97-97

Procurement Notice

April 22, 2004

MISCELLANEOUS ADMINISTRATIVE REVISIONS

 

BACKGROUND:  NASA has modified its current practice for issuance and maintenance of the NASA FAR Supplement (NFS) by only publishing in the Federal Register those regulations which may have a significant effect beyond the internal operating procedures of the Agency or have a significant cost or administrative impact on contractors or offerors and are subject to public comment.  The NFS will continue to integrate into a single document both regulations subject to public comment and internal Agency guidance and procedures that do not require public comment.  The single official NASA-maintained version of the NFS is available on the Internet.  NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

 

The periodic review of the NFS conducted in concert with the above new practice identified various administrative and editorial changes.  In addition to the changes required for completeness and understanding of regulatory text, editorial and administrative changes are made to internal guidance and procedures to correct section numbering, update document references, amend the solicitation numbering methodology, and to remove guidance already addressed in the FAR.  

 

ACQUISITION AFFECTED BY CHANGES:  All new solicitations.

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  Use the new solicitation numbering scheme contained in 1804.7102.

 

CLAUSE CHANGES:  This PN makes no changes to clauses or provisions.

 

PARTS AFFECTED:  Parts 1801, 1803 through 1807, 1809, 1811, 1814, 1822 and 1825.

 

REPLACEMENT PAGES:  You may used the enclosed pages to replace 1:1, 1:2, 1:3, 1:4, 3:3, 3:4, 3:5, 4:3, 4:4, 4:7, 4:8, 4:9, 4:10, 4:11, 4:12, Part 1805, 6:1, 6:2, 6:3, 6:4, Part 1807, 9:3, 9:4, 11:1, 11:2, Part 1814, 15:5, 15:6, 15:7, 15:8, 15:29, 15:30, 16:3, 16:4, 16:5, 16:6, 16:11, 16:12, 17:5, 17:6, 17:9, 17:10, 22:1, 22:2, 22:3, 22:4, Part 1823, 1825:1, and 1825:2 of the NFS.

 

TYPE OF RULE AND PUBLICATION DATES:  These changes were published as final rules in the Federal Register on April 22, 2004 (69 FR 21761 - 21765).

 

HEADQUARTERS CONTACT:  Celeste Dalton, Code HK, (202) 358-1645, email: Celeste.M.Dalton@nasa.gov.

 

 

James Balinskas

Director, Contract Management Division

 

Enclosures

PART 1801

FEDERAL ACQUISITION REGULATIONS SYSTEM

TABLE OF CONTENTS

 

1801.000                                 Scope of part.

 

SUBPART      1801.1             PURPOSE, AUTHORITY, ISSUANCE

1801.103                                 Authority.

1801.104                                 Applicability.

1801.105                                 Issuance.

1801.105-1                              Publication and code arrangement.

1801.105-2                              Arrangement of regulations.

1801.106                                 OMB approval under the Paperwork Reduction Act.

 

SUBPART      1801.2             ADMINISTRATION

1801.270                                 Amendment of the NFS.

1801.271                                 NASA procedures for FAR and NFS changes.

1801.272                                 Procurement Information Circulars.

 

SUBPART      1801.3             AGENCY ACQUISITION REGULATIONS

1801.301                                 Policy.

1801.303                                 Publication and codification.

 

SUBPART      1801.4             DEVIATIONS FROM THE FAR

1801.400                                 Scope of subpart.

1801.471                                 Procedure for requesting deviations.

 

SUBPART      1801.6             CAREER DEVELOPMENT, CONTRACTING AUTHORITY,  AND RESPONSIBILITIES

1801.601                                 General.

1801.602-3                              Ratification of unauthorized commitments.

1801.603                                 Selection, appointment, and termination of appointment.

1801.603-2                              Selection.

1801.670                                 Delegations to contracting officer's technical representatives

                                                   (COTRs).

 

SUBPART      1801.7             DETERMINATIONS AND FINDINGS

1801.707                                 Signatory authority.

1801.770                                 Legal review.

 

PART 1801

FEDERAL ACQUISITION REGULATIONS SYSTEM

 

1801.000    Scope of part.

This part sets forth general informa­tion about the National Aeronautics and Space Administration (NASA) Federal Acquisition Regulation (FAR) Supplement, also referred to as the NFS.

 

Subpart 1801.1--Purpose, Authority, Issu­ance

 

1801.103 Authority.

(a)  Under the following authorities, the Ad­minis­tra­tor has delegated to the Assistant Administrator for Procurement authori­ty to prepare, issue, and main­tain the NFS:

(i)  The National Aeronautics and Space Act of 1958   (Pub. L. 85-568; 42 U.S.C. 2451 et seq.).

(ii) 10 U.S.C. chapter 137.

     (iii) Other statutory authority.

     (iv)  FAR Subpart 1.3.

 

1801.104 Applicability.

   The NFS ap­plies to all acquisitions as defined in FAR Part 2 ex­cept those express­ly excluded by the FAR or this regulation.

 

1801.105 Issuance.

 

1801.105-1 Publication and code arrange­ment.

   (b)(i) The NFS is an integrated document that contains both acquisition regulations that require public comment and internal Agency guidance and procedures that do not require public comment.  NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

       (ii) NFS regulations that require public comment are issued as Chapter 18 of Title 48, CFR.

      (iii) The single official NASA-maintained version of the NFS is on the Internet  (http://www.hq.nasa.gov/office/procurement/regs/nfstoc.htm).

  (a)  The single official NASA-maintained version of the NFS is on the Internet  (http://www.hq.nasa.gov/office/procurement/regs/nfstoc.htm) .

  (b)  The NFS is issued as chapter 18 of title 48, CFR.

 

1801.105-2 Arrangement of regulations.

   (b)(1)(A)  Numbering of NFS text imple­menting the FAR shall be the same as that of the related FAR text, except when the NFS coverage exceeds one para­graph.  In such case the NFS text is num­bered by skipping a unit in the FAR 1.105-2(b)(2) pre­scribed numbering sequence.  For exam­ple, two paragraphs implementing FAR 1.105-2(b)(1) are numbered 1801.105-2(b)(1)(A) and (B), rather than (1)(i) and (ii).  Further subdivision of the NFS imple­menting paragraphs would follow the pre­scribed sequence in FAR 1.105(b)(2).

            (B)  NFS text that supplements the FAR part is num­bered the same as its FAR counterpart with the addi­tion of a number 70 and up.  For example, NFS supple­ment of FAR subsection 1.105-3 is numbered 1801.105-370.  Sup­plemental text ex­ceeding one para­graph is numbered using the FAR 1.105-2(b)(2) prescribed numbering sequence with­out skipping a unit.

         (2)  Subdivision numbering below the fourth level repeats the numbering sequence using itali­cized letters and numbers.

 

1801.106 OMB approval under the Paper­work Reduction Act.

   (1)  NFS requirements.  The following OMB control numbers apply:

NFS  Segment

OMB Control Number

1804.470

2700-0098

1804.74

2700-0097

1819

2700-0073

1819.72

2700-0078

1823.271

2700-0106

1827

2700-0052

1831

2700-0080

1843

2700-0054

1843.71

2700-0094

NF 533

2700-0003

NF 1018

2700-0017

 

   (2)  Solicitations and contracts.  Various require­ments in a solicitation or contract, generally in the statement of work, are not tied to specific para­graphs cleared in para­graph (1) of this section, yet require infor­mation collection or recordkeeping.  The following OMB control numbers ap­ply to these requirements:  2700-0086 (acquisitions up to $25,000), 2700-0087 (solicitations that may result in bids or proposals not exceed­ing $500,000), 2700-0085 (solicita­tions that may result in bids or propos­als exceeding $500,000), 2700-0088 (con­tracts not exceed­ing $500,000), and 2700-0089 (contracts exceed­ing $500,00­0).

 

Subpart 1801.2--Administration

 

1801.270 Amendment of the NFS.

   (a)  The NFS is amended by publishing changes in the Federal Register.  These changes are then incorporated into the NASA-maintained Internet version of the NFS through

Procure­ment Notices  (PNs).  PNs are numbered consecu­tively, prefixed by the last two digits of the calendar year of issuance of the current edition of the NFS.

   (b)  Compliance with a revision to the NFS shall be in accor­dance with the PN containing the revision. Unless otherwise stated, solicita­tions that have been issued, and bilateral agree­ments for which negotiations have been completed, before the receipt of new or revised contract clauses need not be amend­ed to include the new or revised clauses if including them would unduly delay the acquisition.

 

1801.271 NASA procedures for FAR and NFS changes.

   (a)  Informal suggestions for improving the NFS, includ­ing correction of errors, should be directed to the Headquarters Office of Procurement (Code HK).

   (b)(1)  Formal requests for changes to the FAR or the NFS should be written and contain (i) a descrip­tion of the problem the suggested revision is de­signed to cure,  (ii) the revision in the form of a marked-up copy of the current FAR or NFS lan­guage or the text of any additional language,  (iii) the consequences of making no change and the benefits to be expected from a change, and  (iv) any other information necessary for understanding the situa­tion, such as relationship between FAR and NFS cover­age, legal opinions, coordination with other offices, and existing agreements.      

     (2)  Formal requests for FAR and NFS changes should be sent to Code HK.  Re­quests from Headquar­ters offices should originate at the division level or higher, while installation requests should be signed at the procurement officer or higher level.

 

1801.272 Procurement Information Circulars.

   (a)  The Procurement Information Cir­cu­lar (PIC) is used for internal dissemina­tion of procurement-related information and direc­tives not suitable for inclusion in the NFS.  Code HK is responsible for issuing PICs.

   (b)  PICs are numbered on a calendar year basis, beginning with number 1, pre­fixed by the last two digits of the year.

 

Subpart 1801.3--Agency Acquisi­tion Regu­lations

 

1801.301    Policy.

   (a)(2)  Heads of NASA field installations may pre­scribe policies and procedures that do not have a signifi­cant effect beyond the internal operating proce­dures of their installations.  All other poli­cies, proce­dures, and solicitation and contract provi­sions and clauses must be for­warded to the Head­quar­ters Office of Procurement (Code HK) for approval in accor­dance with 1801.271(b).

   (b)(i)   41 U.S.C. 418b requires publica­tion of NFS changes for public comment where there will be a significant effect beyond the internal oper­ating procedures of the agency or a signifi­cant cost or adminis­trative impact on con­tractors or offerors.  Howev­er, it does not define "sig­nifi­cant effect beyond the internal operat­ing proce­dures" or "signifi­cant cost or ad­minis­trative im­pact."  Exam­ples of policies or procedures that fall in either of these cate­gories are:

          (A)  A contract clause requiring con­trac­tors to take precautions to avoid injury to Flori­da mana­tees, which have been desig­nated as an endangered species, has a sig­nificant cost impact for contractors who must obtain protective devices for boat propel­lers and take other safety actions.

          (B)  A contract clause requiring con­trac­tors to follow the Government's holiday sched­ule, thereby disallowing premium pay for work on contractor-designated holidays, will have an effect outside the internal operating procedures of the agency.

          (C)  A contract clause requiring con­trac­tors to segregate costs by appropriations will affect the contractor's internal accounting system and have a significant impact.

          (D)  Requiring contractor compliance with NASA's Space Transportation System Per­sonnel Reliability Program will have an effect outside the internal operating proce­dures of the agency.

     (ii)  In contrast, the following would not have to be publicized for public comment:

          (A)  Security procedures for identify­ing and badging contractor personnel to obtain access at a NASA installation.

          (B)  A one-time requirement in a con­struc­tion contract for the contractor to develop a place­ment plan and for inspection prior to any concrete being placed.  (This is part of the specification or state­ment of work.)

          (C)  A policy that requires the NASA instal­lation to maintain copies of unsuccess­ful offers.

 

1801.303 Publication and codification.

   (a) Part, subpart, and section numbers 70 through 89 are reserved for NFS supplemen­tary material for which there is no FAR counterpart.

through (viii).
        (x)   Duly designated ombudsman.

   (c)(i) The originator of information that may be source selection information shall consult with the contracting officer or the procurement officer, who shall determine whether the information is source selection information. NASA personnel responsible for preparing source selection information as defined in FAR 2.101 shall assure that the material is marked with the legend in FAR 3.104-4(c) at the time the material is prepared.
       (ii)  Unless marked with the legend "SOURCE SELECTION INFORMATION -- SEE FAR 2.101 and 3.104," draft specifications, purchase descriptions, and statements of work are not considered source selection information and may be released during a market survey in order to determine the capabilities of potential competitive sources (see FAR Subpart 7.1). All documents, once released, must remain available to the public until the conclusion of the acquisition.

1803.104-7  Violations or possible violations.
  (a)(1)  The Procurement Officer is the individual designated to receive the contracting officer's report of violations.
  (b)  The head of the contracting activity (HCA) or designee shall refer all information describing an actual or possible violation to the installation's counsel and inspector general staff and to the Assistant Administrator for Procurement (Code HS).
  (f)  When the HCA or designee determines that award is justified by urgent and compelling circumstances or is otherwise in the interest of the Government, then that official shall submit a copy of the determination to the Assistant Administrator for Procurement (Code HS) simultaneous with transmittal to the Administrator.

Subpart 1803.2--Contract or Gratuities to Government Personnel

1803.203 Reporting suspected violations of the Gratuities clause.

   Any suspected violations of the clause at FAR 52.203-3, Gratuities, shall be reported to the installation's Office of Inspector General.

Subpart 1803.3--Reports of Suspected Antitrust Violations

1803.303   Reporting suspected antitrust violations.
 (b)(i)  When offers are received that, in the opinion of the contracting officer, indicate possible antitrust violations, the contracting officer shall report the circumstances to the General Counsel, NASA Headquarters, through the Office of Procurement (Code HS). Reports should not be submitted automatically but only when there is reason to believe the offers may not have been arrived at independently. These reports shall be submitted with conformed copies of bids or proposals, contract documents, and other supporting data, and shall set forth --
            (A)  The noncompetitive pattern or situation under consideration;
            (B)  Purchase experience in the same product or service for a reasonable period (one or more years) preceding receipt of the offers under consideration, including unit and total contract prices and abstracts of bids;
            (C)  Community of financial interest among offerors, insofar as it is known;
            (D)  The extent, if any, to which specification requirements or patents restrict competition;
           (E)  Any information available about the pricing system employed in offers believed to reflect noncompetitive practices; and
           (F)  Any other pertinent information.
       (ii)  Evidence of practices that, in the opinion of the General Counsel, NASA Headquarters, may violate the antitrust laws shall be forwarded to the Attorney General of the United States (see FAR 3.303).
   (d)  The contracting officer shall submit the identical bid report required by FAR 3.303(d) to NASA Headquarters, Office of Procurement (Code HS). The report shall include the reasons for suspecting collusion. Code HS shall forward a copy to the NASA Office of the Inspector General.

Subpart 1803.5--Other Improper Business Practices

1803.502  Subcontractor kickbacks.
 Contracting officers shall report suspected violations of the Anti-Kickback Act in accordance with 1809.470.

Subpart 1803.6--Contracts with Government Employees or
Organizations Owned or Controlled by Them

1803.602  Exceptions.
 The Assistant Administrator for Procurement has been delegated the authority to authorize an exception to the policy in FAR 3.601. The Assistant Administrator for Procurement has redelegated this authority to the heads of contracting activities (HCAs) for individual actions in the aggregate of $100,000 and below, inclusive of follow-on acquisitions, with concurrence by the HCA's Office of Chief Counsel.  All requests above the HCA's authority shall be forwarded to the Assistant Administrator for Procurement (Code HS) for approval.

Subpart 1803.7--Voiding and Rescinding Contracts

1803.704   Policy.
  (a) The Assistant Administrator for Procurement has been delegated authority to void or rescind contracts when there is a final conviction for violation of 18 U.S.C. 201-224 (Bribery, Graft and Conflicts of Interest) relating to them.

1803.705   Procedures.
   (a)  Procurement officers shall make reports to the Assistant Administrator for Procurement (Code HS). The Assistant Administrator for Procurement is responsible for the actions, notices, and decisions required by FAR 3.705(c), (d), and (e).

Subpart 1803.8--Limitation on the Payment of Funds
to Influence Federal Transactions

1803.804   Policy.
   (b) Procurement officers shall forward one copy of each Disclosure of Lobbying Activities (SF-LLL) furnished pursuant to FAR 3.803 to the Office of Procurement (Code HS). The original shall be retained in the contract file. Forms shall be submitted semi-annually by April


15th for the six-month period ending March 31st, and by October 15th for the period ending September 30th.

1803.806  Processing suspected violations.
   The Assistant Administrator for Procurement (Code HS) is the designated official to whom suspected violations of the Act shall be referred.

Subpart 1803.70--IG Hotline Posters

1803.7000 Policy.

   NASA requires contractors to display NASA hotline posters prepared by the NASA Office of Inspector General on those contracts specified in 1803.7001, so that employees of the contractor having knowledge of waste, fraud, or abuse, can readily identify a means to contact NASA's IG.

 

1803.7001 Contract clause.

   Contracting officers must insert the clause at 1852.203-70, Display of Inspector General Hotline Posters, in solicitations and contracts expected to exceed $5,000,000 and performed at contractor facilities in the United States.

actions requiring Headquarters approval, insert "NASA Assistant Administrator for Procurement" in the clause's blank space.

 

1804.170  Contract effective date.

   (a)  "Contract effective date" means the date agreed upon by the parties for beginning the period of performance under the contract.  In no case shall the effective date precede the date on which the contracting officer or designated higher approval authority signs the document.

   (b)  Costs incurred before the contract effective date are unallowable unless they qualify as precontract costs (see FAR 31.205-32) and the clause prescribed at 1831.205-70 is used.

 

Subpart 1804.2--Contract Distribution

 

1804.202  Agency distribution requirements.

In addition to the requirements in FAR 4.201, the contracting officer shall distribute one copy of each R&D contract, including the Statement of Work, to the NASA Center for AeroSpace Information (CASI), Attention: Acquisitions Collections Development Specialist, 7121 Standard Drive, Hanover, MD  21076-1320.