TABLE OF
CONTENTS
SUBPART 1828.1
BONDS
1828.101 Bid guarantees.
1828.101-70 NASA solicitation
provision.
1828.103 Performance and
payment bonds and alternative payment
protections for other than construction
contracts.
1828.103-70 Subcontractors
performing construction work under
nonconstruction
contracts.
1828.103-71 Solicitation
requirements and contract clauses.
1828.106 Administration.
1828.106-6 Furnishing
information.
SUBPART 1828.2
SURETIES
1828.202 Acceptability
of corporate sureties.
1828.203 Acceptability
of individual sureties.
SUBPART 1828.3 INSURANCE
1828.307 Insurance under
cost-reimbursement contracts.
1828.307-1 Group insurance
plans.
1828.307-2 Liability.
1828.307-70 Insurance of
industrial facilities.
1828.311 Solicitation
provision and contract clause on liability insurance
under cost-reimbursement contracts.
1828.311-1 Contract clause.
1828.311-2 Agency
solicitation provisions and contract clauses.
1828.311-270 NASA solicitation
provisions and contract clauses.
1828.370 Fixed-price
contract clauses.
1828.371 Clauses for
cross-waivers of liability for Space Shuttle services, Expendable Launch
Vehicle (ELV)
launches,
and Space Station activities.
1828.372 Clause for
minimum insurance coverage.
PART 1828
BONDS AND INSURANCE
1828.101-70 NASA solicitation
provision.
The contracting officer shall insert
the provision at 1852.228-73,
Bid Bond, in construction solicitations where offers
are expected to exceed $100,000 and a performance bond or a performance and
payment bond is required (see FAR
28.102 and 28.103).
The contracting officer may increase the amount of the bid bond to protect the
Government from loss, as long as the amount does not exceed $3 million.
1828.103 Performance and payment bonds and alternative payment protections for other than construction contracts.
1828.103-70 Subcontractors performing
construction work under nonconstruction
contracts.
(a) The contracting officer shall
require prime contractors on nonconstruction
contracts to obtain the following performance and/or payment protection from
subcontractors performing construction work:
(1) Performance and payment bonds
when the subcontract construction work is in excess of $100,000 and is
determined by NASA to be subject to the Miller Act.
(2) An appropriate payment
protection determined according to FAR 28.102-1(b)(1) when the subcontract construction work is
greater than $30,000
but not greater than $100,000.
(b) The contracting officer shall
establish the penal amount in accordance with FAR 28.102-2 based on the
subcontract value.
(c) The bonds shall be provided on SF
25, Performance Bond, and SF 25A, Payment Bond. These forms shall be modified
to name the NASA prime contractor as well as the
1828.103-71 Solicitation
requirements and contract clauses.
When performance and payment bonds or
alternative payment protections are required from subcontractors performing
construction work under nonconstruction prime
contracts, the contracting officer shall follow the procedures in FAR 28.102-3. When
alternative payment protections are required, insert a clause substantially the
same as FAR
52.228-13, Alternative Payment
Protections, appropriately modified.
1828.106-6 Furnishing information.
(c) The contracting officer is the
agency head's designee.
1828.202 Acceptability of corporate
sureties.
(d) Contracting officers may obtain
access to Department of Treasury Circular 570 through the internet at http://www.fms.treas.gov/c570/index.html.
1828.203 Acceptability of individual sureties.
(g) Notification of suspected criminal
or fraudulent activities, with all supporting documentation, shall be submitted
to the Headquarters Office of Procurement (Code HS).
1828.307 Insurance under cost-reimbursement contracts.
1828.307-1 Group insurance plans.
(a) The procurement officer is the
approval authority.
1828.307-2 Liability.
(b)(2)(A) The procurement
officer may approve a requirement for property damage liability insurance when:
(a)
A commingling of operations permits property damage coverage at a
nominal cost to NASA under insurance carried by the contractor in the course of
its commercial operations; or
(b)
The contractor is engaged in the handling of high explosives or in
extra hazardous research and development activities undertaken in populated
areas.
(B)
In all other circumstances, the Assistant Administrator for Procurement
(Code HS) is the approval authority.
1828.307-70 Insurance of
industrial facilities.
When industrial facilities are provided
by the Government under a facilities contract or a lease, the contract or lease
shall require that during the period of construction, installation, alteration,
repair, or use, and at any other time as directed by the contracting officer,
the contractor or lessee shall insure or otherwise provide approved security
for liabilities to third persons (including employees of the contractor or
lessee) in the manner and to the same extent as required in FAR 28.307-2.
1828.311 Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.
1828.311-1 Contract clause.
The contracting officer shall insert the
clause at FAR 52.228-7, Insurance-Liability to
Third Persons, as prescribed in FAR 28.311-1
unless --
(a) Waived by the procurement officer; or
(b) The successful offeror
represents in its offer that it is totally immune from tort liability as a
State agency or as a charitable institution.
1828.311-2 Agency solicitation provisions and contract clauses.
1828.311-270 NASA solicitation
provisions and contract clauses.
(a) The contracting officer must insert
the clause at 1852.228-71, Aircraft Flight
Risks, in all cost-reimbursement contracts for the development, production,
modification, maintenance, or overhaul of aircraft, or otherwise involving the
furnishing of aircraft to the contractor, except when the aircraft are covered
by a separate bailment.
(b) The contracting officer must insert
the provision at 1852.228-80,
Insurance -- Immunity from Tort Liability, in solicitations for research and
development when a cost-reimbursement contract is contemplated.
(c) The contracting officer must insert
FAR clause 52.228-7 and the associated clause at 1852.228-81,
Insurance -- Partial Immunity From Tort Liability,
when the successful offeror represents in its offer
that the offeror is partially immune from tort
liability as a State agency or as a charitable institution.
(d) The contracting officer must insert
the clause at 1852.228-82,
Insurance -- Total Immunity From Tort Liability, when
the successful offeror represents in its offer that
the offeror is totally immune from tort liability as a
State agency or as a charitable institution.
1828.370 Fixed-price contract clauses.
(a) The contracting officer shall
insert the clause at 1852.228-70,
Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts for
the development, production, modification, maintenance, or overhaul of
aircraft, or otherwise involving the furnishing of aircraft to the contractor,
except as provided in paragraph (b) of this section, unless the aircraft are
covered by a separate bailment. See the clause preface for directions for
modifying the clause to accommodate various circumstances.
(b) The Government need not assume the
risk of aircraft damage, loss, or destruction as provided by the clause at 1852.228-70
if the best estimate of premium costs that would be included in the contract
price for insurance coverage for such damage, loss, or destruction at any plant
or facility is less than $500. If it is determined not to assume this risk, the
clause at 1852.228-70 shall not be made a part of the contract, and the cost of
necessary insurance to be obtained by the contractor to cover this risk shall
be considered in establishing the contract price. In such cases, however, if
performance of the contract is expected to involve the flight of
Government-furnished aircraft, the substance of the clause at 1852.228-71, Aircraft Flight
Risks, suitably adapted for use in a fixed-price contract, shall be used.
(c) When the clause at 1852.228-70 is
used, the term "Contractor's premises" shall be expressly defined in
the contract Schedule and shall be limited to places where aircraft may be
located during the performance of the contract. Contractor's premises may
include, but are not limited to, those owned or leased by the contractor or
those for which the contractor has a permit, license, or other right of use
either exclusively or jointly with others, including Government airfields.
1828.371 Clauses for cross-waivers of liability for
Space Shuttle services, Expendable Launch Vehicle (ELV) launches, and
Space Station activities.
(a) In agreements covering Space
Shuttle services, certain ELV launches, and Space Station activities, NASA and
other signatories (the parties) agree not to bring claims against each other
for any damage to property or for injury or death of employees that occurs
during the time such a cross-waiver is in effect. These agreements involving
NASA and other parties include, but are not limited to, Memoranda of
Understanding with foreign Governments, Launch Services Agreements, and other
agreements for the use of NASA facilities. These agreements require the parties
to flow down the cross-waiver provisions to their related entities so that
contractors, subcontractors, customers, and other users of each party also
waive their right to bring claims against other parties and their similarly
related entities for damages arising out of activities conducted under the
agreements. The purpose of the clauses prescribed in this section is to flow
down the cross-waivers to NASA contractors and subcontractors.
(b) The contracting officer shall
insert the clause 1852.228-72,
Cross-waiver of Liability for Space Shuttle Services, in solicitations and
contracts of $100,000 or more when the work to be performed involves
"Protected Space Operations" (applicable to the Space Shuttle) as
that term is defined in the clause. If Space Shuttle services under the
contract are being conducted in support of the Space Station program, the
contracting officer shall insert the clause prescribed by paragraph (d) of this
section and designate application of that clause to those particular
activities.
(c) The contracting officer shall
insert the clause at 1852.228-78,
Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) Launches, in
solicitations and contracts of $100,000 or more for the acquisition of ELV
launch services when the service is being acquired by NASA pursuant to an
agreement described in paragraph (a) of this section. If, under a contract that
covers multiple launches, only some of the launches are for payloads provided
pursuant to such agreements, an additional clause shall be inserted in the
contract to designate the particular launches to which this clause applies. If
a payload is being launched by use of an ELV in support of the Space Station
program, the contracting officer shall insert the clause prescribed by
paragraph (d) of this section and designate its application to that particular
launch.
(d) The contracting officer shall
insert the clause at 1852.228-76,
Cross-Waiver of Liability for Space Station Activities, in solicitations and
contracts of $100,000 or more when the work is to be performed involves
"Protected Space Operations" (relating to the Space Station) as that
term is defined in the clause.
(e) At the contracting officer's
discretion, the clauses prescribed by paragraphs (b), (c), and (d) of this
section may be used in solicitations, contracts, new work modifications, or
extensions, to existing contracts under $100,000 involving Space Shuttle activities,
ELV launch services, or Space Station activities, respectively, in appropriate
circumstances. Examples of such circumstances are when the value of contractor
property on a Government installation used in performance of the contract is
significant, or when it is likely that the contractor or subcontractor will
have its valuable property exposed to risk or damage caused by other
participants in the Space Shuttle services, ELV launches, or Space Station
activities.
1828.372 Clause for minimum insurance coverage.
In accordance with FAR 28.306(b)
and 28.307, the contracting officer may
insert a clause substantially as stated at 1852.228-75,
Minimum Insurance Coverage, in fixed-price solicitations and contracts requiring
performance on a government installation and in cost-reimbursement contracts.
The contracting officer may modify the clause to require additional coverage,
such as vessel liability, and higher limits if appropriate for a particular
acquisition.