authority delegated to the officials in 
2801.601(a) may be redelegated to subordinate officials as necessary for 
the efficient and proper administration of the Department's acquisition 
operations. Such redelegated authority shall expressly state whether it 
carries the power of redelegation of authority.
    (c) The redelegation of contracting authority directly to specific 
persons without regard for intermediate organizational levels only 
establishes authority to represent the Government in its commercial 
business dealings. It is not intended to affect the organizational 
relationship between the contracting officers and higher administrative 
and supervisory levels in the performance of their duties.

[[Page 653]]



Sec. 2801.602  Contracting officers.



Sec. 2801.602-3  Ratification of unauthorized commitments.

    The HCA may delegate the authority to ratify unauthorized 
commitments to the chief of the contracting office, except for those 
actions effected by his or her office. Dollar thresholds for delegations 
made under this section will be determined by the HCA. Copies of all 
ratifications are to be provided to the PE.



Sec. 2801.603  Selection, appointment and termination of appointment.



Sec. 2801.603-1  Department of Justice Acquisition Career Management 
          Program.

    (a) Each Bureau Procurement Chief shall develop and manage an 
acquisition career management program for contracting personnel in his 
or her component, consistent and uniform with this section and the 
Department of Justice Acquisition Procurement Career Management Program.
    (b) The program shall cover all contracting personnel in the 
following categories:
    (1) General Schedule (GS-1102) Contracting Series;
    (2) Contracting officers, regardless of General Schedule Series, 
with contracting authority above the simplified acquisition threshold;
    (3) Purchasing Series (GS-1105), other individuals performing 
purchasing duties and individuals with contracting authority between the 
micro purchase and simplified acquisition thresholds.
    (4) All Contracting Officer Representatives/Contracting Officer 
Technical Representatives, or equivalent positions.
    (c) The program shall include:
    (1) Management information system. Standardized information on the 
acquisition workforce will be collected and maintained. To the maximum 
extent practicable, such data requirements shall conform to the 
standards established by the Office of Personnel Management for the 
Central Personnel Data File and shall be compatible with the Department 
of Justice acquisition workforce management information system.
    (2) Individual assessments and development plans for personnel in 
the GS-1102 contracting series. (i) An individual assessment by a 
supervisor of each covered employee's state of competence to perform the 
full range of potential duties of his or her job; and
    (ii) An individual development plan to schedule classroom, on-the-
job training, or other training to develop the employee's skill level to 
an appropriate level in each area of competence necessary to perform his 
or her job.
    (iii) Individual assessments and development plans should be 
designed to fit the needs of the component, but they should be built 
upon the units of competence and instruction prepared by the Federal 
Acquisition Institute whenever feasible. Individual development plans 
should attempt to bring the employee to an appropriate level of skill in 
all necessary competencies in the field of procurement. In general, a 
proficiency skill level of 3, as defined in Attachment 1 to Office of 
Federal Procurement Policy (OFPP) Policy Letter 92-3, shall be obtained 
for any contracting duty that is actually required to be performed on 
the job. Individual assessments and development plans should be reviewed 
annually and revised as appropriate, until the employee reaches the full 
competency level of his or her job.
    (iv) Employees who perform only purchasing duties, regardless of 
occupational series, shall be required to obtain the requisite level of 
skill only in competencies involving simplified acquisitions. If the 
employee's duties are expanded to include contracting duties, then skill 
in procurement competencies must be assessed and developed.
    (v) Individual assessments of covered employee skills shall be 
completed within 90 days of the employee's entry on duty.
    (3) Mandatory training. Training shall be provided for the 
identified categories of contracting personnel to meet the minimum 
standards identified in OFPP Policy Letter 97-01.
    (4) Skills currency. Contract Specialists (GS-1102) and contracting 
officers with authority to obligate funds above the micro-purchase 
threshold that have

[[Page 654]]

satisfied the mandatory training requirements, shall be provided the 
equivalent of at least 40 hours of continuing procurement and 
acquisition related education and training every two years for the 
purpose of maintaining the currency of acquisition knowledge and skills.
    (5) Program funding. Bureau Procurement Chiefs are responsible for 
assessing the funding needs to provide for the education and training of 
their acquisition workforce and requesting such funding in the annual 
budget process.



Sec. 2801.603-3  Appointment.

    Contracting officers whose authority will be limited to micro-
purchases shall be appointed in writing and include any limitations to 
that authority.

     Subpart 2801.70--Contracting Officer's Technical Representative



Sec. 2801.7001-701  General.

    Contracting officers may appoint individuals selected by program 
offices to act as authorized representatives in the monitoring and 
administration of a contract. Such officials shall be designated as 
Contracting Officers' Technical Representatives (COTR's).



Sec. 2801.7001-702  Selection, appointment, and limitation of authority.

    (a) COTR standards program. This subpart sets forth policies and 
procedures for establishing standards for COTR's in DOJ. The program 
sets forth minimum standards for individuals to be eligible for an 
appointment as a COTR.
    (b) Applicability. The eligibility requirements of this subpart 
apply to all individuals who are designated by the contracting officer 
as COTR's.
    (c) Eligibility standards. To be determined eligible for an 
appointment as a DOJ COTR, the following standards must be met:
    (1) The candidate must attend and successfully complete a minimum of 
a 16-hour basic COTR course; and
    (2) The candidate must attend a minimum of 1 hour training 
specifically in procurement ethics, either through courses offered 
periodically by the Department, the bureaus, or a Government or 
commercial vendor.
    (d) Limitations. Each COTR appointment made by the contracting 
officer shall clearly state that the representative is not an authorized 
contracting officer and does not have the authority under any 
circumstances to:
    (1) Award, agree to award, or execute any contract, contract 
modification, notice of intent, or other form of binding agreement;
    (2) Obligate, in any manner, the payment of money by the Government;
    (3) Make a final decision on any contract matter which is subject to 
the clause at FAR 52.233-1, Disputes; or
    (4) Terminate, suspend, or otherwise interfere with the contractor's 
right to proceed, or direct any changes in the contractor's performance 
that are inconsistent with or materially change the contract 
specifications.
    (e) Termination. Termination of the COTR's appointment shall be made 
in writing by the contracting officer and shall give the effective date 
of the termination. The contracting officer shall promptly modify the 
contract once a COTR termination notice has been issued. A termination 
notice is not required when the COTR's appointment terminates upon 
expiration of the contract.
    (f) Waivers. No individual may serve as a COTR on any contract 
without the requisite training and signed COTR certificate for the file. 
In the rare event that there is an urgent requirement for a specific 
individual to serve as a COTR and the individual has not successfully 
completed the required training, the BPC may waive the training 
requirements and authorize the individual to perform the COTR duties, 
for a period of time not to exceed 120 days. The waiver will be granted 
in accordance with bureau procedures.
    (g) COTR clause. The clause at 2852.201-70 is required in all 
contracts where a COTR is designated.

                PART 2802--DEFINITIONS OF WORDS AND TERMS

                       Subpart 2802.1--Definitions


Sec. 2802.101  Definitions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

[[Page 655]]

                       Subpart 2802.1--Definitions



Sec. 2802.101  Definitions.

    Throughout this chapter, the following words and terms are used as 
defined in this subpart unless the context in which they appear clearly 
requires a different meaning, or a different definition is prescribed 
for a particular part or portion of a part.
    (a) Bureaus means contracting activities. (See contracting activity 
in this subpart.)
    (b) Bureau procurement chief means that supervisory official who is 
directly responsible for supervising, managing and directing all 
contracting offices of the bureau.
    (c) Chief of the contracting office means that supervisory official 
who is directly responsible for supervising, managing and directing a 
contracting office.
    (d) Contracting activity means a component within the Department 
which has been delegated procurement authority to manage contracting 
functions associated with its mission. See 2801.601(a).
    (e) DOJ means the Department of Justice.
    (f) HCA means head of the contracting activity i.e. those officials 
identified in 2801.601(a) having responsibility for supervising, 
managing, and directing the operations of the contracting activities.
    (g) JAR means the Department of Justice Acquisition Regulations in 
48 CFR chapter 28.
    (h) JMD means the Justice Management Division.
    (i) OBDs means the offices, boards, and divisions within the Justice 
Department.
    (j) PE means the Procurement Executive for the Department of 
Justice.

[63 FR 16121, Apr. 2, 1998]

    PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
                                INTEREST

                       Subpart 2803.1--Safeguards

Sec.

Sec. 2803.101-3  Agency regulations.

Sec. 2803.104  Procurement integrity.

Sec. 2803.104-10  Violations or possible violations.

Sec. 2803.104-70  Ethics program training requirements.

      Subpart 2803.2--Contractor Gratuities to Government Personnel


Sec. 2803.203  Reporting suspected violations of the gratuities clause.

Sec. 2803.204  Treatment of violations.

        Subpart 2803.3--Reports of Suspected Antitrust Violations


Sec. 2803.301  General.

   Subpart 2803.9--Whistleblower Protections for Contractor Employees


Sec. 2803.905  Procedures for investigating complaints.

Sec. 2803.906  Remedies.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16121, Apr. 2, 1998, unless otherwise noted.

                       Subpart 2803.1--Safeguards



Sec. 2803.101-3  Agency regulations.

    The DOJ regulations governing Standards of Conduct are contained in 
5 CFR part 2635.



Sec. 2803.104  Procurement integrity.



Sec. 2803.104-10  Violations or possible violations.

    (a) Upon receipt of information of a violation or possible violation 
of section 27 of the Act, the contracting officer must do the following:
    (1) Refer the matter to the Office of the Inspector General or other 
office designated in Attorney General Order 1931-94; and
    (2) Make the determination required by FAR 3.104-10(a) and follow 
the procedures prescribed therein.
    (b) The individual referenced in FAR 3.104-10(a)(1) is the Bureau 
Procurement Chief.
    (c) The HCA must follow the criteria contained in FAR 3.104-10(g) 
when designating authority under this subpart.
    (d) The HCA, or designee, shall refer information regarding actual 
or possible violations of section 27 of the Act to the Office of the 
Inspector General or other office designated in Attorney General Order 
1931-94 for guidance before taking action.

[[Page 656]]

    (e) If the HCA, or designee, receiving the information of a 
violation, or possible violation, determines that award is justified by 
urgent and compelling circumstances, or is otherwise in the interest of 
the Government, then the contracting officer may be authorized to award 
the contract after notification to the Office of the Inspector General 
or other office designated in Attorney General Order 1931-94.
    (f) The contracting officer will be advised, or directed by the HCA, 
or designee, as to the action to be taken. The types of actions that 
would normally be taken when a violation has occurred that affected the 
outcome of a procurement are listed in FAR 3.104-11(d).
    (g) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.



Sec. Sec. 2803.104-70  Ethics program training requirements.

    It is the responsibility of the bureaus to provide training for 
``procurement officials'' concerning the requirements of FAR 3.104. The 
bureau procurement training efforts should be coordinated with the 
Department's Ethics Official, who is responsible for developing agency 
ethics training plans, to include briefings on ethics and standards of 
conduct for employees who are contracting officers and procurement 
officials. The Ethics Official should be contacted directly to schedule 
training.

      Subpart 2803.2--Contractor Gratuities to Government Personnel



Sec. 2803.203  Reporting suspected violations of the gratuities clause.

    DOJ personnel shall report suspected violations of the gratuities 
clause to the contracting officer or chief of the contracting office in 
writing. The report shall clearly state the circumstances surrounding 
the incident, including the nature of the gratuity, the behavior or 
action the gratuity was to influence, and the persons involved. The 
contracting officer, after review, shall forward the report along with 
his or her recommendations regarding the treatment of the violation in 
accordance with FAR 3.204(c) to the HCA or designee.



Sec. 2803.204  Treatment of violations.

    (a) The HCA or designee shall determine whether adverse action 
against the contractor in accordance with FAR 3.204(c) should be taken. 
In reaching a decision, the HCA or designee shall consult with the 
contracting activity's legal advisor and the Office of the Inspector 
General or other office designated in Attorney General Order 1931-94.
    (b) Prior to taking any action against the contractor the HCA or 
designee shall allow the contractor the opportunity to present opposing 
arguments in accordance with FAR 3.204(b).
    (c) The PE shall be advised of all instances where violations have 
been determined to have occurred. Information must describe the 
violation as well as actions taken.

        Subpart 2803.3--Reports of Suspected Antitrust Violations



Sec. 2803.301  General.

    Reports of suspected antitrust violations shall be referred to the 
AG and PE in accordance with bureau procedures.

   Subpart 2803.9--Whistleblower Protections for Contractor Employees



Sec. 2803.905  Procedures for investigating complaints.

    (a) The Inspector General shall conduct an investigation and provide 
a written report of findings to the HCA.
    (b) The HCA will ensure that the Inspector General provides the 
report of finding as specified in FAR 3.905(c).
    (c) The complainant and contractor shall be afforded the opportunity 
to submit a written response to the report of findings within 30 days to 
the HCA. Extensions of time to file a written response may be granted by 
the HCA.
    (d) The HCA may at any time request additional investigative work be 
done on the complaint.

[[Page 657]]



Sec. 2803.906  Remedies.

    (a) Upon determination that a contractor has subjected one of its 
employees to a reprisal for providing information, the HCA may take one 
or more actions specified in FAR 3.906(a).
    (b) Whenever a contractor fails to comply with an order, the HCA 
shall request an action be filed for enforcement of such order in the 
United States district court.

                    PART 2804--ADMINISTRATIVE MATTERS

   Subpart 2804.4--Safeguarding Classified Information Within Industry

Sec.

Sec. 2804.402  General.

Sec. 2804.403  Responsibilities of contracting officers.

Sec. 2804.470  Contractor Personnel Security Program.

Sec. 2804.470-1  Policy.

Sec. 2804.470-2  Responsibilities.

           Subpart 2804.5--Electronic Commerce in Contracting


Sec. 2804.506  Exemptions.

                   Subpart 2804.6--Contract Reporting


Sec. 2804.602  Federal Procurement Data System.

                Subpart 2804.8--Government Contract Files


Sec. 2804.805  Storage, handling, and disposal of contract files.

  Subpart 2804.9--Information Reporting to the Internal Revenue Service


Sec. 2804.901  Definitions.

Sec. 2804.902  Contract information.

Sec. 2804.970  Special reporting exceptions.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16122, Apr. 2, 1998, unless otherwise noted.

   Subpart 2804.4--Safeguarding Classified Information Within Industry



Sec. 2804.402  General.

    Classified acquisitions or contracts which require access to 
classified material, as defined in FAR 4.401, for their performance 
shall be subject to the policies, procedures, and instructions contained 
in departmental regulations and shall be processed in a manner 
consistent with those regulations.



Sec. 2804.403  Responsibilities of contracting officers.

    For proposed solicitations and contracts which may require access to 
classified material or where guard services are assigned to safeguard 
departmental activities in possession of classified information, the 
contracting officer shall consult with the COTR and the Director, 
Security and Emergency Planning Staff, JMD, to determine the appropriate 
security measures to safeguard such material and information.



Sec. 2804.470  Contractor Personnel Security Program.



Sec. 2804.470-1  Policy.

    It is the policy of the Department of Justice that all acquisitions 
which allow unescorted contractor access to Government facilities or 
sensitive information contain, as appropriate, requirements for 
appropriate personnel security screening by the contractor. To the 
maximum extent practicable, contractors shall be made responsible for 
the performance of personnel security screening. The personnel security 
screening may vary from one acquisition to another, depending upon the 
type, context, duration and location of the work to be performed. 
Classified contracts are exempted from the requirements of this section 
because they are governed by the requirements of Executive Order 12829 
(January 6, 1993).



Sec. 2804.470-2  Responsibilities.

    (a) The primary acquiring component, together with its Security 
Program Manager, is responsible for providing the contracting officer 
with the appropriate contractor personnel security screening 
requirements (including waiver requirements, if appropriate) to be 
included in the statement of work.
    (b) The contracting officer is responsible for including in the 
contract file for all such acquisitions, a certification made by the 
responsible Security Program Manager that the personnel security 
requirements of the

[[Page 658]]

contract are adequate to ensure the security of Departmental operations, 
information and personnel.
    (c) The Security Program Manager for the acquiring component is 
responsible for monitoring and ensuring that the contractor personnel 
security requirements of the contract are accomplished.
    (d) For purposes of this section, the term Contracting Officer 
includes anyone empowered to place orders under Blanket Purchase 
Agreements (BPA) or any other existing contract vehicle and/or through 
the use of the government-wide commercial purchase card.

           Subpart 2804.5--Electronic Commerce in Contracting



Sec. 2804.506  Exemptions.

    Pursuant to FAR 4.506(b), all determinations that FACNET processing 
is not cost-effective or practicable for the contracting officer, or 
portions thereof, shall be initiated by the HCA and submitted to the PE 
for processing to the Attorney General for signature.

                   Subpart 2804.6--Contract Reporting



Sec. 2804.602  Federal Procurement Data System.

    (a) Federal Procurement Data System (FPDS) reports shall be 
submitted to the Procurement Policy and Review Group (PPRG) within 20 
days of the close of each of the first three quarters of the fiscal year 
and within 30 days after the close of the fourth quarter. Specific 
preparation procedures are contained in the FPDS Reporting Manual and 
the Product and Service Code Manual.
    (b) Bureaus shall submit periodic reports of their subcontract 
activities, together with copies of their Standard Forms 295 and 294 to 
the Director, Office of Small and Disadvantaged Business Utilization 
(OSDBU) as required by that office.
    (c) BPCs shall provide to the PE, the name, office, mailing address, 
and telephone number of the individual who will provide day-to-day 
operational contact within the bureau for the implementation of the 
FPDS. Changes and updates shall be forwarded to PPRG within 10 days 
after they occur. It is the responsibility of the bureau contacts to 
ensure that all actions are reported and submitted to PPRG in a timely 
manner and that all statistics and reports are accurate, current, and 
complete. BPCs shall be responsible for validating the data.

                Subpart 2804.8--Government Contract Files



Sec. 2804.805  Storage, handling, and disposal of contract files.

    In accordance with FAR 4.805, each bureau shall prescribe procedures 
for the handling, storing, and disposing of contract files.

  Subpart 2804.9--Information Reporting to the Internal Revenue Service



Sec. 2804.901  Definitions.

    Classified contract, as used in this subpart, means a contract such 
that the fact of its existence of its subject matter has been designated 
and clearly marked or clearly represented, pursuant to the provisions of 
Federal law or an Executive Order, as requiring a specific degree of 
protection against unauthorized disclosure for reasons of national 
security.
    Confidential contract, as used in this subpart, means a contract, 
the reporting of which to the Internal Revenue Service (IRS) as required 
under 26 U.S.C. 6050M, would interfere with the effective conduct of a 
confidential law enforcement activity, such as contracts for sites for 
undercover operations or contracts with informants, or foreign 
counterintelligence activity.



Sec. 2804.902  Contract information.

    (a) Pursuant to FAR 4.902, the HCA, or delegate, shall certify to 
the PE, in the format specified in this section, under penalty of 
perjury, that such official has examined the information submitted by 
that bureau as its FPDS data, that the data has been prepared pursuant 
to the requirement of 26 U.S.C. 6050M, and that, to the best of such 
official's knowledge and belief it

[[Page 659]]

is compiled from bureau records maintained in the normal course of 
business for the purpose of making a true, correct and complete return 
as required by 26 U.S.C. 6050M.
    (b) The following certification will be signed and dated by the HCA, 
or delegate, and submitted with each bureau quarterly FPDS report (as 
specified by 2804.602).

                              CERTIFICATION

    I, ------------------------(Name),
---------------------------- (Title) under the penalties of perjury have 
examined the information to be submitted by ------------------------ 
(Bureau) to the Procurement Executive, for making information returns on 
behalf of the Department of Justice to the Internal Revenue Service, and 
certify that this information has been prepared pursuant to the 
requirements of 26 U.S.C. 6050M and that it is to the best of my 
knowledge and belief, a compilation of bureau records maintained in the 
normal course of business for the purpose of providing true, correct and 
complete returns as required by 26 U.S.C. 6050M.

Signature_______________________________________________________________
Date____________________________________________________________________

    (c) The PE will certify the consolidated FPDS data for the 
Department, transmit the data to the Federal Procurement Data Center 
(FPDC) and authorize the FPDC to make returns to the IRS on behalf of 
the agency.



Sec. 2804.970  Special reporting exceptions.

    (a) The Technical and Miscellaneous Revenue Act of 1988 (Pub. L. 
100-647) amended 26 U.S.C. 6050M to allow exceptions to the reporting 
requirements for certain classified or confidential contracts.
    (b) The head of the agency has determined that the filing of 
information returns, as required by 26 U.S.C. 6050M, on confidential 
contracts, which involve law enforcement or foreign counterintelligence 
activities, would interfere with the effective conduct of those 
confidential law enforcement or foreign counterintelligence activities, 
and that the special reporting exceptions added to 26 U.S.C. 6050M by 
The Technical and Miscellaneous Revenue Act of 1988 to these types of 
contracts.

[[Page 660]]

           Subchapter B--Competition and Acquisition Planning

                 PART 2805--PUBLICIZING CONTRACT ACTIONS

          Subpart 2805.2--Synopses of Proposed Contract Actions

Sec.

Sec. 2805.201-70  Departmental notification.

               Subpart 2805.3--Synopses of Contract Awards


Sec. 2805.302-70  Department notification.

                   Subpart 2805.5--Paid Advertisements


Sec. 2805.502  Authority.

Sec. 2805.503-70  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16123, Apr. 2, 1998, unless otherwise noted.

          Subpart 2805-2--Synopses of Proposed Contract Actions



Sec. 2805.201-70  Departmental notification.

    (a) A copy of each synopsis of a proposed contract action sent to 
the Department of Commerce, shall be furnished to the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU), Justice 
Management Division (JMD).
    (b) Contracting officers shall document, in the contract file, that 
a copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the Commerce Business Daily (CBD) notice shall 
be considered adequate documentation.

               Subpart 2805.3--Synopses of Contract Awards



Sec. 2805.302-70  Departmental notification.

    (a) The contracting officer shall forward a copy of the synopsis of 
contract award, as prepared under FAR 5.302, to the Director, OSDBU, 
JMD.
    (b) Contracting officers shall document in the contract file that a 
copy of the notice has been forwarded to the OSDBU. A ``cc'' to the 
OSDBU on the file copy of the CBD notice shall be considered adequate 
documentation.

                   Subpart 2805.5--Paid Advertisements

    This subpart provides policies and procedures for the procurement of 
paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702, and 
3703, and Title 7, Chapter 5-25.2, General Accounting Office Policy and 
Procedures Manual for Guidance of Federal Agencies.



Sec. 2805.502  Authority.

    (a) Authorization for paid advertising is required for newspapers 
only. Pursuant to 28 CFR 0.14, the authority to approve publication of 
paid advertisements in newspapers has been delegated to the officials 
listed in 2801.601(a). This authority may be redelegated as appropriate.
    (b) Authority to purchase paid advertising must be granted in 
writing by an official delegated such authority. No advertisement, 
notice, or proposal will be published prior to receipt of advance 
written authority for such publication. No voucher for any such 
advertisement or publication will be paid unless there is presented, 
with the voucher, a copy of such written authority. Authority shall not 
be granted retroactively.



Sec. 2805.503-70  Procedures.

    (a) Agency officials exercising the authority delegated by 
2805.502(a) and (b) shall do so in accordance with the procedures set 
forth in FAR 5.503 and those in this subsection.
    (b) Requests for procurement of advertising shall be accompanied by 
written authority to advertise or publish which sets forth justification 
and includes the names of newspapers or journals concerned, frequency 
and dates of proposed advertisements, estimated cost, and other 
pertinent information.
    (c) Procedures for payment of vouchers are contained in Title 7, 
Chapter 5-25.2, General Accounting Office Policy and Procedures Manual 
for Guidance of Federal Agencies.

[[Page 661]]

                   PART 2806--COMPETITION REQUIREMENTS

          Subpart 2806.3--Other Than Full and Open Competition

Sec.

Sec. 2806.302  Circumstances permitting other than full and open 
          competition.

Sec. 2806.302-7  Public interest.

Sec. 2806.302-70  Determination and findings.

Sec. 2806.303  Justifications.

Sec. 2806.303-1  Requirements.

Sec. 2806.303-2  Content.

Sec. 2806.304  Approval of the justification.

                  Subpart 2806.5--Competition Advocates


Sec. 2806.501  Requirement.

Sec. 2806.502  Duties and responsibilities.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16124, Apr. 2, 1998, unless otherwise noted.

          Subpart 2806.3--Other Than Full and Open Competition



Sec. 2806.302  Circumstances permitting other than full and open 
          competition.



Sec. 2806.302-7  Public interest.



Sec. 2806.302-70  Determination and findings.

    (a) Procedure. The determination and findings (D&F) required by FAR 
6.302.7(c)(1) shall be prepared in the format provided in paragraph (b) 
of this subsection. The original D&F and documentation supporting the 
use of this exception to the requirement for full and open competition 
shall be submitted to PPRG, JMD, for concurrence and coordination to the 
Attorney General for signature.
    (b) Format. The following format shall be used for the D&F:

                          Department of Justice

                          Washington, DC 20530

                       Determination and Findings

Authority To Use Other Than Full and Open Competition:
    Upon the basis of the following findings and determination, which I 
hereby make pursuant to the authority of 41 U.S.C. 253(c)(7), as 
implemented by FAR 6.302-7, it is in the public interest to provide for 
other than full and open competition in the contract action described 
below.
Findings:
    1. The (1) proposes to enter into a contract for the acquisition of 
(2).
    2. Use of the authority cited above is necessary and in the public 
interest for the following reasons: (3)

                              Determination

    For the reasons described above, it is necessary and in the public 
interest to use other than full and open competition in the proposed 
acquisition.

Signature_______________________________________________________________
Date____________________________________________________________________

Notes:
    (1) Name of contracting activity.
    (2) Brief description of supplies or services.
    (3) Explain the need for use of the authority.



Sec. 2806.303  Justifications.



Sec. 2806.303-1  Requirements.

    Pursuant to FAR 6.303-1(d), a copy of the justification shall be 
forwarded through the Department's Competition Advocate to the 
Department's point of contact with the Office of the United States Trade 
Representative.



Sec. 2806.303-2  Content.

    In addition to the information required by FAR 6.303-2, 
justifications requiring the approval of the PE shall contain the 
following documents:
    (a) A written Acquisition Plan as required by FAR 7.102 and part 
2807 of this chapter. If a plan was not prepared, explain why planning 
was not feasible or accomplished.
    (b) A copy of the CBD announcement or proposed announcement in 
accordance with the requirements of FAR 5.203.
    (c) As part of the description of the supplies or services required 
in FAR 6.303-2, the justification shall include the statement of need as 
submitted by the requiring activity and any subsequent changes or 
revisions to the specifications.
    (d) Any additional documentation that may be unique to the proposed 
procurement and is relevant to the justification.

[[Page 662]]



Sec. 2806.304  Approval of the justification.

    (a) All justifications for contract actions over the contracting 
officer's approval dollar threshold shall be submitted to the BPC for 
concurrence before being forwarded to the contracting activity 
competition advocate for approval. Justifications requiring approval by 
the PE shall be further submitted for the concurrence of the contracting 
activity competition advocate and the HCA, or designee, before being 
forwarded to the PE for approval.
    (b) After approval by the PE, the signed original will be returned 
to the contracting activity and one copy will be retained by the PPRG, 
JMD.
    (c) Pursuant to FAR 6.304(c), a class justification for other than 
full and open competition shall be approved in accordance with bureau 
procedures.

                  Subpart 2806.5--Competition Advocates



Sec. 2806.501  Requirement.

    In accordance with FAR 6.501:
    (a) The Assistant Director, Procurement Policy and Review Group, 
Management and Planning Staff, Justice Management Division, has been 
designated as the Competition Advocate for the Department of Justice.
    (b) The agency head will appoint, in each bureau, an official to be 
the contracting activity competition advocate. The contracting activity 
competition advocates shall be vested with the overall responsibility 
for competition activities within their contracting activity. No 
individual in the contracting office at or below the level of chief of 
the contracting office may serve as the contracting activity competition 
advocate. An individual at any level above the BPC may serve as 
contracting activity competition advocate.



Sec. 2806.502  Duties and responsibilities.

    In addition to the duties and responsibilities set forth in FAR 
6.502(b) and elsewhere in this chapter, contracting activity competition 
advocates shall:
    (a) Actively enforce the Department's Competition Advocacy Program 
within the contracting activity and ensure that systems are established 
for the effective internal control of contracting activity functions and 
activities which implement the Department's Competition Advocacy 
Program.
    (b) Implement specific goals and objectives to enhance competition 
and the acquisition of commercial items.
    (c) Prepare and submit to the DOJ Competition Advocate, by November 
30 of each year, an annual report of competition advocacy activities 
conducted during the prior fiscal year.

                     PART 2807--ACQUISITION PLANNING

                    Subpart 2807.1--Acquisition Plans

Sec.

Sec. 2807.102  Policy.

Sec. 2807.102-70  Applicability.

Sec. 2807.103  Agency-head responsibilities.

Sec. 2807.103-70  Other officials' responsibilities.

Sec. 2807.105  Contents of written acquisition plans.

            Subpart 2807.5--Inherently Governmental Functions


Sec. 2807.503  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16124, Apr. 2, 1998, unless otherwise noted.

                    Subpart 2807.1--Acquisition Plans



Sec. 2807.102  Policy.

    (a)(1) In accordance with FAR 7.1, DOJ contracting activities shall 
perform acquisition planning and conduct market research for all 
acquisitions in order to promote and provide for:
    (i) Full and open competition (see FAR part 6);
    (ii) Maximum practicable competition for those acquisitions where 
full and open competition is not required by FAR part 6; and
    (iii) The acquisition of commercial items or, when commercial items 
are not available, nondevelopmental items to the maximum extent 
practicable.
    (2) The degree of planning and market research may vary, depending 
on such factors as the acquisition's size, scope and complexity.

[[Page 663]]

    (b) Acquisition planning shall be the joint responsibility of both 
the contracting and program offices. All acquisition plans shall be 
prepared sufficiently in advance of solicitation release dates to ensure 
that requirements are presented in a way that promotes full and open 
competition and provides sufficient time for the identification and 
resolution of impediments that could delay the acquisition or lead to 
increased cost or technical risk.



Sec. 2807.102-70  Applicability.

    (a) Planning commensurate with the complexity and dollar value of 
the individual requirement shall be performed for all acquisitions, 
except for those acquisitions listed in paragraph (c) of this subsection 
which may be exempt from the planning process. Heads of contracting 
activities may authorize the use of oral plans for simple and/or small 
dollar acquisitions. When oral plans are used, the file should be 
documented with the name of the individual who approved the plan.
    (b) Written acquisition plans shall be prepared for all major 
systems acquisitions as defined in 2834.002.
    (c) The following types of acquisitions may be exempt from the 
acquisition planning program;
    (1) Architect-engineering services;
    (2) Unsolicited proposals (when deemed innovative and unique in 
accordance with FAR 15.5);
    (3) Regulated utility services where services are available from 
only one source;
    (4) Acquisitions made from or through other Government agencies; and
    (5) Contract modifications which exercise an option or add funds to 
an incrementally funded contract (provided there is an approved 
acquisition planning document for the original action and there is no 
significant deviation from that plan).



Sec. 2807.103  Agency-head responsibilities.

    The AAG/A may establish acquisition planning criteria and thresholds 
for those bureaus who:
    (a) Fail to allow ample time for conducting competitive 
acquisitions;
    (b) Develop a pattern of awarding urgent requirements that generally 
restrict competition;
    (c) Fail to identify identical or like requirements that, where 
appropriate, can be combined under one solicitation and miss 
opportunities to obtain lower costs through volume purchasing, reduce 
administrative costs in processing one contract action versus multiple 
actions, and standardize goods and services.



Sec. 2807.103-70  Other officials' responsibilities.

    (a) In accordance with FAR 7.1, the HCA shall develop an acquisition 
planning program for all acquisitions to ensure that its needs are met 
in the most effective, economical, the timely manner.
    (b) Heads of contracting activities have the flexibility to develop 
programs that are best suited to their individual needs. Criteria and 
thresholds shall be established at which increasingly greater detail and 
formality in the planning process is required. DOJ components are 
encouraged to keep paperwork to a minimum and to put a premium on 
simplicity.
    (c) HCAs shall ensure that, during the acquisition planning phase, 
requirements personnel consider the use of:
    (1) The metric system of measurement consistent with 15 U.S.C. 
2205(b); and
    (2) Environmentally preferable and energy-efficient products and 
services.



Sec. 2807.105  Contents of written acquisition plans.

    (a) HCAs shall prescribe format and content of acquisition planning 
documents that are commensurate with the complexity and dollar value of 
the individual acquisition (sample acquisition planning documents for 
both simple and complex acquisitions will be make available by PPRG, 
JMD, and may be used or modified as appropriate).
    (b) HCAs shall include, at a minimum, the content elements at FAR 
7.105 and 7.106 for all major systems acquisitions as defined in 
2834.002.

[[Page 664]]

            Subpart 2807.5--Inherently Governmental Functions



Sec. 2807.503  Policy.

    The requirements official shall provide the contracting officer, 
concurrent with the transmittal of the statement of work (or 
modification thereof), a written determination that none of the 
functions to be performed are inherently governmental. Any disputes 
concerning this determination shall be resolved by the contracting 
officer, after consultation with the requirements official. The 
contracting officer's determination shall be final.

          PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES

      Subpart 2808.8--Acquisition of Printing and Related Supplies

Sec.

Sec. 2808.802  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

      Subpart 2808.8--Acquisition of Printing and Related Supplies



Sec. 2808.802  Policy.

    The Director, Facilities and Administrative Services Staff, has been 
designated to serve as the central printing authority for the 
Department.

[63 FR 16125, Apr. 2, 1998]

                  PART 2809--CONTRACTOR QUALIFICATIONS

         Subpart 2809.4--Debarment Suspension, and Ineligibility

Sec.

Sec. 2809.402  Policy.

Sec. 2809.404  List of parties excluded from Federal procurement and 
          nonprocurement programs.

Sec. 2809.405  Effect of listing.

Sec. 2809.405-1  Continuation of current contracts.

   Subpart 2809.5--Organizational and Consultant Conflict of Interest


Sec. 2809.503  Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16125, Apr. 2, 1998, unless otherwise noted.

        Subpart 2809.4--Debarment, Suspension, and Ineligibility



Sec. 2809.402  Policy.

    Contracting activities shall:
    (a) Consider debarment or suspension of a contractor when cause is 
shown as listed under FAR 9.406-2 and FAR 9.407-2. Contracting staffs 
should consult with their appropriate legal counsel prior to making a 
decision to initiate debarment or suspension proceedings. If a 
determination is made that available facts do not justify beginning 
debarment or suspension proceedings, the file should be documented 
accordingly. This determination should be subject to reconsideration if 
new information or additional fact-finding so justifies.
    (b) If the decision is made to initiate debarment and/or suspension 
of a contractor, immediately prepare a notice in accordance with FAR 
9.406-3(c) of FAR 9.407-3(c). The draft notice, along with the 
administrative file containing all relevant facts and analysis shall be 
forwarded to the PE, as the debarring and suspending official, following 
review by the activity's legal counsel and BPC.
    (c) The PE shall:
    (1) Review the notice and administrative file for sufficiency and 
provide for review by other DOJ officials as considered appropriate;
    (2) If it is determined that action is warranted, give the 
contractor prompt notice of the proposed debarment or suspension, in 
accordance with FAR 9.406-3(c) or FAR 9.407-3(c);
    (3) Direct additional fact-finding as necessary when material facts 
are in dispute.
    (4) Notify the contractor of the final decision to debar or suspend, 
including a decision not to debar or suspend, in accordance with FAR 
9.406-3(c) and FAR 9.407-3(c).



Sec. 2809.404  List of parties excluded from Federal procurement and 
          nonprocurement programs.

    (a) The PE shall:
    (1) Provide GSA notification of the information set forth in FAR 
9.404(b)

[[Page 665]]

within five working days after debarring or suspending a contractor or 
modifying or rescinding such an action.
    (2) Maintain agency-wide records of debarred or suspended 
contractors in accordance with FAR 9.404.
    (b) Contracting activities shall provide an effective system to 
ensure that contracting staff consult the ``List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs'' prior to 
soliciting offers from, awarding or extending contracts to, or 
consenting to subcontracts with contractors on the list.



Sec. 2809.405  Effect of listing.

    (a) Contractors debarred, suspended, or proposed for debarment are 
excluded from receiving contracts, and bureaus shall not solicit offers 
from, award contracts to, or consent to subcontracts with these 
contractors, unless the HCA determines that there is a compelling reason 
for such action and the PE approves such determinations.
    (b) Bids received from any listed contractor in response to an 
invitation for bids shall be entered on the abstract of bids, and 
rejected unless the HCA determines in writing that there is a compelling 
reason to consider the bid and the PE approves such action.
    (c) Proposals, quotations, or offers received from any listed 
contractor shall not be evaluated for award or included in the 
competitive range, nor shall discussions be conducted with a listed 
offeror during a period of ineligibility, unless the HCA determines in 
writing that there is a compelling reason to do so and the PE approves 
such action.



Sec. 2809.405-1  Continuation of current contracts.

    (a) In accordance with FAR 9.405-1, contracting activities may 
continue contracts or subcontracts in existence at the time a contractor 
is suspended or debarred unless it is determined that termination of the 
contract is in the best interest of the Government. In making this 
determination, contracting activities shall consider the seriousness of 
the act or omission leading to the debarment or suspension, the effect 
of debarment or suspension on the contractor's ability to continue 
operations, and the Department's ability to safeguard its interests and 
receive satisfactory performance.
    (b) Contracting activities shall not renew or otherwise extend the 
duration of current contracts, or consent to subcontracts, with 
contractors debarred, suspended, or proposed for debarment, unless the 
HCA states, in writing, the compelling reasons for renewal or extension 
and the PE approves such action.

   Subpart 2809.5--Organizational and Consultant Conflicts of Interest



Sec. 2809.503  Waiver.

    The HCA may waive any general rule or procedure of FAR 9.5 by 
determining that its application in a particular situation would not be 
in the Government's interest.

                   PART 2811--DESCRIBING AGENCY NEEDS

Sec.

Sec. 2811.001  Definitions.

Sec. 2811.002  Policy.

     Subpart 2811.1--Selecting and Developing Requirements Documents


Sec. 2811.103  Market acceptance.

Sec. 2811.104-70  Brand-name or equal description.

               Subpart 2811.6--Priorities and Allocations


Sec. 2811.603  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16126, Apr. 2, 1998, unless otherwise noted.



Sec. 2811.001  Definitions.

    Dual systems means the use of both inch-pound and metric systems. 
For example, an item is designed, produced and described in inch-pound 
values with soft metric values also shown for information or comparison 
purposes.
    Hybrid systems means the use of both inch-pound and standard metric 
values in specifications, standards, supplies, and services; e.g., an 
engine with internal parts in metric dimensions and external fittings or 
attachments in inch-pound dimensions.

[[Page 666]]

    Metric system means the International System of Units established by 
the General Conference of Weights and Measures in 1960.
    Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents in specifications, standards, 
supplies, and services. The physical dimensions are not changed.



Sec. 2811.002  Policy.

    Consistent with the policy expressed in FAR 11.002(b), solicitations 
must include specifications and purchase descriptions stated in metric 
units of measurement whenever metric is the accepted industry system. 
Whenever possible, commercially developed metric specifications and 
internationally, or domestically developed voluntary standards, using 
metric measurements, must be adopted. While an industry is in transition 
to metric specifications, solicitations must include requirements 
documents stated in soft metric, hybrid, or dual systems, except when 
impractical or inefficient.

     Subpart 2811.1--Selecting and Developing Requirements Documents



Sec. 2811.103  Market acceptance.

    Pursuant to FAR 11.103, the HCA or designee at a level not lower 
than the BPC has the authority to require offerors to demonstrate that 
the items offered meet the criteria set forth in FAR 11.103(a).



Sec. 2811.104-70  Brand-name or equal description.

    When a brand-name or equal description is used, the clause set forth 
in 2852.211-70, Brand-name or Equal, shall be inserted into the 
solicitation.

               Subpart 2811.6--Priorities and Allocations



Sec. 2811.603  Procedures.

    The PE is the agency official delegated authority to exercise 
priority authority on behalf of the Department. Any request for a 
priority rating on a contract or order must be submitted to PPRG, JMD, 
in accordance with the procedures in this subpart.
    (a) The requesting activity shall submit, to the PE, a description 
of the supplies or services requiring a priority rating and a complete 
justification for the necessity of a rated order including the method 
and type of contract and the anticipated award date. The justification 
must also state the level of priority rating requested and comply with 
the requirements of the Defense Priorities and Allocations System.
    (b) Upon receipt, the PPRG shall review the request for completeness 
and establish appropriate liaison with the Department of Commerce (DOC), 
the administering agency. Depending on the nature of the requirement, 
the PPRG may schedule a meeting with DOC officials to present the 
proposal. In such cases, a representative from the requiring activity 
may be requested to attend.
    (c) DOJ activities requesting rated orders that concern classified 
material shall call PPRG before submitting their request to ensure 
appropriate transmission and handling between the requesting activity 
and PPRG.

[[Page 667]]

               PART 2812--ACQUISITION OF COMMERCIAL ITEMS

  Subpart 2812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

Sec.

Sec. 2812.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

  Subpart 2812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 2812.302  Tailoring of provisions and clauses for the acquisition 
          of commercial items.

    Pursuant to FAR 12.302(c), the HCA or designee at a level not lower 
than the BPC is authorized to approve clauses or additional terms or 
conditions for inclusion in solicitations or contracts for commercial 
items that are inconsistent with customary commercial practices.

[63 FR 16127, Apr. 2, 1998]

[[Page 668]]

          Subchapter C--Contracting Methods and Contract Types

              PART 2813--SIMPLIFIED ACQUISITION PROCEDURES

             Subpart 2813.3--Simplified Acquisition Methods

Sec.

Sec. 2813.305  Imprest funds and third party drafts.

Sec. 2813.307  Forms.

              Subpart 2813.70--Certified Invoice Procedure


Sec. 2813.7001  Policy.

Sec. 2813.7002  Procedure.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 
CFR 0.76(j).

    Source: 63 FR 16127, Apr. 2, 1998, unless otherwise noted.

             Subpart 2813.3--Simplified Acquisition Methods



Sec. 2813.305  Imprest funds and third party drafts.

    Regulations governing the operation and procedures of the imprest 
fund shall be contained in internal bureau regulations. Individuals 
delegated the authority to withdraw from the imprest fund are further 
subject to the limitations contained in their delegation memorandum.



Sec. 2813.307  Forms.

    In accordance with FAR 13.307, bureaus may use order forms other 
than Standard Form (SF) 1449, OF 347 and 348 and may print on those 
forms, clauses considered to be suitable for purchases.
    (a) Contracting activities using the SF 44 will be responsible for 
instructing authorized users as to the limitations and procedures for 
use of the form as outlined in FAR 13.306.
    (b) Since the SF 44 is an accountable form, a record shall be 
maintained of: serial numbers of the forms; to whom issued; and, the 
date issued. SF 44s shall be kept securely under lock and key to prevent 
unauthorized use. A reservation of funds shall be established to cover 
total anticipated expenditures prior to use of the SF 44.

              Subpart 2813.70--Certified Invoice Procedure



Sec. 2813.7001  Policy.

    Under limited circumstances as described in this subpart, supplies 
or services directly related to mission accomplishment, may be acquired 
on the open market from local suppliers at the site of the work or use 
point, using vendor's invoices under the certified invoice procedure, 
instead of issuing purchase orders. Certified invoice procedures may not 
be used to place orders under established contracts.



Sec. 2813.7002  Procedure.

    (a) Purchases utilizing the certified invoice procedure shall be 
effected only in accordance with FAR part 13 and this part 2813, subject 
to the following:
    (1) The amount of any one purchase does not exceed the micro-
purchase threshold;
    (2) A purchase order is not required by either the supplier or the 
Government;
    (3) Appropriate invoices can be obtained from the supplier; and,
    (4) The items to be purchased shall be domestic source end products, 
except as provided in FAR subpart 25.1.
    (b) Use of the certified invoice procedures does not eliminate the 
requirements in FAR part 13 or this part 2813 that are applicable to 
purchases of this dollar threshold.
    (c) The chief of the contracting office, as defined in 2802.101(c), 
shall delegate the authority to use the certified invoice procedure. 
Each delegation must specify any limitations placed on the individual's 
use of these procedures, such as limits on the amount of each purchase, 
or limits on the commodities, or services which can be procured.
    (d) Each individual using this purchasing technique shall require 
the supplier to immediately submit properly prepared invoices which 
itemize property or services furnished. Upon

[[Page 669]]

receiving the invoice, the individual making the purchase shall annotate 
the invoice with the date of receipt, verify the arithmetic accuracy of 
the invoiced amount and verify on the invoice that the supplies and/or 
services have been received and accepted. If the invoice is correct, the 
individual making the purchase shall sign the invoice indicating 
acceptance and immediately forward it to the appropriate administrative 
office. The invoice shall be approved by the appropriate administrative 
office and forwarded to the Finance Office for payment within 5 workdays 
after receipt of the invoice, or acceptance of supplies or services, 
whichever is later. Before forwarding the invoice to Finance, the 
administrative office shall place the following statement on the 
invoice, along with the accounting and appropriation data:

    I certify that these goods and/or services were received on --------
-------- (date) an accepted on ---------------- (date). Oral purchase 
was authorized and no confirming order has been issued.

Signature_______________________________________________________________
Date____________________________________________________________________
________________________________________________________________________
Printed or Typed Name and Title

                        PART 2814--SEALED BIDDING

          Subpart 2814.4--Opening of Bids and Award of Contract

Sec.

Sec. 2814.407  Mistakes in bids.

Sec. 2814.407-3  Other mistakes disclosed before award.

Sec. 2814.407-4  Mistakes after award.

Sec. 2814.409  Information to bidders.

Sec. 2814.409-2  Award of classified contracts.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16127, Apr. 2, 1998, unless otherwise noted.

          Subpart 2814.4--Opening of Bids and Award of Contract



Sec. 2814.407  Mistakes in bids.



Sec. 2814.407-3  Other mistakes disclosed before award.

    (a) The authority to make determinations under paragraphs (a), (b), 
(c), and (d) of FAR 14.407-3 is delegated to the HCA or designee at a 
level not lower that the BPC.
    (b) The following procedures shall be followed when submitting 
doubtful cases of mistakes in bids to the Comptroller General for an 
advance decision:
    (1) Requests for advance decisions submitted to the Comptroller 
General in cases of mistakes in bids shall be made by the HCA.
    (2) Requests for advance decisions shall be in writing, dated, 
signed by the requestor, addressed to the Comptroller General of the 
United States, General Accounting Office, Washington, D.C. 20548, and 
contain the following:
    (i) The name and address of the party requesting the decision;
    (ii) A statement of the question to be decided, a presentation of 
all relevant facts, and a statement of the requesting party's position 
with respect to the question; and
    (iii) Copies of all pertinent records and supporting documentation.



Sec. 2814.407-4  Mistakes after award.

    Proposed determinations under FAR 14.407 shall be coordinated with 
legal counsel in accordance with bureau procedures.



Sec. 2814.409  Information to bidders.



Sec. 2814.409-2  Award of classified contracts.

    In accordance with FAR 14.409-2, the contracting officer shall 
advise the unsuccessful bidders, including any who did not bid, to take 
disposition action in accordance with bureau procedures.

                  PART 2815--CONTRACTING BY NEGOTIATION

  Subpart 2815.2--Solicitation and Receipt of Proposals and Information

Sec.

Sec. 2815.205  Issuing solicitations.

Sec. 2815.207  Handling proposals and information.

                    Subpart 2815.4--Contract Pricing


Sec. 2815.404  Proposal analysis.

[[Page 670]]


Sec. 2815.404-2  Information to support proposal analysis.

Sec. 2815.404-4  Profit.

Sec. 2815.407-4  Should-cost review.

                  Subpart 2815.6--Unsolicited Proposals


Sec. 2815.606  Agency procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16128, Apr. 2, 1998, unless otherwise noted.

  Subpart 2815.2--Solicitation and Receipt of Proposals and Information



Sec. 2815.205  Issuing solicitations.

    Solicitations involving classified information shall be handled in 
accordance with the policies and procedures contained in Departmental 
regulations and other offices, boards, divisions, and bureaus (OBDBs) 
prescribed policies and regulations that supplement Departmental 
regulations.



Sec. 2815.207  Handling proposals and information.

    Classified proposals and quotations shall be handled in accordance 
with the current DOJ Order agency regulations and any supplemental 
directives or orders implemented by the OBDBs. Such supplemental 
regulations must have the prior approval of the AAG/A before 
implementation in accordance with the Departmental regulations.

                    Subpart 2815.4--Contract Pricing



Sec. 2815.404  Proposal analysis.



Sec. 2815.404-2  Information to support proposal analysis.

    All requests for field pricing support shall be made by the 
contracting officer directly to the cognizant audit agency. A copy of 
the request for such services shall be sent to the Department of Justice 
Office of the Inspector General (OIG) at the address shown in this 
subsection at the time it is mailed to the cognizant audit agency. A 
copy of each report received shall also be sent to the OIG. Requests for 
other audit assistance may be made to the Assistant Inspector General 
for Audits, Suite 5000, 1425 New York Avenue, NW., Washington, DC 20530.



Sec. 2815.404-4  Profit.

    If a contractor insists on a price or demands a profit or fee that 
the contracting officer considers unreasonable and the contracting 
officer has taken all authorized actions to negotiate a reasonable price 
or profit or fee without success, the contracting officer shall then 
refer the contract action to the HCA or designee.



Sec. 2815.407-4  Should-cost review.

    In acquisitions for which a program should-cost review is conducted, 
the required should-cost review team report shall be prepared in 
accordance with bureau procedures.

                  Subpart 2815.6--Unsolicited Proposals



Sec. 2815.606  Agency procedures.

    (a) Each contracting activity shall designate a point of contact for 
the receipt and handling of unsolicited proposals. Generally, the 
official designated shall be the BPC or immediate subordinate.
    (b) The designated point of contact for each contracting activity 
shall provide for and coordinate receipt, review, evaluation, and final 
disposition of unsolicited proposals in accordance with FAR subpart 
15.6.

                      PART 2816--TYPES OF CONTRACTS

              Subpart 2816.5--Indefinite-Delivery Contracts

Sec.

Sec. 2816.505  Ordering.

  Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 2816.601  Time-and-material contracts.

Sec. 2816.602  Labor-hour contracts.

Sec. 2816.603  Letter contracts.

Sec. 2816.603-2  Application.

Sec. 2816.603-3  Limitations.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 
CFR 0.76(j).

    Source: 63 FR 16128, Apr. 2, 1998, unless otherwise noted.

[[Page 671]]

              Subpart 2816.5--Indefinite-Delivery Contracts



Sec. 2816.505  Ordering.

    (a) In accordance with FAR 16.505(b)(4), the Department of Justice 
Task Order and Delivery Order Ombudsman is the DOJ Competition Advocate.
    (b) Heads of contracting activities shall designate a contracting 
activity Task Order and Delivery Order Ombudsman. This person may be the 
contracting activity competition advocate and must meet the 
qualification requirements of 2806.501(b).
    (c) Contracting activity ombudsman shall review and resolve 
complaints from contractors concerning task or delivery orders placed by 
the contracting activity.
    (d) Contractors not satisfied with the resolution of a complaint by 
a contracting activity ombudsman may request the Departmental Ombudsman 
to review the complaint.

  Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 2816.601  Time-and-material contracts.

    In addition to the limitations listed in FAR 16.601(c), a time-and-
materials contract may be used only after the contracting officer 
receives written approval from the chief of the contracting office. When 
the contracting officer is also the chief of the contracting office, the 
approval to use a time-and-materials type contract will be made at a 
level above the contracting officer.



Sec. 2816.602  Labor-hour contracts.

    The limitations set forth in 2816.601 for time-and-material 
contracts also apply to labor-hour contracts.



Sec. 2816.603  Letter contracts.



Sec. 2816.603-2  Application.

    In cases where the contracting officer and the contractor cannot 
negotiate the definitization of a letter contract within 180 days after 
the date of the letter contract, or before completion of 40 percent of 
the work to be performed, the contracting officer may, with the written 
approval of the PE, revise and extend the definitization schedule. 
However, in no event shall the extension of the definitization schedule 
extend beyond the lesser of an additional 180 day period or the 
completion of 80 percent of the work to be performed. If at the end of 
the extension, the contracting officer and the contractor cannot 
negotiate a definitive contract because of failure to reach an agreement 
on price or fee, the procedures set forth in FAR 51.216-25, 16.603-2, 
15.8, and part 31 shall be followed, as applicable.



Sec. 2816.603-3  Limitations.

    A letter contract may be used only after the express written 
approval of the Procurement Executive. Requests for approval shall 
contain the rationale explaining why no other contract is suitable and 
shall include the approval of the HCA or designee. Under circumstances 
of compelling urgency which do not permit the time needed for written 
approval, oral approval must be obtained; however, written documentation 
to support the award and confirm the oral approval must be submitted as 
soon as practicable after award.

[[Page 672]]

                 PART 2817--SPECIAL CONTRACTING METHODS

                  Subpart 2817.1--Multiyear Contracting

Sec.

Sec. 2817.108  Congressional notification.

           Subpart 2817.6--Management and Operating Contracts


Sec. 2817.605  Award, renewal, and extension.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                  Subpart 2817.1--Multiyear Contracting



Sec. 2817.108  Congressional notification.

    Pursuant to FAR 17.108(a), the original congressional notification 
shall be submitted to PPRG, JMD, for concurrence, coordination to the 
Attorney General, and subsequent transmission to the appropriate 
congressional committees.

           Subpart 2817.6--Management and Operating Contracts



Sec. 2817.605  Award, renewal, and extension.

    In accordance with FAR 17.605(b), the contracting officer, following 
bureau procedures, shall review each management and operation contract, 
at appropriate intervals and at least once every 5 years.

[[Page 673]]

                  Subchapter D--Socioeconomic Programs

                   PART 2819--SMALL BUSINESS PROGRAMS

                        Subpart 2819.2--Policies

Sec.

Sec. 2819.201  General policy.

              Subpart 2819.5--Set-Asides for Small Business


Sec. 2819.506  Withdrawing or modifying set-asides.

    Subpart 2819.6--Certificates of Competency and Determinations of 
                               Eligibility


Sec. 2819.602  Procedures.

Sec. 2819.602-1  Referral.

      Subpart 2819.70--Forecasts of Expected Contract Opportunities


Sec. 2819.7001  General.

Sec. 2819.7002  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                        Subpart 2819.2--Policies



Sec. 2819.201  General policy.

    (a) The Office of Small and Disadvantaged Business Utilization 
(OSDBU) is organizationally attached to the Office of the Deputy 
Attorney General in accordance with 28 CFR 0.18a, but is located in JMD 
for administrative purposes.
    (b) The Director, OSDBU, is responsible for the administration of 
the DOJ small and disadvantaged business programs in accordance with the 
duties described in 28 CFR 0.18a.

              Subpart 2819.5--Set-Asides for Small Business



Sec. 2819.506  Withdrawing or modifying set-asides.

    (a) Before a contracting officer may withdraw or modify a small 
business set-aside, the contracting officer shall seek the concurrence 
of the Director, OSDBU.
    (b) If the contracting officer and the Director, OSDBU, are unable 
to agree on the proposed withdrawal or modification, the Director, OSDBU 
shall:
    (1) Forward the matter to the Small Business Administration (SBA) 
procurement center representative assigned to the Department of Justice 
for resolution; or,
    (2) Forward the matter to the PE for resolution if an SBA 
procurement center representative is not assigned to the Department of 
Justice.

    Subpart 2819.6--Certificates of Competency and Determinations of 
                               Eligibility



Sec. 2819.602  Procedures.



Sec. 2819.602-1  Referral.

    In accordance with FAR 19.602-1(a)(2), the matter shall be submitted 
to the Director, OSDBU, for subsequent referral to the cognizant SBA 
Regional Office.

      Subpart 2819.70--Forecasts of Expected Contract Opportunities



Sec. 2819.7001  General.

    Section 501 of Public Law 100-656, the Business Opportunity 
Development Reform Act of 1988, requires executive agencies having 
contract actions in excess of $50 million in Fiscal Year 1988 or later 
to prepare an annual forecast of expected contract opportunities, or 
classes of contract opportunities that small business concerns, 
including those owned and controlled by socially and economically 
disadvantaged individuals, are capable of performing.



Sec. 2819.7002  Procedures.

    The content and format of bureau annual forecasts of contract 
opportunities, as well as the updates to their contracting forecasts 
shall be as specified by the Director, OSDBU.

[[Page 674]]

     PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                  Subpart 2822.1--Basic Labor Policies

Sec.

Sec. 2822.101  Labor relations.

Sec. 2822.101-1  General.

Sec. 2822.101-3  Reporting labor disputes.

Sec. 2822.103  Overtime.

Sec. 2822.103-4  Approvals.

  Subpart 2822.4--Labor Standards for Contracts Involving Construction


Sec. 2822.406  Administration and enforcement.

Sec. 2822.406-8  Investigations.

       Subpart 2822.13--Special Disabled and Vietnam Era Veterans


Sec. 2822.1303  Waivers.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16129, Apr. 2, 1998, unless otherwise noted.

                  Subpart 2822.1--Basic Labor Policies



Sec. 2822.101  Labor relations.



Sec. 2822.101-1  General.

    All matters regarding labor relations shall be handled in accordance 
with bureau procedures.



Sec. 2822.101-3  Reporting labor disputes.

    The office administering the contract shall report, directly to the 
contracting officer, any potential or actual labor disputes that may 
interfere with performing any contracts under its cognizance.



Sec. 2822.103  Overtime.



Sec. 2822.103-4  Approvals.

    The inclusion of a dollar amount greater than zero in paragraph (a) 
of the FAR clause 52.222-2, Payment For Overtime Premiums, must be 
approved at a level above the contracting officer. Such approval shall 
be reflected by the signature of the approving official on the 
contracting officer's written determination made in accordance with FAR 
22.103-4.

  Subpart 2822.4--Labor Standards for Contracts Involving Construction



Sec. 2822.406  Administration and enforcement.



Sec. 2822.406-8  Investigations.

    Pursuant to FAR 22.406-8(d), the contracting officer shall prepare 
and forward the report of violations to the HCA or designee at a level 
not lower than the BPC. That official shall be responsible for 
processing the report in accordance with FAR 22.406-8(d)(2).

       Subpart 2822.13--Special Disabled and Vietnam Era Veterans



Sec. 2822.1303  Waivers.

    In accordance with FAR 22.1303, all requests for waivers shall be 
forwarded from the HCA to PPRG, JMD, for processing to the Attorney 
General.

PART 2823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE 
                                WORKPLACE

        Subpart 2823.1--Pollution Control and Clean Air and Water

Sec.

Sec. 2823.107  Compliance responsibilities.

 Subpart 2823.3--Hazardous Material Identification and Material Safety 
                                  Data


Sec. 2823.303-70  Departmental contract clause.

               Subpart 2823.4--Use of Recovered Materials


Sec. 2823.403  Policy.

Sec. 2823.404  Procedures.

Sec. 2823.404-70  Affirmative procurement program for recycled 
          materials.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

[[Page 675]]

        Subpart 2823.1--Pollution Control and Clean Air and Water



Sec. 2823.107  Compliance responsibilities.

    If a contracting officer becomes aware of noncompliance with clean 
air, water or other affected media standards in facilities used in 
performing nonexempt contracts, that contracting officer shall notify 
the Department of Justice Environmental Executive (DOJEE).

 Subpart 2823.3--Hazardous Material Identification and Material Safety 
                                  Data



Sec. 2823.303-70  Departmental contract clause.

    The contracting officer shall insert the clause at 2852.223-70, 
Unsafe Conditions Due to the Presence of Hazardous Material, in all 
solicitations and contracts, as appropriate, if the contract will 
require the performance of services on Government-owned or Government-
leased facilities.

             Subpart 2823.4--Use of the Recovered Materials



Sec. 2823.403  Policy.

    It is the policy of DOJ that its contracting activities and 
contractors that procure on behalf of DOJ, acquire EPA designated items 
in accordance with EPA's Comprehensive Procurement Guideline For 
Products Containing Recovered Materials (CPG) (40 CFR part 247). The 
recommended minimum recovered materials content of EPA designated items 
is set forth in EPA's Recovered Materials Advisory Notices (RMANs) and 
in E.O. 12873 as amended. These publications are available from the 
DOJEE.



Sec. 2823.404  Procedures.

    (a) The program office initiating the acquisition is responsible for 
determining if recovered materials should be included in the 
specification. Procurement offices are responsible for informing program 
offices of the requirement for writing specifications for designated 
items that include minimum content standards specified in the RMANs.
    (b) If the program office chooses to procure designated items 
containing less than the minimum content standards, and program office 
must justify that decision in writing and include a copy of the signed 
justification with the procurement request package. FAR 23.404(b)(3) 
sets forth the only acceptable justifications for acquiring EPA 
designated items which do not meet the minimum content standard. The 
contracting officer is the approving official for justifications made 
pursuant to FAR 23.404(b)(3). Contracting officers are responsible for 
including a signed copy of the justification in the acquisition file and 
submitting a copy of the approved justification to the DOJEE.



Sec. 2823.404-70  Affirmative procurement program for recycled 
          materials.

    (a) Recovered materials preference program. Preference will be given 
to procuring and using products containing recovered materials rather 
than products made with virgin materials when adequate competition 
exists, and when price, performance and availability are equal.
    (b) Promotion program. The DOJEE has primary responsibility for 
actively promoting the acquisition of products containing recycled 
materials throughout DOJ. Technical and procurement personnel will 
cooperate with the DOJEE to actively promote DOJ's Affirmative 
Procurement Program (APP).
    (c) Procedures for vendor estimation, verification and 
certification.
    (1) Estimation. The contractor shall provide estimates of the total 
percentage(s) of recovered materials for EPA designated items to be used 
in products or services provided.
    (2) Certification. Contracting officers shall provide copies of all 
vendor and subcontractor certifications required by FAR 23.405(b) to the 
DOJEE.
    (3) Vertification. The DOJEE is responsible for periodically 
reviewing vendor certification documents and waivers as part of the 
annual review and monitoring process to determine if DOJ is in 
compliance with E.O. 12873 and subsequent amendments.

[[Page 676]]

       PART 2824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

               Subpart 2824.2--Freedom of Information Act

Sec.

Sec. 2824.202  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

               Subpart 2824.2--Freedom of Information Act



Sec. 2824.202  Policy.

    Procedures for processing Freedom of Information Act requests are 
set forth in Departmental regulations and 28 CFR part 16.

[63 FR 16130, Apr. 2, 1998]

                     PART 2825--FOREIGN ACQUISITION

        Subpart 2825.2--Buy American Act--Construction Materials

Sec.

Sec. 2825.203  Evaluating offers.

               Subpart 2825.3--Balance of Payments Program


Sec. 2825.302  Policy.

         Subpart 2825.9--Additional Foreign Acquisition Clauses


Sec. 2825.901  Omission of audit clause.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16130, Apr. 2, 1998, unless otherwise noted.

        Subpart 2825.2--Buy American Act--Construction Materials



Sec. 2825.203  Evaluating offers.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determination that using a particular 
domestic construction material would unreasonably increase the cost of 
the acquisition or would be impracticable.

               Subpart 2825.3--Balance of Payments Program



Sec. 2825.302  Policy.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 
25.302(b)(3), as well as authorize the use of a differential greater 
than 50 percent, as specified in FAR 25.302(c), for the evaluation of 
domestic and foreign offers under the Balance of Payments Program. All 
determinations made under this section shall be in writing and shall set 
forth the facts and circumstances supporting the determination. 
Determinations shall be reviewed and concurred in by the contracting 
activity's legal counsel.

         Subpart 2825.9--Additional Foreign Acquisition Clauses



Sec. 2825.901  Omission of audit clause.

    The HCA, or designee at a level not lower than the BPC, is the 
agency official authorized to make determinations under FAR 25.901(c). 
All determinations made under this authority shall be reviewed and 
concurred in by the contracting activity's legal counsel prior to being 
approved by the authorized agency official.

[[Page 677]]

             Subchapter E--General Contracting Requirements

                     PART 2828--BONDS AND INSURANCE

                          Subpart 2828.1--Bonds

Sec.

Sec. 2828.106  Administration.

Sec. 2828.106-6  Furnishing information

                        Subpart 2828.2--Sureties


Sec. 2828.204  Alternatives in lieu of corporate or individual sureties.

                        Subpart 2828.3--Insurance


Sec. 2828.307-1  Group insurance plans.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16131, Apr. 2, 1998, unless otherwise noted.

                          Subpart 2828.1--Bonds



Sec. 2828.106  Administration.



Sec. 2828.106-6  Furnishing information.

    In accordance with FAR 28.106-6(c), the HCA, or designee at a level 
not lower than the BPC, is the agency official authorized to furnish the 
certified copy of the bond and the contract.

                        Subpart 2828.2--Sureties



Sec. 2828.204  Alternatives in lieu of corporate or individual sureties.

    When contractors submit any of the types of security described in 
FAR 28.204-1 through 28.204-3 in lieu of furnishing sureties, the 
contracting officer shall enter into an agreement with the contractor 
covering a bank account, and suitable covenants protecting the 
Government's interest, in which the securities will be deposited to 
protect against their loss during the period of the bond obligation.

                        Subpart 2828.3--Insurance



Sec. 2828.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review and approval. During review, the 
contracting office should utilize all sources of information available 
such as audit, industry practices, etc., to determine that acceptance of 
the group insurance plan, as submitted, is in the Government's best 
interest.

                            PART 2829--TAXES

                  Subpart 2829.3--State and Local Taxes

Sec.

Sec. 2829.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                  Subpart 2829.3--State and Local Taxes



Sec. 2829.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    (a) It is DOJ policy that DOJ contracts shall not contain clauses 
expressly designating prime contractors as agents of the Government for 
the purpose of avoiding State and local taxes.
    (b) Although circumstances may exist under which a contractor is an 
agent of the Government, even in the absence of a contract clause 
expressly designating a contractor as such, these circumstances should 
be extremely rare. Before any DOJ contracting activity may contend that 
any of its contractors are agents of the Government for the purpose of 
claiming immunity from State and local sales and use taxes, the matter 
will be referred to the AAG/A for review, and approval to ensure that 
DOJ policy is complied with and that the contracting activity's 
contention is fully in accordance with the pertinent legal principles 
and precedents. Each case forwarded will be reviewed by the HCA before 
referral to the AAG/A. The referral will include all pertinent data on 
which the contracting activity's contention is based, together with a 
thorough analysis of all relevant legal precedents.
    (c) Whenever clauses, procedures, and business practices are cited 
by DOJ

[[Page 678]]

contracting activities to support the contention that a contractor is an 
agent of the Government for the purpose of immunity from a State or 
local sales or use tax, contracting activities should whenever possible, 
devise alternative clauses, procedures, and practices for future use 
which will accomplish their intended purpose without providing the basis 
for contention that the contractor is an agent of the Government for the 
purpose of immunity from State and local sales or use taxes. Any 
referral to the AAG/A for approval under this subpart shall include 
comments on the extent to which alternative clauses, procedures, or 
practices may be utilized to accomplish the intended purpose without 
providing the basis for the contention that the contractor is an agent 
of the Government for the purpose of immunity from State and local sales 
or use taxes.

[63 FR 16131, Apr. 2, 1998]

        PART 2830--COST ACCOUNTING STANDARDS (CAS) ADMINISTRATION

                Subpart 2830.2--CAS Program Requirements

Sec.

Sec. 2830.201-5  Waiver.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                Subpart 2830.2--CAS Program Requirements



Sec. 2830.201-5  Waiver

    A request for a waiver of the Cost Accounting Standards requirements 
shall be forwarded to the HCA after the contracting officer has made the 
determination required by FAR 30.201-5.

[63 FR 16131, Apr. 2, 1998]

           PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES

                      Subpart 2831.1--Applicability

Sec.

Sec. 2831.101  Objectives.

Sec. 2831.109  Advance agreements.

         Subpart 2831.2--Contracts With Commercial Organizations


Sec. 2831.205  Selected costs.

Sec. 2831.205-32  Precontract costs.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

                      Subpart 2831.1--Applicability



Sec. 2831.101  Objectives.

    (a) The PE is the official authorized to grant individual deviations 
from the cost principles of FAR part 31. All requests for individual 
deviations must cite the facts and circumstances surrounding the request 
as well as attempts to negotiate contractor compliance.
    (b) Requests for class deviations from the cost principles set forth 
in FAR part 31 will be forwarded through the PE prior to submission to 
the Civilian Agency Acquisition Counsel. Requests must contain the 
information required in paragraph (a) of this section.



Sec. 2831.109  Advance agreements.

    (a) The DOJ and bureau contracting officers are encouraged to 
negotiate advance agreements concerning the treatment of special or 
unusual costs to avoid possible subsequent disputes or disallowance of 
costs based upon unreasonableness or nonallowability. All such 
agreements shall be negotiated in accordance with FAR 31.109 prior to 
the contractor incurring such costs. Contracting officers are not 
authorized to agree to a treatment of costs which would be inconsistent 
with FAR part 31.
    (b) Prior to negotiating an advance agreement, contracting officers 
shall make a written determination setting forth the reasons and 
rationale for entering into such agreements. In addition, the 
determination will set forth the nature, the duration, and which 
contract or contracts are covered by the proposed agreement. All 
determinations required by this subpart will be reviewed and approved at 
a level above the contracting officer prior to negotiation of the 
proposed agreement. The approved determination will be placed in the 
contract file.

[[Page 679]]

    (c) All advance agreements shall be in writing and shall set forth 
the nature, duration, and contract or contracts covered by the 
agreements. Advance agreements will be signed by both the contractor and 
the contracting officer, and made a part of the contract file. Copies of 
executed advance agreements will be distributed to the cognizant audit 
office when applicable.
    (d) All advance agreements will be incorporated in full in the 
subsequent contract(s) to which they pertain, prior to award.

         Subpart 2831.2--Contracts With Commercial Organizations



Sec. 2831.205  Selected costs.



Sec. 2831.205-32  Precontract costs.

    (a) Precontract cost authorizations shall be used only on cost 
reimbursement contracts, contain no provisions for payment of fees, and 
be treated as advance agreements in accordance with the provisions of 
FAR 31.109 and 2831.109.
    (b) The following limitations apply to the execution of precontract 
cost authorizations.
    (1) Contracts which are estimated to be greater than the simplified 
acquisition threshold may contain a precontract cost authorization 
providing the authorization is for a period of 60 days or less and the 
dollar amount does not exceed the lesser of the simplified acquisition 
threshold or one third of the total estimated costs (including fee if 
any) of the contract.
    (2) the limitation expressed under paragraph (b) of this section may 
be increased in unusual circumstances as appropriate, with the written 
approval of the HCA, but in no event shall they exceed one-third of the 
total estimated costs (including fee if any) of the contract or be for 
periods of time which exceed 90 days.

                      PART 2832--CONTRACT FINANCING

         Subpart 2832.1--Non-Commercial Item Purchase Financing

Sec.

Sec. 2832.114  Unusual contract financing.

        Subpart 2832.4--Advance Payments for Non-Commercial Items


Sec. 2832.402  General.

Sec. 2832.407  Interest.

                     SUBPART 2832.9--Prompt Payment


Sec. 2832.903  Policy.

               Subpart 2832.11--Electronic Funds Transfer


Sec. 2832.1110  Solicitation provision and contract clauses.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

         Subpart 2832.1--Non-Commercial Item Purchase Financing



Sec. 2832.114  Unusual contract financing.

    The HCA, or designee at a level not lower than the BPC, is the 
official authorized to approve unusual contract financing as set forth 
in FAR 31.114.

        Subpart 2832.4--Advance Payments for Non-Commercial Items



Sec. 2832.402  General.

    (a) The authority to sign written determinations and findings with 
respect to making advance payments is vested in the HCA.
    (b) Prior to awarding a contract which contains provisions for 
making advanced payments, the contract terms and conditions concerning 
advance payments must be approved at a level above the contracting 
officer, with advice and consent of the bureau's legal counsel.

[[Page 680]]

    (c) The contracting officer shall coordinate with the activity that 
is to provide contract financing for advance payments, the bureau's 
disbursing or finance office, or the Treasury Department, as 
appropriate, to ensure that all FAR and departmental requirements are 
met.



Sec. 2832.407  Interest.

    In cases where advance payments may be made on an interest free 
basis (FAR 32.407(d)), the intent to make such interest free advance 
payments, and the circumstance permitting interest free advance 
payments, shall be set forth in the original determination and findings 
and be approved in accordance with 2832.402.

                     Subpart 2832.9--Prompt Payment



Sec. 2832.903  Policy.

    The HCA is responsible for promulgating policies and procedures to 
implement FAR 32.9 and to ensure that, when specifying due dates, full 
consideration will be given to the time reasonably required by 
Government officials to fulfill their administrative responsibilities 
under the contract.

               Subpart 2832.11--Electronic Funds Transfer



Sec. 2832.1110  Solicitation provision and contract clauses.

    When the clause at FAR 52.232-34, Payment by Electronic Funds 
Transfer-Other than Central Contractor Registration, is required the 
contracting officer may insert in paragraph (b)(1) of the clause a 
particular time after award, such as a fixed number of days, or an event 
such as the submission of the first request for payment, to establish 
the point at which contractors' EFT information must be provided.

[64 FR 37045, July 9, 1999]

               PART 2833--PROTESTS, DISPUTES, AND APPEALS

                        Subpart 2833.1--Protests

Sec.

Sec. 2833.101  Definitions.

Sec. 2833.102  General.

Sec. 2833.103  Protests to the agency.

                  Subpart 2833.2--Disputes and Appeals


Sec. 2833.209  Suspected fraudulent claims.

Sec. 2833.211  Contracting officer's decision.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16132, Apr. 2, 1998, unless otherwise noted.

                        Subpart 2833.1--Protests



Sec. 2833.101  Definitions.

    (a) Agency Protest Official means the official, other than the 
contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of Justice.
    (1) This person will be at a level above that of the Contracting 
Officer, will be knowledgeable about the acquisition process in general 
and will have no programmatic interest in the procurement.
    (2) This official shall be an individual designated by the head of 
the contracting activity and may be the Competition Advocate.
    (b) Deciding Official means the person chosen by the protestor to 
decide the agency protest; it may be either the Contracting Officer or 
the Agency Protest Official.
    (c) Interested Party means an actual or prospective offeror whose 
direct economic interest would be affected by the award of a contract or 
by the failure to award a contract.



Sec. 2833.102  General.

    (a) This part describes policies and procedures for processing 
protests to the Department of Justice in accordance with Executive Order 
12979, Agency Procurement Protests, dated October 25, 1995, and FAR 
33.103. They are intended to be flexible and to provide for fair, quick, 
and inexpensive resolution of agency protests.
    (b) Interested parties have the option of protesting to the 
Contracting Officer or to the Agency Protest Official.
    (c) Contracting officers and potential protestors are encouraged to 
use their best efforts to resolve concerns through frank and open 
discussion, as required by FAR 33.103(b). In resolving

[[Page 681]]

concerns and/or protests, consideration should be given to the use of 
alternative dispute resolution techniques where appropriate.
    (d) Responsibilities:
    (1) Contracting Officers: (i) Include the provision at 2852.233-70 
in all solicitations that are expected to exceed the simplified 
acquisition threshold.
    (ii) If the protestor requests that the Contracting Officer decide 
the protest, or if the protest is silent on this issue, the Contracting 
Officer decides the protest using the procedures in this subpart and FAR 
33.103.
    (iii) If the protestor requests that the Agency Protest Official 
decide the protest, the Contracting Officer must ensure that the Agency 
Protest Official receives a copy of the materials served on the 
Contracting Officer within one business day after the filing date.
    (2) Agency Protest Official: If the protestor requests that the 
Agency Protest Official decide the protest, the Official must use the 
procedures in this subpart and FAR 33.103 to provide an independent 
review of the issues raised in the protest.



Sec. 2833.103  Protests to the agency.

    (a) The filing time frames in FAR 33.103(e) apply. An agency protest 
is filed when the protest complaint is received at the location the 
solicitation designates for serving protests.
    (b) An interested party filing an agency protest has the choice of 
requesting either that the Contracting Officer or the Agency Protest 
Official decide the protest.
    (c) In addition to the information required by FAR 33.103(d)(2), the 
protest must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have the Contracting 
Officer or the Agency Protest Official decide the protest. If the 
protest is silent on this matter, the Contracting Officer will decide 
the protest.
    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (d) The decision by the Agency Protest Official is an alternative to 
a decision by the Contracting Officer on a protest. The Agency Protest 
Official will not consider appeals from a Contracting Officer's decision 
on an agency protest.
    (e) The deciding official must conduct a scheduling conference with 
the protestor within five (5) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for agency officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at the 
same time as the scheduling conference, depending on availability of the 
necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain the 
substance of its protest. Department of Justice procedures do not 
provide for any discovery. The deciding official has discretion to 
request additional information from either the agency or the protestor. 
However, the deciding official will normally decide protests on the 
basis of information provided by the protestor and the agency.
    (h) The preferred practice is to resolve protests through informal 
oral discussion.
    (i) An interested party may represent itself or be represented by 
legal counsel. The Department of Justice will not reimburse the 
protester for any legal fees related to the agency protest.
    (j) If an agency protest is received before contract award, the 
Contracting Officer must not make award unless the Head of the 
Contracting Activity makes a determination to proceed under FAR 
33.103(f)(1). Similarly, if an agency protest is filed within ten (10) 
days after award, the Contracting Officer must stay performance unless 
the Head of the Contracting Activity makes a determination to proceed 
under FAR 33.103(f)(3). Any stay of award or suspension of performance 
remains in effect until the protest is decided, dismissed, or withdrawn.

[[Page 682]]

    (k) The deciding official must make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be oral or written. If oral, the deciding official must 
send a confirming letter within three (3) days after the decision using 
a means that provides receipt. The confirming letter must include the 
following information:
    (1) State whether the protest was denied, sustained or dismissed.
    (2) Indicate the date the decision was provided.
    (l) If the deciding official sustains the protest, relief may 
consist of any of the following:
    (1) Recommendation that the contract be terminated for convenience 
or cause.
    (2) Recompeting the requirement.
    (3) Amending the solicitation.
    (4) Refraining from exercising contract options.
    (5) Awarding a contract consistent with statute, regulation, and the 
terms of the solicitation.
    (6) Other action that the deciding official determines is 
appropriate.
    (m) If the Agency Protest Official sustains a protest, then within 
30 days after receiving the Official's recommendations for relief, the 
Contracting Officer must either:
    (1) Fully implement the recommended relief; or
    (2) Notify the Agency Protest Official in writing of any 
recommendations have not been implemented and explain why.
    (n) Proceedings on an agency protest may be dismissed or stayed if a 
protest on the same or similar basis is filed with a protest forum 
outside of the Department of Justice.

                  Subpart 2833.2--Disputes and Appeals



Sec. 2833.209  Suspected fraudulent claims.

    Contracting officers shall report suspected fraudulent claims to the 
Office of the Inspector General.



Sec. 2833.211  Contracting officer's decision.

    (a) The Agency Board of Contract Appeals (BCA), which will hear 
appeals from the decisions of bureau contracting officers, is the 
Department of Transportation BCA. The procedures set forth in 48 CFR 
chapter 63 shall apply.
    (b) Pursuant to 28 CFR 0.45(i), the contact for all appeals of 
decisions of DOJ contracting officers which will be forwarded to the BCA 
under paragraph (a) of this section, is the Deputy Assistant Attorney 
General, Commercial Litigation Branch, Civil Division.

[[Page 683]]

             Subchapter F--Special Categories of Contracting

                   PART 2834--MAJOR SYSTEM ACQUISITION

                         Subpart 2834.0--General

Sec.

Sec. 2834.002  Policy.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

                         Subpart 2834.0--General



Sec. 2834.002  Policy.

    In accordance with Pub. L. 98-577, the Small Business and Federal 
Procurement Competition Enhancement Act of 1984, an executive agency may 
establish a dollar threshold for the designation of a major system. 
Accordingly, dollar thresholds for a major system under Office of 
Management and Budget Circular A-109 are designated in this section.
    (a) Major automated information system. Within the Department of 
Justice, a major automated information system is one whose life-cycle 
cost is in excess of $100 million.
    (b) Major real property system. (1) By purchase, when the assessed 
value of the property exceeds $60 million.
    (2) By lease, when the annual rental charges, including basic 
services (e.g., cleaning, guards, maintenance), exceed $1.8 million.
    (3) By transfer from another agency at no cost when the assessed 
value of the property exceeds $12 million.
    (c) Research and Development (R&D) System. Any R&D activity expected 
to exceed $0.5 million, for the R&D phase is subject to OMB Circular A-
109, unless exempted by the HCA.
    (d) Any other system or activity. The HCA responsible for the system 
may designate any system or activity as a Major System under OMB 
Circular A-109 as a result of Departmental review, e.g., selected 
systems designed to support more than one principal organizational unit.
    (e) Exemption. The AAG/A, upon recommendation by the HCA responsible 
for the system, may determine that because of the routine nature of the 
acquisition, the system (e.g., an information system utilizing only off-
the-shelf hardware or software) will be exempt from the OMB Circular A-
109 process, although by virtue of the life cycle costs, it would 
otherwise be identified as ``major'' in response to OMB Circular A-109.

[63 FR 16134, Apr. 2, 1998]

[[Page 684]]

                    Subchapter G--Contract Management

                   PART 2842--CONTRACT ADMINISTRATION

           Subpart 2842.15--Contractor Performance Information

Sec.

Sec. 2842.1502  Policy.

Sec. 2842.1503  Procedures.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

           Subpart 2842.15--Contractor Performance Information



Sec. 2842.1502  Policy.

    The head of each contracting activity shall be responsible for 
establishing past performance evaluation procedures and systems as 
required by FAR 42.1502 and 42.1503.



Sec. 2842.1503  Procedures.

    Past performance evaluation procedures and systems shall include, to 
the greatest practicable extent, the evaluation and performance rating 
factors set forth in the Office of Federal Procurement Policy best 
practices guide for past performance.

                     PART 2845--GOVERNMENT PROPERTY

                         Subpart 2845.1--General

Sec.

Sec. 2845.105  Records of Government property.

 Subpart 2845.5--Management of Government Property in the Possession of 
                               Contractors


Sec. 2845.505-14  Report of Government Property.

 Subpart 2845.6--Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 2845.603  Disposal methods.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

                         Subpart 2845.1--General



Sec. 2845.105  Records of Government property.

    If departmental elements maintain the Government's official property 
management records, the contract records may be kept as a separate 
account in the bureau's internal property management system, in which 
case the contracting officer or formally designated property 
administrator shall serve as custodian of the account.

 Subpart 2845.5--Management of Government Property in the Possession of 
                               Contractors



Sec. 2845.505-14  Report of Government Property.

    (a) In compliance with FAR 45.505-14, by January 31 of each year, 
DOJ contractors shall furnish the cognizant contracting officer an 
annual report of the DOJ property for which they are accountable as of 
the end of the calendar year.
    (b) By March 1 of each year, bureaus shall submit a summary report 
of Departmental property furnished under each contract, as of the end of 
the calendar year, to the Facilities and Administrative Services Staff, 
Justice Management Division. The report shall be categorized in 
accordance with FAR 45.505 and shall include contracts for which the 
bureau maintains the official government records.

 Subpart 2845.6--Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 2845.603  Disposal methods.

    Policies pertaining to reutilization and disposal of DOJ property, 
including requirements for internal screening, waivers, and disposal 
reporting, are prescribed in the Justice Property Management Regulations 
Subpart 128-43. Unless otherwise specified, the ``plant clearance 
officer'' shall be a designated utilization and disposal representative 
of a bureau's property management office.

[[Page 685]]

                      PART 2846--QUALITY ASSURANCE

        Subpart 2846.6--Material Inspection and Receiving Reports

Sec.

Sec. 2846.601  General.

                       Subpart 2846.7--Warranties


Sec. 2846.704  Authority for use of warranties.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16134, Apr. 2, 1998, unless otherwise noted.

        Subpart 2846.6--Material Inspection and Receiving Reports



Sec. 2846.601  General.

    Bureaus shall prescribe procedures and instructions for the use, 
preparation, and distribution of material inspection and receiving 
reports and commercial shipping document/packing lists to evidence 
Government inspection.

[63 FR 26739, May 14, 1998]

                       Subpart 2846.7--Warranties



Sec. 2846.704  Authority for use of warranties.

    The use of a warranty in an acquisition shall be approved at a level 
above the contracting officer.

[[Page 686]]

                     Subchapter H--Clauses and Forms

         PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

      Subpart 2852.1--Instructions for Using Provisions and Clauses

Sec.

Sec. 2852.102  Incorporating provisions and clauses.

Sec. 2852.102-270  Incorporation in full text.

             Subpart 2852.2--Text of Provisions and Clauses


Sec. 2852.201-70  Contracting Officer's Technical Representative (COTR).

Sec. 2852.211-70  Brand-name or equal.

Sec. 2852.223-70  Unsafe conditions due to the presence of hazardous 
          material.

Sec. 2852.233-70  Protests filed directly with the Department of 
          Justice.

    Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 
CFR 0.76(j).

    Source: 63 FR 16135, Apr. 2, 1998, unless otherwise noted.

      Subpart 2852.1--Instructions for Using Provisions and Clauses



Sec. 2852.102  Incorporating provisions and clauses.



Sec. 2852.102-270  Incorporation in full text.

    JAR provisions or clauses shall be incorporated in solicitations and 
contracts in full text.

             Subpart 2852.2--Text of Provisions and Clauses



Sec. 2852.201-70  Contracting Officer's Technical Representative (COTR).

    As prescribed in subpart 2801.70, insert the following clause:

    Contracting Officer's Technical Representative (COTR) (JAN 1985)

    (a) Mr./Ms (Name) of (Organization) (Room No.), (Building), 
(Address), (Area Code & Telephone No.), is hereby designated to act as 
Contracting Officer's Technical Representative (COTR) under this 
contract.
    (b) The COTR is responsible, as applicable, for: receiving all 
deliverable, inspecting and accepting the supplies or services provided 
hereunder in accordance with the terms and conditions of this contract; 
providing direction to the contractor which clarifies the contract 
effort, fills in details or otherwise serves to accomplish the 
contractual Scope of Work; evaluating performance; and certifying all 
invoices/vouchers for acceptance of the supplies or services furnished 
for payment.
    (c) The COTR does not have the authority to alter the contractor's 
obligations under the contract, and/or modify any of the expressed 
terms, conditions, specifications, or cost of the agreement. If as a 
result of technical discussions it is desirable to alter/change 
contractual obligations or the Scope of Work, the Contracting Officer 
shall issue such changes.

                             (End of clause)



Sec. 2852.211-70  Brand-name or equal.

    As prescribed in 2811.104-70, insert the following clause:

                     Brand-Name or Equal (JAN 1985)

    (a) The terms ``bid'' and ``bidders'', as used in this clause, 
include the terms ``proposal'' and ``offerors''. The terms ``invitation 
for bids'' and ``invitational'', as used in their clause include the 
terms ``request for proposal'' and ``request''.
    (b) If items called for by this invitation for bids have been 
identified in the schedule by a ``brand name or equal'' description, 
such identification is intended to be descriptive but not restrictive, 
and is to indicate the quality and characteristics of products that will 
be satisfactory. Bids offering ``equal'' products (including products of 
a brand name manufacturer other than the one described by brand name) 
will be considered for award if such products are clearly identified in 
the bids and are determined by the Government to meet fully the salient 
characteristics and requirements listed in the invitation.
    (c) Unless the bidder clearly indicates in his/her bid that he/she 
is offering an ``equal'' product, his/her bid shall be considered as 
offering the brand name product referenced in the invitation for bids.
    (d)(1) If the bidder proposes to furnish an ``equal'' product, the 
branch name, if any, of the product to be furnished shall be inserted in 
the space provided in the invitation for bids, or such product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determinations to equality of the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the bidder or

[[Page 687]]

identified in his/her bid as well as other information reasonably 
available to the purchasing activity. To ensure the sufficient 
information is available, the bidder must furnish as a part of his/her 
bid all description material (such as cuts, illustrations, drawings, or 
other information) necessary for the purchasing activity to: (i) 
determine whether the product offered meets the salient characteristics 
requirements of the invitation for bids, and (ii) established exactly 
what the bidder proposed to furnish and what the Government would be 
binding itself to purchase by making an award. The information furnished 
may include specific references to information previously furnished or 
information otherwise available to the purchasing activity.
    (2) If the bidder proposes to modify a product so as to make it 
conform to the requirements of the invitation for bids, he/she shall: 
(i) include in his/her bid a clear description of such proposed 
modification, and (ii) clearly mark any description material to show the 
proposed modifications.
    (3) Modifications proposed after the bid opening to make a product 
conform to a brand name product referenced in the invitation for bids 
will not be considered.

                             (End of clause)



Sec. 2852.223-70  Unsafe conditions due to the presence of hazardous 
          material.

    As prescribed in 2823.303-70, insert the following clause:

 Unsafe Conditions Due to the Presence of Hazardous Material (JUN 1996)

    (a) ``Unsafe condition'' as used in this clause means the actual or 
potential exposure of contractor or Government employees to a hazardous 
material as defined in Federal Standard No. 313, and any revisions 
thereto during the term of this contract, or any other material or 
working condition designated by the Contracting Officer's Technical 
Representative (COTR) as potentially hazardous and requiring safety 
controls.
    (b) The Occupational Safety and Health Administration (OSHA) is 
responsible for issuing and administering regulations that require 
contractors to appraise its employees of all hazards to which they may 
be exposed in the course of their employment; proper conditions and 
precautions for safe use and exposure; and related symptoms and 
emergency treatment in the event of exposure.
    (c) Prior to commencement of work, contractors are required to 
inspect for and report to the contracting officer or designee the 
presence of, or suspected presence of, any unsafe condition including 
asbestos or other hazardous materials or working conditions in areas in 
which they will be working.
    (d) If during the performance of the work under this contract, the 
contractor or any of its employees, or subcontractor employees, 
discovers the existence of an unsafe condition, the contractor shall 
immediately notify the contracting officer, or designee, (with written 
notice provided not later than three (3) working days thereafter) of the 
existence of an unsafe condition. Such notice shall include the 
contractor's recommendations for the protection and the safety of 
Government, contractor and subcontractor personnel and property that may 
be exposed to the unsafe condition.
    (e) When the Government receives notice of an unsafe condition from 
the contractor, the parties will agree on a course of action to mitigate 
the effects of that condition and, if necessary, the contract will be 
amended. Failure to agree on a course of action will constitute a 
dispute under the Disputes clause of this contract.
    (f) Notice contained in this clause shall relieve the contractor or 
subcontractors from complying with applicable Federal, State, and local 
laws, codes, ordinances and regulations (including the obtaining of 
licenses and permits) in connection with hazardous material including 
but not limited to the use, disturbance, or disposal of such material.

                             (End of clause)



Sec. 2852.233-70  Protests filed directly with the Department of 
          Justice.

    As prescribed in 2833.102(d), insert a clause substantially as 
follows:

    Protests Filed Directly With the Department of Justice (JAN 1998)

    (a) The following definitions apply in this provision:
    (1) ``Agency Protest Official'' means the official, other than the 
contracting officer, designated to review and decide procurement 
protests filed with a contracting activity of the Department of Justice.
    (2) ``Deciding Official'' means the person chosen by the protestor 
to decide the agency protest; it may be either the Contracting Officer 
or the Agency Protest Official.
    (3) ``Interested Party'' means an actual or prospective offeror 
whose direct economic interest would be affected by the award of a 
contract or by the failure to award a contract.
    (b) A protest filed directly with the Department of Justice must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protestor chooses to have the Contracting 
Officer or the Agency Protest Official decide the protest. If the 
protestor is silent on this matter, the Contracting Officer will decide 
the protest.

[[Page 688]]

    (4) Indicate whether the protestor prefers to make an oral or 
written presentation of arguments in support of the protest to the 
deciding official.
    (5) Include the information required by FAR 33.103(a)(2):
    (i) Name, address, facsimile number and telephone number of the 
protestor.
    (ii) Solicitation or contract number.
    (iii) Detailed statement of the legal and factual grounds for the 
protest, to include a description of resulting prejudice to the 
protestor.
    (iv) Copies of relevant documents.
    (v) Request for a ruling by the agency.
    (vi) Statement as to the form of relief requested.
    (vii) All information establishing that the protestor is an 
interested party for the purpose of filing a protest.
    (viii) All information establishing the timeliness of this protest.
    (c) An interested party filing a protest with the Department of 
Justice has the choice of requesting either that the Contracting Officer 
or the Agency Protest Official decide the protest.
    (d) The decision by the Agency Protest Official is an alternative to 
a decision by the Contracting Officer. The Agency Protest Official will 
not consider appeals from the Contracting Officer's decision on an 
agency protest.
    (e) The deciding official must conduct a scheduling conference with 
the protestor within five (5) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for many officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at the 
same time as the scheduling conference, depending on availability of the 
necessary parties.
    (f) Oral conferences may take place either by telephone or in 
person. Other parties may attend at the discretion of the deciding 
official.
    (g) The protestor has only one opportunity to support or explain the 
substance of its protest. Department of Justice procedures do not 
provide for any discovery. The deciding official may request additional 
information from either the agency or the protestor. The deciding 
official will resolve the protest through informal presentations or 
meetings to the maximum extent practicable.
    (h) An interested party may rerpresent itself or be represented by 
legal counsel. The Department of Justice will not reimburse the 
protester for any legal fees related to the agency protest.
    (i) The Department of Justice will stay award or suspend contract 
Performance in accordance with FAR 33.103(f). The stay or suspension 
unless over-ridden, remains in effect until the protest is decided, 
dismissed, or withdrawn.
    (j) The deciding official will make a best effort to issue a 
decision on the protest within twenty (20) days after the filing date. 
The decision may be oral or written.
    (k) The Department of Justice may dismiss or stay proceeding on an 
agency protest if a protest on the same or similar basis is filed with a 
protest forum outside the Department of Justice.

                             (End of clause)

[[Page 689]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 691]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2002)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2  [Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

[[Page 692]]

    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6  [Reserved]

              

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)

[[Page 693]]

        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 694]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--599)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 1000-
                -1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)

[[Page 695]]

         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)

[[Page 696]]

       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

[[Page 697]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 800-
                -899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 1600-
                -1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 698]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 699]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 0-
                -99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)

[[Page 700]]

        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 200-
                -399)
        IV  Secret Service, Department of the Treasury (Parts 400-
                -499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

[[Page 701]]

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 200-
                -399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

[[Page 702]]

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 300-
                -399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)

[[Page 703]]

       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

[[Page 704]]

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)

[[Page 705]]

     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 300-
                -399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)

[[Page 706]]

        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

[[Page 707]]

        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Transportation (Parts 1500--1599)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 709]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2002)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII

[[Page 710]]

Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 711]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II

[[Page 712]]

Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulation          41, 101
  Federal Travel Regulation System                41, Subtitle F

[[Page 713]]

  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V

[[Page 714]]

  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II

[[Page 715]]

Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
   Certain Employees
[[Page 716]]

Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II

[[Page 717]]

  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Security Administration          49, XII
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 719]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1973-1985, and 1986-2000, published in eight separate volumes.

                                  2001

48 CFR
                                                                   66 FR
                                                                    Page
Chapter 15
Chapter  15 Nomenclature change....................................34376
1516.603-1  Added; interim.........................................12900
    Regulation at 66 FR 12900 confirmed............................39456
1516.603-2  Added; interim.........................................12900
    Regulation at 66 FR 12900 confirmed............................39456
1552.211-70  Amended...............................................28674
1552.211-79  Amended...............................................28674
1552.219-70  Revised...............................................28674
1552.219-71  Revised...............................................28675
1552.219-72  Revised...............................................28676
1552.219-73  Revised...............................................28676
1552.232-73  Amended...............................................28676
Chapter 18
1803.7000--1803.7001 (Subpart 1803.70)  Added......................29727
1804.402  Revised..................................................53546
1804.470-1  Revised; interim.......................................36491
1804.470-2  Revised; interim.......................................36491
1804.470-3  Revised; interim.......................................36491
1804.470-4  Revised; interim.......................................36491
1804.570-1  Revised................................................53546
1804.570-2  Revised................................................53546
1804.7103  (b) amended.............................................53546
1807.105  (b)(10) revised..........................................53546
1807.7103  Revised.................................................53546
1808.802  Revised..................................................53546
1811.602  (c) amended..............................................29727
1811.603  Revised..................................................29727
1812.301  (f)(i)(I) through (N) redesignated as (f)(i)(J) through 
        (O); new (I) added; interim................................18052
1815.404-2  Amended................................................53547
1815.604  (a) amended..............................................53547
1816.104-70  (a) amended...........................................53547
1816.405-274  (g)(1) and (4) revised; (h) and (i) redesignated as 
        (i) and (j); new (h) added.................................53547
1816.603-2  Added..................................................53547
1817.503  (c) added................................................53547
1819.201  (a)(i) and (ii) amended..................................53547
1819.202  Removed..................................................53547
1819.302 (Subpart 1819.3)  Heading revised.........................53547
1819.705-470  Amended..............................................53547
1822  Nomenclature change..........................................53547
1822.1503 (Subpart 1822.15)  Added.................................41805
1823.7001  (e) added; interim......................................18052
    (c) amended....................................................48361
1830  Regulation at 65 FR 49206 confirmed..........................29728
1830.201-5  Regulation at 65 FR 49206 confirmed....................29727
1832.006-2  Heading revised........................................53547
1832.402  (e)(1)(B)(a) revised.....................................29728
1832.410  (b)(ii) amended..........................................53547
1832.702-70  (e) revised...........................................29728
1835.016-71  (b)(1) revised; (c)(2)(i)(B) through (G) redesignated 
        as (c)(2)(i)(C) through (H); new (c)(2)(i)(B) added; 
        (d)(4) amended.............................................53547
1836.602-1  (a)(7) redesignated as (a)(6)..........................53548
1837.104  (b) amended..............................................53548
1837.203  (c) amended..............................................53548
1842.302  Amended..................................................53548
1842.7003  Added...................................................18054
1842.7301  (e)(1) introductory text and (e)(1)(ii) revised.........53548
1843.205-70  (a)(1) amended........................................53548

[[Page 720]]

1843.7002  Revised.................................................53548
1843.7003  (a) revised; (b)(1) amended.............................53548
1843.7004  (a) introductory text revised...........................53548
1844.302-70  Introductory text, (c) and (e) amended................53548
1844.302-71  Introductory text amended.............................53548
1845.7101  Revised.................................................41805
1845.7101-1  (c), (d), (g)(2), (h)(2), (i)(2), (k) introductory 
        text and (2) revised.......................................41805
1845.7101-2  Introductory text and (c) amended.....................41806
1845.7101-3  (a)(12) removed; (a) amended; (e) revised.............41806
1845.7101-4  (b) and (h) revised...................................41806
1845.7101-5  Amended...............................................41806
1852.203-70  Added.................................................29727
1852.204-74  Clause amended........................................53548
1852.204-76  Revised; interim......................................36491
1852.208-81  Revised...............................................53548
1852.223-70  Amended; interim......................................18052
1852.223-72  Added; interim........................................18052
1852.223-73  Amended; interim......................................18053
    Revised........................................................48361
    Alternate I amended............................................53549
1852.223-75  Amended; interim......................................18053
1852.242-78  Added.................................................18054
1852.243-70  Amended...............................................53549
1852.245-73  Amended...............................................41806

                                  2002

  (Regulations published from January 1, 2002, through October 1, 2002)

48 CFR
                                                                   67 FR
                                                                    Page
Chapter 15
1501  Authority citation revised....................................5072
1501.404  Added.....................................................5072
1501.602-3  (b) revised.............................................5072
1502  Authority citation revised....................................5072
1502.100  Revised...................................................5072
1515  Authority citation revised.............................5072, 11441
1515.303  Revised...................................................5072
1515.308-71  Removed...............................................11441
1515.404-474  Amended...............................................5072
1517  Authority citation revised....................................5072
1517.204  Amended...................................................5072
1533  Authority citation revised...................................11441
1533.212  Removed..................................................11441
1536  Authority citation revised....................................5072
1536.602-2  (b) amended.............................................5072
1552  Authority citation revised.............................5072, 11441
1552.211-79  (b)(3) revised.........................................5072
1552.219-71  Revised...............................................11441
1552.219-73  (a) table revised......................................5072
1552.232-73  (b)(2) revised.........................................5073
Chapter 18
Chapter  18 Nomenclature change....................................30602
1803.104-3  Redesignated as 1803.104-1.............................30603
1803.104-1  Redesignated from 1803.104-3...........................30603
1803.104-4  Redesignated from 1803.104-5; heading revised; 
        (a)(ix), (c)(i) and (ii) amended...........................30603
1803.104-5  Redesignated as 1803.104-4.............................30603
1803.104-7  Redesignated from 1803.104-10..........................30603
1803.104-10  Redesignated as 1803.104-7............................30603
1804.470-1  Revised................................................48815
1804.470-2  Regulation at 66 FR 36491 confirmed....................48815
1804.470-3  Regulation at 66 FR 36491 confirmed....................48815
1804.470-4  Regulation at 66 FR 36491 confirmed....................48815
1804.601  Amended..................................................50823
1804.602  (d) amended..............................................50823
1804.670  Revised..................................................50823
1804.670-1  Removed................................................50823
1804.670-2  Removed................................................50823
1804.670-3  Removed................................................50823
1804.7403  (a)(1) amended..........................................30603
1806.303-170  Amended..............................................30603
1811.101  Revised..................................................30603
1813.302-1  Revised................................................50823
1813.302-570  Added................................................38904
    (a)(1) and (b) revised.........................................50823
1815.209-70  (b) and (c) revised...................................50824
1816.104-70  (b) revised...........................................30603
1816.405-274  (c)(2) and (3) revised................................7618
1816.603-370  Revised..............................................30603
1819.1005  (b) table amended.......................................50824
1819.7001  Removed.................................................30603

[[Page 721]]

1822.1305--1822.1308 (Subpart 1822.13)  Revised....................30603
1823  Heading revised..............................................30603
1823.007  Added....................................................30604
1823.203 (Subpart 1823.2)  Added...................................30603
1823.404 (Subpart 1823.4)  Added...................................30603
1823.703 (Subpart 1823.7)  Added...................................30603
1823.7001  (a) and (b) revised; (c) amended........................17016
1825.400  Amended..................................................50824
1832.702-70  Revised................................................7619
1832.906  Removed..................................................30604
1832.908  (c)(3) redesignated as (c)(2)............................30604
1833.103  (c) amended; (f) revised.................................61519
1835.016-71  (c)(2)(B) amended.....................................30604
1836.513  Added....................................................17016
1842.1502  Revised.................................................44777
1847.305-70  (b) revised; interim..................................38908
1852.204-74  Clause amended........................................30604
1852.204-76  Regulation at 66 FR 36491 confirmed; clause amended 
                                                                   48815
1852.213-70  Added.................................................38905
    Heading, (e) introductory text, (1), (f)(1), (i), (ii), (iii), 
(2), (3), (4)(iii) and (g) introductory text amended...............50824
1852.213-71  Added.................................................38905
1852.223-70  Clause amended........................................17017
1852.223-72  Clause amended........................................17017
1852.223-73  Section and Alternate I amended.......................17017
1852.223-75  Clause amended; (b) revised............................7618
1852.227-11  Revised...............................................30604
1852.227-70  Clause amended........................................30604
1852.233-70  Clause amended........................................61519
1852.235-72  Clause amended........................................61520
1852.235-72  Clause amended........................................30604
1852.247-73  Revised; interim......................................38908
1872.203  (b) amended..............................................61520
1872.307  (b) amended..............................................61520
1872.402  (b)(7) redesignated as (b)(8); new (b)(7) added..........61520
1872.705  Amended..................................................61520


                      []