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97-69

Procurement Notice


February 20, 2002

MAJOR BREACH OF SAFETY OR SECURITY

 

BACKGROUND:  This PN revises 1816.405-274, Award fee evaluation factors, and 1852.223-75, Major Breach of Safety or Security.  

 

Paragraph (b) of 1852.223-75 included outcomes that may result in a major breach of security.  However, paragraph (b) did not clearly state that to be a major breach of security, the outcomes must result from an act or omission by the contractor.  The revised clause now states that a major breach of security is an act or omission by the contractor that results in various outcomes (compromise of classified information, illegal technology transfer, etc.).  This revision makes paragraph (b) (major breach of security) consistent with paragraph (a) (major breach of safety). 

 

Additionally, 1852.223-75(b) stated that a major breach of security may arise from damage or loss greater than $250,000 to the Government, but it was not clear if this outcome was a standalone provision or if it applied to other outcomes in the clause (e.g., did a major breach occur if illegal technology transfer or theft occurred, and the result was damage or loss greater than $250,000 to the Government).  This revision removes the reference to damage or loss greater than $250,000 to the Government, but also clarifies that two of the outcomes are equipment or property damage from vandalism greater than $250,000; or theft greater than $250,000. 

 

The definitions of major breach of safety or security in 1816.405-274(c)(2) and (3) have been revised to make them consistent with the definitions contained in the Major Breach of Safety or Security clause at 1852.223-75.

 

Lastly, this revision correctly identifies OSHA as the Occupational Safety and Health Administration in 1816.405-272 and 1852.223-75.

 

An editorial change is made throughout Part 1816 to revise the title of the head of Code H to read Assistant Administrator for Procurement. 

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  All solicitations and contracts meeting the requirements of 1823.7001(d) issued after February 20, 2002, must include the revised clause 1852.223-75.  Solicitations issued before February 20, 2002, may be amended to include the revised clause if including it would not unduly delay the acquisition. 

 

Clause Changes:  This PN makes the following changes:

   (a) 1852.223-75, Major Breach of Safety or Security, paragraph (a) revised to include a corrected reference to the Occupational Safety and Health Administration;

   (b) 1852.223-75, Major Breach of Safety or Security, paragraph (b) revised to state that a major breach of security is an act or omission by the contractor that results in certain outcomes and to clarify that two of the outcomes are equipment or property damage from vandalism greater than $250,000 or theft greater than $250,000. 

 

PARTS AFFECTED:  Changes are made in Parts 1816 and 1852.

 

REPLACEMENT PAGES:  You may use the enclosed pages to replace 16:1, 16:2, 16:7 thru 16:13, 52:30.1 thru 52:30.4, 52-93 and 52-94.

 

TYPE OF RULE AND PUBLICATION DATE:  This PN was published as a final rule in the Federal Register (67 FR 7617-7618) on February 20, 2002.

 

HEADQUARTERS CONTACT:  Jeff Cullen, Code HK, (202) 358-1784, e-mail: jcullen@hq.nasa.gov.

 

 

 

R. Scott Thompson

Director, Contract Management Division

 

Enclosures



PART 1816

  TYPES OF CONTRACTS

 

TABLE OF CONTENTS

 

SUBPART     1816.1               SELECTING CONTRACT TYPES

1816.104                                  Factors in selecting contract types.

1816.104-70                             Contract type of performance-based contracting (PBC).

 

SUBPART     1816.2              FIXED-PRICE CONTRACTS

1816.202                                  Firm-fixed-price contracts.

1816.202-70                             NASA contract clause.

1816.203                                   Fixed-price contracts with economic price adjustment.

1816.203-4                               Contract clauses.

 

SUBPART     1816.3              COST-REIMBURSEMENT CONTRACTS

1816.303-70                            Cost-sharing contracts.

1816.306                                  Cost-plus-fixed-fee contracts.

1816.307                                  Contract clauses.

1816.307-70                            NASA contract clauses.

 

SUBPART     1816.4              INCENTIVE CONTRACTS

1816.402                                 Application of pre-determined, formula-type incentives.

1816.402-2                              Performance incentives.

1816.402-270                          NASA technical performance incentives.

1816.404                                  Fixed-price contracts with award fees.

1816.405                                  Cost-reimbursement incentive contracts.

1816.405-2                              Cost-plus-award-fee  (CPAF) contracts.

1816.405-270                         CPAF contracts.

1816.405-271                         Base fee.

1816.405-272                         Award fee evaluation periods.

1816.405-273                         Award fee evaluations.

1816.405-274                         Award fee evaluation factors.

1816.405-275                         Award fee evaluation scoring.

1816.405-276                          Award fee payments and limitations.

1816.406                                 Contract clauses.

1816.406-70                            NASA contract clauses.

 

SUBPART     1816.5              INDEFINITE-DELIVERY CONTRACTS

1816.504                                  Indefinite quantity contracts.

1816.505                                  Ordering.

1816.505-70                            Task Ordering.

1816.506-70                            NASA contract clause.

 

SUBPART     1816.6             TIME-AND-MATERIALS, LABOR-HOUR, AND LETTER                                                                    CONTRACTS

1816.603                                 Letter contracts.

1816.603-2                             Application.

1816.603-370                          Approvals.

 

 

PART 1816

TYPES OF CONTRACTS

 

Subpart 1816.1--Selecting Contract Types

 

1816.104 Factors in selecting contract types.

 

1816.104-70 Contract type for performance-based contracting (PBC). 

   (a) PBC is defined in FAR 2.101 and discussed in FAR 37.6.  Although FAR Part 37 primarily addresses services contracts, PBC is not limited to these contracts.  PBC is the preferred way of contracting for all supplies and services at NASA.  Generally, when contract performance risk under a PBC specification can be fairly shifted to the contractor to allow for the operation of objective incentives, a contract type with objectively measurable incentives (e.g., FFP, FPIF, or CPIF) is appropriate.  However, when contractor performance (e.g., cost control, schedule, or quality/technical) is best evaluated subjectively using quantitative measures, a CPAF contract may be used.

   (b) A level-of-effort contract is not PBC.

 

Subpart 1816.2--Fixed-Price Contracts

 

1816.202 Firm-fixed-price contracts.

 

1816.202-70 NASA contract clause.

   The contracting officer shall insert the clause at 1852.216-78, Firm-Fixed-Price, in firm-fixed-price solicitations and contracts.  Insert the appropriate amount in the resulting contract.

 

1816.203 Fixed-price contracts with economic price adjustment.

 

1816.203-4 Contract clauses.

   (a) In addition to the approval requirements in the prescriptions at FAR 52.216-2 through 52.216-4, the contracting officer shall coordinate with the installation's Deputy Chief Financial Officer (Finance) before exceeding the ten-percent limit in paragraph (c)(1) of the clauses at FAR 52.216-2 and 52.216-3 and paragraph (c)(4) of the clause at 52.216-4.

   (d)(2) Contracting officers shall contact the Office of Procurement, Code HK, for specific guidance on preparing clauses using cost indexes.  Such clauses require advance approval by the Assistant Administrator for Procurement.  Requests for approval shall be submitted to the Headquarters Office of Procurement (Code HS).

 

Subpart 1816.3--Cost-Reimbursement Contracts



development, the procurement officer may authorize the use of a base fee not to exceed 3 percent.  Base fee shall not be used when an award fee incentive is used in conjunction with another contract type (e.g., CPIF/AF).

   (b) When a base fee is authorized for use in a CPAF contract, it shall be paid only if the final award fee evaluation is  "satisfactory" or better.  (See 1816.405-273 and 1816.405-275)  Pending final evaluation, base fee may be paid during the life of the contract at defined intervals on a provisional basis.  If the final award fee evaluation is "poor/unsatisfactory", all provisional base fee payments shall be refunded to the Government.

 

1816.405-272 Award fee evaluation periods.          

   (a) Award fee evaluation periods, including those for interim evaluations, should be at least 6 months in length.  When appropriate, the procurement officer may authorize shorter evaluation periods after ensuring that the additional administrative costs associated with the shorter periods are offset by benefits accruing to the Government.  Where practicable, such as developmental contracts with defined performance milestones (e.g., Preliminary Design Review, Critical Design Review, initial system test), establishing evaluation periods at conclusion of the milestones rather than calendar dates, or in combination with calendar dates should be considered.  In no case shall an evaluation period be longer than 12 months.

   (b) A portion of the total available award fee contract shall be allocated to each of the evaluation periods.  This allocation may result in an equal or unequal distribution of fee among the periods.  The contracting officer should consider the nature of each contract and the incentive effects of fee distribution in determining the appropriate allocation structure. 

 

1816.405-273 Award fee evaluations. 

   (a)  Service Contracts.  On contracts where the contract deliverable is the performance of a service over any given time period, contractor performance is often definitively measurable within each evaluation period.  In these cases, all evaluations are final, and the contractor keeps the fee earned in any period regardless of the evaluations of subsequent periods.  Unearned award fee in any given period in a service contract is lost and shall not be carried forward, or "rolled-over," into subsequent periods.

   (b) End Item Contracts.  On contracts, such as those for end item deliverables, where the true quality of contractor performance cannot be measured until the end of the contract, only the last evaluation is final.  At that point, the total contract award fee pool is available, and the contractor's total performance is evaluated against the award fee plan to determine total earned award fee.  In addition to the final evaluation, interim evaluations are done to monitor performance prior to contract completion, provide feedback to the contractor on the Government's assessment of the quality of its performance, and establish the basis for making interim award fee payments (see 1816.405-276(a)).  These interim evaluations and associated interim award fee payments are superseded by the fee determination made in the final evaluation at contract completion.  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 fee payments.

   (c) Control of evaluations.  Interim and final evaluations may be used to provide past performance information during the source selection process in future acquisitions and should be marked and controlled as “Source Selection Information - See FAR 3.104”.

 

1816.405-274 Award fee evaluation factors.           

   (a) Explicit evaluation factors shall be established for each award fee period.

   (b) Evaluation factors will be developed by the contracting officer based upon the characteristics of an individual procurement.  Normally, technical and schedule considerations will be included in all CPAF contracts as evaluation factors.  Cost control shall be included as an evaluation factor in all CPAF contracts.  When explicit evaluation factor weightings are used, cost control shall be no less than 25 percent of the total weighted evaluation factors.  The predominant consideration of the cost control evaluation should be a measurement of the contractor's performance against the negotiated estimated cost of the contract.  This estimated cost may include the value of undefinitized change orders when appropriate.

   (c)(1) The technical factor, if used, must include consideration of risk management (including mission success, safety, security, health, export control, and damage to the environment, as appropriate) unless waived at a level above the contracting officer, with the concurrence of the project manager.  The rationale for any waiver shall be documented in the contract file.  When safety, export control, or security are considered under the technical factor, the award fee plan shall allow the following fee determinations, regardless of contractor performance in other evaluation factors, when there is a major breach of safety or security.

            (i) For evaluation of service contracts under 1816.405-273(a), an overall fee determination of zero for any evaluation period in which there is a major breach of safety or security.

                      (ii) For evaluation of end item contracts under 1816.405-273(b), an overall fee determination of zero for any interim evaluation period in which there is a major breach of safety or security.  To ensure that the final award fee evaluation at contract completion reflects any major breach of safety or security, in an interim period, the overall award fee pool shall be reduced by the amount of the fee available for the period in which the major breach occurred if a zero fee determination was made because of a major breach of safety or security.

       (2)   A major breach of safety must be related directly to the work on the contract.  A major breach of safety is an act or omission of the Contractor that consists of an accident, incident, or exposure resulting in a fatality or mission failure; or in damage to equipment or property equal to or greater than $1 million; or in any “willful” or “repeat” violation cited by the Occupational Safety and Health Administration (OSHA) or by a state agency operating under an OSHA approved plan.

       (3)   A major breach of security may occur on or off Government installations, but must be directly related to the work on the contract.  A major breach of security is an act or omission by the contractor that results in compromise of classified information, illegal technology transfer, workplace violence resulting in criminal conviction, sabotage, compromise or denial of information technology services, equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000.

       (4) The Assistant Administrator for Procurement (Code HS) shall be notified prior to the determination of a zero award fee because of a major breach of safety or security.

   (d) In rare circumstances, contract costs may increase for reasons outside the contractor's control and for which the contractor is not entitled to an equitable adjustment.  One example is a weather-related launch delay on a launch support contract.  The Government shall take such situations into consideration when evaluating contractor cost control.

   (e) Emphasis on cost control should be balanced against other performance requirement objectives.  The contractor should not be incentivized to pursue cost control to the point that overall performance is significantly degraded.  For example, incentivizing an underrun that results in direct negative impacts on technical performance, safety, or other critical contract objectives is both undesirable and counterproductive.  Therefore, evaluation of cost control shall conform to the following guidelines:    

       (1) Normally, the contractor should be given a score of 0 for cost control when there is a significant overrun within its control.  However, the contractor may receive higher scores for cost control if the overrun is insignificant.  Scores should decrease sharply as the size of the overrun increases.  In any evaluation of contractor overrun performance, the Government shall consider the reasons for the overrun and assess the extent and effectiveness of the contractor's efforts to control or mitigate the overrun.

       (2) The contractor should normally be rewarded for an underrun within its control, up to the maximum score allocated for cost control, provided the average numerical rating for all other award fee evaluation factors is 81 or greater (see 1816.405-275).  An underrun shall be rewarded as if the contractor has met the estimated cost of the contract (see 1816.405-274(d)(3)) when the average numerical rating for all other factors is less than 81 but greater than 60.

       (3) The contractor should be rewarded for meeting the estimated cost of the contract, but not to the maximum score allocated for cost control, to the degree that the contractor has prudently managed costs while meeting contract requirements.  No award shall be given in this circumstance unless the average numerical rating for all other award fee evaluation factors is 61 or greater. 

   (f) When an AF arrangement is used in conjunction with another contract type, the award fee’s cost control factor will only apply to a subjective assessment of the contractor’s efforts to control costs and not the actual cost outcome incentivized under the basic contract type (e.g. CPIF, FPIF). 

   (g)(1) The contractor's performance against the subcontracting plan incorporated in the contract shall be evaluated.  Emphasis may be placed on the contractor's accomplishment of its goals for subcontracting with small business, HUBZone small business, women-owned small business, veteran-owned small business, and service-disabled veteran-owned small business concerns.

       (2) The contractor's performance against the contract target for participation as subcontractors by small disadvantaged business concerns in the NAICS Major Groups designated by the Department of Commerce (see FAR 19.201(c)) shall also be evaluated if the clause at FAR 52.219-26, Small Disadvantaged Business Participation - Incentive Subcontracting, is not included in the contract (see FAR 19.1204(c)).  

       (3) The contractor's achievements in subcontracting high technology efforts as well as the contractor's performance under the Mentor-Protégé Program, if applicable, may also be evaluated.

       (4) The evaluation weight given to the contractor's performance against the considerations in paragraphs (g)(1) through (g)(3) of this section should be significant (up to 15 percent of available award fee).  The weight should motivate the contractor to focus management attention to subcontracting with small, HUBZone, women-owned, veteran-owned, and service-disabled veteran-owned small business concerns, and with small disadvantaged business concerns in designated NAICS Major Groups to the maximum extent practicable, consistent with efficient contract performance.

   (h) When contract changes are anticipated, the contractor’s responsiveness to requests for change proposals should be evaluated.  This evaluation should include the contractor’s submission of timely, complete proposals and cooperation in negotiating the change.

   (i) Only the award fee performance evaluation factors set forth in the performance evaluation plan shall be used to determine award fee scores.

   (j) The Government may unilaterally modify the applicable award fee performance evaluation factors and performance evaluation areas prior to the start of an evaluation period.  The contracting officer shall notify the contractor in writing of any such changes 30 days prior to the start of the relevant evaluation period.

 

1816.405-275 Award fee evaluation scoring.           

   (a) A scoring system of 0-100 shall be used for all award fee ratings.  Award fee earned is determined by applying the numerical score to the award fee pool.  For example, a score of 85 yields an award fee of 85 percent of the award fee pool.  No award fee shall be paid unless the total score is 61 or greater.

   (b)        The following standard adjectival ratings and the associated numerical scores shall be used on all award fee contracts.             

       (1) Excellent  (100-91):  Of exceptional merit; exemplary performance in a timely, efficient, and economical manner; very minor (if any) deficiencies with no adverse effect on overall performance.

       (2) Very good  (90-81):  Very effective performance, fully responsive to contract requirements; contract requirements  accomplished in a timely, efficient, and economical manner for the most part; only minor deficiencies.

       (3) Good  (80-71):  Effective performance; fully responsive to contract requirements; reportable deficiencies, but with little identifiable effect on overall performance.

       (4) Satisfactory  (70-61):  Meets or slightly exceeds minimum acceptable standards; adequate results; reportable deficiencies with identifiable, but not substantial, effects on overall performance.

       (5) Poor/Unsatisfactory  (less than 61):  Does not meet minimum acceptable standards in one or more areas; remedial action required in one or more areas; deficiencies in one or more areas which adversely affect overall performance.       

   (c) As a benchmark for evaluation, in order to be rated "Excellent," the contractor must be under cost, on or ahead of schedule, and have provided excellent technical performance.

   (d) A scoring system appropriate for the circumstances of the individual contract requirement should be developed.  Weighted scoring is recommended.  In this system, each evaluation factor (e.g., technical, schedule, cost control) is assigned a specific percentage weighting with the cumulative weightings of all factors totaling 100.  During the award fee evaluation, each factor is scored from 0-100 according to the ratings defined in 1816.405-275(b).  The numerical score for each factor is then multiplied by the weighting for that factor to determine the weighted score.  For example, if the technical factor has a weighting of 60 percent and the numerical score for that factor is 80, the weighted technical score is 48 (80 x 60 percent).  The weighted scores for each evaluation factor are then added to determine the total award fee score.

 

1816.405-276 Award fee payments and limitations. 

   (a) Interim Award Fee Payments.  The amount of an interim award fee payment (see 1816.405-273(b)) is limited to the lesser of the interim evaluation score or 80 percent of the fee allocated to that interim period less any provisional payments (see paragraph (b) of this subsection) made during the period. 

   (b) Provisional Award Fee Payments.  Provisional award fee payments are payments made within evaluation periods prior to an interim or final evaluation for that period.  Provisional payments may be included in the contract and should be negotiated on a case-by-case basis.  For a service contract, the total amount of award fee available in an evaluation period that may be provisionally paid is the lesser of a percentage stipulated in the contract (but not exceeding 80 percent) or the prior period's evaluation score.  For an end item contract, the total amount of provisional payments in a period is limited to a percentage not to exceed  80 percent of the prior interim period’s evaluation score.

   (c) Fee Payment.  The Fee Determination Official's rating for both interim and final evaluations will be provided to the contractor within 45 calendar days of the end of the period being evaluated.  Any fee, interim or final, due the contractor will be paid no later than 60 calendar days after the end of the period being evaluated.

 

1816.406 Contract clauses.

 

1816.406-70 NASA contract clauses.          

   (a) As authorized by FAR 16.406(e), the contracting officer shall insert the clause at 1852.216-76, Award Fee for Service Contracts, in solicitations and contracts when an award-fee contract is contemplated and the contract deliverable is the performance of a service. 

   (b) As authorized by FAR 16.406(e), the contracting officer shall insert the clause at 1852.216-77, Award Fee for End Item Contracts, in solicitations and contracts when an award fee contract is contemplated and the contract deliverables are  hardware or other end items for which total contractor performance cannot be measured until the end of the contract. When the clause is used in a fixed-price award-fee contract, it shall be modified by deleting references to base fee in paragraphs (a), and by deleting paragraph  (c)(1), the last sentence of (c)(4), and the first sentence of (c)(5).

   (c) The contracting officer may insert a clause substantially as stated at 1852.216-83, Fixed Price Incentive, in fixed-price-incentive solicitations and contracts utilizing firm or successive targets.  For items subject to incentive price revision, identify the target cost, target profit, target price, and ceiling price for each item.

   (d) The contracting officer shall insert the clause at 1852.216-84, Estimated Cost and Incentive Fee, in cost-plus-incentive-fee solicitations and contracts.

   (e) The contracting officer may insert the clause at 1852.216-85, Estimated Cost and Award Fee, in award-fee solicitations and contracts.  When the contract includes performance incentives, use Alternate I. When the clause is used in a fixed-price award fee contract, it shall be modified to delete references to base fee and to reflect the contract type.

      (f) As provided at 1816.402-270, the contracting officer shall insert a clause substantially as stated at 1852.216-88,  Performance Incentive, when the primary deliverable(s) is (are) hardware and total estimated cost and fee is greater than $25 million.  A clause substantially as stated at 1852.216-88 may be included in lower dollar value hardware contracts with the approval of the procurement officer.

 

Subpart 1816.5--Indefinite-Delivery Contracts

 

1816.504 Indefinite quantity contracts.       

   (a)(4)(ii) ID/IQ service contract values and task order values shall be expressed only in dollars.

   (a)(4)(v) See 1815.7003.

 

1816.505 Ordering.  

   (a) (2) Task and delivery orders shall be issued by the contracting officer.

   (b)(5) The Agency and installation ombudsmen designated in accordance with 1815.7001 shall review complaints from contractors on task order contracts and delivery order contracts.

 

1816.505-70 Task ordering. 

   (a) The contracting officer shall, to the maximum extent possible, state task order requirements in terms of functions and the related performance and quality standards such that the standards may be objectively measured.

   (b) To the maximum extent possible, contracting officers shall solicit contractor task plans to use as the basis for finalizing task order requirements and enable evaluation and pricing of the contractor's proposed work on a performance based approach as described in 1816.104-70(a).

   (c) Task order contract type shall be individually determined, based on the nature of each task order's requirements.    

       (1) Task orders may be grouped by contract type for administrative convenience (e.g., all CPIF orders, all FFP orders, etc.) for contractor progress and cost reporting.

       (2) Under multiple awards, solicitations for individual task plans shall request the same pricing structure from all offerors.

   (d) Any undefinitized task order issued under paragraph (f) of the clause at 1852.216-80, Task Ordering Procedure, shall be treated and reported as an undefinitized contract action in accordance with 1843.70.

 

1816.506-70 NASA contract clause.

   Insert the clause at 1852.216-80, Task Ordering Procedure, in solicitations and contracts when an indefinite-delivery, task order contract is contemplated.  The clause is applicable to both fixed-price and cost-reimbursement type contracts.  If the contract does not require 533M reporting (see NPG 9501.2, NASA Contractor Financial Management Reporting System), use the clause with its Alternate I.

 

Subpart 1816.6--Time-and-Materials, Labor-Hour, and Letter Contracts

 

1816.603 Letter contracts.

 

1816.603-2 Application.

   (a) Centers must ensure that NASA liabilities and commitments are minimized under letter contracts.  When a letter contract is justified and program requirements can be severed into smaller, discreet efforts, the work authorized by the letter contract must be limited to the minimum severable effort required to satisfy the urgent program requirements.  The remaining requirements may not be initially included in the letter contract and must be acquired through a separate fully priced and definitized contract action.

 

1816.603-370 Approvals.      

   (a) All requests for authority  to issue a letter contract shall include the following:                     

       (1) Proposed contractor's name and address.

       (2) Location where contract is to be performed.

       (3) Contract number, including modification number, if applicable.

       (4) Brief description of the work or services to be performed.

       (5) Performance period or delivery schedule.

       (6) Amount of letter contract.

       (7) Performance period of letter contract.

       (8) Estimated total amount of definitive contract.

       (9) Type of definitive contract to be executed.

       (10) A statement that the definitive contract will contain all required clauses or identification of specific clause deviations that have been approved.

       (11) A statement as to the necessity and advantage to the Government of the proposed letter contract.

       (12) The definitization schedule described in FAR 16.603-2(c) expected to be negotiated with the contractor.

   (b) Requests for authority to issue letter contracts having an estimated definitive contract amount equal to or greater than the Master Buy Plan submission thresholds of 1807.7101 (or modifications thereto) shall be signed by the procurement officer and submitted to the Assistant Administrator for Procurement (Code HS) for approval. 

   (c) Authority to approve the issuance of letter contracts below the Master Buy Plan submission thresholds specified in 1807.7101 is delegated to the procurement officer.

   (d) Any modification of an undefinitized letter contract approved by a procurement officer in accordance with paragraph (c) of this section that increases the estimated definitized contract amount to or above the Master Buy Plan submission thresholds must have the prior approval of the Assistant Administrator for Procurement (Code HS).


SAFETY AND HEALTH PLAN

(SEPTEMBER 2001)

  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 must 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.  The plan must similarly address safety and occupational health for subcontractor employees for any proposed subcontract whose value is expected to exceed $500,000, including commercial services and services provided in support of a commercial item.  Also, when applicable, the plan must address the policies, procedures, and techniques that will be used to ensure the safety and occupational health of: (1) the public, (2) astronauts and pilots, (3) the NASA workforce (including other contractor employees working on NASA contracts), and (4) high-value equipment and property.  This plan, as approved by the Contracting Officer, will be included in any resulting contract.

(End of provision)

 

ALTERNATE I

(OCTOBER 2001)

  As prescribed in 1823.7001(c), delete the first sentence 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 1823.570-3, 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.

       (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)

 

1852.223-75 Major Breach of Safety or Security.

As prescribed in 1823.7001(d), insert the following clause:

MAJOR BREACH OF SAFETY OR SECURITY

(FEBRUARY 2002)

   (a) Safety is the freedom from those conditions that can cause death, injury, occupational

illness, damage to or loss of equipment or property, or damage to the environment.  Safety is essential to NASA and is a material part of this contract. NASA’s safety priority is to protect: (1) the public; (2) astronauts and pilots; (3) the NASA workforce (including contractor employees working on NASA contracts); and (4) high-value equipment and property. A major breach of safety may constitute a breach of contract that entitles the Government to exercise any of its rights and remedies applicable to material parts of this contract, including termination for default.  A major breach of safety must be related directly to the work on the contract. A major breach of safety is an act or omission of the Contractor that consists of an accident, incident, or exposure resulting in a fatality or mission failure; or in damage to equipment or property equal to or greater than $1 million; or in any "willful" or "repeat" violation cited by the Occupational Safety and Health Administration (OSHA) or by a state agency operating under an OSHA approved plan.

   (b) Security is the condition of safeguarding against espionage, sabotage, crime (including computer crime), or attack.  A major breach of security may constitute a breach of contract that entitles the Government to exercise any of its rights and remedies applicable to material parts of this contract, including termination for default.  A major breach of security may occur on or off Government installations, but must be related directly to the work on the contract.  A major breach of security is an act or omission by the Contractor that results in compromise of classified information, illegal technology transfer, workplace violence resulting in criminal conviction, sabotage, compromise or denial of information technology services, equipment or property damage from vandalism greater than $250,000, or theft greater than $250,000.  

  (c) In the event of a major breach of safety or security, the Contractor shall report the breach to the Contracting Officer.  If directed by the Contracting Officer, the Contractor shall conduct its own investigation and report the results to the Government.  The Contractor shall cooperate with the Government investigation, if conducted.

(End of clause)

 

1852.225-8  Duty-Free Entry of Space Articles.

   As prescribed in 1825.1101(e), add the following paragraph (k) to the basic clause at FAR 52.225-8:

       (k)  The following supplies will be given duty-free entry:

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

(End of addition)

  

1852.225-70 Export Licenses.

  As prescribed in 1825.1103-70(b), 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 1825.1103-70(b), 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.