97-104
Procurement Notice
October 14, 2004
MISCELLANEOUS ADMINISTRATIVE REVISIONS
BACKGROUND: NASA has modified its current practice
for issuance and maintenance of the NASA FAR Supplement (NFS) by only
publishing in the Federal Register those regulations which may have a
significant effect beyond the internal operating procedures of the Agency or
have a significant cost or administrative impact on contractors or offerors and
are subject to public comment. The
NFS will continue to integrate into a single document both regulations subject
to public comment and internal Agency guidance and procedures that do not
require public comment. The single
official NASA-maintained version of the NFS is available on the Internet. NASA personnel must comply with all
regulatory and internal guidance and procedures contained in the NFS.
The
periodic review of the NFS conducted in concert with the above new practice
identified various administrative and editorial changes. In addition to the changes required for
completeness and understanding of regulatory text, editorial and administrative
changes are made to internal guidance and procedures to update references and
make corrections.
CLAUSE CHANGES: None.
PARTS AFFECTED:
Parts 1815, 1846, 1851, and
1852.
REPLACEMENT
PAGES: You may use the enclosed pages to replace
15:3, 15:4, 15:17, 15:18, 46:1, 46:2, 51:1, 51:2, 52:30.1, and 52:30.2 of the
NFS.
TYPE OF RULE AND
PUBLICATION DATES: These
changes were published as a final rule in the Federal Register on October 14,
2004 (69 FR 60967 - 60968).
HEADQUARTERS
CONTACT: Celeste Dalton,
Contract Management Division (ID010), (202) 358-1645, email: Celeste.M.Dalton@nasa.gov.
James A. Balinskas
Director, Contract Management Division
Enclosures
PART 1815
CONTRACTING BY NEGOTIATION
Subpart
1815.1--Source Selection Processes
and Techniques
1815.101 Best value continuum.
When a written acquisition plan is not
required by 1807.103, the contracting officer must document in the contract
file the source selection approach and the rating method to be used, how they
will be used, and how these will result in selection of the best value to the
government.
Subpart
1815. 2--Solicitation and Receipt of Proposals and
Information
1815.201 Exchanges with industry before
receipt of proposals.
(c)(6)(A) Except for
acquisitions described in 1815.300-70(b) contracting officers shall issue draft
requests for proposals (DRFPs) for all competitive negotiated acquisitions
expected to exceed $10,000,000 (including all options or later phases of the
same project). DRFPs shall invite
comments from potential offerors on all aspects of the draft solicitation,
including the requirements, schedules, proposal instructions, and evaluation
approaches. Potential offerors
should be specifically requested to identify unnecessary or inefficient requirements. If the DRFP contains Government-unique
standards, potential offerors should be invited to identify voluntary consensus
standards that meet the Government's requirements as alternatives to
Government-unique standards cited as requirements, in accordance with FAR
11.101 and OMB Circular A-119. Comments should also be requested on any perceived safety,
occupational health, security (including information technology security),
environmental, export control, and/or other programmatic risk issues associated
with performance of the work.
When considered appropriate, the statement of work or the specifications
may be issued in advance of other solicitation sections.
(B)
Contracting officers shall plan the acquisition schedule to include
adequate time for issuance of the DRFP, potential offeror review and comment,
and NASA evaluation and disposition of the comments.
(C)
When issuing DRFPs, potential offerors should be advised that the DRFP is
not a solicitation and NASA is not requesting proposals.
(D)
Whenever feasible, contracting officers should include a summary of the
disposition of significant DRFP comments with the final RFP.
(E)
If performance-based payments are planned to be used in a competitive negotiated
acquisition, the DRFP shall request potential offerors to suggest terms,
including performance events or payment criteria. Contracting officers shall use that
information to establish a common set of performance-based payments parameters
in the formal RFP when practicable.
(F)
The procurement officer may waive the requirement for a DRFP upon written
determination that the expected benefits will not be realized given the nature
of the supply or service being acquired.
The DRFP shall not be waived because of poor or inadequate planning.
(f)(i) Upon release of the formal RFP, the contracting officer shall
direct all personnel associated with the acquisition to refrain from
communicating with prospective offerors and to refer all inquiries to the
contracting officer or other authorized representative. This procedure is commonly known as a
"blackout notice" and shall not be imposed before release of the RFP.
The notice
may be issued in any format (e.g., letter or electronic) appropriate to the
complexity of the acquisition.
(ii)
Blackout notices are not intended to terminate all communication with
offerors. Contracting officers
should continue to provide information as long as it does not create an unfair
competitive advantage or reveal proprietary data.
1815.203 Requests for proposals.
1815.203-70 Installation reviews.
(a) Installations shall establish
procedures to review all RFPs before release. When appropriate given the complexity of
the acquisition or the number of offices involved in solicitation review,
centers should consider use of a single review meeting called a Solicitation
Review Board (SRB) as a streamlined alternative to the serial or sequential
coordination of the solicitation with reviewing offices. The SRB is a meeting in which all
offices having review and approval responsibilities discuss the solicitation
and their concerns. Actions
assigned and changes required by the SRB shall be documented.
(b) When source evaluation board
(SEB) procedures are used in accordance with 1815.370, the SEB shall review and
approve the RFP prior to issuance.
1815.203-71 Headquarters reviews.
For RFPs requiring Headquarters
review and approval, the procurement officer shall submit ten copies of the RFP
to the Assistant Administrator for Procurement (Code HS). Any significant information relating to
the RFP or the planned evaluation methodology omitted from the RFP itself
should also be provided.
1815.203-72 Risk
management.
In all RFPs for supplies or
services for which a technical proposal is required, proposal instructions
shall require offerors to identify and discuss risk factors and issues
throughout the proposal where they are relevant, and describe their approach to
managing these risks.
1815.204 Contract format.
1815.204-2 Part I - The Schedule.
(c) To the maximum extent
practicable, requirements should be defined as performance based
specifications/statements of work that focus on required outcomes or results,
not methods of performance or processes.
1815.204-5 Part IV - Representations and
instructions.
(b) The information required in
proposals should be kept to the minimum necessary for the source selection
decision.
1815.204-70 Page limitations.
(a)
Technical and contracting personnel will agree on page limitations for their
respective portions of an RFP.
Unless approved in writing by the procurement officer, the page
limitation for the contracting portion of an RFP (all sections except Section
C, Description/
For
Headquarters selections, the Office of General Counsel or designee will prepare
the statement.
Subpart 1815.4--Contract
Pricing
1815.403 Obtaining cost or pricing data.
1815.403-1 Prohibition on obtaining cost or
pricing data.
(b)(1) The adequate price competition exception is applicable to both
fixed-price and cost-reimbursement type acquisitions. Contracting officers shall assume that
all competitive acquisitions qualify for this exception.
(c)(4) Waivers of the requirement
for submission of cost or pricing data shall be prepared in accordance with FAR 1.704. A copy of each waiver shall be sent to
the Headquarters Office of Procurement (Code HK).
1815.403-170 Waivers of cost or pricing
data.
(a) NASA has waived the requirement
for the submission of cost or pricing data when
contracting
with the Canadian Commercial Corporation (CCC). This waiver applies to the CCC and its
subcontractors. The CCC will
provide assurance of the fairness and reasonableness of the proposed price. This assurance should be relied on;
however, contracting officers shall
ensure that the appropriate level of information other than cost or pricing
data is submitted by subcontractors to support any required proposal analysis,
including a technical analysis and a cost realism analysis. The CCC also will provide for follow-up
audit activity to ensure that any excess profits are found and refunded to
NASA.
(b) NASA has waived the requirement
for the submission of cost or pricing data when contracting for Small Business
Innovation Research (SBIR) program Phase II contracts. However, contracting officers shall
ensure that the appropriate level of information other than cost or pricing
data is submitted to determine price reasonableness and cost realism.
1815.403-3 Requiring information other than
cost or pricing data.
(b) As indicated in 1815.403-1(b)(1), the
adequate price competition exception applies to all competitive
acquisitions. For other than
firm-fixed-price competitions, only the minimum information other than cost or
pricing data necessary to ensure price reasonableness and assess cost realism
should be requested. For
firm-fixed-price competitions, the contracting officer shall not request any
cost information, except as required by FAR 22.1103, unless proposed prices
appear unreasonable or unrealistically low given the offeror’s proposed
approach and there are concerns that the contractor may default.
1815.403-4 Requiring cost or pricing data.
(b)(2) If a certificate of current
cost or pricing data is made applicable as of a date other than the date of
price agreement, the agreed date should generally be within two weeks of the
date of that agreement.
1815.404 Proposal analysis.
1815.404-2 Information to support proposal
analysis.
(a)(1)(A) A field pricing report consists of a technical report and an
audit report by the cognizant contract audit activity. Contracting officers should request a
technical report from the ACO only if NASA resources are not available.
(B)
When the required participation of the ACO or auditor involves merely a
verification of information, contracting officers should obtain this
verification from the cognizant office by telephone rather than formal request
of field pricing support.
(C)
When the cost proposal is for a product of a follow-on nature, contracting
officers shall ensure that the following items, at a minimum are considered:
actuals incurred under the previous contract, learning experience, technical
and production analysis, and subcontract proposal analysis. This information may be obtained through
NASA resources or the cognizant DCMA ACO or DCAA.
(D)
Requests for field pricing assistance may be made on NASA Form 1434, Letter of
Request for Pricing-Audit-Technical Evaluation Services.
(b)(1) (i)(a)
The NASA structured approach for determining profit or fee objectives,
described in 1815.404-471 shall be used to determine profit or fee objectives
in the negotiation of contracts greater than or equal to $100,000 that use cost
analysis and are:
(1) Awarded on the basis of
other than full and open competition (see FAR 6.3);
(2) Awarded under NASA Research
Announcements (NRAs) and Announcements of Opportunity (AO’s); or
(3) Awarded under the Small
Business Innovative Research (SBIR) or the Small Business Technology Transfer
Research (STTR) programs.
(b)
The rate calculated for the basic contract may only be used on actions under a
negotiated contract when the conditions affecting profit or fee do not change.
(c)
Although specific agreement on the applied weights or values for individual
profit or fee factors shall not be attempted, the contracting officer may
encourage the contractor to –
(1)
Present the details of its proposed profit amounts in the structured approach
format or similar structured approach; and
(2)
Use the structured approach method in developing profit or fee objectives for
negotiated subcontracts.
(ii)
The use of the NASA structured approach for profit or fee is not required
for:
(a)
Architect-engineer contracts;
(b)
Management contracts for operation and/or maintenance of Government facilities;
(c)
Construction contracts;
(d)
Contracts primarily requiring delivery of materials supplied by subcontractors;
(e)
Termination settlements; and
(f)
Contracts having unusual pricing situations when the procurement officer
determines in writing that the structured approach is unsuitable.
(c)(2) Contracting officers shall
document the profit or fee analysis in the contract file.
1815.404-470 NASA Form 634.
NASA Form (NF) 634 shall be used in
performing the analysis necessary to develop profit or fee objectives.
1815.404-471 NASA structured approach for
profit or fee objective.
PART 1846
QUALITY ASSURANCE
TABLE OF
CONTENTS
1846.000 Scope
of part.
SUBPART 1846.3
CONTRACT CLAUSES
1846.370 NASA
contract clauses.
SUBPART 1846.4 GOVERNMENT
CONTRACT QUALITY ASSURANCE
1846.401 General.
1846.470 Contract
clause.
SUBPART 1846.6
MATERIAL
INSPECTION AND RECEIVING REPORTS
1846.670 Introduction.
1846.670-1
General.
1846.670-2
Applicability.
1846.670-3
Use.
1846.670-4
Multiple
shipments.
1846.670-5
Forms.
1846.671
Contract
quality assurance on shipments between contractors.
1846.672
Preparing
DD Forms 250 and 250c.
1846.672-1
Preparation
instructions.
1846.672-2
Consolidated
shipments.
1846.672-3
Multiple
consignee instructions.
1846.672-4
Correction
instructions.
1846.672-5
Invoice
instructions.
1846.672-6
Packing
list instructions.
1846.672-7
Receiving
instructions.
1846.673
Distribution
of DD Forms 250 and 250c.
1846.674
Contract
clause.
SUBPART 1846.7 WARRANTIES
1846.703 Criteria
for use of warranties.
1846.703-70 Additional
criteria.
1846.704 Authority
for use of warranties.
1846.770 Administration.
PART 1846
QUALITY ASSURANCE
1846.000 Scope of part.
The
Government has a duty to assure that appropriated funds are spent wisely. That duty is fulfilled in part through
surveillance. Surveillance may be
conducted through "insight" (i.e., monitoring of selected metrics
and/or milestones) or "oversight" (i.e., Government review and
concurrence with contractor decisions).
The decision to use insight or oversight is based on an assessment of
the risk inherent in the activity being surveilled. Surveillance must be conducted whether
or not the contract effort has been structured as performance-based.
Subpart 1846.3--Contract
Clauses
1846.370 NASA contract clauses.
(a) The contracting officer shall insert the
clause at 1852.246-70, Mission Critical Space System Personnel
Reliability Program, in solicitations and contracts involving
critical positions designated in accordance with 14 CFR 1214.5, Mission
Critical Space System Personnel Reliability Program.
(b) The contracting officer shall insert the
clause at 1852.246-73, Human Space Flight Item, in solicitations and contracts for human
space flight hardware and flight-related equipment if the highest available
quality standards are necessary to ensure astronaut safety.
Subpart 1846.4--Government Contract Quality
Assurance
1846.401 General.
(a) The quality assurance surveillance plan (QASP) which
the project office prepares in conjunction with the statement of work is
preliminary. It reflects the
Government's surveillance approach relative to the perceived programmatic risk,
and is written at a general rather than specific level because the risks will
not be completely identified at that time.
After contract award, contracting officers shall ensure that the QASP is
revised to reflect the risks associated with the successful proposal. This final QASP shall not be included in
the contract, but should be periodically reviewed to ensure its currency.
1846.470 Contract clause.
The
contracting officer may insert a clause substantially as stated at 1852.246-71, Government Contract Quality Assurance Functions,
in solicitations and contracts to specify the location(s) of quality assurance
functions.
Subpart 1846.6--Material
Inspection and Receiving Reports
1846.670
Introduction.
1846.670-1 General.
(a) This subpart contains procedures and
instructions for use of the Material Inspection and Receiving Report
(MIRR) (DD Form 250 series).
(b)
MIRRs are used to document contract quality assurance (CQA), acceptance
and commercial shipping/packing lists used to evidence Government contract
quality of supplies and services, and shipments. MIRRs are not used for --
PART 1851
USE OF GOVERNMENT SOURCES
BY CONTRACTORS
TABLE OF
CONTENTS
SUBPART 1851.1 CONTRACTOR
USE OF GOVERNMENT SUPPLY
SOURCES
1851.102 Authorization
to use Government supply sources.
1851.102-70 Contractor
acquisition of filing cabinets.
SUBPART 1851.2 CONTRACTOR
USE OF INTERAGENCY FLEET
MANAGEMENT SYSTEM (IFMS) VEHICLES
1851.202 Authorization.
1851.205 Contract
clause.
PART 1851
USE OF GOVERNMENT SOURCES BY CONTRACTORS
Subpart 1851.1--Contractor
Use of Government Supply Sources
1851.102
Authorization to use
Government supply sources.
(e) The contracting officer shall use substantially the
following format for letters authorizing contractor use of Government supply
sources:
SUBJECT: Authorization to
Lease, Rent, or Purchase from General Services Administration (GSA) Supply
Sources
(Contractor's
name)
(Address)
(1) You are hereby authorized to act for the
Government in the following matters:
(i) The acquisition of supplies and/or
services under Contract No. available for purchase by Government
agencies either directly from GSA stock or under Federal Supply Schedules
subject to the limitations set forth in this authorization.
(ii) The leasing or rental of equipment for use on
Contract No.
available for lease or rental by Government agencies under Federal Supply
Schedules subject to the limitations set forth in this authorization.
(iii)
The issuance of tax exemption certificates in lieu of the payment of State or
other taxes for which the Government is not liable on supplies or services
purchased under this authorization.
(2)(i) Purchase orders under GSA schedules and
contracts shall be placed in accordance with the terms and conditions of the
GSA schedule or contract and this authorization. A copy of this authorization
shall be attached to the order (unless a copy was previously furnished to the
GSA contractor) and shall contain the following statement:
“This order is placed on behalf of the
National Aeronautics and Space Administration in furtherance of United States
Government Contract No. ,
pursuant to written authorization dated ,
a copy of which (is attached) (you
have on file). In the event of any
inconsistency between the terms and conditions of this order and those of the
applicable GSA schedule/contract, the latter will govern.”
(ii) Orders for items in the GSA Supply Catalog shall
be placed in accordance with the Catalog and this authorization and shall
include the address to which billings are to be sent. Bills are not issued by
GSA until after shipment has been made and should therefore be paid promptly.
Any necessary adjustments will be made by GSA subsequent to payment. All orders
shall contain the following statement:
“This order is placed on behalf of the
National Aeronautics and Space Administration in furtherance of United States
Government Contract No. ___________, pursuant to written authorization
dated , a copy of which
(is attached) (you have on file).”
(3) (Insert any
other provisions and restrictions.)
(4) The authority
hereby granted is not transferable or assignable.
(Contracting
Officer)
(e)(3) Contracting officers shall use NHB 4100.1, NASA
Materials Inventory Management Manual, to obtain activity address codes to
enable use of FEDSTRIP and MILSTRIP.
1851.102-70
Contractor acquisition of filing cabinets.
(a) The Contracting officer must approve any
planned contractor acquisition of filing cabinets whose title will vest in the
Government. The contracting officer
shall ensure that the contractor takes the following actions before submitting a
request for approval:
(1)
Transfer inactive records to contractor storage areas;
(2)
Dispose of unnecessary records in accordance with corporate procedures;
(3)
Use less expensive shelf filing methods; and
(4)
Take other actions to reduce the need for filing cabinets.
(b)
If after taking the actions in paragraphs (a)(1) through (4) of this section,
the contractor requires additional filing capacity, it shall submit for
contracting officer approval a request to order filing cabinets. This request shall include a discussion
of why sufficient additional filing capacity is necessary and shall address the
results of the actions in paragraphs (a)(1) through (4) of this section. The
contracting officer shall review the request in consultation with the Records
Management Officer, the Property and Supply Officer, and the project officer,
if appropriate.
(c)If
the need for filing cabinets is approved, the contracting officer shall attempt
to fill the need by providing any available excess items of the type required
through appropriate property accountability channels. Approved requests that cannot be filled
from excess shall be returned to the contractor with an authorization to obtain
file cabinets, preferably through GSA.
(b) The Contractor shall take all
reasonable safety and occupational health measures consistent with standard
industry practice in performing this contract. The Contractor shall comply with all
Federal, State, and local laws applicable to safety and occupational health and
with the safety and occupational health standards, specifications, reporting
requirements, and any other relevant requirements of this contract.
(c) The Contractor shall take, or cause
to be taken, any other safety, and occupational health measures the Contracting
Officer may reasonably direct. To the extent that the Contractor may be
entitled to an equitable adjustment for those measures under the terms and
conditions of this contract, the equitable adjustment shall be determined pursuant
to the procedures of the Changes clause of this contract; provided, that no
adjustment shall be made under this Safety and Health clause for any change for
which an equitable adjustment is expressly provided under any other clause of
the contract.
(d) The Contracting Officer may notify the Contractor in
writing of any noncompliance with this clause and specify corrective actions to
be taken. In situations where the
Contracting Officer becomes aware of noncompliance that may pose a serious or
imminent danger to safety and health of the public, astronauts and pilots, the
NASA workforce (including Contractor employees working on NASA contracts), or
high value mission critical equipment or property, the Contracting Officer
shall notify the Contractor orally, with written confirmation. The Contractor shall promptly take and
report any necessary corrective action.
The Government may pursue appropriate remedies in the event the
Contractor fails to promptly take the necessary corrective action.
(e) The Contractor (or subcontractor or
supplier) shall insert the substance of this clause, including this paragraph
(e) and any applicable Schedule provisions, with appropriate changes of
designations of the parties, in subcontracts of every tier that exceed the micro-purchase
threshold.
(End of clause)
1852.223-73 Safety and Health Plan.
As prescribed in 1823.7001(c), insert
the following provision:
SAFETY AND HEALTH PLAN
(APRIL 2002)
(a) The offeror shall submit a detailed
safety and occupational health plan as part of its proposal (see NPG 8715.3,
NASA Safety Manual, Appendices).
The plan shall include a detailed discussion of the policies,
procedures, and techniques that will be used to ensure the safety and occupational
health of Contractor employees and to ensure the safety of all working
conditions throughout the performance of the contract.
(b)
When applicable, the plan shall address the policies, procedures, and
techniques that will be used to ensure the safety and occupational health of
the public, astronauts and pilots, the NASA workforce (including Contractor
employees working on NASA contracts), and high-value equipment and property.
(c) The plan shall similarly address
subcontractor employee safety and occupational health for those proposed subcontracts
that contain one or more of the following conditions:
(3)
The work, regardless of place of performance, involves hazards that could
endanger the
public, astronauts and pilots, the
NASA workforce (including Contractor employees working on NASA contracts), or
high value equipment or property, and the hazards are not adequately addressed
by Occupational Safety and Health Administration (OSHA) or Department of
Transportation (DOT) regulations (if applicable).
(d)
This plan, as approved by the Contracting Officer, will be included in any
resulting contract.
(End
of provision)
ALTERNATE I
(APRIL 2002)
As prescribed in 1823.7001(c),
delete the first sentence in paragraph (a) of the basic provision and
substitute the following:
The
apparent low bidder, upon request by the Contracting Officer, shall submit a
detailed safety and occupational health plan (see NPG 8715.3, NASA Safety
Manual, Appendices). The plan shall
be submitted within the time specified by the Contracting Officer. Failure to submit an acceptable plan
shall make the bidder ineligible for the award of a contract.
1852.223-74 Drug- and alcohol-free
workforce.
As prescribed in 1823.570-2, insert
the following clause:
DRUG- AND ALCOHOL-FREE WORKFORCE
(MARCH 1996)
(a) Definitions. As used in this clause the terms "employee,"
"controlled substance," "employee in a sensitive
position," and “use, in violation
of applicable law or Federal regulation, of alcohol” are as defined
in 48 CFR 1823.570-2.
(b)(1) The Contractor shall
institute and maintain a program for achieving a drug-and alcohol-free
workforce. As a minimum, the
program shall provide for preemployment, reasonable suspicion, random,
post-accident, and periodic recurring (follow-up) testing of contractor
employees in sensitive positions for use, in violation of applicable law or
Federal regulation, of alcohol or a controlled substance. The Contractor may establish its testing
or rehabilitation program in cooperation with other contractors or
organizations.
(2) This
clause neither prohibits nor requires the Contractor to test employees in a
foreign country. If the Contractor
chooses to conduct such testing, this clause does not authorize the Contractor
to violate foreign law in conducting such testing.
(3) The
Contractor's program shall test for the use of marijuana and cocaine. The Contractor's program may test for
the use of other controlled substances.
(4) The
Contractor's program shall conform to the "Mandatory Guidelines for
Federal Workplace Drug Testing Programs" published by the Department of
Health and Human Services (59 FR 29908, June 9, 1994) and the procedures in 49
CFR part 40, "Procedures for Transportation Workplace Drug Testing
Programs," in which references to "DOT" shall be read as
"NASA", and the split sample method of collection shall be used.
(c)(1) The Contractor's program
shall provide, where appropriate, for the suspension, disqualification, or
dismissal of any employee in a sensitive position in any instance where a test
conducted and confirmed under the Contractor's program indicates that such
individual has used, in violation of applicable law or Federal regulation,
alcohol or a controlled substance.