[Federal Register Volume 64, Number 172 (Tuesday, September 7, 1999)]
[Rules and Regulations]
[Pages 48560-48562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23065]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1806, 1813, 1815, 1835, 1852, and 1872


Implementing Foreign Proposals to NASA Research Announcements on 
a No-Exchange-of-Funds Basis

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comments.

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SUMMARY: This is an interim rule to revise the NASA FAR Supplement 
(NFS) to conform the handling of foreign proposals under NASA Research 
Announcements (NRAs) with that under Announcements of Opportunity 
(AOs).

DATES: Effective Date: This rule is effective September 7, 1999.
    Applicability Date: This rule applies to NRAs and AOs issued on or 
after September 7, 1999.
    Comment Date: Comments should be submitted to NASA at the address 
shown below on or before November 8, 1999.

ADDRESSES: Interested parties should submit written comments to: 
Celeste Dalton, NASA Headquarters Office of Procurement, Contract 
Management Division (Code HK), Washington, DC 20546. Comments may also 
be submitted by email to [email protected].

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

SUPPLEMENTARY INFORMATION:

A. Background

    NASA uses NRAs and AOs to solicit research proposals from both U.S. 
and non-U.S. sources. Because of NASA's policy to conduct research with 
foreign entities on a cooperative, no-exchange-of-funds basis, 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 normally implemented via international agreements 
between NASA and the foreign entity involved. Thus, foreign proposers, 
whether as primary proposers or as participants in U.S. research 
efforts, are expected to arrange for financing for their portion of the 
research. This rule will implement NASA's policy for NRAs and make it 
consistent with the existing policy for AOs contained in NASA FAR 
Supplement (NFS) Part 1872, which requires foreign research to be 
implemented on a no-exchange-of-funds basis. Additional changes are 
made to NFS Part 1872 for consistency in the treatment of foreign 
proposals under NRAs and AOs. Treatment of late proposals under NRAs 
and AOs is clarified and subcontracting plans (when applicable) are 
added to the items required of selectees under NRAs. Other editorial 
changes are made to revise several references to the NASA Office of 
External Relations.

B. Regulatory Flexibility Act

    NASA certifies that this interim rule will not have a significant 
economic impact on a substantial number of small business entities 
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601, et 
seq.), because it only affects small business entities in the rare 
circumstance when such entities team with a foreign entity in response 
to an NRA.

C. Paperwork Reduction Act

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

D. Interim Rule

    In accordance with 41 U.S.C. 418(d), NASA has determined that 
urgent and compelling reasons exist to promulgate this interim rule 
without prior opportunity for public comment. This action is necessary 
to ensure that NRAs reflect NASA's policy that foreign research be 
implemented on a no-exchange-of-funds basis, and that foreign proposals 
received in response to NRAs are handled in accordance with the 
existing policy for AOs contained in NFS Part 1872. However, pursuant 
to Public Law 98-577 and FAR 1.501, public comments received in 
response to this interim rule will be considered in the formation of 
the final rule.

[[Page 48561]]

List of Subjects in 48 CFR Parts 1806, 1813, 1815, 1835, 1852, and 
1872

    Government procurement.
Tom Luedtke,
Associate Administrator for Procurement.

    Accordingly, 48 CFR Parts 1806, 1813, 1815, 1835, 1852, and 1872 
are amended as follows:
    1. The authority citation for 48 CFR Parts 1806, 1813, 1815, 1835, 
1852, and 1872 continues to read as follows:

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

PART 1806--COMPETITION REQUIREMENTS

    2. In paragraph (d) to section 1806.303-1, ``International 
Relations Division (Code IR)'' is revised to read ``Office of External 
Relations (Code I)''.

PART 1813--SIMPLIFIED ACQUISITION PROCEDURES

    3. Section 1813.000 is revised to read as follows:


1813.000  Scope of part.

    FAR Part 13 and 1813 do not apply to NASA Research Announcements 
and Announcements of Opportunity. These acquisitions shall be conducted 
in accordance with the procedures in 1835.016-71 and 1872, 
respectively. If awards are to be made as procurement instruments, they 
shall be made as bilateral contracts rather than purchase orders.

PART 1815--CONTRACTING BY NEGOTIATIONS

    4. In paragraph (b)(3) to section 1815.300-70, the reference ``(see 
1835.016-70)'' is revised to read ``(see 1835.016-71)''.
    5. In the introductory text to section 1815.606-70, the reference 
``(see 1835.016-70)'' is revised to read ``(see 1835.016-71)''.

PART 1835--RESEARCH AND DEVELOPMENT CONTRACTING

    6. In paragraph (a)(i)(B) to section 1835.016, the reference ``(see 
1835.016-70)'' is revised to read ``(see 1835.016-71)''.
    7. Section 1835.016-70 is redesignated as section 1835.016-71 and a 
new section 1835.016-70 is added to read as follows:


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.
    8. In the newly redesignated section 1836.016-71, paragraph (e)(3) 
is revised to read as follows:


1835.016-71  NASA Research Announcements.

* * * * *
    (e) * * *
    (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.
* * * * *
    9. Section 1835.016-72 is added to read as follows:


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.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    10. In Section 1852.235-72, the date of the provision is revised, 
paragraph (c)(8) heading is revised, paragraph (c)(8)(iv) is added, 
paragraph (g) is revised, paragraph (l) is redesignated as paragraph 
(m) and a new paragraph (l) is added to read as follows:


1852.235-72  Instructions for responding to NASA Research 
Announcements.

* * * * *

Instructions for Responding to NASA Research Announcements (Aug. 1999)

* * * * *
    (c) * * *
    (8) Proposed Costs (U.S. Proposals Only).
* * * * *
    (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.
* * * * *
    (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

[[Page 48562]]

significant technical advantages, as compared with proposals 
previously received.
* * * * *
    (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, 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 
NRA). 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 non-U.S. participant 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) When a ``Notice of Intent'' to propose is required, 
prospective foreign proposers should write directly to the NASA 
official designated in the NRA and send a copy of this letter to 
NASA's Office of External Relations at the address in paragraph 
(l)(3) of this provision.
    (3) In addition to sending the requested number of copies of the 
proposal to the designated address, one copy of the proposal, along 
with the Letter of Endorsement from the sponsoring non-U.S. 
government agency or funding/sponsoring institution must be 
forwarded to: National Aeronautics and Space Administration, Code I, 
Office of External Relations, (NRA Number), Washington, DC 20546-
0001, USA.
    (4) 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 to the above address if endorsement is not 
possible before the announced closing date. In such cases, NASA's 
Office of External Relations should be advised when a decision on 
endorsement can be expected.
    (5) Successful and unsuccessful non-U.S. proposers will be 
contacted directly by the NASA sponsoring office. Copies of these 
letters will be sent to the sponsoring government agency or funding 
institution. 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 sponsoring agency or funding 
institution 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.
    (6) Depending on the nature and extent of the proposed 
cooperation, this arrangement may entail:
    (i) A letter of notification by NASA;
    (ii) An exchange of letters between NASA and the sponsoring 
foreign governmental agency; or
    (iii) A formal Agency-to-Agency Memorandum of Understanding 
(MOU).
* * * * *

PART 1872--ACQUISITION OF INVESTIGATIONS

    11. Section 1872.306 is revised to read as follows:


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 Appendix B and must be included in any Guidelines for 
Proposal Preparation or otherwise furnished to foreign proposers.
    12. In paragraphs (b)(6), (c) introductory text, and (d) to section 
1872.504, the phrase ``International Affairs Division,'' is removed.
    13. In section 1872.705-1, paragraph VII is revised to read as 
follows:


1872.705-1  Appendix A: General Instructions and Provisions.

* * * * *

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.

    14. In section1872.705-2, paragraphs (a)(3)(i), (ii), (iv), (vi) 
and the introductory text of paragraph (a)(3)(viii) of the Management 
Plan and Cost Plan are revised, paragraph (b)(e) is redesignated as 
(b)(3) and paragraph (b)(4) is added to read as follows.

1872.705-2, Appendix B: Guidelines for Proposal Preparation

* * * * *

Management Plan and Cost Plan

    (a) * * *
    (3) * * *
    (i) Where a ``Notice of Intent'' to propose is requested, 
prospective foreign proposers should write directly to the NASA 
official designated in the AO and send a copy of this letter to 
NASA, Code I, Office of External Relations, Washington, DC 20546, 
U.S.A.
    (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).
* * * * *
    (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. These documents should be sent to: National Aeronautics 
and Space Administration, Code I, Office of External Relations, 
Washington, DC 20546, U.S.A.
* * * * *
    (vi) Shortly after the deadline for each AO, NASA's Office of 
External Relations 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.
* * * * *
    (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:
* * * * *
    (b) * * *
    (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.

[FR Doc. 99-23065 Filed 9-3-99; 8:45 am]
BILLING CODE 7510-01-P