PART 1837

**SERVICE CONTRACTING**

# TABLE OF CONTENTS

**SUBPART [1837.1](#OLE_LINK1) 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](#OLE_LINK2) ADVISORY AND ASSISTANCE SERVICES**

1837.203 Policy.

1837.203-70 Providing contractors access to sensitive information.

1837.203-71 Release of contractors' sensitive information.

1837.203-72 NASA contract clauses.

1837.204 Guidelines for determining availability of personnel.

**SUBPART 1837.6 PERFORMANCE-BASED ACQUISITION**

1837.601 General.

**PART 1837**

**SERVICE CONTRACTING**

**Subpart** []{#OLE_LINK1 .anchor}**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 NPR 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**](http://www.hq.nasa.gov/office/procurement/regs/5228-41.htm#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**](http://www.hq.nasa.gov/office/procurement/regs/5228-41.htm#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** []{#OLE_LINK2 .anchor}**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 NPR 3300.1, Appointment of Personnel To/From NASA, Chapter
4, Employment of Experts and Consultants).

**1837.203-70 Providing contractors access to sensitive information.**

(a)(1) As used in this subpart, "sensitive information" refers to
information that the contractor has developed at private expense or that
the Government has generated that qualifies for an exception to the
Freedom of Information Act, which is not currently in the public domain,
may embody trade secrets or commercial or financial information, and may
be sensitive or privileged, the disclosure of which is likely to have
either of the following effects: (1) to impair the Government's ability
to obtain this type of information in the future; or (2) to cause
substantial harm to the competitive position of the person from whom the
information was obtained.  The term is not intended to resemble the
markings of national security documents as in sensitive-secret-top
secret.

\(2\) As used in this subpart, "requiring organization" refers to the
NASA organizational element or activity that requires specified services
to be provided.

\(3\) As used in this subpart, "service provider" refers to the service
contractor that receives sensitive information from NASA to provide
services to the requiring organization.\
(b)(1) To support management activities and administrative functions,
NASA relies on numerous service providers. These contractors may require
access to sensitive information in the Government's possession, which
may be entitled to protection from unauthorized use or disclosure.

\(2\) As an initial step, the requiring organization shall identify when
needed services may entail access to sensitive information and shall
determine whether providing access is necessary for accomplishing the
Agency's mission. The requiring organization shall review any service
provider requests for access to information to determine whether the
access is necessary and whether the information requested is considered
"sensitive" as defined in paragraph (a)(1) of this section.

\(c\) When the requiring organization determines that providing
specified services will entail access to sensitive information, the
solicitation shall require each potential service provider to submit
with its proposal a preliminary analysis of possible organizational
conflicts of interest that might flow from the award of a contract.
After selection, or whenever it becomes clear that performance will
necessitate access to sensitive information, the service provider must
submit a comprehensive organizational conflicts of interest avoidance
plan.

\(d\) This comprehensive plan shall incorporate any previous studies
performed, shall thoroughly analyze all organizational conflicts of
interest that might arise because the service provider has access to
other companies' sensitive information, and shall establish specific
methods to control, mitigate, or eliminate all problems identified. The
contracting officer, with advice from Center counsel, shall review the
plan for completeness and identify to the service provider substantive
weaknesses and omissions for necessary correction. Once the service
provider has corrected the substantive weaknesses and omissions, the
contracting officer shall incorporate the revised plan into the
contract, as a compliance document.

\(e\) If the service provider will be operating an information
technology system for NASA that contains sensitive information, the
operating contract shall include the clause at 1852.204-76, Security
Requirements for Unclassified Information Technology Resources, which
requires the implementation of an Information Technology Security Plan
to protect information processed, stored, or transmitted from
unauthorized access, alteration, disclosure, or use.

\(f\) NASA will monitor performance to assure any service provider that
requires access to sensitive information follows the steps outlined in
the clause at 1852.237-72, Access to Sensitive Information, to protect
the information from unauthorized use or disclosure.

**1837.203-71 Release of contractors' sensitive information.**

Pursuant to the clause at 1852.237-73, Release of Sensitive Information,
offerors and contractors agree that NASA may release their sensitive
information when requested by service providers in accordance with the
procedures prescribed in 1837.203-70 and subject to the safeguards and
protections delineated in the clause at 1852.237-72, Access to Sensitive
Information. As required by the clause at 1852.237-73, or other contract
clause or solicitation provision, contractors must identify information
they claim to be "sensitive" submitted as part of a proposal or in the
course of performing a contract. The contracting officer shall evaluate
all contractor claims of sensitivity in deciding how NASA should respond
to requests from service providers for access to information.

**1837.203-72 NASA contract clauses.**

\(a\) The contracting officer shall insert the clause at 1852.237-72,
Access to Sensitive Information, in all solicitations and contracts for
services that may require access to sensitive information belonging to
other companies or generated by the Government.

\(b\) The contracting officer shall insert the clause at 1852.237-73,
Release of Sensitive Information, in all solicitations, contracts, and
basic ordering agreements.

**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)**](http://www.arnet.gov/far/current/html/Subpart_37_2.html#1046676).

\(c\) 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)**](http://www.arnet.gov/far/current/html/Subpart_37_2.html#1046676).

**SUBPART 1837.6\--PERFORMANCE-BASED ACQUISITION**

**1837.601 General.\
** (a)  A statement of objectives (SOO) may be used on both competitive
and non-competitive acquisitions. Use of a SOO on a competitive
acquisition must be approved by the Procurement Officer and supported by
a description of how the source selection process will be structured to
accommodate evaluation of offeror-unique performance work statements
submitted in response to the SOO.