[Federal Register Volume 80, Number 169 (Tuesday, September 1, 2015)]
[Rules and Regulations]
[Pages 52642-52645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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
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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]
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