Rewrite of the NASA Far Supplement (NFS)

Federal RegisterJul 9, 1997

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815, 1816, 1819, 1822,

1824, 1825, 1827, 1832, 1836, 1837, 1839, 1842, 1844, 1845, 1852,

1853, and 1870

Rewrite of the NASA Far Supplement (NFS)

AGENCY: Office of Procurement, National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

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SUMMARY: In order to streamline and clarify our regulations, parts

1813, 1819, 1825, 1827, 1845, and 1853, and clauses affected by these

parts are revised in their entirety. Also included in this final rule

are changes to 1803, 1804, 1807, 1815, 1816, 1822, 1824, 1832, 1836,

1837, 1839, 1842, and 1852 to reflect the impact of the rewritten

parts, correct editorial errors, and accommodate changes to relate

coverage in the Federal Acquisition Regulation (FAR).

EFFECTIVE DATE: July 9, 1997.

FOR FURTHER INFORMATION CONTACT:

Tom O'Toole, (202) 358-0847.

SUPPLEMENTARY INFORMATION:

Background

The National Performance Review urged agencies to streamline and

clarify their regulations. The NFS rewrite initiative was established

to pursue these goals by conducting a section by section review of the

NFS to verity its accuracy, relevancy, and validity. The NFS will be

rewritten in blocks of parts. Upon completion of all parts, the NFS

will be reissued in a new edition.

Impact

NASA certifies that this regulation will not have a significant

impact on a substantial number of small entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). This rule does not impose any

reporting or record keeping requirements subject to the Paperwork

Reduction Act.

List of Subjects in 48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815,

1816, 1819, 1822, 1824, 1825, 1827 1832, 1836, 1837, 1839, 1842, 1844,

1845, 1852, 1853, and 1870

Government procurement.

Tom Luedtke,

Deputy Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1803, 1804, 1807, 1809, 1813, 1815, 1816,

1819, 1822, 1824, 1925, 1827 1832, 1836, 1837, 1839, 1842, 1844, 1845,

1852, 1853, and 1870 are amended as follows.

1. The authority citation for 48 CFR parts 1803, 1804, 1807, 1809,

1813, 1815, 1816, 1819, 1822, 1824, 1825, 1827, 1832, 1836, 1837, 1839,

1842, 1844, 1845, 1852, 1853, and 1870 continues to read as follows:

Authority: 42 U.S.C. 2473(c)(1).

PART 1803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

1803.104 [Revised]

(2). Section 1803.104 is revised to read as follows:

1803.104 Procurement integrity.

1803.104-3 Definitions.

Agency ethics official means for Headquarters, the General Counsel

and the Associate General Counsel for General Law, and for each center,

the Chief Counsel.

1803.104-5 Disclosure, protection, and marking of proprietary and

source selection information. (NASA supplements paragraphs (a) and (c))

(a) Government employees serving in the following positions are

authorized access to proprietary or source selection information, but

only to the extent necessary to perform their official duties:

(i) Personnel participating in source evaluation board (SEB)

procedures (see 1815.612.70) or personnel evaluating an offeror's or

bidder's technical or cost proposal under other competitive procedures

and personnel evaluating protests.

(ii) Personnel assigned to the contracting office.

(iii) The initiator of the procurement request (to include the

official having principal technical cognizance over the requirement).

(iv) Small business specialists.

(v) Personnel assigned to counsel's office.

(vi) Personnel assigned to the Defense Contract Audit Agency and

contract administration offices of the Department of Defense.

(vii) Personnel responsible for the review and approval of

documents in accordance with the Master Buy Plan Procedure in Subpart

1807.71.

(viii) Other Government employees authorized by the contracting

officer.

(ix) Supervisors, at any level, of the personnel listed in

paragraphs 1803.104-5(a) (i) 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 3.104-3 shall assure

that the material is marked with the legend in FAR 3.104-5(c) at the

time the material is prepared.

(ii) Unless marked with the legend ``SOURCE SELECTION INFORMATION--

SEE FAR 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.

1803.104-10 Violations or possible violations. (NASA supplements

paragraphs (a), (b) and (f))

(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 Associate

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 Associate Administrator for Procurement (Code HS)

simultaneous with transmittal to the Administrator.

[[Page 36705]]

PART 1804--ADMINISTRATIVE MATTERS

1804.470-3 [Redesignated]

3. Section 1804.470-3 is redesignated as section 1804.470-4, and a

new section 1804.470-3 is added to read as follows:

1804.470-3 Security Plan for Unclassified Federal Information

Technology Systems.

When considered appropriate for contract performance, the

contracting officer, with the concurrence of the requiring activity and

the center automated information security (AIS) manager, may require

the contractor to submit for post-award Government approval a detailed

Security Plan for Unclassified Federal Information Technology Systems.

The plan shall be required as a contract data deliverable that will be

subsequently incorporated into the contract as a compliance document

after Government approval. The plan shall demonstrate thorough

understanding of NMI 2410.7 and NHB 2410.9, and shall include, as a

minimum, the security measures and program safeguards to ensure that

the information technology resources acquired and used by contractor

and subcontractor personnel:

(a) Operate effectively and accurately;

(b) Are protected from unauthorized alteration, disclosure, or

misuse of information processed, stored, or transmitted;

for Government missions, programs, and functions;

(d) Incorporate management, general, and application controls

sufficient to provide cost-effective assurance of the system's

integrity and accuracy; and

(e) Have appropriate technical, personnel, administrative,

environmental, and access safeguards.

PART 1807--ACQUISITION PLANNING

4. In section 1807.105 a new paragraph (b)(1) is added to read as

follows:

1807.105 Contents of written acquisition plans. (NASA supplements

paragraphs (a) and (b))

* * * * *

(b)(1) If the acquisition represents a consolidation of efforts

previously contracted for separately, address the reasons for the

consolidation, the expected benefits, and any potential adverse impact

(including the effect on small, small disadvantaged, and women-owned

small business participation) and planned actions to mitigate the

impact (see (1819.202-170).

* * * * *

1807.70 [Added]

5. Subpart 1807.70 is added to read as follows:

Subpart 1807.70--Consolidated Contracting

1807.7000 General.

The Consolidated Contracting Initiative (CCI) is NASA's commitment

to the cooperative creation and utilization of contracts, whenever

practicable, to meet common Agency needs. CCI aims at improving

acquisition efficiency by identifying and logically combining similar

requirements. Complete information on the initiative, with its

implementation guidance, is available on the Internet (http://

msfcinfo.msfc.nasa.gov/cci/first.html).

PART 1809--CONTRACTOR QUALIFICATIONS

1809.106-3 [Amended]

6. In paragraph (a) to section 1809.106-3, the designation ``(a)''

is removed.

7. Part 1813 is revised to read as follows:

PART 1813--SIMPLIFIED ACQUISITION PROCEDURES

Sec.

1813.000 Scope of part.

Subpart 1813.1--General.

1813.103 Policy.

1813.106-2 Purchases exceeding the micro-purchase threshold.

Subpart 1813.2--Blanket Purchase Agreements

1813.202 Establishment of blanket purchase agreements (BPAs).

Subpart 1813.5--Purchase Orders

1813.501 General.

1813.501-70 Purchase orders under section 8(a) of the Small

Business Act.

1813.505 Purchase order and related forms.

Subpart 1813.70--Governmentwide Commercial Purchase Card

1813.7000 General.

1813.7001 Cardholders.

1813.7002 Purchase card documentation.

1813.7003 Approving official.

1813.7004 Program officials.

Authority: 42 U.S.C. 2473(c)(1).

1813.000 Scope of part.

FAR Part 13 and 1813 do not apply to NASA Research Announcements

and Announcements of Opportunity. These acquisitions shall be conducted

in accordance with the procedures in 1835.016-70 and 1872,

respectively.

Subpart 1813.1--General

1813.103 Policy. (NASA supplements paragraphs (e), (f), and (j))

(e) Except for purchases authorized by 1813.103(f), the

Governmentwide commercial purchase card may be used for purchases of

$25,000 or less. Purchases above the micro-purchase threshold shall

comply with all applicable statutory and regulatory requirements,

including the following:

(i) Small business set-aside (see FAR 13.105).

(ii) Representations and certifications. The applicable items from

the provision at FAR 52.212-3, Offeror Representations and

Certifications--Commercial Items shall be obtained for commercial or

noncommercial purchases. This information may be obtained orally from

vendors.

(iii) Maximum practicable competition (see FAR 13.106-2(a)(3)).

(iv) Implementation of the applicable contract clauses. This

requirement may be satisfied by forwarding a completed SF 1449,

appropriately modified to reflect purchase card terms, to the awardee

after placing the order via the card, provided that the awardee must be

notified of, and agree to, the applicability of the SF 1449 clauses

when the order is placed.

(f) For purchases up to the simplified acquisition threshold, the

Governmentwide commercial purchase card may be used to order and pay

for purchases under FAR Part 8 procedures and under the contracts

listed in FAR 13.103(f).

(j) Fixed-price purchase orders shall be used for all awards made

under simplified acquisition procedures except as provided under the

unpriced purchase order method in FAR 13.502.

1813.106-2 Purchases exceeding the micro-purchase threshold. (NASA

supplements paragraph (d))

(d)(2) For purchases up to $50,000, documentation shall be limited

to a brief notation in the file indicating the rationale for selecting

other than the lowest priced offer.

Subpart 1813.2--Blanket Purchase Agreements

1813.202 Establishment of blanket purchase agreements (BPAs). (NASA

supplements paragraph (e))

(e)(1)(v) Non-GS-1102 or -1105 personnel shall not be authorized to

place individual orders under a BPA in an amount greater than $5,000.

[[Page 36706]]

Subpart 1813.5--Purchase Orders

1813.501 General. (NASA supplements paragraph (a))

(a) See 1813.103(j).

1813.501-70 Purchase orders under section 8(a) of the Small Business

Act.

Fixed-price purchase orders made using simplified acquisition

procedures are authorized for 8(a) acquisitions under the simplified

acquisition threshold.

1813.505 Purchase order and related forms. (NASA supplements

paragraphs (a) and (b))

(a)(2) Installations may use locally prescribed forms.

(3) Installations may use locally prescribed forms.

(b)(1)(i) The SF 44 may be used for purchases of aviation fuel and

oil of $10,000 or less.

Subpart 1813.70--Governmentwide Commercial Purchase Card

1813.7000 General.

The General Services Administration (GSA) manages the

Governmentwide commercial purchase card program. Purchases made with

the card shall comply with the instructions and procedures issued by

GSA as well as the applicable parts of the FAR and the NFS. Centers

shall establish and maintain the administrative procedures and

management controls required by GSA.

1813.7001 Cardholders.

(a) The procurement officer shall designate individual cardholders

in accordance with center procedures, subject to the following

limitations:

(1) Cardholders for purchases greater than $2,500 shall be

contracting officers appointed in accordance with FAR 1.6 and 1801.603.

(2) Personnel other than contracting officers may be designated as

cardholders for purchases of $2,500 or less provided they complete

training adequate to ensure appropriate use of the purchase card.

(b) The procurement officer's designation shall be in writing and

shall specify the scope of the cardholder's authority.

1813.7002 Purchase card documentation.

Documentation of purchases shall be minimized. For transactions

below the mirco-purchase threshold, the card holder shall maintain a

brief log of purchases and a file of monthly purchase card statements

indicating whether item receipt has occurred. For purchases above the

micro-purchase threshold, see 1813.106-2(d)(2).

1813.7003 Approving official.

The approving official is the individual who reviews and approves a

chardholder's monthly statement of purchases. The approving official

shall be the cardholder's immediate or higher level supervisor; in no

case shall cardholders approve their own purchases. Unless center

procedures otherwise provide for their designation, the procurement

officer shall designate approving officials.

1813.7004 Program officials.

(a) The Headquarters Office of Procurement (Code HC) is the agency

program coordinator.

(b) The procurement officer shall identify the center program

coordinator and the center billing office point of contract, and

provide their names to the agency program coordinator.

PART 1815--CONTRACTING BY NEGOTIATION

8-9. In section 1815-508-70 the following sentence is added to the

end to read as follows:

1815.508-70 NASA prohibitions.

* * * Any other disclosure of such information concerning trade

secrets, processes, operations, style of work, apparatus, and other

matters, except as authorized by law, may result in criminal penalties

under 18 U.S.C. 1905.

1815.611 [Amended]

10. In paragraph (d)(iii) to section 1815.611, the citation

``1815.1004-70'' is revised to read ``1815.1006-70'', and in the last

sentence, the phrase ``to use in debriefing unsuccessful offerors'' is

revised to read ``to use in postaward debriefing of unsuccessful

offerors''.

1815.804-1 [Amended]

11. In section 1815.804-1, paragraph (b)(2)(iii) is removed.

1815.805-5 [Amended]

12. In section 1815.805-5, a new paragraph (a)(1)(E) is added to

read as follows:

1815.805.-5 Field pricing support.

(a)(1)(A) * * *

* * * * *

(E) Requests for field pricing assistance may be made on NASA Form

1434, Letter of Request for Pricing-Audit-Technical Evaluation

Services.

1815.1003 [Redesignated]

13. Section 1815.1003 is redesignated as section 1815.1004.

1815.1004 [Amended]

14. In the introductory text to the newly designated section

1815.1004, the citation ``FAR 15.1003'' is revised to read ``FAR

15.1004''.

1815.1004-70 [Redesignated]

15. Section 1815.1004-70 is redesignated as section 1815.1006-70,

and the heading is revised to read ``Debriefing of offerors--Major

System acquisitions''.

1815.1006 [Added]

16. Section 1815.1006 is added to read as follows:

1815.1006 Postaward debriefing offerors.

PART 1816--TYPES OF CONTRACTS

1816.404, 1816.404-2, 1816.404-270, 1816.404-271, 1816.404-272,

1816.404-273, 1816.404-274, 1816.404-275, 1816.405, 1816.405-

70 [Redesignated]

17-18. The following sections are redesignated as follows:

------------------------------------------------------------------------

Section Redesignation

------------------------------------------------------------------------

1816.404................................................ 1816.405

1816.404-2.............................................. 1816.405-2

1816.404-270............................................ 1816.405-270

1816.404-271............................................ 1816.405-271

1816.404-272............................................ 1816.405-272

1816.404-273............................................ 1816.405-273

1816.404-274............................................ 1816.405-274

1816.404-275............................................ 1816.405-275

1816.405................................................ 1816.406

1816.405-70............................................. 1816.406-70

------------------------------------------------------------------------

19. Paragraph (b)(2)(iii) of the newly designated section 1816.405-

270 is revised to read as follows:

1816.405-270 CPAF contracts.

(a) * * *

(b) * * *

(2) * * *

(iii) Under a performance-based contract when it is determined to

be necessary to motivate the contractor toward exceptional performance

(see FAR 16.405-2(b)(ii)) and the increased level of performance

justifies the additional administrative expense. When an award fee

incentive is used in this instance, the basic contract type shall be

other than CPAF (e.g., CPIF or FPIF). The potential award fee shall not

be used to incentivize cost performance.

* * * * *

1816.405-271 [Amended]

20. In paragraph (a) to the newly redesignated section 1816.405-

271, the citation ``1816.404-273(a)'' is revised to read ``1816.405-

273(a)'', and in paragraph (b), the citations ``1816.404-273'' and

``1816.404-275'' are revised to

[[Page 36707]]

read ``1816.405-273'' and ``1816.405-275'', respectively.

1816.405-273 [Amended]

21. In paragraph (c) to the newly redesignated section 1816.405-

273, the citation ``1816.404-275'' is revised to read ``1816.405-275'',

and a new paragraph (e) is added to read as follows:

1816.405-273 Award fee evaluation.

* * * * *

(e) Interim and final evaluations may be used to provide past

performance information during the source selection process and should

be marked and controlled as ``Source Selection Information.''

1816.405-274 [Amended]

22. In paragraph (d)(2) to the newly redesignated section 1816.405-

274, the citations ``1816.404-275'' and ``1816.404-274(d)(3)'' are

revised to read ``1816.405-275'' and ``1816.405-274(d)(3)'',

respectively; in paragraph (e), the citation ``1816.404-

270(b)(2)(iii)'' is revised to read ``1816.405-270(b)(2)(iii)''; the

designated paragraphs (f) and (g) are redesignated as paragraphs (g)

and (h); and a new paragraph (f) is added to read as follows:

1816.405-274 Award fee evaluation factors.

* * * * *

(f) The contractor's performance against the subcontracting plan

incorporated in the contract shall also be evaluated. Small

disadvantaged business utilization may be an area of particular

emphasis, including the contractor's achievements in subcontracting

high technology efforts as well as the contractor's performance under

the Mentor-Protege Program, if applicable. The evaluation weight given

to subcontracting plan performance should be significant (up to 15

percent of available award fee). It should motivate the contractor to

focus management attention to subcontracting with small, small

disadvantaged, and women-owned small business concerns to the maximum

extent practicable consistent with efficient contract performance.

1816.405-275 [Amended]

23. In paragraph (d) to the newly redesignated section 1816.405-

275, the citation ``1816.404-275(b)'' is revised to read ``1816.405-

275(b)''.

1816.406-70 [Amended]

24. In paragraphs (a) and (b) to the newly redesignated section

1816.406-70, the citation ``FAR 16.405(e)'' is revised to read ``FAR

16.406(e)''.

25-28. Part 1819 is revised to read as follows:

PART 1819--SMALL BUSINESS PROGRAMS

Sec.

1819.001 Definitions.

Subpart 1819.2--Policies

1819.201 General policy.

1819.202 Specific policies.

1819.202-1 Encouraging small business participation in

acquisitions.

1819.202-170 Contract consolidations.

Subpart 1819.3--Determination of Status as a Small Business Concern

1819.302 Protesting a small business representation.

Subpart 1819.5--Set-Asides for Small Business

1819.502 Setting aside acquisitions.

1819.502-70 Non-initiation of set-asides.

1819.502-3 Partial set-asides.

1819.502-370 NASA reporting requirements.

1819.505 Rejecting Small Business Administration recommendations.

1819.506 Withdrawing or modifying set-asides.

Subpart 1819.6--Certificates of Competency

1819.602 Procedures.

1819.602-1 Referral.

1819.602-3 Resolving differences between the agency and the Small

Business Administration.

1819.602-370 NASA procedures.

Subpart 1819.7--Subcontracting with Small Business, Small Disadvantaged

Business and Women-Owned Small Business and Women-Owned Small business

Concerns

1819.705-2 Determining the need for a subcontracting plan.

1819.705-4 Reviewing the subcontracting plan.

1819.705-470 Acquisition-specific subcontracting goals.

1819.708 Solicitation provisions and contract clauses.

1819.708-70 NASA solicitation provision and contract clause.

Subpart 1819.8--Contracting With the Small Business Administration (the

8(a) Program)

1819.804 Evaluation, offering, and acceptance.

1819.804-1 Agency evaluation.

Subpart 1819.10--Small Business Competitiveness Demonstration Program

1819.1005 Applicability.

Subpart 1819.70--NASA 8 Percent Goal

1819.7000 General.

1819.7001 Definitions.

1819.7002 Contracting officer responsibility.

1819.7003 Contract clause.

Subpart 1819.71--NASA Rural Area Small Business Plan

1819.7101 Definition.

1819.7102 General.

1819.7103 Solicitation provision and contract clause.

Subpart 1819.72--NASA Mentor-Protege Program

1819.7201 Scope of subpart.

1819.7202 Definitions.

1819.7203 Non-affiliation.

1819.7204 Transportatibility of features from the Department of

Defense (DOD) Mentor-Protege program to NASA contractors.

1819.7205 General policy.

1819.7206 Incentives for prime contractor participation.

1819.7207 Measurement of Program success.

1819.7208 Mentor firms.

1819.7209 Protege firms.

1819.7210 Selection of protege firms.

1819.7211 Application process for mentor firms to participate in

the Program.

1819.7212 OSDBU review and approval process of agreement.

1819.7213 Agreement contents.

1819.7214 Developmental assistance.

1819.7215 Obligation.

1819.7216 Internal controls.

1819.7217 Reports.

1819.7218 Program review.

1819.7219 Solicitation provision and contract clauses.

Authority: 42 U.S.C. 2473(c)(1).

1819.001 Definitions.

High-Tech as used in this part means research and/or development

efforts that are within or advance the state-of-the-art in a technology

discipline and are performed primarily by professional engineers,

scientists, and highly skilled and trained technicians or specialists.

Subpart 1819.2--Policies

1819.201 General policy. (NASA supplements paragraphs (a), (c), and

(d)

(a)(i) NASA is committed to providing to small, small

disadvantaged, and women-owned small business concerns, maximum

practicable opportunities to participate in Agency acquisitions at the

prime contract level. The participation of NASA prime contractors in

providing subcontracting opportunities to such entities is also an

essential part of the Agency's commitment. The participation of these

entities is particularly emphasized in high-technology areas where they

have not traditionally dominated.

(ii) Congress established an 8 percent goal for NASA as described

in 1819.7000. The Federal Acquisition Streamlining Act of 1994 has made

NASA subject to a 5 percent goal for prime and subcontract awards to

small disadvantaged business concerns, Historically Black Colleges and

[[Page 36708]]

Universities, and minority institutions. Unlike the NASA 8 percent

goal, the 5 percent goal does not include prime and subcontract awards

to women-owned small businesses. NASA also annually negotiates small,

small disadvantaged, and women-owned small business prime and

subcontracting goals with the Small Business Administration pursuant to

section 15(g) of the Small Business Act (15 U.S.C. 644). These goals

are Agencywide goals.

Business Utilization (Code K) is the Agency official responsible for

carrying out the duties in FAR 19.201(c).

(d)(i) The center director shall designate a qualified individual

in the contracting office as a small business specialist to provide a

central point of contact to which small business concerns may direct

inquiries concerning small business matters and participation in NASA

acquisitions. The small business specialist shall also perform other

functions specifically set forth in this section 1819.201 or that the

procurement officer may prescribe, with the concurrence of the

Associate Administrator for Small and Disadvantaged Business

Utilization, for implementing the Small Business Program. When the

center director considers that the volume of acquisitions or the

functions relating to acquisitions at the center do not warrant a full-

time small business specialist, these duties may be assigned to

procurement personnel on a part-time basis.

(ii) Small business specialists appointed under paragraph (d)(i) of

this subsection shall perform the following duties, as the procurement

officer determines appropriate to the installation:

(A) Maintain a program designed to locate capable small business

sources, including those located in labor surplus areas, for current

and future acquisitions.

(B) Coordinate inquiries and requests for advice from small

business concerns on acquisition matters.

additional supplies or services, determine that small business concerns

will receive adequate consideration, including making recommendations

for initiation of set-asides (see FAR 19.5 and 19.8) and for taking

action in accordance with FAR 19.506(b) and 1819.502-70. Participate

and provide input early in the acquisition planning phase of proposed

acquisitions, including acquisition strategy meetings.

(D) If small business concerns cannot be given an opportunity to

compete because adequate specifications or drawings are not available,

work with appropriate technical and contracting personnel to ensure

that necessary specifications or drawings for current or future

acquisitions will be available.

(E) Review acquisitions for possible breakout of items suitable for

acquisition from small business concerns.

(F) Advise small business concerns regarding financial assistance

available under laws and regulations, assist such concerns in applying

for such assistance, and ensure that small business concerns' requests

for financial assistance are not treated as a handicap in securing the

award of contracts.

(G) Participate in responsibility determinations (see FAR 9.103)

when small business concerns are involved.

(H) Participate in the evaluation of prime contractors' small

business subcontracting programs (see FAR 19.705-4).

(I) Review and make appropriate recommendations to the contracting

officer on any proposal to furnish Government-owned facilities to a

contractor if such action may hurt the Small Business Program.

(J) Ensure that participation of small business concerns is

accurately reported.

(K) Make available to SBA copies of solicitations when requested.

(L) Act as liaison between contracting officers and SBA area

offices and representatives in connection with set-asides, certificates

of competency, and any other matters in which the Small Business

Program may be involved.

(M) In cooperation with contracting officers and technical

personnel, seek and develop information on the technical competence of

small business concerns for research and development contracts.

Regularly bring to the attention of contracting officers and technical

personnel descriptive data, brochures, and other information regarding

small business concerns that are apparently competent to perform

research and development work in fields in which NASA is interested.

(N) When a small business concern's offer has been rejected for

nonresponsiveness or nonresponsibility, assist that concern, upon its

request, in understanding such requirements for future awards.

(O) Advise center personnel, as necessary, on new Governmentwide

and Agency-approved small business programs and initiatives.

1819.202 Specific policies.

1819.202-1 Encouraging small business participation in acquisitions.

1819.202-170 Contract consolidations.

Prior to effecting a contract consolidation valued at $5 million or

more, including options, which will not be exclusively reserved for

small or 8(a) firms, the contracting officer, with assistance from the

small business specialist and the cognizant technical office, shall

prepare an impact assessment of the effects of the consolidation on

present and future contracting and subcontracting opportunities for

small, small disadvantaged, and women-owned small business. The impact

assessment shall address the reasons for the proposed consolidation

(especially where apparently unrelated efforts are being combined), the

expected benefits, and any actions planned to mitigate or eliminate the

impact on small business entities. The impact assessment shall be

forwarded to the Associate Administrator for Procurement (Code HS) for

concurrence by cognizant Headquarters offices and approval by the

Associate Deputy Administrator (Technical).

Subpart 1819.3--Determination of Status as a Small Business Concern

1819.302 Protesting a small business representation. (NASA supplements

paragraph (d))

(d)(1) The contracting officer shall not make awards of small

business set-aside acquisitions before the expiration of the period for

receipt of a size standard protest.

Subpart 1819.5--Set-Asides for Small Business

1819.502 Setting aside acquisitions.

1819.502-70 Non-initiation of set-asides.

(a) All cases involving the non-initiation of a set-aside, whether

resulting from a joint decision of the small business specialist and

the contracting officer or a decision by the contracting officer alone,

require referral to the SBA representative (if one is assigned and

available) for review.

(b) If the small business specialist recommends that an individual

acquisition or a class of acquisition, or a portion thereof, be set

aside, the contracting officer shall promptly either concur in or

disapprove the recommendation, stating in writing the reasons for

disapproval.

contracting officer disapproves the

[[Page 36709]]

small business specialist's recommendation, the contracting officer

shall promptly refer the case to the SBA representative for review. The

small business specialist shall take no further appeal action. The SBA

representative must either concur with the decision or appeal the case

to the procurement officer under FAR 19.505. If the procurement officer

approves the contracting officer's decision and the SBA appeals under

FAR 19.505(c), the procurement officer shall forward the required

written justification, including a history of discussions between the

center and the SBA and rationale for the decision, to the Headquarters

Office of Procurement (HS).

(d) When an SBA representative is not assigned or available and the

contracting officer disapproves the small business specialist's

recommendation, the small business specialist may appeal in writing to

the procurement officer. The procurement officer's decision shall be

final. The contracting officer shall place a memorandum of the

procurement officer's decision in the contract file. If the procurement

officer's decision approves the contracting officer's action, the small

business specialist shall forward complete documentation of the case to

the Headquarters Office of Small and Disadvantaged Business Utilization

(Code K).

(e) The contracting officer shall prepare, sign, and retain in the

contract file a memorandum of nonconcurrence in a recommended set-aside

action.

Sec. 1819.502-3 Partial set-asides.

Sec. 1819.502-370 NASA reporting requirements.

The contracting officer shall separately report, in accordance with

Subpart 1804.6, awards of the non-set-aside portions of small business

set-aside acquisitions.

1819.505 Rejecting Small Business Administration recommendations.

See 1819.502-70.

1819.506 Withdrawing or modifying set-asides. (NASA supplements

paragraph (b))

(b) If an SBA representative is not assigned or available, and the

small business specialist disagrees with the contracting officer's

written decision of withdrawal or modification of a set-aside

determination, the small business specialist may appeal to the

procurement officer in accordance with the procedures in 1819.502-

70(d).

Subpart 1819.6--Certificates of Competency

1819.602 Procedures.

1819.602-1 Referral. (NASA supplements paragraph (a))

(a) On proposed awards exceeding the simplified acquisition

threshold, the contracting officer should consider requesting a

preaward survey (see FAR 9.106) before determining that a responsive

small business firm is not responsible. The scope of the preaward

survey request should be limited to those elements of responsibility

that are questioned.

(2) The contracting officer shall forward a copy of the referral to

SBA through the procurement officer to the Headquarters Office of Small

and Disadvantaged Business Utilization (Code K).

1819.602-3 Resolving differences between the agency and the Small

Business Administration.

1819.602-370 NASA procedures.

(a) When agreement cannot be reached between the contracting

officer and the SBA Area Office, the contracting officer shall forward

to the Headquarters Office of Procurement (Code HS) on an expedited

basis, a complete case file with a request that the case be considered

for appeal to SBA Headquarters. The contracting officer shall include

the data already furnished to SBA, SBA's rationale for proposing to

issue a COC, and the contracting officer's comments. The contracting

officer shall suspend acquisition action until informed by Code HS of

the final decision in the case.

(b) If the Office of Procurement concludes that the referral to SBA

should be withdrawn and a contract awarded without benefit of a COC,

Code HS shall inform the contracting officer.

officer's recommended appeal action, the Associate Administrator for

Procurement shall forward the appeal through the Office of Small and

Disadvantaged Business Utilization (Code K) to SBA Headquarters.

Subpart 1819.7--Subcontracting With Small Business, Small

Disadvantaged Business and Women-Owned Small Business Concerns

1819.705-2 Determining the need for a subcontracting plan. (NASA

supplements paragraph (d))

(d) Solicitations for competitive negotiated acquisitions shall

require proposed subcontracting plans with initial proposals (see

1819.708(b)(1)). For sole source negotiated acquisitions, the

contractor shall be required to submit a proposed subcontracting plan

with the proposal.

1819.705-4 Reviewing the subcontracting plan.

1819.705-470 Acquisition-specific subcontracting goals.

Section 1819.201 addresses Agencywide goals at the combined prime

and subcontract levels. Appropriate subcontracting goals for an

individual acquisition, however, are to be independently determined on

the basis of the specific circumstances of the acquisition, consistent

with FAR 19.705-4 and 1819.7002(b), and not on the basis of an

Agencywide or center goal. Acquisition-specific subcontracting goals

should reflect maximum practicable opportunities for all categories of

small business concerns to participate in NASA programs, consistent

with efficient performance. The methods outlined in NASA Policy

Directive (NPD) 5000.2, Uniform Methodology for Determination of Small

Disadvantaged Subcontracting Goals, may also be useful in establishing

reasonable subcontracting goals for small and women-owned small

business concerns.

1819.708 Solicitation provisions and contract clauses. (NASA

supplements paragraph (b))

(b)(1) The contracting officer shall use the clause at FAR 52.219-9

with its Alternate II when contracting by negotiation.

1819.708-70 NASA solicitation provision and contract clause.

(a) The contracting officer shall insert the provision at 1852.219-

73, Small, Small Disadvantaged, and Women-Owned Small Business

Subcontracting Plan, in invitations for bids containing the clause at

FAR 52.219-9 with its Alternate I. Insert in the last sentence the

number of calendar days after request that the offeror must submit a

complete plan.

(b) The contracting officer shall insert the clause at 1852.219-75,

Small, Small Disadvantaged, and Women-Owned Small Business

Subcontracting Reporting, in solicitations and contracts containing the

clause at FAR 52.219-9, except for contracts covered by an approved

commercial plan.

[[Page 36710]]

Subpart 1819.8--Contracting With the Small Business Administration

(the 8(a) Program)

1819.804 Evaluation, offering, and acceptance.

1819.804-1 Agency evaluation.

The small business specialist shall review and evaluate all

acquisition requirements to determine their suitability for offering to

SBA for 8(a) acceptance and make a recommendation to the contracting

officer concerning award to SBA.

Subpart 1819.10--Small Business Competitiveness Demonstration

Program

1819.1005 Applicability. (NASA supplements paragraph (b))

(b) The targeted industry categories for NASA and their Standard

Industrial Classification (SIC) codes are:

SIC--Industry

Code--Category

3571--Electronic Computers

3577--Computer Peripheral Equipment, not elsewhere classified

3663--Radio & TV Broadcasting and Communications Equipment

3764--Guided Missile and Space Vehicle Propulsion Units and Propulsion

Unit Parts

3769--Guided Missile and Space Vehicle Parts and Auxiliary Equipment,

not elsewhere classified

3812--Search, Detection, Navigation, Guidance, Aeronautical, and

Nautical Systems and Instruments

3827--Optical Instruments and Lenses

7371--Computer Programming Services

7373--Computer Integrated Systems Design

7379--Computer Related Services, not elsewhere classified.

Subpart 1819.70--NASA 8 Percent Goal

1819.7000 General.

Public Laws 101-144, 101-507, and 102-389 require the NASA

Administrator to ensure, to the fullest extent possible, that at least

8% of Federal funding for prime and subcontracts awarded in support of

authorized programs, including the space station by the time

operational status is obtained, be made available to small

disadvantaged business concerns, Historically Black Colleges and

Universities, minority institutions, and women-owned small business

concerns.

1819.7001 Definitions.

(a) Small Disadvantaged Business (SDB) concern and Women-Owned

Small Business (WOSB) concern are defined in FAR 19.001.

(b) Historically Black College or University (HBCU) and Minority

Institution (MI) are defined in FAR 26.301.

1819.7002 Contracting officer responsibility.

(a) Contracting officers must seek out as potential sources

entities identified in 1819.7001 and give full consideration to these

entities to satisfy NASA requirements. The participation of NASA prime

contractors is also essential to meeting the Agency's 8 percent goal.

(b) NASA Policy Directive (NPD) 5000.2, Uniform Methodology for

Determination of Small Disadvantaged Subcontracting Goals, contains

guidance on developing realistic goals. It is applicable to

acquisitions expected to exceed $50 million, including options. The

methodology may be used for lesser value acquisitions.

1819.7003 Contract clause.

The contracting officer shall insert the clause at 1852.219-76,

NASA 8 Percent Goal, in all solicitations and contracts other than

those below the simplified acquisition threshold or when the contract,

together with all its subcontracts, is to be performed entirely outside

of any State, territory, or possession of the United States, the

District of Columbia, the Commonwealth of Puerto Rico, and the Trust

Territory of the Pacific Islands.

Subpart 1819.71--NASA Rural Area Small Business Plan

1819.7101 Definition.

Rural area means a county with a population of fewer than twenty

thousand individuals.

1819.7102 General.

Pursuant to Public Law 100-590, NASA established a Rural Area

Business Enterprise Development Plan, including methods for encouraging

prime and subcontractors to use small business concerns located in

rural areas as subcontractors and suppliers. One method is to encourage

the contractor to use its best efforts to comply with the intent of the

statute.

1819.7103 Solicitation provision and contract clause.

The contracting officer shall insert the clause at 1852.219-74, Use

of Rural Area Small Businesses, in solicitations and contracts that

offer subcontracting possibilities or that are expected to exceed

$500,000 ($1,000,000 for construction of public facility) unless the

contract, together with all its subcontracts, is to be performed

entirely outside of any State, territory, or possession of the United

States, the District of Columbia, the Commonwealth of Puerto Rico, and

the Trust Territory of the Pacific Islands.

Subpart 1819.72--NASA Mentor-Protege Program

1819.7201 Scope of subpart.

The NASA Mentor-Protege Program is designed to incentivize NASA

prime contractors to assist small disadvantaged business concerns,

Historically Black colleges and Universities, minority institutions,

and women-owned small business concerns, in enhancing their

capabilities to perform NASA contracts and subcontracts, foster the

establishment of long-term business relationships between these

entities and NASA prime contractors, and increase the overall number of

these entities that receive NASA contract and subcontract awards.

1819.7202 Definitions.

High-Tech is defined in 1819.001.

1819.7203. Non-affiliation.

For purposes of the Small Business Act, a protege firm may not be

considered an affiliate of a mentor firm solely on the basis that the

protege firm is receiving developmental assistance referred to in

1819.7214 from such mentor firm under the Program. In addition, NASA

shall not consider partial ownership, up to 10 percent, of a Department

of Defense (DOD)-sanctioned protege firm by its DOD mentor to

constitute affiliation.

1819.7204 Transportability of features from the Department of Defense

(DOD) Mentor-Protege program to NASA contractors.

(a) In accordance with the benefits authorized by the DOD Mentor-

Protege Program (Public Law 101-510, Section 831, as amended by Public

Law 102-190, Section 814), a NASA contractor who is also an approved

DOD mentor can transfer credit features to their NASA contracts.

(b) NASA prime contractors, who are approved DOD mentors, can award

subcontracts noncompetitively under their NASA contracts to the

proteges which they are assisting under the DOD Program (Public Law

101-510, Section 831(f)(2)).

assistance provided of proteges being assisted under the DOD Program

toward meeting the goals in their subcontracting plans under their NASA

prime contracts (Public Law 102-190,

[[Page 36711]]

Section 814). Limitations which may reduce the value of this benefit

include:

(1) Credit toward attaining subcontracting goals is available only

to the extent that the developmental assistance costs have not been

reimbursed to the contractor by DOD as direct or indirect costs; or

(2) The credit is available to meet the goals of a NASA

subcontracting plan only to the extent that it has not been applied to

a DOD subcontracting plan. The same unreimbursed developmental

assistance costs cannot be counted toward meeting the subcontracting

goals of more than one prime contract. These costs would accrue from

credit for the multiples attributed to assistance provided by Small

Business Development Centers, Historically Black Colleges and

Universities and minority institutions.

(d) The features identified in paragraphs (a), (b) and (c) of this

section point out the portability of features from the DOD Mentor-

Protege Program to NASA prime contractors. NASA mentors will be held to

show ``good faith'' by providing actual developmental assistance beyond

transferring credit from activity in the DOD Program to NASA

subcontracting plans.

1819.7205 General policy.

(a) Eligible large business prime contractors, not included on the

``List of Parties Excluded from Federal Procurement and Nonprocurement

Programs'', who have at least one active subcontracting plan, and who

are approved as mentor firms may enter into agreements with eligible

entities (as defined in 1819.7209) as proteges to provide appropriate

developmental assistance to enhance the capabilities of proteges to

perform as subcontractors and suppliers. Eligible small business prime

contractors, not included on the ``List of Parties Excluded from

Federal Procurement and Nonprocurement Programs'', and that are capable

of providing developmental assistance to proteges, may also be approved

as mentors. An active mentor-protege arrangement requires the protege

to be a subcontractor under the mentor's prime contract with NASA.

(b) The pilot Program has a duration of three years commencing from

March 24, 1995. During this period, eligible mentor firms, which have

received approval by NASA to participate in the Program pursuant to

1819.7212, may enter into agreements with protege firms.

will be limited to cost-plus-award-fee contracts.

(d) Costs incurred by a mentor to provide developmental assistance,

technical or managerial assistance described in 1819.7214, are

allowable

1819.7206 Incentives for prime contractor participation.

(a) During source selection Mentor-Protege will be evaluated as

part of SDB utilization under the Mission Suitability factor. Under

Mission Suitability, SDB utilization will be either a subfactor or an

element under a subfactor.

(b) Under cost-plus-award fee contracts, approved mentor firms

shall be eligible to earn award fee associated with their performance

as a mentor by performance evaluation period. For purposes of earning

award fee, the mentor firm's performance shall be evaluated against the

criteria described in the clause at 1852.219-79, Mentor Requirements

and Evaluation.

1819.7207 Measurement of Program success.

The overall success of the NASA Mentor-Protege Program encompassing

all participating mentors and proteges will be measured by the extent

to which it results in:

(a) An increase in the number, dollar value and percentage of

subcontractors awarded to proteges by mentor firms under NASA contracts

since the date of entry into the Program;

(b) An increase in the number and dollar value of contract and

subcontract awards to protege firms since the time of their entry into

the Program (under NASA contracts, contracts awarded by other Federal

agencies and under commercial contracts);

awarded to a protege firm by its mentor firm; and

(d) An increase in subcontracting with protege firms in industry

categories where they have not traditionally participating within the

mentor firm's activity.

1819.7208 Mentor firms.

(a) Eligibility:

(1) Contractors eligible for receipt of government contracts;

(2) Large prime contractors performing under contracts with at

least one negotiated subcontracting plan as required by FAR 19.7; and

(3) Small business prime contractors that can provide developmental

assistance to enhance the capabilities of proteges to perform as

subcontractors and suppliers.

(b) Mentors will be encouraged to identify and select as proteges:

(1) A broad base of firms including those defined as emerging firms

(e.g., a protege whose size is no greater than 50 percent of the size

standard applicable to the SIC code assigned to a contracting

opportunity);

(2) Firms in addition to those with whom they have established

business relationships; and

(3) High-tech firms.

1819.7209 Protege firms.

(a) For selection as a protege, a firm must be:

(1) An SDB, HBCU, MI, or WOSB;

(2) Certified as small in the SIC code for the services or

suppliers to be provided by the protege under its subcontract to the

mentor; and

(3) Eligible for receipt of government contracts.

(b) A protege firm may self-certify to a mentor firm that it meets

the requirements set forth in paragraph (a) of this section. Mentors

may rely in good faith on written representation by potential proteges

that they meet the specified eligibility requirements.

mentor-protege programs in addition to the NASA Program should maintain

a system for preparing separate reports of mentoring activity for each

agency's program.

1819.7210 Selection of protege firms.

(a) Mentor firms will be solely responsible for selecting protege

firms. The mentor is encouraged to identify and select the types of

protege firms listed in 1819.7208(b).

(b) Mentor firms may have more than one protege.

protested, except as in paragraph (d) of this section.

(d) A protest regarding the size of eligibility status of an entity

selected by a mentor to be a protege shall be handled in accordance

with FAR 19.703(b). The contracting officer shall notify the

Headquarters Office of Small and Disadvantaged Business Utilization

(OSDBU) (Code K) of the protest.

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.

[[Page 36712]]

(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 the 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 value of subcontracts awarded

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

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 establishment of a suitable

developmental assistance program to meet their respective needs, and

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

other provisions governing the Program.

1819.7212 OSDBU review and approval process of agreement.

(a) The information specified in 1819.7211(b) is reviewed by the

NASA OSDBU. This review will be completed no later than 30 days after

receipt by the OSDBU. The OSDBU will provide a copy of the submitted

information to the cognizant NASA technical program manager and

contracting officer for a parallel review and concurrence.

(b) If OSDBU approves the application, then the mentor

(1) Negotiates an agreement with the protege; and

(2) Submits an original and two (2) copies of the agreement to the

OSDBU for approval by the NASA Mentor-protege program manager, the NASA

technical program manager, and the contracting officer.

developmental assistance program.

(d) An approved agreement will be incorporated into the mentor's

contract with NASA. It should be added to the subcontracting plan in

contracts which contain such a plan.

(e) If OSDBU disapproves the application, then the mentor may

provide additional information for reconsideration. The review of any

supplemental material will be completed within 30 days after receipt by

the OSDBU. Upon finding deficiencies that NASA considers correctable,

the OSDBU will notify the mentor and request information to be provided

within 30 days that may correct the deficiencies.

1819.7213 Agreement contents.

The contents of the agreement must contain:

(a) Names and addresses of mentor and protege firms and a point of

contact within both firms who will oversee the agreement;

(b) Procedures for the mentor firm to notify the protege firm,

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;

writing at least 30 days in advance of the protege firm's intent to

voluntarily terminate the mentor-protege agreement. The mentor shall

notify the OSDBU and the contracting officer immediately upon receipt

of such notice from the protege;

(d) A description of the type of developmental program that will be

provided by the mentor firm to the protege firm, to include a

description of the subcontract work, and a schedule for providing

assistance and criteria for evaluation of the protege developmental

success;

(e) A listing of the number and types of subcontracts to be awarded

to the protege firm;

(f) Program participation term;

(g) Termination procedures;

(h) Plan for accomplishing work should the agreement be terminated;

and

(i) Other terms and conditions, as appropriate.

1819.7214 Developmental assistance.

The forms of developmental assistance a mentor can provide to a

protege include:

(a) Management guidance relating to--

(1) Financial management,

(2) Organizational management,

(3) Overall business management/planning, and

(4) Business development;

(b) Engineering and other technical assistance;

(d) Progress payments based on costs. The customary progress

payment rate for all NASA contracts with small disadvantaged businesses

is 95 percent. This customary progress payment rate for small

disadvantaged businesses may be used by prime contractors;

(e) Advance payments. While a mentor can make advance payments to

its proteges who are performing as subcontractors, the mentor will only

be reimbursed by NASA for these costs if advance payments have been

authorized in accordance with statute and regulation;

(f) Loans;

(g) Rent-free use of facilities and/or equipment;

(h) Property; and

(i) Temporary assignment of personnel to the protege for purpose of

training.

1819.7215 Obligation.

(a) The mentor or protege may voluntarily withdraw from the Program

as mutually agreed by both mentor and protege.

(b) Mentor and protege firms will submit a ``lessons learned''

evaluation to the NASA OSDBU at the conclusion of the pilot program

period or the conclusion of their effort, whichever comes first.

1819.7216 Internal controls.

(a) The NASA OSDBU will manage the Program. Internal controls will

be established by the OSDBU to achieve the stated program objectives

(by serving as checks and balances against undesired actions or

consequences) such as:

(1) Reviewing and evaluating mentor applications for realism,

validity and accuracy of provided information;

(2) Reviewing semi-annual progress reports submitted by mentors and

proteges, if any, on protege development to measure protege progress

against the master plan contained in the approved agreement.

(3) Site visits to NASA installation where mentor-protege activity

is on-going.

[[Page 36713]]

(b) NASA may terminate mentor-protege agreements if NASA determines

that such actions are in NASA's interest. These actions shall be

approved by the NASA OSDBU. NASA will terminate an agreement or exclude

a particular entity by sending a written notice to the affected party

specifying the action being taken and the effective date of that

action. Termination of an agreement does not constitute a termination

of the subcontract between the mentor and the protege. A plan for

accomplishing the subcontract effort should the agreement be terminated

shall be submitted with the agreement, as required in 1819.7213(h).

1819.7217 Reports.

(a) Semi-annual reports shall be submitted by the mentor to the

NASA Mentor-Protege program manager, the NASA OSDBU, to include

information as outlined in 1852.219-79(b).

(b) Proteges are encouraged to submit semi-annual reports to the

OSDBU on Program progress pertaining to their mentor-protege agreement.

However, costs associated with the preparation of these reports are

unallowable costs under Government contracts and will not be reimbursed

by the Government.

of the prime contractor's (mentor's) performance in the Mentor-Protege

Program in his quarterly `Strengths and Weaknesses' evaluation report.

A copy of these comments, as pertains to the technical effort and

protege development, will be provided to the OSDBU and the contracting

officer.

(d) The NASA Mentor-Protege program manager will submit semi-annual

reports to the cognizant contracting officer regarding the

participating prime contractor's performance in the Program for use in

the award fee determination process.

1819.7218 Program review.

At the conclusion of each year in the Mentor-Protege Program, the

prime contractor and protege, as appropriate, will formally brief the

NASA OSDBU, the technical program manager, and the contracting officer

regarding Program accomplishments pertaining to the approved agreement.

This review will be incorporated into the normal program review, where

applicable. A separate review will be scheduled for other contracts to

be held at the NASA work site location.

1819.7219 Solicitation provision and contract clauses.

(a) The contracting officer shall insert the clause at 1852.219-77,

NASA Mentor-Protege Program, in all cost-plus-award-fee solicitations

and contracts with subcontracting plans or in the case of small

business set-asides exceeding $500,000 ($1,000,000 for construction)

that offer subcontracting opportunities.

(b) The contracting officer shall insert the clause at 1852.219-79,

Mentor Requirements and Evaluation, in contracts where the prime

contractor is a participant in the NASA Mentor-Protege Program.

PART 1822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

1822.604-2 [Amended]

29. In section 1822.604-2, paragraph (c) is redesignated as

paragraph (b).

1822.608, 1822.608-4 [Removed]

30. Sections 1822.608 and 1822.608-4 are removed.

PART 1824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

1824.202 [Redesignated]

31. Section 1824.202 is redesignated as 1824.203.

32. Part 1825 is revised to read as follows:

PART 1825--FOREIGN ACQUISITION

Sec.

1825.000 Scope of part.

1825.000-70 Definition.

Subpart 1825.1--Buy American Act--Supplies

1825.101 Definitions.

1825.101-70 NASA definition.

1825.102 Policy.

1825.103 Agreements with certain foreign governments.

1825.103-70 Canadian end products.

1825.105 Evaluating offers.

1825.108 Excepted articles, materials, and supplies.

Subpart 1825.2--Buy American Act--Construction Materials

1825.202 Policy.

1825.207 Solicitation provisions and contract clauses.

1825.207-70 NASA contract clause.

Subpart 1825.3--Balance of Payments Program

1825.304 Excess and near-excess foreign currencies.

Subpart 1825.4--Trade Agreements

1825.400 Scope of subpart.

1825.402 Policy.

1825.403 Exceptions.

1825.405 Procedures.

Subpart 1825.6--Customs and Duties

1825.602 Policy.

1825.603 Procedures.

1825.603-70 NASA procedures.

1825.605 Contract clause.

1825.605-70 NASA contract clause.

Subpart 1825.9--Additional Foreign Acquisition Clauses

1825.901 Omission of Audit clause.

Subpart 1825.70--Foreign Contracts

1825.7000 Scope of subpart.

1825.7001 Definition.

1825.7002 Policy.

1825.7003 Procedure.

Authority: 42 U.S.C. 2473(c)(1).

1825.000 Scope of part.

1825.000-70 Definition.

Agency head, for the purposes of this part, is the Associate

Administrator for Procurement unless specifically stated otherwise.

Subpart 1825.1--Buy American Act--Supplies

1825.101 Definitions.

1825.101-70 NASA definition.

Canadian end product, or an item with an estimated value of $25,000

or less, means an unmanufactured end product mined or produced in

Canada or an end product manufactured in Canada, if the cost of its

components mined, produced, or manufactured in Canada or the United

States exceeds 50 percent of the cost of all its components. The cost

of components includes transportation costs to the place of

incorporation into the end product. For an end product with an

estimated value in excess of $25,000, the definition at FAR 25.401

applies.

1825.102 Policy. (NASA supplements paragraphs (a) and (b))

(a)(3)(A) The procurement officer shall send proposed public

interest determinations to the Associate Administrator for Procurement

(Code HS) for approval.

(B) See 1825.103-70(A) for a blanket determination regarding

Canadian end products.

(a)(4) The items listed in FAR 25.108(d)(1) are not mined,

produced, or manufactured in the United States in sufficient and

reasonably available commercial quantities or a satisfactory quality.

(b)(1) Contracting officers may make determinations of

nonavailability both before entering into contracts and in the course

of contract administration; provided, however, that in the latter case

the Government receives adequate consideration. The following is the

format for nonavailability determinations:

[[Page 36714]]

Determination of Nonavailability

Pursuant to the authority contained in the Buy American Act (41

U.S.C. 10) and authority delegated to me by NFS 1825.102(b)(1), I

hereby make the following findings:

a. (Insert a description of the item or items to be acquired,

including unit, quantity, and estimated cost inclusive of duty and

transportation costs to destination.)

b. (Enter the name and address of the proposed contractor or

supplier and the country of origin of the items.)

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

acquisition.)

d. (Include a statement of facts establishing the

nonavailability of similar items of domestic origin. If there is no

known domestic item that can be used as a reasonable substitute,

make a statement to this effect.)

On the basis of these findings, I determine that the item(s)

described in paragraph a. above is/are not mined, produced, or

manufactured (or the articles, materials, or supplies from which the

item(s) is/are manufactured are not mined, produced, or

manufactured) in the United States in sufficient and reasonably

available quantities of a satisfactory quality.

Accordingly, the Buy American Act requirement that acquisition

be made from domestic sources and that the item(s) be of domestic

origin is not applicable to this acquisition, since the acquisition

is within the Buy American Act's nonavailability exception.

Authority is granted to acquire the above-described item(s) of

foreign origin (country or origin) at an estimated total cost of

$________, including duty and transportation costs to destination.

(Date)-----------------------------------------------------------------

Contracting Officer----------------------------------------------------

1825.103 Agreements with certain foreign governments.

1825.103-70 Canadian end products.

(a) The Associate Administrator for Procurement has determined that

it is inconsistent with the public interest to apply restrictions of

the Buy American Act to Canadian end products with estimated values of

$25,000 or less as defined in 1825.101-70. Accordingly, contracting

officers shall evaluate all offers for such Canadian end products on a

parity with offers for domestic and products, except that applicable

duty (whether or not a duty free entry certificate may be issued) shall

be included in evaluating offers for Canadian end products.

(b) See FAR 25.402(a)(3)(ii) for evaluation of Canadian end

products with values in excess of 25,000 as defined in FAR 25.401.

1825.105 Evaluating offers. (NASA supplements paragraphs (a) and (c))

(a) To make the price comparison between domestic and foreign

offers, the contracting officer shall increase the price of the foreign

offer by 6- or 12-percent, as applicable. If the application of the

differential results in a tie between the foreign and domestic offers,

award shall be made to the domestic offeror.

pertains only when the lowest acceptable domestic offer is from a small

business concern.

1825.108 Excepted articles, materials, and supplies. (NASA supplements

paragraph (a))

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

Subpart 1825.2--Buy American Act--Construction Materials

1825.202 Policy. (NASA supplements paragraph (a))

(a)(2) The construction materials listed in FAR 25.108(d)(1) are

not mined, produced, or manufactured in the United States in sufficient

and reasonably available commercial quantities of a satisfactory

quality. In addition, subject to the approval of the head of the

contracting activity when required, contracting officers may make

determinations of nonavailability both before entering into contracts

and in the course of contract administration; provided, however, that

in the latter case the Government receives adequate consideration. See

1825.102(b)(1) for the determination of nonavailability format.

1825.207 Solicitation provisions and contract clauses.

1825.207-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-71,

Nondomestic Construction Materials, in all contracts for construction.

Subpart 1825.3--Balance of Payments Program

1825.304 Excess and near-excess foreign currencies. (NASA supplements

paragraph (c))

official for making the determination of the feasibility of using

excess or near-excess currency.

Subpart 1825.4--Trade Agreements

1825.400 Scope of subpart. (NASA supplements paragraph (b))

(b) The Buy American Act and the Balance of Payments Program apply

to all acquisitions of Japanese end products or services in excess of

$2,500.

1825.402 Policy. (NASA supplements paragraph (c))

(c)(3) Waiver under the Trade Agreements Act is not applicable to

acquisitions of Japanese end products or services in excess of $2,500.

1825.403 Exceptions. (NASA supplements paragraph (c))

(c)(2) If a contracting officer considers an individual acquisition

to be a purchase ``indispensable for national security or for national

defense purposes'' and appropriate for exclusion from the provisions of

FAR 25.4 and of this Subpart 1825.4, the contracting officer shall

submit a request with supporting rationale to the Headquarters Office

of External Relations (Code I) for coordination with the Office of the

U.S. Trade Representative.

1825.405 Procedures.

Solicitations shall require that applicable duty charges be

included in the offered price of an eligible product, whether or not

duty-free certificates are obtained. Duty charges shall be included in

the price evaluation.

Subpart 1825.6--Customs and Duties

1825.602 Policy.

NASA has statutory authority to exempt certain articles from import

duties, including articles that will be launched into space, spare

parts for such articles, ground support equipment, and unique equipment

used in connection with an international program or launch service

agreement. This authority is fully described in 14 CFR 1217.

1825.603 Procedures.

1825.603-70 NASA procedures.

(a) The following officials are authorized to certify that articles

are eligible for duty free entry:

(1) Procurement officers, through delegation from the Associate

Administrator for Procurement, for articles imported into the United

States that are acquired by NASA or other U.S. Government agencies, or

by U.S. Government contractors or subcontractors when title to the

articles is, or will be, vested in the U.S. Government in accordance

with the terms of the contract or subcontract. All duty-free

certificates (see paragraph (b) of this section for format) shall be

coordinated with the center Chief Counsel. Procurement officers shall

maintain a record of each certification and make this record available

for periodic review by NASA Headquarters and the U.S. Customs Service.

[[Page 36715]]

(2) The Associate Administrator for External Relations (Code I) for

articles imported pursuant to international agreements.

(3) The Associate Administrator for Space Flight (Code M) for

articles imported under agreements other than those identified in

paragraph (a) (1) and (2) of this section, including launch service

agreements.

(b) Procurement officers shall complete Customs Service Form CF

7501 (Entry Summary) and an appropriate certification when approving

duty free exemption for articles acquired by NASA.

(1) For a single import, use the following certification format

specified in 14 CFR 1217.104(a):

Articles for the National Aeronautics and Space Administration

Item 9808.00.80, Harmonized Tariff Schedule of the United States

Program: (Insert name of NASA Program) ______________________

I hereby certify that the articles identified in [attached

invoice] are being imported for the use of the National Aeronautics

and Space Administration (NASA) in accordance with 9808.00.80,

Harmonized Tariff Schedule of the United States.

Name-------------------------------------------------------------------

Date-------------------------------------------------------------------

(2) For a series of imports under a specific acquisition, use the

certification format in paragraph (b)(1) of this section and add the

following paragraph specified in 14 CFR 1217.104(c) before the

signature block:

Before this certification is used to obtain duty-free entry of

these articles, a cognizant NASA official at the receiving NASA

Installation, who is designated by the Installation Director, shall

verify in writing that specifically identified articles to be

entered on a particular date are the articles described in this

certification or its attachments. This verification and this

certification shall be presented to the U.S. Customs-Service at the

time of entry for the particular articles is sought.

1825.605 Contract clause.

1825.605-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-73,

Duty-Free Entry Supplies, in solicitations and contracts when the

supplies that will be accorded duty-free entry are identifiable before

award. Insert the supplies determined in accordance with FAR 25.604 and

1825.603.

Subpart 1825.9--Additional Foreign Acquisition Clauses

1825.901 Omission of Audit clause. (NASA supplements paragraph (c))

contracting officer shall submit the waiver request, consisting of the

determination and findings prescribed in FAR 25.901(d) and any relevant

supporting information, to the Headquarters Office of Procurement (Code

HS).

Subpart 1825.70--Foreign Contracts

1825.7000 Scope of subpart.

This subpart prescribes policy and procedures for negotiating

foreign contracts.

1825.7001 Definition.

Foreign contract acquisition, as used in this subpart, means the

acquisition by negotiation of supplies or services, including

construction work and research and development when the work is to be

performed outside the United States, its possessions, and Puerto Rico

by a foreign government or instrumentality thereof or by a foreign

private contractor. The term does not include--

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

(b) Negotiation of contracts with domestic concerns involving work

to be performed outside the United States, its possessions, and Puerto

Rico;

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

supply.

1825.7002 Policy.

(a) Each contracting office (including NMO JPL) shall coordinate

with the Headquarters Office of External Relations (Code I), before

initiating any foreign contract acquisition if the acquisition is

valued above $100,000 or involves--

(1) Importing or exporting goods or technical data from or to a

country listed in 22 FR 126.1 (a) or (d) (Subchapter M, the

International Traffic in Arms Regulations);

(2) Importing or exporting Defense Articles or Defense Services on

the United States Munitions List at 22 CFR Part 121 which require NASA

to obtain a license from the State Department's Office of Defense Trade

Controls;

(3) Exporting goods or technical data on the Commerce Control List

at 15 CFR Part 744 and that require NASA to obtain either a Special or

an Individual Validated License;

(4) Importing and/or exporting goods or technical data from or to

an entity listed in 15 CFR Part 744, Supplements 1 through 3; or

(5) Exporting and/or importing of goods, technology, or services to

or from any entity subject to transaction control, embargo, or

sanctions pursuant to 31 CFR Chapter V.

(b) All coordination required between NASA and the Departments of

Commerce, State, and Treasury regarding foreign contract acquisitions

shall be accomplished through Headquarters Code I.

1825.7003 Procedure.

The Headquarters or field installation technical office requiring a

foreign contract acquisition meeting any of the criteria listed in

1825.7002 shall submit the following information to Headquarters Code

I--

(a) The name of the foreign entity, the country or countries

involved, and the purpose of the contract;

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

if any,

written approval or the issuance of the license for their import or

export from the Departments of Commerce, State, or Treasury; and

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

entity.

33. Part 1827 is revised as set forth below:

PART 1927--PATENTS, DATA, AND COPYRIGHTS

Sec.

1827.000 Scope of part.

Subpart 1827.3--Patent Rights Under Government Contracts

1827.301 Definitions.

1827.302 Policy.

1827.303 Contract clauses.

1827.303-70 NASA solicitation provisions and contract clauses.

1827.304 Procedures.

1827.304-1 General.

1827.304-2 Contracts placed by or for other Government agencies.

1827.304-3 Contracts for construction work or architect-engineer

services.

1827.304-4 Subcontracts.

1827.304-5 Appeals.

1827.305 Administration of the patent rights clauses.

1827.305-3 Follow-up by Government.

1827.305-370 NASA patent rights and new technology follow-up

procedures.

1827.305-371 New technology reporting plan.

1827.305-4 Conveyance of invention rights acquired by the

Government.

Subpart 1827.4--Rights in Data and Copyrights

1827.404 Basic rights in data clause.

1827.405 Other data rights provisions.

1827.406 Acquisition of data.

1827.406-70 Report of work.

1827.408 Cosponsored research and development activities.

[[Page 36716]]

1827.409 Solicitation provisions and contract clauses.

1827.409-70 NASA contract clause.

Subpart 1827.6--Foreign License and Technical Assistance Agreements

1827.670 Space Station technical data and goods.

1827.670-1 Policy.

1827.670-2 Contract clause.

Authority: 42 U.S.C. 2473(c)(1).

1827.000 Scope of part.

This part prescribes NASA policies, procedures, and clauses

pertaining to patents, data, and copyrights. The provisions of FAR Part

27 apply to NASA acquisitions unless specifically excepted in this

part.

Subpart 1827.3--Patent Rights Under Government Contracts

1827.301 Definitions.

Administrator, as used in this subpart, means the Administrator of

NASA or a duly authorized representative.

Contract, as used in this subpart, means any actual or proposed

contract, agreement, understanding, or other arrangement, and includes

any assignment, substitution of parties, or subcontract executed or

entered into thereunder.

Made, in lieu of the definition in FAR 27.301, as used in this

subpart, means conceived or first actually reduced to practice;

provided that in the case of a variety of plant, the date of

determination (as defined in Section 41(d) of the Plant Variety

Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of

contract performance.

Reportable item, as used in this subpart, means any invention,

discovery, improvement, or innovation of the contractor, whether or not

patentable or otherwise protectible under Title 35 of the United States

Code, made in the performance of any work that is reimbursable under

any clause in any NASA contract providing for reimbursement of costs

incurred before the effective date of the contract.

Subject invention, in lieu of the definition in FAR 27.301, as used

in this subpart, means any reportable item that is or may be patentable

or otherwise protectible under Title 35 of the United States Code, or

any novel variety of plant that is or may be protectible under the

Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

1825.302 Policy. (NASA supplements paragraphs (a), (b), (c), (d), (e),

(f), (g), and (i)).

(a) Introduction.

(i) NASA policy with respect to any invention, discovery,

improvement, or innovation made in the performance of work under any

NASA contract or subcontract with other than a small business firm or a

nonprofit organization and the allocation to related property rights is

based upon Section 305 of the National Aeronautics and Space Act of

1958, as amended (42 U.S.C. 2457) (the Act); and, to the extent

consistent with this statute, the Presidential Memorandum or Government

Patent Policy to the Heads of Executive Departments and Agencies, dated

February 18, 1983, and Section 1(d)(4) of Executive Order 12591. NASA

policy with respect to any invention made in the performance of

experimental, developmental, or research work with a small business

firm or a nonprofit organization is based on 35 U.S.C. Chapter 18, as

amended.

(ii) NASA contracts subject to Section 305 of the Act shall ensure

the prompt reporting of reportable items in other to protect the

Government's interest and to provide widest practicable and appropriate

dissemination, early utilization, expeditious development, and

continued availability for the benefit of the scientific, industrial,

and commercial communities and the general public.

(b) Contractor right to elect title.

(i) For NASA contracts, the contractor right to elect title only

applies to contracts with small businesses and non-profit

organizations. For other business entities, see subdivision (ii) of

this paragraph.

(ii) Contractor right to request a waiver of title. For NASA

contracts with other than a small business firm or a nonprofit

organization (contracts subject to Section 305 of the Act), it is the

policy of NASA to waive the rights (to acquire title) of the United

States (with the reservation of a Government license set forth in FAR

27.302(c) and the march-in rights of FAR 27.302(f) and 1827.302(f)) in

and to any subject invention if the Administrator determines that the

interests of the United States will be served. This policy, as well as

the procedures and instructions for such waiver of rights, is stated in

the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

Waiver may be requested in advance of contract award for any or all of

the subject inventions, or for individually identified subject

inventions reported under the contract. When waiver of rights is

granted, the contractor's right to title, the rights reserved by the

Government, and other conditions and obligations of the waiver shall be

included in an Instrument of Waiver executed by NASA and the party

receiving the waiver.

(iii) It is also a policy of NASA to consider for a monetary award,

when referred to the NASA Inventions and Contributions Board, any

subject invention reported to NASA in accordance with this subpart, and

for which an application for patent has been filed.

performance of work under a NASA contract with other than a small

business firm or nonprofit organization and for which waiver of rights

has been granted in accordance with 14 CFR Section 1245, Subpart 1, the

Administrator shall reserve an irrevocable, nonexclusive,

nontransferable, royalty-free license for the practice of such

invention throughout the world by or on behalf of the United States or

any foreign Government in accordance with any treaty or agreement of

the United States.

(d) Government right to receive title. Under any NASA contract with

other than a small business or nonprofit organization (i.e., those

contracts subject to Section 305(a) of the Act), title to subject

inventions vests in NASA when the determinations of Section 305(a)(1)

or 305(a)(2) have been made. The Administrator may grant a waiver of

title in accordance with 14 CFR Section 1245.

(e) Utilization reports. For any NASA contract with other than a

small business firm or a nonprofit organization, the requirements for

utilization reports shall be as set forth in the NASA Patent Waiver

Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of

Waiver executed under those Regulations.

(f) March-in rights. For any NASA contract with other than a small

business firm or a nonprofit organization, the march-in rights shall be

as set forth in the NASA Patent Waiver Regulations, 14 CFR Section

1245, Subpart 1, and any Instrument of Waiver executed under those

Regulations.

(g) Preference for United States industry. Waiver of the

requirement for the agreement for any NASA contract with other than a

small business firm or a nonprofit organization shall be in accordance

with the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart

(i) Minimum rights to contractor.

(1) For NASA contracts with other than a small business firm or a

nonprofit organization (i.e., those contracts subject to Section 305(a)

of the Act), where title to any subject inventions vests in NASA, the

contractor is normally granted, in accordance with 14 CFR

[[Page 36717]]

1245, a revocable, nonexclusive, royalty-free license in each patent

application filed in any country and in any resulting patent. The

license extends to any of the contractor's domestic subsidiaries and

affiliates within the corporate structure, and includes the right to

grant sublicenses of the same scope to the extent the contractor was

legally obligated to do so at the time the contract was awarded. The

license and right are transferable only with the approval of the

Administrator, except when transferred to the successor of that part of

the contractor's business to which the invention pertains.

(2) The Administrator is the approval authority for revoking or

modifying a license. The procedures for revocation or modification are

described in 37 CFR 404.10 and 14 CFR 1245.108.

1827.303 Contract clauses. (NASA supplements paragraphs (a), (b), (c)

and (d))

(a)1)(A) See 1827.303-70(a).

(B) To qualify for the clause at FAR 52.227-11, a prospective

contractor may be required to represent itself as either a small

business firm or a nonprofit organization. If there is reason to

question the status of the prospective contractor, the contracting

officer may file a protest in accordance with FAR 19.302 if small

business firm status is questioned, or require the prospective

contractor to furnish evidence of its status as nonprofit organization.

(b)(1)(ii) FAR 52.227-12 is not used in NASA contracts. See instead

1827.303-70(b).

(c)(1)(ii) When work is to be performed outside the United States,

its possessions, and Puerto Rico by contractors that are not domestic

firms, see 1827.303-70(f).

(2) See 1827.303-70 (b) and (f).

(d)(1) When one of the conditions in FAR 27.303(d)(1) (i) through

(iv) is met, the contracting officer shall consult with the

installation intellectual property counsel to determine the appropriate

clause.

1827.303-70 NASA solicitation provisions and contract clauses.

(a) When the clause at FAR 52.227-11 is included in a solicitation

or contract, it shall be modified as set forth at 1852.227-11.

(b) The contracting officer shall insert the clause at 1852.227-70,

New Technology, in all NASA solicitations and contracts with other than

a small business firm or a nonprofit organization (i.e., those subject

to section 305(a) of the Act), if the contract is to be performed in

the United States, its possessions, or Puerto Rico and has as a purpose

the performance of experimental, developmental, research, design, or

engineering work. Contracts for any of the following purposes may be

considered to involve the performance of work of the type described

above (these examples are illustrative and not limiting):

(1) Conduct of basic or applied research.

(2) Development, design, or manufacture for the first time of any

machine, article of manufacture, or composition of matter to satisfy

NASA's specifications or special requirements.

(3) Development of any process or technique for attaining a NASA

objective not readily attainable through the practice of a previously

developed process or technique.

(4) Testing of, evaluation of, or experimentation with a machine,

process, concept, or technique to determine whether it is suitable or

could be made suitable for a NASA objective.

(5) Construction work or architect-engineer services having as a

purpose the performance of experimental, developmental, or research

work or test and evaluation studies involving such work.

(6) The operation of facilities or the coordination and direction

of the work of others, if these activities involve performing work of

any of the types described in subparagraphs (a) through (e) of this

paragraph.

71, Requests for Waiver of Rights to Inventions, in all solicitations

that include the clause at 1852.227-70, New Technology (see paragraph

(b) of this section).

(d) The contracting officer shall insert the clause at 1852.227-72,

Designation of New Technology Representative and Patent Representative,

in all solicitations and contracts containing either of the clauses at

FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form)

or 1852.227-70, New Technology (see paragraph (c) of this section). It

may also be inserted, upon consultation with the installation

intellectual property counsel, in solicitations and contracts using

another patent rights clause. The New Technology Representative shall

be the Technology Utilization Officer or the Staff member (by titled

position) having cognizance of technology utilization matters for the

installation concerned. The Patent Representative shall be the

intellectual property counsel (by titled position) having cognizance of

patent matters for the installation concerned.

(e) The contracting officer shall insert the provision at 1852.227-

84, Patent Rights Clauses, in solicitations for experimental,

developmental, or research work to be performed in the United States,

its possessions, or Puerto Rico when the eventual awardee may be a

small business or a nonprofit organization.

(f) As authorized in FAR 27.303(c)(2), when work is to be performed

outside the United States, its possessions, and Puerto Rico by

contractors that are not domestic firms, the clause at 1852.227-85,

Invention Reporting and Rights--Foreign, shall be used unless the

contracting officer determines, with concurrence of the installation

intellectual property counsel, that the objectives of the contract

would be better served by use of the clause at FAR 52.227-13, Patent

Rights--Acquisition by the Government. For this purpose, the

contracting officer may presume that a contractor is not a domestic

firm unless it is known that the firm is not foreign owned, controlled,

or influenced. (See FAR 27.304-4(a) regarding subcontracts with U.S.

firms.)

1827.304 Procedures.

1827.304-1 General. (NASA supplements paragraphs (a), (b), (c), (f),

(g), and (h))

(a) Contractor appeals of exceptions. In any contract with other

than a small business firm or nonprofit organization, the NASA Patent

Waiver Regulations, 14 CFR Section 1245, Subpart 1, shall apply.

(b) Greater rights determinations. In any contract with other than

a small business firm or a nonprofit organization and with respect to

which advance waiver of rights has not been granted (see 1827.302(b)),

the contractor (or an employee-inventor of the contractor after

consultation with the contractor) may request waiver of title to an

individual identified subject invention pursuant to the NASA Patent

Waiver Regulations, 14 CFR Section 1245, Subpart 1.

Regulations, 14 CFR Section 1245, Subpart 1, apply for any invention

made in the performance of work under any contract with other than a

small business firm or a nonprofit organization.

(f) Revocation or modification of contractor's minimum rights.

Revocation or modification of the contractor's license rights (see

1827.302-(i)(2)) shall be in accordance with 37 CFR 404.10, for subject

inventions made and reported under any contract with other than a small

business firm or a nonprofit organization.

(g) Exercise of march-in rights. For contracts with other than a

small

[[Page 36718]]

business firm or a nonprofit organization, the procedures for the

exercise of march-in rights shall be as set forth in the NASA Patent

Waiver Regulations, 14 CFR Section 1245, Subpart 1.

(h) Licenses and assignments under contracts with nonprofit

organizations. The Headquarters Associate General Counsel (Intellectual

Property) (Code GP) is the approval authority for assignments.

Contractor requests should be made to the Patent Representative

designated in the clause at 1852.227-72 and forwarded, with

recommendation, to Code GP for approval.

1827.304-2 Contracts placed by or for other Government agencies. (NASA

supplements paragraph (a))

(a)(3) When a contract is placed for another agency and the agency

does not request the use of a specific patent rights clause, the

contracting officer, upon consultation with the installation

intellectual property counsel, may use the clause at FAR 52.227-11,

Patent Rights--Retention by the Contractor (Short Form) as modified by

1852.227-11 (see 1827.303-70(a)) or 1852.227-70, New Technology (see

1827.303-70(b)).

1827.304-3 Contracts for construction work or architect-engineer

services. (NASA supplements paragraph (a))

(a) For construction or architect-engineer services contracts with

other than a small business or nonprofit organization, see 1827.303-

70(b).

1827.304-4 Subcontracts. (NASA supplements paragraph (a))

(a)(i) Unless the contracting officer otherwise authorizes or

directs, contractors awarding subcontracts and subcontractors awarding

lower-tier subcontracts shall select and include one of the following

clauses, suitably modified to identify the parties, in the indicated

subcontracts:

(A) The clause at 1852.227-70, New Technology, in any subcontract

with other than a small business firm or a nonprofit organization if a

purpose of the subcontract is the performance of experimental,

developmental, research, design, or engineering work of any of the

types described in 1827.303-70(b) (1)-(6).

(B) The clause at FAR 52.227-11, Patent Rights--Retention by the

Contractor (Short Form), modified by 1852.227-11 (see 1827.303-70(a)),

in any subcontract with a small business firm or a nonprofit

organization if a purpose of the subcontract is the performance of

experimental, developmental, or research work.

(ii) Whenever a prime contractor or a subcontractor considers it

inappropriate to include one of the clauses discussed in paragraph (a)

of this section in a particular subcontract, or a subcontractor refuses

to accept the clause, the matter shall be resolved by the contracting

officer in consultation with the intellectual property counsel.

1827.304-5 Appeals.

FAR 27.304-5 shall apply unless otherwise provided in the NASA

Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

1827.305 Administration of the patent rights clauses.

1827.305-3 Follow-up by Government.

1827.305-370 NASA patent rights and new technology follow-up

procedures.

(a) For each contract containing a patent rights clause or the

clause at 1852.227-70, New Technology, the contracting officer shall

take the following actions:

(1) Furnish, or require the contractor or furnish directly, the New

Technology Representative and the Patent Representative a copy of each

contract (and modifications thereto), and copies of the final technical

report, interim technical progress reports, and other pertinent

material provided under the contract, unless the representatives

indicate otherwise; and

(2) Notify the New Technology Representative as to which

installation organizational element has technical cognizance of the

contract.

(b) The New Technology Representative shall take the following

actions:

(1) Review the technical progress of work performed under the

contract to ascertain whether the contractor and its subcontractors are

complying with the clause's reporting and recordkeeping requirements;

(2) Forward to the Patent Representative copies of all contractor

and subcontractor written reports of reportable items and disclosures

of subject inventions, and a copy of the written statement, if any,

submitted with the reports.

(3) Consult with the Patent Representative whenever a question

arises as to whether a given reportable item is to be considered a

subject invention and whether it was made in the performance of work

under the contract.

(4) Forward to the Patent Representative all correspondence

relating to inventions and waivers under the New Technology clause or

election of title under the Patent Rights--Retention by the Contractor

(Short Form) clause.

(5) Upon receipt of any final report required by the clause, and

upon determination that the contract work is complete, determine

whether the contractor has complied with the clause's reporting

requirements. If so, the New Technology Representative shall certify

compliance, obtain the Patent Representative's concurrence, and forward

the certification to the contracting officer.

ascertain whether it is to be considered a subject invention, obtain

any determinations required by paragraph (b) of the clause at 1852.227-

70, New Technology, and notify the contractor. As to any subject

invention, the Patent Representative shall:

(1) Ensure that the contractor has provided sufficient information

to protect the Government's rights and interests in it and to permit

the preparation, filing, and prosecution of patent applications;

(2) Determine inventorship;

(3) Ensure the preparation of instruments establishing the

Government's rights' and

(4) Conduct selected reviews to ensure that subject inventions are

identified, adequately documented, and timely reported or disclosed.

(d) Either the New Technology Representative or the Patent

Representative, in consultation with the other, may prepare opinions,

make determinations, and otherwise advise the contracting officer with

respect to any withholding of payment under paragraph (g) of the clause

at 1852.227-70, New Technology. Either the New Technology

Representative or the Patent Representative may represent the

contracting officer for the purpose of examining the contractor's

books, records, and other documents in accordance with paragraph (f) of

the clause and take corrective action as appropriate. However, no

action may be taken by either the New Technology Representative or the

Patent Representative that would constitute a final decision under the

Disputes clause, involve any change or increase in the work required to

be performed under the contact that is inconsistent with any right of

appeal provided in FAR 27.304-5 or 14 CFR 1245, Subpart 1, or otherwise

be outside the scope of the contract.

(e) The contracting officer shall not approve release of final

payment under the contract and, if applicable, any reserve set aside

under the withholding provisions of the clause for deficiencies and

delinquent reporting not corrected as of the time of the submission of

the

[[Page 36719]]

final report by the contractor until receipt of the New Technology

Representative's certification of compliance, and the Patent

Representative's concurrence.

1827.305-371 New technology reporting plan.

In contracts with an estimated cost in excess of $2,500,000 (or

less when appropriate) that contain the clause at 1852.227-70, New

Technology, the contracting officer may require the contractor to

submit for post-award Government approval a detailed plan for new

technology reporting that demonstrates an adequate understanding of and

commitment to the reporting requirements of the clause.

1827.305-4 Conveyance of invention rights acquired by the Government.

(NASA supplements paragraph (a))

(a) When the Government acquires the entire right to, title to, and

interest in an invention under the clause at 1852.227-70, New

Technology, a determination of title is to be made in accordance with

Section 305(a) of the National Aeronautics and Space Act of 1958, as

amended (42 U.S.C. 2457(a)), and reflected in appropriate instruments

executed by NASA and forwarded to the contractor.

Subpart 1827.4--Rights in Data and Copyrights

1827.404 Basic rights in data clause. (NASA supplements paragraphs

(d), (e), (f), (g), (h), and (i))

(d) Protection of limited rights data specified for delivery. The

contracting officer shall consult with the installation patent or

intellectual property counsel regarding any questions concerning the

delivery of limited rights data and/or the use of Alternate II that may

arise from an offeror's response to the provision at FAR 52.227-15,

Representation of Limited Rights Data and Restricted Computer Software,

or during negotiations.

(e) Protection of restricted computer software specified for

delivery. The contracting officer shall consult with the installation

patent or intellectual property counsel regarding any questions

concerning the delivery of restricted computer software and/or the use

of Alternate III that may arise from an offeror's response to the

provision at FAR 52.227-15, Representation of Limited Rights Data and

Restricted Computer Software, or during negotiations.

(f) Copyrighted data.--(1)(ii) The contracting officer shall

consult with the installation patent or intellectual property counsel

before granting permission for a contractor to claim copyright

subsisting in data, other than computer software, first produced under

the contract.

(iv) The contracting officer, with the concurrence of the

installation intellectual property counsel, is the approval authority

for obtaining a copyright license of a different scope than set forth

in subparagraph (c)(1) of the clause at FAR 52.227-14, Rights in Data--

General, for any contract or class of contracts.

(2)(i) The procurement officer is the approval authority for

obtaining a copyright license of a different scope than that set forth

in subparagraph(c)(2) of the clause at FAR 52.227-14 for any contract

or class of contracts.

(g) Release, publication, and use of data.

(3)(A) NASA's intent is to ensure the most expeditious

dissemination of computer software developed by it or its contractor.

Accordingly, when the clause at FAR 52.227-14, Rights in Data-General,

is modified by 1852.227-14 (see 1827.409(a)), the contractor may not

assert claim to copyright, publish, or release to others computer

software first produced in the performance of a contract without the

contracting officer's prior written permission.

(B) The contracting officer may, in consultation with the

installation patent or intellectual property counsel, grant the

contractor permission to copyright, publish, or release to others

computer software first produced in the performance of a contract if:

(a) The contractor has identified an existing commercial computer

software product line or proposes a new one and states a positive

intention of incorporating any computer software first produced under

the contract into that line, either directly itself or through a

licensee;

(b) The contractor has made, or will be required to make,

significant contributions to the development of the computer software

by co-funding or by cost-sharing, or by contributing resources

(including but not limited to agreement to provide continuing

maintenance and update of the software at no cost for Governmental

use); or

Commercial Technology Division (Code RW) is obtained.

(C)(a) The contractor's request for permission in accordance with

1827.404(g)(3)(A) may be made either before contract award or during

contract performance.

(b) Any permission granted in accordance with 1827.404(g)(3)(B) (a)

or (b) shall be by express contract provision (or amendment) overriding

subparagraph (d)(3) or FAR 52.227-14, Rights in Data--General, (as

modified by 1852.227-14), rather than by deleting it. The contract

provision may contain appropriate assurances that the computer software

will be incorporated into an existing or proposed new commercial

computer software product line within a reasonable time and/or that the

agreed contributions to the Government are fulfilled, with

contingencies enabling the Government to obtain the right to distribute

the software for commercial use, including the right to obtain

assignment of copyright where applicable, in order to prevent the

computer software from being suppressed or abandoned by the contractor.

may be either by deleting subparagraph (d)(3) or by special contract

provision, as appropriate.

(d) When any permission to copyright is granted, any copyright

license retained by the Government shall be of the same scope as set

forth in subparagraph (c)(1) of the clause at FAR 52.227-14 and without

any obligation of confidentiality on the part of the Government, unless

in accordance with 1827.404(g)(3)(B)(b) the contributions of the

Contractor may be considered ``substantial'' for the purposes of FAR

27.408 (i.e., approximately 50 percent), in which case rights

consistent with FAR 27.408 may be negotiated for the computer software

in question.

(D) If the contractor has not been granted permission to copyright,

paragraph (d)(3)(ii) of the clause at FAR 52.227-14, Rights in Data--

General (as modified by 1852.227-14) enables NASA to direct the

contractor to assert claim to copyright in computer software first

produced under the contract and to assign, or obtain the assignment of,

such copyright to the Government or its designee. The contracting

officer may, in consultation with the installation intellectual

property counsel, so direct the contractor in situations where

mission objectives, needed to support specific Agency programs, or

necessary to meet statutory requirements.

(h) Unauthorized marking of data. The contracting officer shall

consult with the installation patent or intellectual property counsel

before taking any action regarding unauthorized markings of data under

paragraph (e) of the clause at FAR 52.227-14, Rights in Data--General.

[[Page 36720]]

(i) Omitted or incorrect notices. The contracting officer shall

consult with the installation patent or intellectual property counsel

before agreeing to add or correct any markings on data under paragraph

(f) of the clause at FAR 52.227-14, Rights in Data--General.

Sec. 1827.405 Other data rights provisions. (NASA supplements

paragraphs (b) and (c))

(b)(2) Acquisition of existing computer software. See 1827.409(k)

(i)-(ii) and 1827.409-70 for modifications and alternatives to the

clause at 52.227-19.

(SBIR) Program. If, during the performance of an SBIR contract (Phase I

or Phase II), the need arises for NASA to obtain delivery of restricted

computer software as defined in the clause at FAR 52.227-20, Rights in

Data--SBIR Program, and the contractor agrees to such delivery, the

restricted computer software may be required with restricted rights by

modification of the contract or under an agreement incorporated in and

made part of the contract, using the restricted rights set forth in FAR

27.404(e) and the related restrictions as a guide.

1827.406 Acquisition of data. (NASA supplements paragraph (a))

(a) General. Requirements for delivering technical data relating to

standard commercial items, components, or processes should be kept to

the absolute minimum consistent with the purpose for which they are

being procured. Normally, a vendor's manuals for installation,

operation, or maintenance and repair and/or form, fit, and function

data are adequate.

1827.406-70 Reports of work.

(a) When considered necessary for monitoring contract performance,

contracting officers shall require contractors to furnish reports of

work performed under research and development contracts (fixed-price

and cost reimbursement) or in cost-reimbursement supply contracts. This

purpose may be achieved by including the following general

requirements, modified as needed to meet the particular requirements of

the contract, in the section of the contract specifying data delivery

requirements:

(1) Monthly progress reports. Reports should be in narrative form,

brief, and informal. They should include a quantitative description of

progress, an indication of any current problems that may impede

performance, proposed corrective action, and a discussion of the work

to be performed during the next monthly reporting period. (Normally,

this requirement should not be used in contracts with nonprofit

organizations.)

(2) Quarterly progress reports. In addition to factual data, these

reports should include a separate analysis section interpreting the

results obtained, recommending further action, and relating occurrences

to the ultimate objectives of the contract. Sufficient diagrams,

sketches, curves, photographs, and drawings should be included to

convey the intended meaning.

(3) Final report. This report should summarize the results of the

entire contract, including recommendations and conclusions based on the

experience and results obtained. The final report should include

tables, graphs, diagrams, curves, sketches, photographs, and drawings

in sufficient detail to explain comprehensively the results achieved

under the contract.

(4) Report Documentation Page. The contractor should include a

completed Report Documentation Page (SF 298) as the final page of each

report submitted.

(b) The contracting officer shall consider the desirability of

providing reports on the completion of significant units or phases of

work, in addition to periodic reports and reports on the completion of

the contract.

reports shall be sent to the NASA Center for AeroSpace Information

(CASI), Attn: Accessioning Department, 800 Elkridge Landing Road,

Linthicum Heights, MD 21090-2934 (see 1835.070(a)).

1827.408 Cosponsored research and development activities.

The contracting officer shall consult with the installation patent

or intellectual property counsel before limiting the acquisition of or

acquiring less than unlimited rights to any data developed under

contracts involving cosponsored research and development activities.

1827.409 Solicitation provisions and contract clauses. (NASA

supplements paragraph (a), (b), (c), (d), (e), (i), and (k))

(a) The contracting officer shall add subparagraph (3) set forth in

1852.277-14 to paragraph (d) of the clause at FAR 52.227-14, Rights in

Data--General, except in solicitations and contracts for basic or

applied research with universities or colleges.

(b) The contracting officer, with the concurrence of the

installation intellectual property counsel, is the approval authority

for use of Alternate I. An example of its use is where the principal

purpose of the contract (such as a contract for basic or applied

research) does not involve the development, use, or delivery of items,

components, or processes that are intended to be acquired for use by or

for the Government (either under the contract in question or under any

anticipated follow-on contracts relating to the same subject matter).

purposes listed in FAR 27.404(d)(1) (i)-(v) to subparagraph (g)(2).

However, the contracting officer may, upon consultation with the

installation patent or intellectual property counsel, make deletions

from the specific purposes listed. If all are deleted, the word

``None'' must be inserted. Additions to those specific purposes listed

may be made only with the approval of the procurement officer and

concurrence of the installation patent or intellectual property

counsel.

(d) The contracting officer shall consult with the installation

patent or intellectual property counsel regarding the acquisition of

restricted computer software with greater or lesser rights than those

set forth in Alternate III. Where it is impractical to actually modify

the notice of Alternate III, this may be done by express reference in a

separate clause in the contract or by a collateral agreement that

addresses the change in the restricted rights.

(e) The contracting officer, with the concurrence of the

installation intellectual property counsel, is the approval authority

for the use of Alternate IV in any contract other than a contract for

basic or applied research to be performed solely by a college or

university on campus (but not for the management or operation of

Government facilities).

(i) The contract officer shall modify the clause at FAR 52.227-17,

Rights in Data--Special Works by adding paragraph (f) as set forth in

1852.227-17.

(k)(i) The contracting officer shall add paragraph (e) as set forth

in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer

Software--Restricted Rights, when it is contemplated that updates,

correction notices, consultation information, and other similar items

of information relating to commercial computer software delivered under

a purchase order or contract are available and their receipt can be

facilitated by signing a vendor supplied agreement, registration forms,

or cards and returning them directly to the vendor.

[[Page 36721]]

(ii) The contracting officer shall add paragraph (f) as set forth

at 1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer

Software--Restricted Rights, when portions of a contractor's standard

commercial license or lease agreement consistent with the clause,

Federal laws, standard industry practices, and the FAR are to be

incorporated into the purchase order or contract.

(iii) See 1827.409-70.

1827.409-70 NASA contract clause.

The contracting officer shall use the clause at 1852.227-86,

Commercial Computer Software--Licensing, in lieu of FAR 52.227-19,

Commercial Computer Software--Restricted Rights, when it is considered

appropriate for the acquisition of existing computer software in

accordance with FAR 27.405(b)(2).

Subpart 1827.6--Foreign License and Technical Assistance Agreements

1827.670 Space Station technical data and goods.

1827.670-1 Policy.

NASA and its contractors shall comply will all applicable export

control laws, including the International Traffic in Arms Regulations

(ITAR), 22 CFR Parts 120-130, and the Export Administration Regulations

(EAR), 15 CFR Parts 730-799, with respect to the transfer of technical

data and goods to any International Space Station program multilateral

partner or contractor. When authorized, certain technical data in

support of the International Space Station program may be exported to a

foreign recipient specified in writing by the contracting officer.

Contracting officers, or designees, will assure that any transfer of

data to a foreign recipient will be in compliance with all applicable

directives, including the NASA Export Control Program.

1827.670-2 Contract clause.

The contracting officer shall insert the clause at 1852.227-87,

Transfer of Technical Data Under Space Station International

Agreements, in all solicitations, contracts, and purchase orders in

support of Space Station program activities that may involve transfer

of technical data subject to the International Traffic in Arms

Regulations, 22 CFR Parts 120-130, or the Export Administration

Regulations (EAR), 15 CFR Parts 730-799 in accordance with the NASA

Export Control Program.

PART 1832--CONTRACT FINANCING

1832.409-170 [Amended]

34-35. In section 1832.409-170, paragraph (5) is redesignated as

paragraph (e).

1832.412 [Amended]

36. In paragraph (a)(i) of section 1832.412, the phrase ``(either

paragraph (d) or (e))'' is revised to read ``(either paragraph (e) of

the basic clause and Alternate II, or paragraph (d) of Alternate V)''.

1832.903 [Removed]

37. Section 1832.903 is removed.

38. In section 1832.908, paragraph (c) is revised to read as

follows:

1832.908 Contract clauses.

contracting with the CCC subject to the conditions at 1832.970, make

the following modifications:

(i) Insert ``17th'' in lieu of ``30th'' in paragraphs (a)(1)(i)(A),

(a)(1)(i)(B), and (a)(1)(ii); and

(ii) Annotate the clause ``as modified by NASA (DATE)''.

39. Section 1832.970 is revised to read as follows:

1832.970 Payments to Canadian Commercial Corporation.

Pursuant to the authority of FAR 32.904(a)(3), invoice and

contractor financing payments for contracts (other than Fixed-Price

Architect-Engineer Contracts, Construction Contracts, and contracts for

meats, perishables and dairy products) with the Canadian Commercial

Corporation (CCC) shall be made earlier than the standard contract

payment due dates. Accordingly, the phrase ``the 17th day'' shall be

used in lieu of the ``the 30th day'' at FAR 32.905(a)(1) and 32.906(a).

PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

1836.213, 1836.213-3, 18213-70, 1836.213-7 [Added]

40. Sections 1836.213, 1836.213-3, 1836.213-70, and 1836.213-4 are

added to read as follows:

1836.213 Special procedures for sealed bidding in construction

contracting.

1836.213-3 Invitations for bids.

1836.213-70 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. (NASA supplements paragraph (e))

(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 1836.3--[Removed]

41. Subpart 1836.3 is removed.

PART 1837--SERVICE CONTRACTING

1837.110-70 [Amended]

42-43. In paragraph (c) to section 1837.110-70, delete the words

``level-of-effort''.

PART 1839--ACQUISITION OF INFORMATION TECHNOLOGY

1839.106, 1836.106-70 [Redesignated]

44. Sections 1839.106 and 1839.106-70 are redesignated as 1839.107

and 1839.107-70, respectively.

PART 1842--CONTRACT ADMINISTRATION

1842.7202 [Revised]

45. Section 1842.7202 is revised to read as follows:

1842.7202 Contract clause.

The contracting officer shall insert the clause at 1852.242-73,

NASA Contractor Financial Management Reporting, in solicitations and

contracts when any of the NASA Form 533 series of reports is required

from the contractor.

PART 1844--SUBCONTRACTING POLICIES AND PROCEDURES

1844.302-70 [Amended]

46. Paragraph (a) to section 1844.302-70 is revised to read as

follows:

1844.302-70 DCMC-conducted contractor purchasing system reviews.

* * * * *

(a) Verifying that CPSRs are being conducted in accordance with FAR

44.302.

* * * * *

[[Page 36722]]

47. Part 1845 is revised to read as follows:

PART 1845--GOVERNMENT PROPERTY

Subpart 1845.1--General

Sec.

1845.102 Policy.

1845.102-70 NASA policy.

1845.102-71 Solicitation and review procedures.

1845.104 Review and correction of contractors' property control

systems.

1845.106 Government property clauses.

1845.106-70 NASA contract clauses and solicitation provision.

1845.106-71 Plant reconversion and plant clearance.

Subpart 1845.3--Providing Government Property to Contractors

1845.301 Definitions.

1845.302 Providing facilities.

1845.302-1 Policy.

1845.302-2 Facilities contracts.

1845.302-70 Securing approval of facilities projects.

1845.302-71 Determination and findings.

Subpart 1845.4--Contractor Use and Rental of Government Property

1845.402 Authorizing use of Government production and research

property.

1845.403 Rental--Use and Charges clause.

1845.405 Contracts with foreign governments or international

organizations.

1845.405-70 NASA procedures.

1845.406 Use of Government production and research property on

independent research and development programs.

1845.406-70 NASA policy.

1845.407 Non-Government use of plant equipment.

Subpart 1845.5--Management of Government Property in the Possession of

Contractors

1845.502 Contractor responsibility.

1845.502-1 Receipts for Government property.

1845.502-70 Contractor-acquired property.

1845.505 Records and reports of Government property.

1845.505-14 Reports of Government property.

1845.508 Physical inventories.

Subpart 1845.6--Reporting, Redistribution, and Disposal of Contractor

Inventory

1845.604 Restrictions on purchase or retention of contractor

inventory.

1845.606 Inventory schedules.

1845.606-1 Submission.

1845.607 Scrap.

1845.607-1 General.

1845.607-170 Contractor's approved scrap procedure.

1845.607-2 Recovering precious metals.

1845.608 Screening of contractor inventory.

1845.608-1 General

1845.608-6 Waiver of screening requirements.

1845.610 Sale of surplus contractor inventory.

1845.610-3 Proceeds of sale.

1845.610-4 Contractor inventory in foreign countries.

1845.613 Property disposal determinations.

1845.615 Accounting for contractor inventory.

Subpart 1845.70--[Reserved]

Subpart 1845.71--Forms Preparation

1845.7101 Instructions for preparing NASA Form 1018.

1845.7101-1 Property classification.

1845.7101-2 Transfers of property.

1845.7101-3 Computing costs of fabricated special tooling, special

test equipment, agency-peculiar property and contract work in

process.

1845.7101-4 Types of deletions from contractors property records.

1845.7101-5--Contractor's privileged financial and business

information.

1845.7102 Instructions for preparing DD Form 1419.

Subpart 1845.72--Contract Property Management

1845.7201 Definitions.

1845.7202 General.

1845.7203 Delegations of property administration and plant

clearance.

1845.7204 Retention of property administration and plant clearance.

1845.7205 Functional oversight of property administration and plant

clearance.

1845.7206 Responsibilities of property administrators and plant

clearance officers.

1845.7206-1 Property administrators.

1845.7206-2 Plant clearance officers.

1845.7207 Declaration of excess property.

1845.7208 Closure of contracts.

1845.7208-1 Completion or termination.

1845.7208-2 Final review and closing of contracts.

1845.7209 Special subjects.

1845.7209-1 Government property at alternate locations of the

prime contractor and subcontractor plants.

1845.7209-2 Loss, damage, or destruction of Government property.

1845.7209-3 Loss, damage, or destruction of Government property

while in contractor's possession or control.

1845.7209-4 Financial reports.

1845.7210 Contractor utilization of Government property.

1845.7210-1 Utilization surveys.

1845.7210-2 Records of surveys.

Authority: 42 U.S.C. 2473(c)(1).

Subpart 1845.1--General

1845.102 Policy.

1845.102-70 NASA policy.

Government property shall not be provided to contractors unless all

other alternatives are not feasible. The decision to provide Government

property to contractors (whether Government-furnished or contractor-

acquired) shall be made only after careful consideration of all

relevant factors. Among these factors are the following:

(a) Providing Government property to contractors increases the

Government's administrative burden and requires recordkeeping and

personnel.

(b) Providing property may dilute the contractor's overall

responsibility and weaken guarantees, end-item delivery requirements,

and other contract terms.

the Agency assumes responsibility for scheduling delivery of the

property.

1845.102-71 Solicitation and review procedures.

(a) Each solicitation, as applicable, shall include the following:

(1) A list of any Government property available to be furnished,

quantities, locations, conditions, and any related information.

(2) A requirement that offerors identify any Government property in

their possession proposed for use during contract performance. The

items, quantities, locations, acquisition costs, and proposed rental

terms must be provided, along with identification of the Government

contract under which the property is accountable.

(3) A requirement that requested Government provided facilities be

described and identified by the classifications in 1845.7101-1.

(4) A requirement that offerors provide, if applicable, the date of

the last Government property control system review, a summary of the

findings and recommendations, and contractor corrective actions taken.

(b) The contracting officer shall provide a copy of the

solicitation (or contract if no solicitation is used) to the center

supply and equipment management officer (SEMO) for review for

acquisitions with an estimated cost greater than $1,000,000, or for

acquisitions over $50,000 when work is to be performed at the center,

existing Government property is being furnished, or contract

acquisition of Government property is required or permitted.

1845.104 Review and correction of contractors' property control

systems. (NASA supplements paragraph (a))

(a) Property administration is normally delegated to DOD. When

property administration is not delegated to DOD, NASA shall conduct the

review of the contractor's property administration system in accordance

with DOD 4161.2-M, Manual for the Performance of Contract Property

Administration.

[[Page 36723]]

1845.106 Government property clauses. (NASA supplements paragraph (b))

(b) If NASA contemplates taking title to contractor acquired

property under paragraph (c) of the clause at FAR 52.245-2, Government

Property (Fixed-Price Contracts), the contracting officer shall list

the applicable property in the contract as deliverable items.

1845.106-70 NASA contract clauses and solicitation provision.

(a) The contracting officer shall insert the clause at 1852.245-70,

Contractor Requests for Government-Owned Equipment, in all

solicitations and contracts that have the potential for contractor

acquisition of equipment for the account of the Government that is not

listed as a specific contract deliverable. See 1845.7102 for

instructions on preparing DD Form 1419.

(b)(1) The contracting officer shall insert the clause at 1852.245-

71, Installation-Accountable Government Property, in solicitations and

contracts when Government property is to be made available to a

contractor working on a NASA installation, and the Government will

maintain accountability for the property. The contracting officer shall

list in the clause the applicable property user responsibilities. For

purposes of this clause, NASA installations include local off-site

buildings owned or directly leased by NASA when the contractor does not

have authority to acquire property for the account of the Government.

(2) Use of this clause is subject to the SEMO's concurrence that

adequate installation property management resources are available for

oversight of the property in accordance with all applicable NASA

installation property management directives.

(3) The contracting officer shall identify in the contract the

nature, quantity, and acquisition cost of such property and make the

property available on a no-charge basis.

(4) The contracting officer shall use the clause with its Alternate

I if the SEMO requests that the contractor be restricted from use of

the center central receiving facility for the purposes of receiving

contractor-acquired property.

(5) Contracting officers shall list separately in the contract any

property provided under a FAR 52.245 Government property clause that

remains accountable to the contractor during its use on the contract

(such as property used at the contractor's or a subcontractor's off-

site facility) and which is not also subject to the clause at 1852.245-

71. The contracting officer shall address any specific maintenance

considerations (e.g., requiring or precluding use of an installation

calibration or repair facility) elsewhere in the contract.

(6) See 1845.106-70(e).

Liability for Government Property Furnished for Repair and Services, in

fixed-price solicitations and contracts (except for experimental,

developmental, or research work with educational or nonprofit

institutions, where no profit is contemplated) for repair,

modification, rehabilitation, or other servicing of Government

property, if such property is to be furnished to a contractor for that

purpose and no other Government property is to be furnished. The

contracting officer shall not require additional insurance under the

clause unless the circumstances clearly indicate advantages to the

Government.

(d) The contracting officer shall insert the clause at 1852.245-73,

Financial Reporting of NASA Property in the Custody of Contractors, in

cost reimbursement contracts unless all property to be provided is

subject to the clause at 1852.245-71, Installation-Accountable

Government Property. The clause shall also be included in other types

of contracts when it is known at award that property will be provided

to the contractor or that the contractor will acquire property title to

which will vest in the Government prior to delivery.

(e) When approved by the Logistics Management Office of the

Headquarters Office of Management Systems and Facilities (Code JLG),

the contracting officer shall insert the clause at 1852.245-74,

Contractor Accountable On-Site Government Property, in lieu of the

clause at 1852.245-71, in solicitations and contracts when

accountability rests with an on-site contractor. The contracting

officer's written request for approval shall include a determination of

costs that will be (1) avoided (e.g., additional costs to the

installation's property management systems and staffing) and (2)

incurred (e.g., reimbursable costs of the contractor to implement,

staff, and operate separate property management systems on-site, and

resources needed for performance of, or reimbursement for, property

administration) under contractor accountability.

(f) The contracting officer shall insert the clause at 1852.245-75,

Title to Equipment, in solicitations and contracts where the clause at

FAR 52.245-2 with its Alternate II or 52.245-5, with its Alternate I is

used.

(g) The contracting officer shall insert the clause at 1852.245-76,

List of Government-Furnished Property, in solicitations and contracts

if the contractor is to be accountable under the contract for

Government property.

(h) The contracting officer shall insert the clause at 1852.245-77,

List of Installation-Accountable Property and Services, in

solicitations and contracts that require performance at the center and

authorize contractor use of property within the physical borders of the

center.

(1) The contracting officer shall insert the provision at 1852.245-

79, Use of Government-Owned Property, in all solicitations when

Government property may be used by the contractor.

(j) The contracting officer shall insert the clause at 1852.245-80,

Use of Government Production and Research Property on a No-Charge

Basis, in solicitations and contracts when government property (real

property, commercially available equipment, special test equipment, or

special tooling) accountable under another contract(s) is authorized

for use.

1845.106-71 Plant reconversion and plant clearance.

The Associate Administrator for Procurement (Code HS) is the

approval authority for any solicitation provision or contract clause

that would defer negotiation of costs for plant reconversion plant

clearance until after award.

Subpart 1845.3--Providing Government Property to Contractors

1845.301 Definitions.

Facilities, as defined in the FAR, also include real property and

commercially available equipment, whether owned or leased by NASA or

reimbursed as a cost under the contract.

Provide, as used in this subpart in such phrases as ``Government

property provided to the contractor'' and ``Government-provided

property,'' means either to furnish, as in ``Government-furnished

property,'' or to permit to be acquired, as in ``contractor-acquired

property.'' See FAR 45.101 for definitions of ``contractor-acquired

property'' and ``Government-furnished property.''

1845.302 Providing facilities.

1845.302-1 Policy. (NASA supplements paragraph (a))

(a) In addition to the exceptions listed in FAR 45.302-1(a),

existing NASA-owned facilities (whether contractor acquired or

government furnished) being used by a contractor may be retained for

the remainder of the contract period and furnished under any

[[Page 36724]]

follow-on contract for the same effort if the contracting officer

determines that to do so would be in the best interest of the

Government, provided that:

(i) The facilities are required to accomplish the purpose of the

contract;

(ii) The contract contains a provision requiring the contractor to

replace any of the facilities that reach the end of their useful life

during the contract period, or which are beyond economical repair, if

the facilities are still needed for contract performance. Such

replacements shall be made with contractor-owned facilities. The

contract provision shall also expressly prohibit contractor

acquisitions of facility items for the Government, unless specifically

authorized by the contract or consent has been obtained in writing from

the contracting officer pursuant to FAR 45.302-1(a);

(iii) Consideration has been given to any alternative uses by

Government personnel within the agency, in consultation with the center

industrial property officer; and

(iv) The contracting officer documents the file with a detailed

explanation of why continued furnishing of the facilities is in the

best interest of the Government.

(a)(4)(A) The procurement officer is designated to make the

determinations and findings (D&F) authorizing the use of Government

facilities. See 1845.302-71 for D&F format.

(B) The requirements for a D&F and a prospective contractor's

written statement asserting inability to obtain facilities are not

applicable in the circumstances listed under FAR 45.302-1(d). In these

cases, the contracting officer shall document the contract file with

the rationale for providing the facilities, including the reason for

not requiring the contractor to provide them.

1845.302-2 Facilities contracts.

Unless termination would be detrimental to the Government's

interests, contracting officers shall terminate facilities contracts

when the Government property is no longer required for the performance

of Government contracts or subcontracts. Contracting officers shall not

grant the contractor the unilateral right to extend the time during

which it is entitled to use the property provided under the facilities

contract.

1845.302-70 Securing approval of facilities projects.

(a) Pursuant to NMI 7330.1, Delegation of Authority--Approval

Authorities for Facility Projects, the contracting officer must approve

facilities projects involving leasing, construction, expansion,

modification, rehabilitation, repair, or replacement of real property.

(b) The contracting officer's written authorization is required

before any change is made in the scope or estimated cost of any

facilities project.

1845.302-71 Determination and findings.

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

45.302-1(a)(4) and 1845.302-1(a)(4) shall be prepared by the

contracting officer and approved by the procurement officer. Prior to

approval, concurrence must be obtained from the SEMO to ensure

agreement on 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 separate D&F is required before adding new types of

items or significant changes in quantity or before adding any new work

to the contract that requires additional Government facilities.

(b) Format. A sample format follows:

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 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. (Describe the types of facilities to be provided and any

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.

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.

Procurement Officer __________

Date __________

Subpart 1845.4--Contractor Use and Rental of Government Property

1845.402 Authorizing use of Government production and research

property. (NASA supplements paragraph (a))

(a)(i) A NASA contracting officer desiring to authorize use of

Government property under the cognizance of another contracting officer

shall obtain that contracting officer's concurrence.

(ii) NASA contracting officers having cognizance over NASA property

may authorize its use on contracts of other agencies if such use will

not interfere with NASA's primary purpose for the property and will not

extend beyond the expected expiration or completion date of the NASA

contract.

1845.403 Rental--Use and Charges clause. (NASA supplements paragraph

(a))

(a) The Center Director is designated as the authority to make the

determinations on modified rental rates.

1845.405 Contracts with foreign governments or international

organizations.

1845.405-70 NASA procedures.

(a) NASA policy is to recover a fair share of the cost of

Government production and research property if such property is used in

performing services or manufacturing articles for foreign countries or

for international organizations.

(b) The prior written approval of the Associate Administrator for

Procurement (Code H) is required for the use of Government production

and research property on work for foreign

[[Page 36725]]

countries or for international organizations. The Logistics Management

Office of the Headquarters Offices of Management Systems and Facilities

(Code JLG), the Office of General Counsel (Code G), and the

International Planning and Programs Branch of the Headquarters Office

of External Relations (Code IRD) are required concurrences.

Code HS, along with a summary of the circumstances involved, including

as a minimum--

(1) The name of the requesting contractor;

(2) The number of the contract under which the equipment is

controlled;

(3) A description of the equipment;

(4) The name of the foreign contractor and the relationship of the

foreign contractor to its government or to any international

organization;

(5) A description of the articles to be manufactured or services to

be performed;

(6) A statement that the intended use will not interfere with the

current or foreseeable requirements of the United States or require use

of the equipment beyond the expected expiration or completion date of

the NASA contract;

(7) A statement that the use of Government property is consistent

with the best interests of the United States;

(8) A statement that such use is legally authorized; and

(9) Any evidence of endorsement by another agency of the U.S.

Government based on national security or foreign policy of the United

States.

(d) Use, if approved, shall be subject to rent in accordance with

FAR 45.403.

1845.407 Use of Government production and research property on

independent research and development programs.

1845.406-70 NASA policy.

The contracting officer should not authorize contractor use of

Government property for independent research and development on a rent-

free basis except in unusual circumstances when it has been determined

by the contracting officer that--

(a) Such use is clearly in the best interests of the Government

(for example, the project can reasonably be expected to be of value in

specific Government programs); and

(b) No competitive advantage will accrue to the contractor through

such use (see FAR 45.201).

1845.406 Non-Government use of plant equipment. (NASA supplements

paragraph (a)).

For NASA, the coverage in FAR 45.407, applies to all equipment, not

just plant equipment.

(a)(i) The Associate Administrator for Procurement (Code HS) is the

approval authority for non-Government use of equipment exceeding 25

percent.

(ii) The percentage of Government and non-Government use shall be

computed on the basis of time available for use. For this purpose, the

contractor's normal work schedule, as represented by scheduled

production shift hours, shall be used. All equipment having a unit

acquisition cost of less than $25,000 at any single location may be

averaged over a quarterly period. Equipment having a unit acquisition

cost of $25,000 or more shall be considered on an item-by-item basis.

(iii) Approval for non-Government use of less than 25 percent shall

be for a period not exceeding 1 year. Approval for non-Government use

in excess of 25 percent shall not be for less than 3 months.

(iv) Requests for the approval shall be submitted to Code HS at

least 6 weeks in advance of the projected use and shall include--

(A) The number of equipment items involved and their total

acquisition cost; and

(B) An itemized listing of equipment having an acquisition cost of

$25,000 or more, showing for each item the nomenclature, year of

manufacture, and acquisition cost.

Subpart 1845.5--Management of Government Property in the Possession

of Contractors

1845.502 Contractor responsibility.

1845.502-1 Receipts for Government property.

Receipts for Government property shall comply with the instructions

for preparing NASA Form 1018, NASA Property in the Custody of

Contractors (see 1845.7101).

1845.502-70 Contractor-acquired property.

All contractor-acquired property must be authorized by the contract

and is subject to a determination by the contracting officer that it is

allocable to the contract and reasonably necessary. The acquisition

(and fabrication) of Government property is further subject to the

following conditions, depending on category of property:

(a) Facilities.

(1) Prior contracting officer approval, if the facilities are not

already specifically described in the contract as contractor-acquired.

(2) Submission of DD Form 1419, DOD Industrial Plant Requisition,

or equivalent format, and return of Certificate of Nonavailability.

(3) Submission of the written statement prescribed by FAR 45.302-

1(a)(4).

(b) Special test equipment.

(1) Contracting officer approval 30 days in advance if the

equipment is not identified in the solicitation or contract.

(2) Submission of DD Form 1419, or equivalent format, and return of

Certificate of Nonavailability.

(1) If the contract contains a Subcontracts clause, advance

notification to the contracting officer and contracting officer consent

if required by that clause.

(2) If the contract is a fixed-price contract, submission of the

list to the contracting officer within 60 days after delivery of the

first production end items (or later as prescribed by the contracting

officer), unless the tooling is already identified in the solicitation.

(3) Submission of DD Form 1419 or equivalent format and return of

Certificate of Nonavailability.

(d) Material. If the contract contains a Subcontracts clause,

advance notification to the contracting officer and contracting office

consent if required by that clause.

(e) Agency-peculiar property.

(1) If the contract contains a Subcontracts clause, advance

notification to the contracting officer and contracting officer consent

if required by that clause.

(2) Submission of DD Form 1419, or equivalent format, and return of

Certificate of Nonavailability.

1845.505 Records and reports of Government property.

1845.505-14 Reports of Government property. (NASA supplements

paragraphs (b))

(b) When the clause at 1852.245-73, Financial Reporting of NASA

Property in the Custody of Contractors, is included in the contract,

the contractor shall submit NASA Form 1018, NASA Property in the

Custody of Contractors, in accordance with the instructions on the form

and 1845.71. Contractor property control systems shall distinguish

between Government furnished and contractor acquired property for

purposes of reporting the acquisition cost in the property

classifications shown in FAR 45.505-14(a) (1) through (5).

1845.508 Physical inventories.

NASA contractors shall reconcile inventories with the official

property records and submit reports to the property administrator

within 30 days

[[Page 36726]]

after inventory completion. The contractor shall investigate all losses

of property and discoveries of unrecorded property to determine the

causes of the discrepancy and actions needed to prevent its recurrence.

Subpart 1845.6--Reporting, Redistribution, and Disposal of

Contractor Inventory

1845.604 Restrictions on purchase or retention of contractor

inventory.

(1) No contractor may sell contractor inventory to persons known by

it to be NASA or DOD personnel who have been engaged in administering

or terminating NASA contracts.

(2)(i) The contractor's or subcontractor's authority to approve the

sale, purchase, or retention of Government property on a contract which

is excess to needs after Government reutilization screening at less

than cost by a subcontractor, and the subcontractor's authority to

sell, purchase, or retain such property at less than cost with the

approval of the contractor or next higher-tier subcontractor does not

include authority to approve--

(A) A sale by a subcontractor to the contractor, the next higher-

tier subcontractor, or their affiliates; or

(B) A sale, purchase, or retention by a subcontractor affiliated

with the contractor or next higher-tier subcontractor.

(ii) Each excluded sale, purchase, or retention requires the

written approval of the plant clearance officer.

1845.606 Inventory schedules.

1845.606-1 Submission.

See 1845.608 for intra-agency screening of excess contractor-held

property.

1845.607 Scrap.

1845.607-1 General.

1845.607-170 Contractor's approved scrap procedure.

(a) When a contractor has an approved scrap procedure, certain

property may be routinely disposed of in accordance with that procedure

and not processed under this section.

(b) The center property administrator is authorized to approve the

contractor's scrap procedure. Before approval, the plant clearance

officer shall review the procedure, particularly regarding sales. The

plant clearance officer shall ensure that the procedure contains

adequate requirements for inspecting and examining items to be disposed

of as scrap. When the contractor's procedure does not require physical

segregation of Government-owned scrap from contractor-owned scrap and

separate disposal, care shall be exercised to ensure that a contract

change that generates a large quantity of property does not result in

an inequitable return to the Government. In such a case, the property

administrator shall make a determination as to whether separate

disposition of Government scrap would be appropriate.

disposed of through the contractor's approved scrap procedure.

(d) Property in scrap condition, other than that disposed of

through the contractor's approved scrap procedure, shall be reported on

appropriate inventory schedules for disposition in accordance with the

provisions of FAR Part 45 and 1845.

1845.607-2 Recovering precious metals. (NASA supplements paragraph

(b)).

(b) Silver, gold, platinum, palladium, rhodium, iridium, osmium,

and ruthenium; scrap bearing such metals; and items containing

recoverable quantities of them shall be reported to the Defense

Reutilization and Marketing Service, DRMS-R, Federal Center, Battle

Creek, MI 49017-3092, for instructions regarding disposition.

1845.608 Screening of contractor inventory.

1845.608-1 General. (NASA supplements paragraphs (a))

(a) Property Disposal Officers (PDOs) are the center focal points

for intra-agency reutilization screening. PDOs shall acknowledge

receipt of inventory schedules within 30 days and simultaneously

provide the plant clearance officer a NASA screening completion/release

date. Screening shall be accomplished in accordance with NHB 4300.1.

1845.608-6 Waiver of screening requirements.

The Director of the Logistics Management Office of the Headquarters

Office of Management Systems and Facilities (Code JLG) is designated to

authorize exceptions to intra-agency screening requirements.

1845.610 Sale of surplus contractor inventory.

1845.610-3 Proceeds of sale.

The plant clearance officer shall maintain an open suspense record

until verifying that credit has been applied, unless another Government

representative has specifically assumed this responsibility.

1845.610-4 Contractor inventory in foreign countries.

NASA procedures for disposal are in NHB 4300.1.

1845.613 Property disposal determinations.

The center property disposal officer (PDO) shall review the

determinations in accordance with NHB 4300.1.

1845.615 Accounting for contractor inventory.

A copy of Standard Form 1424, Inventory Disposal Report, shall be

provided to the center industrial property officer or the PDO.

Subpart 1845.70--[Reserved]

Subpart 1845.71--Forms Preparation

1845.7101 Instructions for preparing NASA Form 1018.

NASA Form 1018 (see 1853.3) provides information for NASA financial

statements and property management. Accuracy and timeliness of the

report are, therefore, very important. Contractors shall retain

documents which support the data reported on NF 1018 in accordance with

FAR subpart 4.7, Contractor Records Retention. Classifications of

property, related costs to be reported, and reporting requirements are

set forth in this subpart.

1845.7101-1 Property classification.

(a) Contractors shall report costs in the classifications required

on NF 1018, as described in this section. For Land, Buildings, Other

Structures and Facilities, and Leasehold Improvements, contractors

shall report the amount for all items with a unit cost of $5,000 or

more and a useful life of 2 years or more. For Plant Equipment, Special

Tooling, Special Test Equipment and Agency-Peculiar Property,

contractors shall separately report:

(1) the amount for all items with a unit cost of $5,000 or more and

a useful life of 2 years or more, and

(2) all items under $5,000, regardless of useful life.

(b) Contractors shall report the amount for all Materials,

regardless of unit costs.

associated costs incidental to acquiring and preparing land for use.

(for example; appraisal fees, clearing costs, drainage, grading,

landscaping, plats and surveys, removal and relocation of the property

of others as part of a land purchase, removal or destruction of

structures or facilities purchased but not used, and legal expenses).

[[Page 36727]]

(d) Buildings. Includes costs of buildings, improvements to

buildings, and fixed equipment required for the operation of a building

which is permanently attached to and a part of the building and cannot

be removed without cutting into the walls, ceilings, or floors.

Examples of fixed equipment required for the functioning of a building

include plumbing, heating and lighting equipment, elevators, central

air conditioning systems, and built-in safes and vaults.

(e) Other structures and facilities. Includes costs of acquisitions

and improvements of structures and facilities other than buildings; for

example, airfield pavements, harbor and port facilities, power

production facilities and distribution systems, reclamation and

irrigation facilities, flood control and navigation aids, utility

systems (heating, sewage, water and electrical) when they serve several

buildings or structures, communication systems, traffic aids, roads and

bridges, railroads, monuments and memorials, and nonstructural

improvements, such as sidewalks, parking areas, and fences.

(f) Leasehold improvements. Includes costs of improvements to

leased buildings, structures, and facilities, as well as easements and

right-of-way, where NASA is the lessee or the cost is charged to a NASA

contract.

(g) Equipment. Includes cost of commercially available personal

property for use in manufacturing supplies, performing services, or any

general or administrative purpose (for example, machine tools,

furniture, vehicles, computers, accessory or auxiliary items, and test

equipment).

(h) Construction in Progress. Includes costs for work in process

for the construction of Buildings, Other Structures and Facilities, and

Leasehold Improvements to which NASA has title.

(i) Special Tooling. Includes costs of equipment and manufacturing

aids (and components and replacements of these items) that are of such

a specialized nature that, without substantial modification or

alteration, their use is limited to the development or production of

particular supplies or parts, or to the performance of particular

services. Examples include jigs, dies, fixtures, molds, patterns, taps

and gauges.

(j) Special Test Equipment. Includes costs of equipment used to

accomplish special purpose testing in performing a contract, and items

or assemblies of equipment.

(k) Material. Includes costs of NASA owned property held in

inventory that may become a part of an end item or be expended in

performing a contract. Examples include raw and processed material,

parts, assemblies, small tools and supplies. Does not include material

that is part of work in process.

(l) Agency-Peculiar Property. Includes actual or estimated costs of

completed items, systems and subsystems, spare parts and components

unique to NASA aeronautical and space programs. Examples include

aircraft, engines, satellites, instruments, rockets, prototypes and

mock-ups. The amount of property, title to which vests in the

Government as a result of progress payments to fixed price

subcontractors, shall be included to reflect the pro rata cost of

undelivered agency-peculiar property.

(m) Contract Work-in-Process. Includes the costs of all work-in-

process and excludes the costs of completed items reported in other

categories.

1845.7101-2 Transfers of property.

A transfer is a change in accountability between and among prime

contracts, centers, and other Government agencies (e.g., between

contracts of the same installation, contracts of different

installation, a contract of one installation to that of another

installation, an installation to a contract of another installation,

and a contract to another Government agency or its contract). So that

NASA may properly control and account for transfers, they shall be

adequately documented. Therefore, procurement, property, and financial

organizations at NASA Centers must effect all transfers of

accountability, although physical shipment and receipt of property may

be made directly by contractors. The procedures described in this

section shall be followed in all cases, to provide an administrative

and audit trail, even if property is physically shipped directly from

one contractor to another. Property shipped between September 1 and

September 30, inclusively, shall be reported by the shipping

contractor, regardless of the method of shipment, unless written

evidence of receipt at destination has been received. Repairables

provided under fixed price repair contracts that include the clause at

1852.245-72, Liability for Government Property Furnished for Repair or

Other Services, remain accountable to the cognizant center and are not

reportable on NF 1018; repairables provided under a cost-reimbursement

contract, however, are accountable to the contractor and reportable on

NF 1018. All materials provided or conduct repairs are reportable,

regardless of contract type.

(a) Approval and Notification. The contractor must obtain the

approval of the contracting officer or designee for transfers of

property before shipment. Each shipping document must contain contract

numbers, shipping references, property classifications in which the

items are recorded, unit prices, and any other appropriate identifying

or descriptive data. Unit prices shall be obtained from records

maintained pursuant to FAR part 45 and 1845. Shipping contractors shall

furnish a copy of the shipping document to t

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