PART 1809
CONTRACTOR QUALIFICATIONS
TABLE
OF CONTENTS
SUBPART 1809.1 RESPONSIBLE PROSPECTIVE CONTRACTORS
1809.104-4 Subcontract responsibility.
1809.106 Preaward surveys.
1809.106-1 Conditions for preaward surveys.
1809.106-2 Requests for preaward surveys.
1809.106-3 Interagency preaward surveys.
1809.106-70 Preaward surveys performed by NASA
installations.
SUBPART 1809.2 QUALIFICATIONS REQUIREMENTS
1809.200 Scope of subpart.
1809.202 Policy.
1809.203 QPL's, QML's, and QBL's.
1809.203-70 General.
1809.203-71 Waiver of qualification
requirements.
1809.206 Acquisitions subject to
qualification requirements.
1809.206-1 General.
1809.206-70 Small businesses.
1809.206-71 Contract clause.
SUBPART 1809.4 DEBARMENT,
SUSPENSION, AND INELIGIBILITY
1809.403 Definitions.
1809.404
Excluded Parties List Systems.
1809.405 Effect of listing.
1809.405-1 Continuation of current
contracts.
1809.405-2 Restrictions on
subcontracting.
1809.406 Debarment.
1809.406-1 General.
1809.406-3 Procedures.
1809.407 Suspension.
1809.407-1 General.
1809.407-3 Procedures.
1809.408 Certification
regarding debarment, suspension, proposed
debarment, and other
responsibility matters.
1809.470 Reporting of suspected evasive
actions and causes for debarment
or suspension.
1809.470-1 Certification
regarding responsibility matters.
1809.470-2 Contents
of reports.
SUBPART
1809.5 ORGANIZATIONAL
AND CONSULTANT CONFLICTS
OF INTEREST
1809.500 Scope of subpart.
1809.503 Waiver.
1809.505-4
Obtaining access to sensitive information.
1809.506 Procedures.
1809.507 Solicitation provisions and
contract clause.
1809.507-2 Contract clause.
SUBPART 1809.6 CONTRACTOR TEAM ARRANGEMENTS
1809.670 Contract clause.
PART 1809
CONTRACTOR
QUALIFICATIONS
Subpart 1809.1--Responsible
Prospective Contractors
1809.104-4
Subcontractor responsibility.
Generally, the Canadian Commercial
Corporation's (CCC) proposal of a firm as its subcontractor is sufficient basis
for an affirmative determination of responsibility. However, when the CCC determination of
responsibility is not consistent with other information available to the
contracting office, the contracting officer shall request from the CCC and any
other sources whatever information is necessary to make the responsibility
determination. Upon request, CCC shall
be furnished the rationale for any subsequent determination of
nonresponsibility.
1809.106 Preaward surveys.
1809.106-1 Conditions for preaward surveys.
(a)(i)
Preaward surveys are used only to
assist the contracting officer to make determinations of responsibility under FAR
9.104. They are not to be used to
obtain information useful to proposal evaluation that does not directly relate
to the responsibility determination.
Accordingly, preaward surveys shall not be used except in rare circumstances
when determination of responsibility cannot be made without the specific
information that can be provided only in a preaward survey report and only
after all other means of obtaining the required information have been explored.
(ii) Surveys shall not be performed for companies of any size
performing study or research contracts.
(iii) The procurement officer shall approve all preaward
survey requests.
1809.106-2 Requests for preaward surveys.
(a) The
"Walsh-Healey Public Contracts Act" block of Section I is for
information purposes only. If
information is needed for a determination on the offeror's eligibility under
the Walsh-Healey Act, it must be specifically requested in block 20.H. of
Section III.
1809.106-3 Interagency preaward surveys.
If the survey will be performed for NASA by a
DOD agency, the SF 1403 request is to be sent to the appropriate office shown
in the DOD Directory of Contract Administration Services Components, DLAH
4105.4, Attn:
Preaward Survey Monitor. DOD
normally allows seven working days in which to conduct a full survey and submit
the report to the requesting agency.
1809.106-70 Preaward surveys performed by NASA
installations.
In discussions with representatives of the
company being surveyed, NASA preaward survey team members shall not refer to or
comment on the possibility of award to the prospective contractor. This does
not preclude discussion with a prospective contractor of questionable areas
that require clarification. Information obtained during the survey will be
treated in strict confidence and divulged only to those Government
representatives having a need to know.
Subpart 1809.2--Qualifications
Requirements
1809.200 Scope of subpart.
This
subpart prescribes policies and procedures to be followed in the use of qualified
products lists for acquisition of parts consistent with the policies of NASA Policy Directive 8730.2, NASA Parts Policy.
1809.202 Policy.
(a) Authority
regarding agency head actions under FAR 9.202(a) is delegated to the cognizant
technical activity, with approval by the installation's competition advocate.
(e) The
approval authority of FAR 9.202(e) is delegated to the installation's
competition advocate. Requests shall be
prepared by the cognizant requirements office and
submitted via the procurement officer.
1809.203 QPL's, QML's and QBL's.
1809.203-70 General.
(a) The
Deputy Associate Administrator for the Office of Safety and Mission Assurance
(Code Q), is responsible for justifying, determining, and approving NASA's need
for inclusion and continued use of qualification requirements in specifications
under the NASA EEE Parts and Advanced Interconnect Program.
1809.203-71 Waiver of qualification requirements.
When acquiring a product under a
specification that includes qualification requirements either for the end item
or for components of the end item, the NASA installation conducting the
acquisition can waive the qualification requirements. Directing a waiver of the end item
qualification requirement constitutes adequate authorization for waiver of
product qualification requirements. When
a waiver has been granted, the solicitation shall specifically indicate that
the qualification requirement is inapplicable.
Such information shall also be included in any synopsis of the acquisition
(see FAR Subpart
5.2).
1809.206
Acquisitions subject to qualification requirements.
1809.206-1 General.
(b)(i) The authority to determine that an
emergency exists is delegated to the installation's competition advocate. Requests for determination shall be prepared
by the cognizant requirements office and submitted
through the procurement officer.
(ii)
Requests not to
enforce a qualification requirement in a nonemergency situation shall be
prepared by the cognizant requirements office and
approved by the Headquarters Office of Safety and Mission Assurance (Code
Q).
(c) If
an offeror seeks to demonstrate its capability, both the product and the
producer must meet the established standards.
1809.206-70 Small businesses.
If a small business otherwise eligible for
award has been placed in a special status on a Qualified Products List
(Mil-Bul-103) or the Qualified Manufacturers List (QML-38510) established as a
part of the NASA Microelectronics Reliability Program and the contracting
officer determines that the small business does not appear to have the capacity
to perform, the certificate of competency procedures in FAR Subpart 19.6 are
applicable.
1809.206-71 Contract clause.
When qualified products (end items or components
of end items) are being procured, the contracting officer shall insert the
clause at 1852.209-70, Product Removal from Qualified Products List,
in the solicitation and in the resulting contract.
Subpart 1809.4--Debarment, Suspension, and
Ineligibility
1809.403 Definitions.
“Suspending and Debarring official.” The NASA Suspending and Debarring Official
(SDO) is the Deputy General Counsel.
1809.404 Excluded
Parties List Systems.
(c) The Director, Headquarters Acquisition Integrity
Program (AIP Director) is responsible for taking the actions listed in FAR
9.404(c).
1809.405
Effect of listing.
(a) The NASA Chief Acquisition Officer (CAO)
is the NASA official responsible for determining that a compelling reason
exists for NASA to conduct business with a contractor that is debarred,
suspended, or proposed for debarment.
If it is believed that a new contract or subcontract must be awarded to
a firm included in the Excluded Parties List System (EPLS), the procurement
officer shall prepare a request for a determination, including the rationale
for why the action should be taken, together with all necessary supporting
information and forward it to the Office of Procurement (Program Operations
Division), and provide a copy to the AIP Director.
(b) The Program Operations Division is
responsible for evaluating the request and coordinating with Procurement, OGC
(both AIP and Contracts Procurement Practice Group (CPPG)), to jointly
determine whether the facts support a recommendation for the CAO to approve
award to a party on the EPLS. Program
Operations Division is also responsible for preparing the headquarters
documentation and providing it to the CAO for approval.
1809.405-1
Continuation of current contracts.
The responsibilities
of the Agency head under FAR 9.405-1 are delegated to the CAO. Approvals shall
be requested in accordance with the procedures in 1809.405.
1809.405-2
Restrictions on subcontracting.
(a) The responsibilities of the Agency head
under FAR 9.405-2(a) are delegated to the CAO. Approval of consent to
subcontract shall be requested in accordance with the procedures in
1809.405.
1809.406 Debarment.
1809.406-1 General.
1809.406-3 Procedures.
(a) Any
person may refer a matter to the SDO when there is information indicating that
a contractor may lack business integrity or business honesty. The information should be referred promptly
to the SDO, through the AIP Director, for consideration. The referral should contain the information
which supports a lack of business integrity or business honesty.
(1) Use the following format when referring a matter to the
SDO for consideration. To the extent practicable, provide all specified
information.
(A) Name, address,
and telephone number of the point of contact for the activity making the
report.
(B) Name,
contractor and Government entity (CAGE) code, DUNS number, and address of the
contractor.
(C) Name and addresses
of the members of the board, principal officers, partners, owners, and
managers.
(D) Name and
addresses of all known affiliates, subsidiaries, or parent firms, and the
nature of the business relationship.
(E) For each
contract affected by the conduct being reported—
(i) The contract number;
(ii) All office identifying numbers or symbols;
(iii) Description of supplies or services;
(iv) The amount;
(v) The percentage of completion;
(vi) The amount paid
the contractor and any amounts due
(vii) Status of invoices or vouchers;
(viii) Whether the
contract is assigned under the Assignment of Claims Act and, if so, to whom;
(ix) The contract
fund citations involved, to expedite accurate return of funds to open accounts
and commands, as appropriate.
(F) For any
other contracts with the contractor or any of its affiliates—
(i)
The contract number;
(ii)
The amount;
(iii)
The amounts paid the contractor;
(iv)
Whether the contract is assigned under the Assignment of Claims Act
and, if so, to whom; and
(v)
The amount due the contractor.
(G) A complete
summary of the facts, including all pertinent evidence and the status of any
legal proceedings involving the contractor.
(H) An estimate of
any damages sustained by the Government as a result of the contractor's action
(explain how the estimate was calculated).
(I) If a contracting office initiates the report, the comments
and recommendations of the contracting officer and of each higher-level
contracting review authority regarding—
(i)
Whether to suspend or debar the contractor;
(ii)
Whether to apply limitations to the suspension or debarment;
(iii)
The period of any recommended debarment; and
(iv)
Whether to continue any current contracts with the contractor (or
explain why a recommendation regarding current contracts is not included).
(J) When
appropriate, as an enclosure to the report—
(i) A
copy or pertinent extracts of each pertinent contract;
(ii)
Witness statements or affidavits;
(iii)
Copies of investigative reports when authorized by the investigative agency;
(iv) Certified copies of indictments, judgments, and
sentencing actions;
(v) A copy of any available
determinations of nonresponsibility in accordance with FAR 9.105-2(a)(1);
(vi) A copy of the information from the Federal
Awardee Performance and Integrity Information System (FAPIIS) data base
(vii)
Any other appropriate exhibits or documentation.
(K) To the extent
that information is available through FPDS-NG, provide a list of other agencies
that hold current contracts with the subjects.
(L) The Contracting
Officer is responsible for gathering the information required and preparing the
report.
(M) The AIP Center
Attorney (AIP-C) is responsible for assisting the CO in preparing the report
and performing a legal sufficiency review. The AIP-C shall sign the report
indicating that the review has been performed.
(N) The report shall be signed by the Contracting
Officer and submitted by the Procurement Officer. Procurement Officers are encouraged to advise
the Center Director, as appropriate, of debarment recommendations provided to
the SDO.
(O) Address the recommendation to the SDO,
indicating OGC (AIP) on the ‘Attention’ line, and send 2 copies of the complete
report, including enclosures to OGC(AIP). One copy of the recommendation, without
enclosures, should be provided to the HQ Office of Procurement, Contract
Management Division.
(P) If a referral
lacks sufficient evidence of a cause for debarment, the SDO may initiate a
review or investigation, as appropriate, by reporting the referral to the
appropriate Government entity, e.g., contracting activity, inspector general,
or criminal investigative agency.
(b) Decision-making
process.
(1) The agency
SDO may initiate the debarment process by issuing a notice of proposed
debarment in accordance with FAR 9.406-3(c) when the SDO finds that the
administrative record contains sufficient evidence of one or more of the causes
for debarment stated in FAR 9.406-2 .
(i)
The absence of a referral in accordance with 1809.406-3(a), or the absence of
any information specified in the report format at 1809.406-3(a)(1), will not preclude the SDO from making such a finding.
(ii)
The signature of the SDO on the notice of proposed debarment is sufficient
evidence that the SDO has made such a finding.
(2) The SDO must use the decision-making process
stated in FAR 9.406-3(b), and any agency-specific procedures that were provided
to the contractor in advance of the decision.
(3) Nature of proceeding. There are two distinct proceedings which may
be involved in the suspension or debarment process. The first is the presentation of matters in
opposition to the suspension or proposed debarment by the contractor. The second is fact-finding which occurs only
in cases in which the contractor’s presentation of matters in opposition raises
a genuine dispute over one or more material facts. In a suspension action based upon an
indictment or in a proposed debarment action based upon a conviction or civil
judgment, there will be no fact-finding proceeding concerning the matters
alleged in the indictment, or the facts underlying the convictions or civil
judgment. However, to the extent that
the proposed action stems from the contractor’s affiliation with an individual
or firm indicted or convicted, or the subject of a civil judgment, fact-finding
is permitted if a genuine dispute of fact is raised as to the question of
affiliation as defined in FAR 9.403.
(4) Presentation of
matters in opposition. In accordance
with FAR 9.406-3(c) and 9.407-3(c), matters in opposition may be presented in
person, in writing, or through a representative. Matters in opposition may be presented
through any combination of the foregoing methods, but if a contractor desires
to present matters in person or through a representative, any written material
should be delivered at least 5 working days in advance of the presentation. Usually, all matters in opposition are
presented in a single proceeding. A
contractor who becomes aware of a pending indictment or allegations of
wrongdoing that the contractor believes may lead to suspension or debarment
action may contact the SDO or designee to provide information as to the
contractor’s present responsibility.
(i) An in-person presentation is an informal
meeting, nonadversarial in nature. The
SDO and/or other Agency representatives may ask questions of the contractor or its
representative making the presentation.
The contractor may select the individuals who will attend the meeting on
the SDO and contractor’s behalf; individual respondents or principals of a
business firm respondent may attend and speak for themselves.
(ii) In accordance with
FAR 9.406-3(c) and 9.407-3(c), the contractor may submit matters in opposition
within 30 days from receipt of the notice of suspension or proposed debarment.
(iii) The opportunity to present matters in
opposition to debarment includes the opportunity to present matters concerning
the duration of the debarment.
(5) Fact-finding.
(i) The SDO will determine whether the
contractor’s presentation has raised a genuine dispute of material
fact(s). If the SDO has decided against
continued suspension or debarment, or the provisions of FAR 9.4 preclude
fact-finding, no fact-finding will be conducted. If the SDO has determined a genuine dispute
of material fact(s) exists, a designated fact-finder will conduct the
fact-finding proceeding. The proceeding
before the fact-finder will be limited to a finding of the facts in dispute as
determined by the SDO.
(ii) The designated fact-finder will establish the
date for a fact-finding proceeding, normally to be held within 45 working days
of the contractor’s presentation of matters in opposition. An official record will be made of the
fact-finding proceeding.
(iii) The Government’s representative and the
contractor will have an opportunity to present evidence relevant to the facts
at issue. The contractor may appear in
person or through a representative in the fact-finding proceeding.
(iv) Neither the Federal Rules of Evidence
nor the Federal Rules of Civil Procedure govern fact-finding. Hearsay evidence may be presented and will be
given appropriate weight by the fact-finder.
(v) Witnesses may testify in person. Witnesses will be reminded of the official
nature of the proceeding and that any false testimony given is subject to
criminal prosecution. Witnesses are
subject to cross-examination.
(6) Timing
requirements. All timing requirements
set forth in these procedures may be extended by the SDO for good cause.
(c) Notice of Proposal to
Debar.
(1)Notification. Contractors will be notified of the proposed
suspension or debarment in accordance with FAR 9.406-3 or 9.407-3. A copy of the record which formed the basis
for the decision by the SDO will be made available to the contractor. If there is a reason to withhold from the
contractor any portion of the record, the contractor will be informed of what
is withheld and the reasons for such withholding.
(2) Written findings of fact will be prepared by
the fact-finder as mandated by FAR 9.406-3(d)(2)(i) and 9.407-3(d)(2)(i).
(3) The fact-finder will determine the disputed
fact(s) by a preponderance of the evidence.
A copy of the findings of fact will be provided to the SDO, the
Government’s representative, and the contractor.
(4) The SDO will determine whether to continue
the suspension or to debar the contractor based upon the entire administrative
record, including the findings of fact.
(5) Prompt written notice of the SDO’s decision
will be sent to the contractor and any affiliates involved, in compliance with
FAR 9.406-3(e) and 9.407-3(d)(4).
1809.407 Suspension.
1809.407-1 General
1809.407-3 Procedures.
(a) Any person may refer a matter to the
SDO. Refer all matters appropriate for
consideration by the SDO as soon as practicable. Use the format and procedures
at 1809.406-3(a)(1) when referring a matter to the
agency SDO for consideration. To the extent practicable, provide all
information specified.
(i)
If a referral lacks sufficient evidence of a cause for suspension, the SDO may initiate
a review or investigation, as appropriate, by reporting the referral to the
appropriate Government entity, e.g., contracting activity, inspector general,
or criminal investigative agency.
(b)
Decision-making process.
(1) The agency
SDO may initiate the suspension process by issuing a notice of suspension in
accordance with FAR 9.407-3(c) when the SDO finds that the administrative
record contains sufficient evidence of one or more of the causes for suspension
stated in FAR 9.407-2. The SDO should
coordinate with appropriate agency offices to assess the impact of suspension
or debarment on agency mission.
(i)
The absence of a referral in accordance with 1809.407-3(a), or the absence of
any information specified in the report format at 1809.406-3(a)(1), will not preclude the SDO from making such a finding.
(ii)
The signature of the SDO on the notice of suspension is sufficient evidence
that the SDO has made such a finding.
(2) In deciding
whether to terminate a suspension following a submission of matters in
opposition, the agency SDO must use the decision-making process stated in FAR
9.407-3(b),and any agency-specific procedures that were provided to the
contractor in advance of the decision.
(3) The SDO shall follow the procedures in 1809.406-3(b)
and 1809.406-3(c).
1809.408 Certification regarding debarment, suspension, proposed debarment, and other responsibility matters.
(a)(2)(A) If the offeror indicates that it has been
indicted, charged, convicted, or had a civil judgment rendered against it, the
contracting officer shall immediately notify the Director, Headquarters
Acquisition Integrity Program, with a copy to the Office of Procurement
(Program Operations Division), providing details as known, and shall await a
response before awarding the contract.
(B)
If the offeror
discloses information that indicates a need for a debarment or suspension
determination, the contracting officer shall report the facts to the Director,
Headquarters Acquisition Integrity Program, with a copy to the Office of
Procurement (Program Operations Division), in accordance with 1809.470.
1809.470 Reporting of suspected evasive actions and
causes for debarment or suspension.
1809.470-1
Certification regarding responsibility matters.
(a) If the offeror indicates that it has been
indicted, charged, convicted, or had a civil judgment rendered against it, or
has been suspended, proposed for debarment, debarred, or has entered into an
administrative agreement to resolve a suspension or debarment proceeding, or
when the information in FAPIIS indicates cause for concern, the contracting
officer shall immediately notify the AIP Director, with a copy to the SDO, and
the HQ Office of Procurement, Contract Management Division, providing details
as follows:
(i)
Copy of the offeror’s
certification;
(ii)
Specific company name
or division;
(iii) Purpose of the
pending acquisition;
(iv) Description of
services;
(v)
Extent of the pending
acquisition competition.
The CO shall await a
response before awarding the contract.
(b) The Program Operations Division is
responsible for working with the CO to ensure that the package is complete.
(c) If
the offeror discloses information that indicates the matter should be reviewed
for suspension or debarment action, the contracting officer shall report the
facts to the AIP Director, Headquarters Acquisition Integrity Program, in
accordance with the format and procedures set forth in 1809.406-3(a)(1) or
1809.407-3(a).
1809.470-2 Contents of reports.
Each report shall be coordinated with local
counsel and shall include substantially the following information, if
available:
(a) Name
and address of the contractor.
(b) Names
of the principal officers, partners, owners, or managers.
(c) All
known affiliates, subsidiaries, or parent firms, and the nature of the
affiliation.
(d) A
description of the contract or contracts concerned, including the contract
number and office identifying numbers or symbols, the amount of each contract,
the amounts paid the contractor and still due, and the percentage of work
completed and to be completed.
(e) The
status of vouchers.
(f) Whether
the contract has been assigned pursuant to the Assignment of Claims Act, and,
if so, the name and address of the assignee and a copy of the assignment.
(g) Whether
any other contracts are outstanding with the contractor or any affiliates, and,
if so, their amount, whether they are assigned pursuant to the Assignment of
Claims Act, and the amounts paid or due on them.
(h) A
complete summary of all pertinent evidence.
If a request for debarment or suspension is based on an indictment or a
conviction, provide the evidence upon which the indictment or conviction is
based.
(i) An
estimate of any damages, sustained by the Government as a result of the
contractor's action, including an explanation of the method used in making the
estimate.
(j) Recommendation
as to (1) whether the contractor should be suspended or debarred, (2) whether
any limitations should be applied to such action, (3) whether current contracts
should be terminated, and (4) the period of any debarment.
(k) As
an enclosure, a copy of the contract(s) or pertinent excerpts, appropriate
exhibits, testimony or statements of witnesses, copies of assignments, and other
relevant documentation.
Subpart
1809.5--Organizational and Consultant Conflicts of
Interest
1809.500 Scope of subpart.
(a) The
Assistant Administrator for Procurement has authorized the procurement officer
to take those actions reserved in FAR Subpart 9.5 for the head of the contracting activity. However, see 1809.503 regarding waivers.
(b) The NASA Organizational Conflict of
Interest (OCI) Guide provides agency-wide guidance to individuals relative to
identifying as well as resolving OCIs and is available at
http://prod.nais.nasa.gov/portals/pl/documents/OCI_Guide.pdf.
1809.503 Waiver.
The Administrator has designated the
Assistant Administrator for Procurement as the approval authority for waivers
under FAR 9.503. The procurement
officer shall forward requests for waivers under FAR 9.503 to the Assistant
Administrator for Procurement (Code HS) for action.
1809.505-4 Obtaining
access to sensitive information.
(b) In
accordance with FAR 9.503, the Assistant Administrator for Procurement has
determined that it would not be in the Government’s interests for NASA to
comply strictly with FAR 9.505-4(b) when acquiring services to support
management activities and administrative functions. The Assistant Administrator for Procurement
has, therefore, waived the requirement that before gaining access to other
companies’ proprietary or sensitive (see 1837.203-70) information contractors
must enter specific agreements with each of those other companies to protect
their information from unauthorized use or disclosure. Accordingly, NASA will not require
contractors and subcontractors and their employees in procurements that support
management activities and administrative functions to enter into separate,
interrelated third party agreements to protect sensitive information from
unauthorized use or disclosure. As an
alternative to numerous, separate third party agreements, 1837.203-70
prescribes detailed policy and procedures to protect contractors from
unauthorized use or disclosure of their sensitive information. Nothing in this section waives the
requirements of FAR 37.204 and 1837.204.
1809.506 Procedures.
(b) The
approving official is the procurement officer when the installation has source
selection authority and the Assistant Administrator for Procurement (Code HS)
when NASA Headquarters has that authority.
1809.507 Solicitation provisions and contract clause.
1809.507-2 Contract clause.
The contracting officer may insert a clause substantially
the same as the clause at 1852.209-71, Limitation
of Future Contracting, in solicitations and contracts.
Subpart
1809.6--Contractor Team Arrangements
1809.670 Contract clause.
The contracting officer shall insert the
clause at 1852.209-72, Composition
of the Contractor, in all construction invitations for bids and resulting
contracts. The clause may be used in
other solicitations and contracts to clarify a contractor team arrangement
where the prime contractor consists of more than one legal entity, such as a
joint venture.
