Administrative Revisions to the NASA FAR Supplement

Background

Recent changes to FAR Subpart 19.11, Price Evaluation Adjustment for Small Disadvantaged Business Concerns, and FAR Subpart 19.12, Small Disadvantaged Business Participation Program, established mechanisms to benefit small disadvantaged business (SDB) firms at the prime and subcontract levels. This rule incorporates these changes into MidRange Procedures and provides guidance on the evaluation of the extent of SDB participation, as required by FAR 19.12, under MidRange Best Value Selection (BVS) procedures. NASA MidRange Procurement Procedures require that all acquisitions be reserved for small business concerns. Changes at FAR 19.13, implementing the SBA Historically Underutilized Business Zone (HUBZone) Program, change the order of priority for small business set-asides. This rule incorporates this change into the MidRange Procedures. Additional administrative changes are made to the MidRange Procedures to: reflect the expiration of the pilot test period and synopsis waiver for these procedures; modify the dollar threshold for MidRange acquisitions; correct a FAR citation noted in section 1871.401-1(b)(3); delete redundant coverage of NASA Acquisition Internet Service (NAIS) usage at section 1871.405; and add prescribed NASA Forms 1667 and 1668 to Part 1853. Other editorial changes unrelated to MidRange are made to: revise the language at 1812.301(f)(i) to clarify that use of the clauses listed is authorized without obtaining a waiver; add clause 1852.223-71, Frequency Authorization, to the list of clauses authorized for use in commercial acquisitions in accordance with the authority at FAR 12.301(f); and revise several references to Lewis Research Center (LeRC) to the Glenn Research Center at Lewis Field (GRC).

Impact

Regulatory Flexibility Act

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Pub. L. 98-577, and publication for public comments is not required. However, comments from small entities concerning the affected NFS subpart will be considered in accordance with 5 U.S.C. 610. Such comments must be submitted separately and should cite 5. U.S.C. 601, et seq.

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 collections of information from offerors, contractors, or members of the public 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 1802, 1804, 1812, 1852, 1853, and 1871

Government procurement. Tom Luedtke, Acting Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1802, 1804, 1812, 1852, 1853, and 1871 are amended as follows:

PART 1802--DEFINITIONS OF WORDS AND TERMS

1. The authority citation for 48 CFR Parts 1802, 1804, 1812, 1852, 1853, and 1871 continues to read as follows:

Authority: 42 U.S.C. 2473(c)(1).

2. In the definition ``Contracting activity'' in section 1802.101, ``Lewis Research Center'' is removed and ``Glenn Research Center at Lewis Field'' is added in alphabetical order after ``Dryden Flight Research Center''.

PART 1804--ADMINISTRATIVE MATTERS

3. In paragraph (a) to section 1804.7102, under the heading ``Installation'', ``Lewis Research Center'' is removed and ``Glenn Research Center at Lewis Field'' is added in its place and the entry is placed in alphabetical order after ``Dryden Flight Research Center''.

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

4. Section 1812.301, is revised to read as follows:

1812.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (NASA Supplements paragraph (f))

(f)(i) The following clauses are authorized for use in acquisitions of commercial items when required by the clause prescription: (A) 1852.214-71, Grouping for Aggregate Award. (B) 1852.214-72, Full Quantities. (C) 1852.215-84, Ombudsman. (D) 1852.219-75, Small Business Subcontracting Reporting. (E) 1852.219-76, NASA Small Disadvantaged Business Goal. (F) 1852.223-71, Frequency Authorization. (G) 1852.228-72, Cross-Waiver of Liability for Space Shuttle Services. (H) 1852.228-76, Cross-Waiver of Liability for Space Station Activities. (I) 1852.228-78, Cross-Waiver of Liability for NASA Expendable Launch Vehicles. (J) 1852.232-70, NASA Progress Payment Rates. (K) 1852.246-72, Material Inspection and Receiving Report.

PART 1852--SOLICITATION PROVISIONS AND CONRACT CLAUSES

5. In paragraph (b)(i) to section 1852.103, ``CW'' and ``LERC'' are removed, and ``GRC'' is added in alphabetical order after ``DFRC''.

PART 1853--FORMS

6. Section 1853.271 is added to read as follows:

1853.271 MidRange procurement procedures (NASA Forms 1667 and 1668).

The following forms are prescribed in 1871.105(f): (a) NASA Form 1667, Request for Offer. (b) NASA Form 1668, Contract.

PART 1871--MIDRANGE PROCUREMENT PROCEDURES

7. Subpart 1871.1 is revised to read as follows:

Subpart 1871.1--General

Sec. 1871.101 Purpose. 1871.102 Applicability. 1871.103 Definitions. 1871.104 Policy.

Subpart 1871.1--General

1871.101 Purpose.

The purpose of this part is to establish policies and procedures that implement the MidRange procurement process.

1871.102 Applicability.

(a) This part applies to all acquisitions at NASA, except as provided in 1871.401-4(a)(3), the aggregate amount of which is not more than $10,000,000 including options, and for commercial items (FAR Part 12) not more than $25,000,000 including options. This part may be used for commercial item contracts above $25,000,000 at the installation's discretion.

(b) For other than commercial items, if the Government estimate exceeds the limits of paragraph (a) of this section, the acquisition will be processed under FAR and NFS procedures applicable to large acquisitions (see FAR Parts 14 and 15). When the estimate is within the threshold of paragraph (a) of this section and the acquisition was started using these procedures but the offered prices/costs exceed the MidRange ceiling, the acquisition may continue under MidRange procedures, provided that-- (1) The price/cost can be determined to be fair and reasonable; (2) The successful offeror accepts incorporation of required FAR and NFS clauses applicable to large acquisitions; and (3) The acquisition does not exceed $15,000,000 for the total requirement.

1871.103 Definitions.

The following terms are used throughout part 1871 as defined in this subpart. (a) MidRange procurement procedure means a set of procedures contained in this part and within the applicability of 1871.102. (b) Request for Offer (RFO) means the solicitation used to request offers for all authorized MidRange procurements. (c) Clarification and Discussion are used as defined in FAR 15.306. (d) Commercial item is used as defined in FAR 2.101.

1871.104 Policy.

(a) Unless stated otherwise, acquisitions conducted using MidRange procedures shall comply with all applicable parts of the FAR and NFS (e.g. FAR 15.4 and 1815.4--Contract Pricing, and FAR 19.7 and 1819.7-- The Small Business Subcontracting Program). (b) Acquisitions conducted under Part 1871, unless otherwise properly restricted under the provisions of FAR Part 6, are considered to be full and open competition after exclusion of sources when set aside for competitions among small business concerns (FAR 6.203), 8(a) concerns (FAR 6.204), or HUBZone small businesses (FAR 6.205). (c) Options may be included in the acquisition provided they conform to 1871.102(a). (d) The appropriate part 1871 post-selection processes (negotiation, award, and publication of award) may be used to the extent applicable for Small Business Innovation Research (SBIR), broad agency announcements, unsolicited proposals, and Small Business Administration 8(a) acquisitions within the applicability of 1871.102(a). (e) The NASA Acquisition Internet Service (NAIS) will be used to the maximum extent practicable to disseminate advance acquisition information and conduct part 1871 acquisitions. (f) Use of locally generated forms is encouraged where their use will contribute to the efficiency and economy of the process. NASA Forms 1667, Request for Offer, and 1668, Contract, or computer generated versions of these forms, may be used as the solicitation and contract cover sheets, respectively, except that the SF1442, Solicitation, Offer, and Award (Construction, Alteration, or Repair), shall be used for construction acquisitions and the SF1449, Solicitation/Contract/Order for Commercial Items, shall be used for commercial item acquisitions. Contractor generated forms or formats for solicitation response should be allowed whenever possible. There is no requirement for uniform formats (see FAR 15.204). 8. In section 1871.204, paragraphs (a), (d), and (f) are revised and paragraph (h) is added to read as follows:

1871.204 Small business set-asides.

(a) Except as provided in paragraphs (b) through (f) of this section, each MidRange acquisition shall be reserved exclusively for small business concerns. (See FAR subparts 19.5 and 19.13. See FAR 19.1305(a) regarding priority considerations). * * * * * (d) If the buying team procurement member determines that the conditions for a HUBZone set-aside, HUBZone sole source, or small business set-aside cannot be satisfied, the buying team may purchase on an unrestricted basis utilizing MidRange procedures. The buying team procurement member shall document the contract file with the reason for the unrestricted acquisition. * * * * * (f) If the buying team proceeds with a small business MidRange set- aside and receives an offer from only one responsible small business concern at a reasonable price, the contracting officer will normally make an award to that concern. However, if the buying team does not receive a reasonable offer from a responsible small business concern, the buying team procurement member may cancel the small business set- aside and complete the acquisition on an unrestricted basis utilizing MidRange procedures. If the acquisition is a HUBZone set-aside and only one acceptable offer is received, the buying team should proceed with the award in accordance with FAR 19.1305(d). The buying team procurement members shall document in the file the reason for the unrestricted purchase. * * * * * (h) Each model contract under a HUBZone MidRange set-aside shall contain the clause at FAR 52.219-3, Notice of Total HUBZone Set-Aside. 9. In section 1871.401-1, paragraph (b)(3) is revised and paragraph (b)(5) is added to read as follows:

1871.401-1 Sealed offers.

* * * * * (b) * * * (3) All offers shall be examined for mistakes in accordance with FAR 14.407-1 and 14.407-2. The buying team shall determine that a prospective contractor is responsible and that the prices offered are reasonable (see FAR 14.408-2). * * * * * (5) When proceeding with an unrestricted acquisition see-- (i) FAR Subpart 19.11 regarding use of the price evaluation adjustment for small disadvantaged business (SDB) concerns; and (ii) FAR Subpart 19.13 regarding use of the price evaluation preference for HUBZone small business concerns. 10. In section 1871.401-2, the section heading is revised and paragraph (b)(5) is added to read as follows:

1871.401-2 Two-step competitive acquisition.

* * * * * (b) * * * (5) When proceeding with an unrestricted acquisition see-- (i) FAR Subpart 19.11 regarding use of the price evaluation adjustment for SDB concerns; and (ii) FAR Subpart 19.13 regarding use of the price evaluation preference for HUBZone small business concerns. 11. In section 1871.401-3, the section heading is revised and paragraph (a)(4) is added to read as follows:

1871.401-3 Competitive negotiated acquisition not using qualitative criteria.

(a) * * * (4) When proceeding with an unrestricted acquisition see-- (i) FAR Subpart 19.11 regarding use of the price evaluation adjustment for SDB concerns; and (ii) FAR Subpart 19.13 regarding use of the price evaluation preference for HUBZone small business concerns. * * * * * 12. In section 1871.401-4 paragraph (a)(5) is added to read as follows:

1871.401-4 Competitive negotiations using qualitative criteria (Best Value Selection).

(a) * * * (5) When proceeding with an unrestricted acquisition see-- (i) FAR Subpart 19.11 regarding use of the price evaluation adjustment for SDB concerns. SDB concerns that choose the FAR 19.11 price evaluation adjustment shall receive no consideration under a MidRange BVS value characteristic that addresses the FAR 19.1202 SDB participation evaluation; (ii) FAR 19.1202 regarding the evaluation of the participation of SDB concerns in performance of the contract. For BVS MidRange acquisitions, SDB participation shall be evaluated as a BVS value characteristic (see 1871.603(b)); and (iii) FAR Subpart 19.13 regarding use of the price evaluation preference for HUBZone small business concerns. * * * * * 13. In section 1871.401-5, paragraph (b) is revised to read as follows:

1871.401-5 Noncompetitive negotiations.

* * * * * (b) Procedures. (1) The buying team shall request pricing information in accordance with FAR 15.402 and 15.403. (2) The technical member of the buying team shall provide technical assistance to the procurement member during evaluation and negotiation of the contractor's offer. 14. Section 1871.405 is removed. 15. Section 1871.505 is revised to read as follows:

1871.505 Notifications to unsuccessful offerors.

For solicitations that were posted on the NAIS, a preaward notice shall be electronically transmitted to the offerors. In addition, contracting officers shall comply with the preaward notices for small business programs in FAR 15.503(a)(2). 16. In section 1871.602, the second sentence is revised to read as follows:

1871.602 Specifications for MidRange procurements.

* * * The offeror will be guided in meeting the Government's needs by a separate set of value characteristics which establish what the Government considers to be valuable in an offer beyond the baseline requirement. * * * 17. In section 1871.603, paragraphs (b) and (c) are redesignated as paragraphs (d) and (e), and new paragraphs (b) and (c) are added to read as follows:

1871.603 Establishment of evaluation criteria.

* * * * * (b) For unrestricted acquisitions, small disadvantaged business (SDB) participation shall be evaluated as a BVS value characteristic (see FAR 19.1202-3). In order to receive consideration under the value characteristic, the offeror must propose a target for SDB participation greater than the baseline requirement. The baseline requirement for SDB participation is zero or no SDB participation. SDB concerns that choose the price evaluation adjustment under FAR 19.11 shall receive no consideration under this MidRange BVS value characteristic. Like other value characteristics, offerors meeting the baseline, but proposing no value above the baseline, and which are otherwise acceptable, are to be considered for award if they are finalists. (c) Past performance may be included as a value characteristic or considered as a separate evaluation criteria. If considered as a separate criterion, the relative importance of past performance in relation to cost and technical must be defined in the solicitation. * * * * * [FR Doc. 99-10126 Filed 4-22-99; 8:45 am] BILLING CODE 7510-01-P