Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15497

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.606 [Amended]

2. Section 73.606(b), the TV Table of

Allotments under Nebraska, is amended

by adding Channel 24+ at Albion.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 95–7298 Filed 3–23–95; 8:45 am]

BILLING CODE 6712–01–F

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1819 and 1852

RIN 2700–AB52

NASA Mentor-Protege Program

Policies

AGENCY: Office of Small and

Disadvantaged Business Utilization

(OSDBU), National Aeronautics and

Space Administration (NASA).

ACTION: Final rule.

SUMMARY: The Final rule establishes

NASA’s policy on its Mentor-Protege

Program. With respect to prime

contractors, it defines eligibility for

participation, allowable developmental

assistance measures that will enhance

the capabilities of Socially and

Economically Disadvantaged Businesses

to perform NASA contracts and

subcontracts, and incentives for

program participation. Further, it

defines the transportability of

subcontracting goal credit features from

the Department of Defense (DOD)

Mentor-Protege Program to NASA

Contractors. However, the effectiveness

of a mentor under the NASA Program

will be evaluated by the measurable

amount of developmental assistance

provided under NASA contracts.

Participation in the program is

voluntary.

EFFECTIVE DATE: March 24, 1995.

ADDRESSES: NASA Office of Small and

Disadvantaged Business Utilization,

NASA Headquarters, (Code K),

Washington, DC 20546.

FOR FURTHER INFORMATION CONTACT:

Ms. Rae C. Martel, Telephone: (202)

358–2088.

SUPPLEMENTARY INFORMATION:

Background

NASA published a Proposed Rule on

February 9, 1994 amending the NASA

FAR Supplement to implement a

Mentor-Protege Program. Having

reviewed the public comments on the

Proposed Rule, NASA is publishing this

Final Rule with certain changes to the

provisions set forth in the Proposed

Rule. Many of the comments

represented editorial recommendations

or affirmations for the program. Also, a

number of comments were duplicative

on subject matter. However, the

underlying Mentor-Protege policy has

not been significantly altered as a result

of changes made in response to

comments. The most suggestive

comments and their disposition are

discussed in the preface of this Final

Rule. This Final Rule serves as the

regulatory basis for the Mentor-Protege

Program provisions. For the pilot phase

of the program, Mentor-Protege

applications and activity are limited to

cost-plus-award-fee contracts. The

concept for the NASA Mentor-Protege

Program includes the establishment of a

Prime/Subcontractor relationship

between the mentor and protege firm. In

the role of subcontractor, the protege

will contribute to the contract efforts;

however, to enhance contractual

performance, the protege will receive

developmental assistance, as described

in section 1819.7214, from the prime

contractor mentor firm.

For consistency with Section 7105 of

the Federal Acquisition Streamlining

Act, Public Law 103–355, the categories

of eligible entities defined in section

1819.7202 of the final rule include

‘‘Small Disadvantaged Businesses,

Historically Black Colleges and

Universities and Minority Institutions’’.

Throughout this final rule, these

categories are collectively identified by

the term ‘‘protege’’.

NASA received two hundred and

twenty-seven comments in response to

the Proposed Rule. Several commenters

suggested that NASA provide a

definition of ‘‘high-tech.’’ The agency

high-tech definition is provided in

1819.7202 to provide clarity regarding

the Mentor-Protege Program’s targeted

areas of contract activity. The MentorProtege Program, a key element of

NASA’s socioeconomic program, is

designed to increase the participation of

the entities defined as protege in the

agency’s core mission. Many

commenters suggested that NASA

modify the rule to allow reimbursement

to primes for expenses incurred in

providing developmental assistance to

proteges. The coverage in the final rule

explains that expenses incurred by

mentor firms in providing

developmental assistance to their

protege/subcontractors are allowable.

The language in paragraph 1819.7205

states that the basic condition for

Mentor-Protege requires a prime/

subcontractor relationship between the

mentor and protege. The costs will be

recognized as part of enhancing

contractor performance and are

allowable consistent with the

definitions and requirements in FAR

Part 31. A large number of commenters

requested that NASA provide clarity in

the final rule regarding the fee

arrangement and the earning of award

fee. Future award fee plans of NASA

contracts will be structured such that 15

percent of the available award fee is

allocated for Small Disadvantaged

Business Utilization. Mentor-Protege

will be evaluated under Small

Disadvantaged Utilization as a separate

element and allocated a separate 5

percent of the 15 percent to evaluate the

prime’s performance in the MentorProtege Program. For purposes of

earning award fee, the Mentor firm’s

performance will be evaluated against

the measures described in the NASA

FAR Supplement provisions at

1852.219–79. Many commenters

recommended that while NASA

explains the portability of credit

features from the statute prescribing the

DOD Mentor-Protege Program that are

available to NASA prime contractors, no

provision has been specifically made for

credit against SDB goals with a

multiplier similar to the DOD MentorProtege Program. A multiplier option is

not included in Section 1819.7204 of

the NASA program since no statute or

legislation exists to authorize such an

option. Section 1819.7204 includes only

the features authorized in the statute

creating the DOD program that can be

extended to civilian agencies. A number

of commenters commended NASA for

including a provision allowing proteges

to have multiple mentors. However, a

number of commenters expressed

concern about this provision. Some

concerns centered about proteges with

multiple mentors maintaining

confidentiality; others were concerned

with proteges receiving conflicting

guidance from multiple mentors. It is

recommended that Mentor-Protege

agreements contain some certification

regarding confidentiality and nondisclosure as is routinely utilized in

business relationships. During the

review of Letters of Intent and

Agreements, NASA will scrutinize the

intended areas of developmental

assistance for duplication in certain
15498 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

areas that could lead to conflicting

guidance. However, some duplication

may be unavoidable but appropriate and

beneficial from successful large

aerospace firms. Several prime

contractors expressed concern with the

requirement at Section 1819.7217 for

quarterly reporting. In the final rule, the

reporting frequency is changed from

quarterly to semi-annual to parallel the

Standard Form 294 submission. Several

commenters suggested that NASA delete

the provision encouraging proteges to

submit reports because of privity of

contract; others recommended that any

report from a protege should be jointly

prepared and submitted through the

mentor. This provision remains

unchanged in the final rule. The

language in 1819.7217(b) reads that

‘‘proteges are encouraged to submit

quarterly reports on program progress as

it pertains to the Mentor-Protege

agreement.’’ While reporting is not

mandatory for protege firms, a self

evaluation of their progress under the

terms of the approved agreement is

desired by the NASA OSDBU. Since the

Mentor-Protege agreement is approved

by NASA, a review of progress against

that approved agreement will not violate

privity of contract. Several commenters

suggested that NASA modify the rule to

allow for flowing down program

participation to lower tier, large

business subcontractors where it makes

sound financial sense. Because of

privity of contract issues with the

mentor prime contractors, no such

provision will be included in the pilot

phase of the Mentor-Protege Program.

Several commenters suggested that

NASA expand the program to include a

provision allowing that a protege may

be retained, and receive noncompetitive

subcontract awards, until it has grown

to more than twice the size of the SIC

code. Such provision cannot be

included without specific legislative

authorization. Several commenters

asked if a mentor could make

noncompetitive awards to any protege

subcontractor with whom it plans to

work or is the mentor limited to

noncompetitive awards to only those

protege firms which the mentor is

currently using under its DOD MentorProtege Program. NASA prime

contractors, who are DOD mentors, are

authorized to award subcontracts

noncompetitively under their NASA

contracts to the proteges which they are

assisting under the DOD program in

accordance with Public Law 101–510,

Section 831(f)(2). In addition, NASA

prime contractors who are also

approved mentors under the NASA

program may make noncompetitively

awards to protege firms identified in

letters of intent and approved

agreements for the NASA program.

Several commenters recommend that

NASA include additional mentorprovided developmental assistance

features that will not be required to be

paid back: property; rent-free use of

facilities and/or equipment; and

assignment of personnel to protege.

Section 1819.7214 has been modified in

the final rule to include these features.

Several commenters asked if it is

NASA’s intent that the Mentor-Protege

requirement may be included as part of

the evaluation factors even though a

prime contractor may not sign up to

participate in the program. In all NASA

solicitations for full and open

competition, Small Disadvantaged

Business Utilization is a stand-alone

evaluation factor under Mission

Suitability, which includes

consideration for Mentor-Protege

participation. While voluntary and

better-suited for certain prime

contractors, participation in the MentorProtege program may provide many

primes the opportunity to substantially

increase their subcontracting activity

while also achieving other agency and

program objectives as delineated in

1819.7207. All things being equal, the

firm that proposes in compliance with

the Government’s subcontracting goals

and includes Mentor-Protege activity

will enhance its competitive position.

Several commenters asked if a NASA

prime who is currently a DOD mentor

has to apply and be approved for the

NASA Mentor-Protege Program. Any

firm that seeks to participate in the

NASA Mentor-Protege Program must

apply to NASA, see Section

1819.7211(a). The discussion at

1819.7204 only highlights the

portability of features from the DOD

Mentor-Protege Program that extends to

NASA prime contractors. This section

does not address approved NASA

mentors, only NASA contractors who

are approved DOD Mentors. Several

commenters sought clarity regarding

measurement or definition of ‘‘good

faith,’’ which is what NASA mentors

will be held to beyond transferring

credit from activity in the DOD activity

to NASA subcontracting plans. ‘‘Good

faith’’ will be measured by the amount

and quality of developmental assistance

provided by mentors from the measures

set forth at 1819.7214 and as described

in the clause at 1852.219–79. A

discussion of this activity should be

included in the reports submitted by the

mentor and in the protege’s reports, if

any. Several commenters suggested that

NASA modify the rule so that MentorProtege applications may be either

contract-specific or broader for

multiple-contract agreements. There is

no change in the rule. Since the MentorProtege relationship involves a prime/

subcontractor relationship, the

application and activity must be

contract-specific. Several commenters

asked if awards to proteges on a

noncompetitive basis under this

program will be viewed as an adequate

and acceptable justification for other

than full and open competition. The

requirement for full and open

competition for subcontractors is a

matter of regulatory policy, not statute.

The Associate Administrator for

Procurement is approving an exception

to this policy for approved MentorProtege agreements. Several commenters

state that with this voluntary program

participation, NASA states that a 30-day

notice should be provided by either

party to withdraw. The commenters

asked whether a decision to dissolve the

relationship that occurs during a

contract period would impact the

amount of award fee available to the

prime contractor. Notwithstanding the

30-day notice provision at 1819.7213(h),

the requirement exists that agreements

must contain a plan for accomplishing

the work in progress should the

agreement be terminated. The

agreement, containing this plan, must be

approved by NASA prior to

implementing the developmental

assistance program. Approval of the

plan will ensure that the technical

performance will continue satisfactorily

and thereby eliminating the possibility

for negative impact to the prime. The

remaining major comments will be

addressed individually as follows. One

commenter stated that the application

process indicates that the application is

only for a particular contract which the

contractor is currently performing. The

commenter stated that this would

appear to eliminate any Mentor-Protege

arrangements which are part of a

proposal. If a NASA prime is allowed to

propose a Mentor-Protege arrangement

as part of its proposal, the commenter

stated that the evaluation criteria should

be adjusted for scoring the protege’s

relevant experience and past

performance for areas of work in which

they are to be mentored. The prime

should not be penalized for inclusion of

a less-experienced protege. The

application process is intended to

recognize both instances—MentorProtege under a particular contract

currently being performed and

proposals including Mentor-Protege

arrangements. In response to a

competitive cost-plus-award-fee
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15499

procurement, the contractor’s proposal

will be submitted in accordance with

the evaluation methodology and

instructions set forth in the solicitation.

However, prior to proposal submission

the letter of intent and the agreement

should be submitted to the OSDBU for

approval. The letter of intent and

OSDBU approved agreement should be

submitted as part of the proposal. In

competitive proposals that include a

Mentor-Protege arrangement, no

adjustment will be made for scoring the

protege’s relevant experience and past

performance since the protege’s record

should demonstrate ability to perform

the subcontracting job outlined for a

such a firm. The protege’s performance

in non-traditional areas is essentially

guaranteed by the prime’s commitment

to successfully mentor said firm to

perform. In these instances, the proposal

should reflect details of the MentorProtege relationship as related to

performance under the proposed

contract to provide an understanding of

the work plan relationship and to

facilitate a complete evaluation and

scoring. This commitment and

performance by mentors form the basis

for earning the associated fee dollars.

One commenter requests clarity

regarding the disposition of reports to be

submitted by the NASA technical

program manager. They also seek clarity

regarding the roles and interactions of

the NASA Mentor-Protege program

manager, the NASA technical program

manager, and the contracting officer in

the award fee determination process.

The NASA Mentor-Protege program

manager, a senior official in the NASA

Headquarters Office of Small and

Disadvantaged Business Utilization, has

direct authority for the program and is

the designated recipient for all required

reports. The NASA Mentor-Protege

program manager will submit quarterly

reports to the contracting officer for use

in the semi-annual award fee

determinations as a result of monitoring

activity and work site reviews. The

contracting officer is the responsible

NASA official with direct authority for

the contract. The NASA technical

program manager, provides technical

direction and as such also provides

quarterly evaluations of the contractor’s

technical performance for the purpose

of semi-annual fee determinations.

Therefore, the program manager will

also include in the quarterly reports an

assessment of the contractor’s

performance in the Mentor-Protege

Program as it pertains to the technical

effort and protege development. One

commenter stated that considering

NASA’s current high SDB percentage

goals included in solicitations,

expecting a prime to exceed these

already high SDB percentages is

unrealistic. Further, the contractor states

that if incentive eligibility is based upon

a prime exceeding the NASA 8 percent

goal (irrespective of a contract’s SDB

goal), then a prime would consider

program participation as a level of risk.

Mentor-Protege is independent of

establishment of SDB subcontracting

goals in specific contracts. The 8

percent goal is an agency goal; each

procurement includes an SDB goal that

represents the maximum practical

opportunity as required by public law.

The Mentor-Protege program represents

only one means of increasing SDB

participation—with emphasis on high

tech effort. Program success will be

determined by the measures cited at

1819.7207. Since the Mentor-Protege

relationship will be contract-specific,

the contractor’s performance will be

measured against negotiated goals, the

Mentor-Protege agreement, and the

other factors cited in 1819.7206. A

commenter recommended that NASA

delete provisions at 1819.7213 (b) and

(c), suggesting that there is no privity of

contract, and substitute them with a

provision allowing for after-the-fact

notification. No change is made to these

subsections. The NASA position is that

advance notification along with a work

plan for continuation of work does not

affect privity of contract. One

commenter recommended modification

in the final rule such that annual

briefings of the Mentor-Protege Program

success should be presented as part of

the mentor’s normal program review

with the NASA Center it supports. The

NASA OSDBU would be invited to

participation at the center; the pertinent

protege could, at the mentor’s

discretion, be invited to make their own

presentation. Rationale: Mentor-Protege

reviews held as part of a center’s

normally-scheduled program review

would significantly reduce cost to

NASA and contractors thereby

maintaining privity between the mentor

and the portege. Section 1819.7218 of

the Final Rule has been changed to

include such review in program

reviews. Where applicable, separate

reviews will be scheduled for other

contracts at the NASA work site. One

commenter recommends that NASA

provide the mentor (formally or

informally) with information on any

deficiencies noted in the application so

that the deficiencies can be quickly

corrected, if the Mentor so chooses. If

the Mentor does not correct the

deficiencies within a reasonable time

unilaterally established by NASA, then

the application should be denied, and

the whole process would start over. A

commenter suggested that NASA limit

application information to two prior

years and that NASA specify the

minimum information for letter of

intent. The final rule incorporates both

recommended changes in section

1819.7211. A commenter suggested that

since the proposed rule making does not

take into account a prior business

relationship between the mentor and

protege, some restrictions should be

included to prevent overlapping

management (e.g. Board of Directors)

and business arrangements such as

partnerships in which the Mentor has a

direct financial interest in the business

success of the protege or can take credit

for developmental assistance which

would be a part of normal business

development for the mentor. Proposed

Mentor-Protege agreements will be

disapproved where the protege firm’s

owner was a former employee of the

proposed mentor or when the protege

firm itself represents an entity in which

the mentor firm holds a financial

interest or ownership. However, mentor

firms that hold partial ownership (up to

10%) of a proposed protege firm due to

their approved participation in the DOD

Mentor-Protege Program shall not

negatively impact participation in the

NASA program.

Availability of NASA FAR Supplement

The NASA FAR Supplement, of

which this proposed coverage will

become a part, is codified in 48 CFR,

Chapter 18, and is available in its

entirety on a subscription basis from the

Superintendent of Documents,

Government Printing Office,

Washington, DC 20402. Cite GPO

Subscription Stock Number 933–003–

00000–1. It is not distributed to the

public, whether in whole or in part,

directly by NASA.

Impact

NASA certifies that this regulation

will not have a significant economic

effect on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). The MentorProtege Program is intended to have a

positive economic effect on small

businesses by enhancing their ability to

participate in both Government and

commercial contracting entities.
15500 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

List of Subjects in 48 CFR Parts 1819

and 1852

Government procurement.

Deidre A. Lee,

Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1819 and

1852 are amended as follows:

1. The authority citation for 48 CFR

Parts 1819 and 1852 continues to read

as follows:

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

PART 1819—SMALL BUSINESS AND

SMALL DISADVANTAGED BUSINESS

CONCERNS

2. Subpart 1819.72 is added to read as

follows:

Subpart 1819.72—The NASA MentorProtege Program

1819.7201 Scope of subpart.

1819.7202 Definitions.

1819.7203 Non-affiliation.

1819.7204 Transportability of features from

the Department of Defense (DOD)

Mentor-Protege Program to NASA

contractors.

1819.7205 General policy.

1819.7206 Incentives for prime contractor

participation.

1819.7207 Measurement of program

success.

1819.7208 Mentor firms.

1819.7209 Protege firms.

1819.7210 Selection of protege firms.

1819.7211 Application process for mentor

firms to participate in the program.§

1819.7212 OSDBU review and approval

process of agreement.

1819.7213 Agreement contents.

1819.7214 Developmental assistance.

1819.7215 Obligation.

1819.7216 Internal controls.

1819.7217 Reports.

1819.7218 Program review.

1819.7219 Solicitation provision and

contract clauses.

Subpart 1819.72—The NASA MentorProtege Program

1819.7201 Scope of subpart.

The NASA Mentor-Protege Program is

designed to incentivize NASA prime

contractors to assist Small

Disadvantaged Business concerns,

Historically Black Colleges and

Universities, and Minority Institutions

in enhancing their capabilities to

perform NASA contracts and

subcontracts, foster the establishment of

long-term business relationships

between these entities and NASA prime

contractors, and increase the overall

number of these entities that receive

NASA contract and subcontract awards.

1819.7202 Definitions.

(a) Historically Black Colleges and

Universities (HBCU), as used in this

subpart, means institutions determined

by the Secretary of Education to meet

the requirements of 34 CFR 608.2 and

listed therein. HBCUs include any

nonprofit research institution that was

an integral part of such a college or

university before November 14, 1986.

(b) Minority Institutions (MI), as used

in this subpart, means institutions

verified by the Secretary of Education to

meet the criteria set forth in 34 CFR

637.4. MIs include Hispanic-serving

institutions as defined by 20 U.S.C.

1059c(b)(1).

(c) Small Disadvantaged Business

concern (SDB), as used in this subpart,

means small business concerns owned

and controlled by socially and

economically disadvantaged individuals

(as those terms are used in section 8(a)

of the Small Business Act (15 U.S.C.

637(a) (5) and (6))) and small business

concerns owned and controlled by

women (see section 8(d) of the Small

Business Act (15 U.S.C. 637(d)) as

amended by Public Law 103–355.

(d) High-Tech: As used in this

subpart, means research and/or

development efforts that are within or

advances the state-of-the-art in a

technology discipline and are performed

primarily by professional engineers,

scientists, and highly skilled and

trained technicians or specialists.

1819.7203 Non–affiliation.

For purposes of the Small Business

Act, a protege firm may not be

considered an affiliate of a mentor firm

solely on the basis that the protege firm

is receiving developmental assistance

referred to in 1819.7214 from such

mentor firm under the program. Neither

shall partial ownership, up to 10

percent of a Department of Defense

(DOD) sanctioned Protege firm by its

DOD mentor constitute affiliation by

NASA.

1819.7204 Transportability of features

from the Department of Defense (DOD)

Mentor-Protege Program to NASA

contractors.

(a) In accordance with the benefits

authorized by the DOD Mentor-Protege

program (Public Law 101–510, Section

831, as amended by Public Law 102–

190, Section 814), a NASA contractor

who is also an approved DOD Mentor

can transfer credit features to their

NASA contracts.

(b) NASA prime contractors, who are

approved DOD mentors, can award

subcontracts noncompetitively under

their NASA contracts to the proteges

which they are assisting under the DOD

program (Public Law 101–510, Section

831(f)(2)).

(c) NASA prime contractors may

count the costs of developmental

assistance provided to proteges being

assisted under the DOD program toward

meeting the goals in their

subcontracting plans under their NASA

prime contracts (Public Law 102–190,

Section 814). Limitations which may

reduce the value of this benefit include:

(1) Credit toward attaining

subcontracting goals is available only to

the extent that the developmental

assistance costs have not been

reimbursed to the contractor by DOD as

direct or indirect costs; or

(2) The credit is available to meet the

goals of a NASA subcontracting plan

only to the extent that it has not been

applied to a DOD subcontracting plan.

The same unreimbursed developmental

assistance costs cannot be counted

toward meeting the subcontracting goals

of more than one prime contract. These

costs would accrue from credit for the

multiples attributed to assistance

provided by Small Business

Development Centers, Historically Black

Colleges and Universities and Minority

Educational Institutions.

(d) The features identified in

paragraphs (a), (b) and (c) of this section

point out the portability of features from

the DOD Mentor Protege Program to

NASA prime contractors. NASA

mentors will be held to show ‘‘good

faith’’ by providing actual

developmental assistance beyond

transferring credit from activity in the

DOD program to NASA subcontracting

plans.

1819.7205 General policy.

(a) Eligible large business prime

contractors, not included on the ‘‘Parties

Excluded from Procurement Program’’

list, who have at least one active

subcontracting plan, and who are

approved as mentor firms will enter into

agreements with eligible entities as

defined in 1819.7202 as Proteges to

provide appropriate developmental

assistance to enhance the capabilities of

Proteges to perform as subcontractors

and suppliers. Eligible small business

prime contractors, not included on the

‘‘Parties Excluded from Procurement

Programs’’ list, and that are capable of

providing developmental assistance to

SDB’s, may be approved as mentors. An

active mentor-protege arrangement

requires the protege to be a

subcontractor under the mentor’s prime

contract with NASA.

(b) The pilot program has a duration

of three years commencing from March

24, 1995. During this period, eligible

mentor firms, which have received

approval by NASA to participate in the

program pursuant to section 1819.7212,

may enter into agreements with protege

firms.
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15501

(c) For the pilot phase of the program,

mentor-protege activity will be limited

to cost-plus-award-fee contracts.

(d) Costs incurred by a mentor to

provide developmental assistance,

technical or managerial assistance

described in section 1819.7214, are

allowable.

1819.7206 Incentives for prime contractor

participation.

(a) During source selection, MentorProtege will be evaluated under SDB

Utilization which is a stand-alone

evaluation subfactor under the Mission

Suitability.

(b) Under cost-plus-award fee

contracts, approved mentor firms shall

be eligible to earn award fee associated

with their performance as a mentor by

performance evaluation period. The

award fee plans of all NASA contracts

are structured such that 15 percent of

the available award fee is allocated for

Small Disadvantaged Business

Utilization. Mentor-Protege performance

will be evaluated under Small

Disadvantaged Business Utilization as a

separate element and allocated a

separate 5 percent of the 15 percent

award fee. For purposes of earning

award fee, the Mentor firm’s

performance shall be evaluated to

determine the degree to which the

participation went beyond (exceeded)

the negotiated SDB goals commitment.

Specifically, the Mentor firm’s

performance will be evaluated against

the criteria described in the NASA FAR

Supplement provision at 1852.219–79.

1819.7207 Measurement of program

success.

The overall success of the NASA

Mentor-Protege program encompassing

all participating Mentors and proteges

will be measured by the extent to which

it results in:

(a) An increase in the number, dollar

value and percentage of subcontracts

awarded to proteges by mentor firms

under NASA contracts since the date of

entry into the program;

(b) An increase in the number and

dollar value of contract and subcontract

awards to protege firms since the time

of their entry into the program (under

NASA contracts, contracts awarded by

other Federal agencies and under

commercial contracts);

(c) An increase in the number and

dollar value of subcontracts awarded to

a protege firm by its mentor firm; and

(d) An increase in subcontracting with

protege firms in industry categories

where they have not traditionally

participated within the mentor firm’s

activity.

1819.7208 Mentor firms.

(a) Eligibility.

(1) Contractors eligible for receipt of

government contracts;

(2) Large prime contractors

performing under contracts with at least

one negotiated subcontracting plan as

required by 48 CFR (FAR) 19.7; and

(3) Small Business prime contractors

that can provide developmental

assistance to enhance the capabilities of

proteges to perform as subcontractors

and suppliers. A small business prime

contractor performing under a NASA

contract that does not contain a

negotiated subcontracting plan may

apply.

(b) Mentors will be encouraged to

identify and select:

(1) A broad base of firms including

those defined as emerging firms (e.g., a

protege whose size is no greater than 50

percent of the size standard applicable

to the SIC code assigned to a contracting

opportunity); and

(2) Proteges in addition to firms with

whom they have established business

relationships.

(3) High-Tech firms as proteges.

1819.7209 Protege firms.

(a) For selection as a protege, a firm

must be:

(1) An SDB, HBCU or MI as those

terms are defined in 1891.7202:

(2) Certified as small in the SIC code

for the services or supplies to be

provided by the protege under its

subcontract to the mentor; and

(3) Eligible for receipt of government

contracts.

(b) A protege firm may self-certify to

a mentor firm that it meets the

requirements set forth in paragraph (a)

of this section. Mentor may rely in good

faith on written representations by

potential proteges that they meet the

specified eligibility requirements.

(c) Proteges may have multiple

mentors. Proteges participating in

mentor-protege programs in addition to

the NASA program should maintain a

system for preparing separate reports of

mentoring activity for each agency’s

program.

1819.7210 Selection of protege firms.

(a) Mentor firms will be solely

responsible for selecting protege firms.

The mentor is encouraged to identify

and select the types of protege firms

listed in 1819.7208(b).

(b) Mentor firms may have more than

one protege.

(c) The selection of protege firms by

mentor firms may not be protested,

except as in paragraph (d) of this

section.

(d) Any protest regarding the size or

eligibility status of an entity selected by

a mentor to be a protege shall be

referred solely to the Associate

Administrator, Office of Small and

Disadvantaged Business Utilization

(OSDBU), NASA for resolution. In its

discretion, NASA may seek an advisory

opinion from the Small Business

Administration.

1819.7211 Application process for mentor

firms to participate in the program.

(a) Prime contractors interested in

becoming a mentor firm must submit a

request to the NASA OSDBU to be

approved under the program. The

application will be evaluated on the

extent to which the company plans to

provide developmental assistance. The

information required in paragraph (b) of

this section must be submitted to be

considered for approval as a mentor

firm.

(b) A proposed mentor must submit

the following information to the NASA

OSDBU:

(1) Certification that the mentor firm

is currently performing under at least

one active approved subcontracting plan

(small business exempted) and that they

are eligible, as of the date of application,

for the award of Federal contracts;

(2) The cognizant NASA contract

number(s), type of contract, period of

performance (including options), title of

technical program effort, name of NASA

Program Manager (including contact

information) and name of NASA field

center where support is provided;

(3) The number of proposed MentorProtege arrangements;

(4) Data on all current NASA

contracts and subcontracts to include

the contract/subcontract number(s),

period of performance, awarding NASA

installation or contractor and contract/

subcontract value(s) including options;

(5) Data on total number and dollar

amount of subcontracts awarded under

NASA prime contracts within the past

2 years and the number of dollar value

of such subcontracts awarded to entities

defined as proteges.

(6) Information on the proposed types

of developmental assistance. For each

proposed Mentor-Protege relationship

include information on the company’s

ability to provide developmental

assistance to the identified protege firm

and how that assistance will potentially

increase subcontracting opportunities

for the protege firm, including

subcontracting opportunities in industry

categories where these entities are not

dominant in the company’s current

subcontractor base; and

(7) A Letter of Intent signed by both

parties. At a minimum, the Letter of

Intent must include the stated

commitment that the parties intend to
15502 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

enter into a mentor-protege agreement

under the NASA program, that they

intend to cooperate in the

developmental of a suitable

development assistance program to meet

their respective needs, and that they

agree to comply with the obligations in

section 1819.7215 and all other

provisions governing the program.

1819.7212 OSDBU review and approval

process of agreement.

(a) The information specified in

1819.7211(b) is reviewed by NASA

OSDBU. The review by the NASA

OSDBU will be completed no later than

30 days after receipt by the OSDBU.

NASA OSDBU will provide a copy of

the submitted information to the

cognizant NASA technical program

manager and contracting officer for a

parallel review and concurrence.

(b) If OSDBU approves the

application, then the mentor

(1) Negotiates agreement with the

protege; and

(2) Submits an original and two (2)

copies of the agreement to NASA

OSDBU for approval by the NASA

Mentor-Protege program manager, the

NASA technical program manager and

the contracting officer.

(c) Upon agreement approval, the

mentor may implement developmental

assistance program.

(d) An approved agreement will be

incorporated into the mentor’s contract

with NASA. It should be added to the

subcontracting plan in contracts which

contain such a plan.

(e) If OSDBU disapproves the

application, then the mentor may

provide additional information for

reconsideration. The review of any

supplemental material will be

completed within 30 days after receipt

by the OSDBU. Upon finding

deficiencies that NASA considers

correctable, the OSDBU will notify the

mentor and request information to be

provided within 30 days that may

correct the deficiencies.

1819.7213 Agreement contents.

The contents of the agreement must

contain:

(a) Names and addresses of mentor

and protege firms and a point of contact

within both firms who will oversee the

agreement;

(b) Procedures for the mentor firm to

notify the protege firm, OSDBU and the

contracting officer, in writing, at least 30

days in advance of the mentor firm’s

intent to voluntarily withdraw from the

program;

(c) Procedures for a protege firm to

notify the mentor firm in writing at least

30 days in advance of the protege firm’s

intent to voluntarily terminate the

mentor-protege agreement. The mentor

shall notify the OSDBU and the

contracting officer immediately upon

receipt of such notice from the protege;

(d) A description of the type of

developmental program that will be

provided by the mentor firm to the

protege firm, to include a description of

the subcontract work, and a schedule for

providing assistance and criteria for

evaluation of the protege’s

developmental success;

(e) A listing of the number and types

of subcontracts to be awarded to the

protege firm;

(f) Program participation term;

(g) Termination procedures;

(h) Plan for accomplishing work

should the agreement be terminated;

and

(i) Other terms and conditions, as

appropriate.

1819.7214 Developmental assistance.

The forms of developmental

assistance a mentor can provide to a

protege include:

(a) Management guidance relating

to—

(1) Financial management,

(2) Organizational management,

(3) Overall business management/

planning and

(4) Business development;

(b) Engineering and other technical

assistance;

(c) Noncompetitive award of

subcontracts under NASA contracts;

(d) Progress payments based on costs.

The customary progress payment rate

for all NASA contracts with small

disadvantaged businesses is 95 percent.

This customary progress payment rate

for small disadvantaged businesses may

be used by prime contractors;

(e) Advance payments. While a

mentor can make advance payments to

its proteges who are performing as

subcontractors, the mentor will only be

reimbursed by NASA for these costs if

advance payments have been authorized

in accordance with statute and

regulation;

(f) Loans;

(g) Rent-free use of facilities and/or

equipment;

(h) Property; and

(i) Temporary assignment of

personnel to protege for purpose of

training

1819.7215 Obligation.

(a) Mentor or protege may voluntarily

withdraw from the program as mutually

agreed by both mentor and protege.

(b) Mentor and protege firms will

submit a ‘‘lessons learned’’ evaluation to

the NASA OSDBU at the conclusion of

the pilot program period or the

conclusion of their effort, whichever

comes first.

1819.7216 Internal controls.

(a) The NASA OSDBU will manage

the program. Internal controls will be

established by NASA OSDBU to achieve

the stated program objectives (by

serving as checks and balances against

undesired actions or consequences)

such as:

(1) Reviewing and evaluating mentor

applications for realism, validity and

accuracy of provided information;

(2) Reviewing semi-annual progress

reports submitted by mentors and

proteges, if any, on protege development

to measure protege progress against the

master plan contained in the approved

agreement.

(3) Site visits to NASA installation

where Mentor-Protege activity is ongoing.

(b) NASA may terminate MentorProtege agreements if NASA determines

that such actions are in NASA’s interest.

These actions shall be approved by the

NASA OSDBU. NASA will terminate an

agreement or exclude a particular entity

by sending a written notice to the

affected party specifying the action

being taken and the effective date of that

action. Termination of an agreement

does not constitute a termination of the

subcontract between the Mentor and the

Protege. A plan for accomplishing the

subcontract effort should the agreement

be terminated shall be submitted with

the agreement, as required in

1819.7213(h).

1819.7217 Reports.

(a) Semi-annual reports shall be

submitted by the mentor to the NASA

mentor-protege program manager,

NASA Headquarters OSDBU, to include

information as outlined in 1819.7206(b).

(b) Proteges are encouraged to submit

semi-annual reports, to the NASA

mentor-protege program manager, on

program progress as pertains to their

mentor-protege agreement. However,

costs associated with the preparation of

these reports will not be reimbursed by

the Government.

(c) The NASA technical program

manager shall include an assessment of

the Prime Contractor’s (Mentor’s)

performance in the Mentor-Protege

program in his quarterly ‘Strengths and

Weaknesses’ evaluation report. A copy

of these comments, as pertains to the

technical effort and protege

development, will be provided to NASA

Headquarters OSDBU and the

Contracting Officer.

(d) The NASA mentor-protege

program manager will submit semi-
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15503

annual reports to the cognizant

contracting officer regarding

participating prime contractor’s

performance in the program for use in

the award fee determination process.

1819.7218 Program review.

At the conclusion of each year in the

mentor-protege program, the prime

contractor and protege, as appropriate,

will formally brief the NASA mentorprotege program manager, the technical

program manager and the contracting

officer regarding program

accomplishments as pertains to the

approved agreement. This review will

be incorporated into the normal

program review, where applicable. A

separate review will be scheduled for

other contracts to be held at the NASA

work site location.

1819.7219 Solicitation provision and

contract clauses.

(a) The contracting officer shall insert

the clause at 1852.219–77, NASA

Mentor-Protege Program, in all

solicitations and contracts with

subcontracting plans or in the case of

small business set-asides exceeding

$500,000 ($1,000,000 for construction)

that offer subcontracting opportunities.

(b) The contracting officer shall insert

the provision at 1852.219–78,

Evaluation of Prime Contractor

Participation in the Mentor-Protege

Program, in all solicitations containing

the provisions at 1852.219–77, NASA

Mentor-Protege Program and FAR

52.219–9, Small Business and Small

Disadvantaged Business Subcontracting

Plan.

(c) The contracting officer shall insert

the clause at 1852.219–79, Mentor

Responsibility and Evaluation, in

contracts where the prime contractor is

a participant in the NASA MentorProtege Program.

PART 1852—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

a. Sections 1852.219–77, 1852.219–

78, and 1852.219–79 are added to read

as follows:

1852.219–77 NASA Mentor-Protege

Program.

As prescribed in 1819.7219(a), insert

the following provision:

NASA Mentor Protege Program (Jan. 1994)

(a) Prime contractors, including certain

small businesses, are encouraged to

participate in the NASA pilot mentor-protege

program for the purpose of providing

developmental assistance to eligible protege

entities to enhance their capabilities and

increase their participation in NASA

contracts.

(b) The pilot program consists of:

(1) Mentor firms, which are large prime

contractors with at least one active

subcontracting plan or eligible small

businesses;

(2) Protege, which are subcontracting

under the prime contractor, include Small

Disadvantaged Business (SDB) concerns

including women-owned small businesses,

Historically Black Colleges and Universities,

and Minority Institutions, as those terms are

defined in NASA FAR Supplement

1819.7202.

(3) Mentor-protege agreements, approved

by the NASA Office of Small and

Disadvantaged Business Utilization

(OSDBU);

(4) Potential of payment of additional

award fee for voluntary participation and

successful performance in the mentor-protege

program.

(c) Mentor participation in the program,

described in 48 CFR 1819.72, means

providing technical, managerial and financial

assistance to aid proteges in developing

requisite high-tech expertise and business

systems to compete for and successfully

perform NASA contracts and subcontracts.

(d) Contractors interested in participating

in the pilot program are encouraged to

contact the NASA OSDBU, Washington, DC

20546, (202) 358–2088, for further

information. (End of clause)

1852.219–78 Evaluation of Prime

Contractor Participation in the NASA

Mentor Protege Program.

As prescribed in 1819.7219(b), insert

the following provision:

Evaluation of Prime Contractor Participation

in the NASA Mentor-Protege Program (DEC

1994)

NASA will consider (evaluate) the

proposed participation and extent of

developmental assistance to be provided by

a prime contractor to protege firms as an

approved Mentor in the NASA MentorProtege Program under the SDB Utilization

subfactor under Mission Suitability.

1852.219–79 Mentor Requirements and

evaluation.

As prescribed in 1819–7219(c), insert

the following provision:

Mentor Requirements and Evaluation (DEC

1994)

(a) The purpose of the NASA MentorProtege Program (s) is for a NASA prime

contractor to provide developmental

assistance to certain subcontractors

qualifying as proteges. Eligible proteges

include Small Disadvantaged Business

concerns including women-owned small

businesses, Historically Black Colleges and

Universities, and Minority Institutions, as

those terms are defined in NASA FAR

Supplement 1819.7202.

(b) NASA will evaluate the contractor’s

performance through the Performance

Evaluation process. The evaluation will

consider the following:

(1) Specific actions taken by the contractor,

during the evaluation period, to increase the

participation of proteges as subcontractors

and suppliers;

(2) Specific actions taken by the contractor

during this evaluation period to develop the

technical and corporate administrative

expertise of a protege as defined in the

agreement;

(3) To what extent the Protege has met the

developmental objectives in the agreement;

and

(4) To what extent the firm’s participation

in the Mentor-Protege Program resulted in

the Protege receiving competitive contract(s)

and subcontract(s) from private firms and

agencies other than the Mentor.

(c) Semi-annual reports shall be submitted

by the mentor to the NASA mentor-protege

program manager, NASA Headquarters

OSDBU to include information as outlined in

1819.7206(b).

(d) The Mentor will notify the OSDBU and

the contracting officer, in writing, at least 30

days in advance of the mentor firm’s intent

to voluntarily withdraw from the program or

upon receipt of a Protege’s notice to

withdraw from the Program;

(e) Mentor and protege firms will submit a

‘‘lessons learned’’ evaluation to the NASA

OSDBU at the conclusion of the pilot

program period or the conclusion of their

effort which ever comes first. At the

conclusion of each year in the mentorprotege program, the prime contractor and

protege, as appropriate, will formally brief

the NASA mentor-protege program manager,

the technical program manager, and the

contracting officer during a formal program

review regarding program accomplishments

as pertains to the approved agreement.

(f) NASA may terminate Mentor-Protege

agreements and exclude Mentor or Protege

firms from participating in the NASA

program if NASA determines that such

actions are in NASA’s interest. These actions

shall be approved by the NASA OSDBU.

NASA shall terminate an agreement by

delivering to the contractor a Notice

specifying the reason for termination and the

effective date. Termination of an agreement

does not constitute a termination of the

subcontract between the mentor and the

protege. A plan for accomplishing the

subcontract effort should the agreement be

terminated shall be submitted with the

agreement as required in 1819.7213(h).

(End of clause)

[FR Doc. 95–7051 Filed 3–23–95; 8:45 am]

BILLING CODE 7510–01–M

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 501

Organization and Delegation of Powers

and Duties

AGENCY: National Highway Traffic

Safety Administration (NHTSA), (DOT).

ACTION: Final rule.

SUMMARY: This final rule revises the

regulations on the organization of and

delegations of powers and duties within