1852.228-70 Aircraft Ground and Flight
Risk.
As prescribed in 1828.370(a),
insert the following clause. The purpose of this clause is to have the
Government assume risks that generally entail unusually high insurance premiums
and are not covered by the contractor's contents, work-in-process, and similar
insurance. Since the definitions in the clause may not cover every situation
that should be covered to achieve this purpose, the clause may be modified as
follows: If the contract covers helicopters, vertical take-off aircraft,
lighter-than-air airships, or other nonconventional types of aircraft, the
definition of "aircraft" should be modified to specify that the
aircraft has reached a point of manufacture comparable to that specified in the
standard definition, which is written for conventional winged aircraft. The
definition of "in the open" may be modified to include "hush
houses," test hangers, comparable structures, and other designated areas.
In addition, clause paragraph (d)(3) may be modified to provide for Government
assumption of risk of transportation by conveyance on streets or highways if
the contracting officer determines that this transportation is limited to the
vicinity of the contractor's premises and is merely incident to work being
performed under the contract.
AIRCRAFT GROUND AND FLIGHT RISK
(OCTOBER 1996)
(a) Notwithstanding any other provisions of
this contract, except as may be specifically provided in the Schedule as an
exception to this clause, the Government, subject to the definitions and
limitations of this clause, assumes the risk of damage to, or loss or
destruction of, aircraft in the open, during operation, or in flight and agrees
that the Contractor shall not be liable to the Government for any such damage,
loss, or destruction.
(b) For the purposes of this clause, the
following definitions apply:
(1)
Unless otherwise specifically provided in the Schedule, "aircraft"
includes--
(i) Aircraft (including both complete aircraft and aircraft in the
course of being manufactured, disassembled, or reassembled; provided that an
engine, wing, or a portion of a wing is attached to the fuselage) to be
furnished to the Government under this contract (whether before or after
Government acceptance); and
(ii) Aircraft (regardless of whether in a state of disassembly or
reassembly) furnished by the Government to the Contractor under this contract,
including all property installed in, being installed in, or temporarily removed
from them, unless the aircraft and property are covered by a separate bailment
agreement.
(2) "In
the open" means located wholly outside of buildings on the
Contractor's premises, or at such other places as may be described in the
Schedule as being in the open for the purposes of this clause, except that
aircraft furnished by the Government are considered to be in the open at all
times while in the Contractor's possession, care, custody, or control.
(3) "Flight"
includes any flight demonstration, flight test, taxi test, or other flight made
in the performance of this contract, or for the purpose of safeguarding the
aircraft, or previously approved in writing by the Contracting Officer.
(i) With respect to land-based aircraft, flight commences with the
taxi roll from a flight line on the Contractor's premises and continues until
the aircraft has completed the taxi roll in returning to a flight line on the
Contractor's premises.
(ii) With respect to seaplanes, flight commences with the launching from
a ramp on the Contractor's premises and continues until the aircraft has
completed its landing run upon return and is beached at a ramp on the
Contractor's premises.
(iii) With respect to helicopters, flight commences upon engagement of the
rotors for the purpose of take-off from the Contractor's premises and continues
until the aircraft has returned to the ground on the Contractor's premises and
the rotors are disengaged.
(iv) With respect to vertical take-off aircraft, flight commences upon
disengagement from any launching platform or device on the Contractor's
premises and continues until the aircraft has been re-engaged to any launching
platform or device on the Contractor's premises; provided, however, that
aircraft off the Contractor's premises shall be deemed to be in flight when on
the ground or water only during periods of reasonable duration following
emergency landing, other landings made in the performance of this contract, or
landings approved by the Contracting Officer in writing.
(4) "Contractor's
premises" means those premises designated as such in the Schedule or
in writing by the Contracting Officer, and any other place to which aircraft
are moved for the purpose of safeguarding the aircraft.
(5) "Operation"
means operations and tests, other than on any production line, of aircraft not
in flight, whether or not the aircraft is in the open or in motion. It includes
operations and tests of equipment, accessories, and power plants only when
installed in aircraft.
(6) "Flight
crew members" means the pilot, copilot, and, unless otherwise
specifically provided in the Schedule, the flight engineer and navigator when
required or assigned to their respective crew positions to conduct any flight
on behalf of the Contractor.
(7) "Contractor's
managerial personnel" means the Contractor's directors, officers, and
any managers, superintendents, or equivalent representatives who have
supervision or direction of all or substantially all of the Contractor's
business or of the Contractor's operations at any one plant, a separate
location at which this contract is performed, or a separate and complete major
industrial operation in connection with the performance of this contract.
(c) (1) The Government's assumption of
risk under this clause, as to aircraft in the open, shall continue in effect
unless terminated pursuant to paragraph (c)(3) of this clause. If the
Contracting Officer finds that an aircraft is in the open under unreasonable
conditions, the Contracting Officer shall notify the Contractor in writing of
the conditions found to be unreasonable and require the Contractor to correct
them within a reasonable time.
(2)
Upon receipt of this notice, the Contractor shall act promptly to correct these
conditions, regardless of whether it agrees that they are in fact unreasonable.
To the extent that the Contracting Officer may later determine that they were
not in fact unreasonable, an equitable adjustment shall be made in the contract
price to compensate the Contractor for any additional costs incurred in
correcting them, and the contract shall be modified in writing accordingly.
(3)
(i) If the Contracting Officer finds that the Contractor has failed to
act promptly to correct unreasonable conditions or has failed to correct them
within a reasonable time, the Contracting Officer may by written notice
terminate the Government's assumption of risk under this clause for any
aircraft which is in the open under those conditions. This termination shall be
effective at 12:01 A.M. on the 15th day following the day of receipt by the
Contractor of the notice.
(ii) If the Contracting Officer later determines that the Contractor
acted promptly to correct the conditions or that the time taken by the
Contractor was not in fact unreasonable, an equitable adjustment shall,
notwithstanding paragraph (g) of this clause, be made to compensate the
Contractor for any additional costs incurred as a result of the termination,
and the contract shall be modified in writing accordingly.
(4) If
the Government's assumption of risk under this clause is terminated in
accordance with paragraph (c)(3) of this clause, the risk of loss with respect
to Government-furnished property shall be determined in accordance with the
Government property clause of this contract, if any, until the Government's
assumption of risk is reinstated in accordance with paragraph (c)(5) of this
clause.
(5)
(i) When unreasonable conditions have been corrected, the Contractor
shall promptly notify the Government. The Government may or may not elect to
reassume the risks and relieve the Contractor of liabilities as provided in
this clause, and the Contracting Officer shall notify the Contractor of the
Government's election.
(ii) If, after correction of the conditions, the Government elects to
reassume the risks and relieve the Contractor of liabilities, the Contractor
shall be entitled to an equitable adjustment for any costs of insurance
extending from the end of the third working day after the Contractor notifies
the Government of the correction until the Government notifies the Contractor
of that election.
(iii) If the Government elects not to reassume the risks and the conditions
have in fact been corrected, the Contractor shall be entitled to an equitable
adjustment for any costs of insurance extending after the third working day
referred to in paragraph (c)(5)(ii) of this clause.
(d) The Government's assumption of risk shall
not extend to damage to, or loss or destruction of aircraft --
(1)
Resulting from failure of the Contractor, due to willful misconduct or lack of
good faith of any of the Contractor's managerial personnel, to maintain and
administer a program for protecting and preserving aircraft in the open and
during operation, in accordance with sound industrial practice;
(2)
Sustained during flight if the flight crew members conducting the flight have
not been approved in writing by the Contracting Officer;
(3)
While in the course of transportation by rail or by conveyance on public
streets, highways, or waterways, except for Government-furnished property;
(4)
the extent that the damage, loss, or destruction is in fact covered by
insurance;
(5)
Consisting of wear and tear, deterioration (including rust and corrosion),
freezing, or mechanical, structural, or electrical breakdown or failure, unless
this damage is the result of other loss, damage, or destruction covered by this
clause (except that, in the case of Government- furnished property, if the
damage consists of reasonable wear and tear or deterioration or results from an
inherent defect in such property, this exclusion shall not apply); or
(6)
Sustained while the aircraft is being worked upon and directly resulting from
the work, including but not limited to any repairing, adjusting, servicing, or
maintenance operation, unless the damage, loss, or destruction is of a type
that would be covered by insurance that would customarily have been maintained
by the Contractor at the time of the damage, loss, or destruction, but for the
Government's assumption of risk under this clause.
(e) (1) With the exception of damage to,
or loss or destruction of, aircraft in flight, the Government's assumption of
risk under this clause shall not extend to the first $1,000 of loss or damage
resulting from each separately occurring event. The Contractor assumes the risk
of and shall be responsible for the first $1,000 of loss of or damage to
aircraft in the open or during operation resulting from each separately
occurring event, except for reasonable wear and tear and except to the extent
the loss or damage is caused by negligence of Government personnel.
(2) If
the Government elects to require that the aircraft be replaced or restored by
the Contractor to its condition immediately prior to the damage, the equitable
adjustment in the price authorized by paragraph (i) of this clause shall not
include the dollar amount of the risk assumed by the Contractor under this
paragraph (e). If the Government does not elect repair or replacement, the
Contractor agrees to credit the contract price or pay the Government $1,000 (or
the amount of the loss if smaller) as directed by the Contracting Officer.
(f) No subcontractor may be relieved from
liability for damage to, or loss or destruction of, aircraft while in its
possession or control, except to the extent that the subcontract, with the
Contracting Officer's prior written approval, provides for relief of the
subcontractor from that liability. In the absence of such approval, the
subcontract shall require the return of the aircraft in as good condition as
when received, except for reasonable wear and tear or for the utilization of
the property in accordance with the provisions of this contract. If a
subcontractor has not been relieved from liability and any damage, loss, or
destruction occurs, the Contractor shall enforce the liability of the
subcontractor for that damage to, or loss or destruction of, the aircraft for
the benefit of the Government.
(g) The Contractor warrants that the contract
price does not and will not include, except as this clause may otherwise
authorize, any charge or contingency reserve for insurance (including
self-insurance funds or reserves) covering any damage to, or loss or
destruction of, aircraft while in the open, during operation, or in flight, the
risk of which has been assumed by the Government under this clause, whether or
not such assumption may be terminated as to aircraft in the open.
(h) (1) In the event of damage to, or loss
or destruction of, aircraft in the open, during operation, or in flight, the
Contractor shall take all reasonable steps to protect the aircraft from further
damage, separate damaged and undamaged aircraft, and put all aircraft in the
best possible order. Further, except in cases covered by paragraph (e) of this
clause, the Contractor should furnish to the Contracting Officer a statement
of--
(i) The damaged, lost, or destroyed aircraft;
(ii) The time and origin of the damage, loss, or destruction;
(iii) All known interests in commingled property of which aircraft are a part;
and
(iv) Any insurance covering any part of the interest in the commingled
property.
(2)
Except in cases covered by paragraph (e) of this clause, an equitable adjustment
shall be made in the amount due under this contract for expenditures made by
the Contractor in performing its obligations under this paragraph (h), and this
contract shall be modified in writing accordingly.
(i) (1) If, before delivery and acceptance
by the Government, any aircraft is damaged, lost, or destroyed and the
Government has under this clause assumed the risk of that damage, loss, or
destruction, the Government shall either (i) require that the aircraft be
replaced or restored by the Contractor to its condition immediately prior to
the damage or (ii) terminate this contract with respect to that aircraft.
(2) If
the Government requires that the aircraft be replaced or restored, an equitable
adjustment shall be made in the amount due under this contract and in the time
required for its performance, and the contract shall be modified in writing
accordingly.
(3) If
this contract is terminated under this paragraph (i)(1)(ii) with respect to the
aircraft, and under this clause the Government has assumed the risk of the
damage, loss, or destruction, the Contractor shall be paid the contract price
for the aircraft (or, if applicable, any work to be performed on the aircraft)
less any amounts the Contracting Officer determines (i) that it would have cost
the Contractor to complete the aircraft (or any work to be performed on it),
together with any anticipated profit on the uncompleted work and (ii) to be the
value, if any, of the damaged aircraft or any remaining portion of it retained
by the Contractor. The Contracting Officer shall have the right to prescribe
the manner of disposition of the damaged, lost, or destroyed aircraft or any
remaining parts of it, and, if the Contractor incurs additional costs as a result
of such disposition, a further equitable adjustment shall be made in the amount
due to the Contractor.
(j) (1) If the Contractor is at any time
reimbursed or compensated by any third person for any damage, loss, or
destruction of any aircraft, the risk of which has been assumed by the
Government under this clause and for which the Contractor has been compensated
by the Government, it shall equitably reimburse the Government.
(2)
The Contractor shall do nothing to prejudice the Government's rights to recover
against third parties for any such damage, loss, or destruction and, upon the
request of the Contracting Officer, shall at the Government's expense furnish
to the Government all reasonable assistance and cooperation (including the prosecution
of suits and the execution of instruments of assignment or subrogation in favor
of the Government) in obtaining recovery.
(End of clause)
1852.228-71 Aircraft Flight Risks.
As prescribed in 1828.311-270,
insert the following clause:
AIRCRAFT FLIGHT RISKS
(DECEMBER 1988)
(a) Notwithstanding any other provision of
this contract (particularly paragraph (g) of the Government Property (Cost-
Reimbursement, Time-and-Materials, or Labor-Hour Contracts) clause and
paragraph (c) of the Insurance--Liability to Third Persons clause), the
Contractor shall not (1) be relieved of liability for damage to, or loss or
destruction of, aircraft sustained during flight or (2) be reimbursed for
liabilities to third persons for loss of or damage to property or for death or
bodily injury caused by aircraft during flight, unless the flight crew members
have previously been approved in writing by the Contracting Officer.
(b) For the purposes of this clause --
(1) Unless
otherwise specifically provided in the Schedule, "aircraft"
includes any aircraft, whether furnished by the Contractor under this contract
(either before or after Government acceptance) or furnished by the Government
to the Contractor under this contract, including all Government property placed
or installed or attached to the aircraft, unless the aircraft and property are
covered by a separate bailment agreement.
(2) "Flight"
includes any flight demonstration, flight test, taxi test, or other flight made
in the performance of this contract, or for the purpose of safeguarding the
aircraft, or previously approved in writing by the Contracting Officer.
(i) With respect to land-based aircraft, flight commences with the
taxi roll from a flight line and continues until the aircraft has completed the
taxi roll to a flight line.
(ii) With respect to sea-planes, flight commences with the launching from
a ramp and continues until the aircraft has completed its landing run and is
beached at a ramp.
(iii) With respect to helicopters, flight commences upon engagement of the
rotors for the purpose of take-off and continues until the aircraft has
returned to the ground and rotors are disengaged.
(iv) With respect to vertical take-off aircraft, flight commences upon
disengagement from any launching platform or device and continues until the
aircraft has been re-engaged to any launching platform or device.
(3) "Flight
crew members" means the pilot, copilot, and, unless otherwise
specifically provided in the Schedule, the flight engineer and navigator when
required or assigned to their respective crew positions to conduct any flight
on behalf of the Contractor.
(c) (1) If any aircraft is damaged, lost,
or destroyed during flight and the amount of the damage, loss, or destruction
exceeds $100,000 or 20 percent of the estimated cost, exclusive of any fee, of
this contract, whichever is less, and if the Contractor is not liable for the
damage, loss, or destruction under the Government Property (Cost-Reimbursement,
Time-and-Materials, or Labor-Hour Contracts) clause of this contract or under
paragraph (a) of this clause, an equitable adjustment for any resulting repair,
restoration, or replacement required under this contract shall be made (i) in
the estimated cost, the delivery schedule, or both and (ii) in the amount of
any fee to be paid to the Contractor, and the contract shall be modified in
writing accordingly.
(2) In
determining the amount of adjustment in the fee that is equitable, any fault of
the Contractor, its employees, or any subcontractor that materially contributed
to the damage, loss, or destruction shall be taken into consideration.
(End of clause)
1852.228-72 Cross-Waiver of Liability
for Space Shuttle Services.
As prescribed in 1828.371(b)
and (e), insert the following clause:
CROSS-WAIVER OF LIABILITY FOR
SPACE SHUTTLE SERVICES
(SEPTEMBER 1993)
(a) As prescribed by regulation (14 CFR Part
1266), NASA agreements involving Space Shuttle flights are required to contain
broad cross-waivers of liability among the parties and the parties related
entities to encourage participation in space exploration, use, and investment.
The purpose of this clause is to extend this cross-waiver requirement to
Contractors and related entities under their contracts. This cross-waiver of
liability shall be broadly construed to achieve the objective of encouraging
participation in space activities.
(b) As used in this clause, the term:
(1) "Contractors"
and "Subcontractors" include suppliers of any kind.
(2) "Damage"
means:
(i) Bodily injury to, or other impairment of health of, or death of, any
person;
(ii) Damage to, loss of, or loss of use of any property;
(iii) Loss of revenue or profits; or
(iv) Other direct, indirect, or consequential damage;
(3) "Party"
means a person or entity that signs an agreement involving a Space Shuttle
service;
(4) "Payload"
means all property to be flown or used on or in the Space Shuttle; and
(5) "Protected
Space Operations" means all Space Shuttle and payload activities on
Earth, in outer space, or in transit between Earth and outer space performed in
furtherance of an agreement involving Space Shuttle services or performed under
this contract. "Protected Space Operations" excludes activities on
Earth which are conducted on return from space to develop further a payload's
product or process except when such development is for Space Shuttle-related
activities necessary to implement an agreement involving Space Shuttle services
or to perform this contract. It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly, integration,
operation, or use of the Space Shuttle, transfer vehicles, payloads, related
support equipment, and facilities and services;
(ii) All activities related to ground support, test, training,
simulation, or guidance and control equipment, and related facilities or
services.
(6) "Related
entity" means:
(i) A party's Contractors or subcontractors at any tier;
(ii) A party's users or customers at any tier; or
(iii) A Contractor or subcontractor of a party's user or customer at any tier.
(c) (1) The Contractor agrees to a waiver
of liability pursuant to which the Contractor waives all claims against any of
the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause based on damage arising out of Protected Space Operations. This
waiver shall apply only if the person, entity, or property causing the damage
is involved in Protected Space Operations and the person, entity, or property
damaged is damaged by virtue of its involvement in Protected Space Operations.
This waiver shall apply to any claims for damage, whatever the legal basis for
such claims, including but not limited to delict (a
term used in civil law countries to denote a class of cases similar to tort)
and tort (including negligence of every degree and kind) and contract, against:
(i) Any party other than the Government;
(ii) A related entity of any party other than the Government; and
(iii) The employees of any of the entities identified in (c)(1)(i) and
(c)(1)(ii) of this clause.
(2)
The Contractor agrees to extend the waiver of liability as set forth in
paragraph (c)(1) of this clause to subcontractors at any tier by requiring
them, by contract or otherwise, to agree to waive all claims against the
entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause.
(3)
For avoidance of doubt, this cross-waiver includes a cross-waiver of liability
arising from the Convention on International Liability for Damage Caused by
Space Objects, (March 29, 1972, 24 United States Treaties and other
International Agreements (U.S.T.) 2389, Treaties and Other International Acts
Series (T.I.A.S.) No. 7762 in which the person, entity, or property causing the
damage is involved in Protected Space Operations, and the person, entity, or
property damaged is damaged by virtue of its involvement in Protected Space
Operations.
(4)
Notwithstanding the other provisions of this clause, this waiver of liability
shall not be applicable to:
(i) Claims between any party and its related entities or claims
between the Government's related entities (e.g., claims between the Government
and the Contractor are included within this exception);
(ii) Claims made by a natural person, his/her estate, survivors, or subrogees for injury or death of such natural person;
(iii) Claims for damage caused by willful misconduct; and
(iv) Intellectual property claims.
(5)
Nothing in this clause shall be construed to create the basis for a claim or
suit where none would otherwise exist.
(End of clause)
1852.228-73 Bid Bond.
As prescribed in 1828.101-70,
insert the following provision:
BID BOND
(OCTOBER 1988)
(a) Each bidder shall submit with its bid a
bid bond (Standard Form 24) with good and sufficient surety or sureties
acceptable to the Government, or other security as provided in Federal
Acquisition Regulation clause 52.228-1,
in the amount of twenty percent (20%) of the bid price, or $3 million,
whichever is the lower amount.
(b) Bid bonds shall be dated the same date as
the bid or earlier.
(End of provision)
1852.228-75 Minimum Insurance
Coverage.
As prescribed in 1828.372,
insert the following clause:
MINIMUM INSURANCE COVERAGE
(OCTOBER 1988)
The Contractor shall obtain and maintain insurance
coverage as follows for the performance of this contract:
(a) Worker's compensation and employer's
liability insurance as required by applicable Federal and state workers'
compensation and occupational disease statutes. If occupational diseases are
not compensable under those statutes, they shall be covered under the
employer's liability section of the insurance policy, except when contract
operations are so commingled with the Contractor's commercial operations that
it would not be practical. The employer's liability coverage shall be at least
$100,000, except in States with exclusive or monopolistic funds that do not
permit workers' compensation to be written by private carriers.
(b) Comprehensive general (bodily injury)
liability insurance of at least $500,000 per occurrence.
(c) Motor vehicle liability insurance written on
the comprehensive form of policy which provides for bodily injury and property
damage liability covering the operation of all motor vehicles used in
connection with performing the contract. Policies covering motor vehicles
operated in the
(d) Comprehensive general and motor vehicle
liability policies shall contain a provision worded as follows:
"The insurance company waives any right of
subrogation against the
(e) When aircraft are used in connection with performing the contract, aircraft public and passenger liability insurance of at least $200,000 per person and $500,000 per occurrence for bodily injury, other than passenger liability, and $200,000 per occurrence for property damage. Coverage for passenger liability bodily injury shall be at least $200,000 multiplied by the number of seats or passengers, whichever is greater.
(End of clause)
1852.228-76 Cross-Waiver of Liability
for Space Station Activities.
As prescribed in 1828.371(d)
and (e), insert the following clause:
CROSS-WAIVER OF LIABILITY FOR
SPACE STATION ACTIVITIES
(DECEMBER 1994)
(a) The Intergovernmental Agreement for the
Space Station contains a broad cross-waiver provision to encourage participation
in the exploration and use of outer space through the Space Station. The
purpose of this clause is to extend this cross-waiver requirement to
Contractors and subcontractors as related entities of NASA. This cross-waiver
of liability shall be broadly construed to achieve this objective of
encouraging participation in space activities.
(b) As used in this clause, the term:
(1) "Damage"
means:
(i) Bodily injury to, or other impairment of health of, or death
of, any person;
(ii) Damage to, loss of, or loss of use of any property;
(iii) Loss of revenue or profits; or
(iv) Other direct, indirect, or consequential damage.
(2) "Launch
Vehicle" means an object (or any part thereof) intended for launch,
launched from Earth, or returning to Earth which carries payloads or persons,
or both.
(3) "Partner
State" means each contracting party for which the "Agreement
among the Government of the United States of America, Governments of Member
States of the European Space Agency, Government of Japan, and the Government of
Canada on Cooperation in the Detailed Design, Development, Operation, and
Utilization of the Permanently Manned Civil Space Station" (the
"Intergovernmental Agreement") has entered into force, in accordance
with Article 25 of the Intergovernmental Agreement, and also includes any
future signatories of the Intergovernmental Agreement. It includes the Cooperating
Agency of a
(4) "Payload"
means all property to be flown or used on or in a launch vehicle or the Space
Station.
(5) "Protected
Space Operations" means all launch vehicle activities, space station
activities, and payload activities on Earth, in outer space, or in transit
between Earth and outer space performed in furtherance of the Intergovernmental
Agreement or performed under this contract. "Protected Space
Operations" also includes all activities related to evolution of the Space
Station as provided for in Article 14 of the Intergovernmental Agreement.
"Protected Space Operations" excludes activities on Earth which are
conducted on return from the Space Station to develop further a payload's
product or process except when such development is for Space Station-related
activities in implementation of the Intergovernmental Agreement or in
performance of this contract. It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly,
integration, operation, or use of launch or transfer vehicles, payloads,
related support equipment, and facilities and services;
(ii) All activities related to ground support, test, training, simulation,
or guidance and control equipment and related facilities or services.
(6) "Related
entity" means:
(i) A Partner State's Contractors or subcontractors at any tier;
(ii) A Partner State's users or customers at any tier; or
(iii) A Contractor or subcontractor of a Partner State's user or customer at
any tier.
(7) "Contractors"
and "Subcontractors" include suppliers of any kind.
(c) (1) The Contractor agrees to a cross-waiver
of liability pursuant to which the Contractor waives all claims against any of
the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause based on damage arising out of Protected Space Operations. This
waiver shall apply only if the person, entity, or property causing the damage
is involved in Protected Space Operations and the person, entity, or property
damaged is damaged by virtue of its involvement in Protected Space Operations.
The cross-waiver shall apply to any claims for damage, whatever the legal basis
for such claims, including but not limited to delict
(a term used in civil law countries to denote a class of cases similar to tort)
and tort (including negligence of every degree and kind) and contract against:
(i) Any Partner State other than the United States;
(ii) A related entity of any Partner State other than the United States;
and
(iii) The employees of any of the entities identified in paragraphs (c)(1)(i)
and (ii) of this clause.
(2)
The Contractor agrees to extend the waiver of liability as set forth in
paragraph (c)(1) of this clause to subcontractors at any tier by requiring
them, by contract or otherwise, to agree to waive all claims against the
entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause.
(3)
For avoidance of doubt, this cross-waiver includes a cross-waiver of liability
arising from the Convention on International Liability for Damage Caused by
Space Objects, (March 29, 1972, 24 United States Treaties and other
International Agreements (U.S.T.) 2389, Treaties and other International Acts
Series (T.I.A.S.) No. 7762) in which the person, entity, or property causing the
damage is involved in Protected Space Operations.
(4)
Notwithstanding the other provisions of this clause, this cross-waiver of
liability shall not be applicable to:
(i) Claims between the United States and its related entities or
claims between the related entities of any Partner State (e.g., claims between
the Government and the Contractor are included within this exception);
(ii) Claims made by a natural person, his/her estate, survivors, or subrogees for injury or death of such natural person;
(iii) Claims for damage caused by willful misconduct; and
(iv) Intellectual property claims.
(5)
Nothing in this clause shall be construed to create the basis for a claim or
suit where none would otherwise exist.
(End of clause)
1852.228-78 Cross-Waiver of Liability
for NASA Expendable Launch Vehicle Launches.
As prescribed in 1828.371(c)
and (e), insert the following clause:
CROSS-WAIVER OF LIABILITY FOR NASA
EXPENDABLE
LAUNCH VEHICLE (ELV) LAUNCHES
(SEPTEMBER 1993)
(a) As prescribed by regulation (14 CFR Part 1266),
NASA agreements involving ELV launches are required to contain broad
cross-waivers of liability among the parties and the parties related entities
to encourage participation in space exploration, use, and investment. The
purpose of this clause is to extend this cross-waiver requirement to
Contractors and subcontractors as related entities of NASA. This cross-waiver
of liability shall be broadly construed to achieve the objective of encouraging
participation in space activities.
(b) As used in this clause, the term:
(1) "Contractors"
and "Subcontractors" include suppliers of any kind.
(2) "Damage"
means:
(i) Bodily injury to, or other impairment of health of, or death
of, any person;
(ii) Damage to, loss of, or loss of use of any property;
(iii) Loss of revenue or profits; or
(iv) Other direct, indirect, or consequential damage;
(3) "Party"
means a person or entity that signs an agreement involving an ELV launch;
(4) "Payload"
means all property to be flown or used on or in the ELV; and
(5) "Protected
Space Operations" means all ELV and payload activities on Earth, in
outer space, or in transit between Earth and outer space performed in
furtherance of an agreement involving an ELV launch or performed under the
contract. "Protected Space Operations" excludes activities on Earth
which are conducted on return from space to develop further a payload's product
or process except when such development is for ELV-related activities necessary
to implement an agreement involving an ELV launch or to perform this contract.
It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly,
integration, operation, or use of ELVs, transfer
vehicles, payloads, related support equipment, and facilities and services;
(ii) All activities related to ground support, test, training,
simulation, or guidance and control equipment, and related facilities or
services.
(6)
"Related entity" means:
(i) A party's Contractors or subcontractors at any tier;
(ii) A party's users or customers at any tier; or
(iii) A Contractor or subcontractor of a party's user or customer at any tier.
(c) (1) The Contractor agrees to a waiver
of liability pursuant to which the Contractor waives all claims against any of
the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause based on damage arising out of Protected Space Operations. This
waiver shall apply only if the person, entity, or property causing the damage
is involved in Protected Space Operations and the person, entity, or property
damaged is damaged by virtue of its involvement in Protected Space Operations.
The waiver shall apply to any claims for damage, whatever the legal basis for
such claims, including but not limited to delict (a
term used in civil law countries to denote a class of cases similar to tort)
and tort (including negligence of every degree and kind) and contract, against:
(i) Any party other than the Government;
(ii) A related entity of any party other than the Government; and
(iii) The employees of any of the entities identified in (c)(1)(i) and (ii) of
this clause.
(2)
The Contractor agrees to extend the waiver of liability as set forth in
paragraph (c)(1) of this clause to subcontractors at any tier by requiring
them, by contract or otherwise, to agree to waive all claims against the
entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iii) of
this clause.
(3)
For avoidance of doubt, this cross-waiver includes a cross-waiver of liability
arising from the Convention on International Liability for Damage Caused by
Space Objects, (March 29, 1972, 24 United States Treaties and other
International Agreements (U.S.T.) 2389, Treaties and other International Acts
Series (T.I.A.S.) No. 7762) in which the person, entity, or property causing
the damage is involved in Protected Space Operations.
(4) Notwithstanding the other provisions of this clause, this
cross-waiver of liability shall not be applicable to:
(i) Claims between any party and its related entities or claims
between any party's related entities (e.g., claims between the Government and
the Contractor are included within this exception);
(ii) Claims made by a natural person, his/her estate, survivors, or subrogees for injury or death of such natural person;
(iii) Claims for damage caused by willful misconduct; and
(iv) Intellectual property claims.
(5) Nothing in this clause shall be construed to create the basis for a
claim or suit where none would otherwise exist.
(6) This cross-waiver shall not be applicable when the Commercial Space
Launch Act cross-waiver (49 U.S.C. App. 2615) is applicable.
(End of clause)
1852.228-80 Insurance -- Immunity From Tort
Liability.
As prescribed in 1828.311-270(b), insert the following
provision:
INSURANCE -- IMMUNITY FROM TORT
LIABILITY
(SEPTEMBER 2000)
If the offeror is
partially or totally immune from tort liability to third persons as a State
agency or as a charitable institution, the offeror will include in its offer a
representation to that effect. When the successful offeror represented in its
offer that it is immune from tort liability, the following clause(s) will be
included in the resulting contract:
(a) When the offeror represents that it is
partially immune from tort liability to third persons as a State agency or as a
charitable institution, the clause at FAR
52.228-7, Insurance -- Liability To Third Persons, and the associated
NFS clause 1852.228-81, Insurance -- Partial
Immunity From Tort Liability, will be included in the contract.
(b) When the offeror represents that it is
totally immune from tort liability to third persons as a State agency or as a
charitable institution. the clause at NFS 1852.228-82,
Insurance -- Total Immunity From Tort Liability, will be included in the
contract.
(End of provision)
1852.228-81 Insurance -- Partial Immunity
From Tort Liability.
As prescribed in 1828.311-270(c),
insert the following clause:
INSURANCE -- PARTIAL IMMUNITY FROM
TORT LIABILITY
(SEPTEMBER 2000)
(a) Except as
provided for in paragraph (b) of this clause, the Government does not assume
any liability to third persons, nor will the Government reimburse the
Contractor for its liability to third persons, with respect to loss due to
death, bodily injury, or damage to property resulting in any way from the
performance of this contract; and
(b) The Contractor need not provide or maintain insurance
coverage as required by paragraph (a) of FAR clause 52.228-7,
Insurance -- Liability To Third Persons, provided that the Contractor may
obtain any insurance coverage deemed necessary, subject to approval by the
Contracting Officer as to form, amount, and duration. The Contractor
shall be reimbursed for the cost of such insurance and, to the extent provided
in paragraph (c) of FAR clause 52.228-7,
for liabilities to third person for which the Contractor has obtained insurance
coverage as provided in this paragraph, but for which such coverage is
insufficient in amount.
(End of clause)
1852.228-82 Insurance -- Total Immunity
From Tort Liability.
As prescribed in 1828.311-270(d),
insert the following clause:
INSURANCE -- TOTAL IMMUNITY FROM
TORT LIABILITY
(SEPTEMBER 2000)
(a) The Government does not assume any
liability to third persons, nor will the Government reimburse the Contractor
for its liability to third persons, with respect to loss due to death, bodily
injury, or damage to property resulting in any way from the performance of this
contract or any subcontract under this contract.
(b) If any suit or action is filed, or if any
claim is made against the Contractor, the cost and expense of which may be
reimbursable to the Contractor under this contract, the Contractor will
immediately notify the Contracting Officer and promptly furnish copies of all
pertinent papers received by the Contractor. The Contractor will, if
required by the Government, authorize Government representatives to settle or
defend the claim and to represent the Contractor in or take charge of any
litigation. The Contractor may, at its own expense, be associated with
the Government representatives in any such claim or litigation.
(End of clause)
1852.231-70 Precontract
Costs.
As prescribed in 1831.205-70,
insert the following clause:
PRECONTRACT COSTS
(JUNE 1995)
The Contractor shall be entitled to reimbursement for costs incurred on or after in an amount not to exceed $ __ that, if incurred after this contract had been entered into, would have been reimbursable under this contract.
(End of clause)
1852.231-71 Determination of Compensation
Reasonableness.
As prescribed at 1831.205-671,
insert the following provision.
DETERMINATION OF COMPENSATION
REASONABLENESS
(MARCH 1994)
(a) The proposal shall include a total
compensation plan. This plan shall address all proposed labor categories,
including those personnel subject to union agreements, the Service Contract
Act, and those exempt from both of the above. The total compensation plan shall
include the salaries/wages, fringe benefits and leave programs proposed for
each of these categories of labor. The plan also shall include a discussion of
the consistency of the plan among the categories of labor being proposed. Differences
between benefits offered professional and non-professional employees shall be
highlighted. The requirements of this plan may be combined with that required
by the clause at FAR 52.222-46,
"Evaluation of Compensation for Professional Employees."
(b) The offeror shall provide written support to
demonstrate that its proposed compensation is reasonable.
(c) The offeror shall include the rationale for
any conformance procedures used or those Service Contract Act employees
proposed that do not fall within the scope of any classification listed in the
applicable wage determination.
(d) The offeror shall require all service
subcontractors (1) with proposed cost reimbursement or non-competitive
fixed-price type subcontracts having a total potential value in excess of
$500,000 and (2) the cumulative value of all their service subcontracts under
the proposed prime contract in excess of 10 percent of the prime contract's
total potential value, provide as part of their proposals the information
identified in (a) through (c) of this provision.
(End of provision)
1852.232-70 NASA Modification of FAR 52.232-12.
As prescribed at 1832.412-70,
make the following modifications:
NASA MODIFICATION OF FAR 52.232-12
(MARCH 1998)
(a) Basic Clause. (1) In paragraph
(e), Maximum Payment, in the sentence that begins "When the sum of,"
change the word "When" to lower case and insert before it: "Unliquidated advance payments shall not exceed $..... at
any time outstanding. In addition.…"
(2) In
paragraph (m)(1), delete "in the form prescribed by the administering
office" and substitute "and Standard Form 272, Federal Cash
Transactions Report, and, if appropriate, Standard Form 272-A, Federal Cash
Transactions Report Continuation."
(b) Alternate II (if incorporated in the
contract). In paragraph (e), Maximum Payment, in the sentence that begins
"When the sum of," change the word "When" to lower case and
insert before it: "Unliquidated advance payments
shall not exceed $..... at any time outstanding. In addition.…"
(c) Alternate V (if incorporated in the
contract). (1) Substitute the following for paragraph (b): "(b) Use of
funds. The Contractor may use advance payment funds only to pay for properly
allocable, allowable, and reasonable costs for direct materials, direct labor,
indirect costs, or such other costs approved in writing by the administering
contracting office. Payments are subject to any restrictions in other clauses
of this contract. Determinations of whether costs are properly allocable,
allowable, and reasonable shall be in accordance with generally accepted
accounting principles, subject to any applicable subparts of Part 31
of the Federal Acquisition Regulation, other applicable regulations referenced
in Part 31, or Subpart
1831.2."
(2) In
paragraph (d), Maximum Payment, in the sentence that begins "When the sum
of," change the word "When" to lower case and insert before it:
"Unliquidated advance payments shall not exceed
$........ at any time outstanding. In addition....…"
(3) In
paragraph (j)(1), insert between "statements," and "and"
"together with Standard Form 272, Federal Cash Transactions Report, and,
if appropriate, Standard Form 272-A, Federal Cash Transactions Report
Continuation"
(4) If
this is a Phase I contract awarded under the SBIR or STTR programs, delete
paragraph (a) and substitute the following: "(a) Requirements for payment.
Advance payments will be made under this contract upon receipt of invoices from
the Contractor. Invoices should be clearly marked "Small Business
Innovation Research Contract" or "Small Business Technology Transfer
Contract," as appropriate, to expedite payment processing. One-third of
the total contract price will be available to be advanced to the contractor
immediately after award, another one-third will be advanced three months after
award, and the final one-third will be paid upon acceptance by NASA of the
Contractor's final report. By law, full payment must be made no later than 12
months after the date that contract requirements are completed. The Contractor
shall flow down the terms of this clause to any subcontractor requiring advance
payments."
(End of clause)
1852.232-77 Limitation of Funds
(Fixed- Price Contract).
As prescribed in 1832.705-270(a),
insert the following clause. Contracting officers are authorized, in
appropriate cases, to revise clause paragraphs (a), (b), and (g) to specify the
work required under the contract, in lieu of using contract item numbers. The
60-day period may be varied from 30 to 90 days, and the 75 percent from 75 to
85 percent:
LIMITATION OF FUNDS (FIXED-PRICE
CONTRACT)
(MARCH 1989)
(a) Of the total price of items through
__ , the sum of $ ___ is presently
available for payment and allotted to this contract. It is anticipated that
from time to time additional funds will be allocated to the contract in
accordance with the following schedule, until the total price of said items is
allotted:
SCHEDULE FOR ALLOTMENT OF FUNDS |
|
Date |
Amounts |
(b) The Contractor agrees to perform or have
performed work on the items specified in paragraph (a) of this clause up to the
point at which, if this contract is terminated pursuant to the Termination for Convenience
of the Government clause of this contract, the total amount payable by the
Government (including amounts payable for subcontracts and settlement costs)
pursuant to paragraphs (f) and (g) of that clause would, in the exercise of
reasonable judgment by the Contractor, approximate the total amount at the time
allotted to the contract. The Contractor is not obligated to continue
performance of the work beyond that point. The Government is not obligated in
any event to pay or reimburse the Contractor more than the amount from time to
time allotted to the contract, anything to the contrary in the Termination for
Convenience of the Government clause notwithstanding.
(c) (1) It is contemplated that funds
presently allotted to this contract will cover the work to be performed
until
.
(2) If
funds allotted are considered by the Contractor to be inadequate to cover the
work to be performed until that date, or an agreed date substituted for it, the
Contractor shall notify the Contracting Officer in writing when within the next
60 days the work will reach a point at which, if the contract is terminated
pursuant to the Termination for Convenience of the Government clause of this
contract, the total amount payable by the Government (including amounts payable
for subcontracts and settlement costs) pursuant to paragraphs (f) and (g) of
that clause will approximate 75 percent of the total amount then allotted to
the contract.
(3)
(i) The notice shall state the estimate when the point referred to
in paragraph (c)(2) of this clause will be reached and the estimated amount of
additional funds required to continue performance to the date specified in
paragraph (c)(1) of this clause, or an agreed date substituted for it.
(ii) The Contractor shall, 60 days in advance of the date specified in
paragraph (c)(1) of this clause, or an agreed date substituted for it, advise
the Contracting Officer in writing as to the estimated amount of additional
funds required for the timely performance of the contract for a further period
as may be specified in the contract or otherwise agreed to by the parties.
(4)
If, after the notification referred to in paragraph (c)(3)(ii) of this clause,
additional funds are not allotted by the date specified in paragraph (c)(1) of
this clause, or an agreed date substituted for it, the Contracting Officer
shall, upon the Contractor's written request, terminate this contract on that
date or on the date set forth in the request, whichever is later, pursuant to
the Termination for Convenience of the Government clause.
(d) When additional funds are allotted from time
to time for continued performance of the work under this contract, the parties
shall agree on the applicable period of contract performance to be covered by
these funds. The provisions of paragraphs (b) and (c) of this clause shall
apply to these additional allotted funds and the substituted date pertaining to
them, and the contract shall be modified accordingly.
(e) If, solely by reason of the Government's
failure to allot additional funds in amounts sufficient for the timely
performance of this contract, the Contractor incurs additional costs or is
delayed in the performance of the work under this contract, and if additional
funds are allotted, an equitable adjustment shall be made in the price or
prices (including appropriate target, billing, and ceiling prices where
applicable) of the items to be delivered, or in the time of delivery, or both.
(f) The Government may at any time before
termination, and, with the consent of the Contractor, after notice of
termination, allot additional funds for this contract.
(g) The provisions of this clause with respect
to termination shall in no way be deemed to limit the rights of the Government
under the default clause of this contract. The provisions of this Limitation of
Funds clause are limited to the work on and allotment of funds for the items
set forth in paragraph (a) of this clause. This clause shall become inoperative
upon the allotment of funds for the total price of said work except for rights
and obligations then existing under this clause.
(h) Nothing in this clause shall affect the
right of the Government to terminate this contract pursuant to the Termination
for Convenience of the Government clause of this contract.
(End of clause)
1852.232-79 Payment for On-Site
Preparatory Costs
As prescribed in 1832.111-70,
insert the following clause:
PAYMENT FOR ON-SITE PREPARATORY
COSTS
(SEPTEMBER 1987)
Costs associated with on-site preparatory work (start-up or set-up costs) will be prorated over all work activities of a Critical Path Method (CPM) network or Progress Chart against which progress payments will be sought. Separate payment for on-site preparatory costs will not be made by the Government.
(End of clause)
1852.232-81 Contract Funding.
As prescribed in 1832.705-270(b),
insert the following clause:
CONTRACT FUNDING
(JUNE 1990)
(a) For purposes of payment of cost,
exclusive of fee, in accordance with the Limitation of Funds clause, the total
amount allotted by the Government to this contract is $ ___ .
. This allotment is for [Insert applicable item number(s), task(s),
or work description]
___ and covers the following estimated period of performance:
_____ .
(b) An additional amount of $
__ is obligated under this contract for payment of fee.
(End of clause)
1852.232-82 Submission of Requests for
Progress Payments.
As prescribed in 1832.502-470,
insert the following clause:
SUBMISSION OF REQUESTS FOR
PROGRESS PAYMENTS
(MARCH 1989)
The Contractor shall request progress payments in accordance with the Progress Payments clause by submitting to the Contracting Officer an original and two copies of Standard Form (SF) 1443, Contractor's Request for Progress Payment, and the contractor's invoice (if applicable). The Contracting Officer's office is the designated billing office for progress payments for purposes of the Prompt Payment clause.
(End of clause)
1852.233-70
Protests to NASA.
As prescribed in 1833.106-70,
insert the following provision:
PROTESTS
TO NASA
(OCTOBER 2002)
Potential bidders or offerors may submit a protest under 48 CFR Part 33 (FAR Part 33) directly to the Contracting Officer. As an alternative to the Contracting Officer's consideration of a protest, a potential bidder or offeror may submit the protest to the Assistant Administrator for Procurement, who will serve as or designate the official responsible for conducting an independent review. Protests requesting an independent review shall be addressed to Assistant Administrator for Procurement, NASA Code H, Washington, DC 20546-0001.
(End
of provision)
1852.234-1
Notice of Earned Value Management System.
As prescribed in 1834.203-70(a), insert the following provision:
NOTICE
OF EARNED VALUE MANAGEMENT SYSTEM
(NOVEMBER 2006)
(a) The offeror shall provide documentation that its proposed Earned Value Management System (EVMS) complies with the EVMS guidelines in the American National Standards Institute (ANSI)/Electronic Industries Alliance (EIA)-748 Standard, Earned Value Management Systems.
(b) If the offeror
proposes to use a system that currently does not meet the requirements of paragraph
(a) of this provision, the offeror shall submit its
comprehensive plan for compliance with the EVMS guidelines to the Government
for approval.
(1) The plan shall—
(i) Describe the EVMS
the offeror intends to use in performance of the
contract;
(ii) Distinguish between the offeror's
existing management system and modifications proposed to meet the EVMS
guidelines in ANSI/EIA-748;
(iii)
Describe the management system and its application in terms of the EVMS
guidelines;
(iv) Describe the proposed procedure for application of the
EVMS requirements to subcontractors;
(v) Describe how the offeror
will ensure EVMS compliance for each subcontractor subject to the flowdown requirement in paragraph (c) whose EVMS has not
been recognized by the Cognizant Federal Agency as compliant according to
paragraph (a);
(vi) Provide documentation describing the process and
results, including Government participation, of any third-party or
self-evaluation of the system’s compliance with the EVMS guidelines; and
(vii) If the value of the offeror’s
proposal, including options, is $50 million or more, provide a schedule of
events leading up to formal validation and Government acceptance of the
Contractor’s EVMS. This schedule should
include progress assistance visits, the first visit occurring no later than 30
days after contract award, and a compliance review as soon as practicable. The Department of Defense Earned Value
Management Implementation Guide (https://acc.dau.mil/CommunityBrowser.aspx?id=19557) outlines the
requirements for conducting a progress assistance visit and validation
compliance review.
(2) The offeror shall
provide information and assistance as required by the Contracting Officer to
support review of the plan.
(3) The Government will review the offeror’s EVMS implementation plan prior to contract award.
(c)
The offeror shall identify in its offer the
major subcontractors, or major subcontracted effort if major subcontractors
have not been selected, planned for application of the EVMS requirement. Prior to contract award, the offeror and NASA shall agree on the subcontractors, or
subcontracted effort, subject to the EVMS requirement.
(d) The offeror
shall incorporate its compliance evaluation factors for subcontractors into the
plan required by paragraph (b) of this provision.
(End of
provision)
1852.234-2 Earned Value
Management System.
As prescribed in 1834.203-70(b) insert the following clause:
EARNED VALUE MANAGEMENT SYSTEM
(NOVEMBER 2006)
(a) In the performance of this contract, the Contractor shall use--
(1) An Earned Value Management System (EVMS) that has been determined by the Cognizant Federal Agency to be compliant with the EVMS guidelines specified in the American National Standards Institute (ANSI)/Electronic Industries Alliance (EIA) – 748 Standard, Industry Guidelines for Earned Value Management Systems (current version at the time of award) to manage this contract; and
(2) Earned Value Management procedures that provide for generation of timely, accurate, reliable, and traceable information for the Contract Performance Report (CPR) required by the contract.
(b) If, at the time of award, the Contractor’s EVMS has not been determined by the Cognizant Federal Agency to be compliant with the EVMS guidelines, or the Contractor does not have an existing cost/schedule control system that is compliant with the guidelines in the ANSI/EIA-748 Standard (current version at the time of award), the Contractor shall apply the system to the contract and shall take timely action to implement its plan to obtain compliance/validation. The Contractor shall follow and implement the approved compliance/validation plan in a timely fashion. The Government will conduct a Compliance Review to assess the contactor’s compliance with its plan, and if the Contractor does not follow the approved implementation schedule or correct all resulting system deficiencies identified as a result of the compliance review within a reasonable time, the Contracting Officer may take remedial action, that may include, but is not limited to, a reduction in fee.
(c) The Government will conduct Integrated Baseline Reviews (IBRs). Such reviews shall be scheduled and conducted as early as practicable, and if a pre-award IBR has not been conducted, a post-award IBR should be conducted within 180 calendar days after contract award, or the exercise of significant contract options, or within 60 calendar days after distribution of a supplemental agreement that implements a significant funding realignment or effects a significant change in contractual requirements (e.g., incorporation of major modifications). The objective of IBRs is for the Government and the Contractor to jointly assess the Contractor’s baseline to be used for performance measurement to ensure complete coverage of the statement of work, logical scheduling of the work activities, adequate resourcing, and identification of inherent risks.
(d) Unless a waiver is granted by the Cognizant Federal Agency, Contractor proposed EVMS changes require approval of the Cognizant Federal Agency prior to implementation. The Cognizant Federal Agency shall advise the Contractor of the acceptability of such changes within 30 calendar days after receipt of the notice of proposed changes from the Contractor. If the advance approval requirements are waived by the Cognizant Federal Agency, the Contractor shall disclose EVMS changes to the Cognizant Federal Agency at least 14 calendar days prior to the effective date of implementation.
(e) The Contractor agrees to provide access to all pertinent records and data requested by the Contracting Officer or a duly authorized representative. Access is to permit Government surveillance to ensure that the Contractor’s EVMS complies, and continues to comply, with the EVMS guidelines referenced in paragraph (a) of this clause, and to demonstrate—
(1) Proper implementation of the procedures generating the cost and schedule information being used to satisfy the contract data requirements;
(2) Continuing application of the accepted company procedures in satisfying the CPR required by the contract through recurring program/project and contract surveillance; and
(3) Implementation of any corrective actions identified during the surveillance process.
(f) The Contractor shall be responsible for ensuring that its subcontractors, identified below, comply with the EVMS requirements of this clause as follows:
(1) For subcontracts with an estimated dollar value of $50M or more, the following subcontractors shall comply with the requirements of this clause.
(Contracting Officer to insert names of subcontractors or subcontracted effort).
|
|
|
|
(2) For subcontracts with an estimated dollar value
of less than $50M, the following subcontractors shall comply with the
requirements of this clause except for the requirement in paragraph (b), if
applicable, to obtain compliance/validation.
(Contracting Officer to insert names of subcontractors or subcontracted effort.)
|
|
|
|
(g) If the contractor identifies a need to
deviate from the agreed baseline by working against an Over Target Baseline
(OTB) or Over Target Schedule (OTS), the contractor shall submit to the Contracting
Officer a request for approval to begin implementation of an OTB or OTS. This request shall include a top-level
projection of cost and/or schedule growth, whether or not performance variances
will be retained, and a schedule of implementation for the reprogramming
adjustment. The Government will approve
or deny the request within 30 calendar days after receipt of the request. Failure of the Government to respond within
this 30-day period constitutes approval of the request. Approval of the deviation request does not
constitute a change, or the basis for a change, to the negotiated cost or price
of this contract, or the estimated cost of any undefinitized
contract actions.
(End of clause)
(ALTERNATE
I)
(NOVEMBER
2006)
As
prescribed in 1834.203-70(b), substitute the following paragraph (b) for
paragraph (b) of the basic clause:
(b) If, at the time of award, the Contractor’s EVMS has not been determined by the Cognizant Federal Agency to be compliant with the EVMS guidelines, or the Contractor does not have an existing cost/schedule control system that is compliant with the guidelines in the ANSI/EIA-748 Standard (current version at the time of ward), the Contractor shall apply the system to the contract and shall take timely action to implement its plan to be compliant with the guidelines. The Government will not formally validate/accept the Contractor’s EVMS with respect to this contract. The use of the Contractor’s EVMS for this contract does not imply Government acceptance of the Contractor’s EVMS for application to future contracts. The Government will monitor compliance through routine surveillance.
As prescribed in 1835.070(a),
insert the following clause:
CENTER FOR AEROSPACE INFORMATION
(DECEMBER 2006)
(a) The Contractor should register
with and avail itself of the services provided by the
(b)
Should the CASI information or service requested by the Contractor be
unavailable or not in the exact form necessary by the Contractor, neither CASI
nor NASA is obligated to search for or change the format of the information. A failure to furnish information shall not
entitle the Contractor to an equitable adjustment under the terms and
conditions of this contract.
(c) Information
regarding CASI and the services available can be obtained at the Internet
address contained in paragraph (a) of this clause.
(End of clause)
1852.235-71 Key Personnel and Facilities.
As prescribed in 1835.070(b),
insert the following clause:
KEY
PERSONNEL AND FACILITIES
(MARCH 1989)
(a)
The personnel and/or facilities listed below (or specified in the contract
Schedule) are considered essential to the work being performed under this
contract. Before removing, replacing, or diverting any of the listed or
specified personnel or facilities, the Contractor shall (1) notify the
Contracting Officer reasonably in advance and (2) submit justification
(including proposed substitutions) in sufficient detail to permit evaluation of
the impact on this contract.
(b) The Contractor shall make no diversion
without the Contracting Officer's written consent; provided, that the
Contracting Officer may ratify in writing the proposed change, and that
ratification shall constitute the Contracting Officer's consent required by
this clause.
(c) The list of personnel and/or facilities
(shown below or as specified in the contract Schedule) may, with the consent of
the contracting parties, be amended from time to time during the course of the
contract to add or delete personnel and/or facilities.
[List here the personnel and/or facilities considered essential, unless they are specified in the contract Schedule.]
(End
of clause)
1852.235-72 Instructions for Responding to
NASA Research Announcements.
As prescribed in 1835.070(c),
insert the following provision:
INSTRUCTIONS FOR RESPONDING TO
NASA RESEARCH ANNOUNCEMENTS
(NOVEMBER 2004)
(a) General.
(1)
Proposals received in response to a NASA Research Announcement (NRA) will be
used only for evaluation purposes. NASA does not allow a proposal, the contents
of which are not available without restriction from another source, or any
unique ideas submitted in response to an NRA to be used as the basis of a
solicitation or in negotiation with other organizations, nor is a pre-award
synopsis published for individual proposals.
(2) A
solicited proposal that results in a NASA award becomes part of the record of
that transaction and may be available to the public on specific request;
however, information or material that NASA and the awardee
mutually agree to be of a privileged nature will be held in confidence to the
extent permitted by law, including the Freedom of Information Act.
(3)
NRAs contain programmatic information and certain requirements which apply only
to proposals prepared in response to that particular announcement. These
instructions contain the general proposal preparation information which applies
to responses to all NRAs.
(4) A
contract, grant, cooperative agreement, or other agreement may be used to
accomplish an effort funded in response to an NRA. NASA will determine the
appropriate award instrument. Contracts resulting from NRAs are subject to the
Federal Acquisition Regulation and the NASA FAR Supplement. Any resultant
grants or cooperative agreements will be awarded and administered in accordance
with the NASA Grant and Cooperative Agreement Handbook (NPR 5800.1).
(5)
NASA does not have mandatory forms or formats for responses to NRAs; however,
it is requested that proposals conform to the guidelines in these instructions.
NASA may accept proposals without discussion; hence, proposals should initially
be as complete as possible and be submitted on the proposers' most favorable
terms.
(6) To
be considered for award, a submission must, at a minimum, present a specific
project within the areas delineated by the NRA; contain sufficient technical
and cost information to permit a meaningful evaluation; be signed by an
official authorized to legally bind the submitting organization; not merely
offer to perform standard services or to just provide computer facilities or
services; and not significantly duplicate a more specific current or pending
NASA solicitation.
(b) NRA-Specific Items. Several
proposal submission items appear in the NRA itself: the unique NRA identifier;
when to submit proposals; where to send proposals; number of copies required;
and sources for more information. Items included in these instructions may be
supplemented by the NRA.
(c) The following information is needed to
permit consideration in an objective manner. NRAs will generally specify topics
for which additional information or greater detail is desirable. Each proposal
copy shall contain all submitted material, including a copy of the transmittal
letter if it contains substantive information.
(1) Transmittal
Letter or Prefatory Material.
(i) The legal name and address of the organization and specific
division or campus identification if part of a larger organization;
(ii) A brief, scientifically valid project title intelligible to a
scientifically literate reader and suitable for use in the public press;
(iii) Type of organization: e.g., profit, nonprofit, educational, small
business, minority, women-owned, etc.;
(iv) Name and telephone number of the principal investigator and business
personnel who may be contacted during evaluation or negotiation;
(v) Identification of other organizations that are currently evaluating a
proposal for the same efforts;
(vi) Identification of the NRA, by number and title, to which the proposal is
responding;
(vii) Dollar amount requested, desired starting date, and duration of project;
(viii) Date of submission; and
(ix) Signature of a responsible official or authorized representative of the
organization, or any other person authorized to legally bind the organization
(unless the signature appears on the proposal itself).
(2) Restriction
on Use and Disclosure of Proposal Information. Information contained
in proposals is used for evaluation purposes only. Offerors or quoters should, in order to maximize protection of trade
secrets or other information that is confidential or privileged, place the following
notice on the title page of the proposal and specify the information subject to
the notice by inserting an appropriate identification in the notice. In any
event, information contained in proposals will be protected to the extent
permitted by law, but NASA assumes no liability for use and disclosure of
information not made subject to the notice.
Notice
Restriction on Use and Disclosure of Proposal Information
The information (data) contained in [insert page numbers or other identification] of this proposal constitutes a trade secret and/or information that is commercial or financial and confidential or privileged. It is furnished to the Government in confidence with the understanding that it will not, without permission of the offeror, be used or disclosed other than for evaluation purposes; provided, however, that in the event a contract (or other agreement) is awarded on the basis of this proposal the Government shall have the right to use and disclose this information (data) to the extent provided in the contract (or other agreement). This restriction does not limit the Government's right to use or disclose this information (data) if obtained from another source without restriction.
(3) Abstract. Include a concise (200-300 word if
not otherwise specified in the NRA) abstract describing the objective and the
method of approach.
(4) Project
Description.
(i) The main body of the proposal shall be a detailed statement of
the work to be undertaken and should include objectives and expected
significance; relation to the present state of knowledge; and relation to
previous work done on the project and to related work in progress elsewhere.
The statement should outline the plan of work, including the broad design of
experiments to be undertaken and a description of experimental methods and
procedures. The project description should address the evaluation factors in
these instructions and any specific factors in the NRA. Any substantial
collaboration with individuals not referred to in the budget or use of
consultants should be described. Subcontracting significant portions of a
research project is discouraged.
(ii) When it is expected that the effort will require more than one year,
the proposal should cover the complete project to the extent that it can be
reasonably anticipated. Principal emphasis should be on the first year of work,
and the description should distinguish clearly between the first year's work
and work planned for subsequent years.
(5) Management
Approach. For large or complex efforts involving interactions among
numerous individuals or other organizations, plans for distribution of
responsibilities and arrangements for ensuring a coordinated effort should be
described.
(6) Personnel.
The principal investigator is responsible for supervision of the work and
participates in the conduct of the research regardless of whether or not
compensated under the award. A short biographical sketch of the principal investigator,
a list of principal publications and any exceptional qualifications should be
included. Omit social security number and other personal items which do not
merit consideration in evaluation of the proposal. Give similar biographical
information on other senior professional personnel who will be directly
associated with the project. Give the names and titles of any other scientists
and technical personnel associated substantially with the project in an
advisory capacity. Universities should list the approximate number of students
or other assistants, together with information as to their level of academic
attainment. Any special industry-university cooperative arrangements should be
described.
(7) Facilities
and Equipment.
(i) Describe available facilities and major items of equipment
especially adapted or suited to the proposed project, and any additional major
equipment that will be required. Identify any Government-owned facilities,
industrial plant equipment, or special tooling that are proposed for use.
Include evidence of its availability and the cognizant Government points of
contact.
(ii) Before requesting a major item of capital equipment, the proposer
should determine if sharing or loan of equipment already within the
organization is a feasible alternative. Where such arrangements cannot be made,
the proposal should so state. The need for items that typically can be used for
research and non-research purposes should be explained.
(8) Proposed
Costs (U.S. Proposals Only).
(i) Proposals should contain cost and technical parts in one
volume: do not use separate "confidential" salary pages. As applicable,
include separate cost estimates for salaries and wages; fringe benefits;
equipment; expendable materials and supplies; services; domestic and foreign
travel; ADP expenses; publication or page charges; consultants; subcontracts;
other miscellaneous identifiable direct costs; and indirect costs. List salaries
and wages in appropriate organizational categories (e.g., principal
investigator, other scientific and engineering professionals, graduate
students, research assistants, and technicians and other non-professional
personnel). Estimate all staffing data in terms of staff-months or fractions of
full-time.
(ii) Explanatory notes should accompany the cost proposal to provide
identification and estimated cost of major capital equipment items to be
acquired; purpose and estimated number and lengths of trips planned; basis for
indirect cost computation (including date of most recent negotiation and
cognizant agency); and clarification of other items in the cost proposal that
are not self-evident. List estimated expenses as yearly requirements by major
work phases.
(iii) Allowable costs are governed by FAR Part
31 and the NASA FAR Supplement Part 1831
(and OMB Circulars A-21 for educational institutions and A-122 for nonprofit
organizations).
(iv) Use of NASA funds--NASA funding may not be used for foreign research
efforts at any level, whether as a collaborator or a subcontract. The direct
purchase of supplies and/or services, which do not constitute research, from
non-U.S. sources by U.S. award recipients is permitted. Additionally, in
accordance with the National Space Transportation Policy, use of a non-U.S.
manufactured launch vehicle is permitted only on a no-exchange-of-funds basis.
(9) Security.
Proposals should not contain security classified material. If the research
requires access to or may generate security classified information, the
submitter will be required to comply with Government security regulations.
(10) Current
Support. For other current projects being conducted by the principal
investigator, provide title of project, sponsoring agency, and ending date.
(11) Special
Matters.
(i) Include any required statements of environmental impact of the
research, human subject or animal care provisions, conflict of interest, or on
such other topics as may be required by the nature of the effort and current
statutes, executive orders, or other current Government-wide guidelines.
(ii)
Identify and discuss risk factors and issues throughout the proposal where they
are relevant, and your approach to managing these risks.
(iii)
Proposers should include a brief description of the organization, its
facilities, and previous work experience in the field of the proposal. Identify
the cognizant Government audit agency, inspection agency, and administrative
contracting officer, when applicable.
(d) Renewal Proposals.
(1) Renewal proposals for existing awards will be considered in the same
manner as proposals for new endeavors. A renewal proposal should not repeat all
of the information that was in the original proposal. The renewal proposal
should refer to its predecessor, update the parts that are no longer current,
and indicate what elements of the research are expected to be covered during
the period for which support is desired. A description of any significant
findings since the most recent progress report should be included. The renewal
proposal should treat, in reasonable detail, the plans for the next period,
contain a cost estimate, and otherwise adhere to these instructions.
(2) NASA
may renew an effort either through amendment of an existing contract or by a
new award.
(e) Length. Unless otherwise
specified in the NRA, effort should be made to keep proposals as brief as
possible, concentrating on substantive material. Few proposals need exceed
15-20 pages. Necessary detailed information, such as reprints, should be
included as attachments. A complete set of attachments is necessary for each
copy of the proposal. As proposals are not returned, avoid use of
"one-of-a-kind" attachments.
(f) Joint Proposals.
(1)
Where multiple organizations are involved, the proposal may be submitted by
only one of them. It should clearly describe the role to be played by the other
organizations and indicate the legal and managerial arrangements contemplated.
In other instances, simultaneous submission of related proposals from each
organization might be appropriate, in which case parallel awards would be made.
(2)
Where a project of a cooperative nature with NASA is contemplated, describe the
contributions expected from any participating NASA investigator and agency
facilities or equipment which may be required. The proposal must be confined
only to that which the proposing organization can commit itself. "Joint"
proposals which specify the internal arrangements NASA will actually make are
not acceptable as a means of establishing an agency commitment.
(g) Late Proposals. Proposals or proposal
modifications received after the latest date specified for receipt may be
considered if a significant reduction in cost to the Government is probable or
if there are significant technical advantages, as compared with proposals
previously received.
(h) Withdrawal. Proposals may be
withdrawn by the proposer at any time before award. Offerors are requested to
notify NASA if the proposal is funded by another organization or of other
changed circumstances which dictate termination of evaluation.
(i) Evaluation Factors.
(1)
Unless otherwise specified in the NRA, the principal elements (of approximately
equal weight) considered in evaluating a proposal are its relevance to NASA's
objectives, intrinsic merit, and cost.
(2)
Evaluation of a proposal's relevance to NASA's objectives includes the
consideration of the potential contribution of the effort to NASA's mission.
(3)
Evaluation of its intrinsic merit includes the consideration of the following
factors of equal importance:
(i) Overall scientific or technical merit of the proposal or unique
and innovative methods, approaches, or concepts demonstrated by the proposal.
(ii) Offeror's capabilities, related experience, facilities, techniques,
or unique combinations of these which are integral factors for achieving the
proposal objectives.
(iii) The qualifications, capabilities, and experience of the proposed
principal investigator, team leader, or key personnel critical in achieving the
proposal objectives.
(iv) Overall standing among similar proposals and/or evaluation against the
state-of-the-art.
(4)
Evaluation of the cost of a proposed effort may include the realism and
reasonableness of the proposed cost and available funds.
(j) Evaluation Techniques. Selection
decisions will be made following peer and/or scientific review of the
proposals. Several evaluation techniques are regularly used within NASA. In all
cases proposals are subject to scientific review by discipline specialists in
the area of the proposal. Some proposals are reviewed entirely in-house, others
are evaluated by a combination of in-house and selected external reviewers,
while yet others are subject to the full external peer review technique (with
due regard for conflict-of-interest and protection of proposal information),
such as by mail or through assembled panels. The final decisions are made by a
NASA selecting official. A proposal which is scientifically and
programmatically meritorious, but not selected for award during its initial
review, may be included in subsequent reviews unless the proposer requests
otherwise.
(k) Selection for Award.
(1) When a proposal is not selected for award, the proposer will be
notified. NASA will explain generally why the proposal was not selected.
Proposers desiring additional information may contact the selecting official
who will arrange a debriefing.
(2)
When a proposal is selected for award, negotiation and award will be handled by
the procurement office in the funding installation. The proposal is used as the
basis for negotiation. The contracting officer may request certain business
data and may forward a model award instrument and other information pertinent
to negotiation.
(l) Additional Guidelines Applicable
to Foreign Proposals and Proposals Including Foreign Participation.
(1) NASA
welcomes proposals from outside the U.S. However, foreign entities are
generally not eligible for funding from NASA. Therefore, unless otherwise
noted in the NRA, proposals from foreign entities should not include a cost
plan unless the proposal involves collaboration
with a U.S. institution, in which case a cost plan for only the participation
of the U.S. entity must be included. Proposals from foreign entities and
proposals from U.S. entities that include foreign participation must be
endorsed by the respective government agency or funding/sponsoring institution
in the country from which the foreign entity is proposing. Such endorsement
should indicate that the proposal merits careful consideration by NASA, and if
the proposal is selected, sufficient funds will be made available to undertake
the activity as proposed.
(2)
All foreign proposals must be typewritten in English and comply with all other
submission requirements stated in the NRA. All foreign proposals will
undergo the same evaluation and selection process as those originating in the
U.S. All proposals must be received before the established closing date.
Those received after the closing date will be treated in accordance with
paragraph (g) of this provision. Sponsoring foreign government agencies or
funding institutions may, in exceptional situations, forward a proposal
without endorsement if endorsement is not possible before the announced closing
date. In such cases, the NASA sponsoring office should be advised when a
decision on endorsement can be expected.
(3)
Successful and unsuccessful foreign entities will be contacted directly by the
NASA sponsoring office. Copies of these letters will be sent to the foreign
sponsor. Should a foreign proposal or a U.S. proposal with foreign
participation be selected, NASA's Office of External Relations will arrange
with the foreign sponsor for the proposed participation on a
no-exchange-of-funds basis, in which NASA and the non-U.S. sponsoring agency or
funding institution will each bear the cost of discharging their respective
responsibilities.
(4) Depending on the nature and extent of the proposed cooperation, these
arrangements may entail:
(i) An exchange of letters between NASA and the foreign sponsor; or
(ii) A formal Agency-to-Agency Memorandum of Understanding (MOU).
(m) Cancellation of NRA. NASA
reserves the right to make no awards under this NRA and to cancel this NRA.
NASA assumes no liability for canceling the NRA or for anyone's failure to
receive actual notice of cancellation.
(End of provision)
1852.235-73 Final Scientific and Technical Reports.
As prescribed in 1835.070(d)
insert the following clause:
Final Scientific and Technical Reports
(DECEMBER 2006)
(a) The Contractor shall submit to the
Contracting Officer a final report that summarizes the results of the entire
contract, including recommendations and conclusions based on the experience
and results obtained. The final report
should include tables, graphs, diagrams, curves, sketches, photographs, and
drawings in sufficient detail to explain comprehensively the results achieved
under the contract.
(b)
The final report shall be of a quality suitable for publication and shall
follow the formatting and stylistic guidelines contained in NPR 2200.2A,
Guidelines for Documentation, Approval, and Dissemination of NASA Scientific
and Technical Information.
Electronic formats for submission of reports should be used to the
maximum extent practical. Before
electronically submitting reports containing scientific and technical
information (STI) that is export-controlled or limited or restricted, contact
the Contracting Officer to determine the requirements to electronically
transmit these forms of STI. If appropriate
electronic safeguards are not available at the time of submission, a paper copy
or a CD-ROM of the report shall be required.
Information regarding appropriate electronic formats for final reports
is available at http://www.sti.nasa.gov under “Publish STI – Electronic File
Formats.”
(c) The last page of the final report
shall be a completed Standard Form (SF) 298, Report Documentation Page.
(d) In addition to
the final report submitted to the Contracting Officer, the Contractor shall concurrently provide to the Center STI/Publication
Manager and the NASA Center for AeroSpace Information
(CASI) a copy of the letter transmitting the final report to the Contracting
Officer. The copy of the letter shall be
submitted to CASI at the address listed at http://www.sti.nasa.gov under the
“Get Help” link.
(e) In accordance with paragraph (d) of the Rights in Data
--General clause (52.227-14) of this contract, the Contractor may publish, or
otherwise disseminate, data produced during the performance of this contract,
including data contained in the final report, and any additional reports
required by 1852.235-74
when included in the contract, without prior review by NASA. The Contractor is responsible for reviewing
publication or dissemination of the data for conformance with laws and
regulations governing its distribution, including intellectual property rights,
export control, national security and other requirements, and to the extent the
contractor receives or is given access to data necessary for the performance of
the contract which contain restrictive markings, for complying with such
restrictive markings. Should the Contractor
seek to publish or otherwise disseminate the final report, or any additional
reports required by 1852.235-74
if applicable, as delivered to NASA under this contract, the Contractor may do
so once NASA has completed its document availability authorization review, and
availability of the report has been determined.
(End of clause)
Alternate I
(FEBRUARY 2003)
As prescribed by 1835.070(d)(1),
insert the following as paragraph (e) of the basic clause:
(e)
The data resulting from this research activity is “fundamental research” which
will be broadly shared within the scientific community. No foreign national access or dissemination
restrictions apply to this research activity.
The Contractor may publish, release, or otherwise disseminate data
produced during the performance of this contract, including the final report,
without prior review by NASA for export control or national security
purposes. However, NASA retains the
right to review the final report to ensure that proprietary information, which
may have been provided to the Contractor, is not released without authorization
and for consistency with NASA publication standards. Additionally, the Contractor is responsible
for reviewing any publication, release, or dissemination of the data for
conformance with other restrictions expressly set forth in this contract, and
to the extent it receives or is given access to data necessary for the
performance of the contract which contain restrictive markings, for compliance
with such restrictive markings.
(DECEMBER 2005)
As
prescribed by 1835.070(d)(2), insert the following as
paragraph (e) of the basic clause:
(e) Data
resulting from this research activity may be subject to export control,
national security restrictions or other restrictions designated by NASA; or, to
the extent the Contractor receives or is given access to data necessary for the
performance of the contract which contain restrictive markings, may include
proprietary information of others.
Therefore, the Contractor shall not publish, release, or otherwise
disseminate, except to NASA, data produced during the performance of this
contract, including data contained in the final report and any additional
reports required by 1852.235-74 when included in the contract, without prior
review by NASA. Should the Contractor
seek to publish, release, or otherwise disseminate data produced during the
performance of this contract, the Contractor may do so once NASA has completed
its document availability authorization review and the availability of the data
has been determined.
(f) All publications of any material based
on or developed under NASA sponsored projects shall include an acknowledgement
similar to the following:
“The
material is based upon work supported by the National Aeronautics and Space
Administration under Contract Number XXXX.”
Except for articles or papers published in scientific, technical or professional journals, the exposition of results from NASA supported research shall also include the following disclaimer:
"Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Aeronautics and Space Administration."
1852.235-74
Additional Reports of Work --
Research and Development.
As prescribed in 1835.070(e), insert a clause
substantially the same as the following:
ADDITIONAL REPORTS OF WORK -- RESEARCH AND DEVELOPMENT
(FEBRUARY 2003)
In
addition to the final report required under this contract, the Contractor shall
submit the following report(s) to the Contracting Officer:
(a) Monthly progress reports. The Contractor shall submit separate monthly
reports of all work accomplished during each month of contract
performance. Reports shall be in
narrative form, brief, and informal.
They shall include a quantitative description of progress, an
indication of any current problems that may impede performance, proposed
corrective action, and a discussion of the work to be performed during the
next monthly reporting period.
(b) Quarterly
progress reports. The Contractor shall submit separate quarterly
reports of all work accomplished during each three-month period of contract
performance. In addition to factual
data, these reports should include a separate analysis section interpreting the
results obtained, recommending further action, and relating occurrences to the
ultimate objectives of the contract.
Sufficient diagrams, sketches, curves, photographs, and drawings should
be included to convey the intended meaning.
(c) Submission
dates. Monthly and quarterly reports
shall be submitted by the 15th day of the month following the month
or quarter being reported. If the
contract is awarded beyond the middle of a month, the first monthly report
shall cover the period from award until the end of the following month. No monthly report need be submitted for the
third month of contract effort for which a quarterly report is required. No quarterly report need be submitted for the
final three months of contract effort since that period will be covered in the
final report. The final report shall be
submitted within ____days after the completion of the effort under the
contract.
(End of clause)
1852.236-71 Additive or Deductive Items.
As prescribed in 1836.570(a),
insert the following provision:
ADDITIVE OR DEDUCTIVE ITEMS
(MARCH 1989)
(a) The low bidder for purposes of award
shall be the conforming responsible bidder offering the low aggregate amount
for the first or base bid item, plus or minus (in order of priority listed in
the Schedule) those additive or deductive bid items providing the most features
of the work within the funds determined by the Government to be available
before bids are opened. If addition of another bid item in the listed order of
priority would make the award exceed those funds for all bidders, it shall be
skipped and the next subsequent additive bid item in a lower amount shall be
added for each bid if award on it can be made within the funds.
(b) An example for one bid is an amount
available of $100,000, a bidder's base bid of $85,000, and four successive
additives of $10,000, $8,000, $6,000, and $4,000. In this example, the
aggregate amount of the bid for purposes of award would be $99,000 for the base
bid plus the first and fourth additives, the second and third additives being
skipped because either of them would cause the aggregate bid to exceed
$100,000.
(c) All bids shall be evaluated on the basis of
the same additive or deductive bid items. The listed order of priority must be
followed only for determining the low bidder. After determination of the low
bidder, award in the best interests of the Government may be made to that
bidder on its base bid and any combination of its additive or deductive bid
items for which funds are determined to be available at the time of the award,
provided that award of the combination of bid items does not exceed the amount
offered by any other conforming responsible bidder for the same combination of
bid items.
(End of provision)
1852.236-72 Bids with Unit Prices.
As prescribed in 1836.570(b),
insert the following provision:
BIDS WITH UNIT PRICES
(MARCH 1989)
(a) All extensions of the unit prices bid
will be subject to verification by the Government. If there is variation
between the unit price and any extended amounts, the unit price will be
considered to be the bid.
(b) If a modification to a bid based on unit
prices that provides for a lump-sum adjustment to the total estimated cost is
submitted, the application of the lump sum adjustment to each unit price in the
bid must be stated. If it is not stated, the lump-sum adjustment shall be
applied on a pro rata basis to every unit price in the bid.
(End of provision)
1852.236-73 Hurricane Plan.
As prescribed in 1836.570(c),
insert the following clause:
HURRICANE PLAN
(DECEMBER 1988)
In the event of a hurricane warning, the
Contractor shall --
(a)
Inspect the area and place all materials possible in a protected location;
(b) Tie down, or identify and store, all outside
equipment and materials;
(c) Clear all surrounding areas and roofs of buildings,
or tie down loose material, equipment, debris, and any other objects that could
otherwise be blown away or blown against existing buildings; and
(d) Ensure that temporary erosion controls are
adequate.
(End of clause)
1852.236-74 Magnitude of Requirement.
As prescribed in 1836.570(d),
insert the following provision:
MAGNITUDE OF REQUIREMENT
(DECEMBER 1988)
The Government estimated price range of this project is between $ and . [Insert the estimated dollar range.]
(End of provision)
1852.236-75 Partnering for Construction
Contracts.
As prescribed in 1836.7004,
insert the following clause:
PARTNERING FOR CONSTRUCTION
CONTRACTS
(AUGUST 1998)
(a) The terms "partnering"
and "partnership" used herein shall mean a relationship of
open communication and close cooperation that involves both Government and
contractor personnel working together for the purpose of establishing a
mutually beneficial, proactive, cooperative environment within which to achieve
contract objectives and resolve issues and implementing actions as required.
(b) Partnering will be a voluntary commitment
mutually agreed upon by at least NASA and the prime contractor, and preferably
the subcontractors and the A&E design contractor, if applicable. Sustained
commitment to the process is essential to assure success of the relationship.
(c) NASA intends to facilitate contract
management by encouraging the foundation of a cohesive partnership with the
Contractor, its subcontractors, the A&E design contractor, and NASA's
contract management staff. This partnership will be structured to draw on the
strengths of each organization to identify and achieve mutual objectives. The
objectives are intended to complete the contract requirements within budget, on
schedule, and in accordance with the plans and specifications.
(d) To implement the partnership, it is
anticipated that within 30 days of the Notice to Proceed the prime Contractor's
key personnel, its subcontractors, the A&E design contractor, and NASA
personnel will attend a partnership development and team building workshop.
Follow-up team building workshops will be held periodically throughout the
duration of the contract as agreed to by the Government and the Contractor.
(e) Any cost with effectuating the partnership
will be agreed to in advance by both parties and will be shared with no change
in the contract price. The contractor's share of the costs are not
recoverable under any other Government award.
(End of clause)
1852.237-70 Emergency Evacuation
Procedures.
As prescribed at 1837.110-70(a),
insert the following clause:
EMERGENCY EVACUATION PROCEDURES
(DECEMBER 1988)
The contractor shall assure that its personnel at Government facilities are familiar with the functions of the Government's emergency evacuation procedures. If requested by the Contracting Officer, the Contractor shall designate an individual or individuals as contact points to provide for efficient and rapid evacuation of the facility if and when required.
(End of clause)
1852.237-71 Pension Portability.
As prescribed at 1837.110-70(b),
insert the following clause:
PENSION PORTABILITY
(JANUARY 1997)
(a) In order for pension costs attributable
to employees assigned to this contract to be allowable costs under this
contract, the plans covering such employees must:
(1)
Comply with all applicable Government laws and regulations;
(2) Be
a defined contribution plan, or a multiparty defined benefit plan operated
under a collective bargaining agreement. In either case, the plan must be
portable, i.e., the plan follows the employee, not the employer;
(3)
Provide for 100 percent employee vesting at the earlier of one year of
continuous employee service or contract termination; and
(4)
Not be modified, terminated, or a new plan adopted without the prior written
approval of the cognizant NASA Contracting Officer.
(b) The Contractor shall include paragraph (a)
of this clause in subcontracts for continuing services under a service contract
if:
(1)
The prime contract requires pension portability;
(2)
The subcontracted labor dollars (excluding any burdens or profit/fee) exceed
$2,500,000 and ten percent of the total prime contract labor dollars (excluding
any burdens or profit/fee); and
(3)
Either of the following conditions exists:
(i) There is a continuing need for the same or similar subcontract
services for a minimum of five years (inclusive of options), and if the
subcontractor changes, a high percentage of the predecessor subcontractor's
employees are expected to remain with the program; or
(ii) The employees under a predecessor subcontract were covered by a
portable pension plan, a follow-on subcontract or a subcontract consolidating
existing services is awarded, and the total subcontract period covered by the
plan covers a minimum of five years (including both the predecessor and
successor subcontracts).
(End of clause)
1852.237-72
Access to Sensitive Information.
As prescribed in 1837.203-72(a), insert the following clause:
(JUNE
2005)
(b) To assist NASA in accomplishing
management activities and administrative functions, the Contractor shall
provide the services specified elsewhere in this contract.
(1) Utilize any
sensitive information coming into its possession only for the purposes of
performing the services specified in this contract, and not to improve its own
competitive position in another procurement.
(2) Safeguard sensitive information coming into its
possession from unauthorized use and disclosure.
(3) Allow access to sensitive information only to those
employees that need it to perform services under this contract.
(4) Preclude access and disclosure of sensitive information
to persons and entities outside of the Contractor’s organization.
(5) Train employees who may require access to sensitive
information about their obligations to utilize it only to perform the services
specified in this contract and to safeguard it from unauthorized use and
disclosure.
(6) Obtain a written affirmation from each employee that
he/she has received and will comply with training on the authorized uses and
mandatory protections of sensitive information needed in performing this
contract.
(7) Administer a monitoring process to ensure that employees comply with all reasonable security procedures, report any breaches to the Contracting Officer, and implement any necessary corrective actions.
(d) The Contractor will comply with all
procedures and obligations specified in its Organizational Conflicts of
Interest Avoidance Plan, which this contract incorporates as a compliance
document.
(e) The nature of the work on this contract
may subject the Contractor and its employees to a variety of laws and
regulations relating to ethics, conflicts of interest, corruption, and other
criminal or civil matters relating to the award and administration of
government contracts. Recognizing that
this contract establishes a high standard of accountability and trust, the
Government will carefully review the Contractor’s performance in relation to
the mandates and restrictions found in these laws and regulations. Unauthorized
uses or disclosures of sensitive information may result in termination of this
contract for default, or in debarment of the Contractor for serious misconduct
affecting present responsibility as a government contractor.
(f) The Contractor shall include the
substance of this clause, including this paragraph (f),
suitably modified to reflect the relationship of the parties, in all
subcontracts that may involve access to sensitive information
(End of clause)
1852.237-73 Release of Sensitive Information.
As prescribed in 1837.203-72(b), insert the following clause:
RELEASE
OF SENSITIVE INFORMATION
(JUNE
2005)
(a) As used in this clause, “sensitive information” refers to information, not currently in the public domain, that the Contractor has developed at private expense, that may embody trade secrets or commercial or financial information, and that may be sensitive or privileged.
(b) In accomplishing management activities and administrative functions, NASA relies heavily on the support of various service providers. To support NASA activities and functions, these service providers, as well as their subcontractors and their individual employees, may need access to sensitive information submitted by the Contractor under this contract. By submitting this proposal or performing this contract, the Contractor agrees that NASA may release to its service providers, their subcontractors, and their individual employees, sensitive information submitted during the course of this procurement, subject to the enumerated protections mandated by the clause at 1852.237-72, Access to Sensitive Information.
(c)(1) The Contractor shall identify any sensitive information submitted in support of this proposal or in performing this contract. For purposes of identifying sensitive information, the Contractor may, in addition to any other notice or legend otherwise required, use a notice similar to the following:
Mark the title page with the following legend:
This proposal or document includes sensitive information that NASA shall not disclose outside the Agency and its service providers that support management activities and administrative functions. To gain access to this sensitive information, a service provider’s contract must contain the clause at NFS 1852.237-72, Access to Sensitive Information. Consistent with this clause, the service provider shall not duplicate, use, or disclose the information in whole or in part for any purpose other than to perform the services specified in its contract. This restriction does not limit the Government's right to use this information if it is obtained from another source without restriction. The information subject to this restriction is contained in pages [insert page numbers or other identification of pages].
Mark each page of sensitive information the Contractor wishes to restrict with the following legend:
Use or disclosure of sensitive information contained on this page is subject to the restriction on the title page of this proposal or document.
(2) The Contracting Officer shall evaluate the facts supporting any claim that particular information is “sensitive.” This evaluation shall consider the time and resources necessary to protect the information in accordance with the detailed safeguards mandated by the clause at 1852.237-72, Access to Sensitive Information. However, unless the Contracting Officer decides, with the advice of Center counsel, that reasonable grounds exist to challenge the Contractor’s claim that particular information is sensitive, NASA and its service providers and their employees shall comply with all of the safeguards contained in paragraph (d) of this clause.
(d) To receive access to sensitive information needed to assist NASA in accomplishing management activities and administrative functions, the service provider must be operating under a contract that contains the clause at 1852.237-72, Access to Sensitive Information. This clause obligates the service provider to do the following:
(1) Comply
with all specified procedures and obligations, including the
Organizational Conflicts of Interest Avoidance Plan,
which the contract has incorporated as a compliance document.
(2) Utilize any sensitive information
coming into its possession only for the purpose of performing the services
specified in its contract.
(3) Safeguard sensitive information coming
into its possession from unauthorized use and disclosure.
(5) Preclude access and disclosure of
sensitive information to persons and entities outside of the service provider’s
organization.
(6) Train employees who may require access
to sensitive information about their obligations to utilize it only to perform
the services specified in its contract and to safeguard it from unauthorized
use and disclosure.
(7) Obtain a written affirmation from
each employee that he/she has received and will comply with training on the
authorized uses and mandatory protections of sensitive information needed in
performing this contract.
(8) Administer a monitoring process to ensure that employees comply with all reasonable security procedures, report any breaches to the Contracting Officer, and implement any necessary corrective actions.
(e) When the service provider will have primary responsibility for operating an information technology system for NASA that contains sensitive information, the service provider’s contract shall include the clause at 1852.204-76, Security Requirements for Unclassified Information Technology Resources. The Security Requirements clause requires the service provider to implement an Information Technology Security Plan to protect information processed, stored, or transmitted from unauthorized access, alteration, disclosure, or use. Service provider personnel requiring privileged access or limited privileged access to these information technology systems are subject to screening using the standard National Agency Check (NAC) forms appropriate to the level of risk for adverse impact to NASA missions. The Contracting Officer may allow the service provider to conduct its own screening, provided the service provider employs substantially equivalent screening procedures.
(f) This clause does not affect NASA's responsibilities under the Freedom of Information Act.
(g) The Contractor shall insert this clause, including this paragraph (g), suitably modified to reflect the relationship of the parties, in all subcontracts that may require the furnishing of sensitive information.
(End
of clause)
1852.239-70 Alternate
Delivery Points.
As prescribed in 1839.106-70(a)(1),
insert the following clause:
ALTERNATE DELIVERY POINTS
(NOVEMBER 1993)
(a) The first priority of this contract is to satisfy the anticipated requirements of (identify contracting activity). However, should the actual requirements of (contracting activity) be less than the maximum quantities/values specified in Section B of this contract, (contracting activity) may order the remaining available quantities/values to satisfy the requirements of other installations. The other installations at which delivery may be required are:
(List installations and their locations)
(b) The prices of the deliverables in Section B are F.O.B. destination to (contracting activity). If delivery to an alternate location is ordered, an equitable adjustment may be negotiated to recognize any variances in transportation costs associated with delivery to that alternate location.
(End of clause)
ALTERNATE I
(NOVEMBER 1993)
As prescribed in 1839.106-70(a)(2), delete paragraph (b) and substitute the following:
(b) The prices of the deliverables in Section B are F.O.B. origin with delivery to NASA via Government bill of lading (GBL). If delivery to an alternate location is ordered, the same delivery procedures will be used and no equitable adjustment to any price, term, or condition of this contract will be made as a result of such order.
(End of clause)
1852.241-70 Renewal of Contract.
As prescribed in 1841.501-70,
insert the following clause:
RENEWAL OF CONTRACT
(DECEMBER 1988)
This contract is renewable on an annual basis at the option of the Government, by the Contracting Officer giving written notice of renewal to the Contractor at least days before expiration. If the Government exercises this option for renewal, the contract as renewed shall be deemed to include this option provision. However, the total duration of this contract, including the exercise of any options under this clause, shall not exceed years.
(End of clause)