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CLASS
DEVIATION IMPLEMENTING NASA RESTRICTIONS ON FUNDING ACTIVITY WITH THE PEOPLES
REPUBLIC OF CHINA (PRC)
PURPOSE:
To provide a class deviation implementing NASA Restrictions on Funding Activity
with the Peoples Republic of China (PRC) which became
effective April 25, 2011. Revision A provides clarification that contracts for commercial and non-developmental
items are not included in the appropriation restriction and are not
affected by the guidance provided in this PIC.
BACKGROUND: NASA is restricted by specific applications of
Section 1340(a) of The Department of Defense and Full-Year Appropriations Act,
Public Law 112-10 and Section 539 of the Consolidated and Further Continuing
Appropriation Act of 2012, PL 112-55, from using funding appropriated in the
Acts to contract to participate, collaborate or coordinate bilaterally in any
way with China or any Chinese-owned company, at the prime contract or any tier
subcontract level.
GUIDANCE: NASA is restricted by specified application
of the Acts from using funding appropriated in the Acts to enter into a
contract of any kind to participate, collaborate, or coordinate bilaterally in
any way with China or any Chinese-owned company. Funds containing the restriction
are those FY 2011 funds appropriated on or after April 25, 2011, FY 12 funds,
and all future appropriations. Accordingly,
contracting officers shall make no awards to China or Chinese-owned companies
with funds appropriated by the Acts or any funds appropriated subsequent to the
Acts. This policy applies to all
contracts except those for commercial and non-developmental items. The restrictions of the Acts and this policy
neither limit nor prohibit the purchase of commercial or non-developmental
items.
Contracting officers shall ensure that contracts
funded with the restricted appropriations include the provision and clause
below that prohibit the contractor from spending such funds on restricted
activities with China or a Chinese-owned company. The restrictions of the Acts
do not restrict contractors from acquiring commercial and non-developmental
items from China or Chinese-owned companies.
Contracts which used funding that was appropriated after April 25, 2011
either as a new award or through a modification are subject to this
restriction.
“China” or “Chinese-owned Company” means the People’s Republic of China, any company owned
by the People’s Republic of China or any company incorporated under the laws of
the People’s Republic of China.
ACTIONS REQUIRED BY
CONTRACTING OFFICERS: Insert clause 1852.225-71, Restriction on
Funding Activities with China, in all new
solicitations and awards except
those for commercial and non developmental items. Attempt to negotiate no cost, bilateral
agreement to include the clause in existing contracts except those for commercial and non developmental
items that have used or will use appropriations received by NASA after April
25, 2011. Insert the provision
1852.225-72, Restriction on Funding
Activities with China – Representation, in all solicitations and awards except those for commercial and
non developmental items.
1852.225-71 Restriction on Funding
Activity with China.
(a) Definition - “China” or “Chinese-owned company” means the
People’s Republic of China, any company owned by the People’s Republic of China
or any company incorporated under the laws of the People’s Republic of China.
(b) Public Laws 112-10, Section 1340(a) and
112-55, Section 539, restrict NASA from contracting to participate,
collaborate, coordinate bilaterally in any way with China or a Chinese-owned
company using funds appropriated on or after
April 25, 2011. Contracts for commercial
and non developmental items are exempted from the prohibition because they
constitute purchase of goods or services that would not involve participation,
collaboration, or coordination between the parties.
(c) This contract may use restricted funding
that was appropriated on or after April 25, 2011. The contractor shall not contract with China
or Chinese-owned companies for any effort related to this contract except for
acquisition of commercial and non-developmental items. If the contractor
anticipates making an award to China or Chinese-owned companies, the contractor
must contact the contracting officer to determine if funding on this contract
can be used for that purpose.
(d) Subcontracts
- The contractor shall include the substance of this clause in all subcontracts
made hereunder.
(End of
clause)
1852.225-72 Restriction on funding
Activity with China – Representation.
(a) Definition - “China” or “Chinese-owned”
means the People’s Republic of China, any
company owned by the People’s Republic of China or any company incorporated
under the laws of the People’s Republic of China.
(b) Public Laws 112-10, Section 1340(a) and 112-55,
Section 536, restrict NASA from contracting to participate, collaborate, or
coordinate bilaterally in any way with China or a Chinese-owned company with
funds appropriated on or after April 25,
2011. Contracts for commercial and
non-developmental items are excepted from the
prohibition as they constitute purchase of goods or services that would not
involve participation, collaboration, or coordination between the parties.
(c) Representation. By submission of its offer, the offeror
represents that the offeror is not China or a Chinese-owned company.
(End of
provision)
**********
EFFECTIVE DATE: This PIC is effective immediately and shall remain in effect
until rescinded or added to the NFS.
CANCELLATION: PIC 12-01
is hereby cancelled.
HEADQUARTERS CONTACT: Craig Bowers, Contract Management Division,
(202) 358-2235, email: craig.w.bowers@nasa.gov.
/s/ Ronald A. Poussard for
William P. McNally
Assistant Administrator for Procurement
DISTRIBUTION:
PIC List