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March 14,
2012
CLASS
DEVIATION TO IMPLEMENT FUNDING RESTRICTIONS IN
NASA’S 2012
APPROPRIATIONS ACT
PURPOSE:
To provide a class deviation implementing funding restrictions in NASA’s 2012
Appropriations Act; to provide guidance to the contracting community on
complying with the spending authority. (See also GIC 12-02 for a tandem
deviation addressing grants and cooperative agreements.)
BACKGROUND: NASA’s 2012 appropriation which is included in
The Consolidated and Further Continuing Appropriations Act of 2012 (Pub. L. 112-55)
(hereinafter referred to as ‘the Act’) became effective November 18, 2011. It imposes four specific funding restrictions
that are summarized in the table below.
|
2012
Appropriation |
Entities affected |
Contracts affected |
Short description of prohibition |
Conditions under which funding can be
used. |
|
ACORN Provision Section 534 |
The Association of Community
Organizations for Reform Now (ACORN) or its subsidiaries |
All contracts |
No funds may be made available to ACORN
or its subsidiaries |
None |
|
Tax Delinquency Provision 1 Section 527 |
All contractors |
Contracts exceeding $5M |
No funds unless contractor CERTIFIES
in writing to Federal tax compliance for previous 3 years |
None |
|
Tax Delinquency Provision 2 Section 544 |
CORPORATIONS |
All contracts at any value |
No funds if corporation has a
delinquent tax liability |
An agency has considered suspension
and debarment and made a determination that suspension or debarment is not
necessary to protect the interests of the Government |
|
Felony Provision Section 543 |
CORPORATIONS |
All contracts of any value |
No funds if corporation was convicted
of a felony under Federal law in preceding 24 months |
An agency has considered suspension and
debarment and made a determination that suspension or debarment is not
necessary to protect the interests of the Government |
The first
restriction is a prohibition on providing funds to The Association of Community
Organizations for Reform Now (ACORN) or its subsidiaries. It is an absolute restriction and there are
no conditions under which NASA can contract with ACORN or its subsidiaries
The second
restriction requires the Agency to obtain a certification from all offerors, when the resulting award will exceed $5 million,
that to the best of its knowledge and belief, the offeror:
-
Has filed all Federal tax returns
required during the preceding 3 year period;
-
Has not been convicted of a criminal
offense under the Internal Revenue Code of 1986; and,
-
Has not been notified by the IRS, within
the past 90 days, of an unpaid Federal tax assessment, which remains unpaid
(unless an installment agreement is in place, and unless the contractor has
filed a non-frivolous administrative or judicial proceeding.
No funds made available
under the Act can be used in the absence of this certification.
The third and
fourth restrictions apply to corporations.
No FY 2012 funds may be used to enter into a contract with a
corporation, when the CO is aware of
an unpaid tax delinquency or Federal felony conviction of the corporation unless an agency has considered suspension
or debarment and made an affirmative decision that suspension or debarment is
not necessary to protect the interests of the Government, before making an
award to the offeror with the delinquent tax
liability or felony conviction.
Please note
two key elements of the restriction which are indicated in bold. The statute does not place a requirement on
contracting officers to seek out information that is not readily
available. Awareness of a prospective awardee’s tax delinquency or Federal felony conviction may
be gained through common knowledge of publicly available information or through
representations, certifications, or other submissions by the contractor. Because there is not an affirmative
requirement to obtain all information from offerors
that are corporations, NASA has some flexibility in establishing implementation
thresholds. As a policy matter, this PIC
reflects reasonable thresholds to limit the collection burden.
Further, the funding restrictions on corporations are
not absolute. Congress indicated that
the purpose of the restrictions is to ensure agencies consider corporate offerors’ tax delinquency and felony conviction status and determine
whether they should be suspended or debarred.
If the agency makes a determination that suspension or debarment is not
necessary to protect the Government’s interests, then award can proceed and
funds made available under the Act may be utilized.
GUIDANCE: NASA is restricted by the Act from using
funds made available under the Act to enter into a contract with entities that
qualify under the restrictions. In order
to implement these funding restrictions, this PIC includes a class deviation in
the form of two new representations and a new certification.
The representation at 1852.209-73 shall be included in
all solicitations, expected to result in contracts or orders of any dollar
amount. For transactions where
solicitations are not used, contracting officers and purchase card holders
should verify that merchants are not ACORN or subsidiaries of ACORN by asking
the merchant directly or checking the internet.
A quick search on key words ‘ACORN subsidiary’ yields several lists
which, though unofficial, are likely to include major affiliated organizations
and thereby provide a means to perform a measure of due diligence on small
dollar value transactions.
The certification requirement at NFS 1852.209-74 shall
be included in solicitations where the resultant contract is expected to exceed
$5 Million. The certification is
required before an award can be made.
The representation at NFS 1852.209-75 shall be
included in all new solicitations when the resultant contract is expected to
exceed the simplified acquisition threshold.
While the funding restrictions apply to any use of the funds, the
representations are not required before adding funding to existing contracts,
when issuing an order against another agency’s contract, or when executing a
simplified acquisition, including one made with a purchase card because the
statute does not include a requirement for contracting officers to seek out
contractor information related to unpaid tax delinquencies and felony
convictions. Notwithstanding the absence
of a representation on existing contracts, orders against other agencies’
contracts, or simplified acquisitions, if the CO or cardholder is aware that a
contractor has a qualifying tax delinquency or felony conviction, then FY 2012
funds may not be utilized for the action without first ensuring that the
required consideration and determination regarding suspension and debarment
have been performed.
Only the Suspension and Debarment Official (SDO) may
consider suspension and debarment and make a determination whether further
action is necessary to protect the interests of the Government. The Acquisition Integrity Program (AIP) is
responsible for coordinating suspension and debarment referrals with the NASA
SDO or, when appropriate, the lead agency’s SDO. Upon receipt of an affirmative representation
from an offeror, contracting officers shall initiate
review and analysis of the representation in accordance with the procedures in
NFS 1809.408, and await a response from AIP prior to making an award. Likewise,
in the absence of an affirmative representation, if a CO or cardholder becomes
aware that an unpaid tax delinquency or felony conviction may impact an award
or purchase, the matter should be referred to AIP in accordance with the
procedure at NFS 1809.408.
ACTIONS
REQUIRED BY CONTRACTING OFFICERS: Contracting Officers shall begin using the deviated
representation and certifications immediately in new solicitations. Depending upon the status and schedule of
open solicitations, COs should consider amending the solicitation to include
the new representations and certification.
Regardless of the solicitation requirements, COs must ensure that the
contractor selected for award meets the standards of the Act prior to the
obligation of FY 2012 funds.
Contracting
officers shall process any Agency actions arising under the funding
restrictions with the AIP program, following the guidance at NFS 1809- 408 for
submission, content and internal Agency coordination.
APPLICABILITY: The funding
restrictions apply to all 2012 funds which were appropriated by the Act on
November 18, 2011. Because the Act
requires NASA to have collected the certification and verified offerors ACORN affiliation, tax delinquency, and felony
conviction status prior to award, it is not possible to retroactively apply
this guidance to contracts awarded between November 18, 2011 and the date of
this class deviation.
EFFECTIVE DATE: This class deviation is effective upon
signature, and remains in effect until incorporated in the FAR or NFS or
otherwise rescinded.
HEADQUARTERS CONTACT: Leigh Pomponio, Contract Management Division,
(202) 358-0592, email: leigh.pomponio@NASA.gov
/s/
William P. McNally
Assistant Administrator for Procurement
Enclosure
DISTRIBUTION:
|
PIC List |
Class Deviation – Prohibition against Contracting
with the Association of Community Organizations for Reform Now (ACORN) or its
subsidiaries.
1852.209-73
Representation by Offerors that they are not the
Association of Community Organizations for Reform Now (ACORN) or a subsidiary
of ACORN.
REPRESENTATION
BY OFFERORS THAT THEY ARE NOT THE ASSOCIATION of COMMUNITY ORGANIZATIONS for
REFORM NOW (ACORN) or a SUBSIDIARY of ACORN (DEVIATION FEB 2012)
(a)
In
accordance with section 534 of The Consolidated and Further Continuing
Appropriation Act of 2012 (Pub. L.112-55) none of the funds made available by
the Act may be distributed to the Association of Community Organizations for
Reform Now (ACORN) or its subsidiaries.
(b)
The offeror represents, by submission of its offer, that it is
not the Association of Community Organizations for Reform Now (ACORN) or a
subsidiary thereof.
(End of
provision)
Class Deviation –
Certification by Offerors regarding Federal income
tax filing and Federal income tax violations.
1852-209.74 CERTIFICATION
BY OFFERORS REGARDING FEDERAL INCOME TAX FILING and FEDERAL INCOME TAX
VIOLATIONS. (DEVIATION FEB 2012)
(a)
In
accordance with section 527 of The Consolidated and Further Continuing
Appropriation Act of 2012 (Pub. L.112-55) none of the funds made available by
the Act may be used to enter into a contract in an amount greater than $5
Million unless the prospective contractor certifies in writing to NASA that, to
the best of its knowledge and belief, the contractor has filed all Federal tax
returns required during the three years preceding the certification, has not
been convicted of a criminal offense under the Internal revenue Code of 1986,
and has not, more than 90 days prior to certification, been notified of any
unpaid Federal tax assessment for which the liability remains unsatisfied,
unless the assessment is the subject of an installment agreement or offer in
compromise that has been approved by the Internal Revenue Service and is not in
default, or the assessment is the subject of a non-frivolous administrative or
judicial proceeding.
(b)
The offeror’s proposal shall include a signed written
certification as follows –
To the
best of my knowledge and belief, ---(name of offeror)---
has filed the Federal
tax returns required during the three years preceding this certification, has
not been convicted of a criminal offense under the Internal revenue Code of
1986, and has not, more than 90 days prior to certification, been notified of
any unpaid Federal tax assessment for which the liability remains unsatisfied,
unless the assessment is the subject of an installment agreement or offer in
compromise that has been approved by the Internal Revenue Service and is not in
default, or the assessment is the subject of a non-frivolous administrative or
judicial proceeding.
Firm _____________________________________________
Signature
_________________________________________
Name
____________________________________________
Title
_____________________________________________
Date of execution
__________________________________
(End of Provision)
Class
Deviation – Prohibition against Contracting with Corporations that have an
Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law.
1852.209-75
Representation by Corporations Regarding an Unpaid Delinquent Tax Liability or
a Felony Conviction under any Federal Law.
REPRESENTATION
BY CORPORATIONS REGARDING AN UNPAID DELINQUENT TAX LIABILITY OR A FELONY
CONVICTION UNDER ANY FEDERAL LAW (DEVIATION FEB 2012)
(a)
In
accordance with sections 544 and 543 of The Consolidated and Further
Continuing Appropriation Act of 2012 (Pub. L.112-55), none of the funds made
available by that Act may be used to enter into a contract with any corporation
that-
(1)
Has any unpaid Federal tax liability
that has been assessed, for which all judicial and administrative remedies have
been exhausted or have lapsed, and that is not being paid in a timely manner
pursuant to an agreement with the authority responsible for collecting the tax
liability, where the awarding agency is aware of the unpaid tax liability,
unless the agency has considered suspension or debarment of the corporation and
made a determination that this action is not necessary to protect the interests
of the Government; or
(2)
Was convicted (or had an officer or
agent of such corporation acting on behalf of the corporation convicted) of a
felony criminal violation under any Federal law within the preceding 24 months,
where the awarding agency is aware of the conviction, unless the agency has
considered suspension or debarment of the corporation and made a determination
that this action is not necessary to protect the interests of the Government.
(b) The offeror
represents that –
(1)
It
is [
] is not [ ]
a corporation that has had any unpaid Federal tax liability that has
been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner
pursuant to an agreement with the authority responsible for collecting the tax
liability; and
(2)
It is
[ ] is not
[ ] a corporation that was convicted, or had an
officer or agent acting on behalf of the corporation convicted, of a felony
criminal violation under a Federal law within the preceding 24 months.
(End of provision)