04-20

Procurement Notice


December 8, 2006

ADMINISTRATIVE CHANGES

 

BACKGROUND:  This Procurement Notice (PN) revises the NASA FAR Supplement (NFS) to make the following administrative changes:

      1.  The “Head of the contracting activity” definition in 1802.101 is revised to reflect an organizational change.

      2.  The dollar thresholds in 1805.303(a)(i), 1819.7103, 1819.7219(a)(2), 1825.400(b), and 1828.103-70(a)(2) are revised to reflect the recent FAR changes made by Federal Acquisition Circular 2005-13 to adjust acquisition-related thresholds for inflation. 

      3.  Subpart 1827.6, Foreign License and Technical Assistance Agreements, and the clause at 1852.227-87, Transfer of Technical Data Under Space Station International Agreements, are deleted.  This subpart and clause were developed for the Space Station Freedom Program, which was cancelled in 1993.  In February 2000, the related subject matter was addressed for all NASA programs and projects (including the International Space Station Program) in the clause at 1852.225-70, Export Licenses, and its associated guidance at 1825.1103-70.

      4.  The address for the Center for AeroSpace Information (CASI) in the clauses at 1852.235-70, Center for AeroSpace Information, and 1852.235-73, Final Scientific and Technical Reports, are corrected by deleting the street address and substituting the CASI url.

  

ACQUISITIONS AFFECTED BY CHANGES:  None. 

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  Advise all contractors whose contracts include the clause at 1852.235-70 or 1852.235-73 of the new CASI address.  Modify those contracts to incorporate the new clause(s) if the period of performance will extend beyond October 31, 2007.    

 

PROVISION AND CLAUSE CHANGES:  1852.227-87 is deleted. 1852.235-70 and 1852.235-73 are revised. 

 

PARTS AFFECTED:  Parts 1802, 1805, 1819, 1825, 1827, 1828, and 1852.

 

REPLACEMENT PAGES:  You may use the enclosed pages to replace Part 1802, 5:1, 5:2, 19:7, 19:8, 19:13, 19:14, 25:1, 25:2, Part 1827, 28:1, 28:2, 52:1, 52:2, 52:77, 52:78, 52:79, 52:84.1, 52:84.2, and 52-117 thru 52-122 of the NFS.

 

TYPE OF RULE AND PUBLICATION DATE:  The PN was published as a final rule in the Federal Register (71 FR 71072 - 71073) on December 8, 2006.

 

HEADQUARTERS CONTACT:  Tom O’Toole, Office of Procurement, Contract Management Division, (202) 358-0478, email: thomas.otoole@nasa.gov.

 

 

James A. Balinskas

Director, Contract Management Division

 

Enclosures

 

DISTRIBUTION LIST:

  PN List 


PART 1802

DEFINITIONS OF WORDS AND TERMS

 

TABLE OF CONTENTS

 

1802.000                                 Scope of part.

 

SUBPART     1802.1            DEFINITIONS

1802.101                                 Definitions.

 

 

PART 1802

DEFINITIONS OF WORDS AND TERMS

 

1802.000    Scope of part.

   Commonly used words and terms are defined in FAR Subpart 2.1.  This Part 1802 gives NASA-specific meanings for some of these words and terms and defines other words and terms commonly used in the NASA acquisition process.

 

Subpart 1802.1--Definitions

 

1802.101 Definitions.

   “Administrator” means the Administrator or Deputy Administrator of NASA.

   “Senior Procurement Executive” means the Assistant Administrator or Deputy Assistant Administrator for Procurement, Office of Procurement, NASA Headquarters (Code H).

   “Contracting activity” in NASA includes the NASA Headquarters installation, the NASA Shared Services Center, and the following field installations:  Ames Research Center, Dryden Flight Research Center, Glenn Research Center at Lewis Field, Goddard Space Flight Center, Johnson Space Center, Kennedy Space Center, Langley Research Center, Marshall Space Flight Center and Stennis Space Center.  A major program that may have contracts at multiple field centers may also be considered a “contracting activity.”

   “Head of the agency” or “agency head” means the Administrator or Deputy Administrator of NASA.

   “Head of the contracting activity (HCA)” means, for field installations, the Director or other head, and for NASA Headquarters, the Director for Headquarters Operations.  For Space Operations Mission Directorate (SOMD) contracts, the HCA is the Associate Administrator for SOMD in lieu of the field Center Director(s).  For Exploration Systems Mission Directorate (ESMD) contracts, the HCA is the Associate Administrator for ESMD in lieu of the field Center Director(s).  For NASA Shared Services Center (NSSC) contracts, the HCA is the Executive Director of the NSSC in lieu of the field Center Director(s).

   “Procurement officer” means the chief of the contracting office, as defined in FAR 2.101.

   “NASA Acquisition Internet Service (NAIS)” means the Internet service (URL: http://procurement.nasa.gov) NASA uses to broadcast its business opportunities, procurement regulations, and associated information.



PART 1805

PUBLICIZING CONTRACT ACTIONS

 

TABLE OF CONTENTS

 

SUBPART     1805.1              DISSEMINATION OF INFORMATION

1805.101                                  Methods of disseminating information.

 

SUBPART     1805.2              SYNOPSES OF PROPOSED CONTRACTS

1805.207                                  Preparation and transmittal of synopses.

1805.207-70                            Synopses of Architect-Engineer Services.

 

SUBPART     1805.3              SYNOPSES OF CONTRACT AWARDS

1805.303                                  Announcement of contract awards.

1805.303-70                            Definitions.

1805.303-71                            Actions requiring Administrator notification and NASA Headquarters public announcement.

1805.303-72                            Administrator notification and NASA Headquarters public

                                                  announcement procedures.     

                                       

SUBPART     1805.4              RELEASE OF INFORMATION

1805.402                                 General public.

1805.403                                 Requests from Members of Congress.

 

SUBPART     1805.5              PAID ADVERTISEMENTS

1805.502                                 Authority.

 

 

PART 1805

PUBLICIZING CONTRACT ACTIONS

 

Subpart 1805.1--Dissemination of Information

 

1805.101  Methods of disseminating information.

   (b)(4) For NASA policy regarding paid advertisements, see 1805.502.

 

Subpart 1805.2--Synopses of Proposed Contracts

 

1805.207  Preparation and transmittal of synopses.

(a)      Synopses shall be transmitted in accordance with 1804.570.

  (c)(14) Notices for non-competitive solicitations, including non-competitive follow-on actions to contracts initially awarded utilizing full and open competition, shall provide sufficient information regarding the proposed requirement to allow potential sources to determine whether they possess the requisite capabilities and to make an informed business decision regarding whether to respond.

 

1805.207-70  Synopses of Architect-Engineer Services.

   (a) Architect-Engineer Services.      

        (1)  Each notice publicizing the acquisition of architect-engineer services shall be headed "C.  Architect-Engineer Services."

        (2)  In addition to meeting the requirements of FAR 5.207(c), the project description shall--

               (i)  State the relative importance the Government attaches to the significant evaluation criteria and the date by which responses to the notice must be received, including submission of Standard Form 330, Part I – Contract Specific Qualifications, if required;

               (ii) Describe any specialized qualifications, security classifications, and limitations on eligibility for consideration;

               (iii) Describe qualifications or performance data required from architect-engineer firms; and

               (iv)  If the acquisition is to be set aside for small business, state this fact, indicating the specific size standard to be used and requiring that eligible responding firms submit a small business representation.

        (3)  Contracting officers shall add at the end of the synopsis:

               See Note 24.  Provisions of Note 24 apply to this notice except that (a) in the sentence beginning "Selection of firms for negotiations," the fourth additional consideration listed is changed to read: "(4) past experience, if any, of the firm with respect to performance on contracts with NASA, other Government agencies, and private industry;" and (b) in the last sentence, "National Aeronautics and Space Administration" is substituted for "Department of Defense."

 

Subpart 1805.3--Synopses of Contract Awards

 

1805.303  Announcement of contract awards.

   (a)(i)  In lieu of the $3.5 million threshold cited in FAR 5.303(a), NASA Headquarters public announcement is required for award of contract actions that have a total anticipated value,

including unexercised options, of $5 million or greater.

 

1805.303-70 Definitions.

   “Anticipated values,” as used in this subpart, means:

   (a) The estimated value of the contract (including unexercised options),

   (b) The expected definitized value of a letter contract or undefinitized contract action; or

   (c) The maximum value of the basic contract for indefinite delivery contracts, time and material, labor hour, and similar contracts.

   "Contract actions," as used in this subpart, means new awards (including letter contracts).

 

1805.303-71  Actions requiring Administrator notification and NASA Headquarters public announcements.

(a)(1) All contract actions with anticipated values of $25 million or greater require Administrator notification.

       (2) All contract actions with an anticipated value, including unexercised options, of $5 million or greater require NASA Headquarters public announcements.  In addition, an option exercise $25 million or greater requires a NASA Headquarters public announcement.

      (3) If the contracting officer considers that a contract action or other action at any dollar amount is of significant interest to Headquarters or has agency public information implications,



   (b) The contracting officer shall insert the clause at 1852.219-75, Small Business Subcontracting Reporting, in solicitations and contracts containing the clause at FAR 52.219-9, except for contracts covered by an approved commercial plan.

 

Subpart 1819.8--Contracting with the Small Business Administration

(The 8(a) Program)

 

1819.804 Evaluation, offering, and acceptance.

 

1819.804-1 Agency evaluation.

   The small business specialist shall review and evaluate all acquisition requirements to determine their suitability for offering to SBA for 8(a) acceptance and make a recommendation to the contracting officer concerning award to SBA.

 

Subpart 1819.10--Small Business Competitiveness Demonstration Program

 

1819.1005 Applicability.

   (b) The targeted industry categories for NASA and their North American Industry Classification System (NAICS) codes are:

 

NAICS Code

Industry Category

334111

Electronic Computer Manufacturing

334418

Printed Circuit Assembly (Electronic Assembly) Manufacturing

334613

Magnetic and Optical Recording Media Manufacturing

334119

Other Computer Peripheral Equipment Manufacturing

33422

 

Radio and Television Broadcasting and Wireless Communication Equipment Manufacturing

336415

 

Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing

336419

 

Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing

334511

 

Search, Detection, Navigation, Guidance, Aeronautical, and Nautical Systems and Instrument Manufacturing

333314

Optical Instrument and Lens Manufacturing

541511

Custom Computer Programming Services        

541512

Computer Systems Design Services

51421

Data Processing Services

541519

Other Computer Related Services

 

Subpart 1819.70--NASA 8 Percent Goal

 

1819.7000 General.

   Public Laws 101-144, 101-507, and 102-389 require the NASA Administrator to ensure, to the fullest extent possible, that at least 8 percent of Federal funding for prime and subcontracts awarded in support of authorized programs, including the space station by the time operational status is obtained, be made available to small disadvantaged business concerns, Historically Black Colleges and Universities, minority institutions, and women-owned small business concerns.

 

1819.7002 Contracting officer responsibility. 

   (a) Contracting officers must seek out as potential sources small disadvantaged business concerns, women-owned small business concerns, historically black colleges or universities and minority institutions, and give full consideration to these entities to satisfy NASA requirements.  The participation of NASA prime contractors is also essential to meeting the Agency’s 8 percent goal.

   (b)  NASA Policy Directive (NPD) 5000.2, Uniform Methodology for Determination of Small Disadvantaged Subcontracting Goals, contains guidance on developing realistic goals.  It is applicable to acquisitions expected to exceed $50 million, including options.  The methodology may be used for lesser value acquisitions.

 

1819.7003 Contract clause.

   The contracting officer shall insert the clause at 1852.219-76, NASA 8 Percent Goal, in all solicitations and contracts other than those below the simplified acquisition threshold or when the contract, together with all its subcontracts, is to be performed entirely outside of any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the Trust Territory of the Pacific Islands.

 

Subpart 1819.71--NASA Rural Area Small Business Plan

 

1819.7101 Definition.

   "Rural area" means a county with a population of fewer than twenty thousand individuals.

 

1819.7102 General.

   Pursuant to Public Law 100-590, NASA established a Rural Area Business Enterprise Development Plan, including methods for encouraging prime and subcontractors to use small business concerns located in rural areas as subcontractors and suppliers.  One method is to encourage the contractor to use its best efforts to comply with the intent of the statute. 

 

1819.7103 Solicitation provision and contract clause.

   The contracting officer shall insert the clause at 1852.219-74, Use of Rural Area Small Businesses, in solicitations and contracts that offer subcontracting possibilities or that are expected to exceed $550,000 ($1,000,000 for construction of public facility) unless the contract, together with all its subcontracts, is to be performed entirely outside of any State, territory, or possession of

the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the Trust Territory of the Pacific Islands.

 

Subpart 1819.72--NASA Mentor-Protégé Program

 

1819.7201 Scope of subpart.           

   The NASA Mentor-Protégé Program is designed to incentivize NASA prime contractors to assist small disadvantaged business (SDB) concerns, Historically Black Colleges and Universities (HBCUs), minority institutions (MIs), and women-owned small business (WOSB) concerns, in



   (c)  Procedures for a protégé firm to notify the mentor firm in writing at least 30 days in advance of the protégé firm's intent to voluntarily terminate the mentor-protégé agreement.  The mentor shall notify the OSDBU and the contracting officer immediately upon receipt of such notice from the protégé;

   (d)  A description of the type of developmental program that will be provided by the mentor firm to the protégé firm, to include a description of the subcontract work, and a schedule for providing assistance and criteria for evaluation of the protégé’s developmental success;

   (e)  A listing of the number and types of subcontracts to be awarded to the protégé firm;

   (f)   Program participation term;

   (g)  Termination procedures;

   (h)  Plan for accomplishing work should the agreement be terminated; and

   (i)   Other terms and conditions, as appropriate.

 

1819.7214 Developmental assistance.

   The forms of developmental assistance a mentor can provide to a protégé include:

  (a)  Management guidance relating to --                             

        (1) Financial management,

        (2) Organizational management,

        (3) Overall business management/planning, and

        (4) Business development; 

   (b)  Engineering and other technical assistance;

   (c)  Noncompetitive award of subcontracts under NASA contracts;

   (d)  Progress payments based on costs.  The customary progress payment rate for all NASA contracts with small disadvantaged businesses is 95 percent.  This customary progress payment rate for small disadvantaged businesses may be used by prime contractors;

   (e)  Advance payments.  While a mentor can make advance payments to its protégés who are performing as subcontractors, the mentor will only be reimbursed by NASA for these costs if advance payments have been authorized in accordance with 1832.409-170;

   (f)  Loans;

   (g)  Rent-free use of facilities and/or equipment; and

   (h)  Temporary assignment of personnel to the protégé for purpose of training.

 

1819.7215 Obligation. 

   (a)  The mentor or protégé may voluntarily withdraw from the Program as mutually agreed by both mentor and protégé.

   (b)  Mentor and protégé firms will submit a "lessons learned" evaluation to the NASA OSDBU at the conclusion of each NASA contract subject to the approved Mentor-Protégé agreement.

 

1819.7216 Internal controls. 

   (a)  The NASA OSDBU will manage the Program.  Internal controls will be established by the OSDBU to achieve the stated program objectives (by serving as checks and balances against undesired actions or consequences) such as:     

         (1)  Reviewing and evaluating mentor applications for realism, validity and accuracy of provided information; 

         (2)  Reviewing any semi-annual progress reports submitted by mentors and protégés on protégé development to measure protégé progress against the master plan contained in the approved agreement.

         (3)  Site visits to NASA installation where mentor-protégé activity is occurring. 

   (b)  NASA may terminate mentor-protégé agreements for good cause and exclude mentor or protégé firms from participating in the NASA program.  These actions shall be approved by the NASA OSDBU. NASA shall terminate an agreement by delivering to the contractor a Notice specifying the reason for termination and the effective date.  Termination of an agreement does not constitute a termination of the subcontract between the mentor and the protégé. A plan for accomplishing the subcontract effort should the agreement be terminated shall be submitted with the agreement as required in NFS 1819.7213(h).

 

1819.7217 Reports. 

   (a)  Semi-annual reports shall be submitted by the mentor to the NASA Mentor-Protégé program manager, the NASA OSDBU, to include information as outlined in 1852.219-79(b).

   (b)  Protégés are encouraged to submit semi-annual reports to the OSDBU on Program progress pertaining to their mentor-protégé agreement.  However, costs associated with the preparation of these reports are unallowable costs under Government contracts and will not be reimbursed by the Government.

   (c)  The NASA technical program manager shall include an assessment of the prime contractor's (mentor's) performance in the Mentor-Protégé Program in a quarterly 'Strengths and Weaknesses' evaluation report.  A copy of this assessment will be provided to the OSDBU and the contracting officer.

   (d)  The NASA Mentor-Protégé program manager will submit semi-annual reports to the cognizant contracting officer regarding the participating prime contractor's performance in the Program for use in the award fee determination process. 

 

1819.7218 Program review.

   At the conclusion of each year in the Mentor-Protégé Program, the prime contractor and protégé, as appropriate, will formally brief the NASA OSDBU, the technical program manager, and the contracting officer regarding Program accomplishments pertaining to the approved agreement.  This review will be incorporated into the normal program review, where applicable.  A separate review will be scheduled for other contracts to be held at the NASA work site location.

 

1819.7219 Solicitation provision and contract clauses.   

   (a)  The contracting officer shall insert the clause at 1852.219-77, NASA Mentor-Protégé Program, in:         

        (1)  Cost reimbursement solicitations and contracts, or solicitations and contracts with award fee incentives, that include the clause at FAR 52.219-9, Small Business Subcontracting Plan;

        (2)  Small business set-asides of the contract types in (a)(1) of this section with values exceeding $550,000 ($1,000,000 for construction) that offer subcontracting opportunities. 

   (b)  The contracting officer shall insert the clause at 1852.219-79, Mentor Requirements and Evaluation, in contracts where the prime contractor is a participant in the NASA Mentor-Protégé Program.



PART 1825

FOREIGN ACQUISITION

 

TABLE OF CONTENTS

 

1825.003                                           Definitions.

1825.003-70                                     NASA definitions.

 

SUBPART               1825.1              BUY AMERICAN ACT--SUPPLIES

1825.103                                            Exceptions

   

SUBPART                1825.4             TRADE AGREEMENTS

1825.400                                            Scope of subpart.

 

SUBPART               1825.9             CUSTOMS AND DUTIES

1825.901                                           Policy.

1825.903                                           Exempted supplies.

   

SUBPART                1825.10          ADDITIONAL FOREIGN ACQUISITION

                                                             REGULATIONS

1825.1001                                        Waiver of right to examination of records.

1825.1002                                        Use of foreign currency.

 

SUBPART                1825.11          SOLICITATION PROVISIONS AND CONTRACT

                                                           CLAUSES

1825.1101                                         Acquisition of Supplies.

1825.1103                                         Other provisions and clauses.

1825.1103-70                                   Export control.

 

SUBPART               1825.70            FOREIGN CONTRACTS  AND INTERNATIONAL

                                                                        AGREEMENT CLEARANCES   

1825.7000                                          Scope of subpart.

1825.7001                                          Definition.

1825.7002                                          Foreign Contracts.

1825.7003                                          International Agreements.

 

 

PART 1825

FOREIGN ACQUISITION

 

1825.003  Definitions.

 

1825.003-70  NASA  definitions.

   "Canadian  end product”, for an item with an estimated value of $25,000 or less, means an unmanufactured end product mined or produced in Canada or an end product manufactured in Canada, if the cost of its components mined, produced, or manufactured in Canada or the United States exceeds 50 percent of the cost of all its components.  The cost of components includes transportation costs to the place of incorporation into the end product.  For an end product with an estimated value in excess of $25,000, the definition at FAR 25.003 applies.

 

Subpart 1825.1--Buy American Act--Supplies

 

1825.103  Exceptions.

   (a)(i)  The Assistant Administrator for Procurement has determined that it is inconsistent with the public interest to apply restrictions of the Buy American Act to Canadian end products with estimated values of $25,000 or less as defined in 1825.003-70.  Accordingly, contracting officers must evaluate all offers for such Canadian end products on a parity with offers for domestic end products, except that applicable duty (whether or not a duty free entry certificate may be issued) must be included in evaluating offers for Canadian end products.

   (ii) The Assistant Administrator for Procurement has determined that for procurements subject to the Trade Agreements Act, it would be inconsistent with the public interest to apply the Buy American Act to U.S.-made end products that are substantially transformed in the United States.

         (iii) The procurement officer shall send proposed public interest determinations to the Assistant Administrator for Procurement (Code HS) for approval.         

 

Subpart 1825.4--Trade Agreements

 

1825.400  Scope of subpart. 

   (b)  The Buy American Act applies to all acquisitions of Japanese end products or services in excess of $3,000.

 

Subpart 1825.9--Customs and Duties

 

1825.901  Policy.

   NASA has statutory authority to exempt certain articles from import duties, including articles that will be launched into space, spare parts for such articles, ground support equipment, and unique equipment used in connection with an international program or launch service agreement.  This authority is fully described in 14 CFR 1217.

 

1825.903  Exempted supplies.

   (a)  Through delegation from the Assistant Administrator for Procurement, Procurement Officers are authorized to certify duty free entry for articles imported into the United States, if those articles are procured by NASA or by other U.S. Government agencies, or by U.S. Government contractors or subcontractors when title to the articles is or will be vested in the U.S. Government in accordance with the terms of the contract or subcontract.  Procurement officers shall complete the certification set forth in 14 CFR 1217.104(a) or 1217.104(c) 



PART 1827

PATENTS, DATA, AND COPYRIGHTS

 

TABLE OF CONTENTS

 

1827.000                                 Scope of part.

 

SUBPART     1827.3              PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

1827.301                                 Definitions.

1827.302                                 Policy.

1827.303                                 Contract clauses.

1827.303-70                            NASA solicitation provisions and contract clauses.

1827.304                                 Procedures.

1827.304-1                              General.

1827.304-2                              Contracts placed by or for other Government agencies.

1827.304-3                              Contracts for construction work or architect-engineer services.

1827.304-4                             Subcontracts.

1827.304-5                              Appeals.

1827.305                                 Administration of the patent rights clauses.

1827.305-3                              Follow-up by Government.

1827.305-370                          NASA patent rights and new technology follow-up procedures.  

1827.305-371                          New technology reporting plan.

1827.305-4                              Conveyance of invention rights acquired by the Government.

 

SUBPART     1827.4              RIGHTS IN DATA AND COPYRIGHTS

1827.404                                 Basic rights in data clause.

1827.405                                 Other data rights provisions.

1827.406                                 Acquisition of data.

1827.408                                 Cosponsored research and development activities.

1827.409                                 Solicitation provisions and contract clauses.

1827.409-70                            NASA contract clause.

 

 

PART 1827

PATENTS, DATA, AND COPYRIGHTS

 

1827.000  Scope of part.

   This part prescribes NASA policies, procedures, and contract clauses pertaining to patents, data, and copyrights.  The provisions of FAR Part 27 apply to NASA acquisitions unless specifically excepted in this part.

 

Subpart 1827.3--Patent Rights Under Government Contracts

 

1827.301  Definitions.

   "Administrator," as used in this subpart, means the Administrator of NASA or a duly authorized repre­sentative.

   "Contract," as used in this subpart, means any actual or proposed contract, agreement, understand­ing, or other arrangement, and includes any assign­ment, substitution of parties, or subcontract executed or entered into thereunder.

   "Made," in lieu of the definition in FAR 27.301, as used in this subpart, means conceived or first actually reduced to practice; provided, that in the case of a variety of plant, the date of determina­tion (as defined in Section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of con­tract performance.

  "Reportable item," as used in this subpart, means any invention, discovery, improvement, or innovation of the contractor, whether or not patentable or otherwise protectible under Title 35 of the United States Code, made in the performance of any work under any NASA contract or in the performance of any work that is reimbursable under any clause in any NASA contract providing for reimbursement of costs incurred before the effective date of the contract. Reportable items include, but are not limited to, new processes, machines, manufactures, and compositions of matter, and improvements to, or new applications of, existing processes, machines, manufactures, and compositions of matter. Reportable items also include new computer programs, and improvements to, or new applications of, existing computer programs, whether or not copyrightable or otherwise protectible under Title 17 of the United States Code.

   "Subject invention," in lieu of the definition in FAR 27.301, as used in this subp­art, means any reportable item that is or may be patent­able or otherwise protectible under Title 35 of the United States Code, or any novel variety of plant that is or may be protectible under the Plant Variety Protec­tion Act (7 U.S.C. 2321 et seq.).

 

1827.302  Policy.  

   (a)  Introduction.     

      (i)    NASA policy with respect to any invention, discovery, improvement, or innovation made in the performance of work under any NASA contract or subcon­tract with other than a small business firm or a nonprofit organization and the alloca­tion of related property rights is based upon Section 305 of the National Aeronau­tics and Space Act of 1958, as amended (42 U.S.C. 2457) (the Act); and, to the extent consistent with this statute, the Presidential Memorandum on Government Patent Policy to the Heads of Executive Departments and Agencies, dated February 18, 1983, and Section 1(b)(4) of Executive Order 12591.  NASA policy with respect to any invention made in the performance of experimental, developmental, or research work with a small busi­ness firm or a nonprofit organiza­tion is based on 35 U.S.C. Chapter 18, as amended.

      (ii)   NASA contracts subject to Section 305 of the Act shall ensure the prompt reporting of reportable items in order to protect the Government's interest and to provide widest practi­ca­ble and appro­priate dissemination, early utilization, expeditious development, and continued availability for the benefit of the scientific, industrial, and commercial com­munities and the general public. 

   (b)  Contractor right to elect title.     

      (i)    For NASA contracts, the contractor right to elect title only applies to contracts with small businesses and non-profit organizations.  For other business entities, see subdivision (ii) of this paragraph.

      (ii)   Contractor right to request a waiver of title.  For NASA contracts with other than a small business firm or a nonprofit organization (contracts subject to Section 305 of the Act),it is the policy of NASA to waive the rights (to acquire title) of the United States (with the reservation of a Govern­ment license set forth in FAR 27.302(c) and the march-in rights of FAR 27.302(f) and 1827.302(f)) in and to any subject in­vention if the Administra­tor determines that the interests of the United States will be served.  This policy, as well as the proce­dures and instructions for such waiver of rights, is stated in the NASA Patent Waiver Regula­tions, 14 CFR Section 1245, Subpart 1.  Waiver may be requested in advance of contract award for any or all of the subject inven­tions, or for individual­ly identified subject inventions reported under the contract.  When waiver of rights is grant­ed, the contractor's right to title, the rights reserved by the Govern­ment, and other conditions and obliga­tions of the waiver shall be included in an Instru­ment of Waiv­er executed by NASA and the party receiv­ing the waiver.

      (iii)  It is also a policy of NASA to consid­er for a monetary award, when referred to the NASA Inven­tions and Contributions Board, any subject invention reported to NASA in accordance with this subpart, and for which an application for patent has been filed. 

   (c)  Government license.  For each subject invention made in the performance of work under a NASA contract with other than a small business firm or nonprofit organization and for which waiver of rights has been granted in accordance with 14 CFR Section 1245, Subpart 1, the Administrator shall reserve an irrevocable, nonexclusive, nontransferable, royalty-free license for the practice of such invention throughout the world by or on behalf of the United States or any foreign Government in accordance with any treaty or agreement of the United States.

   (d)  Government right to receive title.  Under any NASA contract with other than a small business or nonprofit organization (i.e., those contracts subject to Section 305(a) of the Act), title to subject inventions vests in NASA when the determinations of Section 305(a)(1) or 305(a)(2) have been made.  The Administrator may grant a waiver of title in accordance with 14 CFR Section 1245.

   (e)  Utilization reports.  For any NASA contract with other than a small business firm or a nonprofit organiza­tion, the re­quirements for utilization reports shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of Waiver executed under those Regulations.

   (f)   March-in rights.  For any NASA contract with other than a small business firm or a nonprofit organiza­tion, the march-in rights shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of Waiver executed under those Regulations.

   (g)  Preference for United States industry.  Waiver of the requirement for the agreement for any NASA contract with other than a small busi­ness firm or a nonprofit organization shall be in accor­dance with the NASA Patent Waiver Regu­la­tions, 14 CFR Section 1245, Subpart 1.

   (i)   Minimum rights to contractor.                                 

      (1)   For NASA contracts with other than a small business firm or a nonprofit organiza­tion (i.e., those contracts subject to Section 305(a) of the Act), where title to any subject inventions vests in NASA, the contractor is normally granted, in accordance with 14 CFR 1245, a revocable, nonexclusive, royalty-free license in each patent application filed in any country and in any resulting patent.  The license extends to any of the contractor’s domestic subsidiaries and affiliates within the corporate structure, and includes the right to grant sublicenses of the same scope to the extent the contractor was legally obligated to do so at the time the contract was awarded.  The license and right are transferable only with the approv­al of the Administrator, except when transferred to the succes­sor of that part of the contractor's business to which the invention pertains.

      (2)   The Administrator is the approval authority for revoking or modifying a license.  The procedures for revocation or modification are described in 37 CFR 404.10 and 14 CFR 1245.108.

 

1827.303  Contract clauses. 

   (a)(1)(A) See 1827.303-70(a).          

             (B) To qualify for the clause at FAR 52.227-11, a prospective contractor may be required to represent itself as either a small business firm or a nonprofit organization.  If there is reason to question the status of the prospective contractor, the contracting officer may file a protest in accordance with FAR 19.302 if small business firm status is questioned, or require the prospec­tive contractor to furnish evidence of its status as a nonprofit organization.      

      (5)   Alternate IV to 52.227-11 is not used in NASA contracts.  See instead 1827.303-70(a). 

   (b)(1)(ii)  FAR 52.227-12 is not used in NASA contracts.  See instead 1827.303-70(b).

   (c)(1)(ii)  When work is to be performed outside the Untied States, its possessions, and Puerto Rico by contractors that are not domestic firms, see 1827.303-70(f).    

      (2)   See 1827.303-70(b) and (f).

   (d)(1) When one of the conditions in FAR 27.303(d)(1)(i) through (iv) is met, the contracting officer shall consult with the installation intellectual property counsel to determine the appropriate clause.

 

1827.303-70  NASA solicitation provisions and contract clauses. 

   (a)  When the clause at FAR 52.227-11 is includ­ed in a solicitation or contract, it shall be modified as set forth at 1852.227-11.

   (b)  The contracting officer shall insert the clause at 1852.227-70, New Technology, in all NASA solicitations and contracts with other than a small business firm or a nonprofit organization (i.e., those subject to section 305(a) of the Act), if the contract is to be performed in the United States, its possessions, or Puerto Rico and has as a purpose the performance of experi­mental, developmental, re­search, design, or engineering work.  Contracts for any of the fol­lowing purposes may be considered to in­volve the performance of work of the type described above (these examples are illus­trative and not limiting):     

      (1)   Conduct of basic or applied research.

      (2)   Development, design, or manufacture for the first time of any machine, article of manufacture, or composition of matter to satisfy NASA's specifica­tions or special requirements.

      (3)   Development of any process or tech­nique for attaining a NASA objective not readily attainable through the practice of a previously developed process or technique.

      (4)   Testing of, evaluation of, or experi­mentation with a machine, process, concept, or technique to determine whether it is suitable or could be made suitable for a NASA objective.

      (5)   Construction work or architect-engineer services having as a purpose the performance of experimental, developmental, or research work or test and evalua­tion studies involving such work.

      (6)   The operation of facilities or the coordination and direction of the work of others, if these activities involve perform­ing work of any of the types de­scribed in paragraphs (1) through (5) of this section. 

   (c)  The contracting officer shall insert the provision at 1852.227-71, Requests for Waiver of Rights to Inventions, in all solici­tations that include the clause at 1852.227-70, New Technology (see paragraph (b) of this section).

   (d)  The contracting officer shall insert the clause at 1852.227-72, Desig­nation of New Technology Representative and Patent Represen­tative, in all solicitations and contracts containing either of the clauses at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form) or 1852.227-70, New Technology (see paragraph (c) of this section).  It may also be inserted, upon consultation with the installation intellectual property counsel, in solicitations and contracts using another patent rights clause.  The New Technology Representa­tive shall be the Technology Utilization Officer or the staff member (by titled position) having cognizance of tech­nology utilization matters for the installa­tion concerned. The Patent Repre­sentative shall be the intellectual property counsel (by titled posi­tion) having cogni­zance of patent matters for the installa­tion concerned.

   (e)  The contract­ing officer shall insert the provision at 1852.227-84, Patent Rights Clauses, in solici­tations for experimental, developmental, or research work to be performed in the Unit­ed States, its possessions, or Puerto Rico when the eventual awardee may be a small business or a nonprofit organization.

   (f)   As authorized in FAR 27.303(c)(2), when work is to be performed out­side the United States, its possessions, and Puerto Rico by contractors that are not domestic firms, the clause at 1852.227-85, Invention Reporting and Rights--For­eign, shall be used unless the contracting officer determines, with concurrence of the install­ation intellectual property counsel, that the objectives of the contract would be better served by use of the clause at FAR 52.227-13, Patent Rights---Acquisition by the Gov­ernment.  For this purpose, the contracting officer may presume that a contractor is not a domestic firm unless it is known that the firm is not foreign owned, controlled, or influenced. (See FAR 27.304-4(a) regarding subcontracts with U.S. firms.)

 

1827.304  Procedures.

 

1827.304-1  General.   

   (a)  Contractor appeals of exceptions.  In any contract with other than a small busi­ness firm or nonprofit organization, the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, shall apply.

   (b)  Greater rights determinations.  In any con­tract with other than a small business firm or a nonprofit organization and with respect to which advance waiver of rights has not been granted (see 1827.302(b)), the contractor (or an employee-inventor of the contractor after consultation with the con­trac­tor) may request waiver of title to an individ­ual identified subject invention pursuant to the NASA Patent Waiver Regu­lations, 14 CFR Section 1245, Subpart 1.

   (c)  Retention of rights by inventor.  The NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, apply for any invention made in the performance of work under any contract with other than a small business firm or a nonprofit organiza­tion.

   (f)   Revocation or modification of contract­or's minimum rights.  Revocation or modifi­ca­tion of the contractor's license rights (see 1827.302(i)(2)) shall be in accordance with 37 CFR 404.10, for subject inventions made and reported under any contract with other than a small business firm or a nonprofit organization.

   (g)  Exercise of march-in rights.  For con­tracts with other than a small business firm or a nonprofit organiza­tion, the procedures for the exercise of march-in rights shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

   (h)  Licenses and assignments under con­tracts with nonprofit organizations. The Headquarters Associate General Counsel (Intellectual Property) (Code GP) is the approval authority for assignments.  Contracto­r requests should be made to the Patent Representative designated in the clause at 1852.227-72 and forwarded, with rec­ommendation, to Code GP for approval.

 

1827.304-2  Contracts placed by or for other Government agencies.   

   (a)(3) When a contract is placed for another agency and the agency does not request the use of a specific patent rights clause, the contracting officer, upon consultation with the installation intellectual property counsel, may use the clause at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form) as modified by 1852.227-11 (see 1827.303-70(a)) or 1852.227-70, New Technology (see 1827.303-70(b)).

 

1827.304-3  Contracts for construction work or architect-engineer services. 

   (a)  For construction or architect-engineer services contracts with other than a small business or nonprofit organization, see 1827.303-70(b).

 

1827.304-4  Subcontracts. 

   (a)(i)   Unless the con­tracting officer other­wise authorizes or directs, contractors awar­ding subcontracts and subcontractors awar­ding lower-tier subcontracts shall select and include one of the following clauses, suit­ably modi­fied to identify the parties, in the indicated subcon­tracts:         

         (A) The clause at 1852.227-70, New Technolo­gy, in any subcontract with other than a small busi­ness firm or a nonprofit organization if a purpose of the subcontract is the performance of experimental, devel­opmental, research, design, or engineering work of any of the types described in 1827.303-70(b)(1)-(6).

         (B) The clause at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form), modified by 1852.227-11 (see 1827.303-70(a)), in any subcontract with a small busi­ness firm or a nonprofit organization if a purpose of the subcontract is the perfor­mance of experimental, developmental, or research work.    

      (ii)   Whenever a prime contractor or a subcon­tractor considers it inappropriate to include one of the clauses discussed in paragraph (a) of this section in a particular subcontract, or a subcontractor refuses to accept the clause, the matter shall be re­solved by the contracting officer in consul­tation with the intellectual property coun­sel.

 

1827.304-5  Appeals.

   FAR 27.304-5 shall apply unless other­wise provided in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

 

1827.305  Administration of the patent rights clauses.

 

1827.305-3  Follow-up by Government.

 

1827.305-370  NASA patent rights and new technology follow-up procedures. 

   (a)  For each contract containing a patent rights clause or the clause at 1852.227-70, New Technology, the contracting officer shall take the following actions:     

      (1)   Furnish, or require the contractor to furnish directly, the New Technology Repre­sentative and the Patent Representative a copy of each contract (and modifications thereto), and copies of the final technical report, interim technical progress reports, and other pertinent material provided under the contract, unless the representatives indicate other­wise; and

      (2)   Notify the New Technology Repre­sentative as to which installation organiza­tional element has technical cognizance of the contract. 

   (b)  The New Technology Representative shall take the following actions:

      (1)   Review the technical progress of work performed under the contract to ascertain whether the contractor and its subcontrac­tors are complying with the clause's report­ing and recordkeeping requirements;

      (2)   Forward to the Patent Representative copies of all contractor and subcontracto­r written reports of reportable items and disclosures of subject inventions, and a copy of the written statement, if any, sub­mitted with the reports.

      (3)   Consult with the Patent Representative whenever a question arises as to whether a given reportable item is to be considered a subject invention and whether it was made in the performance of work under the contract.

      (4)   Forward to the Patent Representative all corre­spondence relating to inventions and waivers under the New Technology clause or election of title under the Patent Rights---Retention by the Contractor (Short Form) clause.

      (5)   Upon receipt of any final report required by the clause, and upon determina­tion that the contract work is complete, deter­mine whether the contractor has complied with the clause's reporting requirements. If so, the New Technology Representative shall certify compliance, obtain the Patent Representative's concurrence, and forward the certification to the contracting officer. 

   (c)  The Patent Representative shall review each reportable item to ascertain whether it is to be consid­ered a subject invention, obtain any determinations re­quired by paragraph (b) of the clause at 1852.227-70, New Tech­nology, and notify the contractor.  As to any subject invention, the Patent Repre­sentative shall:       

      (1)   Ensure that the contractor has provided sufficient information to protect the Government's rights and inter­ests in it and to permit the preparation, filing, and prosecution of patent applica­tions;

      (2)   Determine inventorship;

      (3)   Ensure the preparation of in­struments establishing the Government's rights; and

      (4)   Con­duct selected reviews to ensure that subject inven­tions are identified, adequately document­ed, and timely reported or disclosed. 

   (d)  Either the New Technology Repre­sentative or the Patent Representative, in consultation with the other, may prepare opinions, make determinations, and other­wise advise the contracting officer with respect to any withholding of payment under para­graph (g) of the clause at 1852.227-70, New Technology.  Either the New Technol­ogy Repre­sentative or the Patent Repre­sentative may represent the contracting officer for the purpose of examining the contractor's books, records, and other documents in accordance with paragraph (f) of the clause and take corrective action as appropriate.  However, no action may be taken by either the New Technology Representative or the Patent Representative that would consti­tute a final decision under the Disputes clause, involve any change or increase in the work required to be performed under the contract that is inconsistent with any right of appeal pro­vided in FAR 27.304-5 or 14 CFR 1245, Subpart 1, or otherwise be outside the scope of the contract.

   (e)  The contracting officer shall not approve release of final payment under the contract and, if applicable, any reserve set aside under the withhold­ing provi­sions of the clause for deficiencies and delinquent reporting not corrected as of the time of the submis­sion of the final report by the con­tractor until receipt of the New Technology Representative's certification of compli­ance, and the Patent Representative's con­currence.

 

1827.305-371  New technology reporting plan.

   In contracts with an estimated cost in excess of $2,500,000 (or less when appropriate) that contain the clause at 1852.227-70, New Technology, the contracting officer may require the contractor to submit for post-award Government approval a detailed plan for new technology reporting that demonstrates an adequate understanding of and commitment to the reporting requirements of the clause.  

 

1827.305-4  Conveyance of invention rights acquired by the Government.

   (a)  When the Government acquires the entire right to, title to, and interest in an invention under the clause at 1852.227-70, New Technology, a determi­nation of title is to be made in accordance with Section 305(a) of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2457(a)), and reflected in appropriate in­struments executed by NASA and forward­ed to the contractor.

 

Subpart 1827.4--Rights in Data and Copyrights

 

1827.404  Basic rights in data clause.   

   (d)  Protection of limited rights data speci­fied for delivery.  The contracting officer shall consult with the installation patent or intellectual property counsel regarding any questions concerning the delivery of limited rights data and/or the use of Alter­nate II that may arise from an offeror's response to the provision at FAR 52.227-15, Repre­sentation of Limited Rights Data and Restricted Computer Software, or during negotiations.

   (e)  Protection of restricted computer soft­ware specified for delivery.  The contracting officer shall consult with the installation patent or intellectual property counsel regarding any questions concerning the delivery of restricted computer software and/or the use of Alternate III that may arise from an offeror's response to the provision at FAR 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, or during negotia­tions.

   (f)   Copyrighted data.

      (1)(ii)    The contracting officer shall consult with the installation patent or intellectual property counsel before granting permission for a contractor to claim copy­right subsisting in data, other than comput­er software, first produced under the con­tract.

         (iv)    The contracting officer, with the concurrence of the installation intellectual property counsel, is the approval authority for obtaining a copyright license of a different scope than set forth in subpara­graph (c)(1) of the clause at FAR 52.227-14, Rights in Data--General, for any con­tract or class of contracts.

      (2) (i)   The procurement officer is the approval authority for obtaining a copyright license of a different scope than that set forth in subparagraph (c)(2) of the clause at FAR 52.227-14 for any contract or class of contracts.

   (g)  Release, publication, and use of data.

      (3)(A)  NASA’s intent is to ensure the most expeditious dissemination of computer software developed by it or its contractor.  Accordingly, when the clause at FAR 52.227-14, Rights in Data-General, is modified by 1852.227-14 (see 1827.409(a)), the contractor may not assert claim to copy­right, publish, or release to others computer software first produced in the performance of a contract without the contracting offic­er's prior written permission.

         (B)    The contracting officer may, in consultation with the installation patent or intellectual property counsel, grant the contractor permission to copy­right, publish, or release to others computer software first produced in the performance of a contract if:         

             (a) The contractor has identified an existing commercial computer software product line or proposes a new one and states a positive intention of incorporating any computer software first produced under the contract into that line, either directly itself or through a licensee;

             (b) The contractor has made, or will be re­quired to make, significant contributions to the development of the computer soft­ware by co-funding or by cost-sharing, or by contributing resources (including but not limited to agreement to provide continuing maintenance and update of the software at no cost for Governmental use); or

     (c) The concurrence of the Headquarters Office of Aerospace Technology, Commercial Technology Division (Code RC) is obtained.

         (C)(a) The contractor's request for permis­sion in accordance with 1827.404(g)(3)(A) may be made either before contract award or during contract perfor­mance.

             (b) Any permission granted in accor­dance with 1827.404(g)(3)(B)(a) or (b) shall be by express contract provision (or amendment) overriding sub­paragraph (d)(3) of FAR 52.227-14, Rights in Data--General, (as modified by 1852.227-14), rather than by deleting it.  The contract provision may contain appropriate assurances that the computer software will be incorporated into an existing or proposed new commercial computer software product line within a reasonable time and/or that the agreed contributions to the Government are ful­filled, with contingencies enabling the Government to obtain the right to distribute the software for commercial use, including the right to obtain assignment of copyright where applicable, in order to prevent the computer software from being suppressed or abandoned by the contrac­tor.

             (c) Any permission granted in accordance with 1827.404(g)(3)(B)(c) may be either by deleting subparagraph (d)(3) or by special contract provision, as appropriate.

             (d) When any permission to copyright is granted, any copyright license retained by the Gov­ern­ment shall be of the same scope as set forth in subparagraph (c)(1) of the clause at FAR 52.227-14 and without any obligation of confidentiality on the part of the Government, unless in accordance with 1827.404(g)(3)(B)(b) the contri­butions of the Contractor may be consid­ered "substantial" for the purposes of FAR 27.408 (i.e., approximately 50 percent), in which case rights consistent with FAR 27.408 may be negotiated for the computer software in question.      

         (D)   If the contractor has not been grant­ed permission to copyright, paragraph (d)(3)(ii) of the clause at FAR 52.227-14, Rights in Data--General (as modified by 1852.227-14) enables NASA to direct the contractor to assert claim to copyright in computer software first pro­duced under the contract and to assign, or obtain the assignment of, such copyright to the Government or its designee.  The con­tracting officer may, in consultation with the installation intellectual property counsel, so direct the contractor in situations where copyright protection is considered necessary in furtherance of Agency mission objectives, needed to sup­port specific Agency programs, or necessary to meet statutory requirements. 

   (h)  Unauthorized marking of data.  The contract­ing officer shall consult with the installation patent or intellectual property counsel before taking any action regarding unauthorized markings of data under para­graph (e) of the clause at FAR 52.227-14, Rights in Data--General.

   (i)   Omitted or incorrect notices.  The contracting officer shall consult with the installation patent or intellectual property counsel before agreeing to add or correct any markings on data under paragraph (f) of the clause at FAR 52.227-14, Rights in Data--General.

 

1827.405  Other data rights provisions. 

   (b)(2) Acquisition of existing computer soft­ware.  See 1827.409(k)(i)-(ii) and 1827.409-70 for modifications and alternatives to the clause at FAR 52.227-19.

   (c)  Contracts awarded under the Small Busi­ness Innovative Research (SBIR) Pro­gram.   If, during the performance of an SBIR contract (Phase I or Phase II), the need arises for NASA to obtain delivery of restricted computer software as defined in the clause at FAR 52.227-20, Rights in Data--SBIR Program, and the contractor agrees to such delivery, the restricted com­puter software may be acquired with re­stricted rights by modification of the con­tract or under an agreement incorporated in and made part of the contract, using the restricted rights set forth in FAR 27.404(e) and the related restrictions as a guide.

 

1827.406  Acquisition of data. 

   (a)  General.  Requirements for delivering tech­nical data relating to standard commer­cial items, components, or processes should be kept to the absolute minimum consistent with the purpose for which they are being procured.  Normally, a vendor's manuals for installation, operation, or maintenance and repair and/or form, fit, and function data are adequate.

  

1827.408  Cosponsored research and development activities.

   The contracting officer shall consult with the installation patent or intellectual property counsel before limiting the acqui­sition of or acquiring less than unlimited rights to any data developed under con­tracts involving cosponsored research and devel­opment activities.

 

1827.409  Solicitation provisions and contract clauses. 

   (a)  The contract­ing officer shall add subpara­graph (3) set forth in 1852.227-14 to para­graph (d) of the clause at FAR 52.227-14, Rights in Data-- General, except in solicita­tions and contracts for basic or applied re­search with universities or colleges.

   (b)  The contracting officer, with the concur­rence of the instal­lation intellectual property counsel, is the approval authority for use of Alternate I.  An example of its use is where the princi­pal purpose of the contract (such as a contract for basic or applied research) does not involve the development, use, or deliv­ery of items, components, or processes that are intended to be acquired for use by or for the Government (either under the con­tract in question or under any anticipat­ed follow-on con­tracts relating to the same subject matter). 

   (c)  The contracting officer shall normally add the disclosure purposes listed in FAR 27.404(d)(1)(i)-(v) to subparagraph (g)(2).  Howev­er, the contracting officer may, upon con­sultation with the installation patent or intellectual property counsel, make dele­tions from the specific purposes listed.  If all are deleted, the word "None" must be inserted.  Additions to those specific pur­poses listed may be made only with the approval of the procure­ment officer and concurrence of the installation patent or intellectual property counsel.

   (d)  The contracting officer shall consult with the installation patent or intellectual property counsel regarding the acquisition of restricted computer software with great­er or lesser rights than those set forth in Alternate III.  Where it is imprac­tical to actually modify the notice of Alter­nate III, this may be done by express refer­ence in a separate clause in the con­tract or by a collateral agreement that addresses the change in the restricted rights.

   (e)  The contracting officer, with the concurrence of the installation intellectual property counsel, is the approval authority for the use of Alternate IV in any contract other than a contract for basic or applied research to be performed solely by a college or university on campus (but not for the management or operation of Government facilities).

   (i)   The contract officer shall modify the clause at FAR 52.227-17, Rights in Data--Special Works by adding para­graph (f) as set forth in 1852.227-17.

   (k)(i)  The contract­ing officer shall add paragraph (e) as set forth in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer Software--Restricted Rights, when it is contemplated that updates, correction notic­es, consultation information, and other similar items of information


relating to commercial computer software delivered under a purchase order or contract are available and their receipt can be facilitat­ed by signing a vendor supplied agreement, registration forms, or cards and returning them directly to the vendor.

      (ii)   The contract­ing officer shall add paragraph (f) as set forth at 1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer Software--Restricted Rights, when portions of a contractor's standard commercial li­cense or lease agreement consistent with the clause, Federal laws, standard industry practices, and the FAR are to be incorporat­ed into the purchase order or contract.

      (iii)  See 1827.409-70.

 

1827.409-70  NASA contract clause.

   The contract­ing officer shall use the clause at 1852.227-86, Commercial Computer Soft­ware--Licensing, in lieu of FAR 52.227-19, Commercial Computer Software---Restrict­ed Rights, when it is considered appropriate for the acquisition of existing computer software in accordance with FAR 27.405(b)(2).


PART 1828

BONDS AND INSURANCE

 

TABLE OF CONTENTS

 

SUBPART     1828.1             BONDS

1828.101                                 Bid guarantees.

1828.101-70                            NASA solicitation provision.

1828.103                                 Performance and payment bonds and alternative payment protections                                                                                       for other than construction contracts.

1828.103-70                            Subcontractors performing construction work under nonconstruction

                                                   contracts.

1828.103-71                            Solicitation requirements and contract clauses.

1828.106                                 Administration.

1828.106-6                              Furnishing information.

 

SUBPART     1828.2             SURETIES

1828.202                                 Acceptability of corporate sureties.

1828.203                                 Acceptability of individual sureties.

 

SUBPART     1828.3              INSURANCE

1828.307                                 Insurance under cost-reimbursement contracts.

1828.307-1                              Group insurance plans.

1828.307-2                              Liability.

1828.307-70                            Insurance of industrial facilities.

1828.311                                 Solicitation provision and contract clause on liability insurance

                                                  under cost-reimbursement contracts.

1828.311-1                              Contract clause.

1828.311-2                              Agency solicitation provisions and contract clauses.

1828.311-270                          NASA solicitation provisions and contract clauses.

1828.370                                 Fixed-price contract clauses.

1828.371                                 Clauses for cross-waivers of liability for Space Shuttle services,

                                                   Expendable Launch Vehicle (ELV) launches, and Space

                                                   Station activities.

1828.372                                 Clause for minimum insurance coverage.

 

 

PART 1828

BONDS AND INSURANCE

 

Subpart 1828.1--Bonds

 

1828.101  Bid guarantees.

 

1828.101-70  NASA solicitation provision.

   The contracting officer shall insert the provision at 1852.228-73, Bid Bond, in construction solicitations where offers are expected to exceed $100,000 and a performance bond or a performance and payment bond is required (see FAR 28.102 and 28.103).  The contracting officer may increase the amount of the bid bond to protect the Government from loss, as long as the amount does not exceed $3 million.

 

1828.103  Performance and payment bonds and alternative payment protections for other than construction contracts.

 

1828.103-70  Subcontractors performing construction work under nonconstruction contracts.

   (a) The contracting officer shall require prime contractors on nonconstruction contracts to obtain the following performance and/or payment protection from subcontractors performing construction work:      

       (1)   Performance and payment bonds when the subcontract construction work is in excess of $100,000 and is determined by NASA to be subject to the Miller Act.

       (2)   An appropriate payment protection determined according to FAR 28.102-1(b)(1) when the subcontract construction work is greater than $30,000 but not greater than $100,000. 

   (b) The contracting officer shall establish the penal amount in accordance with FAR 28.102-2 based on the subcontract value.

   (c) The bonds shall be provided on SF 25, Performance Bond, and SF 25A, Payment Bond. These forms shall be modified to name the NASA prime contractor as well as the United States of America as obligees.

 

1828.103-71  Solicitation requirements and contract clauses.

   When performance and payment bonds or alternative payment protections are required from subcontractors performing construction work under nonconstruction prime contracts, the contracting officer shall follow the procedures in FAR 28.102-3.  When alternative payment protections are required, insert a clause substantially the same as FAR 52.228-13, Alternative Payment Protections, appropriately modified.

 

1828.106  Administration.

 

1828.106-6  Furnishing information. 

   (c) The contracting officer is the agency head’s designee.

 

Subpart 1828.2--Sureties

 

1828.202  Acceptability of corporate sureties. 

   (d) Contracting officers may obtain access to Department of Treasury Circular 570 through the internet at http://www.fms.treas.gov/c570/index.html.

 

1828.203  Acceptability of individual sureties. 

   (g)   Notification of suspected criminal or fraudulent activities, with all supporting documentation, shall be submitted to the Headquarters Office of Procurement (Code HS). 



PART 1852

SOLICITATION PROVISIONS AND CONTRACT CLAUSES

 

TABLE OF CONTENTS

 

1852.000                                           Scope of part.

 

SUBPART               1852.1             INSTRUCTIONS FOR USING PROVISIONS AND

                                                            CLAUSES

1852.101                                           Using Part 52.

1852.103                                           Identification of provisions and clauses.

1852.103-70                                     Identification of modified provisions and clauses.

1852.104                                           Procedures for modifying and completing provisions and   clauses.

 

SUBPART               1852.2             TEXTS OF PROVISIONS AND CLAUSES

1852.203-70                                     Display of Inspector General Hotline Posters.

1852.204-75                                     Security Classification Requirements.

1852.204-76                                     Security Requirements for Unclassified  Information

                                                             Technology Resources.

1852.208-81                                     Restrictions on Printing and Duplicating.

1852.209-70                                     Product Removal from Qualified Products List.

1852.209-71                                     Limitation of Future Contracting.

1852.209-72                                     Composition of the Contractor.

1852.211-70                                     Packaging, Handling, and Transportation.

1852.213-70                                     Offeror Representations and Certifications–Other Than

                                                           Commercial Items.

1852.213-71                                     Evaluation–-Other Than Commercial Items.

1852.214-70                                     Caution to Offerors Furnishing Descriptive Literature.

1852.214-71                                     Grouping for Aggregate Award.

1852.214-72                                     Full Quantities.

1852.215-77                                     Preproposal/Pre-bid Conference.

1852.215-78                                     Make or Buy Program Requirements.

1852.215-79                                     Price Adjustment for "Make-or-Buy" Changes.

1852.215-81                                     Proposal Page Limitations.

1852.215-84                                     Ombudsman.

1852.216-73                                     Estimated Cost and Cost Sharing.

1852.216-74                                     Estimated Cost and Fixed Fee.

1852.216-75                                     Payment of Fixed Fee.

1852.216-76                                     Award Fee for Service Contracts.

1852.216-77                                     Award Fee for End Item Contracts.

1852.216-78                                     Firm Fixed Price.

1852.216-80                                     Task Ordering Procedure.

1852.216-81                                     Estimated Cost.

1852.216-83                                     Fixed Price Incentive.

1852.216-84                                     Estimated Cost and Incentive Fee.

1852.216-85                                     Estimated Cost and Award Fee.

1852.216-87                                     Submission of Vouchers for Payment.

1852.216-88                                     Performance Incentive.

1852.216-89                                     Assignment and Release Forms.

1852.217-70                                     Property Administration and Reporting.

1852.217-71                                     Phased Procurement Using Down-Selection Procedures.

1852.217-72                                     Phased Procurement Using Progressive Competition Down-

                                                            Selection Procedures.

1852.219-73                                     Small Business Subcontracting Plan.

1852.219-74                                     Use of Rural Area Small Businesses.

1852.219-75                                     Small Business Subcontracting Reporting.

1852.219-76                                     NASA 8 Percent Goal.

1852.219-77                                     NASA Mentor-Protégé Program.

1852.219-79                                     Mentor Requirements and Evaluation.

1852.219-80                                     Limitation on Subcontracting – SBIR Phase I Program.

1852.219-81                                     Limitation on Subcontracting – SBIR Phase II Program.

1852.219-82                                     Limitation on Subcontracting – STTR Program.

1852.219-83                                     Limitation of the Principal Investigator SBIR Program.

1852.219-84                                     Limitation of the Principal Investigator STTR Program.

1852.219-85                                     Conditions for Final Payment – SBIR and STTR Contracts.

1852.223-70                                     Safety and Health.

1852.223-71                                     Frequency Authorization.

1852.223-72                                     Safety and Health (Short Form).

1852.223-73                                     Safety and Health Plan.

1852.223-74                                     Drug- and Alcohol-Free Workforce.

1852.223-75                                     Major Breach of Safety or Security.

1852.223-76                                     Federal Automotive Statistical Tool Reporting.

1852.225-8                                       Duty-Free Entry of Space Articles.

1852.225-70                                     Export Licenses.

1852.227-11                                     Patent Rights--Retention by the Contractor (Short Form).

1852.227-14                                     Rights in Data--General.

1852.227-17                                     Rights in Data--Special Works.

1852.227-19                                     Commercial Computer Software--Restricted Rights.

1852.227-70                                     New Technology.

1852.227-71                                     Requests for Waiver of Rights to Inventions.

1852.227-72                                     Designation of New Technology Representative and Patent

  Representative.

1852.227-84                                     Patent Rights Clauses.

1852.227-85                                     Invention Reporting and Rights--Foreign.

1852.227-86                                     Commercial Computer Software--Licensing.

1852.228-70                                     Aircraft Ground and Flight Risk.

1852.228-71                                     Aircraft Flight Risks.

1852.228-72                                     Cross-Waiver of Liability for Space Shuttle Services.

1852.228-73                                     Bid Bond.



contract and shall take timely action to implement its plan to obtain compliance/validation. The Contractor shall follow and implement the approved compliance/validation plan in a timely fashion.  The Government will conduct a Compliance Review to assess the contactor’s compliance with its plan, and if the Contractor does not follow the approved implementation schedule or correct all resulting system deficiencies identified as a result of the compliance review within a reasonable time, the Contracting Officer may take remedial action, that may include, but is not limited to, a reduction in fee.

  (c)  The Government will conduct Integrated Baseline Reviews (IBRs).  Such reviews shall be scheduled and conducted as early as practicable, and if a pre-award IBR has not been conducted, a post-award IBR should be conducted within 180 calendar days after contract award, or the exercise of significant contract options, or within 60 calendar days after distribution of a supplemental agreement that implements a significant funding realignment or effects a significant change in contractual requirements (e.g., incorporation of major modifications).  The objective of IBRs is for the Government and the Contractor to jointly assess the Contractor’s baseline to be used for performance measurement to ensure complete coverage of the statement of work, logical scheduling of the work activities, adequate resourcing, and identification of inherent risks.

  (d)  Unless a waiver is granted by the Cognizant Federal Agency, Contractor proposed EVMS changes require approval of the Cognizant Federal Agency prior to implementation.  The Cognizant Federal Agency shall advise the Contractor of the acceptability of such changes within 30 calendar days after receipt of the notice of proposed changes from the Contractor.  If the advance approval requirements are waived by the Cognizant Federal Agency, the Contractor shall disclose EVMS changes to the Cognizant Federal Agency at least 14 calendar days prior to the effective date of implementation.

  (e)  The Contractor agrees to provide access to all pertinent records and data requested by the Contracting Officer or a duly authorized representative.  Access is to permit Government surveillance to ensure that the Contractor’s EVMS complies, and continues to comply, with the EVMS guidelines referenced in paragraph (a) of this clause, and to demonstrate—

         (1)  Proper implementation of the procedures generating the cost and schedule information being used to satisfy the contract data requirements;

         (2)  Continuing application of the accepted company procedures in satisfying the CPR required by the contract through recurring program/project and contract surveillance; and

         (3)  Implementation of any corrective actions identified during the surveillance process.

   (f)  The Contractor shall be responsible for ensuring that its subcontractors, identified below, comply with the EVMS requirements of this clause as follows:

         (1)  For subcontracts with an estimated dollar value of $50M or more, the following subcontractors shall comply with the requirements of this clause.

         (Contracting Officer to insert names of subcontractors or subcontracted effort).

 

 

 

 

 

         (2)  For subcontracts with an estimated dollar value of less than $50M, the following subcontractors shall comply with the requirements of this clause except for the requirement in paragraph (b), if applicable, to obtain compliance/validation.

         (Contracting Officer to insert names of subcontractors or subcontracted effort.)

 

 

 

 

 

  (g)  If the contractor identifies a need to deviate from the agreed baseline by working against an Over Target Baseline (OTB) or Over Target Schedule (OTS), the contractor shall submit to the Contracting Officer a request for approval to begin implementation of an OTB or OTS.  This request shall include a top-level projection of cost and/or schedule growth, whether or not performance variances will be retained, and a schedule of implementation for the reprogramming adjustment.  The Government will approve or deny the request within 30 calendar days after receipt of the request.  Failure of the Government to respond within this 30-day period constitutes approval of the request.  Approval of the deviation request does not constitute a change, or the basis for a change, to the negotiated cost or price of this contract, or the estimated cost of any undefinitized contract actions.

(End of clause)

 

(ALTERNATE I)

(NOVEMBER 2006)

   As prescribed in 1834.203-70(b), substitute the following paragraph (b) for paragraph (b) of the basic clause:

  (b) If, at the time of award, the Contractor’s EVMS has not been determined by the Cognizant Federal Agency to be compliant with the EVMS guidelines, or the Contractor does not have an existing cost/schedule control system that is compliant with the guidelines in the ANSI/EIA-748 Standard (current version at the time of ward), the Contractor shall apply the system to the contract and shall take timely action to implement its plan to be compliant with the guidelines.  The Government will not formally validate/accept the Contractor’s EVMS with respect to this contract.  The use of the Contractor’s EVMS for this contract does not imply Government acceptance of the Contractor’s EVMS for application to future contracts.  The Government will monitor compliance through routine surveillance.

 

1852.235-70 Center for AeroSpace Information.

As prescribed in 1835.070(a), insert the following clause:

CENTER FOR AEROSPACE INFORMATION

(DECEMBER 2006)

        (a) The Contractor should register with and avail itself of the services provided by the NASA

Center for AeroSpace Information (CASI) (http://www.sti.nasa.gov) for the conduct of research or research and development required under this contract.  CASI provides a variety of services and products as a NASA repository and database of research information, which may enhance contract performance.

     (b) Should the CASI information or service requested by the Contractor be unavailable or not

in the exact form necessary by the Contractor, neither CASI nor NASA is obligated to search for or change the format of the information.  A failure to furnish information shall not entitle the Contractor to an equitable adjustment under the terms and conditions of this contract.

     (c) Information regarding CASI and the services available can be obtained at the Internet address contained in paragraph (a) of this clause.

 

(End of clause)

 

1852.235-71  Key Personnel and Facilities.

  As prescribed in 1835.070(b), insert the following clause:

KEY PERSONNEL AND FACILITIES

(MARCH 1989)

  (a)   The personnel and/or facilities listed below (or specified in the  contract Schedule)  are considered essential to the work being performed under this contract.  Before removing, replacing, or diverting any of the listed or specified personnel or facilities, the Contractor shall (1) notify the Contracting Officer reasonably in advance and (2) submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this contract.

   (b)   The Contractor shall make no diversion without the Contracting Officer's written consent; provided, that the Contracting Officer may ratify in writing the proposed change, and that ratification shall constitute the Contracting Officer's consent required by this clause.

   (c)   The list of personnel and/or facilities (shown below or as specified in the contract Schedule) may, with the consent of the contracting parties, be amended from time to time during the course of the contract to add or delete personnel and/or facilities.

 

   [List here the personnel and/or facilities considered essential, unless they are specified in the contract Schedule.]

(End of clause)

 

1852.235-72 Instructions for Responding to NASA Research Announcements.

As prescribed in 1835.070(c), insert the following provision:

INSTRUCTIONS FOR RESPONDING TO NASA RESEARCH ANNOUNCEMENTS

(NOVEMBER 2004)

  (a) General.

       (1) Proposals received in response to a NASA Research Announcement (NRA) will be used only for evaluation pur­poses.  NASA does not allow a proposal, the contents of which are not available without restriction from another source, or any unique ideas submitted in response to an NRA to be used as the basis of a solicitation or in negotiation with other organizations, nor is a pre-award synop­sis published for individual proposals.

       (2) A solicited proposal that results in a NASA award becomes part of the record of that transaction and may be available to the public on specific request; however, infor­mation or material that NASA and the awardee mutually agree to be of a privi­leged nature will be held in confidence to the extent permitted by law, including the Freedom of Information Act.

       (3) NRAs contain programmatic information and certain requirements which apply only to proposals prepared in response to that particular announcement.  These in­structions contain the general proposal preparation information which applies to responses to all NRAs.

       (4) A contract, grant, cooperative agree­ment, or other agreement may be used to accomplish an effort funded in response to an NRA.  ­NASA will determine the appropriate award instrument.  Contracts resulting from NRAs are subject to the Federal Acquisition Regulation and the NASA FAR Supplement.  Any resultant grants or cooperative agreements will be awarded and administered in accor­dance with the NASA Grant and Coopera­tive Agreement Handbook (NPR 5800.1).

       (5) NASA does not have mandatory forms or formats for re­sponses to NRAs; however, it is requested that proposals conform to the guidelines in these instructions.  NASA may accept proposals without discussion; hence, proposals should initially be as complete as possible and be submitted on the proposers' most favorable terms.

       (6) To be considered for award, a submission must, at a minimum, present a specific project within the areas delineated by the NRA; contain sufficient technical and cost information to permit a meaningful evalu­ation; be signed by an official autho­rized to legally bind the submitting organization; not merely offer to perform standard services or to just provide computer facilities or services; and not significantly duplicate a more specific current or pending NASA solicitation.

  (b) NRA-Specific Items.  Several proposal submission items appear in the NRA itself:  the unique NRA identifier; when to submit proposals; where to send proposals; number of copies required; and sources for more information.  Items included in these instructions may be supplemented by the NRA.

  (c) The following information is needed to permit consideration in an objective manner.  NRAs will generally specify topics for which additional information or greater detail is desirable.  Each proposal copy shall contain all submitted material, including a copy of the transmittal letter if it contains substantive information.

       (1) Transmittal Letter or Prefatory Materi­al.

            (i) The legal name and address of the organization and specific division or cam­pus identification if part of a larger organi­zation;

            (ii) A brief, scientifically valid project title intelligible to a scientifically literate reader and suitable for use in the public press;

            (iii) Type of organization: e.g., profit, nonprofit, educational, small business, minority, women-owned, etc.;

            (iv) Name and telephone number of the principal investigator and business person­nel who may be contacted during evalua­tion or negotiation;

            (v) Identification of other organi­zations that are currently evaluating a proposal for the same efforts;

            (vi) Identification of the NRA, by number and title, to which the proposal is responding;

            (vii) Dollar amount requested, desired starting date, and duration of pro­ject;

            (viii) Date of submission; and

            (ix) Signature of a responsible official or authorized representative of the organi­zation, or any other person authorized to legally bind the organization (unless the signature appears on the proposal itself).



Relations will arrange with the foreign sponsor for the proposed participation on a no-exchange-of-funds basis, in which NASA and the non-U.S. sponsoring agency or funding institution will each bear the cost of discharging their respective responsibilities.

      (4)  Depending on the nature and extent of the proposed cooperation, these arrangements may entail:

            (i)  An exchange of letters between NASA and the foreign sponsor; or

           (ii)  A formal Agency-to-Agency Memorandum of Understanding (MOU).

 (m) Cancellation of NRA.  NASA reserves the right to make no awards under this NRA and to cancel this NRA.  NASA assumes no liability for canceling the NRA or for anyone's failure to receive actual notice of cancellation.

(End of provision)

 

1852.235-73 Final Scientific and Technical Reports.

As prescribed in 1835.070(d) insert the following clause:

Final Scientific and Technical Reports

(DECEMBER 2006)

   (a) The Contractor shall submit to the Contracting Officer a final report that summarizes the

results of the entire con­tract, including recom­menda­tions and conclusions based on the experience and results obtained.  The final report should include tables, graphs, diagrams, curves, sketches, photo­graphs, and drawings in sufficient detail to explain comprehensively the results achieved under the contract.

   (b) The final report shall be of a quality suitable for publication and shall follow the formatting and stylistic guidelines contained in NPR 2200.2A, Guidelines for Documentation, Approval, and Dissemination of NASA Scientific and Technical Information.  Electronic formats for submission of reports should be used to the maximum extent practical.  Before electronically submitting reports containing scientific and technical information (STI) that is export-controlled or limited or restricted, contact the Contracting Officer to determine the requirements to electronically transmit these forms of STI.  If appropriate electronic safeguards are not available at the time of submission, a paper copy or a CD-ROM of the report shall be required.  Information regarding appropriate electronic formats for final reports is available at http://www.sti.nasa.gov under “Publish STI – Electronic File Formats.”

   (c) The last page of the final report shall be a completed Standard Form (SF) 298, Report Documentation Page.

   (d) In addition to the final report submitted to the Contracting Officer, the Contractor shall concurrently provide to the Center STI/Publication Manager and the NASA Center for AeroSpace Information (CASI) a copy of the letter transmitting the final report to the Contracting Officer.  The copy of the letter shall be submitted to CASI at the address listed at http://www.sti.nasa.gov under the “Get Help” link.

   (e) In accordance with paragraph (d) of the Rights in Data --General clause (52.227-14) of this contract, the Contractor may publish, or otherwise disseminate, data produced during the performance of this contract, including data contained in the final report, and any additional reports required by 1852.235-74 when included in the contract, without prior review by NASA.  The Contractor is responsible for reviewing publication or dissemination of the data for conformance with laws and regulations governing its distribution, including intellectual property rights, export control, national security and other requirements, and to the extent the contractor receives or is given access to data necessary for the performance of the contract which contain restrictive markings, for complying with such restrictive markings.  Should the Contractor seek to publish or otherwise disseminate the final report, or any additional reports required by 1852.235-74 if applicable, as delivered to NASA under this contract, the Contractor may do so once NASA has completed its document availability authorization review, and availability of the report has been determined.

(End of clause)

Alternate I 

(FEBRUARY 2003)

   As prescribed by 1835.070(d)(1), insert the following as paragraph (e) of the basic clause:

   (e) The data resulting from this research activity is “fundamental research” which will be broadly shared within the scientific community.  No foreign national access or dissemination restrictions apply to this research activity.   The Contractor may publish, release, or otherwise disseminate data produced during the performance of this contract, including the final report, without prior review by NASA for export control or national security purposes.  However, NASA retains the right to review the final report to ensure that proprietary information, which may have been provided to the Contractor, is not released without authorization and for consistency with NASA publication standards.  Additionally, the Contractor is responsible for reviewing any publication, release, or dissemination of the data for conformance with other restrictions expressly set forth in this contract, and to the extent it receives or is given access to data necessary for the performance of the contract which contain restrictive markings, for compliance with such restrictive markings.

 

Alternate II

(FEBRUARY 2003)

   As prescribed by 1835.070(d)(2), insert the following as paragraph (e) of the basic clause:

   (e) Data resulting from this research activity may be subject to export control, national security restrictions or other restrictions designated by NASA; or, to the extent the Contractor receives or is given access to data necessary for the performance of the contract which contain restrictive markings, may include proprietary information of others.  Therefore, the Contractor shall not publish, release, or otherwise disseminate, except to NASA, data produced during the performance of this contract, including data contained in the final report and any additional reports required by 1852.235-74 when included in the contract, without prior review by NASA.  Should the Contractor seek to publish, release, or otherwise disseminate data produced during the performance of this contract, the Contractor may do so once NASA has completed its document availability authorization review and the availability of the data has been determined.

 (End of clause)

ALTERNATE III

(JANUARY 2005)

As prescribed by 1835.070(d)(3), insert the following as paragraph (e) of the basic clause: