1832.111 Contract clauses.
1832.111-70 NASA contract clause.
The contracting officer shall insert the clause at 1852.232-79, Payment for On-Site Preparatory Costs, in solicitations and contracts for construction on a fixed-price basis when progress payments are contemplated and pro rata payment of on-site preparatory costs to the contractor is appropriate.
1832.170 Voluntary refunds.
(a) General. A voluntary refund is a payment or credit, not required by any contractual or other legal obligation, made to the Government by a contractor or subcontractor either as a payment or as an adjustment under one or more contracts or subcontracts. It may be unsolicited or may be made in response to a Government request. If it is desired to solicit a refund from a subcontractor, the prime contractor should be encouraged to facilitate the making of such refund. In deciding whether or not to solicit a refund or accept an unsolicited refund, the contracting officer shall ask legal counsel to review the contract or contracts and all relevant data to determine whether the Government's rights would be jeopardized or impaired by the contracting officer's proposed action.
(b) Solicited refunds. Voluntary refunds may be requested during or after contract performance. They shall be requested only when it is considered that the Government has been overcharged under a contract or inadequately compensated for the use of Government-owned property or in the disposition of contractor inventory, and retention by the contractor or subcontractor of the amount in question would be contrary to good conscience and equity. Generally, retention by the contractor or subcontractor shall not be considered contrary to good conscience and equity, and thus a refund shall not be requested, unless the overcharge or inadequate compensation was due, at least in part, to the fault of the contractor or subcontractor. The decision to solicit a refund shall be made by the Deputy Administrator or a designee after coordination with the Associate Administrator for Procurement.
(c) Disposition of voluntary refunds.
(1) If a voluntary refund is offered before final payment, it is preferable that the contract price be appropriately modified to reflect the refund. In such a case, the amount of the refund shall be credited to the applicable appropriation cited in the contract.
(2) When the refund is made by check rather than by adjusting the contract price, the check shall be made payable to the National Aeronautics and Space Administration and shall be forwarded immediately to the Financial Management Office of the appropriate installation. When forwarded, the check shall be accompanied by a letter identifying it as a voluntary refund, giving the number of the contract or contracts involved and, if possible, the account number of the appropriation to which the refund should be credited.
1832.402 General.
Determinations and findings in support of advance payments, as authorized by the Armed Services Procurement Act of 1947, as amended (10 U.S.C. 2307(c) and 2310(b)), shall be prepared in accordance with 1832.410. The lowest level of authority at which these determinations and findings shall be made is:
(a) The Associate Administrator for Procurement (Code HC), for advance payments--
(1) Where the cumulative potential value for a single contract is greater than $25,000,000, or where a contract modification will increase the amount outstanding at any time and the cumulative potential contract value will exceed $25,000,000. Additional determinations and findings for increases to such contracts need not be prepared and submitted to the Associate Administrator for Procurement as long as the advance payment amount outstanding at any time is not increased;
(2) In any amount to a foreign entity; or
(3) In any amount when the organization will receive a fee for the effort involved.
(b) The procurement officer, for advance payments involving a single action or which results in the cumulative potential contract value of $25,000,000 or less (other than to a foreign entity or an organization that will receive a profit or fee), provided the action has been coordinated with the installation's Financial Management Officer.
1832.402-1 Small Business Innovation Research Contracts.
Advance payments for all Small Business Innovation Research (SBIR) Phase I contracts have been authorized through a class deviation. This authorization is for the Government fiscal years ending September 30, 2000.
1832.402-2 Expendable launch vehicle services contracts.
Determinations and findings are not required for advance payments for contracts supporting expendable launch vehicle (ELV) services contracts (however, see 1832.70 for Milestone Billing Arrangements). Instead all advance payments clauses for ELV services contracts shall be submitted to Code HC for concurrence prior to issuance of the solicitation (see 1832.7005), and to the Associate Administrator for Procurement (Code HC) for approval prior to award (see 1832.7006).
1832.406 Letters of credit.
For the purposes of FAR 32.406(b)(1), each installation is considered a contracting agency.
1832.406-70 Federal Cash Transactions Report.
The report required by paragraph (m) of the clause at FAR 52.232-12, Advance Payments, or paragraph (j) of Alternate V of that clause, shall be submitted on Standard Form 272, Federal Cash Transactions Report, and, if appropriate, Standard Form 272-A, Federal Cash Transactions Report Continuation.
1832.407 Interest
Advance payments without interest are hereby authorized, pursuant to FAR 32.407(d)(1).
1832.409-3 Security, supervision, and covenants.
The contracting officer, in consultation with the General Counsel, may require special security conditions, if appropriate, in particular cases. Those conditions may be included in solicitations and contracts that include the clause at FAR 52.232-12, Advance Payments.
1832.410 Findings, determination, and authorization.
1832.410-70 Instructions for determinations and findings.
(a) Requests for Headquarters approval of advance payments, in accordance with 1832.402 (a), shall be forwarded to the Associate Administrator for Procurement (Code HC). They should include (1) the name of the cognizant NASA Headquarters program or staff office; (2) the name and phone number of the contracting officer or negotiator; (3) a copy of the proposed advance payments clause; (4) a copy of the contractor's request for advance payments, along with any supporting information; and (5) if a profit/fee is contemplated, the factors considered in determining the profit/fee (see Subpart 1815.9), and (6) information as to how a determination was made that the Government has adequate security to cover the maximum advance payment amount at any time outstanding.
(b) 10 U.S.C. 2307 is normally the statutory authority cited for authorizing advance payments. When appropriate, advance
payments may also be authorized under 42 U.S.C. 2473(c)(5) or under Public Law 85-804 as implemented by Executive Order 10789 (see Far Part 50).
(c) Generally, the format in FAR 32.410 should be used, tailored as follows:
(1) The phrase "Advance payments (in an amount not to exceed $..... at any time outstanding)" at format paragraph (a)(2), and not the alternate phrase "(in an aggregate amount not exceeding...)," shall be used for all determinations and findings. The phrase means the maximum unliquidated dollar amount a contractor would need in advance payments at any point in time for the particular contract. The amount would not usually be the full contract value. The amount inserted should be based on an analysis of the contractor's financing needs (monthly or other appropriate period) for the specific contract involved.
(2) In the second sentence of format subparagraph (a)(4), delete the reference to a special bank account.
(3) Use format subparagraph (a)(6), not (a)(7) or (a)(8).
(4) At the end of format paragraph (b), use "is in the public interest."
1832.412 Contract clause.
Whenever the clause at FAR 52.232-12 is used, it shall be modified as set forth at 1852.232-12. In addition, the dollar amount to be inserted in the blank of the modified language of the "Maximum Payment" paragraph of the clause is the same amount determined for 1832.410-70(c)(1).
1832.501 General.
1832.501-1 Customary progress payment rates.
The customary progress payment rate for all NASA contracts is 85 percent for large business, 90 percent for small business, and 95 percent for small disadvantaged business.
1832.501-2 Unusual progress payments.
Requests for unusual progress payments must have the specific approval of the Associate Administrator for Procurement, with the concurrence of the Director, Financial Management Division (Code BF).
1832.502 Pre-award matters.
1832.502-2 Contract finance office clearance.
The approving authority for the actions specified in FAR 32.502-2 is the Associate Administrator for Procurement. Any such approvals should be coordinated with the Director, Financial Management Division.
1832.502-4 Contract clauses.
1832.502-470 NASA contract clause.
The contracting officer may insert a clause substantially as stated at 1852.232-82, Submission of Requests for Progress Payments, in fixed-price solicitations and contracts that provide for progress payments. The recipient of the requests may be changed if this function is delegated. The number of copies of the request may be changed if necessary to meet a substantial need.
1832.503 Post-award matters.
1832.503-3 Initiation of progress payments and review of accounting system.
In connection with the situations mentioned in FAR 32.503-3(b), the Financial Management Officer shall be notified.
1832.503-4 Approval of progress payment requests.
1832.503-470 Contract clause.
The contracting officer shall insert the clause at 1852.232-70, NASA Progress Payment Rates, in all solicitations and fixed-price contracts under which the Government will provide progress payments based on costs.
1832.504 Subcontracts.
The Government approval mentioned in FAR 32.504(c) shall be as specified in 1832.502-2 above.
1832.702 Policy.
1832.702-70 NASA policy.
(a) Cost-reimbursement contracts may be incrementally funded only if all the following conditions are met (except that, for cost-reimbursement R&D contracts under which no supplies are deliverable, only the condition in subparagraph (3) of this section applies):
(1) The total value of the contract (including options as defined in FAR Subpart 17.2) is $1,000,000 or more.
(2) The period of performance under the contract is in excess of 12 months or overlaps the succeeding fiscal year.
(3) The funds are not available to fund the total contract value fully at the time of entering into the contract.
(b) Fixed-price contracts, other than those for research and development, shall not be incrementally funded.
(c) (1) Fixed-price contracts for research and development may be incrementally funded if--
(i) The total fixed price of the contract (including options as defined in FAR Subpart 17.2) is $1,000,000 or more;
(ii) The period of performance under the contract is in excess of twelve months or overlaps the succeeding fiscal year;
(iii) Funds are not available to fund the total fixed price of the contract at the time of entering into the contract; and
(iv) Initial funding of the contract is not less than 50 percent of the total fixed price.
(2) Notwithstanding the grant of authority to fund contracts incrementally under the circumstances in subparagraph (1) of this section, fixed-price contracts shall be fully funded whenever possible, and incremental funding of such contracts shall be kept to an absolute minimum.
(d) Except as noted in (e) of this section, waiver of any of the conditions set forth in paragraphs (a), (b), and (c) of this section shall be submitted for approval to the installation procurement officer. Concurrence of the installation Comptroller must be obtained on all requests prior to approval by the procurement officer. The procurement officer shall maintain a record of all such approvals during the fiscal year. At a minimum, the record will include: contract number, description and type; dollar value; amount of funds initially available; and the reason(s) for the waiver.
(e) A class deviation from the conditions set forth in paragraphs (a), (b), and (c) exists to permit incremental funding of contracts under Phase II of the SBIR Program until the last year of the program (FY 1993 unless extended). This deviation exists with the understanding that the contracts will be fully funded when funds become available.
1832.704 Limitation of cost or funds.
(a) When a contract contains the clause at 1852.232-77, Limitation of Funds (Fixed-Price Contract), the procedures in FAR 32.704 are applicable.
(b) The amount obligated for fee should always be at least sufficient to pay fee anticipated to be earned by the contractor for the work to which the amount allotted for the estimated cost applies.
1832.705 Contract clauses.
1832.705-270 Additional clauses for limitation of cost or funds.
(a) The contracting officer shall insert the clause at 1852.232-77, Limitation of Funds (Fixed-Price Contract), in solicitations and contracts for fixed-price incrementally funded research and development.
(b) The contracting officer shall insert a clause substantially as stated at 1852.232-81, Contract Funding, in Section B of solicitations and contracts containing the clause at (FAR) 48 CFR 52.232-22, Limitation of Funds. Insert the amounts of funds available for payment, the items covered, and the applicable period of performance. The contracting officer may add additional funding information (such as a summary of old amounts, amount(s) added in contract modifications, and new totals) as appropriate for the particular procurement.
1832.903 Policy.
As authorized at FAR 32.903, payments for contracts (other than Fixed-Price Architect-Engineer Contracts, Construction Contracts, and contracts for meats, perishables and dairy products) with the Canadian Commercial Corporation (CCC) shall be made earlier than the standard contract payment due dates.
1832.906 Contract financing payments.
It is NASA's policy to make contract financing payments on the 30th day after the designated billing office has received a proper request. However, as authorized at FAR 32.906(a), the due date for making contract financing payments for a specific contract may be earlier than the 30th day, but not earlier than 7 days, after the designated billing office has received a proper request, provided that:
(a) The contractor provides consideration whose value is determined to be greater than the cost to the United States Treasury of interest on funds paid prior to the 30th day, calculated using the Current Value of Funds Rate published annually in the Federal Register (subject to quarterly revision);
(b) Approval is obtained from the installation procurement officer with concurrence from the installation Financial Management Officer; and
(c) The contract file is adequately documented to state what consideration was
received and show how the consideration was valued.
1832.908 Contract clauses.
(a) When a clause at FAR 52.232-25, 52.232-26 or 52.232-27 is used, the clause at 52.232-28 shall be used as authorized by FAR 32.908(d), modified by deleting the words "and contract number" from paragraph (d). The following paragraph shall be inserted in FAR 52.232-28(b)(4) in lieu of the language at that location:
The Contractor shall submit a Standard Form 3881 to the installation awarding this contract. If a Standard Form 3881 previously submitted to the installation awarding this contract is still valid, resubmittal is not necessary, unless requested by NASA.
(b) When the clause at FAR 52.232-25, Prompt Payment, is used in contracting with the CCC subject to the conditions at 1832.970--
(1) The number "17" shall be used in lieu of "30" in paragraphs (a)(2)(i) and (a)(2)(ii) of the clause; and
(2) The number "17th" shall be inserted in paragraph (b)(2) of the clause.
1832.970 Payments to Canadian Commercial Corporation.
As authorized by FAR 32.903, the phrase "the 17th day" shall be used in lieu of the "the 30th day" at FAR 32.905(a)(1), 32.905(a)(2) and 32.906(a).
1832.7001 General.
As authorized at FAR 32.102(e), milestone billing arrangements may be used for contract financing. Milestone billing arrangements fall between progress payments based on costs with unusual terms and advance payments in the order of preference specified in FAR 32.106. Milestone billing arrangements are contractual provisions which provide for payments to a contractor upon successful completion of specific performance events not involving physical deliveries to the Government. As milestone arrangements are interim payments with respect to total contract performance, they are fully recoverable, in the same manner as progress payments, in the event of default. Milestone payments shall not be considered as payments for contract items delivered and accepted, incentive price revisions, or inspection and acceptance provisions of the contract. Milestone billing arrangements are contract financing payments and as such are not subject to prompt payment interest penalties.
1832.7002 Policy.
In negotiating milestone billing arrangements, contracting officers must seek to establish an overall level of contract financing that will result in the contractor maintaining an appropriate investment in contract work-in-process inventory. The level of contract financing should be based on the number, value and timing of the milestone billing events, and the manner in which milestone payments are liquidated against contract line item deliveries. Therefore, proposed milestone billing arrangements should be carefully evaluated to insure that contract financing objectives are being met, that the proposed milestone billing arrangement will not result in an unreasonably low or negative level of contractor work-in-process inventory, or create an administrative burden (e.g., too frequent payments).
1832.7003 Criteria for use.
(a) Milestone billing arrangements are limited to fixed-price type contracts in excess of $10 million with long lead times (at least 12 months) between the initial incurrence of costs under the contract and the delivery of the first end item.
(b) The contract shall not provide for progress payments based on cost or advance payments, with the exception of expendable launch vehicle (ELV) services contracts (see 1832.7003(d)).
(c) The established milestone events will be readily determinable.
(d) Milestone billing amounts shall not exceed the Government's best estimate of the cost to perform each milestone event. For ELV services contracts, 42 U.S.C. 2459c provides authority to make advance payments in conjunction with milestone billing arrangements. Advance payments provided under such arrangements must be reasonably related to launch vehicle and related equipment, fabrication, and acquisition costs. However, 42 U.S.C. 2459c provides considerable flexibility in determining what types of costs (committed, incurred, expended) may be considered in determining payment schedules for ELV services contracts. Individual milestone payments may exceed a contractor's incurred costs during performance only if the payment schedules comply with the intent of 42 U.S.C. 2459c, are considered fair and reasonable, and serve the Government's best interests.
(e) The contract milestones should represent the completion of substantial items of service or events that would normally require management visibility and attention to assure their timely accomplishment. Milestones should not be based on insignificant events, administrative functions, percentage of completion estimates, or the passage of time. The number of milestone events will be kept to a minimum.
1832.7004 Contractual implementation.
Contracts containing milestone billing arrangements will include the following requirements:
(a) Normally, milestone billings will not be submitted after deliveries of a major end item commences upon which milestone payments have been made. In the event the period between delivery of such major end item and the next end item delivery exceeds three months, milestone payments can continue to be made for the next end item as mutually agreed for appropriate events.
(b) Completion of each milestone must be certified by the contractor and verified by the contract administration office in order for payment to be made.
(c) The processing of milestone billing vouchers shall not be delegated outside NASA without specific instructions from the contracting officer, and the periodic review of payments by the contracting officer, e.g., reviews of action taken on issues that have arisen.
(d) The relationship between milestone billing events and deliverable contract line items will be clearly established in the contract. A milestone billing event should normally be associated with only one contract line item. However, a contract line item may have more than one related milestone billing event. Upon delivery and acceptance of a contract line item on which milestone payment(s) has/have been made, the amount of the related milestone payment(s) will be deducted from the amount otherwise payable for the contract line item.
(e) Milestone billing amounts will not be subject to the "Adjusting Billing Prices" paragraph of the "Incentive Price Revision-Firm Target clause (FAR 52.216-16(f)) in fixed-price incentive contracts, and will not be adjusted for actual costs incurred above or below the contract target cost. Adjustments to milestone billing amounts shall not be made unless specifically provided for in the economic price adjustment (EPA) clause of the contract. Furthermore, any adjustment to milestone amounts arising from an EPA clause shall be made at the same time as the contract price adjustment.
(f) Milestone payments are interim payments with respect to total performance, and, as such, are fully recoverable in the case of default, in the same manner as progress payments.
1832.7005 Concurrence prior to solicitation.
Prior to the issuance of a solicitation in which a milestone billing arrangement is made available, concurrence shall be requested in writing from Code HC. The request shall provide the reasons why a milestone billing arrangement is appropriate and include a copy of the milestone billing arrangement clause if it differs from the clause at 1852.232-83, Milestone Billing Arrangements.
1832.7006 Approval prior to contract award.
Subsequent to solicitation, but prior to contract award, a request for approval of the milestone billing arrangement shall be submitted to the Associate Administrator for Procurement (Code HC). The request for approval should include the following information:
(a) The name and phone number of the contracting officer.
(b) A copy of the contractor's support for a milestone billing arrangement, including the rationale and statement of need for milestone billings.
(c) A copy of the proposed milestone billing clause.
(d) Description of the milestone billing events, with a schedule of milestone completion dates and milestone values, and the method of verifying completion.
(e) Description of the contract end items with their delivery schedule and prices.
(f) Proposed milestones and contract end items, with appropriate narrative showing how the milestone amounts were estimated and distributed to the contract end items for interim milestone payment and end item final payment purposes.
(g) Financial analysis (numeric and graphic) showing cash flow and contractor investment in the contractor work-in-process inventory, with and without milestone billings.
(h) Any other information considered relevant.
1832.7007 Subcontracts and contract amendments.
Subcontracts and amendments to prime contracts that incorporate milestone billing arrangements are also subject to the criteria, contractual implementation, concurrence and approval policies in this Subpart. Requests for concurrence and approval shall be submitted to the prime contractor through the next higher tier subcontractor, if applicable, to the contracting officer.
1832.7008 Solicitation and contract clause.
(a) The contracting officer shall insert a clause substantially the same as the clause at 1852.232-83, Milestone Billing Arrangements, in solicitations and contracts when a fixed-price type contract will be awarded and a milestone billing arrangement is contemplated.
(b) The contracting officer shall include a clause substantially the same as the clause at 1852.232-84, Milestone Billing Arrangements--Subcontracts, in all solicitations and contracts when a fixed-price subcontract in excess of $10 million with a milestone billing arrangement is contemplated.