FEDERAL CONTRACTS PERSPECTIVE
Federal Acquisition Developments, Guidance, and Opinions
Vol. XVI, No. 11
OMB Establishes Standard Configurations for Laptop and Desktop Computers
DOD Maintains Slow and Steady Pace for DFARS Revisions
Three FAR Rules Proposed
OMB Proposes A-130 Revisions, Seeks Comments
NASA Amends Drug, Alcohol-Free Workplace Clause
OMB Establishes Standard Configurations
for Laptop and Desktop Computers
Chagrined that “in FY [Fiscal Year] 2014, agencies awarded more than 10,000 contracts and delivery orders for common laptops and desktops totaling about $1.1 billion, [which resulted] in reduced buying power, inefficient duplication of contracts, and very little transparency into prices paid,” the Office of Management and Budget (OMB) has mandated that federal agencies acquire one of five standard configurations (memory, processor speed, etc.) of basic laptop and desktop computers through one of three government-wide acquisition contracts (GWACs). “Standardizing laptop and desktop configurations means the government spends less time and money buying, managing, and maintaining a diverse hardware portfolio. Standardizing common requirements also ensures that we are moving the government from ‘nice to have’ to ‘need to have’ to drive down costs, we are improving our interoperability and security profile, and we can more easily compare pricing information.”
The memorandum promulgating these requirements was issued by Anne Rung, the Office of Federal Procurement Policy (OFPP) administrator, and Tony Scott, U.S. Chief Information Officer, both members of OMB. A study of laptop and desktop contracts conducted by an interagency Workstation Category Team (WCT) found that “laptop prices can range from about $450 to $1,300 for the same configuration, which is a price variance of almost 300%. But agencies lack visibility into prices paid and therefore can't use that information to negotiate the lowest price. In addition, agencies often ask vendors to provide them with hundreds of different configuration options, which further drives up costs...Even though agencies buy several hundred different types of laptops and desktops, nearly 80% of today’s basic laptop and desktop needs could be met through five standard configurations. This analysis further showed that agencies were paying a wide variety of prices for these standard offerings and using different terms and conditions...”
Based on these findings, OMB has concluded that agencies must take steps immediately to “(1) standardize laptop and desktop configurations for common requirements; (2) reduce the number of contracts for laptops and desktops by consolidating purchasing and using a fewer number of high-performing – or best-in-class – contracts; and (3) develop and modify demand management processes to optimize price and performance.”
The WCT has identified two laptop configurations (one standard and one upgrade) and three desktop configurations (one standard and two upgrades) that meet that “80% of today’s basic laptop and desktop needs.” These configurations will be posted on the “Acquisition Gateway” (https://hallways.cap.gsa.gov/) under the “IT [information technology] Hardware Hallway.”
“Therefore, effective immediately...all agencies are prohibited from issuing new solicitations for laptops and desktops, and civilian agencies shall leverage the following existing vehicles, which were determined...to offer the best value for the bulk of the government's laptop and desktop needs: (1) NASA Solutions for Enterprise-Wide Procurement (SEWP) [http://www.sewp.nasa.gov/contract_info.shtml]; (2) General Services Administration (GSA) IT Schedule 70 [Special Item Number 132-8 (Purchase of Hardware) and 132-12 (Maintenance and Repair Parts/Service for Hardware)]; and (3) National Institutes of Health (NIH) Information Technology Acquisition and Assessment Center (NITAAC) Chief Information Officer-Commodities and Solutions (CIO-CS) [https://nitaac.nih.gov/nitaac/contracts/cio-cs].”
There are exceptions: (1) “agencies may continue the use of mandatory agency-wide vehicles through the end of the current base or option period”; and (2) “DOD will continue to execute its Enterprise Service Initiative [http://www.esi.mil/], which mandates the use of limited and targeted DOD solutions, and will provide additional guidance to its components of approved vehicles and supporting policies.” DOD is to post this additional guidance to the “Acquisition Gateway” by February 17, 2016 (“within 120 days of the issuance of this policy”).
“Improving our IT commodity acquisition and management practices is a critical step in the implementation of the Federal Information Technology Acquisition Reform Act [FITARA] and in improving value to the taxpayers. The actions described above will reduce duplication, improve pricing, and better leverage the government’s vast buying power.” (EDITOR’S NOTE: For more on FITARA, see the May 2015 Federal Contracts Perspective article “OMB Seeks Comments on FITARA Implementation.”)
DOD Maintains Slow and Steady Pace for DFARS Revisions
The Department of Defense (DOD) continued its unhurried revision of the Defense Federal Acquisition Regulation Supplement (DFARS) during October, issuing only two final rules, finalizing one interim rule, and three class deviations.
- Requirements Relating to Supply Chain Risk: This finalizes, with changes, the interim rule that added DFARS subpart 239.73, Requirements for Information Relating to Supply Chain Risk, and a related solicitation provision and contract clause, to implement Section 806 of the National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383), Requirements for Information Relating to Supply Chain Risk, which authorizes the DOD to establish a pilot program to consider the impact of supply chain risk in specified types of procurements related to national security systems. This authority expires September 30, 2018.
Section 806 defines supply chain risk as “the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of such system.”
The primary purpose of DFARS subpart 239.73 is to authorize the secretaries of Defense, Army, Navy, and Air Force to exclude certain sources when conducting procurements of national security systems (that is, one that involves intelligence activities; involves cryptologic activities related to national security; involves command and control of military forces; involves equipment that is an integral part of a weapon or weapons system; or is critical to the direct fulfillment of military or intelligence missions) or an item of information technology that is to be included in a national security system.
DFARS 239.7305, Exclusion and Limitation on Disclosure, permits these individuals to “(a) exclude a source that fails to meet qualification standards established...for the purpose of reducing supply chain risk in the acquisition of covered systems; (b) exclude a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order; [and] (c) withhold consent for a contractor to subcontract with a particular source or direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract...”
To implement these authorities, DFARS 252.239-7017, Notice of Supply Chain Risk, must be included in all solicitations, including solicitations for the acquisition of commercial items, that involve the development or delivery of any information technology whether acquired as a service or as a supply; and DFARS 252.239-7018, Supply Chain Risk, must be included in all solicitations and contracts, including solicitations and contracts for the acquisition of commercial items, that involve the development or delivery of any information technology whether acquired as a service or as a supply.
Eight respondents submitted comments on the interim rule, and the following are the significant changes made to the final rule in response to those comments:
- The section 806 definition of “supply chain risk” is added to DFARS 239.7301, Definitions.
- DFARS 239.7305 is amended to clarify that the exclusions and limitations on disclosure apply when “procuring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system” (the interim rule stated that the exclusions and limitations on disclosure apply “in the course of conducting a covered procurement”).
- DFARS 239.7306, Solicitation Provision and Contract Clause, which had required that DFARS 252.239-7017 and DFARS 252.239-7018 be included in “all solicitations and contracts, including solicitations and contracts using FAR part 12 [Acquisition of Commercial Items] procedures for the acquisition of commercial items, that involve the development or delivery of any information technology whether acquired as a service or as a supply,” is revised to require their inclusion in “in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for information technology, whether acquired as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined at [DFARS] 239.7301.”
- Because supply chain risk is to be considered in all solicitations for information technology that is a covered system, including commercial items and acquisitions under the simplified acquisition threshold, the following guidance on the use of an evaluation factor is added to DFARS 212.301, Solicitation Provisions and Contract Clauses for Acquisition of Commercial Items; DFARS 213.106-1, Soliciting Competition [under the simplified acquisition threshold]; DFARS 214.201-5, Part IV – Representations and Instructions; DFARS 214.503-1, Step One [under two-step sealed bidding]; and DFARS 215.304, Evaluation Factors and Significant Subfactors: “Include an evaluation factor regarding supply chain risk (see [DFARS] subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in [DFARS] 239.7301.”
- DFARS 252.239-7018(e), which required the contractor to “include the substance of this clause, including this paragraph (e), in all subcontracts involving the development or delivery of any information technology, whether acquired as a service or as a supply,” is removed because it would give the government the right to direct a supplier at any tier to be excluded from a contract. “This could lead to even greater disruption of a program's supply chain since the loss of a supplier at a remote tier can have ripple effects on all higher-tier contractors and that the potential costs for the delay, disruption, and potential workarounds required to address the situation could be enormous.”
For more on the interim rule, see the December 2013 Federal Contracts Perspective article “DFARS Amended to Address Supply Chain Risk.”
- New Designated Countries – Montenegro and New Zealand: This final rule adds Montenegro and New Zealand as new designated countries under the World Trade Organization Government Procurement Agreement (WTO GPA). Montenegro became a party to the WTO GPA on July 15, 2015, and New Zealand became a party to the WTO GPA on August 12, 2015.
FAR 25.003, Definitions [applicable to FAR part 25, Foreign Acquisition], defines “WTO GPA countries” as parties to the WTO GPA, and defines “designated country” as either a WTO GPA country, a Free Trade Agreement country, a least developed country, or a Caribbean Basin country. Since Montenegro and New Zealand are now WTO GPA countries and, therefore, designated countries, this rule adds Montenegro and New Zealand to the list of WTO GPA countries within the definition of “designated country” in DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements (Basic and Alternate II), and DFARS 252.225-7045, Balance of Payments Program – Construction Material Under Trade Agreements (Basic and Alternates I, II, and III).
- Removal of Cuba From the List of State Sponsors of Terrorism: This final rule removes Cuba from the definition of “state sponsor of terrorism” in DFARS 252.225-7049, Prohibition on Acquisition of Commercial Satellite Services from Certain Foreign Entities – Representations, and DFARS 252.225-7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism.
This rule implements the Department of State Public Notice 9162, Rescission of Determination Regarding Cuba, which announced the removal of Cuba from the U.S. list of state sponsors of terrorism, effective May 29, 2015. This action was based upon the Presidential Report of April 14, 2015, to Congress, indicating the Obama administration’s intent to rescind the designation of Cuba as a state sponsor of terrorism, including the certification that Cuba has not provided any support for international terrorism during the previous six months, and that Cuba has provided assurance that it will not support acts of international terrorism in the future.
- Class Deviation on Safeguarding Covered Defense Information and Cyber Incident Reporting: This class deviation requires the use of DFARS 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls (DEVIATION 2016-O0001) (OCT 2015), and DFARS 252.204-7012, Safeguarding Covered Defense Information Controls (DEVIATION 2016-O0001) (OCT 2015), instead of DFARS 252.204-7008 and DFARS 252.205-7012.
The deviation allows offerors up to nine months after contract award to comply with “derived security requirement 3.5.3, ‘Use of multifactor authentication for local and network access to privileged accounts and for network access to non-privileged accounts,’ within National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, ‘Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations’ (see http://dx.doi.org/10.6028/NIST.SP.800-171),” provided the offeror notifies the contracting officer that it anticipates additional time will be needed to implement security requirement 3.5.3.
- Class Deviation Prohibiting FY16 Funds to Contract with Corporations with Unpaid Delinquent Taxes or a Felony Conviction: This class deviation prohibits the use of any Fiscal Year (FY) 2016 funds appropriated to the DOD by the Continuing Appropriations Act, 2016 (Public Law 114-53) in any contracts with corporations that have an unpaid delinquent tax liability or a felony criminal conviction under any federal law within the preceding 24 months.
The class deviation provides a provision, DFARS 252.209-7991, Representation by Corporations Regarding an Unpaid Delinquent Tax Liability or a Felony Conviction Under Any Federal Law – Fiscal Year 2016 Appropriations (DEVIATION 2016-O0002) (OCT 2015), and requires the contracting officer to include it in all solicitations that will use funds made available by Public Law 114-53, including solicitations for the acquisition of commercial items under FAR part 12, Acquisitions of Commercial Items. DFARS 252.209-7991 requires each contractor to represent whether it is a corporation that: (1) “has any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability”; or (2) “was convicted of a felony criminal violation under a federal law within the preceding 24 months.”
If the contractor answers “it is” such a corporation, the contracting officer shall not award a contract to the contractor “unless the agency debarring and suspending official has considered suspension or debarment of the corporation and has made a written determination that this further action is not necessary to protect the interests of the government.”
EDITOR’S NOTE: This is a continuation of a class deviation that applied to FY 2015 funds – see the January 2015 Federal Contracts Perspective article “DOD Conducts Regulation-Dump.”
- Class Deviation Prohibiting Contracts with Entities that Require Certain Internal Confidentiality Agreements: This class deviation extends to FY 2016 funds appropriated by the Continuing Appropriations Act, 2016 (Public Law 114-53) the same prohibitions as contained in Section 743 of the Department of Defense Appropriations Act, Fiscal Year 2015 (Public Law 113-235), which prohibits the use of funds “for a contract with an entity that requires employees or contractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contractors from lawfully reporting such fraud, waste, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.”
The class deviation requires that provision DFARS 252.203-7996, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements – Representation (DEVIATION 2016-O0003) (OCT 2015), be included in all solicitations that use funds made available by Public Law 114-53, including solicitations for commercial items acquired under FAR part 12, Acquisition of Commercial Items. It includes the following representation: “By submission of its offer, the offeror represents that it does not require employees or subcontractors of such entity seeking to report fraud, waste, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contactors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.”
In addition, the class deviation requires that clause DFARS 252.203-7997, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements (DEVIATION 2016-O0003) (OCT 2015), be included in all solicitations and contracts that use funds made available by Public Law 114-53. It includes the prohibition in DFARS 252.203-7996; states that “the contractor shall notify employees that the prohibitions and restrictions of any internal confidentiality agreements covered by this clause are no longer in effect”; and states that “the government may seek any available remedies in the event the contractor fails to perform in accordance with the terms and conditions of the contract as a result of government action under this clause.”
EDITOR’S NOTE: This is a continuation of class deviation that applied to FY 2015 funds – see the March 2015 Federal Contracts Perspective article “DOD Issues Multitude of Guidance (and Some Regulations).”
Three FAR Rules Proposed
Three rules that would make minor amendments to the Federal Acquisition Regulation (FAR) were proposed in October: one would correct an omission, another would implement a statutory requirement, and the last would clarify several forms.
- Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations: This proposed rule would amend the definition of “simplified acquisition threshold” (SAT) in FAR 2.101, Definitions, to correct the inadvertent omission of the higher SAT for overseas acquisitions in support of humanitarian or peacekeeping operations.
Prior to 2004, the SAT definition had a separate threshold for overseas humanitarian or peacekeeping missions. However, Federal Acquisition Circular (FAC) 2001-20 consisted of an interim rule that amended the SAT definition in FAR 2.101 to implement the special emergency procurement authorities of Section 1443 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136) (see the March 2004 Federal Contracts Perspective article “FAC 2001-20 Implements Emergency Purchasing Authority”). In doing so, the SAT threshold for overseas acquisitions in support of humanitarian or peacekeeping operations was inadvertently removed. Therefore, this proposed rule would add the following to FAR 2.101: “[For] acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a humanitarian or peacekeeping operation (41 U.S.C. 153 and 10 U.S.C. 2302), the [SAT] term means $300,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.”
Comments on this proposed rule must be submitted no later than December 7, 2015, identified as “FAR Case 2015-020,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.
- Improvement in Design-Build Construction Process: The proposed rule would amend FAR subpart 36.3, Two-Phase Design-Build Selection Procedures, to implement Section 814 of the National Defense Authorization Act for Fiscal Year 2015 (Public Law 113-291), which requires the head of the contracting activity to approve any determinations to select more than five offerors to submit phase-two proposals for a two-phase design-build construction acquisition that is valued at greater than $4,000,000.
FAR 36.303-1, Phase One, specifies that solicitations covering phase one must contain “(4) A statement of the maximum number of offerors that will be selected to submit phase-two proposals. The maximum number specified shall not exceed five unless the contracting officer determines, for that particular solicitation, that a number greater than five is in the government’s interest and is consistent with the purposes and objectives of two-phase design-build contracting.”
Section 814 adds the requirement that “if the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the federal government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures.”
To implement Section 814, paragraph (a)(4) of FAR 36.303-1 would be amended to add the following to the end of paragraph (a)(4): “The contracting officer shall document this determination in the contract file. For acquisitions greater than $4 million, the determination shall be approved by the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity.”
Comments on this proposed rule must be submitted no later than December 7, 2015, identified as “FAR Case 2015-018,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.
- Revision to Standard Forms for Bonds: This proposed rule would amend the following Standard Forms (SF) prescribed for contracts involving bonds and other financial protections to (1) expand the options for organization types, and (2) clarify liability limitations: SF 24, Bid Bond; SF 25, Performance Bond; SF 25A, Payment Bond; SF 34, Annual Bid Bond; and SF 35, Annual Performance Bond.
Limited liability companies (LLC) are an increasingly prevalent form of business in the construction industry. However, the block for “Type of Organization” on these forms does not provide for LLCs – they provide for “Individual,” “Partnership,” Joint Venture,” and “Corporation.” Some agencies are telling LLCs to leave the “Type of Organization” block blank because there is no good fit; other agencies provide no guidance, leaving the LLC to select the closest fit, and then occasionally challenging the LLC on its selection. Therefore, this proposed rule would add a box labelled “Other: (Specify)” to the “Type of Organization” block on each form to expand the range of business types to include LLCs and other business types as they evolve.
In addition, there have been questions about the appropriate value to report in the “Liability Limit” block on these standard forms, and this has caused processing delays and even rejections of bids. To address this concern, this rule proposes to add the following clarifying instructions to item (4) of the SF 24 and item (3) of SFs 25, 25A, 34, and 35: “The value put into the LIABILITY LIMIT block is the penal sum (i.e., face value) of the bond, unless a co-surety arrangement is proposed.”
Comments on this proposed rule must be submitted no later than December 21, 2015, identified as “FAR Case 2015-025,” by either of the following methods: (1) the Federal eRulemaking Portal: http://www.regulations.gov; or (2) mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW, 2nd Floor, Washington, DC 20405.
OMB Proposes A-130 Revisions, Seeks Comments
The Office of Management and Budget (OMB) is proposing to revise its Circular No. A-130, Managing Information as a Strategic Resource, to incorporate new statutory requirements and enhanced technological capabilities, as well as address current and evolving technical and personnel security threats. This would be the first time since 2000 that Circular No. A-130 has been revised – back in the heyday of dial-up Internet and CD-ROMs.
Circular No. A-130 establishes general policy for the acquisition and management of information technology personnel, equipment, funds, and other resources. It also includes a discussion of agency responsibilities for managing personally identifiable information, provides guidance to support the use of electronic transactions, and discusses policy on protecting federal information resources as appendices.
The proposed revisions to the Circular No. A-130 are the result of new statutory requirements and enhanced technological capabilities since 2000. “Modernizing this policy will enable OMB to provide timely and relevant guidance to agencies and will ensure that the federal IT ecosystem operates more securely and more efficiently while saving tax dollars and serving the needs of the American people,” according to OMB’s website https://a130.cio.gov/a130/. “The proposed circular reflects a rapidly evolving digital economy, where more than ever, individuals, groups, and organizations rely on information technology to carry out a wide range of missions and business functions. Information technology changes rapidly and the federal workforce managing IT [information technology] must have the flexibility to address known and emerging threats while implementing continuous improvements. This update acknowledges the pace of change and the need to increase capabilities provided by 21st century technology while recognizing the need for strong governance and safeguarding of taxpayer funded assets and information.”
Comments on the draft circular must be submitted by November 20, 2015, in one of three ways:
- "Content suggestions and discussions are welcome via GitHub “issues.” Each issue is a conversation initiated by a member of the public. We encourage you to browse and join in on discussions in existing issues [https://github.com/ombegov/a130/issues], or start a new conversation by opening a new issue [https://github.com/login?return_to=https%3A%2F%2Fgithub.com%2Fombegov%2Fa130%2Fissues%2Fnew].”
- "Direct changes and line edits to the content may be submitted through a "pull request" [https://help.github.com/articles/creating-a-pull-request/] by clicking "Edit this page". You do not need to install any software to suggest a change. You can use GitHub's in-browser editor to edit files and submit a pull request for your changes to be merged into the document. Open pull requests for the proposed guidance can be found here [https://github.com/ombegov/a130/pulls].”
- "Send your content suggestions or proposed revisions to the OMB Office of the Federal Chief Information Officer via email to email@example.com.”
NASA Amends Drug, Alcohol-Free Workplace Clause
The National Aeronautics and Space Administration (NASA) is removing NFS 1852.246-70, Mission Critical Space System Personnel Reliability Program, because NASA discontinued the Mission Critical Space System Personnel Reliability Program effective April 8, 2014. In addition, NASA is revising NFS subpart 1823.5, Drug-Free Workplace, and the associated clause at NFS 1852.223-74, Drug- and Alcohol-Free Workforce, to reflect the discontinuance of the Mission Critical Space System Personnel Reliability Program and to clarify and update the guidance.
NASA conducted an analysis of its regulations and determined that Title 14 of the Code of Federal Regulations (CFR) subpart 1214.5, Mission Critical Space System Personnel Reliability Program, was obsolete and had been superseded by other measures that ensure contractor employees assigned to mission-critical positions meet established screening requirements. Accordingly, NFS policy implementing the program is no longer needed, so NFS 1852.246-70 and its prescription in paragraph (a) of NFS 1846.370, NASA Contract Clauses, are removed.
However, the prescription for NFS 1852.223-74, Drug- and Alcohol-Free Workforce (in NFS 1823.570-2, Contract Clause), required the contracting officer to “insert the clause at 1852.223-74, Drug- and Alcohol-Free Workforce, in all solicitations and contracts containing the clause at 1852.246-70, Mission Critical Space Systems Personnel Reliability Program, and in other solicitations and contracts exceeding $5 million in which work is performed by an employee in a sensitive position.” Therefore, NFS 1823.570-2 is revised to remove the reference to NFS 1852.246-70.
While the NFS drug and alcohol testing requirements are partially tied to the now-defunct Mission Critical Space System Personnel Reliability Program, rescission of the program did not remove the need for such testing. In addition, 14 CFR subpart 1214.5 contained two key terms that will be helpful to contracting officers in determining which contracts should include the drug and alcohol testing requirements: “mission critical space system” and “mission critical positions/duties” (“positions or duties which, if performed in a faulty, negligent, or malicious manner, could jeopardize mission critical space systems and/or delay a mission”). Therefore, these terms are added to NFS 1823.570-1, Definitions [for drug- and alcohol-free workplaces], and NFS 1852.223-74. However, the definition of “mission critical space systems” is revised from “the Space Shuttle and other critical space systems, including Space Station Freedom, designated Expendable Launch Vehicles (ELV’s), designated payloads, Shuttle Carrier Aircraft and other designated resources that provide access to space” to “the collection of all space-based and ground-based systems used to conduct space missions or support activity in space, including, but not limited to, the crewed space system, space-based communication and navigation systems, launch systems, and mission/launch control.” The revised definition deletes obsolete references, such as the “Space Station Freedom” and “Shuttle Carrier Aircraft,” and characterizes the systems which are critical to NASA’s space mission.
In addition, NFS 1823.570-1 included the following: “As used in this subpart employee and controlled substance are as defined in FAR 23.503 [Definitions (for drug-free workplace)]. The use of a controlled substance in accordance with the terms of a valid prescription, or other uses authorized by law shall not be subject to the requirements of 1823.570 to 1823.570-3 and the clause at 1852.223-74.” This is removed from NFS 1823.570-1, and the statement addressing valid prescriptions is moved to NFS 1852.223-74(b)(4)(iii).
The list of drugs in NFS 1852.223-74(b)(4) that the contractor is required to test for is expanded from “marijuana and cocaine” to “marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP).”
Also, a new NFS 1852.223-74(b)(5) is added to require the contractor to “conduct post-accident testing when the contractor determines the employee’s actions are reasonably suspected of having caused or contributed to an accident resulting in death or personal injury requiring immediate hospitalization or damage to government or private property estimated to exceed $20,000. Upon request, the contractor shall provide the results of post-accident testing to the contracting officer.”
Finally, NFS 1852.223-74(b)(2) is revised to add a reference to NASA Procedural Requirements (NPR) 3792.1, NASA’s Plan for a Drug Free Workplace, “as a guide for the criteria and in designating ‘sensitive’ positions for contractor employees.”
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