[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8989-8990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1572]


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

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1823 and 1852

RIN 2700-AD12


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

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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

SUMMARY: This rule adopts as final, with a minor editorial change, the 
proposed rule published in the Federal Register (70 FR 33726-33727) on 
June 9, 2005. This final rule amends the NASA FAR Supplement (NFS) to 
add Alternate I to the ``Major Breach of Safety or Security'' clause. 
Alternate I 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.

EFFECTIVE DATE: February 22, 2006.

FOR FURTHER INFORMATION CONTACT: Carl Weber, Office of Procurement, 
Contract Management Division, (202) 358-1784, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Since July 13, 2000, NFS 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 with educational or nonprofit 
institutions do not provide the Government the right to terminate for 
``default''. Commercial contracts provide rights to terminate for 
convenience and ``cause'', and contracts with educational or nonprofit 
institutions provide the right to terminate for convenience.
    NASA Procurement Information Circular (PIC 02-11) issued June 24, 
2002, provided a class deviation to use an Alternate I to the clause, 
which deleted references to termination for default, under certain 
circumstances.
    This final rule adds the Alternate I to the Major Breach of Safety 
or Security clause at 1852.223-75, eliminating the need for PIC 02-11 
and the class deviation. Use of the clause with its Alternate I 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 will be 
consistent with FAR termination clauses prescribed for use in such 
contracts. NASA published a proposed rule in the Federal Register (70 
FR 33726-33727) on June 9, 2005. No comments were received, and the 
proposed rule is being adopted with a minor editorial change to 
1823.7001(d)(2)(ii) that simplifies the clause prescription to require 
it when FAR 52.212-4 is included in a solicitation or contract. This is 
not a significant regulatory action, and therefore, is not subject to 
Office of Management and Budget review under section 6(b), of Executive 
Order 12866, dated September 30, 1993. This is not a major rule under 5 
U.S.C. 804.

B. Regulatory Flexibility Act

    NASA certifies that this final rule does not 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 only 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.

0
Accordingly, 48 CFR parts 1823 and 1852 are amended as follows:

PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
1. The authority citation for 48 CFR parts 1823 and 1852 continues to 
read as follows:

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

0
2. Amend section 1823.7001 by revising paragraph (d) to read as 
follows:


1823.7001  NASA solicitation provisions and contract clauses.

* * * * *

[[Page 8990]]

    (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 
security, 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 
52.249-5; or
    (ii) The solicitation or contract is for commercial items and 
contains the clause at 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

0
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

    (FEB 2006)
    As prescribed in 1823.7001(d)(2), 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 be 
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 Occupational 
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. 06-1572 Filed 2-21-06; 8:45 am]
BILLING CODE 7510-01-P