PART 1809
CONTRACTOR QUALIFICATIONS
SUBPART 1809.1 RESPONSIBLE PROSPECTIVE CONTRACTORS
1809.104-4 Subcontract responsibility.
1809.105-2 Determinations and
documentation.
1809.106 Preaward surveys.
1809.106-1 Conditions for preaward surveys.
1809.106-2 Requests for preaward surveys.
1809.106-3 Interagency preaward surveys.
1809.106-70 Preaward surveys performed by NASA installations.
SUBPART 1809.2 QUALIFICATIONS REQUIREMENTS
1809.200 Scope of subpart.
1809.202 Policy.
1809.203 QPL's, QML's, and QBL's.
1809.203-70 General.
1809.203-71 Waiver of qualification requirements.
1809.206 Acquisitions subject to qualification requirements.
1809.206-1 General.
1809.206-70 Small businesses.
1809.206-71 Contract clause.
SUBPART 1809.4 DEBARMENT, SUSPENSION, AND INELIGIBILITY
1809.403 Definitions.
1809.404 Excluded Parties List Systems.
1809.405 Effect of listing.
1809.405-1 Continuation of
current contracts.
1809.405-2 Restrictions on
subcontracting.
1809.406 Debarment.
1809.406-1 General.
1809.406-3 Procedures.
1809.407 Suspension.
1809.407-1 General.
1809.407-3 Procedures.
1809.408 Certification regarding debarment, suspension, proposed debarment,
and other responsibility matters.
1809.470 Reporting of suspected evasive actions and causes for debarment or suspension.
1809.470-1 Certification regarding responsibility
matters.
1809.470-2 Contents of reports.
SUBPART
1809.5 ORGANIZATIONAL AND CONSULTANT
CONFLICTS
OF INTEREST
1809.500 Scope of subpart.
1809.503 Waiver.
1809.505-4 Obtaining access to sensitive information.
1809.506 Procedures.
1809.507 Solicitation provisions and contract clause.
1809.507-2 Contract clause.
SUBPART 1809.6 CONTRACTOR TEAM ARRANGEMENTS
1809.670 Contract clause.
PART 1809
Subpart 1809.1--Responsible Prospective Contractors
1809.104-4 Subcontractor responsibility.
Generally,
the Canadian Commercial Corporation's (CCC) proposal of a firm as its
subcontractor is sufficient basis for an affirmative determination of
responsibility. However, when the CCC
determination of responsibility is not consistent with other information available
to the contracting office, the contracting officer shall request from the CCC
and any other sources whatever information is necessary to make the
responsibility determination. Upon
request, CCC shall be furnished the rationale for any subsequent determination
of nonresponsibility.
1809.105-2 Determinations and documentation.
(a) The contracting officer shall provide
written notification to a prospective contractor determined not responsible,
which includes the basis for the determination.
Notification provides the prospective contractor with the opportunity to
take corrective action prior to future solicitations.
1809.106 Preaward surveys.
1809.106-1 Conditions for preaward surveys.
(a)(i) Preaward surveys are
used only to assist the contracting officer to make determinations of
responsibility under FAR 9.104. They are not to be used to obtain information
useful to proposal evaluation that does not directly relate to the
responsibility determination.
Accordingly, preaward surveys shall not be
used except in rare circumstances when determination of responsibility cannot
be made without the specific information that can be provided only in a preaward survey report and only after all other means of
obtaining the required information have been explored.
(ii) Surveys shall not be performed for companies of
any size performing study or research contracts.
(iii) The procurement officer shall approve all preaward survey requests.
1809.106-2 Requests for preaward
surveys.
(a) The "Walsh-Healey Public Contracts
Act" block of Section I is for information purposes only. If information is needed for a determination
on the offeror's eligibility under the Walsh-Healey
Act, it must be specifically requested in block 20.H. of Section III.
1809.106-3 Interagency preaward
surveys.
If the
survey will be performed for NASA by a DOD agency, the SF 1403 request is to be
sent to the appropriate office shown in the DOD Directory of Contract
Administration Services Components, DLAH 4105.4, Attn: Preaward Survey
Monitor. DOD normally allows seven
working days in which to conduct a full survey and submit the report to the
requesting agency.
1809.106-70 Preaward
surveys performed by NASA installations.
In
discussions with representatives of the company being surveyed, NASA preaward survey team members shall not refer to or comment
on the possibility of award to the prospective contractor. This does not
preclude discussion with a prospective contractor of questionable areas that
require clarification. Information obtained during the survey will be treated
in strict confidence and divulged only to those Government representatives
having a need to know.
Subpart 1809.2--Qualifications
Requirements
This
subpart prescribes policies and procedures to be followed in the use of
qualified products lists for acquisition of parts consistent with the policies
of NASA Policy Directive
8730.2, NASA Parts
Policy.
(a) Authority regarding agency head actions under FAR
9.202(a)
is delegated to the cognizant technical activity, with
approval by the installation's competition advocate.
(e) The approval authority of FAR 9.202(e) is
delegated to the installation's competition advocate. Requests shall be prepared by the cognizant requirements office and submitted via the
procurement officer.
1809.203
QPL's, QML's and QBL's.
(a) The Deputy Associate Administrator for the
Office of Safety and Mission Assurance (Code Q), is responsible for justifying,
determining, and approving NASA's need for inclusion and continued use of
qualification requirements in specifications under the NASA EEE Parts and
Advanced Interconnect Program.
1809.203-71 Waiver of qualification requirements.
When
acquiring a product under a specification that includes qualification
requirements either for the end item or for components of the end item, the
NASA installation conducting the acquisition can waive the qualification
requirements. Directing a waiver of the
end item qualification requirement constitutes adequate authorization for
waiver of product qualification requirements.
When a waiver has been granted, the solicitation shall specifically
indicate that the qualification requirement is inapplicable. Such information shall also be included in
any synopsis of the acquisition (see FAR Subpart 5.2).
1809.206 Acquisitions subject to
qualification requirements.
(b)(i) The authority to determine that an
emergency exists is delegated to the installation's competition advocate. Requests for determination shall be prepared
by the cognizant requirements office and submitted through
the procurement officer.
(ii) Requests not to enforce a qualification requirement in a nonemergency
situation shall be prepared by the cognizant
requirements office and approved by the Headquarters Office of Safety and
Mission Assurance (Code Q).
(c) If an offeror seeks
to demonstrate its capability, both the product and the producer must meet the
established standards.
If a
small business otherwise eligible for award has been placed in a special status
on a Qualified Products List (Mil-Bul-103) or the Qualified Manufacturers List
(QML-38510) established as a part of the NASA Microelectronics Reliability
Program and the contracting officer determines that the small business does not
appear to have the capacity to perform, the certificate of competency
procedures in FAR Subpart 19.6 are
applicable.
When
qualified products (end items or components of end items) are being procured,
the contracting officer shall insert the clause at 1852.209-70,
Product Removal from Qualified Products List, in the solicitation and in the
resulting contract.
Subpart 1809.4--Debarment,
Suspension, and Ineligibility
“Suspending and Debarring official.” The NASA Suspending and Debarring Official
(SDO) is the Deputy General Counsel.
1809.404 Excluded Parties List
Systems.
(c) The
Director, Headquarters Acquisition Integrity Program (AIP Director) is
responsible for taking the actions listed in FAR 9.404(c).
1809.405 Effect of listing.
(a)
The NASA Chief Acquisition Officer (CAO) is the NASA official responsible for
determining that a compelling reason exists for NASA to conduct business with a
contractor that is debarred, suspended, or proposed for debarment. If it is believed that a new contract or
subcontract must be awarded to a firm included in the Excluded Parties List
System (EPLS), the procurement officer shall prepare a request for a
determination, including the rationale for why the action should be taken,
together with all necessary supporting information and forward it to the Office
of Procurement (Program Operations Division), and provide a copy to the AIP
Director.
(b)
The Program Operations Division is responsible for evaluating the request and
coordinating with Procurement, OGC (both AIP and Contracts Procurement Practice
Group (CPPG)), to jointly determine whether the facts support a recommendation
for the CAO to approve award to a party on the EPLS. Procurement Operations Division is also
responsible for preparing the headquarters documentation and providing it to
the CAO for approval.
1809.405-1 Continuation of current contracts.
The responsibilities of the Agency head under
FAR 9.405-1 are delegated to the CAO. Approvals shall be requested in
accordance with the procedures in 1809.405.
1809.405-2 Restrictions on
subcontracting.
(a)
The responsibilities of the Agency head under FAR 9.405-2(a) are delegated to
the CAO. Approval of consent to subcontract shall be requested in accordance
with the procedures in 1809.405.
1809.406 Debarment.
1809.406-1 General.
1809.406-3 Procedures.
(a) Any person may refer a matter to the SDO when
there is information indicating that a contractor may lack business integrity
or business honesty. The information
should be referred promptly to the SDO, through the AIP Director, for
consideration. The referral should
contain the information which supports a lack of business integrity or business
honesty.
(1) Use the following format when referring a matter to the
SDO for consideration. To the extent practicable, provide all specified
information.
(A) Name, address,
and telephone number of the point of contact for the activity making the
report.
(B) Name,
contractor and Government entity (CAGE) code, DUNS number, and address of the
contractor.
(C) Name and
addresses of the members of the board, principal officers, partners, owners,
and managers.
(D) Name and
addresses of all known affiliates, subsidiaries, or parent firms, and the
nature of the business relationship.
(E) For each contract affected by the
conduct being reported—
(i) The contract number;
(ii) All office identifying numbers or symbols;
(iii) Description of supplies or services;
(iv) The amount;
(v) The percentage of completion;
(vi) The amount paid the contractor and any
amounts due
(vii) Status of invoices or vouchers;
(viii) Whether the
contract is assigned under the Assignment of Claims Act and, if so, to whom;
(ix) The contract
fund citations involved, to expedite accurate return of funds to open accounts
and commands, as appropriate.
(F) For any other contracts with the
contractor or any of its affiliates—
(i)
The contract number;
(ii) The amount;
(iii) The amounts paid the
contractor;
(iv) Whether the contract is
assigned under the Assignment of Claims Act and, if so, to whom; and
(v) The amount due the
contractor.
(G) A complete
summary of the facts, including all pertinent evidence and the status of any
legal proceedings involving the contractor.
(H) An estimate of
any damages sustained by the Government as a result of the contractor's action
(explain how the estimate was calculated).
(I) If a contracting office initiates the report, the comments
and recommendations of the contracting officer and of each higher-level
contracting review authority regarding—
(i)
Whether to suspend or debar the contractor;
(ii) Whether to apply
limitations to the suspension or debarment;
(iii) The period of any
recommended debarment; and
(iv) Whether to continue any
current contracts with the contractor (or explain why a recommendation
regarding current contracts is not included).
(J) When appropriate, as an enclosure
to the report—
(i)
A copy or pertinent extracts of each pertinent contract;
(ii) Witness statements or
affidavits;
(iii) Copies of investigative
reports when authorized by the investigative agency;
(iv)
Certified copies of indictments, judgments, and sentencing actions;
(v) A copy of any
available determinations of nonresponsibility in
accordance with FAR 9.105-2(a)(1);
(vi) A copy of the information from the Federal Awardee Performance and Integrity Information System
(FAPIIS) data base
(vii) Any other appropriate
exhibits or documentation.
(K) To the extent
that information is available through FPDS-NG, provide a list of other agencies
that hold current contracts with the subjects.
(L) The Contracting
Officer is responsible for gathering the information required and preparing the
report.
(M) The AIP Center
Attorney (AIP-C) is responsible for assisting the CO in preparing the report
and performing a legal sufficiency review. The AIP-C shall sign the report
indicating that the review has been performed.
(N) The report shall be signed by the Contracting
Officer and submitted by the Procurement Officer. Procurement Officers are encouraged to advise
the Center Director, as appropriate, of debarment recommendations provided to
the SDO.
(O) Address the recommendation to the SDO,
indicating OGC (AIP) on the ‘Attention’ line, and send 2 copies of the complete
report, including enclosures to OGC(AIP). One copy of the recommendation, without
enclosures, should be provided to the HQ Office of Procurement, Contract
Management Division.
(P) If a referral
lacks sufficient evidence of a cause for debarment, the SDO may initiate a
review or investigation, as appropriate, by reporting the referral to the
appropriate Government entity, e.g., contracting activity, inspector general,
or criminal investigative agency.
(b) Decision-making process.
(1) The agency SDO may initiate the
debarment process by issuing a notice of proposed debarment in accordance with
FAR 9.406-3(c) when the SDO finds that the administrative record contains
sufficient evidence of one or more of the causes for debarment stated in FAR
9.406-2 .
(i)
The absence of a referral in accordance with 1809.406-3(a), or the absence of
any information specified in the report format at 1809.406-3(a)(1), will not preclude the SDO from making such a finding.
(ii) The signature of the SDO
on the notice of proposed debarment is sufficient evidence that the SDO has
made such a finding.
(2)
The SDO must use the decision-making process stated in FAR 9.406-3(b),
and any agency-specific procedures that were provided to the contractor in
advance of the decision.
(3) Nature of proceeding. There are two distinct proceedings which may
be involved in the suspension or debarment process. The first is the presentation of matters in
opposition to the suspension or proposed debarment by the contractor. The second is fact-finding which occurs only
in cases in which the contractor’s presentation of matters in opposition raises
a genuine dispute over one or more material facts. In a suspension action based upon an
indictment or in a proposed debarment action based upon a conviction or civil
judgment, there will be no fact-finding proceeding concerning the matters
alleged in the indictment, or the facts underlying the convictions or civil
judgment. However, to the extent that
the proposed action stems from the contractor’s affiliation with an individual
or firm indicted or convicted, or the subject of a civil judgment, fact-finding
is permitted if a genuine dispute of fact is raised as to the question of
affiliation as defined in FAR 9.403.
(4) Presentation of matters in opposition. In accordance with FAR 9.406-3(c) and
9.407-3(c), matters in opposition may be presented in person, in writing, or
through a representative. Matters in
opposition may be presented through any combination of the foregoing methods,
but if a contractor desires to present matters in person or through a
representative, any written material should be delivered at least 5 working
days in advance of the presentation.
Usually, all matters in opposition are presented in a single
proceeding. A contractor who becomes
aware of a pending indictment or allegations of wrongdoing that the contractor
believes may lead to suspension or debarment action may contact the SDO or
designee to provide information as to the contractor’s present responsibility.
(i) An in-person presentation is an informal
meeting, nonadversarial in nature. The SDO and/or other Agency representatives
may ask questions of the contractor or its representative making the
presentation. The contractor may select
the individuals who will attend the meeting on the SDO and contractor’s behalf;
individual respondents or principals of a business firm respondent may attend
and speak for themselves.
(ii) In accordance
with FAR 9.406-3(c) and 9.407-3(c), the contractor may submit matters in
opposition within 30 days from receipt of the notice of suspension or proposed
debarment.
(iii) The opportunity
to present matters in opposition to debarment includes the opportunity to
present matters concerning the duration of the debarment.
(5) Fact-finding.
(i) The SDO will determine whether the
contractor’s presentation has raised a genuine dispute of material
fact(s). If the SDO has decided against
continued suspension or debarment, or the provisions of FAR 9.4 preclude
fact-finding, no fact-finding will be conducted. If the SDO has determined a genuine dispute
of material fact(s) exists, a designated fact-finder will conduct the
fact-finding proceeding. The proceeding
before the fact-finder will be limited to a finding of the facts in dispute as
determined by the SDO.
(ii) The designated
fact-finder will establish the date for a fact-finding proceeding, normally to
be held within 45 working days of the contractor’s presentation of matters in
opposition. An official record will be
made of the fact-finding proceeding.
(iii) The
Government’s representative and the contractor will have an opportunity to
present evidence relevant to the facts at issue. The contractor may appear in person or through
a representative in the fact-finding proceeding.
(iv)
Neither the Federal Rules of Evidence nor the Federal Rules of
Civil Procedure govern fact-finding.
Hearsay evidence may be presented and will be given appropriate weight
by the fact-finder.
(v) Witnesses may
testify in person. Witnesses will be
reminded of the official nature of the proceeding and that any false testimony
given is subject to criminal prosecution.
Witnesses are subject to cross-examination.
(6) Timing requirements.
All timing requirements set forth in these procedures may be extended by
the SDO for good cause.
(c) Notice of Proposal to Debar.
(1)Notification. Contractors will be notified of the proposed
suspension or debarment in accordance with FAR 9.406-3 or 9.407-3. A copy of the record which formed the basis
for the decision by the SDO will be made available to the contractor. If there is a reason to withhold from the
contractor any portion of the record, the contractor will be informed of what
is withheld and the reasons for such withholding.
(2) Written findings of fact will be prepared by
the fact-finder as mandated by FAR 9.406-3(d)(2)(i)
and 9.407-3(d)(2)(i).
(3) The fact-finder
will determine the disputed fact(s) by a preponderance of the evidence. A copy of the findings of fact will be
provided to the SDO, the Government’s representative, and the contractor.
(4) The SDO will
determine whether to continue the suspension or to debar the contractor based
upon the entire administrative record, including the findings of fact.
(5) Prompt written
notice of the SDO’s decision will be sent to the contractor and any affiliates
involved, in compliance with FAR 9.406-3(e) and 9.407-3(d)(4).
1809.407
Suspension.
1809.407-1 General
1809.407-3 Procedures.
(a) Any
person may refer a matter to the SDO.
Refer all matters appropriate for consideration by the SDO as soon as
practicable. Use the format and procedures at 1809.406-3(a)(1)
when referring a matter to the agency SDO for consideration. To the extent practicable,
provide all information specified.
(i)
If a referral lacks sufficient evidence of a cause for suspension, the SDO may
initiate a review or investigation, as appropriate, by reporting the referral
to the appropriate Government entity, e.g., contracting activity, inspector
general, or criminal investigative agency.
(b) Decision-making process.
(1) The agency SDO may initiate the
suspension process by issuing a notice of suspension in accordance with FAR
9.407-3(c) when the SDO finds that the administrative record contains
sufficient evidence of one or more of the causes for suspension stated in FAR
9.407-2. The SDO should coordinate with
appropriate agency offices to assess the impact of suspension or debarment on
agency mission.
(i)
The absence of a referral in accordance with 1809.407-3(a), or the absence of
any information specified in the report format at 1809.406-3(a)(1), will not preclude the SDO from making such a finding.
(ii) The signature of the SDO
on the notice of suspension is sufficient evidence that the SDO has made such a
finding.
(2) In deciding whether to terminate a
suspension following a submission of matters in opposition, the agency SDO must
use the decision-making process stated in FAR 9.407-3(b),and any agency-specific
procedures that were provided to the contractor in advance of the decision.
(3)
The SDO shall follow the procedures in 1809.406-3(b) and 1809.406-3(c).
1809.408 Certification regarding debarment, suspension, proposed debarment,
and other responsibility matters.
(a)(2)(A) If the offeror
indicates that it has been indicted, charged, convicted, or had a civil
judgment rendered against it, or has been suspended, proposed for debarment, or has entered
into an administrative agreement to resolve a suspension or debarment
proceeding, or when information in FAPIIS indicates cause for concern, the contracting officer shall immediately notify
the Director, Headquarters Acquisition Integrity Program, with a copy to the
Office of Procurement (Program Operations Division), providing details as known. Information
provided should include:
(i)
copy of the offeror’s certification;
(ii) Specific company name or division;
(iii) Purpose of the pending
acquisition;
(iv) Description
of services;
(v) Extent of competition on the
pending procurement.
The CO shall
await a response before awarding the contract.
The Program Operations Division is responsible for working with the CO
to ensure that the package is complete.
1809.470-2
Contents of reports.
Each
report shall be coordinated with local counsel and shall include substantially
the following information, if available:
(a) Name and address of the contractor.
(b) Names of the principal officers, partners,
owners, or managers.
(c) All known affiliates, subsidiaries, or parent
firms, and the nature of the affiliation.
(d) A description of the contract or contracts
concerned, including the contract number and office identifying numbers or
symbols, the amount of each contract, the amounts paid the contractor and still
due, and the percentage of work completed and to be completed.
(e) The status of vouchers.
(f) Whether the contract has been assigned
pursuant to the Assignment of Claims Act, and, if so, the name and address of
the assignee and a copy of the assignment.
(g) Whether any other contracts are outstanding
with the contractor or any affiliates, and, if so, their amount, whether they
are assigned pursuant to the Assignment of Claims Act, and the amounts paid or
due on them.
(h) A complete summary of all pertinent evidence. If a request for debarment or suspension is
based on an indictment or a conviction, provide the evidence upon which the
indictment or conviction is based.
(i) An estimate of
any damages, sustained by the Government as a result of the contractor's
action, including an explanation of the method used in making the estimate.
(j) Recommendation as to (1) whether the
contractor should be suspended or debarred, (2) whether any limitations should
be applied to such action, (3) whether current contracts should be terminated,
and (4) the period of any debarment.
(k) As an enclosure, a copy of the contract(s) or
pertinent excerpts, appropriate exhibits, testimony or statements of witnesses,
copies of assignments, and other relevant documentation.
Subpart 1809.5--Organizational
and Consultant Conflicts of Interest
(a) The Assistant Administrator for Procurement
has authorized the procurement officer to take those actions reserved in FAR Subpart 9.5 for the
head of the contracting activity.
However, see 1809.503 regarding waivers.
(b)
The NASA Organizational Conflict of Interest (OCI) Guide provides agency-wide
guidance to individuals relative to identifying as well as resolving OCIs and
is available at http://prod.nais.nasa.gov/portals/pl/documents/OCI_Guide.pdf.
The
Administrator has designated the Assistant Administrator
for Procurement as the approval authority for waivers under FAR 9.503.
The procurement officer shall forward requests for waivers under FAR 9.503
to the Assistant Administrator for Procurement (Code HS) for action.
1809.505-4 Obtaining access to sensitive information.
(b) In accordance with FAR 9.503, the
Assistant Administrator for Procurement has determined that it would not be in
the Government’s interests for NASA to comply strictly with FAR 9.505-4(b) when
acquiring services to support management activities and administrative
functions. The Assistant Administrator
for Procurement has, therefore, waived the requirement that before gaining
access to other companies’ proprietary or sensitive (see 1837.203-70)
information contractors must enter specific agreements with each of those other
companies to protect their information from unauthorized use or disclosure. Accordingly, NASA will not require
contractors and subcontractors and their employees in procurements that support
management activities and administrative functions to enter into separate,
interrelated third party agreements to protect sensitive information from unauthorized use or disclosure. As an alternative to numerous, separate third
party agreements, 1837.203-70 prescribes detailed policy and procedures to
protect contractors from unauthorized use or disclosure of their sensitive information.
Nothing in this section waives the
requirements of FAR 37.204 and 1837.204.
(b) The approving official is the procurement
officer when the installation has source selection authority and the Assistant Administrator
for Procurement (Code HS) when NASA Headquarters has that authority.
1809.507
Solicitation provisions and contract clause.
The
contracting officer may insert a clause substantially the same as the clause at
1852.209-71,
Limitation of Future Contracting, in solicitations and contracts.
Subpart 1809.6--Contractor Team
Arrangements
The
contracting officer shall insert the clause at 1852.209-72,
Composition of the Contractor, in all construction invitations for bids and
resulting contracts. The clause may be
used in other solicitations and contracts to clarify a contractor team
arrangement where the prime contractor consists of more than one legal entity,
such as a joint venture.