[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Proposed Rules]
[Pages 66643-66646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31985]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1819, 1834, 1845, 1852 and 1870


Revision to the NASA FAR Supplement to Eliminate Non-Statutory 
Certification Requirements

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration is 
publishing a notice of proposed rulemaking to amend the NASA FAR 
Supplement (NFS) to eliminate all non-statutory imposed contractor and 
offeror certification requirements.

DATES: Written comments on the proposed rulemakig must be received on 
or before February 18, 1997.

ADDRESSES: Comments (3 copies) should be addressed to Donald G. Abrams, 
Office of Procurement, Contract Management Division, Code HK, NASA 
Headquarters, Washington DC 20546.

FOR FURTHER INFORMATION CONTACT:
 Donald G. Abrams, telephone (202) 358-0512; facsimile (202) 358-3083; 
or electronic mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 4301(b)(1)(B) of the Federal Acquisition Reform Act of 1996 
(FARA), Pub. L. 104-106, requires agencies that have procurement 
regulations containing one or more certification requirements for 
contractors and offerors that are not specifically imposed by statute 
to issue for public comment a proposal to amend their regulations to 
remove the certification requirements. Such certification requirements 
may be omitted from the agency proposal if (i) the senior procurement 
executive for the executive agency provides the head of the executive 
agency with a written justification for the requirement and a 
determination that there is no less burdensome means for administering 
and enforcing the particular regulation that contains the certification 
requirement; and (ii) the head of the executive agency approves in 
writing the retention of such certification requirement.
    The proposed rule constitutes NASA's proposal for the elimination 
of all non-statutory imposed contractor and offeror certification 
requirements from the NFS pursuant to section 430(b)(1)(B) of FARA. 
NASA has not identified any regulatory certification requirement 
contained in the NFS which it has determined should be proposed for 
retention. Consequently, the Agency is not pursuing approval from the 
Administrator of NASA to retain any certification requirement not 
specifically imposed by statute. The Agency invites public comment on 
its proposal to eliminate all regulatory certification requirements 
from the NFS and on its determination that there are no certification 
requirements which should be proposed for retention.

Agency Proposal to Eliminate Non-Statutory Certification 
Requirements

    The following is the Agency's proposal pertaining to each 
contractor and offeror certification requirement contained in the NFS.
1. 1816.303  Cost Sharing Contracts
    This requirement, which dealt with the certification requested from 
a university to the fact that it has ``no commercial, production, 
educational, or service activities on which to use the results of the 
research and no means of recovering any cost sharing on such 
projects'', has been deleted from the rewrite of the NFS.
2. 1819.7211 Application Process for Mentor Firms to Participate in the 
Program
    This section, which required that ``a proposed mentor must submit 
the following information (1) certification that the mentor firm is 
currently performing under at least one active approved subcontracting 
plan * * *'' will be rewritten to require simply a statement to the 
same effect.
    3. 1832.7002  Responsibility
    This section has been removed due to the rewrite of the NFS 
(effective October 29, 1996, 61 FR 55765-55774).
    4. 1832.7004(b)  Contractual Implementation (Milestone Billing)
    The section has been removed due to the rewrite of the NFS 
(effective October 29, 1996, 61 FR 55765-55774).
5. 1834-005-1  Competition (Major Systems Acquisition)
    The passing reference under ``(4) Phase D, Development, involves 
final detailed design, fabrication, certification, and delivery of an 
operational system that meets program requirements,'' will be deleted 
from the rewrite to the NFS.
6. 1845.302-73  Determination and Findings (Decision to Provide 
Government Property)
    Whereas the previous section was worded, ``contractor has certified 
inability to acquire the facilities'', this will be rewritten to have 
the contractor ``demonstrate inability to acquire* * *''.
7. 1852.223-70  Safety and Health
    Previously, the clause required the contractor to submit a 
certification program for personnel involved in hazardous operations as 
required by the contract schedule or the contracting officer.'' This 
will be rewritten to require ``qualification standards for personnel* * 
*''. This clause was published in the Federal Register October 29, 1996 
(61 FR 55753-55764).
8. 1852-247-73  Shipment by Government Bills of Lading
    This optional transportation clause for use in f.o.b. Origin 
contracts instructs the contractor to certify on his/her invoices that 
the material has been shipped. It will be rewritten to require simply a 
statement that the material has been shipped.
9. 1870.102-703 VI  Proposal Submission Information (Investigation 
Acquisition System)
    Section 2.6, entitled Certification, previously required that ``the 
proposal must be signed by an institutional official authorized to 
certify institutional support * * *''. It will be rewritten to be 
entitled ``Signatory'' and require ``signed by institutional official 
authorized to ensure* * *''.

Public Comments

    NASA invites interested persons to participated by submitting data, 
views, or arguments with respect to the NFS amendments set forth in 
this proposed rule. Three copies of written comments should be 
submitted to the address indicated in the ADDRESSES section of this 
rule. All comments received will be available for public inspection 
during normal work hours. All written comments received by the date 
indicated in the DATES section of this notice will be carefully 
assessed and full considered prior to the effective date of these 
amendments as a final rule. Any information considered to be 
confidential must be so identified and submitted in writing, one copy 
only. NASA reserves the right to determine the confidential status of 
the information and to treat it according to

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its determination in accordance with 10 CFR 1004.11.

Impact

    NASA certified that this rule will not have a significant economic 
impact on a substantial number of small entities and, therefore, no 
regulatory flexibility analysis has been prepared.
    NASA has concluded that this proposed rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, NASA has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 1819, 1834, 1845, 1852 and 1870

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

    Accordingly, 48 CFR 1819, 1834, 1845, 1852 and 1870 are proposed to 
be amended as follows:
    1. The authority citation for 48 CFR 1819, 1834, 1845, 1852 and 
1870 continues to read as follows:

    Authority: U.S.C. 2473(c)(1).

PART 1819--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS


1819.7211   [Amended]

    2. Section 1819.7211 is revised to read as follows:


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 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 amount of subcontracts awarded 
under NASA prime contracts within the past 2 years and the number of 
dollar value of such subcontracts awarded to entities defined as 
proteges.
    (6) Information on the proposed types of developmental assistance. 
For each proposed Mentor-Protege relationship include information on 
the company's ability to provide developmental assistance to the 
identified protege firm and how that assistance will potentially 
increase subcontracting opportunities for the protege firm, including 
subcontracting opportunities in industry categories where these 
entities are not dominant in the company's current subcontractor base; 
and
    (7) A Letter of Intent signed by both parties. At a minimum, the 
Letter of Intent must include the stated commitment that the parties 
intend to enter into a mentor-protege agreement under the NASA program, 
that they intend to cooperate in the development of a suitable 
developmental assistance program to meet their respective needs, and 
that they agree to comply with the obligations in section 1819.7215 and 
all other provisions governing the program.

PART 1834--MAJOR SYSTEM ACQUISITION


1834.005-1   [Amended]

    3. In section 1834.005-1, the existing paragraph (b)(4) is removed 
and paragraph (b)(5) is redesignated as paragraph (b)(4).

PART 1845--GOVERNMENT PROPERTY


1845.302-73  [Amended]

    4. Section 1845.302-73 is revised to read as follows:


1845.302-73   Determination and findings.

    (a) Procedure. Determination and findings (D&F) required under FAR 
45.302-1(a)(4) shall be prepared by the contracting officer and 
approved by the procurement officer. Prior to approval of the D&F by 
the procurement officer, concurrence must be obtained from the Director 
of Administration or equivalent, to ensure that the requiring activity 
and the installation supply and equipment management officer agree to 
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 separated D&F is required before adding new types of 
items or significant changes in quantity. A separate D&F is also 
required before adding any new work to the contract that requires 
additional Government facilities.
    (b) Format. A sample format follows:

(Format) 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 has 
demonstrated inability to acquire the facilities; or, even though 
the contractor is willing and financially able to acquire these 
facilities for its own account, the contractor has stated that time 
will not permit making arrangements to obtain timely delivery to 
meet NASA requirements. If timely delivery is the problem, state 
when 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. (Give a general description of the types of facilities to be 
provided and indicate the 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.)

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    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.

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Procurement Officer

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Date

(End of format)

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    5. Part 1852 is amended as set forth below:


1852.223-70  [Amended]

    6. Section 1852.223-70 is revised to read as follows: 1852.223-70 
Safety and Health.
    As prescribed in 1823.7001(a), insert the following clause:

Safety and Health

(February 1996)

    (a) The Contractor shall take all reasonable safety and health 
measures in performing under this contract. The Contractor shall 
comply with all Federal, State, and local laws applicable to safety 
and health in effect on the date of this contract and with the 
safety and health standards, specifications, reporting requirements, 
and provisions set forth in the contract Schedule.
    (b) The Contractor shall take or cause to be taken any other 
safety and 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 provision of the 
contract.
    (c) 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 occupations 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 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. 
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. The Contractor shall investigate 
all work-related incidents or accidents to the extent necessary to 
determine their causes and furnish the Contracting Officer a report, 
in such form as the Contracting Office may require, of the 
investigative findings and proposed or completed corrective actions.
    (d) (1) The Contracting Officer may notify the Contractor in 
writing of any noncompliance with this clause and specify corrective 
actions to be taken. 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 (d) (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.
    (e) The Contractor (or subcontractor or supplier) shall insert 
the substance of this clause, including this paragraph (e) and any 
applicable Schedule provisions, with appropriate changes of 
designations of the parties, in subcontracts of every tier that (1) 
amount to $1,000,000 or more (unless the Contracting Officer makes a 
written determination that this is not required), (2) require 
construction, repair, or alteration in excess of $25,000, or (3) 
regardless of dollar amount, involve the use of hazardous materials 
or operations.
    (f) 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 health 
measures under this clause.
    (g) As a part of the Contractor's safety plan (and health plan, 
when applicable) and to the extent required by the Schedule, the 
Contractor shall furnish a list of all hazardous operations to be 
performed, including operations indicated in paragraphs (a) and (b) 
of this clause, 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 either or both of 
the following, as required by the contract Schedule or by the 
Contracting Officer:
    (1) Written hazardous operating procedures for all hazardous 
operations.
    (2) A certification program for personnel involved in hazardous 
operations.

(End of clause)


Sec. 1852.247-73  [Amended]

    7. Section 1852.247--73 is revised to read as follows:


Sec. 1852.247-73  Shipment by Government bills of lading.

    As prescribed in 1847.305-70(c), insert the following clause:

Shipment by Government Bills of Lading

(March 1989)

    (a) The Contractor shall ship items deliverable under this 
contract, if the transportation cost per shipment exceeds $100, by 
Government bills of lading (GBLs). 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.
    (1) Item identification/description.
    (2) Origin and destination.
    (3) Individual and total weights.
    (4) Dimensions and total cubic footage.
    (5) Total number of pieces.
    (6) Total dollar value.
    (7) Other pertinent data.
    (b) The Contractor shall prepay transportation charges of $100 
or less per shipment. 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. 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:

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Destination:

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(End of clause)

PART 1870--NASA SUPPLEMENTARY REGULATIONS


Sec. 1870.102, Appendix I Chapter 7--  [Amended]

    8. In Appendix I to 1870.102, Chapter 7, section 703, paragraph VI 
is revised to read as follows:

APPENDIX I TO 1870.102--GUIDELINES FOR ACQUISITION OF INVESTIGATIONS

* * * * *

CHAPTER 7--PROCUREMENT AND OTHER CONSIDERATIONS

703. Other Administrative and Functional Requirements

* * * * *

VI. Proposal Submission Information

    1. Preproposal Activities--In this section, the AO will indicate 
requirements and activities such as the following:
    a. 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.''
    b. Attendance at the preproposal conference (if held). 
Information should be provided as to time, place, whether attendance 
will be restricted in number from

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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.
    c. The name and address of the scientific or technical contact 
for questions or inquiries.
    d. Any other preproposal data considered necessary.
    2. 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:
    a. Proposal--The AO should indicate how the proposal should be 
submitted to facilitate evaluation. The proposal should be submitted 
in at least two sections; (1) Investigation and Technical Section; 
and (2) Management and Cost Section.
    b. 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.
    c. 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.
    d. 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

    e. 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 C 
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.
    3. 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.
    4. Foreign Proposals--The procedures for submission of proposals 
from outside the U.S. are contained in Appendix B, ``General 
Instructions and Provisions.'' 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.
    5. Cost Proposals (U.S. Investigators Only)--This section 
defines any special requirements regarding cost proposals of 
domestic investigators. Reference then should be made to the cost 
proposal certifications indicated in Appendix B, ``General 
Instructions and Provisions''.
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[FR Doc. 96-31985 Filed 12-17-96; 8:45 am]
BILLING CODE 7510-01-M