04-70
Procurement Notice
April 26, 2012
NFS 1852, AWARD FEE FOR SERVICE AND END-ITEM CONTRACTS
BACKGROUND: This Procurement Notice (PN) revises
the NASA FAR Supplement (NFS) to reflect the final rule published on March 27,
2012 in the Federal Register. This final
rule updated the Award Fee for Service Contracts clause (NFS
1852.216-76) to clarify that the amount of award fee held in reserve, if any,
shall not exceed $100,000 for the contract, and (2) added similar language to
the Award Fee for End-Item Contracts clause (NFS 1852.216-77) to allow the
contracting officer to withhold fee payments, at a not-to-exceed amount of
$100,000 for the contract, in reserve to protect the Government’s interests
relative to an orderly and timely closeout of the contract.
ACQUISITIONS
AFFECTED BY CHANGES: All award fee incentive contracts awarded and final
solicitations issued after the effective date (April 26, 2012) of the NFS final
rule dated March 27, 2012.
ACTION
REQUIRED BY CONTRACTING OFFICERS: Contracting officers shall use
the enclosed revised NFS clauses relative to award fee in all contracts awarded
and final solicitations issued after the effective date of the NFS final rule
dated March 27, 2012.
PROVISION AND
CLAUSE CHANGES:
1852.216-76 and 1852.216-77
PARTS AFFECTED: Part 1852.
REPLACEMENT
PAGES: You may use
the enclosed pages to replace 52:23,
52:24, 52:25 and 52:26 of the NFS.
TYPE OF RULE
AND PUBLICATION DATE: The PN was published as a final rule in the Federal Register
(Vol. 77, No. 59 FR 18106) on March 27, 2012.
HEADQUARTERS
CONTACT: Bill Roets,
Office of Procurement, Contract Management Division, (202) 358-4483, email: william.roets-1@nasa.gov.
/s/
Ronald A. Poussard
Director, Contract
Management Division
Enclosures
DISTRIBUTION
LIST:
PN LIST
interested
parties must first address their concerns, issues, disagreements, and/or
recommendations to the contracting officer for resolution.
(b)
If resolution cannot be made by the contracting officer, interested
parties may contact the installation ombudsman, whose name, address, telephone
number, facsimile number, and e-mail address may be found at: http://prod.nais.nasa.gov/pub/pub_library/Omb.html.
Concerns, issues, disagreements, and recommendations which cannot be resolved
at the installation may be referred to the Agency ombudsman identified at the
above URL. Please do not contact the
ombudsman to request copies of the solicitation, verify offer due date, or
clarify technical requirements. Such
inquiries shall be directed to the Contracting Officer or as specified
elsewhere in this document.
(End
of clause)
ALTERNATE I
(JUNE 2000)
As prescribed in 1815.7003, insert
the following paragraph (c):
(c) If this is a task or delivery
order contract, the ombudsman shall review complaints from contractors and
ensure they are afforded a fair opportunity to be considered, consistent with
the procedures of the contract.
(End of clause)
1852.216-73 Estimated
Cost and Cost Sharing.
As prescribed in
1816.307-70(a), insert the following clause:
ESTIMATED COST AND
COST SHARING
(DECEMBER 1991)
(a)
It is
estimated that the total cost of performing the work under this contract
will be
$
.
(b) For performance of the work under this
contract, the Contractor shall be reimbursed for not more than
percent of the costs of
performance determined to be allowable under the Allowable Cost and Payment
clause. The remaining percent or more of the costs of
performance so determined shall constitute the Contractor's share, for which it
will not be reimbursed by the Government.
(c) For purposes of the [insert "Limitation of Cost" or
"Limitation of Funds"] clause, the total estimated cost to the
Government is hereby established as $
(insert estimated Government share); this amount is the maximum
Government liability.
(d) The Contractor
shall maintain records of all contract costs claimed by the Contractor as
constituting part of its share. Those
records shall be subject to audit by the Government. Costs contributed by the
Contractor shall not be charged to the Government under any other grant,
contract, or agreement (including allocation to other grants, contracts, or
agreements as part of an independent research and development program).
(End of clause)
1852.216-74 Estimated
Cost and Fixed Fee.
As prescribed in
1816.307-70(b), insert the following clause:
ESTIMATED COST AND
FIXED FEE
(DECEMBER 1991)
The estimated cost of this contract is
exclusive of the fixed fee of .
The total estimated cost and fixed fee is .
(End of clause)
1852.216-75
Payment of Fixed Fee.
As prescribed in
1816.307-70(c), insert the following clause:
PAYMENT OF FIXED FEE
(DECEMBER 1988)
The fixed fee shall
be paid in monthly installments based upon the percentage of completion of work
as determined by the Contracting Officer.
(End of clause)
1852.216-76 Award Fee for Service
Contracts.
As prescribed in 1816.406-70(a), insert the
following clause:
AWARD FEE FOR SERVICE
CONTRACTS
(APRIL 2012)
(a) The contractor can earn award fee from a minimum of zero dollars to
the maximum stated in NASA FAR Supplement clause 1852.216-85, "Estimated
Cost and Award Fee" in this contract.
(b) Beginning 6* months
after the effective date of this contract, the Government shall evaluate the
Contractor's performance every 6* months to determine the amount of
award fee earned by the contractor during the period. The Contractor may
submit a self-evaluation of performance for each evaluation period under
consideration. These self-evaluations will be
considered by the Government in its evaluation.
The Government's Fee Determination Official (FDO) will determine the award fee
amounts based on the Contractor's performance in accordance with [identify
performance evaluation plan]. The plan may be revised unilaterally by the
Government prior to the beginning of any rating period to redirect emphasis.
(c) The Government will advise the Contractor in writing of the
evaluation results. The [insert payment office] will make payment based on
[Insert method of authorizing award fee payment, e.g., issuance of unilateral
modification by contracting officer].
(d) The
Contracting Officer may direct the withholding of earned
award fee payments until a
reserve is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest relative
to an orderly and timely closeout of the contract. This reserve shall
not exceed 15 percent of the contract’s total
potential award fee or $100,000, whichever is less.
(e) The amount of award fee
which can be awarded in each evaluation period is limited to the amounts set
forth at [identify location of award fee amounts]. Award fee
which is not earned in an evaluation period cannot be reallocated to future
evaluation periods.
(f)(1) Provisional award
fee payments [insert "will" or "will not", as applicable]
be made under this contract pending the determination of the amount of fee
earned for an evaluation period. If applicable, provisional award fee
payments will be made to the Contractor on a [insert the frequency of
provisional payments (not more often than monthly)] basis. The
total amount of award fee available in an evaluation period that will be
provisionally paid is the lesser of [Insert
a percent not to exceed 80 percent] or the prior period's evaluation score.
(2)
Provisional award fee payments will be superseded by the final award fee
evaluation for that period. If provisional payments exceed the final
evaluation score, the Contractor will either credit the next payment voucher
for the amount of such overpayment or refund the difference to the Government,
as directed by the Contracting Officer.
(3) If the
Contracting Officer determines that the Contractor will not achieve a level of
performance commensurate with the provisional rate, payment of provisional
award fee will be discontinued or reduced in such amounts as the Contracting
Officer deems appropriate. The Contracting Officer will notify the Contractor
in writing if it is determined that such discontinuance or reduction is
appropriate.
(4)
Provisional award fee payments [insert "will" or "will
not", as appropriate] be made prior to the first award fee
determination by the Government.
(g) Award fee determinations are unilateral decisions made solely at
the discretion of the Government.
* [A period of time greater or lesser than 6 months may be
substituted in accordance with 1816.405-272(a).]
(End of clause)
1852.216-77 Award Fee for End Item Contracts.
As prescribed in 1816.406-70(b), insert the
following clause:
AWARD FEE FOR END ITEM
CONTRACTS
(APRIL 2012)
(a) The contractor can earn
award fee, or base fee, if any, from a minimum of zero dollars to the maximum
stated in NASA FAR Supplement clause 1852.216-85, "Estimated Cost and
Award Fee" in this contract. All award fee evaluations, with the exception
of the last evaluation, will be interim evaluations. At the last evaluation,
which is final, the Contractor's performance for the entire contract will be
evaluated to determine total earned award fee. No award fee or base fee will be
paid to the Contractor if the final award fee evaluation is "poor/unsatisfactory."
(b) Beginning 6* months after the effective date of this
contract, the Government will evaluate the Contractor's interim performance
every 6* months to monitor Contractor performance prior to contract completion
and to provide feedback to the Contractor.
The evaluation will be
performed in accordance with [identify
performance evaluation plan] to this contract. The Contractor may submit
a self-evaluation of performance for each period under consideration. These
self-evaluations will be considered by the Government in its evaluation. The
Government will advise the Contractor in writing of the evaluation results. The
plan may be revised unilaterally by the Government prior to the beginning of
any rating period to redirect emphasis.
(c)(1) Base fee, if
applicable, will be paid in [Insert "monthly",
or less frequent period] installments based on the percent of completion of the
work as determined by the Contracting Officer.
(2) Interim award fee payments will be made to the Contractor based on
each interim evaluation. The amount of the interim award fee payment is limited
to the lesser of the interim evaluation score or 80 percent of the fee
allocated to that period less any
provisional payments made during the period. All interim award fee payments
will be superseded by the final award fee determination.
(3) Provisional award fee
payments will [insert "not" if applicable] be made under this
contract pending each interim evaluation. If applicable, provisional award fee
payments will be made to the Contractor on a [insert the frequency of
provisional payments (not more often than monthly) basis. The amount of
award fee which will be provisionally paid in each evaluation period is limited
to [Insert a percent not to exceed 80
percent] of the prior interim evaluation score (see [insert applicable cite]).
Provisional award fee payments made each evaluation period will be superseded
by the interim award fee evaluation for that period. If provisional payments
made exceed the interim evaluation score, the Contractor will either credit the
next payment voucher for the amount of such overpayment or refund the
difference to the Government, as directed by the Contracting Officer. If
the Government determines that (i) the total amount of provisional fee payments
will apparently substantially exceed the anticipated final evaluation
score, or (ii) the prior interim evaluation is "poor/unsatisfactory,"
the Contracting Officer will direct the suspension or reduction of the future
payments and/or request a prompt refund of excess payments as appropriate.
Written notification of the determination will be provided to the Contractor
with a copy to the Deputy Chief Financial Officer (Finance).
(4) All
interim (and provisional, if applicable) fee payments will be superseded by the
fee determination made in the final award fee evaluation. The Government will
then pay the Contractor, or the Contractor will refund to the Government the
difference between the final award fee determination
and the cumulative interim (and provisional, if applicable) fee payments. If
the final award fee evaluation is "poor/unsatisfactory", any base fee
paid will be refunded to the Government.
(5) Payment
of base fee, if applicable, will be made based on submission of an invoice by
the Contractor. Payment of award fee will be made by the [insert payment
office] based on [Insert
method of making award fee payment, e.g., issuance of a unilateral modification
by the Contracting Officer].
(d) The Contracting Officer may direct the withholding of
interim award fee payments until a reserve is set aside in an amount that the
Contracting Officer considers necessary to protect the Government's interest
relative to an orderly and timely closeout of the contract. This reserve shall
not exceed 15 percent of the contracts total potential award fee or $100,000, whichever
is less.
(e)
Award fee determinations are unilateral decisions made solely at the discretion
of the Government.
* [A period of time greater or lesser than 6 months may be
substituted in accordance with 1816.405-272(a).]
(End of clause)
1852.216-78 Firm Fixed Price.
As prescribed in
1816.202-70, insert the following clause:
FIRM FIXED PRICE
(DECEMBER 1988)
The total firm fixed
price of this contract is $[Insert the appropriate amount].
(End of clause)
1852.216-80 Task Ordering Procedure.
As prescribed in
1816.506-70, insert the following clause:
TASK ORDERING
PROCEDURE
(OCTOBERr
1996)