[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Rules and Regulations]
[Pages 72328-72330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30142]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1850 and 1852

RIN 2700-AD36


Miscellaneous Administrative Changes

AGENCY: National Aeronautics and Space Administration.

ACTION: Direct final rule.

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SUMMARY: This direct final rule amends the NASA FAR Supplement (NFS) to 
make miscellaneous non-substantive administrative changes to be 
consistent with FAR numbering, FAR terminology, and to allow use of a 
URL Web site to identify the Agency and Center Ombudsman. These changes 
are necessary to ensure consistency with the FAR and terminology within 
NASA.

DATES: This direct final rule is effective January 23, 2012 unless 
Agency receives significant adverse comments by midnight Eastern 
Standard Time on December 23, 2011. If adverse comment is received, 
NASA will publish a timely withdrawal of the rule in the Federal 
Register. If no adverse comments are received, NASA will not publish a 
confirmation document.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number 2700-AD36, via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Marilyn Seppi, NASA Headquarters, 300 
E Street SW., Office of Procurement, Contract Management Division, 
Washington, DC 20546. Comments may also be submitted by email to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Marilyn J. Seppi, NASA, Office of 
Procurement, Contract Management Division; (202) 358-0447; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Direct Final Rule and Significant Adverse Comments

    NASA has determined this rulemaking meets the criteria for a direct 
final rule because it involves nonsubstantive changes dealing with 
NASA's management of procurement regulations and procedures. NASA does 
not anticipate this direct final rule will result in any changes in the 
functions or authority of the NFS. NASA expects no opposition to the 
changes and no significant adverse comments. However, if NASA receives 
a significant adverse comment, the Agency will withdraw this direct 
final rule by publishing a notice in the Federal Register. A 
significant adverse comment is one that explains: (1) Why the direct 
final rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a comment necessitates withdrawal of this direct final rule, NASA will 
consider whether it warrants a substantive response in a notice and 
comment process.

A. Background

    This final rule makes several administrative changes to the NFS. 
The numbering in NASA FAR Supplement 1850 is revised to reflect the FAR 
numbering changes made by Federal Acquisition Circular 2005-21. This 
final rule deletes the information required to be filled-in by 
Contracting Officers in NASA FAR Supplement Clause 1852.215-84 when 
identifying the Ombudsman for the Agency and specific Center. The fill-
in is deleted and replaced with a URL Web site where the Agency and 
Center Ombudsman contact information will be continually updated and 
maintained by NASA.
    This rule also deletes the term ``Commerce Business Daily (CBD)'' 
and replaces it with the term ``Governmentwide Point of Entry (GPE)'' 
in NASA FAR Supplement Clauses 1852.217-71 and 1852.217-72 to be 
consistent with the terminology in FAR Subpart 2.101 Definitions.

B. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This final rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866. This rule is not a major rule 
under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this final rule. 
This final rule does not constitute a significant revision within the 
meaning of FAR 1.501 and Public Law 98-577, and publication for public 
comment is not required. However, NASA will consider comments from 
small entities concerning the affected NFS coverage in accordance with 
5 U.S.C. 610. Interested parties should cite 5 U.S.C. 601, et seq., in 
correspondence. This 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., 
because the changes are administrative and do not impose new 
requirements.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) is not applicable 
because the NFS changes do not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR 1850 and 1852

    Government procurement.

Sheryl Goddard,
Director, Program Operations Division.

    Accordingly, 48 CFR Part 1850 and 1852 are amended as follows:

0
1. The authority citation for 48 CFR Parts 1850 and 1852 continues to 
read as follows:

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


0
2. Part 1850 is revised to read as follows:

PART 1850--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

Subpart 1850.1--Extraordinary Contractual Actions
Sec.
1850.102 Delegation of and limitations of exercise of authority.
1850.102-2 Contract adjustment boards.
1850.103 Contract adjustments.
1850.103-5 Processing cases.

[[Page 72329]]

1850.103-570 Submission of request to the Contract Adjustment Board.
1850.103-6 Disposition.
1850.103-670 Implementation of the Contract Adjustment Board's 
decision.
1850.104 Residual powers.
1850.104-3 Special procedures for unusually hazardous or nuclear 
risks.
1850.104-370 Subcontractor indemnification requests.
1850.104-70 Lead NASA installation.

Subpart 1850.1--Extraordinary Contractual Actions


1850.102  Delegation of and limitations of exercise of authority.


1850.102-2  Contract adjustment boards.

    14 CFR part 1209, subpart 3, Contract Adjustment Board, establishes 
the Contract Adjustment Board (CAB) as the approving authority to 
consider and dispose of requests from NASA contractors for 
extraordinary contractual actions.


1850.103  Contract adjustments.


1850.103-5  Processing cases.


1850.103-570  Submission of request to the Contract Adjustment Board.

    (a) After investigating the facts and issues relevant to the 
contractor's request, the contracting officer shall forward the request 
to the Associate General Counsel for General Law, including in the 
forwarding letter--
    (1) The nature of the case;
    (2) The recommended disposition; and,
    (3) If contractual action is recommended, the contracting officer's 
opinion that the action will facilitate the national defense.
    (b) The forwarding letter shall enclose the contractor's request, 
all supporting material submitted by the contractor, and any material 
the contracting officer has obtained while investigating the facts and 
issues relevant to the request. Any classified information in the 
material forwarded shall be so identified.
    (c) Electronic submittal is preferred for unclassified material.


1850.103-6  Disposition.


1850.103-670  Implementation of the Contract Adjustment Board's 
decision.

    (a) The contracting officer shall take action authorized in the 
CAB's decision.
    (b) Immediately upon execution, including any required Headquarters 
approval, of a contract or contract modification or amendment 
implementing the CAB decision, the contracting officer shall forward a 
copy of the contractual document to the Associate General Counsel for 
General Law.


1850.104  Residual powers.


1850.104-3  Special procedures for unusually hazardous or nuclear 
risks.

    (a) Indemnification requests.
    (1) Contractor indemnification requests must be submitted to the 
cognizant contracting officer for the contract for which the 
indemnification clause is requested. Contractors shall submit a single 
request and shall ensure that duplicate requests are not submitted by 
associate divisions, subsidiaries, or central offices of the 
contractor.
    (2) The contractor shall also provide evidence, such as a 
certificate of insurance or other customary proof of insurance, that 
such insurance is either in force or is available and will be in force 
during the indemnified period.
    (b) Action on indemnification requests.
    (1) If recommending approval, the contracting officer shall forward 
the required information to the Assistant Administrator for 
Procurement, Program Operations Division, along with the following:
    (i) For contracts of five years duration or longer, a 
determination, with supporting rationale, whether the indemnification 
approval and insurance coverage and premiums should be reviewed for 
adequacy and continued validity at points in time within the extended 
contract period.
    (ii) A recommended Memorandum of Decision. In addition to the 
applicable requirements of FAR 50.103-6, the Memorandum of Decision 
shall contain the following:
    (A) The specific definition of the unusually hazardous risk to 
which the contractor is exposed in the performance of the contract(s);
    (B) A complete discussion of the contractor's financial protection 
program; and
    (C) The extent to, and conditions under, which indemnification is 
being approved for subcontracts.
    (d) If approving subcontractor indemnification, the contracting 
officer shall document the file with a memorandum for record addressing 
the items set forth in FAR 50.104-3(b) and include an analysis of the 
subcontractor's financial protection program. In performing this 
analysis, the contracting officer shall take into consideration the 
availability, cost, terms and conditions of insurance in relation to 
the unusually hazardous risk.


1850.104-370  Subcontractor indemnification requests.

    Subcontractors shall submit requests for indemnification to the 
prime contractor and through higher tier subcontractor(s), as 
applicable. If the prime contractor agrees an indemnity clause should 
be flowed down to the subcontractor, the prime contractor shall forward 
its written request for subcontractor indemnification to the cognizant 
contracting officer for approval in accordance with FAR 50.104-3. The 
prime contractor's request shall provide information responsive to 
1850.104-3, FAR 50.104-3, and FAR 50.104-3(b)(1)(i), (ii), (iv), (v), 
and (vii). The agreed upon definition of the unusually hazardous risk 
to be incorporated into the subcontract shall be the same as that 
incorporated in the prime contract.


1850.104-70  Lead NASA installation.

    (a) Contractors applying for indemnification shall determine which 
NASA installation has the highest dollar amount of contracts for which 
indemnification is requested. The indemnification request should be 
submitted to the procurement officer for that installation, who will 
then designate a cognizant contracting officer. Contractors shall 
submit a single request and ensure duplicate requests are not submitted 
by associate divisions, subsidiaries, or central offices of the 
contractor.
    (b) The receiving installation will become the lead installation 
and will remain so indefinitely. Lead installation designation may 
change to another installation if the affected procurement officers 
agree to the change. Should a change occur in the lead installation, 
all records related to indemnification of that contractor shall be 
transferred to the gaining installation.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. In section 1852.215-84, the date clause and paragraph (b) are 
revised to read as follows:


1852.215-84  Ombudsman.

* * * * *

OMBUDSMAN (NOV 2011)

* * * * *
    (b) If resolution cannot be made by the contracting officer, 
interested parties may contact the installation ombudsman, whose 
name, address, telephone number, facsimile number, and email address 
may be found at: http://prod.nais.nasa.gov/pub/pub_library/Omb.html. Concerns, issues, disagreements, and recommendations which 
cannot be resolved at the installation may be referred to the Agency 
ombudsman identified at the above URL. Please do not contact the 
ombudsman to request copies of the solicitation, verify offer due 
date, or clarify

[[Page 72330]]

technical requirements. Such inquiries shall be directed to the 
Contracting Officer or as specified elsewhere in this document.

(End of clause)
* * * * *


1852.215-71  [Amended]

0
4. In section 1852.217-71, paragraph (e) is amended by removing 
``Commerce Business Daily (CBD)'' and adding ``Governmentwide Point of 
Entry (GPE)'' in its place.


1852.215-72  [Amended]

0
5. In section 1852.217-72, paragraph (e) is amended by removing 
``Commerce Business Daily (CBD)'' and adding ``Governmentwide Point of 
Entry (GPE)'' in its place.

[FR Doc. 2011-30142 Filed 11-22-11; 8:45 am]
BILLING CODE 7510-01-P