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97-70

Procurement Notice


April 9, 2002

 

SAFETY AND HEALTH

 

BACKGROUND:  This PN revises 1823.7001, NASA solicitation provisions and contract clauses for safety and health; 1836.513, Accident Prevention; 1852.223-70, Safety and Health; 1852.223-72, Safety and Health (Short Form); and 1852.223-73, Safety and Health Plan.

 

NASA FAR Supplement 1823.7001 had required the inclusion of the NASA Safety and Health clause and submission of a contractor Safety and Health Plan for solicitations and contracts that were greater than $1 million, involve construction, or have hazardous deliverable end items or operations.  Exclusion of the clause had been allowed when the Contracting Officer determined that Walsh-Healey or Service Contract Act (if applicable) regulations constituted adequate safety and health protection.  This NFS change removes the dollar threshold from the Safety and Health clause prescription since safety and health requirements should be determined by the risks rather than cost of the contract requirements.  Also, to assure that contractors are held to the same standards for mishap prevention as the Government, the revised guidance requires use of a Safety and Health clause and submission of a Safety and Health Plan when performance is on a Government facility or when assessed risk warrants inclusion.  This NFS change also revises the conditions that must be met for excluding the clause from contracts, reflecting the greater Government and industry use of Occupational Safety and Health Administration (OSHA) and Department of Transportation (DOT), rather than Walsh-Healey or Service Contract Act (SCA) safety and health regulations, and includes new guidance on use of the NASA Safety and Health clause instead of the FAR Accident Prevention clause for construction contracts above the simplified acquisition threshold.  Furthermore, this NFS change makes the requirements for use of the NASA Safety and Health clause for subcontracts consistent with prime contract requirements.

 

Editorial changes are made in 1836 to change “Associate Administrator” to “Assistant Administrator” where appropriate.

 

ACQUISITIONS AFFECTED BY CHANGES:  All solicitations and contracts above the micro-purchase threshold.

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  For all solicitations and contracts above the micro-purchase threshold issued after April 9, 2002, 1823.7001 must be reviewed and the appropriate contract clauses (revised 1852.223-70 or revised 1852.223-72) must be included.  When a solicitation issued after April 9, 2002 contains the revised 1852.223-70, the associated revised provision 1852.223-73, Safety and Health Plan must also be included. 

 

For construction solicitations or contracts issued after April 9, 2002, the revised clause 1852.223-70 must be used in lieu of FAR clause 52.236-13, Accident Prevention, and its Alternate I.

Solicitations issued before April 9, 2002, may be amended to include the appropriate revised clauses and provision if including them would not unduly delay the acquisition.   

 

Clause/PROVISION Changes:  This PN makes the following changes:

   (a) 1852.223-70, Safety and Health, paragraph (f)(1) amended to provide for oral notification of contractor non-compliance with this clause in cases of serious or imminent danger; paragraphs (g)(1-3) revised and new paragraphs (g)(4) and (h) added to revise the subcontractor safety and health requirements; and previous paragraphs (h) and (i) redesignated as (i) and (j);

   (b) 1852.223-72, Safety and Health (Short Form), paragraph (d) amended to allow for oral notification of contractor non-compliance with this clause in cases of serious or imminent danger;

   (c) 1852.223-73, Safety and Health Plan, text replaced by paragraphs (a)-(d) to revise the subcontractor safety and health requirements.

 

PARTS AFFECTED:  Changes are made in Parts 1823, 1836, and 1852.

 

REPLACEMENT PAGES:  You may use the enclosed pages to replace 23:3, Part 36, 52:27, 52:28, 52:29, 52:30, 52:30.1, 52:30.2, 52:30.3, 52:30.4, 52:30.5 (added), 52-93, and 52-94.

 

TYPE OF RULE AND PUBLICATION DATE:  This PN was published as a final rule in the Federal Register (67 FR17016-17017) on April 9, 2002.

 

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

 

 

 

R. Scott Thompson

Director, Contract Management Division

 

Enclosures



1823.7001  NASA solicitation provisions and contract clauses.
  (a) The clause at 1852.223-70, Safety and Health, shall be included in all solicitations and contracts when one or more of the following conditions exist:

   (1) The work will be conducted completely or partly on premises owned or controlled by the Government.

   (2) The work includes construction, alteration, or repair of facilities in excess of the simplified acquisition threshold.

   (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).

   (4) When the assessed risk and consequences of a failure to properly manage and control the hazard(s) warrants use of the clause.

(b) The clause prescribed in paragraph (a) of this section may be excluded, regardless of place of performance, when the contracting officer, with the approval of the installation official(s) responsible for matters of safety and occupational health, determines that the application of OSHA and DOT regulations constitutes adequate safety and occupational health protection.

   (c) The contracting officer shall insert the provision at 1852.223-73, Safety and Health Plan, in solicitations containing the clause at 1852.223-70. This provision may be modified to identify specific information that is to be included in the plan. After receiving the concurrence of the center safety and occupational health official(s), the contracting officer shall include the plan in any resulting contract.  Insert the provision with its Alternate I, in Invitations for Bid containing the clause at 1852.223-70.

   (d)     The contracting officer shall insert the clause at 1852.223-75, Major Breach of Safety or Security, in all solicitations and contracts with estimated values of $500,000 or more, unless waived at a level above the contracting officer with the concurrence of the project manager and the installation official(s) responsible for matters of security, export control, safety, and occupational health.  For other contracts, use of the clause is optional.

   (e) For all solicitations and contracts exceeding the micro-purchase threshold that do not include the clause at 1852.223-70, Safety and Health, the contracting officer shall insert the clause at 1852.223-72, Safety and Health (Short Form).

Subpart 1823.71--Frequency Authorization

1823.7101  Contract clause.
   The contracting officer shall insert the clause at 1852.223-71, Frequency Authorization, in solicitations and contracts calling for developing, producing, constructing, testing, or operating a device for which a radio frequency authorization is required.

1823.7102  Procedures.
  The contracting officer shall obtain the necessary frequency authorization and other procedural details from the installation's spectrum manager.


PART 1836

CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

 

TABLE OF CONTENTS

 

SUBPART     1836.2              SPECIAL ASPECTS OF CONTRACTING FOR 

                                                     CONSTRUCTION

1836.203                                 Government estimate of construction costs.

1836.209                                 Construction contracts with architect-engineer firms.

1836.213                                 Special procedures for sealed bidding in construction contracting.

1836.213-3                              Invitations for bids.

1836.213-370                           Additive and deductive items.

1836.213-4                               Notice of Award.

 

SUBPART     1836.5              CONTRACT CLAUSES

1836.513                                 Accident prevention.

1836.570                                 NASA solicitation provisions and contract clause.

 

SUBPART     1836.6            ARCHITECT-ENGINEER SERVICES

1836.602                                 Selection of firms for architect-engineer contracts.

1836.602-1                              Selection criteria.

1836.602-2                              Evaluation boards.

1836.602-4                              Selection authority.

1836.602-5                              Short selection process for contracts not to exceed the simplified

                                                    acquisition threshold.

1836.602-70                            Selection of architect-engineer for master planning.

1836.603                                 Collecting data on and appraising firms' qualifications.

1836.605                                 Government cost estimate for architect-engineer work.

 

SUBPART     1836.7           STANDARD AND OPTIONAL FORMS FOR

                                                CONTRACTING FOR CONSTRUCTION, ARCHITECT-

                                                ENGINEER SERVICES, AND DISMANTLING,

                                                DEMOLITION, OR REMOVAL OF IMPROVEMENTS

1836.702                                 Forms for use in contracting for architect-engineer services.

 

SUBPART     1836.70            PARTNERING

1836.7001                               Definition.

1836.7002                               General.

1836.7003                               Policy.

1836.7004                               NASA solicitation provision and contract clause.

 

 

PART 1836 

CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

 

Subpart 1836.2--Special Aspects of Contracting for Construction

 

1836.203  Government estimate of construction costs. 

   (c)(i)  If the acquisition is by sealed bidding, the contracting officer shall file a sealed copy of the detailed Government estimate with the bids until bid opening.  After the bids are read and recorded, the contracting officer shall read the estimate, and record it in the same detail as the bids. 

       (ii)         If the acquisition is by negotiation, the contracting officer may disclose the overall amount of the Government estimate after award upon request of offerors.

 

1836.209  Construction contracts with architect-engineer firms. 

   (1)     Except as indicated in paragraph (2) of this section, the Assistant Administrator for Procurement (Code HS) is the approval authority.

   (2)     A construction contract may be awarded to the firm that designed the project (or its subsidiaries or affiliates) if the contract is awarded on the basis of performance specifications for the construction of a facility, and it requires the contractor to furnish construction drawings, specifications, or site adaptation drawings of the facility.

   (3)     In no case shall the firm that prepared the drawings and specifications supervise and inspect, on behalf of the Government, the construction of the facility involved.

 

1836.213  Special procedures for sealed bidding in construction contracting.

 

1836.213-3  Invitations for bids.

 

1836.213-370  Additive and deductive items.

   When it appears that funds available for a project may be insufficient for all the desired features of construction, the contracting officer may provide in the invitation for bids for a first or base bid item covering the work generally as specified and one or more additive or deductive bid items progressively adding or omitting specified features of the work in a stated order of priority. In such case, the contracting officer, before the opening of bids, shall record in the contract file the amount of funds available for the project and determine the low bidder and the items to be awarded in accordance with the provision at 1852.236-71, Additive or Deductive Items.

 

1836.213-4  Notice of Award. 

   (e) Contract delivery or performance schedules, commencement of work, or notices to proceed shall not be expressed in terms of a notice of award.  (See 1814.408-1.)

 

Subpart 1836.5--Contract Clauses

 

1836.513 Accident prevention.

  The contracting officer must insert the clause at 1852.223-70, Safety and Health, in lieu of FAR clause 52.236-13, Accident Prevention, and its Alternate I.

 

1836.570  NASA solicitation provisions and contract clause. 

   (a) The contracting officer shall insert the provision at 1852.236-71, Additive or Deductive Items, in invitations for bids for construction when it is desired to add or deduct bid items to meet available funding.

   (b)     The contracting officer shall insert the provision at 1852.236-72, Bids with Unit Prices, in invitations for bids for construction when the invitation contemplates unit prices of items.

   (c) The contracting officer shall insert the clause at 1852.236-73, Hurricane Plan, in solicitations and contracts for construction at sites that experience hurricanes.

   (d)     The contracting officer shall insert the provision at 1852.236-74, Magnitude of Requirement, in solicitations for construction.  Insert the appropriate estimated dollar range in accordance with FAR 36.204.

 

Subpart 1836.6--Architect-Engineer Services

 

1836.602  Selection of firms for architect-engineer contracts.

 

1836.602-1  Selection criteria. 

   (a)(2) The evaluation of specialized experience and technical competence shall be limited to the immediately preceding ten years.

   (a)(4) The evaluation of past performance shall be limited to the immediately preceding ten years.

   (a)(6) The architect-engineer selection board may also establish evaluation criteria regarding the volume of work previously awarded to the firm by NASA, with the object of effecting an equitable distribution of contracts among qualified architect-engineer firms, including minority-owned firms and firms that have not had prior NASA contracts.

 

1836.602-2  Evaluation boards. 

   (a) Installations shall establish an architect-engineer selection board to be composed of the selection authority and at least three voting members.  Membership shall at least include: one currently registered architect or professional engineer, who shall serve as the board chairperson; an official from the requiring office; if appropriate, a technical official familiar with any unique subject matter critical to the requirement; and a procurement official (a contracting officer, if feasible) as an ad hoc advisor to the board.  Where appropriate, the procurement official may serve as a voting member. Non-Government employees shall not be appointed as voting members.

 

1836.602-4  Selection authority. 

   (a) The selection authority shall be appointed in accordance with installation procedures.

 

1836.602-5  Short selection process for contracts not to exceed the simplified acquisition  threshold.

   The procedures at FAR 36.602-5(a) or (b) may be used at the discretion of the selection authority.

 

1836.602-70  Selection of architect-engineer for master planning. 

   (a) Definition of master plan.  A master plan is an integrated series of documents presenting in graphic, narrative, and tabular form the present composition of the installation and the plan for its orderly and comprehensive development to perform its various missions in the most efficient and economical manner.

   (b)  Selection.    

       (1)        Selection of an architect-engineer for the development of a master plan in connection with the establishment of a new NASA activity or installation shall be made by the Associate Administrator having institutional responsibility.  The report of the architect-engineer selection board will be concurred in at NASA Headquarters by the Assistant Administrator for Management Systems, the Assistant Administrator for Procurement, the Chief Financial Officer, and the General Counsel.

       (2)        The Assistant Administrator for Management Systems shall be responsible for the architect-engineer selection board report required by FAR 36.602-3(d) before presentation to the Associate Administrator having institutional responsibility.

 

1836.603   Collecting data on and appraising firms' qualifications.

   The architect-engineer selection boards (see 1836.602-2) are designated as NASA's evaluation boards for the purposes of FAR 36.603.

 

1836.605  Government cost  estimate for architect-engineer work. 

   (b)     The contracting officer may disclose the overall amount of the Government estimate after award upon request of offerors.

 

Subpart 1836.7--Standard and Optional Forms for Contracting for Construction, Architect-Engineer Services, and Dismantling, Demolition, or Removal of Improvements

 

1836.702  Forms for use in contracting for architect-engineer services. 

   (a)(i)  Instructions for completing Standard Form 252, Architect-Engineer Contract, are as follows:          

            (A)  Block 5 - Project Title and Location.   Include a short description of the construction project and the estimated cost of constructing the facilities for the project.  If the space provided is insufficient, include a more detailed description in the contract's specification/work statement and identify the location of the more detailed description in Block 10.

            (B)  Block 6 - Contract For (General description of services to be provided).  Include a brief description of the services and state that they are fully set out in the specification/work    statement.  Clearly specify the date by which design services must be completed.  If supervision and inspection services during construction are to be acquired, clearly specify the date by which they must be completed and add a statement that the Government may extend the period for their performance as provided in the Changes clause of the contract.

            (C)  Block 7 - Contract Amount.  If the contract is for both design and supervision and inspection services, set out the amounts for each effort separately.     

       (ii)        The services to be furnished by an architect-engineer should be carefully defined during negotiation of the contract and a statement of them inserted in the contract's specification/work statement.  The statement should clearly and concisely set forth the nature and extent of the services and include any special services, such as the nature and extent of subsurface exploration prior to designing foundations.  A similar statement of supervision and inspection services should be inserted in the specification/work statement if supervision and inspection services are to be acquired.

 

Subpart 1836.70--Partnering

 

1836.7001  Definition.

   "Partnering" means a relationship of open communication and close cooperation that involves both Government and Contractor personnel working together for the purpose of establishing a mutually beneficial, proactive, cooperative environment within which to achieve contract objectives and resolve issues and implementing actions as required.

 

1836.7002  General. 

   (a) The establishment of a partnering environment usually leads to higher quality products completed more quickly at lower overall costs and with fewer accidents and litigation.

   (b)     The use of partnering is encouraged as it has been shown to reduce the average contract cost and schedule growth and to reduce contract claims and litigation.

   (c) Partnering is a voluntary contract relationship within the management process that is not to be used to unofficially alter terms of the contract.

 

1836.7003  Policy. 

   (a) Partnering should be used on a contract when the contracting officer, in coordination with the project manager, determines that the benefits to be achieved from its use are expected to be greater than the costs.

   (b)     In determining whether the benefits of partnering are greater than the costs, the following factors should be considered:       

       (1)        The estimated dollar value of the contract;

       (2)        The complexity of the work to be performed;

       (3)        The contemplated length of the contract; and

       (4)        The estimated costs to be incurred in conducting the partnership development and team building initial and follow-up workshops.

 

1836.7004  NASA solicitation provision and contract clause.

   The contracting officer may insert a clause substantially the same as stated at 1852.236-75, Partnering for Construction Contracts, in solicitations and contracts for construction, when it has been determined in accordance with 1836.7003 that the benefits to be derived from partnering exceed the costs.


  (c) The contractor hereby agrees to assist NASA in achieving this goal by using its best efforts to award subcontracts to such entities to the fullest extent consistent with efficient contract performance.

  (d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as small disadvantaged business concerns, Historically Black Colleges and Universities, minority institutions, and women-owned small business concerns.

(End of clause)

 

1852.219-77 NASA Mentor-Protégé Program.

As prescribed in 1819.7219(a), insert the following clause:

NASA MENTOR-PROTÉGÉ PROGRAM

(MAY 1999)

  (a) Prime contractors, including certain small businesses, are encouraged to participate in the NASA Mentor-Protégé Program for the purpose of providing developmental assistance to eligible protégé entities to enhance their capabilities and increase their participation in NASA contracts.

  (b) The Program consists of:

      (1)  Mentor firms, which are large prime contractors with at least one active subcontracting plan or eligible small businesses;

      (2)  Protégés, which are subcontractors to the prime contractor, include small disadvantaged business concerns, women-owned small business concerns, Historically Black Colleges and Universities, and minority institutions meeting the qualifications specified in NASA FAR Supplement (NFS) 1819.7209.

      (3)  Mentor-protégé agreements, approved by the NASA Office of Small and Disadvantaged Business Utilization (OSDBU);

      (4) In contracts with award fee incentives, potential for payment of additional fee for voluntary participation and successful performance in the Mentor-Protégé Program.

  (c) Mentor participation in the Program, described in NFS 1819.72, means providing technical, managerial and financial assistance to aid protégés in developing requisite high-tech expertise and business systems to compete for and successfully  perform NASA contracts and subcontracts.

  (d) Contractors interested in participating in the program are encouraged to contact the NASA OSDBU, Washington, DC 20546, (202) 358-2088, for further information.

(End of clause)

 

1852.219-79 Mentor Requirements and Evaluation.

  As prescribed in 1819.7219(b), insert the following clause:

MENTOR REQUIREMENTS AND EVALUATION

(MARCH 1999)

  (a) The purpose of the NASA Mentor-Protégé Program is for a NASA prime contractor to provide developmental assistance to certain subcontractors qualifying as protégés.  Eligible protégés include small disadvantaged business concerns, women-owned small business concerns, Historically Black Colleges and Universities, and minority institutions meeting the qualifications specified in NASA FAR Supplement (NFS) 1819.7209.

  (b) NASA will evaluate the contractor's performance on the following factors.  If this contract includes an award fee incentive, this assessment will be accomplished as part of the fee evaluation process.

  (1) Specific actions taken by the contractor, during the evaluation period, to increase the participation of protégés as subcontractors and suppliers;

      (2) Specific actions taken by the contractor during this evaluation period to develop the technical and corporate administrative expertise of a protégé as defined in the agreement;

      (3) To what extent the protégé has met the developmental objectives in the agreement; and

      (4) To what extent the firm's participation in the Mentor-Protégé Program resulted in the protégé receiving competitive contract(s) and subcontract(s) from private firms and agencies other than the mentor.

  (c) Semi-annual reports shall be submitted by the mentor to the NASA Mentor-Protégé program manager, NASA Headquarters OSDBU, to include information as outlined in paragraph (b).

  (d) The mentor will notify the OSDBU and the contracting officer, in writing, at least 30 days in advance of the mentor firm's intent to voluntarily withdraw from the program or upon receipt of a protégé’s notice to withdraw from the Program;

  (e) Mentor and protégé firms will submit a "lessons learned" evaluation to the NASA OSDBU at the conclusion of the contract.  At the end of each year in the Mentor-Protégé Program, the mentor and protégé, as appropriate, will formally brief the NASA Mentor-Protégé program manager, the technical program manager, and the contracting officer during a formal program review regarding Program accomplishments as pertains to the approved agreement.

  (f) NASA may terminate mentor-protégé agreements for good cause and exclude mentor or protégé firms from participating in the NASA program.  These actions shall be approved by the NASA OSDBU. NASA shall terminate an agreement by delivering to the contractor a Notice specifying the reason for termination and the effective date.  Termination of an agreement does not constitute a termination of the subcontract between the mentor and the protégé. A plan for accomplishing the subcontract effort should the agreement be terminated shall be submitted with the agreement as required in NFS 1819.7213(h).

(End of clause)

 

1852.223-70  Safety and Health.

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

SAFETY AND HEALTH

(APRIL 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.  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.

   (b) The Contractor shall take all reasonable safety and occupational health measures 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 Contractor shall immediately notify and promptly report to the Contracting Officer or a designee any accident, incident, or exposure resulting in fatality, lost-time occupational injury, occupational disease, contamination of property beyond any stated acceptable limits set forth in the contract Schedule; or property loss of $25,000 or more, or Close Call (a situation or occurrence with no injury, no damage or only minor damage (less than $1,000) but possesses the potential to cause any type mishap, or any injury, damage, or negative mission impact) that may be of immediate interest to NASA, arising out of work performed under this contract.  The Contractor is not required to include in any report an expression of opinion as to the fault or negligence of any employee.  In addition, service contractors (excluding construction contracts) shall provide quarterly reports specifying lost-time frequency rate, number of lost-time injuries, exposure, and accident/incident dollar losses as specified in the contract Schedule.

  (e) The Contractor shall investigate all work-related incidents, accidents, and Close Calls, to the extent necessary to determine their causes and furnish the Contracting Officer a report, in such form as the Contracting Officer may require, of the investigative findings and proposed or completed corrective actions.

  (f)(1) The Contracting Officer may notify the Contractor in writing of any noncompliance with this clause and specify corrective actions to be taken.  When 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.

       (2)  If the Contractor fails or refuses to institute prompt corrective action in accordance with subparagraph (f)(1) of this clause, the Contracting Officer may invoke the stop-work order clause in this contract or any other remedy available to the Government in the event of such failure or refusal.

 (g) The Contractor (or subcontractor or supplier) shall insert the substance of this clause, including this paragraph (g) and any applicable Schedule provisions and clauses, with appropriate changes of designations of the parties, in all solicitations and subcontracts of every tier, when one or more of the following conditions exist:

   (1) The work will be conducted completely or partly on premises owned or controlled by the Government.

   (2) The work includes construction, alteration, or repair of facilities in excess of the simplified acquisition threshold.

   (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).

   (4) When the Contractor (or subcontractor or supplier) determines that the assessed risk and consequences of a failure to properly manage and control the hazard(s) warrants use of the clause.

 (h) The Contractor (or subcontractor or supplier) may exclude the provisions of paragraph (g) from its solicitation(s) and subcontract(s) of every tier when it determines that the clause is not necessary because the application of the OSHA and DOT (if applicable) regulations constitute adequate safety and occupational health protection.  When a determination is made to exclude the provisions of paragraph (g) from a solicitation and subcontract, the Contractor must notify and provide the basis for the determination to the Contracting Officer.  In subcontracts of every tier above the micro-purchase threshold for which paragraph (g) does not apply, the Contractor (or subcontractor or supplier) shall insert the substance of paragraphs (a), (b), (c), and (f) of this clause).

  (i) Authorized Government representatives of the Contracting Officer shall have access to and the right to examine the sites or areas where work under this contract is being performed in order to determine the adequacy of the Contractor's safety and occupational health measures under this clause.

  (j) The contractor shall continually update the safety and health plan when necessary.  In particular, the Contractor shall furnish a list of all hazardous operations to be performed, and a list of other major or key operations required or planned in the performance of the contract, even though not deemed hazardous by the Contractor. NASA and the Contractor shall jointly decide which operations are to be considered hazardous, with NASA as the final authority.  Before hazardous operations commence, the Contractor shall submit for NASA concurrence --

      (1) Written hazardous operating procedures for all hazardous operations; and/or

      (2) Qualification standards for personnel involved in hazardous operations.

(End of clause)

 

1852.223-71  Frequency Authorization.

   As prescribed in 1823.7101, insert the following clause:

FREQUENCY AUTHORIZATION

(DECEMBER 1988)

   (a) Authorization of radio frequencies required in support of this contract shall be obtained by the Contractor or subcontractor in need thereof.

   (b) For any experimental, developmental, or operational equipment for which the appropriate frequency allocation has not been made, the Contractor or subcontractor shall provide the technical operating characteristics of the proposed electromagnetic radiating device to the Contracting Officer during the initial planning, experimental, or developmental phase of contractual performance.  Procedures furnished by the Contracting Officer shall be followed in obtaining radio frequency authorization.

   (c) This clause, including this paragraph (c), shall be included in all subcontracts that call for developing, producing, testing, or operating a device for which a radio frequency authorization is required.

(End of clause)

 

1852.223-72 Safety and Health (Short Form).

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

SAFETY AND HEALTH (SHORT FORM)

(APRIL 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.  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.


  (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: 

      (1) The work will be conducted completely or partly on premises owned or controlled by the government.

      (2) The work includes construction, alteration, or repair of facilities in excess of the simplified acquisition threshold.

      (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).

      (4) When the assessed risk and consequences of a failure to properly manage and control the hazards warrants use of the clause.

(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 1823.570-3, 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.