[Federal Register Volume 65, Number 226 (Wednesday, November 22, 2000)]
[Rules and Regulations]
[Pages 70315-70316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29899]
=======================================================================
-----------------------------------------------------------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1807, 1815, 1816, 1823, 1849, and 1852
Risk Management
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
-----------------------------------------------------------------------
SUMMARY: This is a final rule amending the NASA FAR Supplement (NFS) to
emphasize considerations of risk management, including safety, security
(including information technology security), health, export control,
and damage to the environment, within the acquisition process. This
final rule addresses risk management within the context of acquisition
planning, selecting sources, choosing contract type, structuring award
fee incentives, administering contracts, and conducting contractor
surveillance.
EFFECTIVE DATE: November 22, 2000.
FOR FURTHER INFORMATION CONTACT: James H. Dolvin, NASA Headquarters,
Office of Procurement, Contract Management Division (Code HK), (202)
358-1279, email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
NASA is adopting as final, with changes, the interim rule published
in the Federal Register (65 FR 37057-37061, June 13, 2000) that revised
various NFS Parts to refocus on risk as a core acquisition concern as
part of NASA's risk-based acquisition management initiative. Comments
were received from one company and an industry association. All
comments were considered in the development of the final rule.
Revisions primarily affect internal procedures and include the
following: (1) In section 1807.105 the reference to a NASA document is
revised; (2) in section 1815.203-72, the words ``and RFOs'' are added
after ``RFPs'' to make it clear that the section applies to MidRange
procurements; (3) in section 1816.405-274 and new section 1849.102-71,
language is added to require the contracting officer to notify the
Associate Administrator for Procurement prior to the determination of a
zero award fee in accordance with NFS 1816.405-274, and prior to
exercising remedies under NFS clause 1852.223-75; (4) in section
1823.7001, the word at the end of paragraph (b)(1) is changed from
``or'' to ``and'', and the word ``concurrence'' in paragraph (b)(2) is
changed to ``approval'', to enhance the role of installation safety
officials in the application of the Safety and Health clause; and (5)
in section 1852.223-75, the words ``or mission failure'' are added
after ``fatality'' in paragraph (a), to achieve consistency with
similar language in section 1816.405-274(c)(2).
B. Regulatory Flexibility Act
NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small business entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because
this rule simply focuses attention on risk management, an existing
business practice, and does not impose any significant new requirements
which might have an economic impact.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the NFS do not impose recordkeeping or information collection
requirements, or collection of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 41 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1807, 1815, 1816, 1823, 1849, and
1852
Government procurement.
Tom Luedtke,
Associate Administrator for Procurement.
Interim Rule Adopted as Final With Changes.
Accordingly, the interim rule published at 65 FR 37057-37061, June
13, 2000, is hereby adopted as final with the following changes:
1. The authority citation for 48 CFR Parts 1807, 1815, 1816, 1823,
1849, and 1852 continues to read as follows:
Authority: 42 U.S.C. 2473 (c)(1).
PART 1807--ACQUISITION PLANNING
2. In section 1807.105, revise paragraph (a)(7) to read as follows:
1807.105 Contents of written acquisition plans.
* * * * *
(a) * * *
(7) Discuss project/program risks (see NPG 7120.5, NASA Program and
Project
[[Page 70316]]
Management Processes and Requirements). In addition to technical,
schedule, and cost risks, the discussion shall include such
considerations as: safety and security (including personnel,
information technology, and facilities/property); the need to involve
foreign sources (contractor and/or governmental), and risks of
unauthorized technology transfer (see NPD 2110.1D and Export Control
Program (http://www.hq.nasa.gov/office/codei/nasaecp/ecpolicy.html));
and resource risk, including the necessary level and expertise of NASA
personnel resources available to manage the project/program. For each
area of risk identified, the discussion shall include a quantification
of the relative magnitude (e.g., high, medium, low) together with the
specific actions taken to structure the acquisition approach to manage
the risks throughout the acquisition process. For example, this
discussion would identify those areas that have safety risk, discuss
how safety is addressed in contract requirements and evaluated in the
source selection, and how it will be managed and incentivized during
contract performance. Decisions to accept, mitigate, track, and/or
research risk factors shall be identified and documented as part of
acquisition planning.
* * * * *
PART 1815--CONTRACTING BY NEGOTIATION
3. Revise section 1815.203-72 to read as follows:
1815.203-72 Risk management.
In all RFPs and RFOs for supplies or services for which a technical
proposal is required, proposal instructions shall require offerors to
identify and discuss risk factors and issues throughout the proposal
where they are relevant, and describe their approach to managing these
risks.
PART 1816--TYPES OF CONTRACTS
4. In section 1816.405-274, add paragraph (c)(4) to read as
follows:
1816.405-274 Award fee evaluation factors.
* * * * *
(c) * * *
(4) The Associate Administrator for Procurement (Code HS) shall be
notified prior to the determination of a zero award fee because of a
major breach of safety or security.
* * * * *
PART 1823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
5. In section 1823.7001, revise paragraphs (b)(1) and (b)(2) to
read as follows:
1823.7001 NASA solicitation provisions and contract clauses.
(b) * * *
(1) From any contract subject to the Walsh-Healey Public Contracts
Act (see FAR subpart 22.6) or the Service Contract Act of 1965 (see FAR
subpart 22.10) in which the application of either act and its
implementing regulations constitute adequate safety and occupational
health protection; and
(2) When the contracting officer, with the approval of the
installation official(s) responsible for matters of safety and
occupational health, makes a written determination that the clause is
not necessary under the circumstances of the acquisition.
* * * * *
PART 1849--TERMINATION OF CONTRACTS
6. Add section 1849.102-71 to read as follows:
1849.102-71 Prior clearance of contract terminations resulting from a
major breach of safety or security.
The Associate Administrator for Procurement (Code HS) must be
notified prior to taking any action to terminate because of a major
breach of safety or security.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. In section 1852.223-70, revise the date of the clause and
paragraph (c) to read as follows:
1852.223-70 Safety and Health.
* * * * *
Safety and Health, November 2000
* * * * *
(c) The Contractor shall immediately notify and promptly report
to the Contracting Officer or a designee any accident, incident, or
exposure resulting in fatality, lost-time occupational injury,
occupational disease, contamination of property beyond any stated
acceptable limits set forth in the contract Schedule; or property
loss of $25,000 or more, or Close Call (a situation or occurrence
with no injury, no damage or only minor damage (less than $1,000)
but possesses the potential to cause any type mishap, or any injury,
damage, or negative mission impact) that may be of immediate
interest to NASA, arising out of work performed under this contract.
The Contractor is not required to include in any report an
expression of opinion as to the fault or negligence of any employee.
In addition, service contractors (excluding construction contracts)
shall provide quarterly reports specifying lost-time frequency rate,
number of lost-time injuries, exposure, and accident/incident dollar
losses as specified in the contract Schedule.
* * * * *
8. In section 1852.223-75, revise the date of the clause and
paragraph (a) to read as follows:
1852.223-75 Major Breach of Safety or Security.
* * * * *
Major Breach of Safety or Security, November 2000
(a) Safety is the freedom from those conditions that can cause
death, injury, occupational illness, damage to or loss of equipment
or property, or damage to the environment. Safety is essential to
NASA and is a material part of this contract. A major breach of
safety may constitute a breach of contract that entitles the
Government to exercise any of its rights and remedies applicable to
material parts of this contract, including termination for default.
A major breach of safety must be related directly to the work on the
contract. A major breach of safety is an act or omission of the
Contractor that consists of an accident, incident, or exposure
resulting in a fatality or mission failure; or in damage to
equipment or property equal to or greater than $1 million; or in any
``willful'' or ``repeat'' violation cited by the Occupational Health
and Safety Administration (OSHA) or by a state agency operating
under an OSHA approved plan.
* * * * *
[FR Doc. 00-29899 Filed 11-21-00; 8:45 am]
BILLING CODE 7510-01-P