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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: September 8, 2000

FROM: Barry McVay, CPCM

SUBJECT: National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Insurance -- Partial or Total Immunity from Tort Liability for State Agencies and Charitable Institutions

SOURCE: Federal Register, September 8, 2000, Vol. 65, No. 175, page 54439

AGENCIES: National Aeronautics and Space Administration (NASA)

ACTION: Final Rule

SYNOPSIS: NASA is amending NFS Subpart 1828.3, Insurance, and adding a provision and two clauses to NFS Part 1852 to allow state agencies and charitable institutions partial or total immunity from tort liability on NASA contracts. This was permitted in the 1990 version of the Federal Acquisition Regulation (FAR) but was deleted by Federal Acquisition Circular (FAC) 90-37, dated January 26, 1996. NASA finds that it needs the provision and clauses.

EDITOR'S NOTE: For more on the proposed rule, see the April 25, 2000, FEDERAL CONTRACTS DISPATCH "National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Partial or Total Immunity from Tort Liability for State Agencies and Charitable Institutions."

EFFECTIVE DATE: September 8, 2000.

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

SUPPLEMENTAL INFORMATION: FAC 90-37, published January 26, 1996, deleted FAR 52.228-6, Insurance -- Immunity from Tort Liability, because it applied only to cost-reimbursement contracts for research and development awarded to state agencies or charitable institutions that claimed partial or total immunity from tort liability. In addition, Alternate I and Alternate II of FAR 52.228-7, Insurance -- Liability to Third Persons, were deleted: Alternate I was used when a state agency or charitable institution claimed partial immunity; Alternate II was used when a state agency or charitable institution claimed total immunity. FAC 90-37 also deleted what was then FAR 28.311-1, Solicitation Provision, which prescribed the use of FAR 52.228-6, and all references to tort liability in what was then FAR 28.311-2, Contract Clause (specifically, the directions on when to use the alternates to FAR 52.228-7).

NASA has awarded cost-reimbursement contracts to state agencies and charitable institutions that claim partial or total immunity from tort liability. Because NASA found it needed the provision and clause alternates, it proposed on April 25, 2000, to revise the NFS to add language similar to that which was removed from the FAR by FAC 90-37. No comments were received, so NASA is revising the NFS as proposed.

The following are the changes being made to the NFS by this final rule:

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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