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

National Aeronautics and

Space Administration

Washington, DC 20546

##  PN 04-13

###  February 22, 2006

# SAFETY AND HEALTH -- ALTERNATE I TO MAJOR BREACH OF SAFETY OR SECURITY CLAUSE

***BACKGROUND***: This PN revises the NASA FAR Supplement (NFS) to add
Alternate I to the "Major Breach of Safety or Security" clause.
Alternate I deletes references to termination for default and makes
other changes to be consistent with the FAR termination clauses
prescribed for use with educational or nonprofit institutions performing
research and development work on a nonprofit or no-fee basis, and in
contracts for commercial items.

***ACQUISITIONS AFFECTED BY CHANGES*:** Solicitations and contracts of
\$500,000 or more when the contract is --

\(1\) For a commercial item; or

\(2\) With an educational or other nonprofit institution and contains
the clause at FAR 52.249-5.

***ACTION REQUIRED BY CONTRACTING OFFICERS*:** Insert the clause at
1852.223-75 with its Alternate I in solicitations and contracts in
accordance with the prescription at 1823.7001(d)(2).

***CLAUSE CHANGES*:** Clause 1852.223-75 is revised to add Alternate I.

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

***REPLACEMENT PAGES*:** You may use the enclosed pages to replace 23:3,
23:4, 23:5, 52:43, 52:44, 52:45, 52:46 (added), 52-117, and 52-118 of
the NFS.

***CANCELLATION:*** PIC 02-11 is hereby cancelled.

***TYPE OF RULE AND PUBLICATION DATE*:** The PN was published as a final
rule in the Federal Register (71 FR 8989 - 8990) on February 22, 2006.

***HEADQUARTERS CONTACT*:** Carl Weber, Contract Management Division,
(202) 358-1784, email: carl.c.weber@nasa.gov.

Lou Becker

Acting Director, Contract Management Division

**DISTRIBUTION:**

**PN List**

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 1823.570-3 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.

**1823.570-2 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).

**1823.570-3 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 NPR 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 NPR 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)(1)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.

\(2\) Insert the clause with its Alternate I if --

\(i\) The solicitation or contract is with an educational or other
nonprofit institution and contains the termination clause at FAR
52.249-5; or

\(ii\) The solicitation or contract is for commercial items and contains
the clause at FAR 52.212-4.

\(3\) For contracts with estimated values below \$500,000, 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.

employees in sensitive positions for use, in violation of applicable law
or Federal regulation, of alcohol or a controlled substance. The
Contractor may establish its testing or rehabilitation program in
cooperation with other contractors or organizations.

\(2\) This clause neither prohibits nor requires the Contractor to test
employees in a foreign country. If the Contractor chooses to conduct
such testing, this clause does not authorize the Contractor to violate
foreign law in conducting such testing.

\(3\) The Contractor\'s program shall test for the use of marijuana and
cocaine. The Contractor\'s program may test for the use of other
controlled substances.

\(4\) The Contractor\'s program shall conform to the \"Mandatory
Guidelines for Federal Workplace Drug Testing Programs\" published by
the Department of Health and Human Services (59 FR 29908, June 9, 1994)
and the procedures in 49 CFR part 40, \"Procedures for Transportation
Workplace Drug Testing Programs,\" in which references to \"DOT\" shall
be read as \"NASA\", and the split sample method of collection shall be
used.

(c)(1) The Contractor\'s program shall provide, where appropriate, for
the suspension, disqualification, or dismissal of any employee in a
sensitive position in any instance where a test conducted and confirmed
under the Contractor\'s program indicates that such individual has used,
in violation of applicable law or Federal regulation, alcohol or a
controlled substance.

\(2\) The Contractor\'s program shall further prohibit any such
individual from working in a sensitive position on a NASA contract,
unless such individual has completed a program of rehabilitation
described in paragraph (d) of this clause.

\(3\) The Contractor\'s program shall further prohibit any such
individual from working in any sensitive position on a NASA contract if
the individual is determined under the Contractor\'s program to have
used, in violation of applicable law or Federal regulation, alcohol or a
controlled substance and the individual meets any of the following
criteria:

\(i\) The individual had undertaken or completed a rehabilitation
program described in paragraph (d) of this clause prior to such use;

\(ii\) Following such determination, the individual refuses to undertake
such a rehabilitation program;

\(iii\) Following such determination, the individual fails to complete
such a rehabilitation program; or

\(iv\) The individual used a controlled substance or alcohol while on
duty.

\(d\) The Contractor shall institute and maintain an appropriate
rehabilitation program which shall, as a minimum, provide for the
identification and opportunity for treatment of employees whose duties
include responsibility for safety-sensitive, security, or National
security functions who are in need of assistance in resolving problems
with the use of alcohol or controlled substances.

\(e\) The requirements of this clause shall take precedence over any
state or local Government laws, rules, regulations, ordinances,
standards, or orders that are inconsistent with the requirements of this
clause.

\(f\) For any collective bargaining agreement, the Contractor will
negotiate the terms of its program with employee representatives, as
appropriate, under labor relations laws or negotiated agreements. Such
negotiation, however, cannot change the requirements of this clause.
Employees covered under collective bargaining agreements will not be
subject to the requirements of this clause until those agreements have
been modified, as necessary; provided, however, that if one year after
commencement of negotiation the parties have failed to reach agreement,
an impasse will be determined to have been reached and the Contractor
will unilaterally implement the requirements of this clause.

\(g\) The Contractor shall insert a clause containing all the terms of
this clause, including this paragraph (g), in all subcontracts in which
work is performed by an employee in a sensitive position, except
subcontracts for commercial items (see FAR Parts 2 and 12).

**(End of clause)**

**1852.223-75 Major Breach of Safety or Security.**

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

**MAJOR BREACH OF SAFETY OR SECURITY**

**(FEBRUARY 2002)**

(a) Safety is the freedom from those conditions that can cause death,
    injury, occupational

> illness, damage to or loss of equipment or property, or damage to the
> environment. Safety is essential to NASA and is a material part of
> this contract. NASA's safety priority is to protect: (1) the public;
> (2) astronauts and pilots; (3) the NASA workforce (including
> contractor employees working on NASA contracts); and (4) high-value
> equipment and property. A major breach of safety may constitute a
> breach of contract that entitles the Government to exercise any of its
> rights and remedies applicable to material parts of this contract,
> including termination for default. A major breach of safety must be
> related directly to the work on the contract. A major breach of safety
> is an act or omission of the Contractor that consists of an accident,
> incident, or exposure resulting in a fatality or mission failure; or
> in damage to equipment or property equal to or greater than \$1
> million; or in any \"willful\" or \"repeat\" violation cited by the
> Occupational Safety and Health Administration (OSHA) or by a state
> agency operating under an OSHA approved plan.

\(b\) Security is the condition of safeguarding against espionage,
sabotage, crime (including computer crime), or attack. A major breach of
security may constitute a breach of contract that entitles the
Government to exercise any of its rights and remedies applicable to
material parts of this contract, including termination for default. A
major breach of security may occur on or off Government installations,
but must be related directly to the work on the contract. A major breach
of security is an act or omission by the Contractor that results in
compromise of classified information, illegal technology transfer,
workplace violence resulting in criminal conviction, sabotage,
compromise or denial of information technology services, equipment or
property damage from vandalism greater than \$250,000, or theft greater
than \$250,000.

\(c\) In the event of a major breach of safety or security, the
Contractor shall report the breach to the Contracting Officer. If
directed by the Contracting Officer, the Contractor shall conduct its
own investigation and report the results to the Government. The
Contractor shall cooperate with the Government investigation, if
conducted.

**(End of clause)**

**ALTERNATE I**

**(FEBRUARY 2006)**

As prescribed in 1823.7001(d)(2), substitute the following paragraphs
(a) and (b) for paragraphs (a) and (b) of the basic clause:

  (a) Safety is the freedom from those conditions that can cause death,
injury, occupational illness, damage to or loss of equipment or
property, or damage to the environment. Safety is essential to NASA and
is a material part of this contract. NASA's safety priority is to
protect: (1) the public; (2) astronauts and pilots; (3) the NASA
workforce (including contractor employees working on NASA contracts);
and (4) high-value equipment and property. A major breach of safety may
constitute a breach of contract that entitles the Government to exercise
any of its rights and remedies applicable to material parts of this
contract, including termination. A major breach of safety must be
related directly to the work on the contract. A major breach of safety
is an act or omission of the Contractor that consists of an accident,
incident, or exposure resulting in a fatality or mission failure; or in
damage to equipment or property equal to or greater than \$1 million; or
in any \"willful\" or \"repeat\" violation cited by the Occupational
Safety and Health Administration (OSHA) or by a state agency operating
under an OSHA approved plan.

  (b) Security is the condition of safeguarding against espionage,
sabotage, crime (including computer crime), or attack. A major breach of
security may constitute a breach of contract that entitles the
Government to exercise any of its rights and remedies applicable to
material parts of this contract, including termination. A major breach
of security may occur on or off Government installations, but must be
related directly to the work on the contract. A major breach of security
is an act or omission by the Contractor that results in compromise of
classified information, illegal technology transfer, workplace violence
resulting in criminal conviction, sabotage, compromise or denial of
information technology services, equipment or property damage from
vandalism greater than \$250,000, or theft greater than \$250,000.

**1852.223-76 Federal Automotive Statistical Tool Reporting.**

As prescribed at 1823.271 and 1851.205, insert the following clause:

### FEDERAL AUTOMOTIVE STATISTICAL TOOL REPORTING

**(JULY 2003)**

If authorized to operate Government-owned or --leased vehicles,
including interagency fleet management system (IFMS) vehicles or related
services in performance of this contract, the Contractor shall report
the data describing vehicle usage required by the Federal Automotive
Statistical Tool (FAST) by October 15 of each year. FAST is accessed
through http://fastweb.inel.gov/.

**(End of clause)**

**1852.225-8** **Duty-Free Entry of Space Articles.**

As prescribed in 1825.1101(e), add the following paragraph (k) to the
basic clause at FAR 52.225-8:

\(k\) The following supplies will be given duty-free entry:

\[Insert the supplies that are to be accorded duty-free entry.\]

**(End of addition)**

**1852.225-70 Export Licenses.**

As prescribed in 1825.1103-70(b), insert the following clause:

**EXPORT LICENSES**

**(FEBRUARY 2000)**

\(a\) The Contractor shall comply with all 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, in the performance of
this contract. In the absence of available license
exemptions/exceptions, the Contractor shall be responsible for obtaining
the appropriate licenses or other approvals, if required, for exports of
hardware, technical data, and software, or for the provision of
technical assistance.

\(b\) The Contractor shall be responsible for obtaining export licenses,
if required, before utilizing foreign persons in the performance of this
contract, including instances where the work is to be performed on-site
at \[*insert name of NASA installation*\], where the foreign person will
have access to export-controlled technical data or software.

\(c\) The Contractor shall be responsible for all regulatory record
keeping requirements associated with the use of licenses and license
exemptions/exceptions.

\(d\) The Contractor shall be responsible for ensuring that the
provisions of this clause apply to its subcontractors.

**(End of clause)**

**ALTERNATE I**

**(FEBRUARY 2000)**

As prescribed in 1825.1103-70(b), add the following paragraph (e) as
Alternate I to the clause:

\(e\) The Contractor may request, in writing, that the Contracting
Officer authorize it to export ITAR-controlled technical data (including
software) pursuant to the exemption at 22 CFR 125.4(b)(3). The
Contracting Officer or designated representative may authorize or direct
the use of the exemption where the data does not disclose details of the
design, development, production, or manufacture of any defense article.