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###### National Aeronautics and Space Administration

          - 48 CFR Parts 1815, 1816, 1819, 1831, and 1852 

# AGENCY:

National Aeronautics and Space Administration (NASA). 

# ACTION:

Final rule. 

# SUMMARY:

This final rule amends the NASA FAR Supplement (NFS) to revise numbering and ombudsman information as a result of FAC 97-17; revises regulations to indicate that award fee determinations are no longer exempt from the Disputes clause as a result of FAC 97-15; revises regulations to indicate that precontract costs are applicable to awards resulting from broad agency announcements; and makes an editorial correction to other regulations. 

# EFFECTIVE DATE:

June 22, 2000. 

# FOR FURTHER INFORMATION CONTACT:

                         Celeste Dalton, NASA Headquarters Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546, (202) 358-1645, e-mail:                         *celeste.dalton@hq.nasa.gov.*

# SUPPLEMENTARY INFORMATION:

 

## A. Background 

                    FAC 97-17, dated April 25, 2000, revised FAR 16.504 and 16.505, including the requirement to identify the facsimile and e-mail address of agency task and delivery ombudsman.                           ( print page 38777)                        This final rule revises numbering within NFS 1815, 1816, 1819, and 1852 to reflect the FAC 97-17 changes and update the agency ombudsman information. This final rule also revises sections 1852.216-76 and 1852.216-77 to indicate that award fee determinations are no longer exempt from the Disputes clause as a result of FAC 97-15. Changes unrelated to FAC 97-15 and 97-17 are made to allow precontract costs for awards resulting from broad agency announcements (BAA). The use of precontract costs is currently allowed for sole source contracts, except those resulting in firm fixed-price or fixed-price contracts. Contracts awarded under BAAs are considered competitive based on FAR 6.102(d). However, the award process for BAAs is similar to that for sole source awards since negotiations with the contractor occurs after source selection, rather than prior to selection in the normal competitive contract award process. Because of the selection process under BAAs, it is reasonable to allow the approval of precontract costs. Additionally, an editorial change is made to correct the title of paragraph (i)(3) to section 1815.370.                 

## B. Regulatory Flexibility Act 

                    NASA certifies that this rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*) because it does not impose any new requirements.                 

## C. Paperwork Reduction Act 

                    The Paperwork Reduction Act does not apply because the changes to the NFS do not impose any recordkeeping or information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,                     *et seq.*

# List of Subjects in 48 CFR Parts 1815, 1816, 1819, 1831, and 1852

      - Government procurement

Tom Luedtke, 

Associate Administrator for Procurement. 

Accordingly, 48 CFR Parts 1815, 1816, 1819, 1831, and 1852 are amended as follows: 

1. The authority citation for 48 CFR Parts 1815, 1816, 1819, 1831, and 1852 continues to read as follows: 

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

# PART 1815—CONTRACTING BY NEGOTIATION 

2. In section 1815.370, revise the title of paragraph (i)(3) to read as follows: 

1815.370 

* * * * *

(i) * * *

                            (3)                             *Evaluation factors and subfactors.*                             * * *                        

* * * * *

3. Revise section 1815.7003 to read as follows: 

1815.7003 

The contracting officer shall insert a clause substantially the same as the one at 1852.215-84, Ombudsman, in all solicitations (including draft solicitations) and contracts. Use the clause with its Alternate I when a task or delivery order contract is contemplated. 

# PART 1816—TYPES OF CONTRACTS 

4. Amend section 1816.504 by adding paragraph (a)(4)(v) to read as follows: 

1816.504 

* * * * *

(a)(4)(v) See 1815.7003. 

5. Amend section 1816.505 by redesignating paragraph (b)(6) as (b)(5). 

# PART 1819—SMALL BUSINESS PROGRAMS 

6. Amend paragraph (f)(1) in section 1819.201 by removing the words “Deputy Associate Administrator for Procurement (Code H)” and inserting the words “Director of the Contract Management Division (Code HK)” in its place. 

# PART 1831—CONTRACT COST PRINCIPLES AND PROCEDURES

7. In section 1831.205-32, revise paragraph (1) to read as follows: 

1831.205-32 

(1) Precontract costs are applicable only to— 

(i) Sole source awards, except those resulting in firm-fixed price or fixed-price with economic price adjustment contracts; or

(ii) Awards resulting from broad agency announcements. 

* * * * *

# PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 

8. In section 1852.215-84, revise the clause and add Alternate I to read as follows: 

1852.215-84 

* * * * *

## Ombudsman

### June 2000 

(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 202-358-0422, facsimile 202-358-3083, e-mail sthomps1@hq.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. 

9. In section 1852.216-76, revise the date of the clause; remove the last sentence of paragraph (f)(3); and revise paragraph (g) to read as follows: 

1852.216-76 

* * * * *

## Award Fee for Service Contracts 

### June 2000 

* * * * *

(g) Award fee determinations are unilateral decisions made solely at the discretion of the Government. 

* * * * *

10. In section 1852.216-77 revise the date of the clause; delete the last sentence of paragraph (c)(3); and revise paragraph (d) to read as follows: 

      ( print page 38778)    
1852.216-77 

* * * * *

## Award Fee for End Item Contracts 

### June 2000 

* * * * *

(d) Award fee determinations are unilateral decisions made solely at the discretion of the Government.

* * * * *

[FR Doc. 00-15349 Filed 6-21-00; 8:45 am] 

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