[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19925-19928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10126]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1802, 1804, 1812, 1852, 1853, and 1871


Administrative Revisions to the NASA FAR Supplement

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This is a final rule to conform NASA FAR Supplement MidRange 
Administrative Procedures with FAR 19.11, 19.12, 19.13, and make 
editorial corrections and miscellaneous changes dealing with NASA 
internal and administrative matters.


[[Page 19926]]


DATES: This rule is effective April 23, 1999.

ADDRESSES: Celeste Dalton, NASA Headquarters Office of Procurement, 
Contract Management Division (Code HK), Washington, DC 20546.

FOR FURTHER INFORMATION CONTACT: Celeste Dalton, (202) 358-1645, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Recent changes to FAR Subpart 19.11, Price Evaluation Adjustment 
for Small Disadvantaged Business Concerns, and FAR Subpart 19.12, Small 
Disadvantaged Business Participation Program, established mechanisms to 
benefit small disadvantaged business (SDB) firms at the prime and 
subcontract levels. This rule incorporates these changes into MidRange 
Procedures and provides guidance on the evaluation of the extent of SDB 
participation, as required by FAR 19.12, under MidRange Best Value 
Selection (BVS) procedures. NASA MidRange Procurement Procedures 
require that all acquisitions be reserved for small business concerns. 
Changes at FAR 19.13, implementing the SBA Historically Underutilized 
Business Zone (HUBZone) Program, change the order of priority for small 
business set-asides. This rule incorporates this change into the 
MidRange Procedures. Additional administrative changes are made to the 
MidRange Procedures to: reflect the expiration of the pilot test period 
and synopsis waiver for these procedures; modify the dollar threshold 
for MidRange acquisitions; correct a FAR citation noted in section 
1871.401-1(b)(3); delete redundant coverage of NASA Acquisition 
Internet Service (NAIS) usage at section 1871.405; and add prescribed 
NASA Forms 1667 and 1668 to Part 1853. Other editorial changes 
unrelated to MidRange are made to: revise the language at 
1812.301(f)(i) to clarify that use of the clauses listed is authorized 
without obtaining a waiver; add clause 1852.223-71, Frequency 
Authorization, to the list of clauses authorized for use in commercial 
acquisitions in accordance with the authority at FAR 12.301(f); and 
revise several references to Lewis Research Center (LeRC) to the Glenn 
Research Center at Lewis Field (GRC).

Impact

Regulatory Flexibility Act

    This final rule does not constitute a significant revision within 
the meaning of FAR 1.501 and Pub. L. 98-577, and publication for public 
comments is not required. However, comments from small entities 
concerning the affected NFS subpart will be considered in accordance 
with 5 U.S.C. 610. Such comments must be submitted separately and 
should cite 5. U.S.C. 601, et seq.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the NFS do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1802, 1804, 1812, 1852, 1853, and 
1871

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

    Accordingly, 48 CFR Parts 1802, 1804, 1812, 1852, 1853, and 1871 
are amended as follows:

PART 1802--DEFINITIONS OF WORDS AND TERMS

    1. The authority citation for 48 CFR Parts 1802, 1804, 1812, 1852, 
1853, and 1871 continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

    2. In the definition ``Contracting activity'' in section 1802.101, 
``Lewis Research Center'' is removed and ``Glenn Research Center at 
Lewis Field'' is added in alphabetical order after ``Dryden Flight 
Research Center''.

PART 1804--ADMINISTRATIVE MATTERS

    3. In paragraph (a) to section 1804.7102, under the heading 
``Installation'', ``Lewis Research Center'' is removed and ``Glenn 
Research Center at Lewis Field'' is added in its place and the entry is 
placed in alphabetical order after ``Dryden Flight Research Center''.

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

    4. Section 1812.301, is revised to read as follows:


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) 1852.214-71, Grouping for Aggregate Award.
    (B) 1852.214-72, Full Quantities.
    (C) 1852.215-84, Ombudsman.
    (D) 1852.219-75, Small Business Subcontracting Reporting.
    (E) 1852.219-76, NASA Small Disadvantaged Business Goal.
    (F) 1852.223-71, Frequency Authorization.
    (G) 1852.228-72, Cross-Waiver of Liability for Space Shuttle 
Services.
    (H) 1852.228-76, Cross-Waiver of Liability for Space Station 
Activities.
    (I) 1852.228-78, Cross-Waiver of Liability for NASA Expendable 
Launch Vehicles.
    (J) 1852.232-70, NASA Progress Payment Rates.
    (K) 1852.246-72, Material Inspection and Receiving Report.

PART 1852--SOLICITATION PROVISIONS AND CONRACT CLAUSES

    5. In paragraph (b)(i) to section 1852.103, ``CW'' and ``LERC'' are 
removed, and ``GRC'' is added in alphabetical order after ``DFRC''.

PART 1853--FORMS

    6. Section 1853.271 is added to read as follows:


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.

PART 1871--MIDRANGE PROCUREMENT PROCEDURES

    7. Subpart 1871.1 is revised to read as follows:

Subpart 1871.1--General

Sec.
1871.101  Purpose.
1871.102  Applicability.
1871.103  Definitions.
1871.104  Policy.

Subpart 1871.1--General


1871.101  Purpose.

    The purpose of this part is to establish policies and procedures 
that implement the MidRange procurement process.


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.

[[Page 19927]]

    (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
    (3) The acquisition does not exceed $15,000,000 for the total 
requirement.


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.


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).
    8. In section 1871.204, paragraphs (a), (d), and (f) are revised 
and paragraph (h) is added to read as follows:


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).
* * * * *
    (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.
* * * * *
    (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 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.
* * * * *
    (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.
    9. In section 1871.401-1, paragraph (b)(3) is revised and paragraph 
(b)(5) is added to read as follows:


1871.401-1  Sealed offers.

* * * * *
    (b) * * *
    (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).
* * * * *
    (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.
    10. In section 1871.401-2, the section heading is revised and 
paragraph (b)(5) is added to read as follows:


1871.401-2  Two-step competitive acquisition.

* * * * *
    (b) * * *
    (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.
    11. In section 1871.401-3, the section heading is revised and 
paragraph (a)(4) is added to read as follows:


1871.401-3  Competitive negotiated acquisition not using qualitative 
criteria.

    (a) * * *
    (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.
* * * * *
    12. In section 1871.401-4 paragraph (a)(5) is added to read as 
follows:

[[Page 19928]]

1871.401-4  Competitive negotiations using qualitative criteria (Best 
Value Selection).

    (a) * * *
    (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.
* * * * *
    13. In section 1871.401-5, paragraph (b) is revised to read as 
follows:


1871.401-5  Noncompetitive negotiations.

* * * * *
    (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.
    14. Section 1871.405 is removed.
    15. Section 1871.505 is revised to read as follows:


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).
    16. In section 1871.602, the second sentence is revised to read as 
follows:


1871.602  Specifications for MidRange procurements.

    * * * 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. * * *
    17. In section 1871.603, paragraphs (b) and (c) are redesignated as 
paragraphs (d) and (e), and new paragraphs (b) and (c) are added to 
read as follows:


1871.603  Establishment of evaluation criteria.

* * * * *
    (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.
* * * * *
[FR Doc. 99-10126 Filed 4-22-99; 8:45 am]
BILLING CODE 7510-01-P