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.
******************************************************************************
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)
09-11