NFS part 1837

PART 1837

SERVICE CONTRACTING

Subpart 1837.1

Service Contracts--General

1837.101 Definitions.

Pension portability" means the recognition and continuation in a successor service contract of the predecessor service contract employees' pension rights and benefits.

1837.102 Policy.

(a) To the maximum extent practicable, it is the policy of NASA to acquire services on the basis of the task to be performed rather than on a labor-hour basis.

(b) The use of uncompensated overtime (as defined in the provision at 48 CFR 1852.237-72, Identification of Uncompensated Overtime) is neither encouraged nor discouraged. When the proposed uncompensated overtime is consistent with an offeror's written policies and practices, NASA will consider it in proposal evaluation, including the evaluation of cost and of professional compensation (see 48 CFR (FAR) 22.11). The provision at 48 CFR 1852.237-72 requires offerors to identify uncompensated overtime hours and the effective hourly rate for all Fair Labor Standards Act-exempt personnel included in their proposals and subcontractor proposals. This includes uncompensated overtime hours that are in indirect cost pools for personnel whose regular hours are normally charged direct (see 48 CFR 1815.608-72).

1837.104 Personal services contracts.

(a) Under Section 203(c)(9) of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2473(c)(9)), NASA is authorized "to obtain services as authorized by Section 3109 of Title 5, United States Code, but at rates for individuals not to exceed the per diem rate equivalent to the rate for GS-18." 5 U.S.C. 3109, in turn, provides authority to procure by contract "the temporary (not in excess of one year) or intermittent services of experts or consultants or organizations thereof, including stenographic reporting services."

(b) It is NASA policy to obtain the personal services of experts and consultants by appointment rather than by contract. The policies, responsibilities, and procedures pertaining to the appointment of experts and consultants are in the NASA Supplement to the Federal Personnel Manual.

1837.105 Competition in service contracting.

(a) See 1837.104 of this subpart regarding negotiation for personal and professional services.

(b) Frequently NASA must contract for services that require immediate performance after minimum prior notice to proceed. Typical of these requirements are contracts for engineering services; maintenance, repair, or overhaul of specialized equipment; and printing or reproduction and data processing services to be furnished on a "call basis" when time is of the essence to meet priority requirements.

(c) The NASA policy of obtaining competition to the maximum practicable extent applies to these types of services. Geographic limitations imposed on prospective contractors are likely to appear arbitrary to the business community and therefore are proper only when demonstrably justifiable. Even when a geographic limitation is justifiable, no firm desiring to compete for the procurement may be denied the opportunity to do so merely because it is located outside the geographic area. Such firms shall be permitted to submit offers, provided they can substantiate their capability to establish a facility in a location that complies with any required geographical limitation.

(d) A preferred method of obtaining services or supplies required on a prompt response basis is by clearly describing in the solicitation the maximum time that may elapse between placement of the order or call and the delivery date. Such time limitations, when required by the nature of the procurement, will normally meet NASA's needs for prompt delivery without introducing unnecessarily restrictive criteria limiting the competitive field of prospective contractors.

(e) The procurement officer or a designee shall review and approve, prior to distribution, solicitations that contemplate either a geographical-area or time-of-performance limitation.

1837.110 Solicitation provisions and contract clauses.

(a) The contracting officer shall use the clause at 1852.237-71, Pension Portability, in a solicitation, contract or negotiated contract modification for additional work when the procurement officer determines, in accordance with the requirements of 1837.170, that pension portability is in the Government's best interest.

(b) The following provision applies to procurements under which professional and technical services are acquired on the basis of the number of hours to be provided, rather than on the task to be performed.

(1) If the resulting contract is expected to exceed $500,000, the contracting officer shall insert in the solicitation the provision at 48 CFR 1852.237-72, Identification of Uncompensated Overtime.

(2) If the resulting contract is expected to exceed $100,000 but not exceed $500,000, the contracting officer may insert in the solicitation the provision at 48 CFR 1852.237-72, Identification of Uncompensated Overtime.

1837.110-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.237-70, Emergency Evacuation Procedures, in solicitations and contracts for on-site support services where emergency evacuations of the NASA installation may occur, e.g., snow, hurricanes, tornados, earthquakes, or other emergencies.

1837.170 Pension portability.

(a) It is NASA's policy not to require pension portability in service contracts. However, pension portability requirements may be included in a solicitation, contract, or contract modification for additional work under the following conditions:

(1)(i) There is a continuing need for the same or similar services for a minimum of five years (inclusive of options) and, if and when the contractor changes, a high percentage of the predecessor contractor's employees are expected to remain with the program; or

(ii) Where the employees under a predecessor contract were covered by a portable pension plan, a follow-on contract or a contract consolidating existing services shall include pension portability as long as the total contract period covered by the plan, past and future, covers five years.

(2) Only defined contribution plans, or multiparty defined benefit plans operated under a collective bargaining agreement where the plan follows the employee instead of the employer, shall be permitted in the portability provisions;

(3) Vesting shall be 100 percent at the earlier of one year of continuous employee service or contract termination;

(4) There is a clear description of the plan, including coverage regarding service, pay, liabilities, vesting, termination, and benefits from prior contracts, as appropriate; and

(5) The procurement officer has made a written determination that such a provision is in the Government's best interest, including the facts supporting that determination.

(b) The procurement officer shall maintain a record of all written determinations that the use of pension portability is in the Government's best interest.

Subpart 1837.2--Advisory and Assistance

Services

1837.200 Scope of subpart.

This subpart implements and supplements (FAR) 48 CFR Subpart 37.2 and NMI 5104.5, Guidelines for the Use and Approval of Advisory and Assistance Services Obtained by Contract, and establishes procedures to be followed in contracting for advisory and assistance services.

1837.202 Policy.

1837.202-70 NASA policy.

In addition to the prohibitions regarding advisory and assistance services listed at FAR 37.202(c)--

(a) Contracts for advisory and assistance services shall not be continued longer than 5 years;

(b) Advisory and assistance services of individual experts and consultants shall normally be obtained by appointment rather than by contract (see NMI 3304.1, Employment of Experts and Consultants);

(c) Task orders for advisory and assistance services issued under the prime contract between the California Institute of Technology and NASA for the operation of the JPL facility must be reviewed and approved in accordance with this Subpart 1837.2; and

(d) Persons or organizations providing advisory and assistance services to NASA must be free from conflict of interest as delineated in FAR Subpart 9.5, Organizational Conflicts of Interest, and NFS Subpart 1809.5. When considering advisory and assistance service arrangements with former Government employees, compliance with NFS 183.7001 and 18 U.S.C. 207 is required.

1837.202-71 Public inspection.

(a) NASA's annual Appropriations Act states: "Except as otherwise provided under existing law or under an existing Executive Order issued pursuant to an existing law, the obligation or expenditure of any appropriation under this Act for contracts for any consulting service shall be limited to contracts which are (1) a matter of public record and available for public inspection, and (2) thereafter included in a publicly available list of all contracts entered into within 24 months prior to the date on which the list is made available to the public and of all contracts on which performance has not been completed by such date. The list required by the preceding sentence shall be updated quarterly and shall include a narrative description of the work to be performed under each such contract."

(b) In accordance with paragraph (a) of this section, on a quarterly basis the Office of Procurement (Code HC) prepares a list for public inspection and distributes it to NASA Information Centers pursuant to NMI 1382.2 (14 CFR 1206), Availability of Agency Records to Members of the Public.

(c) Public inspection of advisory and assistance service contracts and purchase orders at NASA field installations in accordance with the Appropriations Act shall be limited to basic contract documents and modifications. Requests for copies of contracts or other data will be handled in accordance with NMI 1382.2.

1837.205 Responsibilities/Management controls.

The contracting officer shall include in each contract or purchase order file a copy of (1) the contracting officer's determination that a contractual action constitutes advisory and assistance services; (2) the sponsoring office's Request for Approval to Acquire Advisory and Assistance Services by Contract; and (3) authorization by the Associate Administrator for Management Systems and Facilities to commence procurement activities as required by NMI 5104.5, subparagraph 7--Responsibilities/Management Controls.

1837.205-70 Requests for approval.

(a) When a NASA field installation or headquarters office considers advisory and assistance services necessary and desirable, in accordance with the policy in FAR 37.202 and 1837.202-70, the requiring activity is responsible for preparing the documentation required by NMI 5104.5 and securing the prior approval of the Associate Administrator for Management Systems and Facilities (Code J).

(b) Before processing any procurement action for advisory and assistance services, the contracting officer shall provide advice, as necessary, to the requiring activity on preparing the documentation required by NMI 5104.5 and ensure that this required documentation, including the necessary concurrences/ approvals, is included in the official contract or purchase order file. For any proposed requirement, regardless of dollar value, where there is uncertainty as to whether the requirement is for advisory and assistance services, the contracting officer shall make a determination. For those requirements determined to be for advisory and assistance services which have not been approved by the Associate Administrator for Management Systems and Facilities (Code J), the contracting officer shall return the procurement request to the originating office for action in accordance with NMI 5104.5. In all such cases, the contracting officer's determination is final.

1837.205-71 Negotiation of contracts.

(a) Contracting Officers shall include in all solicitations for advisory and assistance services a requirement that each offeror furnish the following information with the proposal, regardless of the pricing arrangements anticipated:

(1) The names and qualifications of principal members of the contractor organization who will be responsible for the project.

(2) The title of each official and the number of employees who will participate.

(3) The estimated number of hours that each official and employee will contribute to the proposed project.

(4) The standard billing rate per hour for each official and employee.

(b) In addition, the solicitation and the resulting contract shall require that --

(1) The contractor warrants that the rates quoted are not in excess of those charged nongovernmental clients for the same services performed by the same individuals;

(2) The Government has the right to the working papers used by the participating officials and employees of the firm or organization in connection with the project;

(3) Publication or distribution of the study, data, or related material is prohibited, except to the extent authorized by the contracting officer; and

(4) The contractor agrees that any reports regarding organizational matters (as required by the contract) shall include, when feasible and in addition to the recommendations, alternative methods to be considered and the pros and cons of each alternative.

Subpart 1837.70--Procurement of

Training

1837.7000 Scope of part.

This part contains NASA-unique regulations, which have no clearly identifiable FAR counterpart, on the procurement of training.

1837.7001 General

1837.7001-1 Purpose.

This subpart provides policy guidance on the appropriate balance between the use of CICA and the Training Act for the procurement of NASA's training requirements.

1837.7001-2 Training Act of 1958.

The Training Act of 1958 (5 U.S.C. 4101 et seq.) may be used for training of NASA employees by, in, or through non-Government off-the-shelf training courses which are available to the public. These include established university catalog courses or commercial course offerings that are offered to the general public at catalog or market prices.

1837.7001-3 Competition in Contracting Act (CICA) of 1984.

The procurement of a new training course that must be developed to fulfill a specific NASA need should be conducted in accordance with CICA under the applicable provisions of the Federal Acquisition Regulation (FAR) and the NASA FAR Supplement (NFS).

1837.7001-4 Procedures.

(a) Installation training and procurement offices are encouraged to collaborate in selecting the type of instrument (see FAR and NFS Parts 13 and 16) which is most efficient in effective procurement of training.

(b) Installations should develop internal procedures in consonance with the guidance contained herein.