[Federal Register Volume 70, Number 110 (Thursday, June 9, 2005)]
[Proposed Rules]
[Pages 33726-33727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11419]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1823 and 1852

RIN AD12


Safety and Health--Alternate 1 to Major Breach of Safety or 
Security Clause

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: This proposed rule amends the NASA FAR Supplement (NFS) to add 
an Alternate to the ``Major Breach of Safety or Security Clause.'' This 
Alternate deletes references to termination for default and makes other 
changes to be consistent with the FAR termination clauses prescribed 
for use with educational or nonprofit institutions performing research 
and development work on a nonprofit or no-fee basis, and in contracts 
for commercial items.

DATES: Comments should be submitted on or before August 8, 2005.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number AD12, via the Federal eRulemaking Portal: http//
www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Carl Weber, NASA Headquarters, Office 
of Procurement, Contract Management Division (Mail Code 1940-D2), 
Washington, DC 20546. Comments may also be submitted by e-mail to 
[email protected].

[[Page 33727]]


FOR FURTHER INFORMATION CONTACT: Carl Weber, (202) 358-1784, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Since July 13, 2000, the NASA FAR Supplement has required the Major 
Breach of Safety or Security clause (1852.223-75) in new solicitations 
and contracts with an estimated value over $500,000. The clause 
declares the Government's right to terminate for default in the event 
of a major breach of safety or security. However, contracts for 
commercial items procured under FAR Part 12, and certain contracts for 
educational or nonprofit institutions do not provide the Government the 
right to ``termination for default''. Rather, these contracts include a 
termination for cause or termination for convenience clause only.
    NASA Procurement Information Circular (PIC 02-11) issued June 24, 
2002, suggested an alternate to the clause which deleted references to 
termination for default, and provided a class deviation to use the 
alternate under certain circumstances.
    This proposed rule would add Alternate I to the Major Breach of 
Safety or Security clause at 1852.223-75, eliminating the need for PIC 
02-01 and the class deviation. Use of the clause with its Alternate in 
contracts for commercial items procured under FAR Part 12, and 
contracts for research and development work with educational or 
nonprofit institutions on a nonprofit or no-fee basis would then be 
consistent with FAR termination clauses prescribed for use in such 
contracts.
    This proposed rule is not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    This proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities with the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., since it 
clarifies agency regulations so they are employed consistently with FAR 
termination provisions.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes do 
not impose any new recordkeeping or information collection requirements 
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 1823 and 1852

    Government procurement.

Tom Luedtke,
Assistant Administrator for Procurement.

    Accordingly, 48 CFR parts 1823 and 1852 are proposed to be amended 
as follows:

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

    1. The authority citation for 48 CFR parts 1823 and 1852 continues 
to read as follows:

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

    2. Amend section 1823.7001 by revising paragraph (d) to read as 
follows:


1823.7001  NASA solicitation provisions and contract clauses.

* * * * *
    (d)(1) The contracting officer shall insert the clause at 1852.223-
75, Major 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 
securi ty, export control, safety, and occupational health.
    (2) Insert the clause with its Alternate I if--
    (i) The solicitation or contract is with an educational or other 
nonprofit institution and contains the termination clause at FAR 
52.249; or
    (ii) The solicitation or contract is for commercial items and 
contains the termination provisions found in FAR 52.212-4
    (3) For contracts with estimated values below $500,000, use of the 
clause is optional.
* * * * *

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Amend section 1852.223-75 by adding Alternate I to read as 
follows:


1852.223-75  Major Breach of Safety or Security.

* * * * *

ALTERNATE I

(XX/XX)

    As prescribed in 1823.7001(d)(ii), substitute the following 
paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:
    (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. A major breach of safety must b e 
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 Occupation al 
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. 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.

[FR Doc. 05-11419 Filed 6-8-05; 8:45 am]
BILLING CODE 7510-01-P