[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8989-8990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1572]
=======================================================================
-----------------------------------------------------------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1823 and 1852
RIN 2700-AD12
Safety and Health--Alternate I to Major Breach of Safety or
Security Clause
AGENCY: National Aeronautics and Space Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule adopts as final, with a minor editorial change, the
proposed rule published in the Federal Register (70 FR 33726-33727) on
June 9, 2005. This final rule amends the NASA FAR Supplement (NFS) to
add Alternate I to the ``Major Breach of Safety or Security'' clause.
Alternate I 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.
EFFECTIVE DATE: February 22, 2006.
FOR FURTHER INFORMATION CONTACT: Carl Weber, Office of Procurement,
Contract Management Division, (202) 358-1784, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
Since July 13, 2000, NFS 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 with educational or nonprofit
institutions do not provide the Government the right to terminate for
``default''. Commercial contracts provide rights to terminate for
convenience and ``cause'', and contracts with educational or nonprofit
institutions provide the right to terminate for convenience.
NASA Procurement Information Circular (PIC 02-11) issued June 24,
2002, provided a class deviation to use an Alternate I to the clause,
which deleted references to termination for default, under certain
circumstances.
This final rule adds the Alternate I to the Major Breach of Safety
or Security clause at 1852.223-75, eliminating the need for PIC 02-11
and the class deviation. Use of the clause with its Alternate I 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 will be
consistent with FAR termination clauses prescribed for use in such
contracts. NASA published a proposed rule in the Federal Register (70
FR 33726-33727) on June 9, 2005. No comments were received, and the
proposed rule is being adopted with a minor editorial change to
1823.7001(d)(2)(ii) that simplifies the clause prescription to require
it when FAR 52.212-4 is included in a solicitation or contract. This is
not a significant regulatory action, and therefore, is not subject to
Office of Management and Budget review under section 6(b), of Executive
Order 12866, dated September 30, 1993. This is not a major rule under 5
U.S.C. 804.
B. Regulatory Flexibility Act
NASA certifies that this final rule does not 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 only 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.
0
Accordingly, 48 CFR parts 1823 and 1852 are amended as follows:
PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
1. The authority citation for 48 CFR parts 1823 and 1852 continues to
read as follows:
Authority: 42 U.S.C. 2473(c)(1).
0
2. Amend section 1823.7001 by revising paragraph (d) to read as
follows:
1823.7001 NASA solicitation provisions and contract clauses.
* * * * *
[[Page 8990]]
(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
security, 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
52.249-5; or
(ii) The solicitation or contract is for commercial items and
contains the clause at 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
0
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
(FEB 2006)
As prescribed in 1823.7001(d)(2), 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 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
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. 06-1572 Filed 2-21-06; 8:45 am]
BILLING CODE 7510-01-P