Barry McVay's FEDERAL CONTRACTS DISPATCH
DATE: June 22, 2000
FROM: Barry McVay, CPCM
SUBJECT: National Aeronautics and Space Administration Federal Acquisition Regulation Supplement (NFS); Miscellaneous Administrative Revisions
SOURCE: Federal Register, June 22, 2000, Vol. 65, No. 121, page 38776
AGENCIES: National Aeronautics and Space Administration (NASA)
ACTION: Final Rule
SYNOPSIS: NASA is amending the NFS to indicate that award fee determinations are not exempt from the Disputes clause; include task and delivery order ombudsman information; state that precontract costs are allowable precontract costs under broad agency announcement (BAA) awards; and make editorial revisions.
EDITOR'S NOTE: For more on Federal Acquisition Circular (FAC) 97-15, see the January 2000 FEDERAL CONTRACTS PERSPECTIVE article "FAC 97-15 Addresses Foreign Acquisition, Contract Bundling, Award Fee Determinations."
For more on FAC 97-17, see the April 25, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-17, Miscellaneous Amendments."
For more on BAAs, see FAR 35.016, Broad Agency Announcement, and NFS 1835.016, Broad Agency Announcement.
EFFECTIVE DATE: June 22, 2000.
FOR FURTHER INFORMATION CONTACT: Celeste Dalton, NASA Headquarters Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546; 202-358-1645; e-mail: firstname.lastname@example.org.
SUPPLEMENTAL INFORMATION: The following changes are made to the NFS by this final rule:
- FAC 97-15 revised the FAR to implement two court decisions that ruled the Contract Disputes Act applies to award fee determinations. FAC 97-15 changed several clauses by deleting language that award fee determinations "are not subject to the Disputes clause" and replacing it with language such as "award fee determinations are unilateral decisions made solely at the discretion of the government." Therefore, in NFS 1852.216-76, Award Fee for Service Contracts, and NFS 1852.216-77, Award Fee for End Item Contracts, the sentence "This determination is not subject to the Disputes clause," is removed from paragraphs (f)(3) and (c)(3), respectively, and "Award fee determinations are unilateral decisions made solely at the discretion of the Government," is added as paragraphs (g) and (d), respectively.
- FAC 97-17 included the FAR implementation of Section 804 of the National Defense Authorization Act for Fiscal Year 2000, Guidance on Use of Task Order and Delivery Order Contracts. Section 804 required that the FAR be revised to "provide guidance to agencies on the appropriate use of task order and delivery order contracts." Among the changes made by FAC 97-17 was to paragraph (a)(4) of FAR 16.504, Indefinite-Quantity Contracts, which was revised to require indefinite-quantity solicitations and contracts to "include the name, address, telephone number, facsimile number, and e-mail address of the agency task and delivery order ombudsman..." In addition, paragraph (b) of FAR 16.505, Ordering, was revised to require that contracting officers "develop placement procedures that will provide each awardee a fair opportunity to be considered for each order..."
To comply with these changes, a paragraph (b) is added to NFS 1852.215-84, Ombudsman, to provide the required information ("the Director of the Contract Management Division, at 202-358-0422, facsimile 202-358-3083, e-mail email@example.com"). Also, an Alternate I of NFS 1852.215-84 is added for use "when a task or delivery order contract is contemplated" (revised NFS 1815.7003, Contract Clause), and it states, "If this is a task or delivery order contract, the ombudsman shall review complaints from contractors and ensure they are afforded a fair opportunity to be considered, consistent with the procedures of the contract."
Also, in paragraph (f)(1) of NFS 1819.201, General Policy, the title of the NASA Ombudsman is changed from "Deputy Associate Administrator for Procurement (Code H)" to "Director of the Contract Management Division (Code HK)".
- Paragraph (1) of NFS 1831.205-32, Precontract Costs, stated that precontract costs were allowable only under sole source contracts that were not firm-fixed-price or fixed-price with economic price adjustment contracts. Though contracts awarded under BAAs are considered competitive according to paragraph (d)(2)(i) of FAR 6.102, Use of Competitive Procedures, NASA feels the award process for BAAs is similar to that for sole source awards since negotiations with the contractor occurs after source selection, so allowing precontract costs for BAA awards is reasonable. Therefore, paragraph (1) of NFS 1831.205-32 is revised to add that precontract costs are applicable to "awards resulting from broad agency announcements."
- On May 10, 2000, NASA removed "elements" as a category in proposal evaluations (see the May 10, 2000, FEDERAL CONTRACTS DISPATCH "National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Elimination of "Elements" as a Category in Proposal Evaluations"). However, the heading "Evaluation factors, subfactors, and elements" of paragraph (i)(3) of NFS 1815.370, NASA Source Evaluation Boards, was not changed. This final rule revised the paragraph heading to "Evaluation factors and subfactors".
FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.
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