09-11

Procurement Information Circular


October 5, 2009

CLASS DEVIATION TO THE CROSS-WAIVER OF LIABILITY

CLAUSES (1852.228-72, 1852.228-76, AND 1852.228-78)

FOR THE INTERNATIONAL SPACE STATION (ISS) ACTIVITIES AND THE

SCIENCE OR SPACE EXPLORATION ACTIVITIES UNRELATED TO THE ISS

 

PURPOSE:  This class deviation provides interim guidance regarding the immediate release and implementation of the revised NASA FAR Supplement (NFS) cross-waiver of liability clauses for the International Space Station (ISS) activities and the Science or Space Exploration Activities unrelated to the ISS.  This guidance precedes the permanent changes to the NASA FAR Supplement (NFS) to be made via a Procurement Notice.

 

BACKGROUND:  NASA has been including cross-waivers of liability in its launch services agreements with U.S. and foreign parties since NASA’s original cross-waiver regulations were published in 1991.  By incorporating the cross-waivers of liability into agreements for ISS activities and Science or Space Exploration activities, unrelated to the ISS, but which involve a launch, each Party, as defined in the cross-waiver, agree to waive all claims against any entity or person defined in the cross-waiver based on damage arising out of Protected Space Operations.  These cross-waivers also require the parties to extend these cross-waivers to their related entities ensuring those related entities also waive all claims against any entity or person defined in the cross-waiver for damages arising out of Protected Space Operations.

 

GUIDANCE:  Contracting Officers shall incorporate the attached NASA FAR Supplement changes in all new solicitations and contracts, as prescribed by NASA FAR Supplement 1828.371 (DEVIATION).

 

HEADQUARTERS CONTACT:  R. Todd Lacks, Office of Procurement, Contract Management Division, (202) 358-0799, email: todd.lacks@nasa.gov.    

 

 

/s/

William P. McNally

Assistant Administrator for Procurement

 

 

Enclosures

 

DISTRIBUTION LIST:

   PIC List 


 


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) 1852.214-71, Grouping for Aggregate Award.
(B) 1852.214-72, Full Quantities.
(C) 1852.215-84, Ombudsman.
(D) 1852.219-75, Small Business Subcontracting Reporting.
(E) 1852.219-76, NASA 8 Percent Goal.
(F) 1852.223-70, Safety and Health.
(G) 1852.223-71, Frequency Authorization.
(H) 1852.223-72, Safety and Health (Short Form).

(I)  1852.223-73, Safety and Health Plan.
(J)  1852.223-75, Major Breach of Safety and Security.
(K) 1852.228-76, Cross-Waiver of Liability for International Space Station Activities.
(L) 1852.228-78, Cross-Waiver of Liability for Science or Space Exploration Activities unrelated to the International Space Station.
(M) 1852.246-72, Material Inspection and Receiving Report.

(ii) No other provisions and clauses prescribed in the NFS or center documents shall be used in acquisitions of commercial items, except as permitted by FAR 12.302.

 

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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. (DEVIATION)
(a) In contracts covering International Space Station activities, or Science or Space Exploration activities, unrelated to the International Space Station, but which 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 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 clause 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 (DEVIATION), 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, unrelated to the International Space Station, but which involve a launch.  If Space Shuttle services under a contract are being conducted in support of science or space exploration activities unrelated to the International Space Station, the contracting officer shall insert the clause prescribed by this paragraph and designate application of the clause to those particular activities.  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 (DEVIATION), 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.  If Space Shuttle services under a contract are being conducted in support of International Space Station activities, the contracting officer shall insert the clause prescribed by this paragraph and designate application of the clause to those particular activities.
(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.

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1852.228-72 [Reserved]

1852.228-76 Cross-Waiver of Liability for International Space Station Activities. (DEVIATION)

As prescribed in 1828.371(c) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR INTERNATIONAL SPACE STATION ACTIVITIES (DEVIATION)

(a) The Intergovernmental Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station (IGA) for the International Space Station (ISS) contains a cross-waiver of liability provision to encourage participation in the exploration, exploitation, and use of outer space through the ISS.  The Parties intend that this cross-waiver of liability be broadly construed to achieve this objective.
(b) As used in this clause, the term:

(1) “Agreement” refers to any NASA Space Act agreement that contains the cross-waiver of liability provision authorized by 14 CFR Part 1266.102.
(2) "Damage" means:
(i) Bodily injury to, or other impairment of health of, or death of, any person;
(ii) Damage to, loss of, or loss of use of any property;
(iii) Loss of revenue or profits; or
(iv) Other direct, indirect, or consequential damage.
(3) "Launch Vehicle" means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries payloads or persons, or both.
(4) "Partner State" includes each Contracting Party for which the IGA has entered into force, pursuant to Article 25 of the IGA or pursuant to any successor agreement.  A Partner State includes its Cooperating Agency.  It also includes any entity specified in the Memorandum of Understanding (MOU) between NASA and the Government of Japan’s Cooperating Agency in the implementation of that MOU.

(5) “Party” means a party to a NASA Space Act agreement involving activities in connection with the ISS and a party that is neither the prime contractor under this contract nor a subcontractor at any tier.
(6) "Payload" means all property to be flown or used on or in a Launch Vehicle or the ISS.
(7) "Protected Space Operations" means all Launch or Transfer Vehicle activities, ISS activities, and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of the IGA, MOUs concluded pursuant to the IGA, implementing agreements, and contracts to perform work in support of NASA’s obligations under these Agreements.  It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch or Transfer Vehicles, the ISS, Payloads, or instruments, as well as related support equipment and facilities and services; and
(ii) All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services.  “Protected Space Operations” also includes all activities related to evolution of the ISS, as provided for in Article 14 of the IGA.  “Protected Space Operations” excludes activities on Earth which are conducted on return from the ISS to develop further a Payload’s product or process for use other than for ISS-related activities in implementation of the IGA.
(8) "Related Entity" means:
(i) A contractor or subcontractor of a Party or a Partner State at any tier;
(ii) A user or customer of a Party or a Partner State at any tier; or
(iii) A contractor or subcontractor of a user or customer of a Party or a Partner State at any tier.

The terms “contractor” and “subcontractor” include suppliers of any kind.

(9) “Transfer Vehicle” means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body.  A “Transfer Vehicle” also includes a vehicle that departs from and returns to the same location on a space object.
(c)(1) The Contractor agrees to a cross-waiver of liability pursuant to which it waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this 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-waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:
(i) A Party as defined in (B)(5) above;
(ii) A Partner State other than the United States of America;

(iii) A Related Entity of any entity identified in paragraph (c)(1)(i) or (c)(1)(ii) of this clause; or
(iv) The employees of any of the entities identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this clause.
(2) In addition, the contractor shall, by contract or otherwise, extend the cross-waiver of liability set forth in paragraph (c)(1) of this clause to its subcontractors at any tier by requiring them, by contract or otherwise, to:

(i) Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and

(ii) Require that their subcontractors waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause.
(3) For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where 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.
(4) Notwithstanding the other provisions of this clause, this cross-waiver of liability shall not be applicable to:
(i) Claims between the Government and its own contractors or between its own contractors and subcontractors;
(ii) Claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Party to an Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;
(iii) Claims for Damage caused by willful misconduct;
(iv) Intellectual property claims;

(v) Claims for Damage resulting from a failure of the contractor to extend the cross-waiver of liability to its subcontractors and related entities, pursuant to paragraph (c)(2) of this clause; or

(vi) Claims by the Government arising out of or relating to the contractor’s failure to perform its obligations under this contract.
(5) Nothing in this clause shall be construed to create the basis for a claim or suit where none would otherwise exist.

(6) This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter 701 is applicable.

(End of clause)

 

1852.228-78 Cross-Waiver of Liability for Science or Space Exploration Activities Unrelated to the International Space Station (DEVIATION)

As prescribed in 1828.371(b) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR SCIENCE OR SPACE EXPLORATION ACTIVITIES UNRELATED TO THE INTERNATIONAL SPACE STATION (DEVIATION)

(a) The purpose of this clause is to extend a cross-waiver of liability to NASA contracts for work done in support of Agreements between Parties involving Science or Space Exploration activities, unrelated to the International Space Station (ISS), but which involve a launch.  This cross-waiver of liability shall be broadly construed to achieve the objective of furthering participation in space exploration, use, and investment.
(b) As used in this clause, the term:

(1) “Agreement” refers to any NASA Space Act agreement that contains the cross-waiver of liability provision authorized in 14 CFR 1266.104.
(2) "Damage" means:
(i) Bodily injury to, or other impairment of health of, or death of, any person;
(ii) Damage to, loss of, or loss of use of any property;
(iii) Loss of revenue or profits; or
(iv) Other direct, indirect, or consequential Damage;

(3) “Launch Vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads or persons, or both.
(4) "Party" means a party to a NASA Space Act agreement for Science or Space Exploration activities, unrelated to the ISS, but which involve a launch and a party that is neither the prime contractor under this contract nor a subcontractor at any tier hereto.
(5) "Payload" means all property to be flown or used on or in a Launch Vehicle.
(6) "Protected Space Operations" means all Launch or Transfer Vehicle activities and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an Agreement for Science or Space Exploration activities, unrelated to the ISS, but which involve a launch.  Protected Space Operations begins at the signature of the Agreement and ends when all activities done in implementation of the agreement are completed.  It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch or Transfer Vehicles, Payloads, or instruments, as well as related support equipment and facilities and services; and
(ii) All activities related to ground support, test, training, simulation, or guidance and control equipment, and related facilities or services.

Protected Space Operations excludes activities on Earth which are conducted on return from space to develop further a Payload’s product or process other than for the activities within the scope of an Agreement.
(7) "Related entity" means:
(i) A contractor or subcontractor of a Party at any tier;
(ii) A user or customer of a party at any tier; or
(iii) A contractor or subcontractor of a  user or customer of a Party at any tier.

The terms “contractors” and “subcontractors” include suppliers of any kind.
(c) Cross-waiver of liability:

(1) The contractor agrees to a waiver of liability pursuant to which it waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this 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 waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:
(i) A Party;
(ii) A Party to another NASA Agreement or contract that includes flight on the same Launch Vehicle;

(iii) A Related Entity of any of the entities identified in (c)(1)(i) or (c)(1)(ii) of this clause; or
(iv) The employees of any of the entities identified in (c)(1)(i) through (c)(1)(iii) of this clause.
(2) The contractor agrees to extend the cross-waiver of liability as set forth in paragraph (c)(1) of this clause to its own subcontractors at all tiers by requiring them, by contract or otherwise, to:

(i) Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and

(ii) Require that their Related Entities waive all claims against the entities or persons identified in paragraph (c)(1)(i) through (c)(1)(iv) of this clause.
(3) For avoidance of doubt, this cross-waiver includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where 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.
(4) Notwithstanding the other provisions of this clause, this cross-waiver of liability shall not be applicable to:
(i) Claims between the Government and its own contractors or between its own contractors and subcontractors;
(ii) Claims made by a natural person, his/her estate, survivors, or subrogees (except when a subrogee is a Party to an Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health, or death of such person;
(iii) Claims for Damage caused by willful misconduct;
(iv) Intellectual property claims;

(v) Claims for damages resulting from failure of the contractor to extend the cross-waiver of liability to its subcontractors and related entities, pursuant to paragraph (c)(2) of this clause; or

(vi) Claims by the Government arising out of or relating to a contractor’s failure to perform its obligations under this contract.
(5) Nothing in this clause shall be construed to create the basis for a claim or suit where none would otherwise exist.
(6) This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter 701 is applicable.

(End of clause)