04-74
Procurement Notice
October 29, 2012
Anchor Tenancy
PURPOSE: The purpose of this PN is to delete the
current NFS prohibition on Anchor Tenancy contracts and add a policy which
permits Anchor Tenancy contracts under very limited circumstances.
BACKGROUND: NASA's Federal Acquisition Regulation
Supplement (NFS) currently contains an inaccurate prohibition on anchor tenancy
contracts. The prohibition is included in the NFS based on The Space Act, as
amended by NASA’s FY 1992 Appropriations Act (42 USC 2459d). The NFS
states no appropriated funds may be used to enter into contracts, grants, or
other agreements for more than 1 year if the primary effect is to provide a
guaranteed customer base for or establish an anchor tenancy in new commercial
space hardware or services unless an appropriations Act specifies the new
commercial space hardware or services to be developed/used or the contract,
grant, or agreement is specified in an appropriations Act. However,
subsequent to the prohibition, as part of NASA’s FY 1993 Authorization Act, 15
U.S.C. 5806 was added to the Commercial Space Competitiveness Act (CSCA). The latter statute includes limited authority
for NASA to enter into multi-year anchor tenancy contracts for the purchase of
a good or service if the Agency receives an appropriation that 1) authorizes a
multi-year anchor tenancy contract and 2) specifies the commercial space
product or service to be developed or used.
Furthermore, the NASA Administrator would be required to make a
determination that addresses the following 6 criteria:
(1) the good or
service meets the mission requirements of NASA;
(2) the
commercially procured good or service is cost effective;
(3) the good or
service is procured through a competitive process;
(4) existing or
potential customers for the good or service other than the United States
Government have been specified identified;
(5) the long-term
viability of the venture is not dependent upon a continued Government market or
other nonreimbursable Government support; and
(6)
private capital is at risk in the venture.
ACQUISITIONS AFFECTED BY CHANGES:
This policy is applicable to all solicitations issued on or after the effective
date of this PN.
ACTIONS REQUIRED BY CONTRACTING OFFICERS:
None. This policy does not affect individual procurements and NASA does not
currently have an appropriation which authorizes Anchor Tenancy contracts.
CLAUSE CHANGES:
None.
PARTS AFFECTED: Part
1812.
PART 1812
ACQUISITION OF
COMMERCIAL ITEMS
TABLE
OF CONTENTS
SUBPART 1812.3
SOLICITATION PROVISIONS AND
CONTRACT CLAUSES
FOR THE ACQUISITION OF COMMERCIAL ITEMS
1812.301 Solicitation
provisions and contract clauses for the acquisition of commercial items.
1812.302 Tailoring of provisions and
clauses for the acquisition of commercial items.
SUBPART 1812.4
UNIQUE REQUIREMENTS REGARDING
TERMS AND CONDITIONS FOR COMMERCIAL
ITEMS
1812.404 Warranties.
SUBPART 1812.70
COMMERCIAL SPACE HARDWARE OR
SERVICES
1812.7000 Anchor
tenancy contracts.
PART 1812
ACQUISITION OF COMMERCIAL ITEMS
Subpart 1812.3--Solicitation
Provisions and Contract Clauses
for the Acquisition
of Commercial Items
1812.301 Solicitation provisions and contract clauses for the acquisition of
commercial items.
(f)(i) The
following clauses are authorized for use in acquisitions of commercial items
when required by the clause prescription:
(A) 1852.214-71, Grouping for Aggregate Award.
(B) 1852.214-72, Full Quantities.
(C) 1852.215-84, Ombudsman.
(D) 1852.219-75, Small Business Subcontracting Reporting.
(E) 1852.219-76, NASA 8 Percent Goal.
(F) 1852.223-70, Safety and Health.
(G) 1852.223-71, Frequency Authorization.
(H) 1852.223-72, Safety and Health (Short Form).
(I) 1852.223-73, Safety and Health Plan.
(J) 1852.223-75, Major Breach of Safety and Security.
(K) [RESERVED]
(L) 1852.228-76, Cross-Waiver of
Liability for International Space Station Activities.
(M) 1852.228-78, Cross-Waiver of
Liability for Space or Space Exploration Activities.
(N)
1852.246-72, Material Inspection and Receiving Report.
(ii) No other provisions and clauses prescribed in
the NFS or center documents shall be used in acquisitions of commercial items,
except as permitted by FAR 12.302.
1812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
(c)
The Assistant Administrator for Procurement (Code HS) is the approval
authority for waivers. Requests shall be
prepared and submitted in accordance with 1801.471.
Subpart 1812.4--Unique Requirements Regarding Terms and
Conditions for Commercial Items
1812.404 Warranties.
(b)
In acquisitions under the Simplified Acquisition Threshold specified in FAR Part 13, no express
warranty should be required other than the offeror's
commercial warranty.
Subpart
1812.70--Commercial Space Hardware or Services
1812.7000
Anchor tenancy contracts.
(a) Subject to receiving an
appropriation that:
(1) Authorizes a multi-year anchor tenancy contract; and
(2) Specifies the commercial space product
or service to be developed or used, NASA may enter into a multi-year
anchor tenancy contract only if Administrator
determines –
(i)
The good or service meets the mission requirements of the National Aeronautics
and Space Administration;
(ii) The commercially procured good or service is
cost effective;
(iii) The good or
service is procured through a competitive process;
(iv)
Existing or potential customers for the good or service other
than the United States Government have been specifically identified;
(v) The long-term viability of the venture is not
dependent upon a continued Government market or other nonreimbursable
Government support; and
(vi) Private capital is at risk
in the venture.
(b) Contracts entered into
under such authority may provide for the payment of termination liability in
the event that the Government terminates such contracts for is
convenience.
(i) Contracts that provide for this payment of termination
liability shall include a fixed schedule of such termination liability
payments. Liability under such contracts
shall not exceed the total payments which the Government would have made after
the date of termination to purchase the good or service if the contract were not
terminated.
(ii) Subject to appropriations, funds available for such
termination liability payments may be used for purchase of the good or service
upon successful delivery of the good or service pursuant to the contract. In such case, sufficient funds shall remain
available to cover any remaining termination liability.
(c) Limitations:
(1) Contracts entered into under such
authority shall not exceed 10 years in duration.
(2) Such contracts shall provide for
delivery of the good or service on a firm, fixed price basis.
(3) To the extent practicable,
reasonable performance specifications shall be used to define technical
requirements in such contracts.
(4) In any such contract, the
Administrator shall reserve the right to completely or partially terminate the
contract without payment of such termination liability because of the
contractor’s actual or anticipated failure to perform its contractual
obligations.
(d) The term “anchor
tenancy” means an arrangement in which the United States Government agrees to
procure sufficient quantities of a commercial space product or service needed
to meet Government mission requirements so that a commercial venture is made
viable.