[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Rules and Regulations]
[Pages 5312-5315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3003]



=======================================================================
-----------------------------------------------------------------------

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION


48 CFR Parts 1815, 1816, 1819, 1823, 1827, 1835, 1837 and 1852

Acquisition Regulation; Miscellaneous Amendments to NASA FAR 
Supplement

AGENCY: Office of Procurement, National Aeronautics and Space 
Administration (NASA).

ACTION: Final rule.

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

SUMMARY: This document amends the NASA Federal Acquisition Regulation 
Supplement (NFS) to reflect a number of miscellaneous changes dealing 
with NASA internal or administrative matters, such as promotion of 
compliance with current Federal-wide policies on Government property, 
revision of headings, and delegation of authority.

EFFECTIVE DATE: March 13, 1996.

FOR FURTHER INFORMATION CONTACT:
David K. Beck, (202) 358-0482.

SUPPLEMENTARY INFORMATION:

Background

    NASA is reviewing and rewriting 48 CFR chapter 18, the NASA FAR 
Supplement, in its entirety in order to implement recommendations of 
the National Performance Review. During this review, NASA is 
eliminating reporting requirements and making other changes in order to 
reduce and simplify the regulation. This rule is part of the effort to 
simplify NASA's regulations.

Summary of Changes

    Section 1837.204 is added to delegate authority to make the 
determinations of non-availability of personnel under FAR 37.204 (FAC 
90-33, Item II, 60 FR 49720 and 49723, 9-26-95). In addition, section 
1815.413-2 is revised, in the context of FAR 37.203 and 37.204, to 
refer to the determinations to be made under the new section 1837.204.
    To promote compliance with Federal-wide policy, a reference is 
added in 1815.970(b) to the policy under FAR 45.302-3(c) on excluding 
the cost of facilities when contracting officers calculate a profit or 
fee objective prior to contract negotiation.
    The prescription is revised in 1815.7002 for the ombudsman clause 
in order to remove the reference to Section L of the solicitation. NASA 
will instruct contracting officers to place the clause in Section I 
which is more appropriate for information that may be useful before and 
after contract award.
    Section 1816.505 is added (per FAC 90-33, Item III, 60 FR 49723, 9-
26-95) on task and delivery order contracts in order to enable persons 
to identify the appropriate NASA ombudsman.
    In order to conform to changes in the FAR made by FAC 90-32, Item V 
(60 FR 48206, 9-18-95) headings are changed in part 1819.
    This rule increases from $25,000 to the ``simplified acquisition 
threshold'' the dollar amount at which the Safety and Health clause of 
1852.223-70 is automatically included in construction contracts and 
subcontracts. Regardless of dollar amount, the clause is included when 
there are known hazards.
    This rule removes paragraph (b) of 1835.003 which refers to a NASA 
Management Instruction entitled ``Recoupment Policy for the Sale, Use, 
Lease, or Other Transfer of NASA-Developed Technologies.'' The NASA 
Management Instruction has been canceled because we know of no occasion 
where the policy has been used by NASA to recoup R&D or other 
nonrecurring costs.
    Section 1852.227-15 is redesignated as 1852.227-17 because the 
section provides a paragraph to be added to the basic clause at FAR 
52.227-17.

Impact

    NASA certifies that this regulation will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The regulation 
imposes no burdens on the public under the Paperwork Reduction Act of 
1995, as implemented under 5 CFR part 1320.

List of Subjects in 48 CFR Parts 1815, 1816, 1819, 1823, 1827, 
1835, 1837, 1852

    Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.

    Accordingly, 48 CFR parts 1815, 1816, 1819, 1823, 1827, 1835, 1837, 
and 1852 are amended as follows:
    1. The authority citation for 48 CFR Parts 1815, 1816, 1819, 1823, 
1827, 1835, 1837, and 1852 continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).
    
[[Page 5313]]


PART 1815--CONTRACTING BY NEGOTIATION

    2. Section 1815-413-2 is revised to read as follows:


1815.413-2  Alternate II.

    (a) General. This section prescribes the policy and procedures 
pertaining to the use of individuals from outside the Government as 
evaluators of proposals. The references in FAR 15.413-2 to the 
provision at FAR 52.215-12 shall be considered to be references to the 
provision at 48 CFR 1852.215-72.
    (b) Policy. It is NASA policy to have proposals evaluated by the 
most competent technical and management sources available. Qualified 
proposal evaluators will normally be available from within the 
Government. However, from time-to-time it may be necessary to make a 
determination of non-availability of qualified Government evaluators as 
required by 48 CFR 1837.204 and to disclose proposal information to 
non-Government evaluators.
    (c) Approval to release proposal outside the Government. (1) 
Regarding proposals and proposal information resulting from Requests 
For Proposals, after the determination of non-availability is made (48 
CFR 1837.204) and a copy of the determination is included in the 
procurement file, the Procurement Officer, with the concurrence of the 
Chief Counsel, may authorize the release of the proposals and proposal 
information to non-Government evaluators. Under FAR 37.203(d), the 
determination of non-availability of qualified personnel need not be 
made when the proposal information is released to a JPL employee for 
evaluation.
    (2) Information from SBIR, STTR, NRA, AO and unsolicited proposals 
may be authorized for disclosure to non-Government evaluators by the 
NASA program official one level higher than the official responsible 
for the evaluation without making the determination of non-availability 
as required by 48 CFR 1837.204.
    (d) Appointing non-Government evaluators as special Government 
employees. (1) Except for JPL employees, evaluators of proposal 
information resulting from an RFP shall be appointed as special 
Government employees.
    (2) Appointment as a Special Government employee is a separate 
action from the approval required by paragraph (c) of this section and 
may be processed concurrently. Appointment as a special Government 
employee shall be made by:
    (i) The NASA Headquarters personnel office when the release of 
proposal information is to be made by a NASA Headquarters office; or
    (ii) The Field Installation personnel office when the release of 
proposal information is to be made by the Field Installation.
    (3) Non-Government evaluators need not be appointed as special 
Government employees when they evaluate information from SBIR, STTR, 
NRA, AO, and unsolicited proposals.
    (e) Release of proposal information. The written approvals required 
by paragraphs (c)(1) and (c)(2) of this section shall be provided to 
the contracting officer before the actual release of the proposal 
information. As a minimum, the approval shall:
    (1) Identify the precise proposal information being released;
    (2) Identify the person receiving the proposal information and 
include a statement that the person has been appointed a special 
Government employee or a statement of the applicable exception under 
paragraph (d)(3) of this section;
    (3) Provide a justification of the need for disclosure of the 
proposal information to the non-Government evaluator(s); and
    (4) Provide a statement that a signed ``Agreement and Conditions 
for Evaluation of Proposals (August 1993),'' in accordance with 
paragraph (f) of this section, will be obtained prior to the proposal 
to the evaluator.
    (f) Agreements. For any proposal information, (i.e., RFP, SBIR, 
STTR, NRA, AO and unsolicited proposals) the NASA official who actually 
releases/transfers the proposal information to a non-Government 
evaluator, including employees of JPL, shall, prior to such disclosure, 
require each non-Government evaluator to sign the following ``Agreement 
and Conditions for Evaluation of Proposals (April 1993),'' and to 
complete and sign a ``Procurement Integrity Certification for 
Procurement Officials'' (Optional Form 333), in accordance with FAR 
3.104-12.

Agreement and Conditions for Evaluation of Proposals (August 1993)

    (1) The recipient agrees to use proposal information for NASA 
evaluation purposes only. This limitation does not apply to 
information that is otherwise available without restrictions to the 
Government, another competing contractor, or the public.
    (2) The recipient agrees that the NASA proposal cover sheet 
notice (FAR 15.413-2(e) and NFS 1815.413(a)), and any notice that 
may have been placed on the proposal by its originator, shall be 
applied to any reproduction or abstract of any proposal information 
furnished.
    (3) Upon completion of the evaluation, the recipient agrees to 
return all copies of proposal information or abstracts, if any, to 
the NASA office that initially furnished the proposal information 
for evaluation.
    (4) Unless authorized in writing by the NASA official releasing 
the proposal information, the recipient agrees not to contact either 
the business entities originating the proposals or any of their 
employees, representatives, or agents concerning any aspect of the 
proposal information or extracts covered by this agreement.
    (5) The recipient agrees to review his or her financial 
interests relative to the entities whose proposal information NASA 
furnishes for evaluation. At any time the recipient becomes aware 
that he or she or a person with a close personal relationship 
(household family members, business partners, or associates) has or 
acquires a financial interest in the entities whose proposal 
information is subject to this agreement, the recipient shall 
immediately advise the NASA official releasing the proposal 
information, protect the proposal information, and cease evaluation 
activities pending a NASA decision resolving the conflict of 
interest.
    (6) I understand that the term ``leave the Government'' in the 
last sentence of the Procurement Integrity Certification for 
Procurement Officials, Optional Form 333, means ``cease to function 
as a procurement official.''

Signature:-------------------------------------------------------------

Name typed or printed:-------------------------------------------------

Date:------------------------------------------------------------------

[End of Agreement]

    (g) Affixing of a protection notice. The official who actually 
releases/transfers the proposal information shall review each proposal 
or the extracted item of proposal information that is to be released 
and ensure that the notice at FAR 15.413-2(e) (See 48 CFR 1815.413(a)) 
is affixed to each proposal or the extracted item of proposal 
information before it is released/transferred.

[[Page 5314]]

    (h) JPL. If JPL personnel, in evaluating proposal information 
obtained from a standard RFP released to them by NASA, must obtain 
assistance from non-JPL, non-Government evaluators, JPL must obtain 
written approval from the Procurement Officer before releasing the 
information; except that information from SBIR, STTR, NRA, AO, and 
unsolicited proposals may be disclosed outside JPL with prior written 
approval, in compliance with paragraph (c)(2) of this section.
    3. The last sentence of paragraph (b) of 1815.970 is revised to 
read as follows:


1815.970  NASA structured approach for profit or fee objective.

    (a) * * *
    (b) * * * Neither the cost of facilities (see FAR 45.302-3(c)) nor 
the amount calculated for the cost of money for facilities capital is 
to be included as part of the cost base in column 1.(a) in the 
computation of profit.
* * * * *
    4. The last sentence of 1815.7002 is revised to read as follows:


1815.7002  Commerce Business Daily announcements, solicitations and 
contracts.

    * * * Also, a clause substantially the same as the one at 48 CFR 
1852.215-84 shall be included in solicitations, including draft 
solicitations, and in all contracts.

PART 1816--TYPES OF CONTRACTS

    5. Section 1816.505 is added to read as follows:


1816.505  Ordering.

    The ombudsman referred to in FAR 16.505(b)(4) is the ombudsman of 
the installation issuing the solicitation and its resultant contract. 
See 48 CFR part 1815, subparts 1815.70 and 1852.215-84.
    6. The headings for part 1819, section 1819.505, and subpart 1819.7 
are revised to read as follows:

PART 1819--SMALL BUSINESS PROGRAMS


1819.505  Rejecting Small Business Administration recommendations.

Subpart 1819.7--Subcontracting With Small Business, Small 
Disadvantaged Business and Women-Owned Small Business Concerns

PART 1823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND 
DRUG-FREE WORKPLACE

    7. Section 1823.7004 is amended by republishing paragraph (c) 
introductory text and revising paragraphs (c)(2), (c)(3), and (c)(4) to 
read as follows:


1823.7004  Contract clause.

* * * * *
    (c) Except as provided in paragraph (d) of this section, the clause 
at 48 CFR 1852.223-70 shall be included in--
    (1) * * *
    (2) All construction, repair, or alteration contracts in excess of 
the simplified acquisition threshold;
    (3) All contracts having, within their total requirement, 
construction, repair, or alteration tasks in excess of the simplified 
acquisition threshold; and
    (4) Any procurement regardless of dollar amount when--
    (i) Any deliverable contract end item is of a hazardous nature, or
    (ii) During the life of the contract it can reasonably be expected 
that hazards will be generated within the operational environment and 
the contracting officer or safety and health representative determines 
that they warrant inclusion of the clause.
* * * * *

PART 1827--PATENTS, DATA, AND COPYRIGHTS

    8. Paragraph (c) of 1827.405 is revised to read as follows:


1827.405  Other data rights provisions.

* * * * *
    (c) Production of special works. Paragraph (f) of the clause at 48 
CFR 1852.227-17 is to be added to the clause at FAR 52.227-17, Rights 
in Data--Special Works, whenever that clause is used in any NASA 
contract.

PART 1835--RESEARCH AND DEVELOPMENT CONTRACTING

    9. Section 1835.003 is revised to read as follows:


1835.003  Policy.

    See NHB 5800.1, NASA Grant and Cooperative Agreement Handbook, for 
policy regarding the use of grants and cooperative agreements.

PART 1837--SERVICE CONTRACTING

    10. Section 1837.204 is added to read as follows:


1837.204  Guidelines for determining availability of personnel.

    (a) The NASA official one level above the NASA program official 
responsible for the evaluation shall make the determination of non-
availability of personnel under FAR 37.204 (a) and (b). For field 
installations, the concurrence of the Office of Chief Counsel shall be 
obtained and for Headquarters actions, the concurrence of the Office of 
Associate General Counsel for Contracts shall be obtained. The 
contracting officer shall ensure that a copy of the determination is in 
the procurement file prior to issuance of a solicitation.
    (b) Outside peer review evaluators may be used to evaluate SBIR, 
STTR, NRA, AO, and unsolicited proposals without making the 
determination required by FAR 37.204.
    (c) The agreement required by FAR 37.204(c) shall be made by the 
program official responsible for the evaluation and the contracting 
officer.
    (d) Class determinations under FAR 37.204(e) shall be made by the 
Associate Administrator for Procurement. The installation procurement 
office shall forward its request with an explanation of the necessity 
for the use of outside evaluators as outlined in FAR 37.204(b) to Code 
HS.
    (e) See (NFS) 48 CFR 1815.413-2 Alternate II, for instructions 
concerning--
    (1) The authority to release proposals resulting from RFP's outside 
the Government and
    (2) The requisite nondisclosure statements.
    
[[Page 5315]]


PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    11. Section 1852.223-70 is amended by revising the date of the 
clause to read ``(February 1996)'' and revising paragraph (e)(2) of the 
clause to read as follows:


1852.223-70  Safety and Health.

* * * * *
    (e) * * *
    (1) * * *
    (2) require construction, repair, or alteration in excess of the 
simplified acquisition threshold, or
* * * * *


1852.227-15  [Redesignated as 1852.227-17]

    12. Section 1852.227-15 is redesignated as 1852.227-17.

[FR Doc. 96-3003 Filed 2-9-96; 8:45 am]
BILLING CODE 7510-01-M