[Federal Register: June 9, 2005 (Volume 70, Number 110)]
[Proposed Rules]
[Page 33726-33727]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn05-17]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1823 and 1852
RIN AD12
Safety and Health--Alternate 1 to Major Breach of Safety or
Security Clause
AGENCY: National Aeronautics and Space Administration.
ACTION: Proposed rule.
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SUMMARY: This proposed rule amends the NASA FAR Supplement (NFS) to add
an Alternate to the ``Major Breach of Safety or Security Clause.'' This
Alternate deletes references to termination for default and makes other
changes to be consistent with the FAR termination clauses prescribed
for use with educational or nonprofit institutions performing research
and development work on a nonprofit or no-fee basis, and in contracts
for commercial items.
DATES: Comments should be submitted on or before August 8, 2005.
ADDRESSES: Interested parties may submit comments, identified by RIN
number AD12, via the Federal eRulemaking Portal: http//
http://www.regulations.gov. Follow the instructions for submitting comments.
Comments may also be submitted to Carl Weber, NASA Headquarters, Office
of Procurement, Contract Management Division (Mail Code 1940-D2),
Washington, DC 20546. Comments may also be submitted by e-mail to
carl.c.weber@nasa.gov.
[[Page 33727]]
FOR FURTHER INFORMATION CONTACT: Carl Weber, (202) 358-1784, e-mail:
carl.c.weber@nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Since July 13, 2000, the NASA FAR Supplement has required the Major
Breach of Safety or Security clause (1852.223-75) in new solicitations
and contracts with an estimated value over $500,000. The clause
declares the Government's right to terminate for default in the event
of a major breach of safety or security. However, contracts for
commercial items procured under FAR Part 12, and certain contracts for
educational or nonprofit institutions do not provide the Government the
right to ``termination for default''. Rather, these contracts include a
termination for cause or termination for convenience clause only.
NASA Procurement Information Circular (PIC 02-11) issued June 24,
2002, suggested an alternate to the clause which deleted references to
termination for default, and provided a class deviation to use the
alternate under certain circumstances.
This proposed rule would add Alternate I to the Major Breach of
Safety or Security clause at 1852.223-75, eliminating the need for PIC
02-01 and the class deviation. Use of the clause with its Alternate in
contracts for commercial items procured under FAR Part 12, and
contracts for research and development work with educational or
nonprofit institutions on a nonprofit or no-fee basis would then be
consistent with FAR termination clauses prescribed for use in such
contracts.
This proposed rule is not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities with the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., since it
clarifies agency regulations so they are employed consistently with FAR
termination provisions.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes do
not impose any new recordkeeping or information collection requirements
which require the approval of the Office of Management and Budget under
44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Parts 1823 and 1852
Government procurement.
Tom Luedtke,
Assistant Administrator for Procurement.
Accordingly, 48 CFR parts 1823 and 1852 are proposed to be amended
as follows:
PART 1823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
1. The authority citation for 48 CFR parts 1823 and 1852 continues
to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
2. Amend section 1823.7001 by revising paragraph (d) to read as
follows:
1823.7001 NASA solicitation provisions and contract clauses.
* * * * *
(d)(1) The contracting officer shall insert the clause at 1852.223-
75, Major Breach of Safety or Security, in all solicitations and
contracts with estimated values of $500,000 or more, unless waived at a
level above the contracting officer with the concurrence of the project
manager and the installation official(s) responsible for matters of
securi ty, export control, safety, and occupational health.
(2) Insert the clause with its Alternate I if--
(i) The solicitation or contract is with an educational or other
nonprofit institution and contains the termination clause at FAR
52.249; or
(ii) The solicitation or contract is for commercial items and
contains the termination provisions found in FAR 52.212-4
(3) For contracts with estimated values below $500,000, use of the
clause is optional.
* * * * *
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Amend section 1852.223-75 by adding Alternate I to read as
follows:
1852.223-75 Major Breach of Safety or Security.
* * * * *
ALTERNATE I
(XX/XX)
As prescribed in 1823.7001(d)(ii), substitute the following
paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:
(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. NASA's safety priority is to
protect:
(1) The public; (2) astronauts and pilots; (3) the NASA workforce
(including contractor employees working on NASA contracts); and (4)
high-value equipment and property. 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. A major breach of safety must b e
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 Occupation al
Safety and Health Administration (OSHA) or by a state agency operating
under an OSHA approved plan.
(b) Security is the condition of safeguarding against espionage,
sabotage, crime (including computer crime), or attack. A major breach
of security 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. A major breach
of security may occur on or off Government installations, but must be
related directly to the work on the contract. A major breach of
security is an act or omission by the Contractor that results in
compromise of classified information, illegal technology transfer,
workplace violence resulting in criminal conviction, sabotage,
compromise or denial of information technology services, equipment or
property damage from vandalism greater than $250,000, or theft greater
than $250,000.
[FR Doc. 05-11419 Filed 6-8-05; 8:45 am]
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