[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Rules and Regulations]
[Pages 65496-65497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26546]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1812
RIN 2700-AD64
Commercial Acquisition; Anchor Tenancy
AGENCY: National Aeronautics and Space Administration.
ACTION: Final rule.
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SUMMARY: NASA has adopted as final, with minor changes, a proposed rule
amending the NASA FAR Supplement (NFS) to include authority, under
limited conditions, to issue Anchor Tenancy contracts. Anchor Tenancy
means ``an arrangement in which the United States Government agrees to
procure sufficient quantities of a commercial space product or service
needed to meet Government mission requirements so that a commercial
venture is made viable.''
DATES: Effective Date: November 28, 2012.
FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, NASA, Office of
Procurement, Contract Management Division (Suite 5G84); (202) 358-0592;
email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
NASA published a proposed rule in the Federal Register at 76 FR
30301 on May 25, 2011. NASA's Federal Acquisition Regulation Supplement
(NFS) currently contains an inaccurate prohibition on anchor tenancy
contracts. The prohibition is included in the NFS based on The Space
Act, as amended by NASA's FY 1992 Appropriations Act (42 U.S.C. 2459d).
The NFS states no appropriated funds may be used to enter into
contracts, grants, or other agreements for more than 1 year if the
primary effect is to provide a guaranteed customer base for or
establish an anchor tenancy in new commercial space hardware or
services unless an appropriations Act specifies the new commercial
space hardware or services to be developed/used or the contract, grant,
or agreement is specified in an appropriations Act. However, subsequent
to the prohibition, as part of NASA's FY 1993 Authorization Act, 15
U.S.C. 5806 was added to the Commercial Space Competitiveness Act
(CSCA). The latter statute includes limited authority for NASA to enter
into multi-year anchor tenancy contracts for the purchase of a good or
service if the Agency receives an appropriation that (1) authorizes a
multi-year anchor tenancy contract and (2) specifies the commercial
space product or service to be developed or used. Furthermore, the NASA
Administrator would be required to make a determination that addresses
the following six criteria:
(1) The good or service meets the mission requirements of NASA;
(2) The commercially procured good or service is cost effective;
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(3) The good or service is procured through a competitive process;
(4) Existing or potential customers for the good or service other
than the United States Government have been specified identified;
(5) The long-term viability of the venture is not dependent upon a
continued Government market or other nonreimbursable Government
support; and
(6) Private capital is at risk in the venture.
The purpose of this final rule is to reconcile the NFS with the
statutory authority for Anchor Tenancy contracts.
The due date for public comments in response to the proposed rule
was July 25, 2011. NASA received general comments in support of the
rule from one respondent. The respondent expressed support for NASA's
rule, and noted that it reflects efforts aimed at achieving goals set
forth in the Administration's 2010 National Space Policy to support
growth in the commercial space sector.
During the comment period, NASA recognized a need to clarify the
rule. Consequently, minor changes have been made to the proposed rule
in this final rule, as follows: The discussion of statutory authority
has been consolidated and simplified; it is now discussed only in
paragraph (a). The final rule identifies what is meant by an anchor
tenancy whereas anchor tenancy was previously described in the
background of the Federal Register Notice for the proposed rule.
B. Executive Orders 12866 and 13563
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. In accordance
with Executive Order 13563, Improving Regulation and Regulatory Review,
dated January 18, 2011, NASA determined that this rule is not
excessively burdensome to the public, and is consistent with the
administrative nature of rule. This is not a major rule under 5 U.S.C.
804.
C. Regulatory Flexibility Act
The final rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because it does
not impose any new requirements on small entities. The rule clarifies
NASA's authority to enter into Anchor Tenancy contracts, under limited
conditions.
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 Part 1812
Government procurement.
William P. McNally,
Assistant Administrator for Procurement.
Accordingly, 48 CFR part 1812 is amended as follows:
PART 1812--ACQUISITION OF COMMERCIAL ITEMS
0
1. The authority citation for 48 CFR part 1812 continues to read as
follows:
Authority: 42 U.S.C. 2455(a), 2473(c)(1).
0
2. Section 1812.7000 is revised to read as follows.
1812.7000 Anchor tenancy contracts.
(a) Subject to receiving an appropriation that:
(1) Authorizes a multi-year anchor tenancy contract; and
(2) Specifies the commercial space product or service to be
developed or used, NASA may enter into a multi-year anchor tenancy
contract only if Administrator determines--
(i) The good or service meets the mission requirements of the
National Aeronautics and Space Administration;
(ii) The commercially procured good or service is cost effective;
(iii) The good or service is procured through a competitive
process;
(iv) Existing or potential customers for the good or service other
than the United States Government have been specifically identified;
(v) The long-term viability of the venture is not dependent upon a
continued Government market or other nonreimbursable Government
support; and
(vi) Private capital is at risk in the venture.
(b) Contracts entered into under such authority may provide for the
payment of termination liability in the event that the Government
terminates such contracts for its convenience.
(1) Contracts that provide for this payment of termination
liability shall include a fixed schedule of such termination liability
payments. Liability under such contracts shall not exceed the total
payments which the Government would have made after the date of
termination to purchase the good or service if the contract were not
terminated.
(2) Subject to appropriations, funds available for such termination
liability payments may be used for purchase of the good or service upon
successful delivery of the good or service pursuant to the contract. In
such case, sufficient funds shall remain available to cover any
remaining termination liability.
(c) Limitations. (1) Contracts entered into under such authority
shall not exceed 10 years in duration.
(2) Such contracts shall provide for delivery of the good or
service on a firm, fixed price basis.
(3) To the extent practicable, reasonable performance
specifications shall be used to define technical requirements in such
contracts.
(4) In any such contract, the Administrator shall reserve the right
to completely or partially terminate the contract without payment of
such termination liability because of the contractor's actual or
anticipated failure to perform its contractual obligations.
(d) The term ``anchor tenancy'' means an arrangement in which the
United States Government agrees to procure sufficient quantities of a
commercial space product or service needed to meet Government mission
requirements so that a commercial venture is made viable.
[FR Doc. 2012-26546 Filed 10-26-12; 8:45 am]
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