80 FR 52642 - NASA Federal Acquisition Regulation Supplement: Denied Access to NASA Facilities (2015-N002)

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 169 (September 1, 2015)

NASA is issuing a final rule amending the NASA Federal Acquisition Regulation Supplement (NFS) to delete the observance of legal holidays clause with its alternates and replace it with a new clause that prescribes conditions and procedures pertaining to the closure of NASA facilities.

[Federal Register Volume 80, Number 169 (Tuesday, September 1, 2015)]
[Rules and Regulations]
[Pages 52642-52645]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-21584]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1842 and 1852

RIN 2700-AE14


NASA Federal Acquisition Regulation Supplement: Denied Access to 
NASA Facilities (2015-N002)

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: NASA is issuing a final rule amending the NASA Federal 
Acquisition Regulation Supplement (NFS) to delete the observance of 
legal holidays clause with its alternates and replace it with a new 
clause that prescribes conditions and procedures pertaining to the 
closure of NASA facilities.

DATES: Effective: October 1, 2015.

FOR FURTHER INFORMATION CONTACT: Andrew O'Rourke, NASA Office of 
Procurement, Contract and Grant Policy Division, 202-358-4560, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    A proposed rule was published on May 13, 2015 (80 FR 27278) to 
delete NASA FAR Supplement (NFS) clause 1852.242-72, Observance of 
Legal Holidays with its alternates and replace it with a new clause 
that prescribes conditions and procedures pertaining to the closure of 
NASA facilities. NFS clause 1852.242-72, Observance of Legal Holidays 
with its alternates, was included in Agency contracts where contractor 
performance was to be performed on a NASA facility. It was intended to 
identify dates that Government employees would not be available and 
provide notification to contractors of those dates considering that the 
absence of Government employees might impact contractor performance or 
contractor access to NASA facilities. Further, the same clause has two 
alternates, the first addresses contractors who are denied access to 
NASA workspaces within a NASA facility and the second addresses other 
instances, such as weather and safety emergencies, which could result 
in contractors being denied access to the entire NASA facility. Recent 
events, especially the Government shut-down during October 2013, have 
revealed a need for NASA to be more specific and to differentiate 
between these two conditions when contractor employees may be denied 
access to NASA workspaces or the entire NASA facility. The fact that 
Government employees may not be at a NASA facility is not an automatic 
reason for contractor personnel not to be required to be present at 
their required NASA workspace on a NASA facility. Unless a contractor 
is denied access to the NASA facility, contractors are expected to 
perform in accordance with their contractual requirements. This NFS 
change provides clarity and information beneficial to NASA contractors 
that are denied access to a NASA facility when a NASA facility is 
closed to all personnel. Specifically, the change deletes the 
prescription at NFS 1842.7001, Observance of Legal Holidays, in its 
entirety, and clause 1852.242-72, Observance of Legal Holidays, with 
alternates, and replaces it with the prescription at NFS 1842.7001 
Denied Access to NASA Facilities and clause 1852.242-72, Denied Access 
to NASA Facilities, respectively. The clause would be included in 
solicitations and contracts where contractor personnel would be 
required to work onsite at a NASA facility.

II. Discussion and Analysis

    NASA published a proposed rule in the Federal Register on May 13, 
2015 (80 FR 27278). The sixty-day public comment period expired on July 
13, 2015. NASA received comments from one respondent. NASA reviewed the 
respondent's comments in the formation of the final rule. No revisions 
to the proposed rule were made as a result of the public comments 
received. A discussion of the comments is provided as follows:

A. Retain Existing Language

    Comment: The respondent submitted a comment indicating that it was 
in the best interest of both NASA and NASA contractors to retain the 
language of 48 CFR parts 1842 and 1852 as it currently exists.
    Response: NASA disagrees with retaining the existing NFS clause. As 
stated in the proposed rule, there was a need for NASA to be more 
specific when contractor employees may be denied access to NASA 
workspaces or the entire NASA facility. This revision to the NFS 
provides this clarity with information that is beneficial to both the 
Government and NASA contractors who are denied access to a NASA 
facility when that facility is closed to all personnel.

B. Revised Language is Less Clear

    Comment: The respondent submitted a comment stating that the 
revised language in the proposed rule is actually

[[Page 52643]]

less clear than the current ``Holidays'' clause and may adversely 
impact consistency of application. The respondent stated that the 
revised language suggests that direction from the contracting officer 
may or may not be forthcoming; the contractor ``minimize unnecessary 
contract costs and performance impact'' by performing work off-site or 
having personnel perform other duties makes it wholly unclear what 
NASA's expectations of the contractor may be, and what potential 
financial losses may or may not be incurred, depending on various 
circumstances. The respondent stated the proposed revised language 
creates a significantly increased potential for inconsistent 
interpretation not only for contractors at different NASA 
installations, but for different contractors at the same NASA 
installation.
    Response: NASA disagrees that the revised clause is less clear and 
may have inconsistent application. The revised clause indicates that 
the contractor shall exercise sound judgment to minimize unnecessary 
contract costs and provides examples of such actions. The examples are 
provided for the contractor to consider and not to limit the 
contractor. The revised clause will be included in NASA solicitations 
and contracts where contractor personnel would be required to work 
onsite at a NASA facility and NASA does not agree that there is 
potential for inconsistent interpretation or application.

C. Violations of the Anti-Deficiency Act

    Comment: The respondent submitted a comment stating the proposed 
language may lead to unintentional, but consequential, violations of 
the Anti-Deficiency Act (31 U.S.C. 1341), to the financial detriment of 
contractor organizations. The respondent indicated that their issue is 
with the proposed revised clause 1852.242-72 paragraph (a)(3)(b), and 
the respondent's concern that implementation of this clause will set up 
inevitable competitive pressure (even if self-imposed) for contractors 
to compel their employees to continue NASA contract work off-site or 
through teleworking in the event of a NASA installation closure 
(regardless of the reason for the closure), even in the absence of 
approval that such work will be covered as an allowable cost. Should 
such costs then subsequently not be allowed, this could effectively 
place NASA as an agency in the role of accepting voluntary services 
from the contractor and its employees, and clearly imposes a financial 
risk for the Contractor that is not imposed by the current language of 
1852.242-72.
    Response: NASA disagrees that the revised clause may lead to 
violations of the Anti-Deficiency Act (31 U.S.C. 1341). The revised 
clause indicates that in all instances where contractor employees are 
denied access or required to vacate a NASA facility, in part or in 
whole, the contractor shall be responsible to ensure contractor 
personnel working under the contract comply and the contractor shall 
exercise sound judgment to minimize unnecessary contract costs and 
performance. The revised clause provides an example for contractors to 
consider e.g. performing required work off-site. The revised clause 
does not require contractors to compel their employees to continue NASA 
contract work off-site or through teleworking; the revised clause 
merely provides an example for contractors to consider in meeting the 
contract requirements in the event of a NASA facility closure. NASA 
does not agree that taking a prudent business decision in the event of 
a NASA facility closure will lead to violation of the Anti-Deficiency 
Act (31 U.S.C. 1341).

D. Increased Administrative Burden

    Comment: The respondent stated that the proposed language may lead 
to increased, versus decreased, administrative burden for both NASA and 
on-site contractors, resulting in a decrease of value delivered to the 
Government. The respondent indicated that contractors will need to 
develop revised employee policies that cover all contingencies of the 
revised language of 1852.242-72. Contractors will need to vet the 
language of these policy changes with their employment attorneys, 
adding costs that will ultimately be included in indirect rates. The 
respondent indicated that the administrative burden to fully and fairly 
implement revised 1852.242-72 would be increased for both contractors 
and NASA.
    Response: NASA does not agree that the revised clause may lead to 
increased administrative burden for both NASA and on-site contractors. 
Contractors performing work on a NASA facility should already have 
established company polices to cover events referenced in the revised 
clause such as policy related to Federal public holidays. Also, since 
the revised clause will be included in NASA solicitations a company 
interested in submitting a proposal would review applicable company 
polices as part of the proposal preparation and address changes, if 
any, at that time with little to no additional cost or administrative 
burden.

E. Institutionalize a ``Two-Class'' System

    Comment: The respondent stated that the proposed revised clause 
1852.242-72 would institutionalize a ``two-class'' system of treatment 
of Government employees versus contractor employees, to the detriment 
of effective teamwork and morale. The respondent indicated that that 
the proposed revised clause would create competitive pressure for 
contractors to require their employees to work off-site or telework 
during virtually all circumstances when NASA installations may be 
closed, when no such requirement will apply to Federal employees. The 
respondent stated that in reference to the proposed revised clause 
1852.242-72 paragraph (e)(1), which states that ``Moreover, the leave 
status of NASA employees shall not be conveyed or imputed to contractor 
personnel.'' The respondent saw no compelling reason why a decision by 
an appropriately empowered federal official to grant Federal employees 
leave under appropriate circumstances should not be conveyed to 
contractor employees, along with appropriate guidance from the 
contractor as to whether or not contractor employees are to report to 
work. The responded noted that inconsistent treatment of contractor 
employees, as compared to their Federal colleagues under the same 
circumstances, would become institutionalized by the proposed revised 
clause and would be detrimental to teamwork and morale.
    Response: NASA does not agree. While NASA federal and contractor 
employees are members of the same NASA team, different standards apply 
to the various members of the team. NASA acquires services from 
contractors utilizing nonpersonal services contracts. A nonpersonal 
services contract means a contract under which the personnel rendering 
the services are not subject, either by the contract's terms or by the 
manner of its administration, to the supervision and control usually 
prevailing in relationships between the Government and its employees 
(see FAR 37.101). A personal services contract is characterized by the 
employer-employee relationship it creates between the Government and 
the contractor's personnel. The Government is normally required to 
obtain its employees by direct hire under competitive appointment or 
other procedures required by the civil service laws. Obtaining personal 
services by contract, rather than by direct hire, circumvents those 
laws unless Congress has

[[Page 52644]]

specifically authorized acquisition of the services by contract. 
Agencies are prohibited from awarding personal services contracts 
unless specifically authorized by statute to do so. An employer-
employee relationship under a service contract occurs when, as a result 
of (i) the contract's terms or (ii) the manner of its administration 
during performance, contractor personnel are subject to the relatively 
continuous supervision and control of a Government officer or employee 
(see FAR 37.104). In addition, the leave administration for Federal 
employees is covered under title 5 of the United States Code and title 
5 of the Code of Federal Regulations. The leave administration for a 
contractor is covered under the contractor's company policy. Therefore, 
the revised clause language is correct and the leave status of NASA 
Federal employees shall not be conveyed or imputed to contractor 
personnel.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule is not a significant regulatory action under section 3(f) of 
Executive Order 12866. This rule is not a major rule under 5 U.S.C. 
804.

IV. Regulatory Flexibility Act

    NASA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because it provides clarity and information beneficial to NASA 
contractors that are denied access to a NASA facility when a NASA 
facility is closed. The rule imposes no new reporting requirements. The 
rule does not duplicate, overlap, or conflict with any other Federal 
rules. No alternatives were identified that would meet the objectives 
of the rule. No comments from small entities were submitted in 
reference to the Regulatory Flexibility Act request in the proposed 
rule.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) does not apply because 
this final rule contains no information collection requirements that 
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 1842 and 1852

    Government procurement.

Manuel Quinones,
Federal Register Liaison.

    Accordingly, 48 CFR parts 1842 and 1852 are amended as follows:

PART 1842--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
1. The authority citation for part 1842 is revised to read as follows:

    Authority:  51 U.S.C. 20113 and 48 CFR chapter 1.


0
2. Revise subpart 1842.70 to read as follows:

Subpart 1842.70--Additional NASA Contract Clauses


1842.7001  Denied Access to NASA Facilities.

    The contracting officer shall insert the clause at 1852.242-72, 
Denied Access to NASA Facilities, in solicitations and contracts where 
contractor personnel will be working onsite at a NASA facility such as: 
NASA Headquarters and NASA Centers, including Component Facilities and 
Technical and Service Support Centers. For a list of NASA facilities 
see NPD 1000.3 ``The NASA Organization''. The contracting officer shall 
not insert the clause where contractor personnel will be working onsite 
at the Jet Propulsion Laboratory including the Deep Space Network 
Communication Facilities (Goldstone, CA; Canberra, Australia; and 
Madrid, Spain).

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 1852 continues to read as follows:

    Authority:  51 U.S.C. 20113(a) and 48 CFR chapter 1.

    4. Revise section 1852.242-72 to read as follows:


1852.242-72  Denied Access to NASA Facilities.

    As prescribed in 1842.7001, insert the following clause:

Denied Access to NASA Facilities (OCT 2015)

    (a)(1) The performance of this contract requires contractor 
employees of the prime contractor or any subcontractor, affiliate, 
partner, joint venture, or team member with which the contractor is 
associated, including consultants engaged by any of these entities, 
to have access to, physical entry into, and to the extent 
authorized, mobility within, a NASA facility.
    (2) NASA may close and or deny contractor access to a NASA 
facility for a portion of a business day or longer due to any one of 
the following events:
    (i) Federal public holidays for federal employees in accordance 
with 5 U.S.C. 6103.
    (ii) Fires, floods, earthquakes, unusually severe weather to 
include snow storms, tornadoes and hurricanes.
    (iii) Occupational safety or health hazards.
    (iv) Non-appropriation of funds by Congress.
    (v) Any other reason.
    (3) In such events, the contractor employees may be denied 
access to a NASA facility, in part or in whole, to perform work 
required by the contract. Contractor personnel already present at a 
NASA facility during such events may be required to leave the 
facility.
    (b) In all instances where contractor employees are denied 
access or required to vacate a NASA facility, in part or in whole, 
the contractor shall be responsible to ensure contractor personnel 
working under the contract comply. If the circumstances permit, the 
contracting officer will provide direction to the contractor, which 
could include continuing on-site performance during the NASA 
facility closure period. In the absence of such direction, the 
contractor shall exercise sound judgment to minimize unnecessary 
contract costs and performance impacts by, for example, performing 
required work off-site if possible or reassigning personnel to other 
activities if appropriate.
    (c) The contractor shall be responsible for monitoring the local 
radio, television stations, NASA Web sites, other communications 
channels, for example contracting officer notification, that the 
NASA facility is accessible. Once accessible the contractor shall 
resume contract performance as required by the contract.
    (d) For the period that NASA facilities were not accessible to 
contractor employees, the contracting officer may--
    (1) Adjust the contract performance or delivery schedule for a 
period equivalent to the period the NASA facility was not 
accessible;
    (2) Forego the work;
    (3) Reschedule the work by mutual agreement of the parties; or
    (4) Consider properly documented requests for equitable 
adjustment, claim, or any other remedy pursuant to the terms and 
conditions of the contract.
    (e) Notification procedures of a NASA facility closure, 
including contractor denial of access, as follows:
    (1) The contractor shall be responsible for monitoring the local 
radio, television stations, NASA Web sites, other communications 
channels, for example contracting officer notification, for 
announcement of a NASA facility closure to include denial of access 
to the NASA facility. The contractor shall be responsible for 
notification of its employees of the NASA

[[Page 52645]]

facility closure to include denial of access to the NASA facility. 
The dismissal of NASA employees in accordance with statute and 
regulations providing for such dismissals shall not, in itself, 
equate to a NASA facility closure in which contractor employees are 
denied access. Moreover, the leave status of NASA employees shall 
not be conveyed or imputed to contractor personnel. Accordingly, 
unless a NASA facility is closed and the contractor is denied access 
to the facility, the contractor shall continue performance in 
accordance with the contract.
    (2) NASA's Emergency Notification System (ENS). ENS is a NASA-
wide Emergency Notification and Accountability System that provides 
NASA the ability to send messages, both Agency-related and/or 
Center-related, in the event of an emergency or emerging situation 
at a NASA facility. Notification is provided via multiple 
communication devices, e.g. Email, text, cellular, home/office 
numbers. The ENS provides the capability to respond to notifications 
and provide the safety status. Contractor employees may register for 
these notifications at the ENS Web site: http://www.hq.nasa.gov/office/ops/nasaonly/ENSinformation.html.


(End of clause)
[FR Doc. 2015-21584 Filed 8-31-15; 8:45 am]
 BILLING CODE 7510-13-P