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

National Aeronautics and

Space Administration

Washington, DC 20546

##  PN 97-90

###  October 31, 2003

# CONFORMANCE WITH FEDERAL ACQUISITION CIRCULARS 2001-15

# AND 2001-14

***PURPOSE:*** This PN revises the NASA FAR Supplement (NFS) to conform
to changes made to the Federal Acquisition Regulation (FAR) by Federal
Acquisition Circular (FAC) 2001-15 by providing guidance to contracting
officers for use of clause alternates to implement environmental
management system (EMS) requirements on NASA facilities and removing the
requirement for submission of SF 129, Solicitation Mailing List
Application. Additional changes are made to conform to the revised
definition of "United States" contained in FAC 2001-14 and to update the
designated NASA ombudsman.

***BACKGROUND:*** Item I of FAC 2001-15 eliminated the SF 129,
Solicitation Mailing List Application and the need to maintain
paper-based sources of contractor information. As a result, a change to
NFS Part 1805 is required. FAC 2001-15, item number V, Leadership in
Environmental Management (E.O. 13148), requires insertion of Alternates
I or II to FAR clause 52.223-5, Pollution Prevention and Right-to-Know
Information, in certain contracts that provide for performance on a
Federal facility if an Environmental Management System (EMS) is being
implemented. NASA is implementing an EMS. This PN implements FAC 2001-15
item number V by providing guidance on when to use the alternates. FAC
2001-14, clarified the use of the term "United States." NFS section
1825.7001 is amended to remove the phrase " its possessions, and Puerto
Rico" since it is no longer necessary based on the definition of "United
States" contained in FAR Part 25. Lastly, this PN updates the designated
NASA ombudsman.

***ACQUISITIONS AFFECTED BY CHANGES:*** New solicitations and contracts.

***ACTION REQUIRED BY CONTRACTING OFFICERS:***

52.223-5 Pollution Protection and Rights-to-Know Information \-- Use
appropriate Alternate for facility operations after consultation with
center facility environmental office, if necessary.

1852.215-84 Ombudsman \-- Use the revised clause in all solicitations
and contracts issued on or after October 21, 2003.

***CLAUSE CHANGES:*** Clause 1852.215-84 is revised to update the
designated NASA ombudsman.

***PARTS AFFECTED:*** Changes are made in Parts 1805, 1823, 1825, and
1852.

***REPLACEMENT PAGES:*** You may use the enclosed pages to replace Part
1805, Part 1823, 25:3, 25:4, 52:11 through 52:14, 52-91, and 52-92 of
the NASA FAR Supplement.

***TYPE OF RULE AND PUBLICATION DATE:*** The PN was published as a final
rule in the Federal Register (68 FR 62022 - 62023) on October 31, 2003.

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

James A. Balinskas

Director, Contract Management Division

Enclosures

DISTRIBUTION:

**PN List**

PART 1805

PUBLICIZING CONTRACT ACTIONS

**TABLE OF CONTENTS**

**SUBPART 1805.1 DISSEMINATION OF INFORMATION**

1805.101 Methods of disseminating information.

**SUBPART 1805.2 SYNOPSES OF PROPOSED CONTRACTS**

1805.207 Preparation and transmittal of synopses.

1805.207-70 Synopses of Architect-Engineer Services and Federal
Information

Processing Resources.

**SUBPART 1805.3 SYNOPSES OF CONTRACT AWARDS**

1805.303 Announcement of contract awards.

1805.303-70 NASA Headquarters public announcement.

1805.303-71 Administrator's notice of significant contract actions
(ANOSCAs).

#### SUBPART 1805.4 RELEASE OF INFORMATION

1805.402 General public.

1805.403 Requests from Members of Congress.

#### SUBPART 1805.5 PAID ADVERTISEMENTS

1805.502 Authority.

**PART 1805**

**PUBLICIZING CONTRACT ACTIONS**

# Subpart 1805.1\--Dissemination of Information

**1805.101 Methods of disseminating information.**

(b)(4) For NASA policy regarding paid advertisements, see 1805.502.

# Subpart 1805.2\--Synopses of Proposed Contracts

**1805.207 Preparation and transmittal of synopses.**

\(a\) Synopses shall be transmitted in accordance with 1804.570.

**1805.207-70 Synopses of Architect-Engineer Services and Federal
Information Processing Resources.**

\(a\) *Architect-Engineer Services.*

\(1\) Each notice publicizing the acquisition of architect-engineer
services shall be headed *\"C. Architect-Engineer Services.\"*

\(2\) In addition to meeting the requirements of FAR 5.207(c), the
project description shall\--

\(i\) State the relative importance the Government attaches to the
significant evaluation criteria and the date by which responses to the
notice must be received, including submission of Standard Form 255,
Architect-Engineer and Related Services Questionnaire for Specific
Project, if required;

\(ii\) Describe any specialized qualifications, security
classifications, and limitations on eligibility for consideration;

\(iii\) Describe qualifications or performance data required from
architect-engineer firms; and

\(iv\) If the acquisition is to be set aside for small business, state
this fact, indicating the specific size standard to be used and
requiring that eligible responding firms submit a small business
representation.

\(3\) Contracting officers shall add at the end of the synopsis:

See Note 24. Provisions of Note 24 apply to this notice except that (a)
in the sentence beginning \"Selection of firms for negotiations,\" the
fourth additional consideration listed is changed to read: \"(4) past
experience, if any, of the firm with respect to performance on contracts
with NASA, other Government agencies, and private industry;\" and (b) in
the last sentence, \"National Aeronautics and Space Administration\" is
substituted for \"Department of Defense.\"

\(b\) **Federal Information Processing (FIP) Resources***.*

\(1\) When total requirement quantities are expected to satisfy the
needs of only a single field installation, each notice publicizing the
acquisition of FIP resources under an indefinite delivery/indefinite
quantity contract or under a contract that includes options for
additional quantities of such resources shall include the following:

The \_\_­­­­­­­­\_\_­­­­\_ (identify contracting activity) is the primary delivery
point for the items described in this synopsis. However, NASA may order
delivery to the following alternate locations:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(List other NASA installations and their locations).

\(2\) When the contemplated contract will authorize orders from
locations other than the awarding installation, the notice shall fully
describe the ordering scope.

# Subpart 1805.3\--Synopses of Contract Awards

**1805.303 Announcement of contract awards.**

(a)**(i)** In lieu of the \$3 million threshold cited in FAR 5.303(a),
NASA Headquarters public announcement is required for award of contract
actions that have a total anticipated value,

excluding unexercised options, of \$25 million or greater. This
threshold applies to new awards, contract modifications, and option
exercises, but not to incremental funding or cost overrun modifications.

**(A)** For undefinitized contract actions, the not-to-exceed (NTE) or
ceiling price value is the face value.

**(B)** For indefinite delivery, time and material, labor hour, and
similar contracts, the estimated amount of the basic contract is the
face value. Individual orders up to the face value shall not be
announced regardless of value. However, after the face value is reached,
any subsequent modifications or orders of \$25 million or greater must
be announced.

**(ii)** NASA Headquarters public announcement is also required for
award of a contract action with a value of less than \$25 million if the
contracting officer believes it to have Agency public information
implications.

**(iii)** Contractual instruments requiring Headquarters public
announcement shall not be distributed nor shall any source outside NASA
be notified of their status until the public announcement procedures in
1805.303-70 have been completed.

**1805.303-70 NASA Headquarters public announcement.**

\(a\) For those contract actions requiring Headquarters public
announcement in accordance with 1805.303, the contracting officer shall
furnish a draft news release including the following information,
through the installation Public Affairs Office, via facsimile
transmission to the Headquarters Office of Public Affairs, News and
Imaging Branch (Code PM):

\(1\) A brief description of the work, including identification of the
program and project;

\(2\) Identification of the contract action as either a new contract or
additional work or services under an existing contract;

\(3\) Contract type. For undefinitized contract actions, identify the
planned contract type of the definitized instrument;

\(4\) The dollar amount authorized for the instant action and the
estimated total cost of the contract if this is different. For
undefinitized contract actions, indicate the NTE or ceiling price
amount;

\(5\) Name and address (including zip code) of the contractor;

\(6\) Principal work performance locations;

\(7\) Names and addresses of any unsuccessful offerors.

\(b\) The information in paragraph (a) of this section shall be provided
to Code PM before transmitting a letter contract to a contractor for
signature. For actions other than letter contracts, the information
should be transmitted to Code PM after contractor signature, if
applicable, no later than 48 hours before the planned award.

\(c\) For contract actions requiring Headquarters approval in accordance
with 1804.72, the draft news release required by paragraph (a) of this
section shall be provided to the Headquarters Office of Procurement
(Code HS) with the request for approval. Code HS will forward the
information to Code PM after approval.

\(d\) Code PM will advise the installation Public Affairs Office of the
date public announcement of the contract action will be made.
Installations may proceed with award and local release of the
information no earlier than 4:00 P.M. ET of the date Code PM makes
public announcement. If earlier award is considered appropriate,
installations must request authorization from the Assistant
Administrator for Procurement (Code HS).

**1805.303-71 Administrator's notice of significant contract actions
(ANOSCAs).**

\(a\) In addition to the public announcement requirements described in
1805.303-70, contracting officers shall notify the Administrator of the
following significant actions at least five (5) workdays prior to
planned public announcement of the actions:

\(1\) Planned contract award for competitive acquisitions of \$25
million or more, including all priced options.

\(2\) Planned contract award of non-competitive awards and new work
modifications of \$100 million or more, including all priced options.

\(3\) Planned award of other actions, to include cooperative agreements
resulting from a Cooperative Agreement Notice (CAN), at any dollar value
thought to be of significant interest to Headquarters.

\(b\) To provide notification to the Administrator, the contracting
officer shall send the information listed in paragraphs (b)(1)-(10) of
this section to the Headquarters Office of Procurement (Code HS) via
facsimile transmission (202-358-4065). Immediately prior to
transmission, the contracting officer shall notify Code HS by telephone
of the impending transmission. In accordance with FAR 3.104-5(c), the
contracting officer shall mark all pages that include source selection
information with the legend \"SOURCE SELECTION INFORMATION - SEE FAR
3.104.\" The following information shall be sent:

\(1\) Title and a brief nontechnical description of the work, including
identification of the program or project;

\(2\) Identification of the contract action as either a new contract or
additional supplies or services under an existing contract;

\(3\) Contract type (including whether a cost contract is completion or
level-of-effort). For undefinitized contract actions, identify the
planned contract type of the definitized instrument;

\(4\) The total contract value for the instant action including all
priced options. Also include the Government\'s most probable cost. For
undefinitized contract actions, indicate the NTE or ceiling price
amount;

\(5\) The name, address, and business size status of the prime
contractor and each major (over \$1M) subcontractor;

\(6\) Small business and small disadvantaged business subcontracting
goals both in dollars and percentage of the value of the action
including all options;

\(7\) Principal work performance locations;

\(8\) Brief description of any unusual circumstances;

\(9\) The names and telephone numbers of the contracting officer and
project manager; and

\(10\) [For competitive selections only]{.underline}, provide on a
separate attachment the names and addresses of all unsuccessful offerors
and a brief explanation of the general basis for the selection.

\(c\) The field installation shall not proceed with any awards or
announcements until Code HS has advised that the Administrator has been
notified of the proposed action and the supporting information. Once
this advice is received from Code HS, the field installation shall
proceed with the public announcement procedures described in
1805.303-70.

# Subpart 1805.4\--Release of Information

**1805.402 General public.**

**(1)** Unless the head of the contracting activity determines that
disclosure would be prejudicial to the interests of NASA, the following
information on NASA acquisitions may be released:

**(i)** The names of firms invited to submit offers, and

**(ii)** The names of firms that attended any pre-bid or pre-proposal
conferences.

**(2)** Other requests for information under the Freedom of Information
Act shall be processed in accordance with FAR 24.2 and 1824.2.

**1805.403 Requests from Members of Congress.**

\(a\) All proposed replies to congressional inquiries shall be prepared
and forwarded, with full documentation, to the Headquarters Office of
Legislative Affairs (Code L) for approval and release.

# Subpart 1805.5\--Paid Advertisements

**1805.502 Authority.**

Use of paid advertisements for procurement purposes (except CBD
announcements) is not authorized in NASA.

PART 1823\
ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES,
OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

**TABLE OF CONTENTS**

## 

## SUBPART 1823.2 ENERGY AND WATER EFFICIENT AND

##  RENEWABLE ENERGY

1823.203 Energy-efficient products.

1823.270 Federal fleet and transportation efficiency.

1823.271 NASA Solicitation provision and contract clause.

**SUBPART 1823.3** **HAZARDOUS MATERIAL IDENTIFICATION AND**\
**                                          MATERIAL SAFETY DATA**\
1823.370                Acquisition of potentially hazardous items from
or through\
                                          another Government agency.

## SUBPART 1823.4 USE OF RECOVERED MATERIALS

1823.404 Agency affirmative procurement programs.

**SUBPART 1823.5  DRUG-FREE WORKPLACE**\
1823.570 Drug-and alcohol-free workforce.\
1823.570-1             Scope.\
1823.570-2             Definitions.\
1823.570-3             Contract clause.\
1823.570-4             Suspension of payments, termination of contract,
and\
                                          debarment and suspension
actions.

## SUBPART 1823.7 CONTRACTING FOR ENVIRONMENTALLY

##  PREFERABLE PRODUCTS AND SERVICES 

1823.703 Policy.

SUBPART 1823.10 FEDERAL COMPLIANCE WITH RIGHT-TO-KNOW

LAWS AND POLLUTION PREVENTION

REQUIREMENTS

1005. 1823.1005 Contract clause.

**SUBPART 1823.70   SAFETY AND HEALTH**\
1823.7001 NASA solicitation provisions and contract clauses.

**SUBPART 1823.71  FREQUENCY AUTHORIZATION**\
1823.7101              Contract clause.\
1823.7102              Procedures.

PART 1823\
ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES,
OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

## Subpart 1823.2\--Energy and Water Efficiency and Renewable Energy

1823.203 Energy-efficient products.

Responsibility, policy and procedures for NASA's implementation of FAR
23.203, including cost-effectiveness, are described in NPG 8570.1,
"Energy Efficiency and Water Conservation Technologies and Practices."

**1823.270 Federal fleet and transportation efficiency.**

Responsibility, policy and procedures for NASA's implementation of
Executive Order 13149, "Greening the Government through Federal Fleet
and Transportation Efficiency", including cost-effectiveness, are
described in NPG 6200.1, "NASA Transportation and General Traffic
Management."

**1823.271 NASA Solicitation provision and contract clause.**

Insert the clause at 1852.223-76, Federal Automotive Statistical Tool
Reporting, in solicitations and contracts requiring contractor operation
of Government-owned or --leased motor vehicles, including, but not
limited to, interagency fleet management system (IFMS) vehicles
authorized in accordance with FAR 51.2.

Subpart 1823.3\--Hazardous Material Identification\
and Material Safety Data

**1823.370**  **Acquisition of** **potentially** **hazardous** **items**
**from or through another** **Government** **agency.**\
When acquiring supplies or services from or through another Government
agency (e.g., see FAR Part 8 and FAR Subpart 17.5), NASA shall request
that agency to furnish NASA the data required by FAR Subpart 23.3.

## Subpart 1823.4\--Use of Recovered Materials

1823.404 Agency affirmative procurement programs.

NASA's affirmative procurement program is described in the Affirmative
Procurement Plan for Environmentally Preferable Products (NPG 8830.1).

**Subpart ****1823.5\--Drug-Free Workplace**

**1823.570  Drug-and alcohol-free workforce.**

**1823.570-1  Scope.**\
Sections 1823.570 to 1823.570-4 set forth NASA requirements for
mandatory drug and alcohol testing of certain contractor personnel under
section 203, National Aeronautics and Space Act of 1958, as amended, 42
U.S.C. 2473, 72 Stat. 429; and Civil Space Employee Testing Act of 1991,
Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619.

**1823.570-2  Definitions.**\
As used in this subpart **employee** and **controlled substance** are as
defined in FAR 23.503. The use of a controlled substance in accordance
with the terms of a valid prescription, or other uses authorized by law
shall not be subject to the requirements of 1823.570 to 1823.570-4 and
the clause at 1852.223-74.\
**  \"Employee in a sensitive position\"** means a contractor or
subcontractor employee who has been granted access to classified
information; a contractor or subcontractor employee in other positions
that the contractor or subcontractor determines could reasonably be
expected to affect safety, security, National security, or functions
other than the foregoing requiring a high degree of trust and
confidence; and includes any employee performing in a position
designated \"mission critical\" pursuant to the clause at 1852.246-70.
The term also includes any applicant who is interviewed for a position
described in this paragraph.\
**  \"Use, in violation of applicable law or Federal regulation, of
alcohol\"** includes having, while on duty or during a preemployment
interview, an alcohol concentration of 0.04 percent by weight or more in
the blood, as measured by chemical test of the individual\'s breath or
blood. An individual\'s refusal to submit to such test is presumptive
evidence of use, in violation of applicable law or Federal regulation,
of alcohol.

**1823.570-3  Contract clause.**\
  The contracting officer shall insert the clause at 1852.223-74,
\"Drug- and Alcohol-Free Workforce,\" in all solicitations and contracts
containing the clause at 1852.246-70, \"Mission Critical Space Systems
Personnel Reliability Program,\" and in other solicitations and
contracts exceeding \$5 million in which work is performed by an
employee in a sensitive position. However, the contracting officer shall
not insert the clause at 1852.223-74 in solicitations and contracts for
commercial items (see FAR Parts 2 and 12).

**1823.570-4  Suspension of payments, termination of contract, and
debarment** **and suspension actions.**\
The contracting officer shall comply with the procedures of FAR 23.506
regarding the suspension of contract payments, the termination of the
contract for default, and debarment and suspension of a contractor
relative to failure to comply with the clause at 1852.223-74. Causes for
suspension of contract payments, termination of the contract for
default, and debarment and suspension of the contractor are the
following:

(a) The contractor fails to comply with paragraph (b), (c), or (d) of
the clause at 1852.223-74; or\
  (b) Such a number of contractor employees in sensitive positions
having been convicted of violations of criminal drug statutes or
substantial evidence of drug or alcohol abuse or misuse occurring in the
workplace, as to indicate that the contractor has failed to make a good
faith effort to provide a drug- and alcohol-free workforce.

## Subpart 1823.7\--Contracting for Environmentally Preferable Products and Services

1823.703 Policy.

Responsibility, policy and procedures for NASA's implementation of FAR
23.703 is described in NPG 8570.1, "Energy Efficiency and Water
Conservation Technologies and Practices".

Subpart 1823.10\--Federal Compliance with Right-to-Know Laws and
Pollution

Prevention Requirements

1823.1005 Contract clause.

\(b\) Use the clause with its Alternate I if the contract provides for
contractor --

\(1\) Operation or maintenance of a NASA facility at which NASA has
implemented or plans to implement an EMS, including, but not limited to
the Jet Propulsion Laboratory and Michoud Assembly Facility; or

> \(2\) Activities and operations --
>
> \(ii\) The contracting officer and the procurement request initiator
> shall determine whether the contractor's activities or operations are
> covered within the EMS, in cooperation with the facility's
> environmental office, and in accordance with NPG 8553.1, "NASA
> Environmental Management System (EMS)" paragraph 1.2.c, and the local
> EMS documented procedures.

\(c\) Use the clause with its Alternate II whenever Alternate I is used.

**Subpart ****1823.70\--Safety and Health**

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

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

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

\(3\) The work, regardless of place of performance, involves hazards
that could endanger the public, astronauts and pilots, the NASA
workforce (including contractor employees working on NASA contracts), or
high value equipment or property, and the hazards are not adequately
addressed by Occupational Safety and Health Administration (OSHA) or
Department of Transportation (DOT) regulations (if applicable).

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

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

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

\(d\) The contracting officer shall insert the clause at 1852.223-75,
Major Breach of Safety or Security, in all solicitations and contracts
with estimated values of \$500,000 or more, unless

waived at a level above the contracting officer with the concurrence of
the project manager and the installation official(s) responsible for
matters of security, export control, safety, and occupational health. 
For other contracts, use of the clause is optional.

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

**Subpart ****1823.71\--Frequency Authorization**

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

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

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 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

**1852.215-77 Preproposal/Pre-bid Conference.**

As prescribed in 1815.209-70(a), insert the following provision:

**PREPROPOSAL/PRE-BID CONFERENCE**

**(DECEMBER 1988)**

\(a\) A preproposal/pre-bid conference will be held as indicated below:

Date:

Time:

Location:

Other Information, as applicable:

\[Insert the applicable conference information.\]

\(b\) Attendance at the preproposal/pre-bid conference is recommended;
however, attendance is neither required nor a prerequisite for
proposal/bid submission and will not be considered in the evaluation.

**(End of provision)**

**1852.215-78 Make or Buy Program Requirements.**

As prescribed in 1815.408-70(a), insert the following provision:

**MAKE OR BUY PROGRAM REQUIREMENTS**

**(FEBRUARY 1998)**

The offeror shall submit a Make-or-Buy Program in accordance with the
requirements of Federal Acquisition Regulation (FAR) 15.407-2. The
offeror shall include the following supporting documentation with its
proposal:

\(a\) A description of each major item or work effort.

\(b\) Categorization of each major item or work effort as \"must make,\"
\"must buy,\" or \"can either make or buy.\"

\(c\) For each item or work effort categorized as \"can either make or
buy,\" a proposal either to \"make\" or \"buy.\"

\(d\) Reasons for (i) categorizing items and work effort as \"must
make\" or \"must buy\" and (ii) proposing to \"make\" or \"buy\" those
categorized as \"can either make or buy.\" The reasons must include the
consideration given to the applicable evaluation factors described in
the solicitation and be in sufficient detail to permit the Contracting
Officer to evaluate the categorization and proposal.

\(e\) Designation of the offeror\'s plant or division proposed to make
each item or perform each work effort and a statement as to whether the
existing or proposed new facility is in or near a labor surplus area.

\(f\) Identification of proposed subcontractors, if known, and their
location and size status.

\(g\) Any recommendations to defer make-or-buy decisions when
categorization of some items or work efforts is impracticable at the
time of submission.

**(End of provision)**

**1852.215-79 Price Adjustment for \"Make-or-Buy\" Changes.**

As prescribed in 1815.408-70(b), insert the following clause:

**PRICE ADJUSTMENT FOR \"MAKE-OR-BUY\" CHANGES**

**(DECEMBER 1988)**

The following make-or-buy items are subject to the provisions of
paragraph (d) of the clause at FAR 52.215-21, Change or Additions to
Make-or-Buy Program, of this contract:

+--------------------------------+-------------------------------------+
| ITEM                           | MAKE-OR-BUY                         |
|                                |                                     |
| DESCRIPTION                    | DETERMINATION                       |
+--------------------------------+-------------------------------------+
|                                |                                     |
+--------------------------------+-------------------------------------+
|                                |                                     |
+--------------------------------+-------------------------------------+

**(End of clause)**

**1852.215-81 Proposal Page Limitations.**

As prescribed in 1815.209-70(d), insert the following provision:

**PROPOSAL PAGE LIMITATIONS**

**(FEBRUARY 1998)**

\(a\) The following page limitations are established for each portion of
the proposal submitted in response to this solicitation.

+------------------------------------+---------------------------------+
| # Proposal Section                 | # Page Limit                    |
|                                    |                                 |
| (List each volume or section)      | (Specify limit)                 |
+------------------------------------+---------------------------------+
|                                    |                                 |
+------------------------------------+---------------------------------+
|                                    |                                 |
+------------------------------------+---------------------------------+
|                                    |                                 |
+------------------------------------+---------------------------------+
|                                    |                                 |
+------------------------------------+---------------------------------+

\(b\) A page is defined as one side of a sheet, 8 1/2\" x 11\", with at
least one inch margins on all sides, using not smaller than 12 point
type. Foldouts count as an equivalent number of 8 1/2\" x 11\" pages.
The metric standard format most closely approximating the described
standard 8 1/2\" x 11\" size may also be used.

\(c\) Title pages and tables of contents are excluded from the page
counts specified in paragraph (a) of this provision. In addition, the
Cost section of your proposal is not page limited. However, this section
is to be strictly limited to cost and price information. Information
that can be construed as belonging in one of the other sections of the
proposal will be so construed and counted against that section\'s page
limitation.

\(d\) If final revisions are requested, separate page limitations will
be specified in the Government\'s request for that submission.

\(e\) Pages submitted in excess of the limitations specified in this
provision will not be evaluated by the Government and will be returned
to the offeror.

**(End of provision)**

**1852.215-84 Ombudsman.**

As prescribed in 1815.7003, insert the following clause:

**OMBUDSMAN**

**(OCTOBER 2003)**

\(a\) An ombudsman has been appointed to hear and facilitate the
resolution of concerns from offerors, potential offerors, and
contractors during the preaward and postaward phases of this
acquisition. When requested, the ombudsman will maintain strict
confidentiality as to the source of the concern. The existence of the
ombudsman is not to diminish the authority of the contracting officer,
the Source Evaluation Board, or the selection official. Further, the
ombudsman does not participate in the evaluation of proposals, the
source selection process, or the adjudication of formal contract
disputes. Therefore, before consulting with an ombudsman, interested
parties must first address their concerns, issues, disagreements, and/or
recommendations to the contracting officer for resolution.

\(b\) If resolution cannot be made by the contracting officer,
interested parties may contact the installation ombudsman, \[Insert
name, address, telephone number, facsimile number, and e-mail address\].
Concerns, issues, disagreements, and recommendations which cannot be
resolved at the installation may be referred to the NASA ombudsman, the
Director of the Contract Management Division, at 202-358-0445, facsimile
202-358-3083, e-mail james.a.balinskas@nasa.gov. Please do not contact
the ombudsman to request copies of the solicitation, verify offer due
date, or clarify technical requirements. Such inquiries shall be
directed to the Contracting Officer or as specified elsewhere in this
document.

**(End of clause)**

**ALTERNATE I**

**(JUNE 2000)**

As prescribed in 1815.7003, insert the following paragraph (c):

\(c\) If this is a task or delivery order contract, the ombudsman shall
review complaints from contractors and ensure they are afforded a fair
opportunity to be considered, consistent with the procedures of the
contract.

**(End of clause)**

**1852.216-73 Estimated Cost and Cost** **Sharing.**

As prescribed in 1816.307-70(a), insert the following clause:

**ESTIMATED COST AND COST SHARING**

**(DECEMBER 1991)**

\(a\) It is estimated that the total cost of performing the work under
this contract will be

\$ [           ]{.underline}.

\(b\) For performance of the work under this contract, the Contractor
shall be reimbursed for not more than [     ]{.underline} percent of the
costs of performance determined to be allowable under the Allowable Cost
and Payment clause. The remaining [     ]{.underline} percent or more of
the costs of performance so determined shall constitute the
Contractor\'s share, for which it will not be reimbursed by the
Government.

\(c\) For purposes of the [      ]{.underline} \[insert \"Limitation of
Cost\" or \"Limitation of Funds\"\] clause, the total estimated cost to
the Government is hereby established as \$[      ]{.underline} (insert
estimated Government share); this amount is the maximum Government
liability.

\(d\) The Contractor shall maintain records of all contract costs
claimed by the Contractor as constituting part of its share. Those
records shall be subject to audit by the Government. Costs contributed
by the Contractor shall not be charged to the Government under any other
grant, contract, or agreement (including allocation to other grants,
contracts, or agreements as part of an independent research and
development program).

**(End of clause)**

**1852.216-74 Estimated Cost and Fixed** **Fee.**

As prescribed in 1816.307-70(b), insert the following clause:

**ESTIMATED COST AND FIXED FEE**

**(DECEMBER 1991)**

The estimated cost of this contract is  [        ]{.underline} exclusive
of the fixed fee of [        ]{.underline} . The total estimated cost
and fixed fee is [          ]{.underline} .

**(End of clause)**

**1852.216-75** **Payment** **of** **Fixed Fee.**

As prescribed in 1816.307-70(c), insert the following clause:

**PAYMENT OF FIXED FEE**

**(DECEMBER 1988)**

The fixed fee shall be paid in monthly installments based upon the
percentage of completion of work as determined by the Contracting
Officer.

**(End of clause)**

**1852.216-76 Award Fee for Service Contracts.**

As prescribed in 1816.406-70(a), insert the following clause:

**AWARD FEE FOR SERVICE CONTRACTS**

**(JUNE 2000)**

\(a\) The contractor can earn award fee from a minimum of zero dollars
to the maximum stated in NASA FAR Supplement clause 1852.216-85,
\"Estimated Cost and Award Fee\" in this contract.

\(b\) Beginning 6\* months after the effective date of this contract,
the Government shall evaluate the Contractor\'s performance every 6\*
months to determine the amount of award fee earned by the contractor
during the period. The Contractor may submit a self-evaluation of
performance for each evaluation period under consideration. These
self-evaluations will be considered by the Government in its evaluation.
The Government\'s Fee Determination Official (FDO) will determine the
award fee amounts based on the Contractor\'s performance in accordance
with [\[identify performance evaluation plan\]]{.underline}. The plan
may be revised unilaterally by the Government prior to the beginning of
any rating period to redirect emphasis.

\(c\) The Government will advise the Contractor in writing of the
evaluation results. The [\[insert payment office\]]{.underline} will
make payment based on [\[Insert method of authorizing award fee payment,
e.g., issuance of unilateral modification by contracting
officer\]]{.underline}.

\(d\) After 85 percent of the potential award fee has been paid, the
Contracting Officer may direct the withholding of further payment of
award fee until a reserve is set aside in an amount that the Contracting
Officer considers necessary to protect the Government\'s interest. This
reserve shall not exceed 15 percent of the total potential award fee.

\(e\) The amount of award fee which can be awarded in each evaluation
period is limited to the amounts set forth at [\[identify location of
award fee amounts\]]{.underline}. Award fee which is not earned in an
evaluation period cannot be reallocated to future evaluation periods.

(f)(1)Provisional award fee payments [\[insert "will" or \"will not\",
as applicable\]]{.underline} be made under this contract pending the
determination of the amount of fee earned for an evaluation period. If
applicable, provisional award fee payments will be made to the
Contractor on a [\[insert the frequency of provisional payments (not
more often than monthly)\]]{.underline} basis. The total amount of award
fee available in an evaluation period that will be provisionally paid is
the lesser of \[Insert a percent not to exceed 80 percent\] or the prior
period\'s evaluation score.