Revision to the NASA FAR Supplement to Eliminate Non-Statutory Certification Requirements

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1819, 1834, 1845, 1852 and 1870

Revision to the NASA FAR Supplement to Eliminate Non-Statutory

Certification Requirements

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration is

publishing a notice of proposed rulemaking to amend the NASA FAR

Supplement (NFS) to eliminate all non-statutory imposed contractor and

offeror certification requirements.

DATES: Written comments on the proposed rulemakig must be received on

or before February 18, 1997.

ADDRESSES: Comments (3 copies) should be addressed to Donald G. Abrams,

Office of Procurement, Contract Management Division, Code HK, NASA

Headquarters, Washington DC 20546.

FOR FURTHER INFORMATION CONTACT:

Donald G. Abrams, telephone (202) 358-0512; facsimile (202) 358-3083;

or electronic mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

Section 4301(b)(1)(B) of the Federal Acquisition Reform Act of 1996

(FARA), Pub. L. 104-106, requires agencies that have procurement

regulations containing one or more certification requirements for

contractors and offerors that are not specifically imposed by statute

to issue for public comment a proposal to amend their regulations to

remove the certification requirements. Such certification requirements

may be omitted from the agency proposal if (i) the senior procurement

executive for the executive agency provides the head of the executive

agency with a written justification for the requirement and a

determination that there is no less burdensome means for administering

and enforcing the particular regulation that contains the certification

requirement; and (ii) the head of the executive agency approves in

writing the retention of such certification requirement.

The proposed rule constitutes NASA's proposal for the elimination

of all non-statutory imposed contractor and offeror certification

requirements from the NFS pursuant to section 430(b)(1)(B) of FARA.

NASA has not identified any regulatory certification requirement

contained in the NFS which it has determined should be proposed for

retention. Consequently, the Agency is not pursuing approval from the

Administrator of NASA to retain any certification requirement not

specifically imposed by statute. The Agency invites public comment on

its proposal to eliminate all regulatory certification requirements

from the NFS and on its determination that there are no certification

requirements which should be proposed for retention.

Agency Proposal to Eliminate Non-Statutory Certification

Requirements

The following is the Agency's proposal pertaining to each

contractor and offeror certification requirement contained in the NFS.

1. 1816.303 Cost Sharing Contracts

This requirement, which dealt with the certification requested from

a university to the fact that it has ``no commercial, production,

educational, or service activities on which to use the results of the

research and no means of recovering any cost sharing on such

projects'', has been deleted from the rewrite of the NFS.

2. 1819.7211 Application Process for Mentor Firms to Participate in the

Program

This section, which required that ``a proposed mentor must submit

the following information (1) certification that the mentor firm is

currently performing under at least one active approved subcontracting

plan * * *'' will be rewritten to require simply a statement to the

same effect.

3. 1832.7002 Responsibility

This section has been removed due to the rewrite of the NFS

(effective October 29, 1996, 61 FR 55765-55774).

4. 1832.7004(b) Contractual Implementation (Milestone Billing)

The section has been removed due to the rewrite of the NFS

(effective October 29, 1996, 61 FR 55765-55774).

5. 1834-005-1 Competition (Major Systems Acquisition)

The passing reference under ``(4) Phase D, Development, involves

final detailed design, fabrication, certification, and delivery of an

operational system that meets program requirements,'' will be deleted

from the rewrite to the NFS.

6. 1845.302-73 Determination and Findings (Decision to Provide

Government Property)

Whereas the previous section was worded, ``contractor has certified

inability to acquire the facilities'', this will be rewritten to have

the contractor ``demonstrate inability to acquire* * *''.

7. 1852.223-70 Safety and Health

Previously, the clause required the contractor to submit a

certification program for personnel involved in hazardous operations as

required by the contract schedule or the contracting officer.'' This

will be rewritten to require ``qualification standards for personnel* *

*''. This clause was published in the Federal Register October 29, 1996

(61 FR 55753-55764).

8. 1852-247-73 Shipment by Government Bills of Lading

This optional transportation clause for use in f.o.b. Origin

contracts instructs the contractor to certify on his/her invoices that

the material has been shipped. It will be rewritten to require simply a

statement that the material has been shipped.

9. 1870.102-703 VI Proposal Submission Information (Investigation

Acquisition System)

Section 2.6, entitled Certification, previously required that ``the

proposal must be signed by an institutional official authorized to

certify institutional support * * *''. It will be rewritten to be

entitled ``Signatory'' and require ``signed by institutional official

authorized to ensure* * *''.

Public Comments

NASA invites interested persons to participated by submitting data,

views, or arguments with respect to the NFS amendments set forth in

this proposed rule. Three copies of written comments should be

submitted to the address indicated in the ADDRESSES section of this

rule. All comments received will be available for public inspection

during normal work hours. All written comments received by the date

indicated in the DATES section of this notice will be carefully

assessed and full considered prior to the effective date of these

amendments as a final rule. Any information considered to be

confidential must be so identified and submitted in writing, one copy

only. NASA reserves the right to determine the confidential status of

the information and to treat it according to

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its determination in accordance with 10 CFR 1004.11.

Impact

NASA certified that this rule will not have a significant economic

impact on a substantial number of small entities and, therefore, no

regulatory flexibility analysis has been prepared.

NASA has concluded that this proposed rule does not involve any

significant issues of law or fact. Therefore, consistent with 5 U.S.C.

553, NASA has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 1819, 1834, 1845, 1852 and 1870

Government Procurement.

Tom Luedtke,

Deputy Associate Administrator for Procurement.

Accordingly, 48 CFR 1819, 1834, 1845, 1852 and 1870 are proposed to

be amended as follows:

1. The authority citation for 48 CFR 1819, 1834, 1845, 1852 and

1870 continues to read as follows:

Authority: U.S.C. 2473(c)(1).

PART 1819--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS

1819.7211 [Amended]

2. Section 1819.7211 is revised to read as follows:

1819.7211 Application process for mentor firms to participate in the

program.

(a) Prime contractors interested in becoming a mentor firm must

submit a request to the NASA OSDBU to be approved under the program.

The application will be evaluated on the extent to which the company

plans to provide developmental assistance. The information required in

paragraph (b) of this section must be submitted to be considered for

approval as a mentor firm.

(b) A proposed mentor must submit the following information to the

NASA OSDBU:

(1) A statement that the mentor firm is currently performing under

at least one active approved subcontracting plan (small business

exempted) and that they are eligible, as of the date of application,

for the award of Federal contracts;

(2) The cognizant NASA contract number(s), type of contract, period

of performance (including options), title of technical program effort,

name of NASA Program Manager (including contact information) and name

of NASA field center where support is provided;

(3) The number of proposed Mentor-Protege arrangements;

(4) Data on all current NASA contracts and subcontracts to include

the contract/subcontract number(s), period of performance, awarding

NASA installation or contractor and contract/subcontract value(s)

including options;

(5) Data on total number and dollar amount of subcontracts awarded

under NASA prime contracts within the past 2 years and the number of

dollar value of such subcontracts awarded to entities defined as

proteges.

(6) Information on the proposed types of developmental assistance.

For each proposed Mentor-Protege relationship include information on

the company's ability to provide developmental assistance to the

identified protege firm and how that assistance will potentially

increase subcontracting opportunities for the protege firm, including

subcontracting opportunities in industry categories where these

entities are not dominant in the company's current subcontractor base;

and

(7) A Letter of Intent signed by both parties. At a minimum, the

Letter of Intent must include the stated commitment that the parties

intend to enter into a mentor-protege agreement under the NASA program,

that they intend to cooperate in the development of a suitable

developmental assistance program to meet their respective needs, and

that they agree to comply with the obligations in section 1819.7215 and

all other provisions governing the program.

PART 1834--MAJOR SYSTEM ACQUISITION

1834.005-1 [Amended]

3. In section 1834.005-1, the existing paragraph (b)(4) is removed

and paragraph (b)(5) is redesignated as paragraph (b)(4).

PART 1845--GOVERNMENT PROPERTY

1845.302-73 [Amended]

4. Section 1845.302-73 is revised to read as follows:

1845.302-73 Determination and findings.

(a) Procedure. Determination and findings (D&F) required under FAR

45.302-1(a)(4) shall be prepared by the contracting officer and

approved by the procurement officer. Prior to approval of the D&F by

the procurement officer, concurrence must be obtained from the Director

of Administration or equivalent, to ensure that the requiring activity

and the installation supply and equipment management officer agree to

the use of the Government facilities by the contractor. D&Fs shall

address individual types of facilities to be provided to the

contractor. Reference to specific variations in quantities of items to

be provided should be included in the D&F if additional requirements

are anticipated. A separated D&F is required before adding new types of

items or significant changes in quantity. A separate D&F is also

required before adding any new work to the contract that requires

additional Government facilities.

(b) Format. A sample format follows:

(Format) National Aeronautics and Space Administration, Washington, DC

20546

Determination and Findings

Decision To Provide Government Facilities

On the basis of the following findings and determinations,

Government-owned facilities may be provided to [insert the name of

the contractor] pursuant to the authority of FAR 45.302-1(a) (4).

Findings

1. The [insert the name of the contracting activity] and the

contractor (have entered)/(proposed to enter) into Contract No.

[insert the contract number]. (Include the following information:

Type of contract, contract value, and a brief description of the

scope of work performed under the contract.)

2. (Justify that Government facilities are needed for

performance under the contract. The justification shall demonstrate

either (i) that the contract cannot be fulfilled by any other means,

or (ii) that it is in the public interest to provide the facilities.

It is imperative that the justification be fully substantiated by

evidence.)

3. (If the contract effort cannot be fulfilled by any other

means, indicate why the contractor cannot provide the facilities.

For example, due to financial constraints, the contractor has

demonstrated inability to acquire the facilities; or, even though

the contractor is willing and financially able to acquire these

facilities for its own account, the contractor has stated that time

will not permit making arrangements to obtain timely delivery to

meet NASA requirements. If timely delivery is the problem, state

when the contractor will replace the Government facilities with

contractor-owned facilities. Address leadtime, validate the

contractor's claims, and state that private financing was sought and

either not available or not advantageous to the Government. If

private financing was not advantageous to the Government, provide

justification. Indicate other alternatives considered and reasons

for rejection.)

4. (Give a general description of the types of facilities to be

provided and indicate the variation in quantities of items based on

functional requirements. Explain how these facilities pertain to the

scope of work to be completed. State that the contract cannot be

accomplished without the specified facility items being provided.

Include an estimate of the value of the facilities and a statement

that no facilities items under $10,000 unit cost will be provided

unless the contractor is a nonprofit, on-site, or the facilities are

only available from the Government.)

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5. (Indicate whether the property will be accountable under this

contract or a separate facilities contract.)

Determination

For the reasons set forth above, it is hereby determined that

the Government-owned facilities identified herein will be provided

to the contractor.

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Procurement Officer

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Date

(End of format)

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

5. Part 1852 is amended as set forth below:

1852.223-70 [Amended]

6. Section 1852.223-70 is revised to read as follows: 1852.223-70

Safety and Health.

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

Safety and Health

(February 1996)

(a) The Contractor shall take all reasonable safety and health

measures in performing under this contract. The Contractor shall

comply with all Federal, State, and local laws applicable to safety

and health in effect on the date of this contract and with the

safety and health standards, specifications, reporting requirements,

and provisions set forth in the contract Schedule.

(b) The Contractor shall take or cause to be taken any other

safety and 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 provision of the

contract.

(c) 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 occupations 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 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.

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. The Contractor shall investigate

all work-related incidents or accidents to the extent necessary to

determine their causes and furnish the Contracting Officer a report,

in such form as the Contracting Office may require, of the

investigative findings and proposed or completed corrective actions.

(d) (1) The Contracting Officer may notify the Contractor in

writing of any noncompliance with this clause and specify corrective

actions to be taken. 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 (d) (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.

(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 (1)

amount to $1,000,000 or more (unless the Contracting Officer makes a

written determination that this is not required), (2) require

construction, repair, or alteration in excess of $25,000, or (3)

regardless of dollar amount, involve the use of hazardous materials

or operations.

(f) 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 health

measures under this clause.

(g) As a part of the Contractor's safety plan (and health plan,

when applicable) and to the extent required by the Schedule, the

Contractor shall furnish a list of all hazardous operations to be

performed, including operations indicated in paragraphs (a) and (b)

of this clause, 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 either or both of

the following, as required by the contract Schedule or by the

Contracting Officer:

(1) Written hazardous operating procedures for all hazardous

operations.

(2) A certification program for personnel involved in hazardous

operations.

(End of clause)

Sec. 1852.247-73 [Amended]

7. Section 1852.247--73 is revised to read as follows:

Sec. 1852.247-73 Shipment by Government bills of lading.

As prescribed in 1847.305-70(c), insert the following clause:

Shipment by Government Bills of Lading

(March 1989)

(a) The Contractor shall ship items deliverable under this

contract, if the transportation cost per shipment exceeds $100, by

Government bills of lading (GBLs). At least 15 days before shipment,

the Contractor shall request in writing GBLs from: ____________

[Insert name, title, and mailing address of designated

transportation officer or other official delegated responsibility

for GBLs]. If time is limited, requests may be by telephone:

____________ [Insert appropriate telephone number]. Requests for

GBLs shall include the following information.

(1) Item identification/description.

(2) Origin and destination.

(3) Individual and total weights.

(4) Dimensions and total cubic footage.

(5) Total number of pieces.

(6) Total dollar value.

(7) Other pertinent data.

(b) The Contractor shall prepay transportation charges of $100

or less per shipment. The Government shall reimburse the Contractor

for these charges if they are added to the invoice as a separate

line item supported by the paid freight receipts. If paid receipts

in support of the invoice are not obtainable, a statement as

described below must be completed, signed by an authorized company

representative, and attached to the invoice. The shipments

identified below have been made, transportation charges have been

paid by (company name), and paid freight or comparable receipts are

not obtainable.

Contract or Order Number:

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Destination:

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(End of clause)

PART 1870--NASA SUPPLEMENTARY REGULATIONS

Sec. 1870.102, Appendix I Chapter 7-- [Amended]

8. In Appendix I to 1870.102, Chapter 7, section 703, paragraph VI

is revised to read as follows:

APPENDIX I TO 1870.102--GUIDELINES FOR ACQUISITION OF INVESTIGATIONS

* * * * *

CHAPTER 7--PROCUREMENT AND OTHER CONSIDERATIONS

703. Other Administrative and Functional Requirements

* * * * *

VI. Proposal Submission Information

1. Preproposal Activities--In this section, the AO will indicate

requirements and activities such as the following:

a. Submittal of ``Notice of Intent'' to propose (if desired),

date for submission, and any additional required data to be

submitted. Indicate whether there are information packages which

will only be sent to those who submit ``Notice of Intent.''

b. Attendance at the preproposal conference (if held).

Information should be provided as to time, place, whether attendance

will be restricted in number from

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each institution, and whether prior notice of intention to attend is

required. If desired, a request may be included that questions be

submitted in writing several days before the conference in order to

prepare replies.

c. The name and address of the scientific or technical contact

for questions or inquiries.

d. Any other preproposal data considered necessary.

2. Format of Proposals--This section should provide the

investigator with the information necessary to enable an effective

evaluation of the proposal. The information is as follows:

a. Proposal--The AO should indicate how the proposal should be

submitted to facilitate evaluation. The proposal should be submitted

in at least two sections; (1) Investigation and Technical Section;

and (2) Management and Cost Section.

b. Signatory--The proposal must be signed by an institutional

official authorized to ensure institutional support, sponsorship of

the investigation, management, and financial aspects of the

proposal.

c. Quantity--The number of copies of the proposal should be

specified. One copy should be clear black and white, and on white

paper of quality suitable for reproduction.

d. Submittal Address--Proposals from domestic sources should be

mailed to arrive not later than the time indicated for receipt of

proposals to:

National Aeronautics and Space Administration, Office of (Program)

Code ________ AO No. ________

Washington, DC 20546

e. Format--To aid in proposal evaluation, and to facilitate

comparative analysis, a uniform proposal format will be required for

each AO. The number of pages, page size, and restriction on photo

reduction, etc., may be included. The format contained in Appendix C

can be used as a guide. Proposers may be requested to respond to all

of the items or the AO may indicate that only selected items need be

addressed. Using the Appendix format as a guide, specific guidelines

may be prepared for the AO or an appropriate form developed.

3. Additional Information--This section may be used to request

or furnish data necessary to obtain clear proposals that should not

require further discussions with the proposer by the evaluators.

Other pertinent data could also be included, such as significant

milestones.

4. Foreign Proposals--The procedures for submission of proposals

from outside the U.S. are contained in Appendix B, ``General

Instructions and Provisions.'' This section will describe any

additional requirements, for example, if information copies of

proposals are required to be furnished by the proposer to other

organizations at the same time the proposal is submitted.

5. Cost Proposals (U.S. Investigators Only)--This section

defines any special requirements regarding cost proposals of

domestic investigators. Reference then should be made to the cost

proposal certifications indicated in Appendix B, ``General

Instructions and Provisions''.

* * * * *

[FR Doc. 96-31985 Filed 12-17-96; 8:45 am]

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