[Federal Register Volume 80, Number 123 (Friday, June 26, 2015)]
[Rules and Regulations]
[Pages 36719-36723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15524]


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

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1801, 1802, 1805, 1807, 1812, 1813, 1823, 1833, 1836, 
1847, 1850 and 1852

RIN 2700-AE19


NASA FAR Supplement Regulatory Review No. 3

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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

SUMMARY: NASA adopts a final rule amending the NASA FAR Supplement with 
the goal of eliminating unnecessary regulation, streamlining burdensome

[[Page 36720]]

regulation, clarifying language, and simplifying processes where 
possible.

DATES: Effective: July 27, 2015.

FOR FURTHER INFORMATION CONTACT: Manuel Quinones, NASA, Office of 
Procurement, Contract and Grant Policy Division, email: 
[email protected] or telephone (202) 358-2143.

SUPPLEMENTARY INFORMATION: 

I. Background

    NASA issued a proposed rule in the Federal Register at 80 FR 18580 
on April 7, 2015, as part of a periodic, comprehensive review and 
analysis, to make updates and corrections, and reissue the NASA FAR 
Supplement (NFS). The last reissue of the NFS was in 2004. The goal of 
the review and analysis is to reduce regulatory burden where justified 
and appropriate and make the NFS content and processes more efficient, 
effective, and easier to comprehend, in support of NASA's mission. 
Consistent with Executive Order (E.O.) 13563, Improving Regulations and 
Regulatory Review, NASA reviewed and revised the NFS with an emphasis 
on streamlining it and reducing associated regulatory burdens to the 
public. Due to the volume of the NFS, these revisions were being made 
in increments. This rule is the third and final increment and marks 
completion of the 2015 version of the NFS.

II. 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 rule is not a ``significant regulatory action'' under section 3(f) 
of E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

    NASA certifies that this final rule will not 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 mainly clarifies or updates existing regulations. In several 
instances, this rule deletes existing requirements which eases the 
regulatory burden on all entities, minimizing the number of resources 
used to collect the data and report it to the government.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; 
however, these changes to the NFS do not impose additional information 
collection requirements to the paperwork burden previously approved 
under OMB Control Number 2700-0089, titled Reports Requested for 
Contracts with an Estimated Value Greater Than $500,000.

List of Subjects in 48 CFR 1801, 1802, 1805, 1807, 1812, 1813, 
1823, 1833, 1836, 1847, 1850 and 1852

    Government procurement.

Cynthia Boots,
Alternate Federal Register Liaison.
    Accordingly, 48 CFR parts 1801, 1802, 1805, 1807, 1812, 1813, 1823, 
1833, 1836, 1847, 1850, and 1852 are amended as follows:

PART 1801--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
1. The authority citation for part 1801 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1801.106   [Amended]

0
2. Section 1801.106 is revised to read as follows:


1801.106   OMB approval under the Paperwork Reduction Act.

    (1) NFS requirements. The following OMB control numbers apply:

------------------------------------------------------------------------
                                                            OMB control
                       NFS segment                              No.
------------------------------------------------------------------------
1823....................................................       2700-0089
1827....................................................       2700-0052
1843....................................................       2700-0054
NF 533..................................................       2700-0003
NF 1018.................................................       2700-0017
------------------------------------------------------------------------

PART 1802--DEFINITIONS

0
3. The authority citation for part 1802 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1802.101   [Amended]

0
4. In section 1802.101, the definition for ``Head of the contracting 
activity (HCA)'' is revised to read as follows:


1802.101   Definitions.

* * * * *
    Head of the contracting activity (HCA) means, for field 
installations, the Director or other head, and for NASA Headquarters, 
the Director for Headquarters Operations. For Human Exploration and 
Operations Mission Directorate (HEOMD) contracts, the HCA is the 
Associate Administrator for HEOMD in lieu of the field Center 
Director(s). For NASA Shared Services Center (NSSC) contracts, the HCA 
is the Executive Director of the NSSC in lieu of the field Center 
Director(s).
* * * * *

PART 1805--PUBLICIZING CONTRACT ACTIONS

0
5. The authority citation for part 1805 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1805.303   [Amended]

0
6. Section 1805.303 is revised to read as follows:


1805.303   Announcement of contract awards.

    (a)(i) In lieu of the threshold cited in FAR 5.303(a), a NASA 
Headquarters public announcement is required for award of contract 
actions that have a total anticipated value, including unexercised 
options, of $5 million or greater.

PART 1807--ACQUISITION PLANNING

0
7. The authority citation for part 1807 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).

Subpart 1807.1 [Removed]

0
8. Subpart 1807.1, consisting of sections 1807.107 and 1807.107-70, is 
removed.


1807.7200   [Amended]

0
9. In section 1807.7200, paragraph (b) is revised to read as follows:


1807.7200   Policy.

* * * * *
    (b) The annual forecast and semiannual update are available on the 
NASA Acquisition Internet Service (http://www.hq.nasa.gov/office/procurement/forecast/index.html).

0
10. In section 1807.7201, the definition for ``Contract opportunity'' 
is revised to read as follows:


1807.7201   Definitions.

* * * * *
    Contract opportunity means planned new contract awards exceeding 
the simplified acquisition threshold (SAT).

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

0
11. The authority citation for part 1812 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
12. Section 1812.301 is revised to read as follows:

[[Page 36721]]

1812.301   Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f)(i) The following clauses are authorized for use in acquisitions 
of commercial items when required by the clause prescription:
    (A) 1852.204-75, Security Classification Requirements.
    (B) 1852.204-76, Security Requirements for Unclassified Information 
Technology Resources.
    (C) 1852.215-84, Ombudsman.
    (D) 1852.216-80, Task Order Procedures (Alternate I).
    (E) 1852.216-88, Performance Incentive.
    (F) 1852.219-73, Small Business Subcontracting Plan.
    (G) 1852.219-75, Small Business Subcontracting Reporting.
    (H) 1852.223-70, Safety and Health.
    (I) 1852.223-71, Frequency Authorization.
    (J) 1852.223-72, Safety and Health (Short Form).
    (K) 1852.223-73, Safety and Health Plan.
    (L) 1852.223-75, Major Breach of Safety and Security (Alternate I).
    (M) 1852.225-70, Export Licenses.
    (N) 1852.228-76, Cross-Waiver of Liability for International Space 
Station Activities.
    (O) 1852.228-78, Cross-Waiver of Liability for Science or Space 
Exploration Activities Unrelated to the International Space Station.
    (P) 1852.237-70, Emergency Evacuation Procedures.
    (Q) 1852.237-72, Access to Sensitive Information.
    (R) 1852.237-73, Release of Sensitive Information.
    (S) 1852.246-72, Material Inspection and Receiving Report.
    (T) 1852.247.71, Protection of the Florida Manatee.

0
13. In section 1812.7000:
0
a. Paragraph (d) is removed;
0
b. Paragraphs (a), (b), and (c) are redesignated as paragraph (b), (c) 
(d) respectively; and
0
c. Paragraph (a) is added.
    The addition reads as follows:


1812.7000   Anchor tenancy contracts.

    (a) 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.
* * * * *

PART 1813--SIMPLIFIED ACQUISITION PROCEDURES

0
14. The authority citation for part 1813 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1813.000   [Removed]

0
15. Section 1813.000 is removed.

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

0
16. The authority citation for part 1823 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
17. In section 1823.7001:
0
a. Paragraph (c) is revised;
0
b. Paragraphs (d) and (e) are redesignated as paragraphs (e), and (f) 
respectively, and newly redesignated paragraph (f) is revised; and
0
c. Paragraph (d) is added.
    The revisions and additions read as follows:


1823.7001   NASA solicitation provisions and contract clauses.

* * * * *
    (c) The contracting officer shall insert the clause at 1852.223-73, 
Safety and Health Plan, in solicitations above the simplified 
acquisition threshold when the work will be conducted completely or 
partly on a Federally-controlled facility and the safety and health 
plan will be evaluated in source selection as approved by the source 
selection authority. This clause may be modified to identify specific 
information that is to be included in the plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall incorporate the plan as an attachment 
into any resulting contract. The contracting officer shall insert the 
clause, with its Alternate I, in Invitations for Bid.
    (d)(1) The contracting officer shall insert FAR clause at 52.236-13 
with its Alternate I in solicitations and contracts when the work will 
be conducted completely or partly on a Federally-controlled facility 
and a Safety and Health Plan will be reviewed after award as a contract 
deliverable. The contracting officer may modify the wording in 
paragraph (f) of Alternate I to specify:
    (i) When the proposed plan is due and
    (ii) Whether the contractor may commence work prior to approval of 
the plan; or
    (iii) To what extent the contractor may commence work before the 
plan is approved.
    (2) The requiring activity, in consultation with the cognizant 
health and safety official(s), will identify the data deliverable 
requirements for the safety and health plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall incorporate the plan as an attachment 
into the contract.
* * * * *
    (f) The contracting officer shall insert the clause at 1852.223-72, 
Safety and Health (Short Form) in solicitations and contracts above the 
simplified acquisition threshold when work will be conducted completely 
or partly on Federally-controlled facilities and that do not contain 
the clause at 1852.223-73 or the FAR clause at 52.236-13 with its 
Alternate I.

PART 1833--PROTESTS, DISPUTES, AND APPEALS

0
18. The authority citation for part 1833 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1833.103   [Amended]

0
19. Section 1833.103 is revised to read as follows:


1833.103   Protests to the agency.

    (d)(4) The provision at 1852.233-70 provides for an alternative to 
a protest to the United States Government Accountability Office (GAO). 
This alternative gives bidders or offerors the ability to protest 
directly to the contracting officer (CO) or to request an independent 
review by the Assistant Administrator for Procurement (or designee). 
The Agency review shall be deemed to be at the CO level when the 
request is silent as to the level of review desired. The Agency review 
shall be deemed to be at the level of the Assistant Administrator for 
Procurement (or designee) when the request specifies a level above the 
CO, even if the request does not specifically request an independent 
review by the Assistant Administrator for Procurement. Such reviews are 
separate and distinct from the Ombudsman Program described at 
1815.7001.
    (e) NASA shall summarily dismiss and take no further action upon 
any protest to the Agency if the substance of the protest is pending in 
judicial proceedings or the protester has filed a protest on the same 
acquisition with the GAO prior to receipt of an Agency protest 
decision.
    (4) When a bidder or offeror submits an Agency protest to the CO or

[[Page 36722]]

alternatively requests an independent review by the Assistant 
Administrator for Procurement, the decision of the CO or the Assistant 
Administrator for Procurement shall be final and is not subject to any 
appeal or reconsideration within NASA.


1833.106-70   [Amended]

0
20. In section 1833.106-70, remove the words ``Contracting officers'' 
and add in their place the words ``The contracting officer''.


1833.215   [Amended]

0
21. In section 1833.215, remove the word ``agency'' and add in its 
place the word ``Agency''.

PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
22. The authority citation for part 1836 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
23. Section 1836.513 is revised to read as follows:


1836.513   Accident prevention.

    For additional guidance on the use of FAR clause 52.236-13, 
Accident Prevention, and its Alternate I in NASA contracts, see 
1823.7001(d).

PART 1850--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

0
24. The authority citation for part 1850 is added to read as follows:

    Authority:  51 U.S.C. 20113(a).


1850.103-570   [Amended]

0
25. In the introductory text of paragraph (a) to section 1850.103-570, 
remove the words ``Associate General Counsel for General Law'' and add 
in their place the words ``Associate General Counsel for Contracts and 
Procurement Law''.


1850.103-670   [Amended]

0
26. In paragraph (b) to section 1850.103-670, remove the words 
``Associate General Counsel for General Law'' and add in their place 
the words ``Associate General Counsel for Contracts and Procurement 
Law''.


1850.104-2   [Added]

0
27. Section 1850.104-2 is added to read as follows:


1850.104-2   General

    (a) Requests for the exercise of residual powers shall be sent to 
the Headquarters Office of Procurement, Program Operations Division for 
review and processing. The NASA Administrator is the approval authority 
for the Memorandum of Decision.

0
28. Section 1850.104-3 is revised to read as follows:


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. The request 
shall be submitted six (6) months in advance of the desired effective 
date of the requested indemnification in order to allow sufficient time 
for the request to be reviewed, analyzed, and approved by the Agency. 
Contractors shall submit a single request and shall ensure that 
duplicate requests are not submitted by associated divisions, 
subsidiaries, or central offices of the contractor.
    (ii) The contractor's request for indemnification must identify a 
sufficient factual basis for indemnification by explaining specifically 
what work activities under the contract create the unusually hazardous 
or nuclear risk and identifying the timeframes in which the risk would 
be incurred.
    (iii) 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 NASA Headquarters Office of 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) The specific definition of the unusually hazardous risk to 
which the contractor is exposed in the performance of the contract(s), 
including specificity about which activities present such risk and the 
anticipated timeframes in which the risk will be incurred;
    (iv) A complete discussion of the contractor's financial protection 
program; and
    (vi) The extent to, and conditions under, which indemnification is 
being approved for subcontracts.
    (2) The NASA Administrator is the approval authority for using the 
indemnification clause in a contract by a Memorandum of Decision.
    (4)(ii) 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.

0
29. Section 1850.104-4 is added to read as follows:


1850.104-4   Contract clause.

    The contracting officer shall obtain the NASA Administrator's 
approval prior to including clause 52.250-1 in a contract.


1850.104-70   [Removed]

0
30. Section 1850.104-70 is removed.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
31. The authority citation for part 1852 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a).


1852.223-72 and 1852.223-73   [Amended]

0
32. Sections 1852.223-72 and 1852.223-73 are revised to read as 
follows:


1852.223-72   Safety and Health (Short Form).

    As prescribed in 1823.7001(f), insert the following clause:

SAFETY AND HEALTH (SHORT FORM)

(JUL 2015)

    (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. NASA is committed to 
protecting the safety and health of the public, our team members, 
and those assets that the Nation entrusts to the Agency.
    (b) The Contractor shall have a documented, comprehensive and 
effective health and safety program with a proactive process to 
identify, assess, and control hazards and take all reasonable safety 
and occupational health measures consistent with standard industry 
practice in performing this contract.
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c) in subcontracts that exceed the 
simplified acquisition threshold where work will be conducted 
completely or partly on Federally-controlled facilities.

(End of clause)

[[Page 36723]]

1852.223-73   Safety and Health Plan.

    As prescribed in 1823.7001(c), insert the following clause:

SAFETY AND HEALTH PLAN

(JUL 2015)

    (a) The offeror shall submit a detailed safety and occupational 
health plan as part of its proposal. The plan shall include a 
detailed discussion of the policies, procedures, and techniques that 
will be used to ensure the safety and occupational health of 
Contractor employees and to ensure the safety of all working 
conditions throughout the performance of the contract.
    (b) The plan shall similarly address subcontractor employee 
safety and occupational health for those proposed subcontracts or 
subcontract effort where the work will be conducted completely or 
partly on a Federally-controlled facility.
    (d) This plan, as approved by the Contracting Officer, will be 
incorporated into any resulting contract.

(End of clause)

ALTERNATE I

(JUL 2015)

    As prescribed in 1823.7001(c)(1), delete the first sentence in 
paragraph (a) of the basic provision and substitute the following:
    The apparent low bidder, upon request by the Contracting 
Officer, shall submit a detailed safety and occupational health 
plan. The plan shall be submitted within the time specified by the 
Contracting Officer. Failure to submit an acceptable plan shall make 
the bidder ineligible for the award of a contract.


0
33. Section 1852.233-70 is revised to read as follows:


1852.233-70   Protests to NASA.

    As prescribed in 1833.106-70, insert the following provision:

PROTESTS TO NASA

(JUL 2015)

    (a) In lieu of a protest to the United States Government 
Accountability Office (GAO), bidders or offerors may submit a 
protest under 48 CFR part 33 (FAR Part 33) directly to the 
Contracting Officer for consideration by the Agency. Alternatively, 
bidders or offerors may request an independent review by the 
Assistant Administrator for Procurement, who will serve as or 
designate the official responsible for conducting an independent 
review. Such reviews are separate and distinct from the Ombudsman 
Program described at 1815.7001.
    (b) Bidders or offerors shall specify whether they are 
submitting a protest to the Contracting Officer or requesting an 
independent review by the Assistant Administrator for Procurement.
    (c) Protests to the Contracting Officer shall be submitted to 
the address or email specified in the solicitation (email is an 
acceptable means for submitting a protest to the Contracting 
Officer). Alternatively, requests for independent review by the 
Assistant Administrator for Procurement shall be addressed to the 
Assistant Administrator for Procurement, NASA Headquarters, 
Washington, DC 20456-0001.

(End of provision)

0
34. Section 1852.247-71 is revised to read as follows:


1852.247-71   Protection of the Florida Manatee.

    As prescribed in 1847.7001, insert the following clause:

PROTECTION OF THE FLORIDA MANATEE

(JUL 2015)

    (a) Pursuant to the Endangered Species Act of 1973 (Pub. L. 93-
205), as amended, and the Marine Mammals Protection Act of 1972 
(Pub. L. 92-522), the Florida Manatee (Trichechus Manatus) has been 
designated an endangered species, and the Indian River Lagoon system 
within and adjacent to National Aeronautics and Space 
Administration's (NASA's) Kennedy Space Center (KSC) has been 
designated as a critical habitat of the Florida Manatee. The KSC 
Environmental Management Branch will advise all personnel associated 
with the project of the potential presence of manatees in the work 
area, and the need to avoid collisions and/or harassment of the 
manatees. Contractors shall ensure that all employees, 
subcontractors, and other individuals associated with this contract 
and who are involved in vessel operations, dockside work, and 
selected disassembly functions are aware of the civil and criminal 
penalties for harming, harassing, or killing manatees.
    (b) All contractor personnel shall be responsible for complying 
with all applicable Federal and/or state permits (e.g., Florida 
Department of Environmental Protection, St. Johns River Water 
Management District, Fish & Wildlife Service) in performing water-
related activities within the contract. Where no Federal and/or 
state permits are required for said contract, and the contract scope 
requires activities within waters at KSC, the Contractor shall 
obtain a KSC Manatee Protection Permit from the Environmental 
Management Branch. All conditions of Federal, state, and/or KSC 
regulations and permits for manatee protection shall be binding to 
the contract. Notification and coordination of all water related 
activities at KSC will be done through the Environmental Management 
Branch.
    (c) The Contractor shall incorporate the provisions of this 
clause in applicable subcontracts.

(End of clause)

[FR Doc. 2015-15524 Filed 6-25-15; 8:45 am]
 BILLING CODE 7510-13-P