1828.001 Definitions.
"Protected Space Operations" means all launch vehicle activities, Space Station activities, and payload activities on Earth, in outer space, or in transit between Earth and outer space related to Space Station. It includes, but is not limited to research, design, development, test, manufacture, assembly, integration, operation, or use of launch or transfer vehicles (for example, the Orbital Maneuvering Vehicle), the Space Station, or a payload, as well as related support equipment and facilities and services; and all activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services. The term
"Protected Space Operations" also includes all activities related to evolution of the Space Station as provided for in the Space Station Intergovernmental Agreement signed on September 29, 1988. "Protected Space Operations" excludes activities on Earth which are conducted on return from the Space Station to develop further a payload's product or process for use other than for Space Station related activities.
"STS Operations" means all Space Transportation System (STS) activity, all payload activity, and all tangible personal property (including ground support, test, training, and simulation equipment) related to STS or payload activity. The term also includes research, design, development, test, manufacture, assembly, integration, transportation, or use of any materials related to the above noted activities or property, and performance of any services related to the above factors.
1828.101 Bid guarantees.
1828.101-70 NASA solicitation provision.
In accordance with FAR 28.101, the contracting officer shall insert the provision at 1852.228-73, Bid Bond, in construction solicitations where offers are expected to exceed $25,000, and a performance bond or a performance and payment bond is required. The contracting officer may increase the amount of the bid bond to protect the Government from loss, as long as the amount does not exceed $3 million. This provision may be used in other than construction procurements if the requirements of FAR 28.103 have been complied with.
1828.102 Performance and payment bonds for construction contracts.
1828.102-1 General.
NASA contractors that, in the course of contract performance, will acquire by subcontract construction work determined by NASA to be subject to the Miller Act, but that are not required under FAR 28.102 to furnish Miller Act bonds, shall be required to obtain performance and payment bonds from their subcontractors (see 1828.106-1). The contracting officer shall establish the penal amount in accordance with FAR 28.102-2.
1828.102-70 Solicitation provision.
In accordance with FAR 28.102, except as provided therein, the contracting officer shall insert a provision substantially as stated at 1852.228-74, Payment and Performance Bonds, in construction solicitations where offers are expected to exceed $25,000. The penal amount of the performance bond may be decreased in accordance with FAR 28.102-2(a). The contracting officer may change the word "may" in the first sentence of subparagraph (a)(2) and (b)(2) to "shall" if the procurement contemplates options or additive items (see 1836.303-70).
1828.106 Administration.
1828.106-1 Bonds and bond related forms.
When the contracting officer determines that performance or payment bonds are required from construction subcontractors under any non-construction contract (see 1828.102-1), the bonds shall be provided on SF 25, Performance Bond, and SF 25A, Payment Bond. These forms shall be modified to name the NASA prime contractor as well as the United States of America as obligees.
1828.106-6 Furnishing information.
(a) The contracting officer is designated, in accordance with FAR 28.106-6(c), to furnish a certified copy of the payment bond and the contract for which it was given upon receipt of an appropriate affidavit from the requestor.
(b) The contracting officer shall obtain the concurrence of the Office of Chief Counsel before releasing any documents.
1828.202 Acceptability of corporate sureties.
When the solicitation requires the submission of a performance or payment security and the offeror proposes a corporate surety, verification procedures required by FAR 28.202 shall be supplemented by following the procedures in 1809.105-1, Obtaining information.
1828.305 Overseas workers' compensation and war-hazard insurance.
(a) Waiver of Defense Base Act. Applications for waivers under FAR 28.305(d) shall be submitted to the Administrator through the Associate Administrator for Procurement. The application shall include--
(1) The contractor's name;
(2) The contractor's business mailing address;
(3) The contract number;
(4) The date of award;
(5) The geographic location where the contract will be performed;
(6) The name of the insurance company providing the Defense Base Act coverage;
(7) The nationality of the employees to whom the waiver is to apply; and
(8) The reason for the waiver.
(b) When the Defense Base Act is waived:
(1) The decision under FAR 28.305(e) as to whether (i) the costs of the liability or (ii) the reasonable costs of insurance against it shall be allowed as a cost under the contract may be made by the Associate Administrator for Procurement or by a designee.
(2) The Schedule of each contract containing the clause at 1852.228-77, Reimbursement for War-Hazard Losses, shall contain an estimated cost for war-hazard losses, derived in accordance with (i) below, and a statement similar to that set forth in (ii) below:
(i) The estimated cost for war-hazard losses shall be based on estimates arrived at in the light of experience, taking into account the number of the contractor's employees subject to protection for war-hazard risks, the level of benefits applicable to them, their location, and the nature of the risks to which they are exposed. The amount allotted to the contract shall initially be kept as small as reasonably feasible. As reports are received indicating any need to increase the allotment to the contract, they shall be evaluated and the allotment increased as necessary. When negotiating for the inclusion in the contract of provisions applicable to war-hazard risks, the contracting officer may include provisions concerning the types of foreign nationals employed by the contractor and the level of benefits applicable to them, and other pertinent provisions relating to the manner in which the program will function to the benefit of all concerned. Advance agreements under FAR 31.109 may also be advantageous with respect to the levels of proof considered acceptable to justify the contractor's commencing payments and being reimbursed for them before the contractor is able to settle its obligation.
(ii) "The portion of this contract providing for the contractor to afford protection to its employees and subcontractors to their employees against war-hazard risks (see the clauses at 52.228-4 of the Federal Acquisition Regulation (FAR) and 1852.228-77 of the NASA FAR Supplement) is on a cost-reimbursement, no-fee basis, notwithstanding the basis of the remainder of the contract."
1828.307 Insurance under cost-reimbursement contracts.
1828.307-2 Liability.
(a) In accordance with FAR 28.307-2(b)(2), the special circumstances requiring property damage liability insurance are those where (otherwise, prior approval for purchase of property damage liability insurance must be obtained from the Associate Administrator for Procurement)--
(1) A commingling of operations permits property damage coverage at a nominal cost to NASA under insurance carried by the contractor in the course of its commercial operations; or
(2) The contractor is engaged in the handling of high explosives or in extra hazardous research and development activities undertaken in populated areas.
(b) The Government normally will assume the risk of a contractor's uninsured third-party liability to the extent provided for by the clause at FAR 52.228-7, Insurance--Liability to Third Persons.
1828.307-70 Insurance of industrial facilities.
When industrial facilities are provided by the Government under a facilities contract or a lease, the contract or lease shall require that during the period of construction, installation, alteration, repair, or use, and at any other time as directed by the installation concerned, the contractor or lessee shall insure or otherwise provide approved security for liabilities to third persons (including employees of the contractor or lessee) in the manner and to the same extent as required in FAR 28.307-2.
1828.309 Contract clauses for workers' compensation insurance.
The contracting officer shall insert the clause at 1852.228-77, Reimbursement for War-Hazard Losses, in all solicitations and contracts containing the clause at FAR 52.228-4, if the Associate Administrator for Procurement determines that the contractor shall not purchase insurance against the assumed liability to the waived employees and their beneficiaries (see 1828.305(b)).
1828.311 Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.
1828.311-2 Contract clause.
The contracting officer shall insert the clause at FAR 52.228-7, Insurance--Liability to Third Persons, as prescribed in FAR 28.311-2 unless waived by the procurement officer.
1828.311-270 NASA contract clause.
The contracting officer shall insert the clause at 1852.228-71, Aircraft Flight Risks, in all cost-reimbursement contracts for the development, production, modification, maintenance, or overhaul of aircraft, or otherwise involving the furnishing of aircraft to the contractor, except when the aircraft are covered by a separate bailment.
1828.370 Fixed-price contract clauses.
(a) The contracting officer shall insert the clause at 1852.228-70, Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts for the development, production, modification, maintenance, or overhaul of aircraft, or otherwise involving the furnishing of aircraft to the contractor, except as provided in paragraph (b) of this section, unless the aircraft are covered by a separate bailment. See the clause preface for directions for modifying the clause to accommodate various circumstances.
(b) The Government need not assume the risk of damage to, or loss or destruction of, aircraft as provided by the clause at 1852.228-70 if the best estimate of premium costs that would be included in the contract price for insurance coverage for such damage, loss, or destruction at any plant or facility is less than $500. If it is determined not to assume this risk, the clause at 1852.228-70 shall not be made a part of the contract, and the cost of necessary insurance to be obtained by the contractor to cover this risk shall be considered in establishing the contract price. In such cases, however, if performance of the contract is expected to involve the flight of Government-furnished aircraft, the substance of the clause at 1852.228-71, Aircraft Flight Risks, suitably adapted for use in a fixed-price contract, shall be used.
(c) When the clause at 1852.228-70 is used, the term "Contractor's premises" shall be expressly defined in the contract Schedule and shall be limited to places where aircraft may be located during and for the performance of the contract. Contractor's premises may include, but are not limited to, those owned or leased by the contractor or those for which the contractor has a permit, license, or other right of use either exclusively or jointly with others, including Government airfields.
1828.371 Clauses for cross-waivers of liability for Space Shuttle services, Expendable Launch Vehicle (ELV) launches, and Space Station activities.
(a) In agreements covering Space Shuttle services, certain ELV launches, Space Station activities, NASA and other signatories (the parties) agree not to bring claims against each other for any damage to property or for injury or death of employees that occurs during the time such a cross-waiver is in effect. These agreements involving NASA and other parties include, but are not limited to, Memoranda of Understanding with foreign Governments, Launch Services Agreements, and other agreements for the use of NASA facilities. These agreements require the parties to flow down the cross-waiver provisions to their related entities so that contractors, subcontractors, customers, and other users of each party also waive their right to bring claims against other parties and their similarly related entities for damages arising out of activities conducted under the agreements. The purpose of the clauses prescribed in this section is to flow down the cross-waivers to NASA contractors and subcontractors.
(b) The contracting officer shall insert the clause 1852.228-72, Cross-waiver of Liability for Space Shuttle Services, in solicitations and contracts of $100,000 or more when the work to be performed involves "Protected Space Operations" (applicable to the Space Shuttle) as that term is defined in the clause. If Space Shuttle services under the contract are being conducted in support of the Space Station program, the contracting officer shall insert the clause prescribed by paragraph (d) of this section and designate application of that clause to those particular activities.
(c) The contracting officer shall insert the clause at 1852.228-78, Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) Launches, in solicitations and contracts of $100,000 or more for the acquisition of ELV launch services when the service is being acquired by NASA pursuant to an agreement described in paragraph (a) of this section. If, under a contract that covers multiple launches, only some of the launches are for payloads provided pursuant to agreements, an additional clause shall be inserted in the contract to designate the particular launches to which this clause applies. If a payload is being launched by use of an ELV in support of the Space Station program, the contracting officer shall insert the clause prescribed by paragraph (d) of this section and designate application of that particular launch.
(d) The contracting officer shall insert the clause at 1852.228-76, Cross-Waiver of Liability for Space Station Activities, in solicitations and contracts of $100,000 or more when the work is to be performed involves "Protected Space Operations" (relating to the Space Station) as that term is defined in the clause.
(e) At the contracting officer's discretion, the clauses prescribed by paragraphs (b), (c), and (d) of this section may be used in solicitations, contracts, new work modifications, or extensions, to existing contracts under $100,000 involving Space Shuttle activities, ELV launch services, or Space Station activities, respectively, in appropriate circumstances. Examples of such circumstances are when the value of contractor property on a Government installation used in performance of the contract is significant, or when it is likely that the contractor or subcontractor will have its valuable property exposed to risk or damage caused by other participants in the Space Shuttle services, ELV launches, or Space Station activities.
1828.372 Clause for minimum insurance coverage.
In accordance with FAR 28.306(b) and 28.307, the contracting officer may insert a clause substantially as stated at 1852.228-75, Minimum Insurance Coverage, in fixed-price solicitations and contracts requiring performance on a government installation and in cost-reimbursement contracts. The contracting officer may modify the clause to require additional coverage, such as vessel liability, and higher limits if appropriate for a particular procurement.