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97-40

Procurement Notice


February 11, 2000  

STANDARD CLAUSE FOR EXPORT CONTROLLED TECHNOLOGY

PURPOSE: To add a contract clause the purpose of which is to assure contractors (and offerors) understand that they are responsible for export compliance in accordance with law and regulation, and that they should not rely on NASA to obtain necessary licenses in execution of the contracted work.

BACKGROUND: A proposed rule was published in the Federal Register on October 28, 1999 (64 FR 58031 - 58032).

REGULATION: Changes are made in Parts 1825 and 1852 as set forth in the enclosed replacement pages.

REPLACEMENT PAGES: You may use the enclosed pages to replace Part 1825, 52:1, 52:2, 52:30.1, 52:30.2, 52:30.3 (added), 52-93, and 52-94.

REGULATORY COMPLIANCE: This PN was published as a final rule in the Federal Register (64 FR 6915-6916, February 11, 2000).

EFFECTIVE DATE: This PN is effective as dated and shall remain in effect until canceled or superseded.

HEADQUARTERS CONTACT: Patrick Flynn, NASA Headquarters, Code HK, Washington, DC 20546, (202) 358-0460, email: partrick.flynn@hq.nasa.gov.

 

R. Scott Thompson
Director, Contract Management Division

Enclosures


PART 1825
FOREIGN ACQUISITION

TABLE OF CONTENTS

1825.000 Scope of part.

1825.000-70 Definition.

SUBPART 1825.1 BUY AMERICAN ACT--SUPPLIES

1825.101 Definitions.

1825.101-70 NASA definition.

1825.102 PoliCcy.

1825.103 Agreements with certain foreign governments.

1825.103-70 Canadian end products.

1825.105 Evaluating offers.

1825.108 Excepted articles, materials, and supplies.

SUBPART 1825.2 BUY AMERICAN ACT--CONSTRUCTION MATERIALS

1825.202 Policy.

1825.207 Solicitation provisions and contract clauses.

1825.207-70 NASA contract clause.

SUBPART 1825.3 BALANCE OF PAYMENTS PROGRAM

1825.304 Excess and near-excess foreign currencies.

SUBPART 1825.4 TRADE AGREEMENTS

1825.400 Scope of subpart.

1825.402 Policy.

1825.403 Exceptions.

1825.405 Procedures.

SUBPART 1825.6 CUSTOMS AND DUTIES

1825.602 Policy.

1825.603 Procedures.

1825.603-70 NASA procedures.

1825.605 Contract clause.

1825.605-70 NASA contract clause.

SUBPART 1825.9 ADDITIONAL FOREIGN ACQUISITION CLAUSES

1825.901 Omission of Audit clause.

1825.970 Export control.

1825.970-1 Background.

1825.970-2 Contract clause.

SUBPART 1825.70 FOREIGN CONTRACTS

1825.7000 Scope of subpart.

1825.7001 Definition.

1825.7002 Policy.

1825.7003 Procedure.

 

PART 1825
FOREIGN ACQUISITION

25.000 Scope of part.

25.000-70 Definition.

"Agency head", for the purposes of this part, is the Associate Administrator for Procurement unless specifically stated otherwise.

Subpart 1825.1--Buy American Act--Supplies

1825.101 Definitions.

1825.101-70 NASA Definition.

"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 25.401 applies.

1825.102 Policy.

(a)(3)(A) The procurement officer shall send proposed public interest determinations to the Associate Administrator for Procurement (Code HS) for approval.

(B) See 1825.103-70(a) for a blanket determination regarding Canadian end products.

(a)(4) The items listed in FAR 25.108(d)(1) are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities or a satisfactory quality.

(b)(1) Contracting officers may make determinations of nonavailability both before entering into contracts and in the course of contract administration; provided, however, that in the latter case the Government receives adequate consideration. The following is the format for nonavailability determinations:

Determination of Nonavailability

Pursuant to the authority contained in the Buy American Act (41 U.S.C. 10) and authority delegated to me by NFS 1825.102(b)(1), I hereby make the following findings:

a. (Insert a description of the item or items to be acquired, including unit, quantity, and estimated cost inclusive of duty and transportation costs to destination.)

b. (Enter the name and address of the proposed contractor or supplier and the country of origin of the items.)

c. (Include a brief statement of the necessity for the acquisition.)

d. (Include a statement of facts establishing the nonavailability of similar items of domestic origin. If there is no known domestic item that can be used as a reasonable substitute, make a statement to this effect.)

On the basis of these findings, I determine that the item(s) described in paragraph a. above is/are not mined, produced, or manufactured (or the articles, materials, or supplies from which the item(s) is/are manufactured are not mined, produced, or manufactured) in the United States in sufficient and reasonably available quantities of a satisfactory quality.

Accordingly, the Buy American Act requirement that acquisition be made from domestic sources and that the item(s) be of domestic origin is not applicable to this acquisition, since the acquisition is within the Buy American Act's nonavailability exception.

Authority is granted to acquire the above-described item(s) of foreign origin (country or origin) at an estimated total cost of $   , including duty and transportation costs to destination.

(Date) _______________

Contracting Officer _______________

1825.103 Agreements with certain foreign governments.

1825.103-70 Canadian end products.

(a) The Associate 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 1825.101-70. Accordingly, contracting officers shall 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) shall be included in evaluating offers for Canadian end products.

(b) See FAR 25.402(a)(3)(ii) for evaluation of Canadian end products with values in excess of $25,000 as defined in FAR 25.401.

1825.105 Evaluating offers.

(a) To make the price comparison between domestic and foreign offers, the contracting officer shall increase the price of the foreign offer by 6- or 12-percent, as applicable. If the application of the differential results in a tie between the foreign and domestic offers, award shall be made to the domestic offeror.

(c) The FAR requirement to apply both 6- and 12-percent factors pertains only when the lowest acceptable domestic offer is from a small business concern.

1825.108 Excepted articles, materials, and supplies.

(a) See 1825.102(a)(4) and 1825.202(a)(3).

Subpart 1825.2--Buy American Act--Construction Materials

1825.202 Policy.

(a)(2) The construction materials listed in FAR 25.108(d)(1) are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. In addition, subject to the approval of the head of the contracting activity when required, contracting officers may make determinations of nonavailability both before entering into contracts and in the course of contract administration; provided, however, that in the latter case the Government receives adequate consideration. See 1825.102(b)(1) for the determination of nonavailability format.

1825.207 Solicitation provisions and contract clauses.

1825.207-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-71, Nondomestic Construction Materials, in all contracts for construction.

Subpart 1825.3--Balance of Payments Program

1825.304 Excess and near-excess foreign currencies.

(c) The NASA Headquarters Comptroller (Code B) is the designated official for making the determination of the feasibility of using excess or near-excess currency.

Subpart 1825.4--Trade Agreements

1825.400 Scope of subpart.

(b) The Buy American Act and the Balance of Payments Program apply to all acquisitions of Japanese end products or services in excess of $2,500.

1825.402 Policy.

(c)(3) Waiver under the Trade Agreements Act is not applicable to acquisitions of Japanese end products or services in excess of $2,500.

1825.403 Exceptions.

(c)(2) If a contracting officer considers an individual acquisition to be a purchase "indispensable for national security or for national defense purposes" and appropriate for exclusion from the provisions of FAR 25.4 and of this Subpart 1825.4, the contracting officer shall submit a request with supporting rationale to the Headquarters Office of External Relations (Code I) for coordination with the Office of the U.S. Trade Representative.

1825.405 Procedures.

Solicitations shall require that applicable duty charges be included in the offered price of an eligible product, whether or not duty-free certificates are obtained. Duty charges shall be included in the price evaluation.

Subpart 1825.6--Customs and Duties

1825.602 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.

1825.603 Procedures.

1825.603-70 NASA procedures.

(a) The following officials are authorized to certify that articles are eligible for duty free entry:

(1) Procurement officers, through delegation from the Associate Administrator for Procurement, for articles imported into the United States that are acquired by NASA or 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. All duty-free certificates (see paragraph (b) of this section for format) shall be coordinated with the center Chief Counsel. Procurement officers shall maintain a record of each certification and make this record available for periodic review by NASA Headquarters and the U.S. Customs Service.

(2) The Associate Administrator for External Relations (Code I) for articles imported pursuant to international agreements.

(3) The Associate Administrator for Space Flight (Code M) for articles imported under agreements other than those identified in paragraphs (a)(1) and (2) of this section, including launch service agreements.

(b) Procurement officers shall complete Customs Service Form CF 7501 (Entry Summary) and an appropriate certification when approving duty free exemption for articles acquired by NASA.

(1) For a single import, use the following certification format specified in 14 CFR 1217.104(a):

Articles for the National Aeronautics and Space Administration

Item 9808.00.80, Harmonized Tariff Schedule of the United States

Program: (Insert name of NASA Program)__________

I hereby certify that the articles identified in [attached invoice] are being imported for the use of the National Aeronautics and Space Administration (NASA) in accordance with 9808.00.80, Harmonized Tariff Schedule of the United States.

Name____________

Date_____________

(2) For a series of imports under a specific acquisition, use the certification format in paragraph (b)(1) of this section and add the following paragraph specified in 14 CFR 1217.104(c) before the signature block:

Before this certification is used to obtain duty-free entry of these articles, a cognizant NASA official at the receiving NASA Installation, who is designated by the Installation Director, shall verify in writing that specifically identified articles to be entered on a particular date are the articles described in this certificate or its attachments. This verification and this certification shall be presented to the U.S. Customs Service at the time entry for the particular articles is sought.

1825.605 Contract clause.

1825.605-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-73, Duty-Free Entry Supplies, in solicitations and contracts when the supplies that will be accorded duty-free entry are identifiable before award. Insert the supplies determined in accordance with FAR 25.604 and 1825.603.

Subpart 1825.9--Additional Foreign Acquisition Clauses

1825.901 Omission of Audit clause.

(c) The Administrator is the approval authority for waivers. The contracting officer shall submit the waiver request, consisting of the determination and findings prescribed in FAR 25.901(d) and any relevant supporting information, to the Headquarters Office of Procurement (Code HS).

1825.970 Export control.

1825.970-1 Background.

(a) NASA contractors and subcontractors are subject to U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799. The contractor is responsible for obtaining the appropriate licenses or other approvals from the Department of State or the Department of Commerce when it exports hardware, technical data, or software, or provides technical assistance to a foreign destination or "foreign person", as defined in 22 CFR 120.16, and there are no applicable or available exemptions/exceptions to the ITAR/ EAR, respectively. A person who is lawfully admitted for permanent residence in the United States is not a "foreign person". (See 22 CFR 120.16 and 15 CFR 734.2(b)(2)(ii).)

(b) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a contractor may export technical data without a license if the contract between the agency and the exporter provides for the export of the data. The clause at 1852.225-70, Alternate I, provides contractual authority for the exemption, but the exemption is available only after the contracting officer, or designated representative, provides written authorization or direction enabling its use. It is NASA policy that the exemption at 22 CFR 125.4(b)(3) may only be used when technical data (including software) is exchanged with a NASA foreign partner pursuant to the terms of an international agreement in furtherance of an international collaborative effort. The contracting officer must obtain the approval of the Center Export Administrator before granting the contractor the authority to use this exemption.

1825.970-2 Contract clause.

Insert the clause at 1852.225-70, Export Licenses, in all solicitations and contracts, except in contracts with foreign entities. Insert the clause with its Alternate I when the NASA project office indicates that technical data (including software) is to be exchanged by the contractor with a NASA foreign partner pursuant to an international agreement.

Subpart 1825.70--Foreign Contracts

1825.7000 Scope of subpart.

This subpart prescribes policy and procedures for negotiating foreign contracts.

1825.7001 Definition.

"Foreign contract acquisition", as used in this subpart, means the acquisition by negotiation of supplies or services, including construction work and research and development when the work is to be performed outside the United States, its possessions, and Puerto Rico by a foreign government or instrumentality thereof or by a foreign private contractor. The term does not include--

(a) Negotiation of government-to-government agreements;

(b) Negotiation of contracts with domestic concerns involving work to be performed outside the United States, its possessions, and Puerto Rico;

(c) Contracts with the Canadian Commercial Corporation; or

(d) Acquisition of books and periodicals from foreign sources of supply.

1825.7002 Policy.

(a) Each contracting office (including NMO JPL) shall coordinate with the Headquarters Office of External Relations (Code I), before initiating any foreign contract acquisition if the acquisition is valued above $100,000 or involves--

(1) Importing or exporting goods or technical data from or to a country listed in 22 CFR 126.1(a) or (d) (Subchapter M, the International Traffic in Arms Regulations);

(2) Importing or exporting Defense Articles or Defense Services on the United States Munitions List at 22 CFR Part 121 which require NASA to obtain a license from the State Department's Office of Defense Trade Controls;

(3) Exporting goods or technical data on the Commerce Control List at 15 CFR Part 744 and that require NASA to obtain either a Special or an Individual Validated License;

(4) Importing and/or exporting goods or technical data from or to an entity listed in 15 CFR Part 744, Supplements 1 through 3; or

(5) Exporting and/or importing of goods, technology, or services to or from any entity subject to transaction control, embargo, or sanctions pursuant to 31 CFR Chapter V.

(b) All coordination required between NASA and the Departments of Commerce, State, and Treasury regarding foreign contract acquisitions shall be accomplished through Headquarters Code I.

1825.7003 Procedure.

The Headquarters or field installation technical office requiring a foreign contract acquisition meeting any of the criteria listed in 1825.7002 shall submit the following information to Headquarters Code I --

(a) The name of the foreign entity, the country or countries involved, and the purpose of the contract;

(b) The Space Act agreement(s) involved (pursuant to NMI 1050.9), if any;

(c) A description of the goods or technical data requiring prior written approval or the issuance of the license for their import or export from the Departments of Commerce, State, or Treasury; and

(d) The reason why the acquisition is being placed with a foreign entity.


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

1852.204-75 Security Classification Requirements.

1852.204-76 Security Requirements for Unclassified Automated Information 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.

1852.214-70 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.

1852.219-73 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.

1852.223-70 Safety and Health.

1852.223-71 Frequency Authorization.

1852.223-73 Safety and Health Plan.

1852.223-74 Drug- and Alcohol-Free Workforce.

1852.225-70 Export Licenses.

1852.225-71 Nondomestic Construction Materials.

1852.225-73 Duty-Free Entry Supplies.

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.

1852.227-87 Transfer of Technical Data Under Space Station  International Agreements.

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.

1852.228-75 Minimum Insurance Coverage.

1852.228-76 Cross-Waiver of Liability for Space Station Activities.

1852.228-78 Cross-Waiver of Liability for NASA Expendable Launch Vehicle Launches.

1852.231-70 Precontract Costs.

1852.231-71 Determination of Compensation Reasonableness.

1852.232-70 NASA Modification of FAR 52.232-12.

1852.232-77 Limitation of Funds (Fixed-Price Contract).

1852.232-79 Payment for On-Site Preparatory Costs.

1852.232-81 Contract Funding.

1852.232-82 Submission of Requests for Progress Payments.

1852.233-70 Protests to NASA.


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.

(2) The Contractor's program shall further prohibit any such individual from working in a sensitive position on a NASA contract, unless such individual has completed a program of rehabilitation described in paragraph (d) of this clause.

(3) The Contractor's program shall further prohibit any such individual from working in any sensitive position on a NASA contract if the individual is determined under the Contractor's program to have used, in violation of applicable law or Federal regulation, alcohol or a controlled substance and the individual meets any of the following criteria:

(i) The individual had undertaken or completed a rehabilitation program described in paragraph (d) of this clause prior to such use;

(ii) Following such determination, the individual refuses to undertake such a rehabilitation program;

(iii) Following such determination, the individual fails to complete such a rehabilitation program; or

(iv) The individual used a controlled substance or alcohol while on duty.

(d) The Contractor shall institute and maintain an appropriate rehabilitation program which shall, as a minimum, provide for the identification and opportunity for treatment of employees whose duties include responsibility for safety-sensitive, security, or National security functions who are in need of assistance in resolving problems with the use of alcohol or controlled substances.

(e) The requirements of this clause shall take precedence over any state or local Government laws, rules, regulations, ordinances, standards, or orders that are inconsistent with the requirements of this clause.

(f) For any collective bargaining agreement, the Contractor will negotiate the terms of its program with employee representatives, as appropriate, under labor relations laws or negotiated agreements. Such negotiation, however, cannot change the requirements of this clause. Employees covered under collective bargaining agreements will not be subject to the requirements of this clause until those agreements have been modified, as necessary; provided, however, that if one year after commencement of negotiation the parties have failed to reach agreement, an impasse will be determined to have been reached and the Contractor will unilaterally implement the requirements of this clause.

(g) The Contractor shall insert a clause containing all the terms of this clause, including this paragraph (g), in all subcontracts in which work is performed by an employee in a sensitive position, except subcontracts for commercial items (see FAR parts 2 and 12).

(End of clause)

1852.225-70 Export Licenses.

As prescribed in 1825.970-2, insert the following clause:

EXPORT LICENSES
(FEBRUARY 2000)

(a) The Contractor shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in the performance of this contract. In the absence of available license exemptions/exceptions, the Contractor shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance.

(b) The Contractor shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract, including instances where the work is to be performed on-site at [insert name of NASA installation], where the foreign person will have access to export-controlled technical data or software.

(c) The Contractor shall be responsible for all regulatory record keeping requirements associated with the use of licenses and license exemptions/exceptions.

(d) The Contractor shall be responsible for ensuring that the provisions of this clause apply to its subcontractors.

(End of clause)

ALTERNATE I
(FEBRUARY 2000)

As prescribed in 1825.970-2, add the following paragraph (e) as Alternate I to the clause:

(e) The Contractor may request, in writing, that the Contracting Officer authorize it to export ITAR-controlled technical data (including software) pursuant to the exemption at 22 CFR 125.4(b)(3). The Contracting Officer or designated representative may authorize or direct the use of the exemption where the data does not disclose details of the design, development, production, or manufacture of any defense article.

1852.225-71 Nondomestic Construction Materials.

As prescribed in 1825.207-70, insert the following clause:

NONDOMESTIC CONSTRUCTION MATERIALS
(DECEMBER 1988)

The requirements of the Buy American Act--Construction Materials clause do not apply to the following construction materials or components:

[List articles of materials and supplies.]

(End of clause)

1852.225-73 Duty-Free Entry Supplies.

As prescribed in 1825.605-70, insert the following clause:

DUTY-FREE ENTRY SUPPLIES
(DECEMBER 1988)

In accordance with the Duty-Free Entry clause of this contract, the following supplies will be given duty-free entry:

[Insert the supplies that are to be accorded duty-free entry.]

(End of clause)