TABLE OF
CONTENTS
SUBPART 1828.1
BONDS
1828.101 Bid guarantees.
1828.101-70 NASA solicitation
provision.
1828.103 Performance and
payment bonds and alternative payment
protections for other than construction
contracts.
1828.103-70 Subcontractors
performing construction work under
nonconstruction
contracts.
1828.103-71 Solicitation
requirements and contract clauses.
1828.106 Administration.
1828.106-6 Furnishing
information.
SUBPART 1828.2
SURETIES
1828.202 Acceptability
of corporate sureties.
1828.203 Acceptability
of individual sureties.
SUBPART 1828.3 INSURANCE
1828.307 Insurance under
cost-reimbursement contracts.
1828.307-1 Group insurance
plans.
1828.307-2 Liability.
1828.307-70 Insurance of
industrial facilities.
1828.311 Solicitation
provision and contract clause on liability insurance
under cost-reimbursement contracts.
1828.311-1 Contract clause.
1828.311-2 Agency
solicitation provisions and contract clauses.
1828.311-270 NASA solicitation
provisions and contract clauses.
1828.370 Fixed-price
contract clauses.
1828.371 Clauses incorporating cross-waivers of liability for
International Space Station activities and Science
or Space Exploration activities unrelated to the International Space Station.
1828.372 Clause for minimum insurance coverage.
PART 1828
BONDS AND INSURANCE
1828.101-70 NASA solicitation
provision.
The contracting officer shall insert
the provision at 1852.228-73,
Bid Bond, in construction solicitations where offers
are expected to exceed $100,000 and a performance bond or a performance and
payment bond is required (see FAR
28.102 and 28.103).
The contracting officer may increase the amount of the bid bond to protect the Government
from loss, as long as the amount does not exceed $3 million.
1828.103 Performance and payment bonds and alternative payment protections for other than construction contracts.
1828.103-70 Subcontractors performing
construction work under nonconstruction
contracts.
(a) The contracting officer shall
require prime contractors on nonconstruction
contracts to obtain the following performance and/or payment protection from
subcontractors performing construction work:
(1) Performance and payment bonds
when the subcontract construction work is in excess of $100,000 and is
determined by NASA to be subject to the Miller Act.
(2) An appropriate payment
protection determined according to FAR 28.102-1(b)(1) when the subcontract construction work is
greater than $30,000 but not greater than $100,000.
(b) The contracting officer shall
establish the penal amount in accordance with FAR 28.102-2 based on the
subcontract value.
(c) The bonds shall be provided on SF
25, Performance Bond, and SF 25A, Payment Bond. These forms shall be modified
to name the NASA prime contractor as well as the
1828.103-71 Solicitation
requirements and contract clauses.
When performance and payment bonds or
alternative payment protections are required from subcontractors performing
construction work under nonconstruction prime
contracts, the contracting officer shall follow the procedures in FAR 28.102-3. When
alternative payment protections are required, insert a clause substantially the
same as FAR
52.228-13, Alternative Payment
Protections, appropriately modified.
1828.106-6 Furnishing information.
(c) The contracting officer is the
agency head's designee.
1828.202 Acceptability of corporate
sureties.
(d) Contracting officers may obtain
access to Department of Treasury Circular 570 through the internet at http://www.fms.treas.gov/c570/index.html.
1828.203 Acceptability of individual sureties.
(g) Notification of suspected criminal or
fraudulent activities, with all supporting documentation, shall be submitted to
the Headquarters Office of Procurement (Code HS).
1828.307 Insurance under cost-reimbursement contracts.
1828.307-1 Group insurance plans.
(a) The procurement officer is the
approval authority.
1828.307-2 Liability.
(b)(2)(A) The procurement
officer may approve a requirement for property damage liability insurance when:
(a)
A commingling of operations permits property damage coverage at a
nominal cost to NASA under insurance carried by the contractor in the course of
its commercial operations; or
(b)
The contractor is engaged in the handling of high explosives or in
extra hazardous research and development activities undertaken in populated
areas.
(B)
In all other circumstances, the Assistant Administrator for Procurement
(Code HS) is the approval authority.
1828.307-70 Insurance of
industrial facilities.
When industrial facilities are provided
by the Government under a facilities contract or a lease, the contract or lease
shall require that during the period of construction, installation, alteration,
repair, or use, and at any other time as directed by the contracting officer,
the contractor or lessee shall insure or otherwise provide approved security
for liabilities to third persons (including employees of the contractor or
lessee) in the manner and to the same extent as required in FAR 28.307-2.
1828.311 Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.
1828.311-1 Contract clause.
The contracting officer shall insert
the clause at FAR 52.228-7, Insurance-Liability to
Third Persons, as prescribed in FAR 28.311-1
unless --
(a) Waived by the procurement officer; or
(b) The successful offeror
represents in its offer that it is totally immune from tort liability as a
State agency or as a charitable institution.
1828.311-2 Agency solicitation provisions and contract clauses.
1828.311-270 NASA solicitation
provisions and contract clauses.
(a) The contracting officer must insert
the clause at 1852.228-71, Aircraft Flight
Risks, in all cost-reimbursement contracts for the development, production,
modification, maintenance, or overhaul of aircraft, or otherwise involving the
furnishing of aircraft to the contractor, except when the aircraft are covered
by a separate bailment.
(b) The contracting officer must insert
the provision at 1852.228-80,
Insurance -- Immunity from Tort Liability, in solicitations for research and
development when a cost-reimbursement contract is contemplated.
(c) The contracting officer must insert
FAR clause 52.228-7 and the associated clause at 1852.228-81,
Insurance -- Partial Immunity From Tort Liability,
when the successful offeror represents in its offer
that the offeror is partially immune from tort
liability as a State agency or as a charitable institution.
(d) The contracting officer must insert
the clause at 1852.228-82,
Insurance -- Total Immunity From Tort Liability, when
the successful offeror represents in its offer that
the offeror is totally immune from tort liability as
a State agency or as a charitable institution.
1828.370 Fixed-price contract clauses.
(a) The contracting officer shall
insert the clause at 1852.228-70,
Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts for
the development, production, modification, maintenance, or overhaul of
aircraft, or otherwise involving the furnishing of aircraft to the contractor,
except as provided in paragraph (b) of this section, unless the aircraft are
covered by a separate bailment. See the clause preface for directions for
modifying the clause to accommodate various circumstances.
(b) The Government need not assume the
risk of aircraft damage, loss, or destruction as provided by the clause at 1852.228-70
if the best estimate of premium costs that would be included in the contract
price for insurance coverage for such damage, loss, or destruction at any plant
or facility is less than $500. If it is determined not to assume this risk, the
clause at 1852.228-70 shall not be made a part of the contract, and the cost of
necessary insurance to be obtained by the contractor to cover this risk shall
be considered in establishing the contract price. In such cases, however, if
performance of the contract is expected to involve the flight of
Government-furnished aircraft, the substance of the clause at 1852.228-71, Aircraft Flight
Risks, suitably adapted for use in a fixed-price contract, shall be used.
(c) When the clause at 1852.228-70 is
used, the term "Contractor's premises" shall be expressly defined in
the contract Schedule and shall be limited to places where aircraft may be
located during the performance of the contract. Contractor's premises may
include, but are not limited to, those owned or leased by the contractor or
those for which the contractor has a permit, license, or other right of use
either exclusively or jointly with others, including Government airfields.
1828.371
Clauses incorporating cross-waivers of liability for International Space
Station activities and Science
or Space Exploration activities unrelated to the International Space Station.
(a) In
contracts covering International Space Station activities, or Science or Space
Exploration activities unrelated to the International Space Station that
involve a launch, NASA shall require the contractor to agree to waive all
claims against any entity or person defined in the clause based on damage
arising out of Protected Space Operations.
This cross-waiver shall apply only if the person, entity, or property
causing the damage is involved in Protected Space Operations and the person,
entity, or property damaged is damaged by virtue of its involvement in
Protected Space Operations. The
cross-waivers will require the contractor to extend the cross-waiver provisions
to their subcontractors at any tier and related entities ensuring those
subcontractors and related entities also waive all claims against any entity or
person defined in the clause for damages arising out of Protected Space
Operations. The purpose of the clauses
prescribed in this section is to extend the cross-waivers under other
agreements to NASA contractors that perform work in support of NASA’s
obligations under these agreements.
(b) The contracting officer shall insert the
clause at 1852.228-78,
Cross-Waiver of Liability for Science or Space Exploration Activities unrelated
to the International Space Station, in solicitations and contracts above the
simplified acquisition threshold for the acquisition of launches for science or
space exploration activities unrelated to the International Space Station or
for acquisitions for science or space exploration activities that are not
related to the International Space Station but involve a launch. If a science or space exploration activity is
in support of the International Space Station, the contracting officer shall
insert the clause prescribed by paragraph (c) of this section and designate its
application to that particular launch.
(c) The contracting officer shall insert the
clause at 1852.228-76,
Cross-Waiver of Liability for International Space Station Activities, in
solicitations and contracts above the simplified acquisition threshold when the
work to be performed involves Protected Space Operations, as that term is
defined in the clause, relating to the International Space Station.
(d) At the contracting officer's
discretion, the clauses prescribed by paragraphs (b) and (c) of this section
may be used in solicitations, contracts, new work modifications, or extensions
to existing contracts under the simplified acquisition threshold involving
science or space exploration activities unrelated to the International Space
Station, or International Space Station activities, respectively, in
appropriate circumstances. Examples of
such circumstances are when the value of contractor property on a Government
installation used in performance of the contract is significant, or when it is
likely that the contractor or subcontractor will have its valuable property
exposed to risk or damage caused by other participants in the science or space
exploration activities unrelated to the International Space Station, or
International Space Station activities.
1828.372 Clause for minimum insurance coverage.
In accordance with FAR 28.306(b)
and 28.307, the contracting officer may
insert a clause substantially as stated at 1852.228-75,
Minimum Insurance Coverage, in fixed-price solicitations and contracts
requiring performance on a government installation and in cost-reimbursement
contracts. The contracting officer may modify the clause to require additional
coverage, such as vessel liability, and higher limits if appropriate for a
particular acquisition.