![](media/image1.wmf){width="0.8243055555555555in"
height="0.6888888888888889in"} Procurement Notice

National Aeronautics and

Space Administration

Washington, DC 20546

##  PN 97-86

###  August 1, 2003

CONFORMANCE WITH FEDERAL ACQUISITION CIRCULAR (FAC) 2001-14 AND
MISCELLANEOUS ADMINISTRATIVE AND EDITORIAL CHANGES

***BACKGROUND:*** This PN revises the NASA FAR Supplement (NFS) to
conform to changes made to the Federal Acquisition Regulation (FAR) by
Federal Acquisition Circular 2001-14 and to make administrative and
editorial changes needed to update the designated agency competition
advocate, update and remove outdated references, add url citations, and
clarify the term "NASA workforce" as used in the instruction for
drafting an announcement of opportunity.

***ACTION REQUIRED BY CONTRACTING OFFICERS:*** Use the revised clause
1852.246-72, Material Inspection and Receiving Report, in all
solicitations and contracts issued after August 1, 2003.

***CLAUSE CHANGES:*** Clause 1852.246-72, Material Inspection and
Receiving Report, is revised by updating a NFS citation.

***PARTS AFFECTED:*** Changes are made in Parts 1806, 1811, 1814, 1815,
1817, 1819, 1825, 1827, 1844, and 1852.

***REPLACEMENT PAGES:*** You may use the enclosed pages to replace
Structure page 5, Structure page 6, Structure page 7, Structure page 8,
6:5, Part 1811, 14:1, 14:2, 15:25, 15:26, 17:3, 17:4, 19:7, 19:8, Part
1825, 27:9, 27:10, Part 1837, 44:3, 52:87, 52:88, 52-97, and 52-98 of
the NFS.

***TYPE OF RULE AND PUBLICATION DATE:*** The PN was published as a final
in the Federal Register (68 FR 45168 - 45169) on August 1, 2003.

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

James A. Balinskas

Director, Contract Management Division

Enclosures

1825.3 Balance of Payments Program

1825.4 Trade Agreements

1825.6 Customs and Duties

1825.9 Additional Foreign Acquisition Clauses

1825.70 Foreign Contracts

**PART 1826 RESERVED**

**SUBCHAPTER E\--GENERAL CONTRACTING REQUIREMENTS**

**PART 1827 PATENTS, DATA, AND COPYRIGHTS**

1827.3 Patent Rights Under Government Contracts

1827.4 Rights in Data and Copyrights

1827.6 Foreign License and Technical Assistance Agreements

**PART 1828 BONDS AND INSURANCE**

1828.1 Bonds

1828.2 Sureties

1828.3 Insurance

**PART 1829 TAXES**

1829.1 General

1829.2 Federal Excise Taxes

**PART 1830 COST ACCOUNTING STANDARDS**

1830.2 CAS Program Requirements

1830.70 Facilities Capital Employed for Facilities in Use or for

Facilities Under Construction

**PART 1831 CONTRACT COST PRINCIPLES AND PROCEDURES**

1831.2 Contracts with Commercial Organizations

**PART 1832 CONTRACT FINANCING**

1832.1 Non-Commercial Item Purchase Financing

1832.2 Commercial Item Purchase Financing

1832.4 Advance Payments for Non-Commercial Items

1832.5 Progress Payments Based on Costs

1832.7 Contract Funding

1832.9 Prompt Payment

1832.10 Performance-Based Payments

1832.11 Electronic Funds Transfer

**PART 1833 PROTESTS, DISPUTES, AND APPEALS**

1833.1 Protests

1833.2 Disputes and Appeals

## SUBCHAPTER F\--SPECIAL CATEGORIES OF CONTRACTING

**PART 1834 MAJOR SYSTEM ACQUISITION**

1834.0 General

**PART 1835 RESEARCH AND DEVELOPMENT CONTRACTING**

**PART 1836 CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS**

1836.2 Special Aspects of Contracting for Construction

1836.5 Contract Clauses

1836.6 Architect-Engineer Services

1836.7 Standard and Optional Forms for Contracting for Construction,

Architect-Engineer Services, and Dismantling, Demolition, or

Removal of Improvements

**PART 1837 SERVICE CONTRACTING**

1837.1 Service Contracts\--General

1837.2 Advisory and Assistance Services

**PART 1838 RESERVED**

**PART 1839 ACQUISITION OF INFORMATION** **TECHNOLOGY**

1839.1 General

**PART 1840 RESERVED**

**PART 1841 ACQUISITION OF UTILITY SERVICES**

1841.2 Acquiring Utility Services

1841.3 Requests for Assistance

1841.4 Administration

1841.5 Solicitation Provision and Contract Clauses

**SUBCHAPTER G\--CONTRACT MANAGEMENT**

**PART 1842 CONTRACT ADMINISTRATION**

1842.1 Interagency Contract Administration and Audit Services

1842.2 Assignment of Contract Administration

1842.3 Contract Administration Office Functions

1842.5 Postaward Orientation

1842.7 Indirect Cost Rates

1842.8 Disallowance of Costs

1842.12 Novation and Change-of-Name Agreements

1842.13 Suspension of Work, Stop-Work Orders, and Government Delay of
Work

1842.14 Traffic and Transportation Management

1842.15 Contractor Performance Information

1842.70 Additional NASA Contract Clauses

1842.71 Submission of Vouchers

1842.72 NASA Contractor Financial Management Reporting

1842.73 Audit Tracking and Resolution

1842.74 Earned Value Management

**PART 1843 CONTRACT MODIFICATIONS**

1843.2 Change Orders

1843.70 Undefinitized Contract Actions

1843.71 Shared Savings

**PART 1844 SUBCONTRACTING POLICIES AND PROCEDURES**

1844.2 Consent to Subcontracts

1844.3 Contractors\' Purchasing Systems Reviews

**PART 1845 GOVERNMENT PROPERTY**

1845.1 General

1845.3 Providing Government Property to Contractors

1845.4 Contractor Use and Rental of Government Property

1845.5 Management of Government Property in the Possession of
Contractors

1845.6 Reporting, Redistribution, and Disposal of Contractor Inventory

1845.70 Reserved

1845.71 Forms Preparation

1845.72 Contract Property Management

**PART 1846 QUALITY ASSURANCE**

1846.3 Contract Clauses

1846.4 Government Contract Quality Assurance

1846.6 Material Inspection and Receiving Reports

1846.7 Warranties

**PART 1847 TRANSPORTATION**

1847.2 Contracts for Transportation or for Transportation-Related
Services

1847.3 Transportation in Supply Contracts

1847.5 Ocean Transportation by U.S.-Flag Vessels

1847.70 Protection of the Florida Manatee

**PART 1848 VALUE ENGINEERING**

1848.1 Policies and Procedures

1848.2 Contract Clauses

**PART 1849 TERMINATION OF CONTRACTS**

1849.1 General Principles

1849.5 Contract Termination Clauses

**PART 1850 EXTRAORDINARY CONTRACTUAL ACTIONS**

1850.2 Delegation of and Limitations on Exercise of Authority

1850.3 Contract Adjustments

1850.4 Residual Powers

**PART 1851 USE OF GOVERNMENT SOURCES BY CONTRACTORS**

1851.1 Contractor Use of Government Supply Sources

**SUBCHAPTER H\--CLAUSES AND FORMS**

**PART 1852 SOLICITATION PROVISIONS AND CONTRACT CLAUSES**

1852.1 Instructions for Using Provisions and Clauses

1852.2 Texts of Provisions and Clauses

1852.3 Provision and Clause Matrix

**PART 1853 FORMS**

1853.1 General

1853.2 Prescription of Forms

1853.3 Illustrations of Forms

**SUBCHAPTER I\--AGENCY SUPPLEMENTARY REGULATIONS**

**PART 1870 RESERVED**

**PART 1871 MIDRANGE PROCUREMENT PROCEDURES**

1871.1 General

1871.2 Planning and Requirements Process

1871.4 Request for Offer (RFO)

1871.5 Award

1871.6 \"Best Value Selection\"

**PART 1872 ACQUISITIONS OF INVESTIGATIONS**

1872.1 The Investigation Acquisition System

1872.2 Applicability of the Process

1872.3 The Announcement of Opportunity

1872.4 Evaluation of Proposals

1872.5 The Selection Process

1872.6 Payload Formulation

1872.7 Acquisition and Other Considerations

**1806.304-70 Approval of NASA justifications.**

Concurrences and approvals for justifications of contract actions
conducted in accordance with FAR Subparts 6.2 and 6.3 shall be obtained
as follows:

\(a\) For proposed contracts over \$500,000 but not exceeding
\$10,000,000 -

\(1\) Concurring official: Procurement Officer

\(2\) Approving official: Center or Headquarters Competition Advocate.

\(b\) For proposed contracts over \$10,000,000 but not exceeding
\$50,000,000 -

\(1\) Concurring officials:

\(i\) Procurement Officer

\(ii\) Center or Headquarters Competition Advocate

\(2\) Approving official: Head of the contracting activity.

\(c\) For proposed contracts over \$50,000,000 -

\(1\) Concurring officials:

\(i\) Procurement Officer

\(ii\) Center or Headquarters Competition Advocate

\(iii\) Head of the contracting activity.

\(iv\) Agency Competition Advocate

\(2\) Approving Official: Assistant Administrator for Procurement

\(d\) The approval authority of FAR 6.304(a)(3) may not be delegated to
other than the installation\'s Deputy Director.

\(e\) For proposed contract actions requiring approval by the Assistant
Administrator for Procurement, the original justification shall be
forwarded to the Assistant Administrator for Procurement (Code HS).

\(f\) Regardless of dollar value, class justifications shall be approved
by the Assistant Administrator for Procurement.

## Subpart 1806.5\--Competition Advocates

1806.501 Requirement.

**(1)** The Director, Program Operations Division, Code HS, is the
agency competition advocate, reporting to the Assistant Administrator
for Procurement on issues related to competition of NASA acquisitions.

**(2)** The Center Deputy Directors or Associate Directors are the
competition advocates for their contracting activities.

**(3)** The Headquarters Chief Financial Officer, Code CF, is the
competition advocate for the Headquarters contracting activity.

**1806.502 Duties and Responsibilities.**

(b)**(i)** Center competition advocates shall submit annual reports to
the agency competition advocate (Code HS) on or before November 30.

**(ii)** The agency competition advocate shall submit an annual agency
report on or before January 31.

PART 1811

DESCRIBING AGENCY NEEDS

# TABLE OF CONTENTS

1811.002 Policy.

**SUBPART** **1811.1** **SELECTING AND DEVELOPING REQUIREMENTS**

**DOCUMENTS**

1811.101 Order of precedence for requirements documents.

1811.107 Solicitation provisions.

**SUBPART 1811.4 DELIVERY OR PERFORMANCE SCHEDULES**

1811.403 Supplies or services.

1811.403-70 Packaging, handling, and transportation

1811.404 Contract clauses.

1811.404-70 NASA contract clauses

**SUBPART 1811.5 LIQUIDATED DAMAGES**

1811.501 Policy.

**SUBPART 1811.6 PRIORITIES AND ALLOCATIONS**

1811.600 Scope of subpart.

1811.602 General.

1811.603 Procedures.

## PART 1811

DESCRIBING AGENCY NEEDS

**1811.002 Policy.**

\(b\) Implementation of the Metric Conversion Act of 1975, as amended,
must be in accordance with NPD 8010­.2B, Use of the Metric System of
Measurements in NASA Programs.

**Subpart** **1811.1\--Selecting and Developing Requirements Documents**

1811.101 Order of precedence for requirements documents.

\(a\) Safeguards to ensure safety, security, and environmental
protection must be included, as applicable, in requirements documents.

(b)(1) Requirements for the use of energy efficient motor vehicles will
be established in accordance with NPG 6200.1, "NASA Transportation and
General Traffic Management".

(b)(2) Requirements for the use of environmentally preferable products
will be established in accordance with NPG 8830.1, "Affirmative
Procurement Plan for Environmentally Preferable Products." Requirements
for the use of energy and water efficient products and the use of
renewable energy technology will be established in accordance with NPG
8570.1, "Energy Conservation Technologies and Practices."

**1811.107 Solicitation provisions.**

\(b\) NASA uses the categorical method to report its use of voluntary
consensus standards. Therefore, use of the provisions at 52.211-7 is not
required. However, contracting officers must include in draft RFPs
(DRFPs) the information required by 1815.201(c)(6)(A).

**Subpart** **1811.4\--Delivery or Performance Schedules**

**1811.403 Supplies or services.**

(a)(3) Contract delivery or perfor­mance schedules must not be express­ed
in terms of a notice of award. A notice of award as a specific docu­ment,
separate from the award docu­ment itself, is not a contractual document
and shall not be used as a reference point for contract perfor­mance. See
1814.­408 for additional information on notices of award.

**1811.403-70 Packaging, handling, and transportation.**

\(a\) NPG 6000.1E, \"Requirements for Packaging, Handling, and
Transportation for Aeronautical and Space Systems, Equipment, and
Associated Components\" provides guidance for shipment of certain NASA
items.

\(b\) Contracting officers, with the advice of the requiring activity
and the Center Transportation Officer, must include a designation of
each deliverable item, or groupings of deliverable items, as Class I,
II, III, or IV for the purposes of contractor compliance with the NPG.

**1811.404 Contract clauses.**

(a)(2) FAR 52.211-8**,** Time of Deliv­ery, Alter­nates II and III, must
not be used in NASA contracts.

\(3\) FAR 52.211-9, Desired and Re­quired Time of Delivery, Alternates II
and III, must not be used in NASA contracts.

1811.404-70 NASA contract clauses.

The clause at 1852.211-70, Packaging, Handling, and Transportation, must
be included in solicitations for contracts for deliverable items,
including software, designated as Class I (mission essential), Class II
(delicate or sensitive), or Class III (requires special handling or
monitoring).

## Subpart 1811.5\--Liquidated Damages

**1811.501 Policy.**

\(d\) The procurement officer must forward recom­menda­tions concerning
remission of liquidated damages to the Headquarters Office of
Procure­ment (Code HS).

**Subpart** **1811.6\--Priorities and Allocations**

1811.600 Scope of subpart.

The Defense Priorities and Allocations System (15 CFR Part 700) may be
viewed at http://www.doc-bxa.bmpcoe.org/dpas-docs/dpasreg.pdf.

**1811.602  General.**

\(c\) The Department of Defense is the \"Dele­gate Agency\" for NASA. The
Headquarters Office of Procurement (Code HK) must coordi­nate with DOD,
as necessary, to ensure that any DOD require­ments are met.

**1811.603 Procedures.**

(e)**(i)** Rated orders may be used by NASA only as provided in Section
700.17 of the DPAS (15 CFR 700.17) and subject to the limitations
provided in Section 700.18 of the DPAS (15 CFR 700.18). Priority ratings
are assigned on individual contracts and purchase orders by the
contracting officer.

**(ii)** NASA rated orders may only be assigned a DO rating, unless NASA
has obtained a DX rating from the Department of Defense.

**(iii)** The following program identification symbols may be used on
NASA rated con­tracts and purchase orders for equipment and services that
support authorized programs (see Schedule I of the DPAS):

A1 - Aircraft

A2 - Missiles

A3 - Ships

A5 - Weapons

A6 - Ammunition

A7 - Electronic and Communi­cations Equipment

B1 - Military Building Sup­plies

B8 - Production Equipment (For Contractor\'s Account)

B9 - Production Equipment (Government-Owned)

C2 - Construction

C3 - Maintenance, Repair, and Operating Supplies for Facili­ties

C9 - Miscellaneous/Other

\(g\) Installation requests for as­sistance shall be directed to the
Headquarters Office of Procure­ment (Code HK).

## PART 1814

**SEALED BIDDING**

TABLE OF CONTENTS

**SUBPART 1814.2 SOLICITATION OF BIDS**

1814.201 Preparation of invitations for bids.

1814.201-5 Part IV\--Representations and instructions.

1814.201-6 Solicitation provisions.

1814.201-670 NASA solicitation provisions.

**SUBPART 1814.3 SUBMISSION OF BIDS**

1814.302 Bid submission.

**SUBPART 1814.4 OPENING OF BIDS AND AWARD OF CONTRACT**

1814.404 Rejection of bids.

1814.404-1 Cancellation of invitations after opening.

1814.407 Mistakes in bids.

1814.407-3 Other mistakes disclosed before award.

1814.407-4 Mistakes after award.

1814.408 Award.

1814.408-1 General.

## PART 1814 

**SEALED BIDDING**

**Subpart** **1814.2\--Solicitation of Bids**

**1814.201** **Preparation** **of** **invitations** **for** **bids.**

**1814.201-5 Part IV \-- Representations** **and** **instructions.**

\(c\) *Section M, Evaluation factors for award.*

**(i)** The contracting officer shall state if award is to be made in
the aggre­gate (all-or-none basis) or by specified groups of items.

**(ii)** If bidders are required to have spe­cial technical
qualifications because of the complexity of the equipment being
pur­chased or for some other reason, the con­tracting officer shall state
those qualifica­tions.

**1814.201-6** **Solicitation** **provisions.**

**1814.201-670 NASA solicitation provisions.**

\(a\) The contracting officer shall insert the provi­sion at 1852.214-70,
Caution to Offerors Furnishing Descriptive Literature, in invitations
for bids. See FAR 52.214-21, Descriptive Literature.

\(b\) The contracting officer shall insert the provi­sion at 1852.214-71,
Grouping for Aggregate Award, in invitations for bids, except for
construc­tion, when it is in the Govern­ment\'s best interest not to make
award for less than specified quantities solicited for certain items or
groupings of certain items. Insert the item numbers and/or descriptions
applica­ble for the particular procure­ment.

\(c\) The contracting officer shall insert the provi­sion at 1852.214-72,
Full Quanti­ties, in invita­tions for bids, except for construction, when
it is in the Govern­ment\'s best interest not to make award for less than
the full quantities solicited.

\(d\) If a pre-bid conference is planned, the contract­ing officer shall
insert the provision at 1852.215-77, Preproposal/Pre-bid Conference. See
1815.209-70(a).

**Subpart 1814.3\--Submission of Bids**

**1814.302 Bid submission.**

\(b\) NASA contracting officers shall not consider telegraph­ic bids
commu­nicat­ed by tele­phone.

**Subpart 1814.4\--Opening of Bids and Award of Contract**

**1814.404** **Rejection** **of** **bids.**

**1814.404-1** **Cancellation** **of** **invitations** **after**
**opening.**

\(c\) The authority to make the determi­na­tion at FAR 14.404-1(c) is
delegated to the contracting officer, except as provided in paragraph
(e)(1) of this subsection.

(e)(1) A determination that includes an autho­ri­zation to complete the
acquisition through negotia­tion shall be m­ade by the procurement
officer, in consulta­tion with the chief counsel.

**1814.407 Mistakes** **in** **bids.**

**1814.407-3 Other** **mistakes** **disclosed** **be­fore** **award.**

\(e\) Procurement officers are authorized to make the determinations
under FAR 14.407-3(a), (b), (c) and (d).

**1814.407-4 Mistakes** **after** **award.**

\(d\) Determinations shall be made by the procure­ment officer.

**1814.408 Award.**

**1814.408-1 General.**

**(1)** A notice of award as a specific document is used when the
contracting officer needs to inform a responsible bidder that its offer
was determined to be the most advantageous to the Government

\(1\) Provide substantial benefits to the Government under the contract
and/or overall program;

\(2\) Have not been recognized in the structured approach calculations;
and

\(3\) Represent unusual and innovative actions or acceptance of risk by
the contractor.

\(c\) Examples of special circumstances include, but are not limited to
the following:

\(1\) Consistent demonstration by the contractor of excellent past
performance within the last three years, with a special emphasis on
excellence in safety, may merit an upward adjustment of as much as 1
percent. Similarly, an assessment of poor past performance, especially
in the area of safety, may merit a downward adjustment of as much -1
percent. This consideration is especially important when negotiating
modifications or changes to an ongoing contract.

\(2\) Extraordinary steps to achieve the Government's socio-economic
goals, environmental goals, and public policy goals established by law
or regulation that are sufficiently unique or unusual may merit an
upward adjustment of as much as .5 percent. Similarly, for
non-participation in or violation of Federal programs, the contracting
officer may adjust the objective by as much as -.5 percent. However,
this consideration does not apply to the utilization of small
disadvantaged businesses. Incentives for use of these firms may only be
structured according to FAR 19.1203 and 19.1204(c).

\(3\) Consideration of up to 1 percent should be given when contract
performance requires the expenditure of significant corporate capital
resources.

\(4\) Unusual requests for use of government facilities and property may
merit a downward adjustment of as much as - 1 percent.

\(5\) Cost efficiencies arising from innovative product design, process
improvements, or integration of a life cycle cost approach for the
design and development of systems that minimize maintenance and
operations costs, that have not been recognized in Performance Risk or
Contract Type Risk, may merit an upward adjustment. This factor is
intended to recognize and reward improvements resulting from better
ideas and management that will benefit the Government in the contract
and/or program.

\(d\) Other considerations need not be limited to situations that
increase profit/fee levels. A negative consideration may be appropriate
when there is a significant expectation of near-term spin-off benefits
as a direct result of the contract.

**1815.404-471-5 Facilities capital cost of money.**

\(a\) When facilities capital cost of money is included as an item of
cost in the contractor's proposal, it shall not be included in the cost
base for calculating profit/fee. In addition, a reduction in the
profit/fee objective shall be made in the amount equal to the facilities
capital cost of money allowed in accordance with FAR 31.205-10(b) or 1
percent of the cost base, whichever is less.

\(b\) CAS 417, cost of money as an element of the cost of capital assets
under construction, should not appear in contract proposals. These costs
are included in the initial value of a facility for purposes of
calculating depreciation under CAS 414.

**1815.404-471-6 Modification to structured profit/fee approach for
nonprofit organizations.**

\(a\) The structured approach was designed for determining profit or fee
objectives for

commercial organizations. However, the structured approach must be used
as a basis for

arriving at profit/fee objectives for nonprofit organizations (FAR
Subpart 31.7), excluding

educational institutions (FAR Subpart 31.3), in accordance with
paragraph (b) of this section. It is NASA policy not to pay profit or
fee on contracts with educational institutions.

\(b\) For contracts with nonprofit organizations under which profit or
fee is involved, an adjustment of up to 3 percent of the costs in Block
13 of NASA Form 634 must be

subtracted from the total profit/fee objective. In developing this
adjustment, it is necessary to consider the following factors:

\(1\) Tax position benefits;

\(2\) Granting of financing through letters of credit;

\(3\) Facility requirements of the nonprofit organization; and

\(4\) Other pertinent factors that may work to either the advantage or
disadvantage of the contractor in its position as a nonprofit
organization.

1815.404-472 Payment of profit or fee under letter contracts.

NASA\'s policy is to pay profit or fee only on definitized contracts.

**1815.406 Documentation.**

**1815.406-1 renegotiation objectives.**

(b)**(i)** Before conducting negotiations requiring installation or
Headquarters review, contracting officers or their representatives shall
prepare a prenegotiation position memorandum setting forth the
technical, business, contractual, pricing, and other aspects to be
negotiated.

**(ii)** A prenegotiation position memorandum is not required for
contracts awarded under the competitive negotiated procedures of FAR
15.3 and 1815.3.

**1815.406-170 Content of the prenegotiation position memorandum.**

The prenegotiation position memorandum (PPM) should fully explain the
contractor and Government positions. Since the PPM will ultimately
become the basis for negotiation, it should be structured to track to
the price negotiation memorandum (see FAR 15.406-3 and 1815.406-3). In
addition to the information described in FAR 15.406-1 and, as
appropriate, 15.406-3(a), the PPM should address the following subjects,
as applicable, in the order presented:

\(a\) *Introduction.* Include a description of the acquisition and a
history of prior acquisitions for the same or similar items. Address the
extent of competition and its results. Identify the contractor and place
of performance (if not evident from the description of the acquisition).
Document compliance with law, regulations and policy, including JOFOC,
synopsis, EEO compliance, and current status of contractor systems (see
FAR 15.406-3(a)(4)). In addition, the negotiation schedule should be
addressed and the Government negotiation team members identified by name
and position.

\(b\) *Type of contract contemplated.* Explain the type of contract
contemplated and the reasons for its suitability.

\(c\) *Special features and requirements.* In this area, discuss any
special features (and related cost impact) of the acquisition, including
such items as \--

\(1\) Letter contract or precontract costs authorized and incurred;

\(2\) Results of preaward survey;

\(3\) Contract option requirements;

\(4\) Government property to be furnished;

(f)(2) Use of the provision (or formula) for determining the price of a
fixed price option requires advance approval by the Assistant
Administrator for Procurement (Code HS).

(f)(3)(ii) Use of a formula to determine the fee of an option in a
cost-type contract requires advance approval of the Assistant
Administrator for Procurement (Code HS). The formula shall preclude the
contractor from increasing costs for the purpose of earning additional
fee.

**1817.208 Solicitation provisions and** **contract clauses.**

(c)(3) The contracting officer shall insert a provision substantially
the same as FAR 52.217-5 in cost reimbursement contracts when the other
conditions of FAR 17.208(c) are met.

**Subpart 1817.4\--Leader Company Contracting**

**1817.401 General.**

It is NASA policy not to use the leader company contracting technique.

**Subpart 1817.5\--Interagency Acquisitions Under the Economy Act**

**1817.500 Scope of subpart.**

\(b\) See 1817.72.

**Subpart** **1817.70 \--Acquisitions with Military Departments**

**1817.7000 Scope** **of** **subpart.**

This subpart contains policies and procedures, developed jointly by NASA
and DOD, for acquisition of supplies or services by NASA from or through
the Military Departments.

**1817.7001 Authorization** **and** **policy.**

\(a\) NASA is authorized by the National Aeronautics and Space Act of
1958 (42 U.S.C. 2451 et seq.) to use the acquisition services,
personnel, equipment, and facilities of the Military Departments, with
their consent and with or without reimbursement, and, on a similar
basis, to cooperate with the Military Departments in the use of
acquisition services, equipment, and facilities.

\(b\) The Military Departments have agreed to cooperate fully with NASA
in making their acquisition services, equipment, personnel, and
facilities available on the basis of mutual agreement.

\(c\) The Military Departments have agreed not to claim reimbursement
for administrative costs incident to acquisitions for NASA, except as
may be otherwise agreed before the services are performed.

\(d\) When procuring supplies or services for NASA or performing field
service functions in support of NASA contracts, the Military Departments
have agreed to use their own methods, except when otherwise required by
the terms of the agreement involved.

\(e\) The Military Departments normally will use their own funds when
procuring supplies or services or performing services for NASA, and will
not cite NASA funds on any Defense obligation or payment document.

**1817.7002 NASA-Defense** **Purchase** **Request** **and**
**acceptance.**

\(a\) The NASA-Defense Purchase Request (NASA Form 523) shall be used by
NASA contracting offices for requesting acquisition of supplies or
services from all activities of the Military Departments. Individual
NASA-Defense Purchase Requests shall be prepared in accordance with the
instructions on the reverse of NASA Form 523 and shall be numbered in
accordance with Subpart 1804.71. The form shall not be used for
requesting \--

\(1\) Block transfers of excess property between NASA and the Military
Departments;

\(2\) Performance by the Military Departments of field service functions
related to NASA contracts; or

\(3\) Items that the Military Departments normally purchase and stock
for military use or in-house services, except when a DOD activity is
willing to accept the form for these purposes. Supplies and services of
this nature may be requisitioned using appropriate DOD forms when they
are provided by and are acceptable to or preferred by the Military
Department supplying activity or as otherwise mutually agreed upon by
the parties.

\(b\) Include a provision in accordance with 1817.7203.

\(c\) To obtain materials from the Air Force Missile Procurement Fund,
the contracting officer shall follow the procedures of 1808.002-72.

**1817.7002-1 Acceptance** **by** **Military** **Department.**

\(a\) Except as provided in paragraph (c) of this section, the Military
Department concerned will, within 30 days after receipt of a
NASA-Defense Purchase Request, forward to the initiator of the request
an Acceptance of MIPR, DD Form 448-2. Each DD Form 448-2 will show the
action being taken to fill the requirement and the name and complete
address of the DOD contracting activity.

\(b\) To the extent feasible, all documents (including acceptances,
contracts, correspondence, shipping documents, work or project orders,
and Standard Form 1080 (Voucher for Transfer between Appropriations
and/or Funds) billings) will reference the NASA-Defense Purchase Request
number and the item number.

\(c\) Acceptance by the Military Department is not required for
NASA-Defense Purchase Requests covering deliveries of common-use
standard-stock items that the supplying agency has on hand or on order
for prompt delivery at published prices.

**1817.7002-2 Changes** **in** **estimated** **total** **prices.**

When a Military Department determines that the estimated total price
(Block 7, NASA Form 523) of the items to be acquired for NASA is not
sufficient to cover the required reimbursement or is in excess of the
amount required, a request for an amendment will be forwarded to the
NASA originating office. The request will indicate a specific dollar
amount, rather than a percentage, and will include justification for any
upward adjustment requested. Upon approval of the request, the cognizant
NASA contracting office shall forward to the DOD contracting activity an
amendment to the NASA Defense Purchase Request.

**1817.7002-3 Payments.**

Except when agreements provide that reimbursement is not required,
payments to the Military Departments shall be made by NASA office
designated in block 9 of the NASA-Defense Purchase Request upon receipt
of Standard Form 1080. Billings will be supported in the same manner as
billings between Military Departments.

\(a\) The contracting officer shall insert the provision at 1852.219-73,
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 Business Subcontracting Reporting, in solicitations and contracts
containing the clause at FAR 52.219-9, except for contracts covered by
an approved commercial plan.

**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.**

\(b\) The targeted industry categories for NASA and their North American
Industry Classification System (NAICS) codes are:

  -------------- --------------------------------------------------------
  **NAICS Code** **Industry Category**

  334111         Electronic Computer Manufacturing

  334418         Printed Circuit Assembly (Electronic Assembly)
                 Manufacturing

  334613         Magnetic and Optical Recording Media Manufacturing

  334119         Other Computer Peripheral Equipment Manufacturing

  33422          Radio and Television Broadcasting and Wireless
                 Communication Equipment Manufacturing

  336415         Guided Missile and Space Vehicle Propulsion Unit and
                 Propulsion Unit Parts Manufacturing

  336419         Other Guided Missile and Space Vehicle Parts and
                 Auxiliary Equipment Manufacturing

  334511         Search, Detection, Navigation, Guidance, Aeronautical,
                 and Nautical Systems and Instrument Manufacturing

  333314         Optical Instrument and Lens Manufacturing

  541511         Custom Computer Programming Services

  541512         Computer Systems Design Services

  51421          Data Processing Services

  541519         Other Computer Related Services
  -------------- --------------------------------------------------------

**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 percent 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.

**1819.7002 Contracting officer responsibility.**

\(a\) Contracting officers must seek out as potential sources small
disadvantaged business concerns, women-owned small business concerns,
historically black colleges or universities and minority institutions,
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

PART 1825

**FOREIGN ACQUISITION**

**TABLE OF CONTENTS**

1825.003 Definitions.

1825.003-70 NASA definitions.

**SUBPART 1825.1 BUY AMERICAN ACT\--SUPPLIES**

1825.103 Exceptions

**SUBPART 1825.4 TRADE AGREEMENTS**

1825.400 Scope of subpart.

**SUBPART 1825.9 CUSTOMS AND DUTIES**

1825.901 Policy.

1825.903 Exempted supplies.

**SUBPART 1825.10 ADDITIONAL FOREIGN ACQUISITION**

**REGULATIONS**

1825.1001 Waiver of right to examination of records.

1825.1002 Use of foreign currency.

**SUBPART 1825.11 SOLICITATION PROVISIONS AND CONTRACT**

**CLAUSES**

1825.1101 Acquisition of Supplies.

1825.1103 Other provisions and clauses.

1825.1103-70 Export control.

**SUBPART 1825.70 FOREIGN CONTRACTS AND INTERNATIONAL**

**AGREEMENT CLEARANCES**

1825.7000 Scope of subpart.

1825.7001 Definition.

1825.7002 Foreign Contracts.

1825.7003 International Agreements.

**PART 1825**

**FOREIGN ACQUISITION**

**1825.003 Definitions.**

**1825.003-70 NASA definitions.**

**\"Canadian end product",** for 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 25.003 applies.

**Subpart 1825.1\--Buy American Act\--Supplies**

**1825.103 Exceptions.**

(a)**(i)** The procurement officer shall send proposed public interest
determinations to the Assistant Administrator for Procurement (Code HS)
for approval.

**(ii)** The Assistant 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 1825.003-70. Accordingly, contracting
officers must evaluate all offers for such Canadian end products on a
parity with offers for domestic end products, except that applicable
duty (whether or not a duty free entry certificate may be issued) must
be included in evaluating offers for Canadian end products.

**(iii)** The Assistant Administrator for Procurement has determined
that for procurements subject to the Trade Agreements Act, it would be
inconsistent with the public interest to apply the Buy American Act to
U.S.-made end products that are substantially transformed in the United
States.

**Subpart 1825.4\--Trade Agreements**

**1825.400 Scope of subpart.**

\(b\) The Buy American Act applies to all acquisitions of Japanese end
products or services in excess of \$2,500.

**Subpart** **1825.9\--Customs and Duties**

**1825.901 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.

**1825.903 Exempted supplies.**

\(a\) Through delegation from the Assistant Administrator for
Procurement, Procurement Officers are authorized to certify duty free
entry for articles imported into the United States, if those articles
are procured by NASA or by 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. Procurement officers shall complete the
certification set forth in 14 CFR 1217.104(a) or 1217.104(c)

(http://www.access.gpo.gov/nara/cfr/cfr-retrieve.html - page1). Upon
arrival of foreign supplies at a port of entry, the consignee, generally
the commercial carrier or its agent (import broker), will file Customs
Form 7501, Entry Summary. This form is available from Service Ports
(http://www.customs.ustreas.gov/location/ports/index.htm) or from NASA
Headquarters\' forms library
(https://extranet.hq.nasa.gov/nef/user/form_search.cfm). All duty-free
certificates must be coordinated with the center Chief Counsel.
Procurement officers must maintain a record of each certification and
make this record available for periodic review by NASA Headquarters and
the U.S. Customs Service.

**Subpart 1825.10\--Additional Foreign Acquisition Regulations**

**1825.1001 Wavier of right to examination of records.**

\(b\) The Administrator is the approval authority for waivers. The
contracting officer must submit the waiver request, consisting of the
determination and findings prescribed in FAR 25.1001(b) and any relevant
supporting information, to the Headquarters Office of Procurement (Code
HS).

**1825.1002 Use of foreign currency.**

The NASA Headquarters Comptroller (Code B) is the designated official
for making the determination of the feasibility of using excess or
near-excess currency.

**Subpart** **1825.11\--Solicitation Provisions and Contract Clause**

**1825.1101 Acquisition of supplies.**

(c)(1) NASA has determined that the restrictions of the Buy American Act
are not applicable to U.S.-made end products.

\(e\) The contracting officer must add paragraph (k) as set forth in
1852.225-8, Duty-Free Entry of Space Articles, 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 Subpart 25.9 and 1825.903.

**1825.1103 Other provisions and clauses.**

**1825.1103-70 Export control.**

\(a\) Background. (1) NASA contractors and subcontractors are subject to
U.S. export control laws and regulations, including the International
Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and
the Export Administration Regulations (EAR), 15 CFR Parts 730 through
799. The contractor is responsible for obtaining the appropriate
licenses or other approvals from the Department of State or the
Department of Commerce when it exports hardware, technical data, or
software, or provides technical assistance to a foreign destination or
\"foreign person\", as defined in 22 CFR 120.16, and there are no
applicable or available exemptions/exceptions to the ITAR/ EAR,
respectively. A person who is lawfully admitted for permanent residence
in the United States is not a \"foreign person\". (See 22 CFR 120.16 and
15 CFR 734.2(b)(2)(ii).)

\(2\) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a
contractor may export technical data without a license if the contract
between the agency and the exporter provides for the export of the data.
The clause at 1852.225-70, Alternate I, provides contractual authority
for the exemption, but the exemption is available only after the
contracting officer, or designated representative, provides written
authorization or direction enabling its use. It is NASA policy that the
exemption at 22 CFR 125.4(b)(3) may only be used when technical data
(including software) is exchanged with a NASA foreign partner pursuant
to the terms of an international agreement in furtherance of an
international collaborative effort. The contracting officer must obtain
the approval of the Center Export Administrator before granting the
contractor the authority to use this

exemption.

\(b\) Contract clause*.* Insert the clause at 1852.225-70, Export
Licenses, in all solicitations and contracts, except in contracts with
foreign entities. Insert the clause with its Alternate I when the NASA
project office indicates that technical data (including software) is to
be exchanged by the contractor with a NASA foreign partner pursuant to
an international agreement.

**Subpart 1825.70\--Foreign Contract and International Agreement
Clearances**

**1825.7000 Scope of subpart.**

This subpart prescribes policy and procedures for pre-award clearance of
foreign contracts, and for coordination of international agreements that
contemplate award of contracts using appropriated funds.

**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 contracts with domestic concerns involving work to
be performed outside the United States; or

\(b\) Contracts with the Canadian Commercial Corporation.

**1825.7002 Foreign Contracts.**

\(a\) [Policy.]{.underline} Following the procedure in paragraph (b) of
this section, the Acquisition Team must coordinate with Headquarters
before initiating any foreign contract acquisition if the acquisition is
valued above \$100,000 or involves export control issues. An acquisition
involves export control issues if it entails \--

\(1\) Importing or exporting goods or technical data from or to a
country listed in 22 CFR 126.1(a) or (d) (Subchapter M, the
International Traffic in Arms Regulations)

(http://www.pmdtc.org/reference.htm#ITAR):

\(2\) Importing or exporting Defense Articles or Defense Services on the
United States Munitions List at 22 CFR Part 121 which would 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 740, Supplements 1, Country Group D; 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.

\(b\) [Procedure.]{.underline}

\(1\) The Headquarters or field installation technical office requiring
a foreign contract acquisition meeting any of the criteria listed in
paragraph (a) of this section must submit the

following information to the Headquarters Office of External Relations
(Code I) through the contracting officer and the Headquarters Office of
Procurement (Code HS) \--

\(i\) The name of the foreign entity, the country or countries involved,
and the purpose of the contract;

\(ii\) The Space Act agreement(s) involved (pursuant to NPD1050.1), if
any;

\(iii\) A description of the goods or technical data requiring prior
written approval or the issuance of the license for their import or
export from the Departments of Commerce, State, or Treasury; and

\(iv\) The reason why the acquisition is being placed with a foreign
entity.

\(2\) All coordination required between NASA and the Departments of
Commerce, State, and Treasury regarding foreign contract acquisitions
shall be accomplished through the Headquarters Office of External
Relations (Code I).

\(3\) The lead-time for obtaining an export license is 60 to 90 days.
Requests for Headquarters clearance should be initiated as early as
possible.

**1825.7003 International Agreements.**

Office of Procurement (Code HS) concurrence is required for all
Memoranda of Understanding with foreign entities and for other types of
international agreements which contemplate the procurement of goods or
services using U.S. appropriated funds. No Code H concurrence is
required for agreements which are done solely on a cooperative basis.

***(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

***(c)*** The concurrence of the Headquarters Office of Aerospace
Technology, Commercial Technology Division (Code RC) 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) of 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.

***(c)*** Any permission granted in accordance with
1827.404(g)(3)(B)*(c)* 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 copyright
protection is considered necessary in furtherance of Agency 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.

\(i\) *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.

**1827.405 Other data rights provisions.**

(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 FAR 52.227-19.

\(c\) *Contracts awarded under the Small Busi­ness Innovative Research
(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 acquired 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.**

\(a\) *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.

**1827.408  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.**

\(a\) The contract­ing officer shall add subpara­graph (3) set forth in
1852.227-14 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).

\(c\) The contracting officer shall normally add the disclosure 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.

PART 1837

**SERVICE CONTRACTING**

# TABLE OF CONTENTS

**SUBPART 1837.1 SERVICE CONTRACTS \-- GENERAL**

1837.101 Definitions.

1837.104 Personal services contracts.

1837.110 Solicitation provisions and contract clauses.

1837.110-70 NASA solicitation provision and contract clauses.

1837.170 Pension portability.

**SUBPART 1837.2 ADVISORY AND ASSISTANCE SERVICES**

1837.203 Policy.

1837.204 Guidelines for determining availability of personnel.

**PART 1837**

**SERVICE CONTRACTING**

**Subpart 1837.1\--Service Contracts\--General**

**1837.101 Definitions.**

**"Pension portability\"** means the recognition and continuation in a
successor service contract of the predecessor service contract
employees\' pension rights and benefits.

**1837.104 Personal services contracts.**

\(b\) Section 203(c)(9) of the National Aeronautics and Space Act of
1958 (42 U.S.C. 2473(c)(9)) authorizes NASA \"to obtain services as
authorized by Section 3109 of Title 5, United States Code.\" It is NASA
policy to obtain the personal services of experts and consultants by
appointment rather than by contract. The policies, responsibilities, and
procedures pertaining to the appointment of experts and consultants are
in NPG 3300.1, Appointment of Personnel To/From NASA, Chapter 4,
Employment of Experts and Consultants.

**1837.110 Solicitation provisions and contract clauses.**

**1837.110-70 NASA solicitation provision and contract clauses.**

\(a\) The contracting officer shall insert the clause at 1852.237-70,
Emergency Evacuation Procedures, in solicitations and contracts for
on-site support services where emergency evacuations of the NASA
installation may occur, e.g., snow, hurricanes, tornadoes, earthquakes,
or other emergencies.

\(b\) The contracting officer shall insert the clause at 1852.237-71,
Pension Portability, in solicitations, contracts or negotiated contract
modifications for additional work when the procurement officer makes the
determination in 1837.170(a)(2).

**1837.170 Pension portability.**

\(a\) It is NASA\'s policy not to require pension portability in service
contracts. However, pension portability requirements may be included in
solicitations, contracts, or contract modifications for additional work
under the following conditions:

(1)(i) There is a continuing need for the same or similar services for a
minimum of five years (inclusive of options), and, if the contractor
changes, a high percentage of the predecessor contractor\'s employees
are expected to remain with the program; or

\(ii\) The employees under a predecessor contract were covered by a
portable pension plan, a follow-on contract or a contract consolidating
existing services is awarded, and the total contract period covered by
the plan covers a minimum of five years (including both the predecessor
and successor contracts); and

\(2\) The procurement officer determines in writing, with full
supporting rationale, that such a requirement is in the Government\'s
best interest. The procurement officer shall maintain a record of all
such determinations.

\(b\) When pension portability is required, the plan shall comply with
the requirements of the clause at 1852.237-71, Pension Portability, (see
1837.110-70(b)), and the contract shall also include a clear description
of the plan, including service, pay, liabilities, vesting, termination,
and benefits from prior contracts.

**Subpart 1837.2\--Advisory and Assistance Services**

**1837.203**  **Policy.**

\(c\) Advisory and assistance services of individual experts and
consultants shall normally be obtained by appointment rather than by
contract (see NPG 3300.1, Appointment of Personnel To/From NASA, Chapter
4, Employment of Experts and Consultants).

**1837.204 Guidelines for determining availability of personnel.**

(a)**(i)** Outside peer review evaluators may be used to evaluate SBIR,
STTR, NRA, AO, and unsolicited proposals without making the
determination of non-availability.

**(ii)** For all other actions, the NASA official one level above the
NASA program official responsible for the evaluation shall make the
determination, with the concurrence of the legal office. The contracting
officer shall ensure that a copy of the determination is in the contract
file prior to issuance of a solicitation.

\(b\) The official designated in paragraph (a)(ii) of this section is
responsible for the actions required in FAR 37.204(b).

\(c\) The agreement shall be made by the program official responsible
for the evaluation and the contracting officer.

\(e\) The Assistant Administrator for Procurement (Code HS) is the
approval authority for class determinations. The class determination
request shall include the assessment required by FAR 37.204(b).

\(d\) Ensuring that the selected CPSR sample to be reviewed reflects the
level of NASA business in the contractor\'s purchasing organization.

\(e\) Providing to the cognizant DCMA CPSR team leader any areas of
special emphasis regarding the contractor\'s purchasing system to ensure
that the review is tailored to address any NASA concerns.

**1844.302-71** **NASA-conducted contractor** **purchasing system
reviews.**

If a NASA activity is the cognizant contract administration office, or
after coordination with the cognizant DCMA CPSR office it is determined
that a CPSR is required but cannot be accomplished by DCMA, then a CPSR
should be conducted by NASA personnel. The NASA CPSR team leader:

\(a\) May vary the scope of review depending on the contractor and
contracts involved.

\(b\) Shall maintain close coordination with the cognizant ACO during
CPSRs at contractors under DOD cognizance.

**1844.304 Surveillance.**

**1844.304-70 Contracting officer surveillance.**

\(a\) In the period between complete CPSRs, NASA contracting officers
shall maintain a sufficient level of surveillance to ensure contractor
purchasing efforts in support of NASA contracts are accomplished in an
appropriate manner and protect the interests of the Agency.

\(b\) Surveillance shall be accomplished primarily through performance
of subcontract consent reviews. Other methods of surveillance, including
periodic reviews of contractor purchasing records, may also be
conducted. Contracting officers shall document the results of
subcontract consent reviews and periodic reviews, maintaining a record
of contractor subcontract or purchase order award performance on NASA
contracts. Contractor performance shall be summarized on an annual basis
and provided to the ACO cognizant of the contractor\'s purchasing
system. Annual reports should summarize the number of consent reviews
and other reviews conducted during the year by NASA representatives, and
summarize the types and quantity of deficiencies identified during
reviews, the need for special reviews, and recommended areas of emphasis
during future CPSRs.

**1844.305 Granting, withholding, or** **withdrawing approval.**

**1844.305-70 Review of CPSR reports.**

ACO actions related to purchasing system approval have a potential
impact on NASA contracting officer consent requirements. Accordingly,
NASA contracting officers shall review system deficiencies documented in
CPSR reports and when results of consent reviews and other sources
conflict with CPSR or DOD surveillance conclusions, formally communicate
such concerns to the ACO having cognizance of purchasing system
approval. Significant issues or significant conflicts with DOD CPSR
results should be formally referred to the Office of Procurement (Code
HS).

**1852.246-71 Government Contract Quality** **Assurance** **Functions.**

As prescribed in 1846.470, insert the following clause:

**GOVERNMENT CONTRACT** **QUALITY ASSURANCE** **FUNCTIONS**

**(OCTOBER 1988)**

In accordance with the inspection clause of this contract, the
Government intends to perform the following functions at the locations
indicated:

  ------------- -------------------------------------- ------------------
  **Item**      **Quality Assurance Location**         ** Function  **

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

\[Insert the items involving quality assurance, the quality assurance
functions, and where the functions will be performed.\]

**(End of clause)**

**1852.246-72** **Material Inspection and** **Receiving Report.**

As prescribed in 1846.674, insert the following clause:

**MATERIAL INSPECTION AND RECEIVING REPORT**

**(AUGUST 2003)**

\(a\) At the time of each delivery to the Government under this
contract, the Contractor shall furnish a Material Inspection and
Receiving Report (DD Form 250 series) prepared in [   ]{.underline}
\[Insert number of copies, including original\] copies, an original and
[   ]{.underline} copies \[Insert number of copies\].

\(b\) The Contractor shall prepare the DD Form 250 in accordance with
NASA FAR Supplement 1846.6. The Contractor shall enclose the copies of
the DD Form 250 in the package or seal them in a waterproof envelope,
which shall be securely attached to the exterior of the package in the
most protected location.

\(c\) When more than one package is involved in a shipment, the
Contractor shall list on the DD Form 250, as additional information, the
quantity of packages and the package numbers. The Contractor shall
forward the DD Form 250 with the lowest numbered package of the shipment
and print the words \"CONTAINS DD FORM 250\" on the package.

**(End of clause)**

**1852.246-73 Human Space Flight Item.**

As prescribed in 1846.370(b), insert the following clause:

**HUMAN SPACE FLIGHT ITEM**

**(MARCH 1997)**

The Contractor shall include the following statement in all subcontracts
and purchase orders placed by it in support of this contract, without
exception as to amount or subcontract level:

\"FOR USE IN HUMAN SPACE FLIGHT; MATERIALS, MANUFACTURING, AND
WORKMANSHIP OF HIGHEST QUALITY STANDARDS ARE ESSENTIAL TO ASTRONAUT
SAFETY.

IF YOU ARE ABLE TO SUPPLY THE DESIRED ITEM WITH A HIGHER QUALITY THAN
THAT OF THE ITEMS SPECIFIED OR PROPOSED, YOU ARE REQUESTED TO BRING THIS
FACT TO THE IMMEDIATE ATTENTION OF THE PURCHASER.\"

**(End of clause)**

**1852.247-71 Protection of the Florida** **Manatee.**

As prescribed in 1847.7001, insert the following clause:

**PROTECTION OF THE FLORIDA MANATEE**

**(MARCH 1989)**

\(a\) Pursuant to the Endangered Species Act of 1973 (Pub. L. 93-205),
as amended, and the Marine Mammals Protection Act of 1972 (Pub. L.
92-522), the Florida Manatee (Trichechus Manatus) has been designated an
endangered species, and the Banana and Indian Rivers within and adjacent
to NASA\'s Kennedy Space Center (KSC) have been designated as a critical
habitat of the Florida Manatee.

\(b\) Contractor personnel involved in vessel operations, dockside work,
and selected disassembly functions shall be provided training relative
to (1) habits and characteristics of the Florida Manatee, (2) provisions
of the applicable laws, (3) personal liability of workers under the
laws, and (4) operational restrictions imposed by KSC.

\(c\) All vessel operations shall be conducted within the posted speed
restrictions, and vessels shall be operated at minimum controllable
speeds in all KSC waters. Shallow-water operations are prohibited.

\(d\) Training will be conducted by personnel of the U.S. Fish and
Wildlife Service (USFWS). The contractor agrees to cooperate with the
USFWS by allowing access at reasonable times and places (including
shipboard) to USFWS personnel, and by making available such contractor
personnel as are required to have the training. Arrangements for
training will be made as follows:

\(1\) For personnel involved in tug, barge, or marine operations,
through the Lockheed Space Operations Contractor, Transportation
Coordination Center, Kennedy Space Center, Florida, telephone (407)
867-5330.

\(2\) For all other personnel, through the Systems Training and Employee
Development Branch, Code PM-TNG, telephone (407) 867-2737.

\(e\) The contractor shall incorporate the provisions of this clause in
applicable subcontracts (including vendor deliveries).

**(End of clause)**

**1852.247-72** **Advance Notice of** **Shipment.**

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

**ADVANCE NOTICE OF SHIPMENT**

**(OCTOBER 1988)**

[        ]{.underline} \[Insert number of work days\] work days prior to
shipping item(s) [      ]{.underline} \[Insert items to be shipped\],
the Contractor shall furnish the anticipated shipment date, bill of
lading number (if applicable), and carrier identity to
[                ]{.underline} \[Insert individual(s) to receive
notification\] and to the Contracting Officer.

**(End of clause)**

**1852.247-73** **Bills of Lading.**

As prescribed in 1847.305-70(b), insert a clause substantially as
follows:

**BILLS OF LADING**

(JUNE 2002)