04-05

Procurement Notice


June 21, 2005

CONTRACTOR ACCESS TO SENSITIVE INFORMATION

BACKGROUND:  This PN revises the NASA FAR Supplement (NFS) to provide policy and procedures on how NASA will acquire services to support management activities and administrative functions, when performing those services requires the contractor to have access to sensitive information submitted by other contractors. NASA’s increased use of contractors to support management activities and administrative functions, coupled with implementing Agency-wide electronic information systems, requires establishing consistent procedures for protecting sensitive information from unauthorized use or disclosure. 

 

ACQUISITIONS AFFECTED BY CHANGES:  This PN prescribes two new NFS clauses to implement a self-executing system of policies and procedures.  The first clause at 1852.237-72, Access to Sensitive Information, goes into all solicitations and contracts for services to allow access to sensitive information needed to support NASA’s management activities and administrative functions.  The second clause at 1852.237-73, Release of Sensitive Information, goes into all solicitations and contracts, and notifies offerors and contractors that NASA may, subject to the enumerated procedures, protections, and safeguards mandated by the “Access” clause at 1852-237-72, release their sensitive information to service providers that support NASA activities and functions. 

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  All solicitations for services that will entail access to sensitive information shall require each offeror to submit a preliminary analysis of possible organizational conflicts of interest that might flow from the award of a contract to that particular service provider.  The contracting officer, with advice from Center counsel, shall review each preliminary analysis for completeness and identify to that potential service provider all substantive weaknesses and omissions for necessary correction.  After selection, the contracting officer shall negotiate a comprehensive organizational conflicts of interest plan with the successful offeror for incorporation into the awarded contract as a compliance document.  

 

During performance, the contracting officer, with Center counsel, shall evaluate all claims that any information requested by the service provider is “sensitive.”  The owning contractor must be able to cite specific, factual, and convincing support for this type of claim.  If the owner provides this level of support and no other reasonable grounds exist to challenge the owner’s claim, NASA and its service providers and their employees shall comply with all of the protections and safeguards delineated in the “Access” clause.    

 

Service providers are also likely to need information, which NASA received under contracts that did not contain the “Release” clause.  Contracting officers should be proactive in getting service providers access to this type of information by contacting companies with open contracts and urging them to accept the Release” clause through administrative contract modifications.  For contractors that resist incorporating the new clause, the NFS revisions provide contracting officers more extensive guidance.

 

CLAUSE CHANGES:  Clauses 1852.237-72 and 1852.237-73 are added.

 

PARTS AFFECTED:  Changes are made in Parts 1809, 1837, and 1852.

 

REPLACEMENT PAGES:  You may use the enclosed pages to replace 9:1, 9:2, 9:5, 9:6, 9:7, Part 1837, 52:3 thru 52:10, 52:87, 52:88, 52:88.1, 52:88.2, 52:88.3, and 52-121 thru 52-123 of the NFS.

 

TYPE OF RULE AND PUBLICATION DATE:  The PN was published as a final rule in the Federal Register (70 FR 35549 - 35556) on June 21, 2005.  This PN also adds guidance to the NFS that does not have a significant effect beyond NASA’s internal operating procedures or a significant cost or administrative impact on contractor or offerors

 

HEADQUARTERS CONTACT:  David Forbes, Office of Procurement, Contract Management Division, (202) 358-2051, email: David.P.Forbes@nasa.gov.

 

 

Jim Balinskas

Director, Contract Management Division

 

Enclosures

 



PART 1809

CONTRACTOR QUALIFICATIONS

TABLE OF CONTENTS

 

SUBPART     1809.1              RESPONSIBLE PROSPECTIVE CONTRACTORS

1809.104-4                              Subcontract responsibility.

1809.106                                  Preaward surveys.

1809.106-1                              Conditions for preaward surveys.

1809.106-2                              Requests for preaward surveys.

1809.106-3                              Interagency preaward surveys.

1809.106-70                            Preaward surveys performed by NASA installations.

 

SUBPART     1809.2              QUALIFICATIONS REQUIREMENTS

1809.200                                  Scope of subpart.

1809.202                                  Policy.

1809.203                                 QPL's, QML's, and QBL's.

1809.203-70                           General.

1809.203-71                           Waiver of qualification requirements.

1809.206                                 Acquisitions subject to qualification requirements.

1809.206-1                             General.

1809.206-70                           Small businesses.

1809.206-71                           Contract clause.

 

SUBPART      1809.4             DEBARMENT, SUSPENSION, AND INELIGIBILITY

1809.403                                 Definitions.

1809.404                                 List of Parties Excluded from Federal Procurement and

                                               Nonprocurement programs.

1809.405                                 Effect of listing.

1809.405-1                             Continuation of current contracts.

1809.405-2                             Restrictions on subcontracting.

1809.406                                 Debarment.

1809.406-3                             Procedures.

1809.407                                 Suspension.

1809.407-3                             Procedures.

1809.408                                 Certification regarding debarment, suspension, proposed

                                                  debarment, and other responsibility matters.

1809.470                                 Reporting of suspected evasive actions and causes for debarment  

                                                    or suspension.

1809.470-1                             Situations requiring reports.

1809.470-2                             Contents of reports.

1809.470-3                             Addresses and copies of reports.

 

SUBPART     1809.5             ORGANIZATIONAL AND CONSULTANT CONFLICTS

                                                 OF INTEREST

1809.500                                  Scope of subpart.

1809.503                                  Waiver.

1809.505-4                              Obtaining access to sensitive information.

1809.506                                  Procedures.

1809.507                                  Solicitation provisions and contract clause.

1809.507-2                             Contract clause.

 

SUBPART     1809.6             CONTRACTOR TEAM ARRANGEMENTS

1809.670                                 Contract clause.

 

 

PART 1809

                                               CONTRACTOR QUALIFICATIONS

 

Subpart 1809.1--Responsible Prospective Contractors

 

1809.104-4 Subcontractor responsibility.

   Generally, the Canadian Commercial Corporation's (CCC) proposal of a firm as its subcontractor is sufficient basis for an affirmative determination of responsibility.  However, when the CCC determination of responsibility is not consistent with other information available to the contracting office, the contracting officer shall request from the CCC and any other sources whatever information is necessary to make the responsibility determination.  Upon request, CCC shall be furnished the rationale for any subsequent determination of nonresponsibility.

 

1809.106 Preaward surveys.

 

1809.106-1 Conditions for preaward surveys.

   (a)(i)  Preaward surveys are used only to assist the contracting officer to make determinations of responsibility under FAR 9.104.  They are not to be used to obtain information useful to proposal evaluation that does not directly relate to the responsibility determination.  Accordingly, preaward surveys shall not be used except in rare circumstances when determination of responsibility cannot be made without the specific information that can be provided only in a preaward survey report and only after all other means of obtaining the required information have been explored.

         (ii)  Surveys shall not be performed for companies of any size performing study or research contracts.

         (iii) The procurement officer shall approve all preaward survey requests.

 

1809.106-2 Requests for preaward surveys.

   (a)  The "Walsh-Healey Public Contracts Act" block of Section I is for information purposes only.  If information is needed for a determination on the offeror's eligibility under the Walsh-Healey Act, it must be specifically requested in block 20.H. of Section III.

 

1809.106-3 Interagency preaward surveys.



1809.405-2 Restrictions on subcontracting.

   (a)  Approval of consent to subcontract shall be requested in accordance with 1809.405. 

 

1809.406 Debarment.

 

1809.406-3 Procedures.

   (a)  The report required by FAR 9.406-3(a) shall be prepared in accordance with 1809.470.

 

1809.407 Suspension.

 

1809.407-3 Procedures.

   (a)  Reports shall be prepared in accordance with 1809.470.

 

1809.408 Certification regarding debarment, suspension, proposed debarment, and other    responsibility matters.

   (a)(2)(A) If the offeror indicates that it has been indicted, charged, convicted, or had a civil judgment rendered against it, the contracting officer shall immediately notify the Assistant Administrator for Procurement (Code HK), providing details as known, and shall await a response before awarding the contract.

             (B) If the offeror discloses information that indicates a need for a debarment or suspension determination, the contracting officer shall report the facts to the Assistant Administrator for Procurement (Code HK) in accordance with 1809.470.

 

1809.470 Reporting of suspected evasive actions and causes for debarment or suspension.

 

1809.470-1 Situations requiring reports.

   A report incorporating the information required by 1809.470-2 of this subpart shall be forwarded by the procurement officer to the Assistant Administrator for Procurement (Code HK) when a contractor:

   (a)  Has committed, or is suspected of having committed, any of the acts described in FAR 9.406-2 and 9.407-2; or

   (b)  Is suspected of attempting to evade the prohibitions of a debarment or suspension imposed under the FAR by changes of address, multiple addresses, formation of new companies, or other devices.

 

1809.470-2 Contents of reports.

   Each report shall be coordinated with local counsel and shall include substantially the following information, if available:

   (a)  Name and address of the contractor.

   (b)  Names of the principal officers, partners, owners, or managers.

   (c)  All known affiliates, subsidiaries, or parent firms, and the nature of the affiliation.

   (d)  A description of the contract or contracts concerned, including the contract number and office identifying numbers or symbols, the amount of each contract, the amounts paid the contractor and still due, and the percentage of work completed and to be completed.

   (e)  The status of vouchers.

   (f)   Whether the contract has been assigned pursuant to the Assignment of Claims Act, and, if so, the name and address of the assignee and a copy of the assignment.

   (g)  Whether any other contracts are outstanding with the contractor or any affiliates, and, if so, their amount, whether they are assigned pursuant to the Assignment of Claims Act, and the amounts paid or due on them.

   (h)  A complete summary of all pertinent evidence.  If a request for debarment or suspension is based on an indictment or a conviction, provide the evidence upon which the indictment or conviction is based.

   (i)   An estimate of any damages, sustained by the Government as a result of the contractor's action, including an explanation of the method used in making the estimate.

   (j)   Recommendation as to (1) whether the contractor should be suspended or debarred, (2) whether any limitations should be applied to such action, (3) whether current contracts should be terminated, and (4) the period of any debarment.

   (k)  As an enclosure, a copy of the contract(s) or pertinent excerpts, appropriate exhibits, testimony or statements of witnesses, copies of assignments, and other relevant documentation.

 

1809.470-3 Addresses and copies of reports.

   Reports, including enclosures, shall be submitted to the Office of  Procurement (Code HK), with an additional copy to the Headquarters Office of General Counsel (Code G).

 

Subpart 1809.5--Organizational and Consultant Conflicts of Interest

 

1809.500 Scope of subpart.

   The Assistant Administrator for Procurement has authorized the procurement officer to take those actions reserved in FAR Subpart 9.5 for the head of the contracting activity.  However, see 1809.503 regarding waivers.

 

1809.503 Waiver.

   The Administrator has designated the Assistant Administrator for Procurement as the approval authority for waivers under FAR 9.503.  The procurement officer shall forward requests for waivers under FAR 9.503 to the Assistant Administrator for Procurement (Code HS) for action.

 

1809.505-4 Obtaining access to sensitive information.

   (b) In accordance with FAR 9.503, the Assistant Administrator for Procurement has determined that it would not be in the Government’s interests for NASA to comply strictly with FAR 9.505-4(b) when acquiring services to support management activities and administrative functions.  The Assistant Administrator for Procurement has, therefore, waived the requirement that before gaining access to other companies’ proprietary or sensitive (see 1837.203-70) information contractors must enter specific agreements with each of those other companies to protect their information from unauthorized use or disclosure.  Accordingly, NASA will not require contractors and subcontractors and their employees in procurements that support management activities and administrative functions to enter into separate, interrelated third party agreements to protect sensitive information from unauthorized use or disclosure.  As an alternative to numerous, separate third party agreements, 1837.203-70 prescribes detailed policy


and procedures to protect contractors from unauthorized use or disclosure of their sensitive information.  Nothing in this section waives the requirements of FAR 37.204 and 1837.204.

 

1809.506 Procedures.

   (b)  The approving official is the procurement officer when the installation has source selection authority and the Assistant Administrator for Procurement (Code HS) when NASA Headquarters has that authority.

 

1809.507 Solicitation provisions and contract clause.

 

1809.507-2 Contract clause.

   The contracting officer may insert a clause substantially the same as the clause at 1852.209-71, Limitation of Future Contracting, in solicitations and contracts.

 

Subpart 1809.6--Contractor Team Arrangements

 

1809.670 Contract clause.

   The contracting officer shall insert the clause at 1852.209-72, Composition of the Contractor, in all construction invitations for bids and resulting contracts.  The clause may be used in other solicitations and contracts to clarify a contractor team arrangement where the prime contractor consists of more than one legal entity, such as a joint venture.



PART 1837

SERVICE CONTRACTING

 

TABLE OF CONTENTS

 

SUBPART      1837.1            SERVICE CONTRACTS--GENERAL

1837.101                                 Definitions.

1837.104                                 Personal services contracts.

1837.110                                 Solicitation provisions and contract clauses.

1837.110-70                            NASA solicitation provision and contract clauses.

1837.170                                 Pension portability.

 

SUBPART     1837.2             ADVISORY AND ASSISTANCE SERVICES

1837.203                                 Policy.

1837.203-70                            Providing contractors access to sensitive information. 

1837.203-71                            Release of contractors’ sensitive information.

1837.203-72                            NASA contract clauses.  

1837.204                                 Guidelines for determining availability of personnel.

 

 

PART 1837

SERVICE CONTRACTING

 

   Subpart 1837.1--Service Contracts--General

 

1837.101 Definitions.

   “Pension portability” means the recognition and continuation in a successor service contract of the predecessor service contract employees' pension rights and benefits.

 

1837.104 Personal services contracts. 

   (b) Section 203(c)(9) of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2473(c)(9)) authorizes NASA "to obtain services as authorized by Section 3109 of Title 5, United States Code." It is NASA policy to obtain the personal services of experts and consultants by appointment rather than by contract.  The policies, responsibilities, and procedures pertaining to the appointment of experts and consultants are in NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 4, Employment of Experts and Consultants.

 

1837.110 Solicitation provisions and contract clauses.

 

1837.110-70 NASA solicitation provision and contract clauses.

   (a) The contracting officer shall insert the clause at 1852.237-70, Emergency Evacuation Procedures, in solicitations and contracts for on-site support services where emergency evacuations of the NASA installation may occur, e.g., snow, hurricanes, tornadoes, earthquakes, or other emergencies.

   (b)     The contracting officer shall insert the clause at 1852.237-71, Pension Portability, in solicitations, contracts or negotiated contract modifications for additional work when the procurement officer makes the determination in 1837.170(a)(2).

 

1837.170 Pension portability. 

   (a) It is NASA's policy not to require pension portability in service contracts.  However, pension portability requirements may be included in solicitations, contracts, or contract modifications for additional work under the following conditions:

       (1)(i) There is a continuing need for the same or similar services for a minimum of five years (inclusive of options), and, if the contractor changes, a high percentage of the predecessor contractor's employees are expected to remain with the program; or

            (ii) The employees under a predecessor contract were covered by a portable pension plan, a follow-on contract or a contract consolidating existing services is awarded, and the total contract period covered by the plan covers a minimum of five years (including both the predecessor and successor contracts); and     

       (2) The procurement officer determines in writing, with full supporting rationale, that such a requirement is in the Government's best interest.  The procurement officer shall maintain a record of all such determinations.  

   (b)     When pension portability is required, the plan shall comply with the requirements of the clause at 1852.237-71, Pension Portability, (see 1837.110-70(b)), and the contract shall also include a clear description of the plan, including service, pay, liabilities, vesting, termination, and benefits from prior contracts.

 

Subpart 1837.2--Advisory and Assistance Services

 

1837.203 Policy.

   (c) Advisory and assistance services of individual experts and consultants shall normally be obtained by appointment rather than by contract (see NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 4, Employment of Experts and Consultants).

 

1837.203-70 Providing contractors access to sensitive information. 

   (a)(1) As used in this subpart, “sensitive information” refers to information that the contractor has developed at private expense or that the Government has generated that qualifies for an exception to the Freedom of Information Act, which is not currently in the public domain, may embody trade secrets or commercial or financial information, and may be sensitive or privileged, the disclosure of which is likely to have either of the following effects: (1) to impair the Government’s ability to obtain this type of information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.  The term is not intended to resemble the markings of national security documents as in sensitive-secret-top secret.

            (2) As used in this subpart, “requiring organization” refers to the NASA organizational element or activity that requires specified services to be provided.

            (3) As used in this subpart, “service provider” refers to the service contractor that receives sensitive information from NASA to provide services to the requiring organization.
 (b)(1) To support management activities and administrative functions, NASA relies on numerous service providers.  These contractors may require access to sensitive information in the Government’s possession, which may be entitled to protection from unauthorized use or disclosure.

       (2) As an initial step, the requiring organization shall identify when needed services may entail access to sensitive information and shall determine whether providing access is necessary for accomplishing the Agency’s mission.  The requiring organization shall review any service provider requests for access to information to determine whether the access is necessary and whether the information requested is considered “sensitive” as defined in paragraph (a)(1) of this section.

 (c) When the requiring organization determines that providing specified services will entail access to sensitive information, the solicitation shall require each potential service provider to submit with its proposal a preliminary analysis of possible organizational conflicts of interest that might flow from the award of a contract.  After selection, or whenever it becomes clear that performance will necessitate access to sensitive information, the service provider must submit a comprehensive organizational conflicts of interest avoidance plan.

 (d) This comprehensive plan shall incorporate any previous studies performed, shall thoroughly analyze all organizational conflicts of interest that might arise because the service provider has access to other companies’ sensitive information, and shall establish specific methods to control, mitigate, or eliminate all problems identified.  The contracting officer, with advice from Center counsel, shall review the plan for completeness and identify to the service provider substantive weaknesses and omissions for necessary correction.  Once the service provider has corrected the substantive weaknesses and omissions, the contracting officer shall incorporate the revised plan into the contract, as a compliance document. 

 (e) If the service provider will be operating an information technology system for NASA that contains sensitive information, the operating contract shall include the clause at 1852.204-76, Security Requirements for Unclassified Information Technology Resources, which requires the implementation of an Information Technology Security Plan to protect information processed, stored, or transmitted from unauthorized access, alteration, disclosure, or use. 

 (f) NASA will monitor performance to assure any service provider that requires access to sensitive information follows the steps outlined in the clause at 1852.237-72, Access to Sensitive Information, to protect the information from unauthorized use or disclosure.

 

1837.203-71 Release of contractors’ sensitive information.

 Pursuant to the clause at 1852.237-73, Release of Sensitive Information, offerors and contractors agree that NASA may release their sensitive information when requested by service providers in accordance with the procedures prescribed in 1837.203-70 and subject to the safeguards and protections delineated in the clause at 1852.237-72, Access to Sensitive Information.  As required by the clause at 1852.237-73, or other contract clause or solicitation provision, contractors must identify information they claim to be “sensitive” submitted as part of a proposal or in the course of performing a contract.  The contracting officer shall evaluate all contractor claims of sensitivity in deciding how NASA should respond to requests from service providers for access to information.

 

1837.203-72 NASA contract clauses.

  (a) The contracting officer shall insert the clause at 1852.237-72, Access to Sensitive Information, in all solicitations and contracts for services that may require access to sensitive information belonging to other companies or generated by the Government.

  (b) The contracting officer shall insert the clause at 1852.237-73, Release of Sensitive Information, in all solicitations, contracts, and basic ordering agreements.

 

1837.204  Guidelines for determining availability of personnel.

   (a)(i)  Outside peer review evaluators may be used to evaluate SBIR, STTR, NRA, AO, and unsolicited proposals without making the determination of non-availability.

       (ii) For all other actions, the NASA official one level above the NASA program official responsible for the evaluation shall make the determination, with the concurrence of the legal office.  The contracting officer shall ensure that a copy of the determination is in the contract file prior to issuance of a solicitation. 

   (b) The official designated in paragraph (a)(ii) of this section is responsible for the actions required in FAR 37.204(b).

   (c) The agreement shall be made by the program official responsible for the evaluation and the contracting officer.

   (e) The Assistant Administrator for Procurement (Code HS) is the approval authority for class determinations.  The class determination request shall include the assessment required by FAR 37.204(b).



1852.228-80                                     Insurance — Immunity From Tort Liability.

1852.228-81                                     Insurance — Partial Immunity From Tort Liability.

1852.228-82                                     Insurance — Total Immunity From Tort Liability.

1852.231-70                                     Precontract Costs.

1852.231-71                                     Determination of Compensation Reasonableness.

1852.232-70                                     NASA Modification of FAR 52.232-12.

1852.232-77                                     Limitation of Funds (Fixed-Price Contract).

1852.232-79                                     Payment for On-Site Preparatory Costs.

1852.232-81                                     Contract Funding.

1852.232-82                                     Submission of Requests for Progress Payments.

1852.233-70                                     Protests to NASA.

1852.235-70                                     Center for AeroSpace Information Technical Reports.

1852.235-71                                     Key Personnel and Facilities.

1852.235-72                                     Instructions for Responding to NASA Research Announcements.

1852.235-73                                     Final Scientific and Technical Reports.

1852.235-74                                     Additional Reports of Work -- Research and Development.

1852.236-71                                     Additive or Deductive Items.

1852.236-72                                     Bids with Unit Prices.

1852.236-73                                     Hurricane Plan.

1852.236-74                                     Magnitude of Requirement.

1852.236-75                                     Partnering for Construction Contracts.

1852.237-70                                     Emergency Evacuation Procedures.

1852.237-71                                     Pension Portability.

1852.237-72                                     Access to Sensitive Information. 

1852.237-73                                     Release of Sensitive Information.

1852.239-70                                     Alternate Delivery Points.

1852.241-70                                     Renewal of Contract.

1852.242-70                                     Technical Direction.

1852.242-71                                     Travel Outside of the United States.

1852.242-72                                     Observance of Legal Holidays.

1852.242-73                                     NASA Contractor Financial Management Reporting.

1852.242-74                                     Notice of Earned Value Management System.

1852.242-75                                     Earned Value Management System.

1852.242-76                                     Modified Cost Performance Report.

1852.242-77                                     Modified Cost Performance Report Plans.

1852.242-78                                     Emergency Medical Services and Evacuation.

1852.243-70                                     Engineering Change Proposals.

1852.243-71                                     Shared Savings.

1852.243-72                                     Equitable Adjustments.

1852.244-70                                     Geographic Participation in the Aerospace Program.

1852.245-70                                     Contractor Requests for Government-Owned Equipment.

1852.245-71                                     Installation-Accountable Government Property.

1852.245-72                                     Liability for Government Property Furnished for Repair or

  Other Services.

1852.245-73                                     Financial Reporting of NASA Property in the Custody of Contractors.

1852.245-74                                     Contractor Accountable On-Site Government Property.

1852.245-75                                     Title to Equipment.

1852.245-76                                     List of Government-Furnished Property.

1852.245-77                                     List of Installation-Accountable Property and Services.

1852.245-79                                     Use of Government-Owned Property.

1852.245-80                                     Use of Government Production and Research Property on a No-Charge Basis.

1852.246-70                                     Mission Critical Space System Personnel Reliability  

                                                             Program.

1852.246-71                                     Government Contract Quality Assurance.

1852.246-72                                     Material Inspection and Receiving Report.

1852.246-73                                     Human Space Flight Item.

1852.247-71                                     Protection of the Florida Manatee.

1852.247-72                                     Advance Notice of Shipment.

1852.247-73                                     Bills of Lading.

1852.249-72                                     Termination (Utilities).

 

SUBPART               1852.3             PROVISION AND CLAUSE MATRIX

1852.300                                           Scope of Subpart.

1852.301                                           Solicitation Provisions and Contract Clauses (Matrix).

 

 

PART 1852

SOLICITATION PROVISIONS AND CONTRACT CLAUSES

 

1852.000 Scope of part.

  This part, in conjunction with FAR Part 52, (a) sets forth the provisions and clauses prescribed in the NFS, (b) gives instructions for their use, and (c) presents a matrix listing the provisions and clauses applicable to each principal contract type and/or purpose (e.g., fixed-price supply, cost-reimbursement research and development).

 

Subpart 1852.1--Instructions for Using Provisions and Clauses

 

1852.101 Using Part 52.

  (b)(2)(i)(B) NASA contracting offices prescribing or developing clauses shall ensure that the requirements of Subpart 1801.3 are met.

  (e)(1) The NFS matrix in Subpart 1852.3 is formatted similarly to that in the FAR.  The first page of the NFS matrix contains a key to column headings, a dollar threshold chart, and requirement symbols.  To fully determine the applicability of a provision or clause in the "required-when-applicable" and "optional" categories, Contracting Officers shall refer to the NFS text (cited in the matrix) that prescribes its use.

       (4) The NFS matrix may be reproduced by field installations for the purpose of supplementing it with installation-developed provisions and clauses.

 

1852.103 Identification of provisions and clauses.

  (b) Provisions and clauses prescribed by a field installation to satisfy its needs shall be identified as stated in paragraphs (b)(i) and (ii) of this section.  Articles, formats, and similar language shall be treated as provisions and clauses for purposes of this section 1852.103.

     (i) A provision or clause shall be numbered using a prefix, a base, and a suffix.  The prefix shall be an alphabetical abbreviation of the installation name (e.g., ARC, DFRC, GRC, GSFC, JSC, KSC, LARC, MSFC, SSC, or SSPO).  The base shall be a numeric value beginning with "52.2," with the next two digits corresponding to the number of the FAR or NFS subject part to which the provision or clause relates.  The suffix shall be a hyphen and sequential number assigned within each part.  NASA installations shall use suffix numbers from -90 to -199.  For example, the first Johnson Space Center (JSC) provision or clause relating to Part 36 of the FAR or NFS shall be JSC 52.236-90, the second JSC 52.236-91, and so forth.  Provisions and clauses shall be dated in accordance with FAR 52.101(f).

      (ii) Contracting officers shall identify provisions and clauses as in the following examples:

        (A) I.2 BID ENVELOPES (GSFC 52.214-90) (AUGUST 1987) This example is applicable when identifying the title of provisions and clauses in solicitations and contracts using the uniform contract format (UCF).  The first number ("I.2") designates the UCF section and the sequential clause within that section.  "GSFC 52.214-90" specifies the clause number.

           (B) GSFC 52.214-90--Bid Envelopes (AUGUST 1987) This example is applicable in all instances in which the provision or clause citation is not associated with the UCF number.

  (c) Contracting officers shall not number provisions and clauses developed for individual acquisitions only.  For example, "F.3 Delivery Procedures for Special Hardware" cites the third clause in Section F of a contract using the UCF, but has no clause number or date identified with it, indicating that the clause was developed for the particular contract it appears in.

 

1852.103-70 Identification of modified provisions and clauses.

  When a FAR clause or provision is included in a solicitation or contract and the NFS prescribes a modification, the title line shall identify the modification as shown below. This format shall be used both for incorporation by reference and when using full text.

 

    "52.232-28 Electronic Funds Transfer Payment Methods (APR 1989)--as modified by NASA FAR Supplement 1832.908(a)"

 

1852.104 Procedures for modifying and completing provisions and clauses.

  NFS provisions and clauses shall not be modified unless authorized by the NFS.  When authorized, contracting officers must comply with the procedures in FAR 52.104.

 

Subpart 1852.2--Text of Provisions and Clauses

 

1852.203-70 Display of Inspector General Hotline Posters.

  As prescribed in 1803.7001, insert the following clause:

DISPLAY OF INSPECTOR GENERAL HOTLINE POSTERS

(JUNE 2001)

  (a)  The Contractor shall display prominently in common work areas within business segments performing work under this contract, Inspector General Hotline Posters available under paragraph (b) of this clause.

   (b) Inspector General Hotline Posters may be obtained from NASA Office of Inspector General, Code W, Washington, DC, 20546-0001, (202) 358-1220.

(End of clause)

 

1852.204-75 Security Classification Requirements.

  As prescribed in 1804.404-70, insert the following clause:

SECURITY CLASSIFICATION REQUIREMENTS

(SEPTEMBER 1989)

  Performance under this contract will involve access to and/or generation of classified information, work in a security area, or both, up to the level of                             [insert the applicable security clearance level].  See Federal Acquisition Regulation clause 52.204-2 in this contract and DD Form 254, Contract Security Classification Specification, Attachment       [Insert the attachment number of the DD Form 254].

(End of clause)

 

1852.204-76 Security Requirements for Unclassified Information Technology Resources.

  As prescribed in 1804.470-4, insert a clause substantially as follows:

SECURITY REQUIREMENTS FOR UNCLASSIFIED

INFORMATION TECHNOLOGY RESOURCES

(NOVEMBER 2004)

  (a) The Contractor shall be responsible for Information Technology security for all systems connected to a NASA network or operated by the Contractor for NASA, regardless of location. This clause is applicable to all or any part of the contract that includes information technology resources or services in which the Contractor must have physical or electronic access to NASA’s sensitive information contained in unclassified systems that directly support the mission of the Agency. This includes information technology, hardware, software, and the management, operation, maintenance, programming, and system administration of computer systems, networks, and telecommunications systems.   Examples of tasks that require security provisions include:

      (1) Computer control of spacecraft, satellites, or aircraft or their payloads;

      (2) Acquisition, transmission or analysis of data owned by NASA with significant replacement cost should the contractor’s copy be corrupted; and

      (3) Access to NASA networks or computers at a level beyond that granted the general public, e.g. bypassing a firewall.

   (b) The Contractor shall provide, implement, and maintain an IT Security Plan.  This plan shall describe the processes and procedures that will be followed to ensure appropriate security of IT resources that are developed, processed, or used under this contract.  The plan shall describe those parts of the contract to which this clause applies. The Contractor’s IT Security Plan shall be compliant with Federal laws that include, but are not limited to, the Computer Security Act of 1987 (40 U.S.C. 1441 et seq.) and the Government Information Security Reform Act of 2000. The plan shall meet IT security requirements in accordance with Federal and NASA policies and procedures that include, but are not limited to:

      (1) OMB Circular A-130, Management of Federal Information Resources, Appendix III,

Security of Federal Automated Information Resources;

      (2) NASA Procedures and Guidelines (NPR) 2810.1, Security of Information Technology; and

      (3) Chapter 3 of NPR 1620.1, NASA Security Procedural Requirements.

  (c) Within ____days after contract award, the contractor shall submit for NASA approval an IT Security Plan.  This plan must be consistent with and further detail the approach contained in the offeror's proposal or sealed bid that resulted in the award of this contract and in compliance with the requirements stated in this clause.  The plan, as approved by the Contracting Officer, shall be incorporated into the contract as a compliance document.

  (d)(1) Contractor personnel requiring privileged access or limited privileged access to systems operated by the Contractor for NASA or interconnected to a NASA network shall be screened at an appropriate level in accordance with NPR 2810.1, Section 4.5; NPR 1620.1, Chapter 3; and paragraph (d)(2) of this clause. Those Contractor personnel with non-privileged access do not require personnel screening. NASA shall provide screening using standard personnel screening National Agency Check (NAC) forms listed in paragraph (d)(3) of this clause, unless contractor screening in accordance with paragraph (d)(4) is approved. The Contractor shall submit the required forms to the NASA Center Chief of Security (CCS) within fourteen (14) days after contract award or assignment of an individual to a position requiring screening.  The forms may be obtained from the CCS. At the option of the government, interim access may be granted pending completion of the NAC.

      (2) Guidance for selecting the appropriate level of screening is based on the risk of adverse impact to NASA missions.  NASA defines three levels of risk for which screening is required (IT-1 has the highest level of risk):

(i)  IT-1 -- Individuals having privileged access or limited privileged access to systems whose misuse can cause very serious adverse impact to NASA missions. These systems include, for example, those that can transmit commands directly modifying the behavior of spacecraft, satellites or aircraft.

(ii) IT-2 -- Individuals having privileged access or limited privileged access to systems whose misuse can cause serious adverse impact to NASA missions. These systems include, for example, those that can transmit commands directly modifying the behavior of payloads on spacecraft, satellites or aircraft; and those that contain the primary copy of “level 1” data whose cost to replace exceeds one million dollars.

(iii) IT-3 -- Individuals having privileged access or limited privileged access to systems whose misuse can cause significant adverse impact to NASA missions. These systems include, for example, those that interconnect with a NASA network in a way that exceeds access by the general public, such as bypassing firewalls; and systems operated by the contractor for NASA whose function or data has substantial cost to replace, even if these systems are not interconnected with a NASA network.

      (3) Screening for individuals shall employ forms appropriate for the level of risk as follows:

(i) IT-1:  Fingerprint Card (FC) 258 and Standard Form (SF) 85P, Questionnaire for Public Trust Positions; 

(ii) IT-2:  FC 258 and SF 85, Questionnaire for Non-Sensitive Positions; and

           (iii) IT-3:  NASA Form 531, Name Check, and FC 258.

      (4) The Contracting Officer may allow the Contractor to conduct its own screening of individuals requiring privileged access or limited privileged access provided the Contractor can demonstrate that the procedures used by the Contractor are equivalent to NASA's personnel screening procedures.  As used here, equivalent includes a check for criminal history, as would be conducted by NASA, and completion of a questionnaire covering the same information as would be required by NASA.

      (5) Screening of contractor personnel may be waived by the Contracting Officer for those individuals who have proof of --

            (i) Current or recent national security clearances (within last three years);

            (ii) Screening conducted by NASA within last three years; or

            (iii) Screening conducted by the Contractor, within last three years, that is equivalent to the NASA personnel screening procedures as approved by the Contracting Officer under paragraph (d)(4) of this clause.

  (e) The Contractor shall ensure that its employees, in performance of the contract, receive annual IT security training in NASA IT Security policies, procedures, computer ethics, and best practices in accordance with NPR 2810.1, Section 4.3 requirements.  The contractor may use web-based training available from NASA to meet this requirement.

 (f) The Contractor shall afford NASA, including the Office of Inspector General, access to the Contractor’s and subcontractors’ facilities, installations, operations, documentation, databases and personnel used in performance of the contract. Access shall be provided to the extent required to carry out a program of IT inspection, investigation and audit to safeguard against threats and hazards to the integrity, availability and confidentiality of NASA data or to the function of computer systems operated on behalf of NASA, and to preserve evidence of computer crime.

  (g) The Contractor shall incorporate the substance of this clause in all subcontracts that meet the conditions in paragraph (a) of this clause.

 (End of clause)

 

1852.208-81 Restrictions on Printing and Duplicating.

  As prescribed in 1808.870, insert the following clause:

RESTRICTIONS ON PRINTING AND DUPLICATING

(NOVEMBER 2004)

  (a) The Contractor may duplicate or copy any documentation required by this contract in accordance with the provisions of the Government Printing and Binding Regulations, No. 26, S. Pub 101-9, U.S. Government Printing Office, Washington, DC, 20402, published by the Joint Committee on Printing, U.S. Congress.

  (b) The Contractor shall not perform, or procure from any commercial source, any printing in connection with the performance of work under this contract.  The term "printing" includes the processes of composition, platemaking, presswork, duplicating, silk screen processes, binding, microform, and the end items of such processes and equipment.

  (c) The Contractor is authorized to duplicate or copy production units provided the requirement does not exceed 5,000 production units of any one page or 25,000 units in the aggregate of multiple pages.  Such pages may not exceed a maximum image size of 10-3/4 by 14-1/4 inches.  A "production unit" is one sheet, size 8-1/2 x 11 inches (215 x 280 mm), one side only, and one color ink.

  (d) This clause does not preclude writing, editing, preparation of manuscript copy, or preparation of related illustrative material as a part of this contract, or administrative duplicating/copying (for example, necessary forms and instructional materials used by the Contractor to respond to the terms of the contract).

  (e) Costs associated with printing, duplicating, or copying in excess of the limits in paragraph (c) of this clause are unallowable without prior written approval of the Contracting Officer.  If the Contractor has reason to believe that any activity required in fulfillment of the contract will necessitate any printing or substantial duplicating or copying, it immediately shall provide written notice to the Contracting Officer and request approval prior to proceeding with the activity.  Requests will be processed by the Contracting Officer in accordance with the provisions of the Government Printing and Binding Regulations, NFS 1808.802, and NPR 1490.5, NASA Procedural Requirements for Printing, Duplicating, and Copying Management.

  (f) The Contractor shall include in each subcontract which may involve a requirement for any printing, duplicating, and copying in excess of the limits specified in paragraph (c) of this clause, a provision substantially the same as this clause, including this paragraph (f).

(End of clause)

 

1852.209-70 Product Removal from Qualified Products List.

  As prescribed in 1809.206-71, insert the following clause:

PRODUCT REMOVAL FROM QUALIFIED PRODUCTS LIST

(DECEMBER 1988)

  If, during the performance of this contract, the product being furnished is removed from the Qualified Products List for any reason, the Government may terminate the contract for Default pursuant to the default clause of the contract.

                                                                  (End of clause)

 

1852.209-71 Limitation of Future Contracting.

  As prescribed in 1809.507-2, the contracting officer may insert a clause substantially as follows in solicitations and contracts, in compliance with FAR 9.507-2:

LIMITATION OF FUTURE CONTRACTING

(DECEMBER 1988)

  (a) The Contracting Officer has determined that this acquisition may give rise to a potential organizational conflict of interest.  Accordingly, the attention of prospective offerors is invited to FAR Subpart 9.5--Organizational Conflicts of Interest.

  (b) The nature of this conflict is [describe the conflict].

  (c) The restrictions upon future contracting are as follows:

      (1) If the Contractor, under the terms of this contract, or through the performance of tasks pursuant to this contract, is required to develop specifications or statements of work that are to be incorporated into a solicitation, the Contractor shall be ineligible to perform the work described in that solicitation as a prime or first-tier subcontractor under an ensuing NASA contract.  This  restriction shall remain in effect for a reasonable time, as agreed to by the Contracting Officer and the Contractor, sufficient to avoid unfair competitive advantage or potential bias (this time shall in no case be less than the duration of the initial production contract).  NASA shall not unilaterally require the Contractor to prepare such specifications or statements of work under this contract.

       (2) To the extent that the work under this contract requires access to proprietary, business confidential, or financial data of other companies, and as long as these data remain proprietary or confidential, the Contractor shall protect these data from unauthorized use and disclosure and agrees not to use them to compete with those other companies.

(End of clause)

 

1852.209-72 Composition of the Contractor.

  As prescribed in 1809.670, insert the following clause:

COMPOSITION OF THE CONTRACTOR

(DECEMBER 1988)

If the Contractor is comprised of more than one legal entity, each entity shall be jointly and severally liable under this contract.

(End of clause)

 

1852.211-70  Packaging, Handling, and Transportation

  As prescribed in 1811.404-70, insert the following clause:

PACKAGING, HANDLING, AND TRANSPORTATION

(NOVEMBER 2004)

  (a)  The Contractor shall comply with NPR 6000.1E, "Requirements for Packaging, Handling, and Transportation for Aeronautical and Space Systems, Equipment, and Associated Components", dated April 26, 1999, as may be supplemented by the statement of work or specifications of this contract, for all items designated as Class I, II, or III.

   (b)  The Contractor's packaging, handling, and transportation procedures may be used, in whole or in part, subject to the written approval of the Contracting Officer, provided (1) the Contractor's procedures are not in conflict with any requirements of this contract, and (2) the requirements of this contract shall take precedence in the event of any conflict with the Contractor's procedures.

(c)  The Contractor must place the requirements of this clause in all subcontracts for items that will become components of deliverable Class I, II, or III items.

(End of clause)



    (2) Be a defined contribution plan, or a multiparty defined benefit plan operated under a collective bargaining agreement.  In either case, the plan must be portable, i.e., the plan follows the employee, not the employer;

    (3) Provide for 100 percent employee vesting at the earlier of one year of continuous employee service or contract termination; and

    (4) Not be modified, terminated, or a new plan adopted without the prior written approval of the cognizant NASA Contracting Officer.

(b)  The Contractor shall include paragraph (a) of this clause in subcontracts for continuing services under a service contract if:

     (1) The prime contract requires pension portability;

     (2) The subcontracted labor dollars (excluding any burdens or profit/fee) exceed $2,500,000 and ten percent of the total prime contract labor dollars (excluding any burdens or profit/fee); and

     (3) Either of the following conditions exists:

         (i) There is a continuing need for the same or similar subcontract services for a minimum of five years (inclusive of options), and if the subcontractor changes, a high percentage of the predecessor subcontractor’s employees are expected to remain with the program; or

         (ii) The employees under a predecessor subcontract were covered by a portable pension plan, a follow-on subcontract or a subcontract consolidating existing services is awarded, and the total subcontract period covered by the plan covers a minimum of five years (including both the predecessor and successor subcontracts).

(End of clause)

 

1852.237-72 Access to Sensitive Information. 

As prescribed in 1837.203-72(a), insert the following clause:

ACCESS TO SENSITIVE INFORMATION

(JUNE 2005)

  (a) As used in this clause, “sensitive information” refers to information that a contractor has developed at private expense, or that the Government has generated that qualifies for an exception to the Freedom of Information Act, which is not currently in the public domain, and which may embody trade secrets or commercial or financial information, and which may be sensitive or privileged. 

  (b) To assist NASA in accomplishing management activities and administrative functions, the Contractor shall provide the services specified elsewhere in this contract. 

  (c) If performing this contract entails access to sensitive information, as defined above, the Contractor agrees to -

 (1) Utilize any sensitive information coming into its possession only for the purposes of performing the services specified in this contract, and not to improve its own competitive position in another procurement.

(2) Safeguard sensitive information coming into its possession from unauthorized use and disclosure.

(3) Allow access to sensitive information only to those employees that need it to perform services under this contract. 

(4) Preclude access and disclosure of sensitive information to persons and entities outside of the Contractor’s organization.

(5) Train employees who may require access to sensitive information about their obligations to utilize it only to perform the services specified in this contract and to safeguard it from unauthorized use and disclosure. 

(6) Obtain a written affirmation from each employee that he/she has received and will comply with training on the authorized uses and mandatory protections of sensitive information needed in performing this contract.

(7) Administer a monitoring process to ensure that employees comply with all reasonable security procedures, report any breaches to the Contracting Officer, and implement any necessary corrective actions.

 (d) The Contractor will comply with all procedures and obligations specified in its Organizational Conflicts of Interest Avoidance Plan, which this contract incorporates as a compliance document.

  (e) The nature of the work on this contract may subject the Contractor and its employees to a variety of laws and regulations relating to ethics, conflicts of interest, corruption, and other criminal or civil matters relating to the award and administration of government contracts.  Recognizing that this contract establishes a high standard of accountability and trust, the Government will carefully review the Contractor’s performance in relation to the mandates and restrictions found in these laws and regulations. Unauthorized uses or disclosures of sensitive information may result in termination of this contract for default, or in debarment of the Contractor for serious misconduct affecting present responsibility as a government contractor.

  (f) The Contractor shall include the substance of this clause, including this paragraph (f), suitably modified to reflect the relationship of the parties, in all subcontracts that may involve access to sensitive information

 (End of clause)

 

1852.237-73 Release of Sensitive Information.

As prescribed in 1837.203-72(b), insert the following clause:

RELEASE OF SENSITIVE INFORMATION

(JUNE 2005)

 (a) As used in this clause, “sensitive information” refers to information, not currently in the public domain, that the Contractor has developed at private expense, that may embody trade secrets or commercial or financial information, and that may be sensitive or privileged.    

  (b) In accomplishing management activities and administrative functions, NASA relies heavily on the support of various service providers.  To support NASA activities and functions, these service providers, as well as their subcontractors and their individual employees, may need access to sensitive information submitted by the Contractor under this contract.  By submitting this proposal or performing this contract, the Contractor agrees that NASA may release to its service providers, their subcontractors, and their individual employees, sensitive information submitted during the course of this procurement, subject to the enumerated protections mandated by the clause at 1852.237-72, Access to Sensitive Information.

  (c)(1) The Contractor shall identify any sensitive information submitted in support of this proposal or in performing this contract.  For purposes of identifying sensitive information, the Contractor may, in addition to any other notice or legend otherwise required, use a notice similar to the following:

      Mark the title page with the following legend:


  This proposal or document includes sensitive information that NASA shall not disclose outside the Agency and its service providers that support management activities and administrative functions.  To gain access to this sensitive information, a service provider’s contract must contain the clause at NFS 1852.237-72, Access to Sensitive Information.  Consistent with this clause, the service provider shall not duplicate, use, or disclose the information in whole or in part for any purpose other than to perform the services specified in its contract.  This restriction does not limit the Government's right to use this information if it is obtained from another source without restriction.  The information subject to this restriction is contained in pages [insert page numbers or other identification of pages].

Mark each page of sensitive information the Contractor wishes to restrict with the following legend:

  Use or disclosure of sensitive information contained on this page is subject to the restriction on the title page of this proposal or document.

      (2) The Contracting Officer shall evaluate the facts supporting any claim that particular information is “sensitive.”  This evaluation shall consider the time and resources necessary to protect the information in accordance with the detailed safeguards mandated by the clause at 1852.237-72, Access to Sensitive Information.  However, unless the Contracting Officer decides, with the advice of Center counsel, that reasonable grounds exist to challenge the Contractor’s claim that particular information is sensitive, NASA and its service providers and their employees shall comply with all of the safeguards contained in paragraph (d) of this clause.

 (d) To receive access to sensitive information needed to assist NASA in accomplishing management activities and administrative functions, the service provider must be operating under a contract that contains the clause at 1852.237-72, Access to Sensitive Information.  This clause obligates the service provider to do the following:

      (1) Comply with all specified procedures and obligations, including the

Organizational Conflicts of Interest Avoidance Plan, which the contract has incorporated as a compliance document.

      (2) Utilize any sensitive information coming into its possession only for the purpose of performing the services specified in its contract.

      (3) Safeguard sensitive information coming into its possession from unauthorized use and disclosure.

      (4) Allow access to sensitive information only to those employees that need it to perform services under its contract. 

      (5) Preclude access and disclosure of sensitive information to persons and entities outside of the service provider’s organization.

      (6) Train employees who may require access to sensitive information about their obligations to utilize it only to perform the services specified in its contract and to safeguard it from unauthorized use and disclosure. 

      (7) Obtain a written affirmation from each employee that he/she has received and will comply with training on the authorized uses and mandatory protections of sensitive information needed in performing this contract.

     (8) Administer a monitoring process to ensure that employees comply with all reasonable security procedures, report any breaches to the Contracting Officer, and implement any necessary corrective actions.

 (e) When the service provider will have primary responsibility for operating an information technology system for NASA that contains sensitive information, the service provider’s contract shall include the clause at 1852.204-76, Security Requirements for Unclassified Information Technology Resources.  The Security Requirements clause requires the service provider to implement an Information Technology Security Plan to protect information processed, stored, or transmitted from unauthorized access, alteration, disclosure, or use.  Service provider personnel requiring privileged access or limited privileged access to these information technology systems are subject to screening using the standard National Agency Check (NAC) forms appropriate to the level of risk for adverse impact to NASA missions.  The Contracting Officer may allow the service provider to conduct its own screening, provided the service provider employs substantially equivalent screening procedures.

 (f) This clause does not affect NASA's responsibilities under the Freedom of Information Act.

 (g) The Contractor shall insert this clause, including this paragraph (g), suitably modified to reflect the relationship of the parties, in all subcontracts that may require the furnishing of sensitive information. 

(End of clause)

 

1852.239-70  Alternate Delivery Points.

  As prescribed in 1839.106-70(a)(1), insert the following clause:

ALTERNATE DELIVERY POINTS

(NOVEMBER 1993)

  (a) The first priority of this contract is to satisfy the anticipated requirements of                 (identify contracting activity).  However, should the actual requirements of                (contracting activity) be less than the maximum quantities/values specified in Section B of this contract,               (contracting activity) may order the remaining available quantities/values to satisfy the requirements of other installations.  The other installations at which delivery may be required are:

 

     (List installations and their locations)

 

  (b) The prices of the deliverables in Section B are F.O.B. destination to              (contracting activity).  If delivery to an alternate location is ordered, an equitable adjustment may be negotiated to recognize any variances in transportation costs associated with delivery to that alternate location.

(End of clause)

 

ALTERNATE I

(NOVEMBER 1993)

  As prescribed in 1839.106-70(a)(2), delete paragraph (b) and substitute the following:

 

  (b) The prices of the deliverables in Section B are F.O.B. origin with delivery to NASA via Government bill of lading (GBL). If delivery to an alternate location is ordered, the same delivery procedures will be used and no equitable adjustment to any price, term, or condition of this contract will be made as a result of such order.

(End of clause)

 


1852.241-70  Renewal of Contract.

  As prescribed in 1841.501-70, insert the following clause:

RENEWAL OF CONTRACT

(DECEMBER 1988)

  This contract is renewable on an annual basis at the option of the Government, by the Contracting Officer giving written notice of renewal to the Contractor at least          days before  expiration.  If the Government exercises this option for renewal, the contract as renewed shall be deemed to include this option provision.  However, the total duration of this contract, including the exercise of any options under this clause, shall not exceed          years.

(End of clause)