[Federal Register: April 25, 2000 (Volume 65, Number 80)]
[Proposed Rules]               
[Page 24170-24171]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap00-33]                         

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1828 and 1852

 
Insurance--Partial or Total Immunity from Tort Liability for 
State Agencies and Charitable Institutions

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: This is a proposed rule amending the NASA FAR Supplement (NFS) 
to allow State agencies and charitable institutions partial or total 
immunity from tort liability on NASA contracts.

DATES: Comments should be submitted on or before June 26, 2000.

ADDRESSES: Interested parties should submit written comments to Richard 
Kall, NASA Headquarters, Office of Procurement, Contract Management 
Division (Code HK), Washington, DC 20546. Comments may also be 
submitted by e-mail to r.kall@hq.nasa.gov.

FOR FURTHER INFORMATION CONTACT: Richard Kall, NASA, Office of 
Procurement, Contract Management Division (Code HK), (202) 358-0459.

SUPPLEMENTARY INFORMATION:

A. Background

    The 1990 edition of the Federal Acquisition Regulation (FAR) 
provided in Subpart 28.311-2, Contract clause, the use of Alternates I 
and II to clause 52.228-7, Insurance--Liability to Third Persons, to 
allow State agencies and charitable institutions partial or total 
immunity from tort liability. The appropriate alternate could be used 
when provision 52.228-6, Insurance--Immunity From Tort Liability, was 
included in the solicitation. However, the 1997 edition of the FAR 
deleted all references in 28.311-2 relating to tort liability, and also 
deleted the provision and clause alternates. NASA now finds that the 
Agency has a need for these clauses and provision.

B. Regulatory Flexibility Act

    NASA certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small business entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it 
does not impose any new requirements.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the NFS do not impose any record keeping or information 
collection requirements, or collections of information from offerors, 
contractors, or members of the public that require the approval of the 
Office of Management and Budget under 44 U.S.C. 3501, et seq.

[[Page 24171]]

List of Subjects in 48 CFR Parts 1828 and 1852

    Government procurement.

Tom Luedtke,
Associate Administrator for Procurement.
    Accordingly, 48 CFR Parts 1828 and 1852 are proposed to be amended 
as follows:
    1. The authority citation for 48 CFR Parts 1828 and 1852 continues 
to read as follows:

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

PART 1828--BONDS AND INSURANCE

    2. Revise sections 1828.311-1 and 1828.311-2, and add section 
1828.311-270 to read as follows:


1828.311-1  Contract clause.

    The contracting officer must insert the clause at FAR 52.228-7, 
Insurance--Liability to Third Persons, as prescribed in FAR 28.311-1, 
unless--
    (a) Waived by the procurement officer; or
    (b) The successful offeror represents in its offer that it is 
totally immune from tort liability as a State agency or as a charitable 
institution.


1828.311-2  Agency solicitation provisions and contract clauses.


1828.311-270  NASA solicitation provisions and contract clauses.

    (a) The contracting officer must 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.
    (b) The contracting officer must insert the provision at 1852.228-
80, Insurance--Immunity from Tort Liability, in solicitations for 
research and development when a cost-reimbursement contract is 
contemplated.
    (c) The contracting officer must insert FAR clause 52.228-7 and the 
associated clause at 1852.228-81, Insurance--Partial Immunity From Tort 
Liability, when the successful offeror represents in its offer that the 
offeror is partially immune from tort liability as a State agency or as 
a charitable institution.
    (d) The contracting officer must insert the clause at 1852.228-82, 
Insurance--Total Immunity From Tort Liability, when the successful 
offeror represents in its offer that the offeror is totally immune from 
tort liability as a State agency or as a charitable institution.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Amend Part 1852 by adding sections 1852.228-80, 1852.228-81, and 
1852.228-82 to read as follows:


1852.228-80  Insurance--Immunity From Tort Liability.

    As prescribed in 1828.311-270(b), insert the following provision:

INSURANCE--IMMUNITY FROM TORT LIABILITY

(XXX)

    If the offeror is partially or totally immune from tort 
liability to third persons as a State agency or as a charitable 
institution, the offeror will include in its offer a representation 
to that effect. When the successful offeror represented in its offer 
that it is immune from tort liability, the following clause(s) will 
be included in the resulting contract:
    (a) When the offeror represents that it is partially immune from 
tort liability to third persons as a State agency or as a charitable 
institution, the clause at FAR 52.228-7, Insurance--Liability To 
Third Persons, and the associated clause 1852.22881, Insurance--
Partial Immunity From Tort Liability, will be included in the 
contract.
    (b) When the offeror represents that it is totally immune from 
tort liability to third persons as a State agency or as a charitable 
institution. The clause at 1852.228-82 Insurance--Total Immunity 
From Tort Liability, will be included in the contract.

(End of provision)


1852.228-81  Insurance--Partial Immunity From Tort Liability.

    As prescribed in 1828.311-270(c), insert the following clause:

INSURANCE--PARTIAL IMMUNITY FROM TORT LIABILITY

(XXX)

    (a) Except as provided for in paragraph (b) of this clause, the 
Government does not assume any liability to third persons, nor will 
the Government reimburse the Contractor for its liability to third 
persons, with respect to loss due to death, bodily injury, or damage 
to property resulting in any way from the performance of this 
contract.
    (b) The Contractor need not provide or maintain insurance 
coverage as required by paragraph (a) of FAR clause 52.228-7, 
Insurance--Liability To Third Persons, provided that the Contractor 
may obtain any insurance coverage deemed necessary, subject to 
approval by the Contracting Officer as to form, amount, and 
duration. The Contractor shall be reimbursed for the cost of such 
insurance and, to the extent provided in paragraph (c) of FAR clause 
52.228-7, for liabilities to third person for which the Contractor 
has obtained insurance coverage as provided in this paragraph (b), 
but for which such coverage is insufficient in amount.

(End of clause)


1852.228-82  Insurance--Total Immunity From Tort Liability

    As prescribed in 1828.311-270(d), insert the following clause:

INSURANCE--TOTAL IMMUNITY FROM TORT LIABILITY

(XXX)

    (a) The Government does not assume any liability to third 
persons, nor will the Government reimburse the Contractor for its 
liability to third persons, with respect to loss due to death, 
bodily injury, or damage to property resulting in any way from the 
performance of this contract or any subcontract under this contract.
    (b) If any suit or action is filed, or if any claim is made 
against the Contractor, the cost and expense of which may be 
reimbursable to the Contractor under this contract, the Contractor 
will immediately notify the Contracting Officer and promptly furnish 
copies of all pertinent papers received by the Contractor. The 
Contractor will, if required by the Government, authorize Government 
representatives to settle or defend the claim and to represent the 
Contractor in or take charge of any litigation. The Contractor may, 
at its own expense, be associated with the Government 
representatives in any such claim or litigation.

(End of clause)

[FR Doc. 00-10281 Filed 4-24-00; 8:45 am]
BILLING CODE 7510-01-P