Section_H_Rev._A.docx

NNJ17584385R SECTION H

RESEARCH, ENGINEERING, MISSION INTEGRATION SERVICES CONTRACT

SECTION H - SPECIAL CONTRACT REQUIREMENTS

SUB-SECTION H.A – CLAUSES MUTUALLY APPLICABLE TO BOTH FIRM FIXED-PRICE AND COST REIMBURSABLE EFFORTS

H.A.1 LISTING OF CLAUSES INCORPORATED BY REFERENCE

NOTICE: The following solicitation provisions and/or contract clauses pertinent to this section are hereby incorporated by reference:

I. FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1)

CLAUSE

NUMBER

DATE

TITLE

None included by reference

II. NASA FAR SUPPLEMENT (48 CFR CHAPTER 18) CLAUSES

CLAUSE

NUMBER

DATE

TITLE

(End of clause)

H.A.2 EXPORT LICENSES (NFS 1852.225-70) (FEB 2000)

(a) The Contractor shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in the performance of this contract. In the absence of available license exemptions/exceptions, the Contractor shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance.

(b) The Contractor shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract, including instances where the work is to be performed on-site at [insert name of NASA installation], where the foreign person will have access to export-controlled technical data or software.

(c) The Contractor shall be responsible for all regulatory record keeping requirements associated with the use of licenses and license exemptions/exceptions.

(d) The Contractor shall be responsible for ensuring that the provisions of this clause apply to its subcontractors.

(End of clause)

H.A.3 RESERVED

H.A.4 SMALL BUSINESS SUBCONTRACTING GOALS (JSC 52.219-90) (OCT 2006) (LARGE BUSINESS ONLY)

For purposes of this clause, the terms, “HUBZone Small Business Concern,” “Small Disadvantaged Business Concern,” “Service-Disabled, Veteran-Owned Small Business Concern, “Veteran-Owned Small Business Concern,”” “Women-Owned Small Business Concern,” and “Historically Black College or University (HBCU)” are defined in paragraph 2.101 of the Federal Acquisition Regulation.

The total small business goal, expressed as a percent of total contract value including options, is OFI percent. The small business percentage goal, includes the following goals expressed as a percent of total contract value:

(End of clause)

H.A.5 ADMINISTRATIVE LEAVE (JSC 52.242-94 ) (SEP 2008)

(a) When the NASA installation grants administrative leave to its Government employees (e.g., as a result of inclement weather, potentially hazardous conditions, or other special circumstances), the following personnel should also be dismissed upon notification of a center closure provided by the Contracting Officer:

1. Contractor personnel working on-site; and

2. Contractor personnel dedicated to the contract effort who are

a) working off-site within 10 miles of JSC; and

b) unable to perform their NASA contract duties at their off-site location because their normal place of business has been or is expected to be negatively impacted by an emergency situation (e.g. has sustained damage, has been evacuated, etc.).

However, the contractor shall provide sufficient on-site personnel to perform round-the-clock requirements of critical work already in process, unless otherwise instructed by the Contracting Officer or authorized representative.

(b) Administrative leave granted under this clause shall be subject to modification or termination by the Contracting Officer and in all instances shall be subject to the availability of funds. The cost of salaries and wages to the Contractor for the period of any such excused absence shall be a reimbursable item of cost under this contract for effected employees in accordance with the Contractor's established accounting policy.

1. If a labor hour-based contract, administrative leave granted under this clause shall be accounted for consistent with productive hours under this contract for employees in accordance with the Contractor's established accounting policy.

2. For fixed price contracts based on other than labor hours for deliverables, the Contracting Officer and Contractor shall as a precondition to any reimbursement negotiate an advanced agreement to determine the appropriate method in which to grant administrative leave under this clause.

3. All invoices requesting payment under this clause shall be marked as “Administrative Leave in accordance with FAR 52.242-94, Administrative Leave.” All such invoices paid will be subject to review, audit, and revision when routine operations re-commence.

(c) The Contractor shall include this clause in all services subcontracts that include personnel in the categories described in (a) above.

(End of clause)

H.A.6 ADDITIONAL EXPORT CONTROL REQUIREMENTS

In addition to the requirements set forth in NFS 1852.225-70, Export Licenses, the contractor shall perform the following tasks when they facilitate exports of NASA hardware, software or technical data according to the Export Administration Regulations, International Traffic in Arms Regulations or any other U.S. export control regulations (e.g. Nuclear Regulatory Commission, Drug Enforcement Agency, etc.) pursuant to this contract:

(a) Provide to the Johnson Space Center (JSC) Export Services Team (EST), in writing, an Advanced Notification of Export (ANE) for all program related exports (hardware, software and technical data) where NASA is considered the U.S. Principal Party in Interest (USPPI). The requirements below shall be met by the contractor and its subcontractors, respectively, when accomplishing the following activities:

1. Submitting requests for NASA to apply for an export license with the Department of Commerce or Department of State for use under the contract activity in support of the ISS Program.

2. Submitting notice of the contractor’s intent to use Department of Commerce or Department of State export licenses obtained by NASA as they apply to the contract activity in support of the ISS Program.

3. Submitting notice of the contractor’s intent to use any export license exceptions or exemptions as they apply to the contract activity in support of the ISS Program.

(b) For all Program related exports (hardware, software or technical data), submit the equivalent information described below to the Center Export Administrator (CEA) at the geographically closest NASA Space Flight Center (JSC, Marshall Space Flight Center [MSFC] or Kennedy Space Center [KSC]) according to the policies and procedures of that center (check with the cognizant Contracting Officer or CEA). A courtesy copy of equivalent information submitted to MSFC or KSC shall be provided to the JSC CEA’s office. Provide copies of shipping documents for shipments made under a NASA Export License, exemption or exception to the appropriate CEA within two weeks after the shipment.

1. The contractor shall submit requests for NASA to apply for a license at least 7 months prior to the need date to export. Note that the agencies which approve the licenses can take up to 6 months or more to process them.

2. The contractor shall submit an ANE in a formal letter, fax or e-mail (e-mail is preferred), containing the information described below (as applicable), addressed to the CEA’s Office in accordance with the submission schedule below. The schedule provides a minimum amount of time required to process the information, however license requests may take longer than 6 months to process by the controlling agency.

Description of Commodity (as it appears on the license)

X

1) NASA license number (include date of expiration), International Traffic in Arms Regulation (ITAR) license exemption (e.g. 125.4(b)(3)) or Export Administration Regulation (EAR) exception (e.g. GOV, RPL, TMP, ENC, etc.). *

5) Intermediate and Ultimate Consignees, End User (full name and address), and Destination of export (Country, city and company).

X

X

X

X

Signed by Civil Servant -Export Rep X Copy of Signed form X Signed by Civil Servant - Export Rep

X

* Additional information is required for these exceptions.

i. If using RPL, provide the license number, or copy of records confirming export authorization for the item being replaced.

ii. If using ENC, provide reference to the manufacturer’s record verifying eligibility for ENC (e.g. full internet address (URL), e-mail from manufacturer or copy of Commerce Department communication to manufacturer).

iii. If using TMP, provide the expected return date. **

3. After all the information is submitted, the cognizant CEA’s office will respond to the contractor or its subcontractor with a status within ten (10) working days. It is the CEA’s goal to provide a notice of approval or other disposition within 10 working days for “Use of License” and “Use of Exemption/Exception” to the contractor or its subcontractors who are exporting on behalf of NASA. Once approved, NASA will provide the destination control statement to use on all export documentation via e-mail or hardcopy letter.

(End of clause)

H.A.7 LIMITATION OF FUTURE CONTRACTING (NFS 1852.209-71) (DEC 1988)

(a) The Contracting Officer has determined that this acquisition may give rise to a potential organizational conflict of interest. Accordingly, the attention of prospective offerors is invited to FAR Subpart 9.5—Organizational Conflicts of Interest.

(b) The nature of this conflict is [describe the conflict (TBD)].

(c) The restrictions upon future contracting are as follows:

(1) If the Contractor, under the terms of this contract, or through the performance of tasks pursuant to this contract, is required to develop specifications or statements of work that are to be incorporated into a solicitation, the Contractor shall be ineligible to perform the work described in that solicitation as a prime or first-tier subcontractor under an ensuing NASA contract. This restriction shall remain in effect for a reasonable time, as agreed to by the Contracting Officer and the Contractor, sufficient to avoid unfair competitive advantage or potential bias (this time shall in no case be less than the duration of the initial production contract). NASA shall not unilaterally require the Contractor to prepare such specifications or statements of work under this contract.

(2) To the extent that the work under this contract requires access to proprietary, business confidential, or financial data of other companies, and as long as these data remain proprietary or confidential, the Contractor shall protect these data from unauthorized use and disclosure and agrees not to use them to compete with those other companies.

H.A.8 CROSS-WAIVER OF LIABILITY FOR INTERNATIONAL SPACE STATION ACTIVITIES (NFS 1852.228-76) (OCT 2012)

(a) The Intergovernmental Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station (IGA) for the International Space Station (ISS) contains a cross-waiver of liability provision to encourage participation in the exploration, exploitation, and use of outer space through the ISS. The objective of this clause is to extend this cross-waiver of liability to NASA contracts in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the International Space Station (ISS). The Parties intend that this cross-waiver of liability be broadly construed to achieve this objective.

(b) As used in this clause, the term:

(1) “Agreement” refers to any NASA Space Act agreement that contains the cross-waiver of liability provision authorized by 14 CFR Part 1266.102.

(2) “Damage” means:

(i) Bodily injury to, or other impairment of health of, or death of, any person;

(ii) Damage to, loss of, or loss of use of any property;

(iii) Loss of revenue or profits; or

(iv) Other direct, indirect, or consequential Damage.

(3) “Launch Vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads or persons, or both.

(4) “Partner State” includes each Contracting Party for which the IGA has entered into force, pursuant to Article 25 of the IGA or pursuant to any successor agreement. A Partner State includes its Cooperating Agency. It also includes any entity specified in the Memorandum of Understanding (MOU) between NASA and the Government of Japan to assist the Government of Japan's Cooperating Agency in the implementation of that MOU.

(5) “Party” means a party to a NASA Space Act agreement involving activities in connection with the ISS and a party that is neither the prime contractor under this contract nor a subcontractor at any tier.

(6) “Payload” means all property to be flown or used on or in a Launch Vehicle or the ISS.

(7) “Protected Space Operations” means all Launch or Transfer Vehicle activities, ISS activities, and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of the IGA, MOUs concluded pursuant to the IGA, implementing arrangements, and contracts to perform work in support of NASA’s obligations under these Agreements. It includes, but is not limited to--

(i) Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch or Transfer Vehicles, the ISS, Payloads, or instruments, as well as related support equipment and facilities and services; and

(ii) All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services. “Protected Space Operations” also includes all activities related to evolution of the ISS, as provided for in Article 14 of the IGA. “Protected Space Operations” excludes activities on Earth which are conducted on return from the ISS to develop further a Payload's product or process for use other than for ISS-related activities in implementation of the IGA.

(8) “Related Entity” means:

(i) A contractor or subcontractor of a Party or a Partner State at any tier;

(ii) A user or customer of a Party or a Partner State at any tier; or

(iii) A contractor or subcontractor of a user or customer of a Party or a Partner State at any tier. The terms “contractor” and “subcontractor” include suppliers of any kind.

(9) “Transfer Vehicle” means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A Transfer Vehicle also includes a vehicle that departs from and returns to the same location on a space object.

(c) Cross-waiver of liability:

(1) The Contractor agrees to a cross-waiver of liability pursuant to which it waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause based on Damage arising out of Protected Space Operations. This cross-waiver shall apply only if the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:

(i) A Party as defined in (b)(5) of this clause;

(ii) A Partner State other than the United States of America;

(iii) A Related Entity of any entity identified in paragraph (c)(1)(i) or (c)(1)(ii) of this clause; or

(iv) The employees of any of the entities identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this clause.

(2) In addition, the contractor shall, by contract or otherwise, extend the cross-waiver of liability set forth in paragraph (c)(1) of this clause to its subcontractors at any tier by requiring them, by contract or otherwise, to:

(i) Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and

(ii) Require that their subcontractors waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause.

(3) For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.

(4) Notwithstanding the other provisions of this clause, this cross-waiver of liability shall not be applicable to:

(i) Claims between the Government and its own contractors or between its own contractors and subcontractors;

(ii) Claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Party to an Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;

(iii) Claims for Damage caused by willful misconduct;

(iv) Intellectual property claims;

(v) Claims for Damage resulting from a failure of the contractor to extend the cross-waiver of liability to its subcontractors and related entities, pursuant to paragraph (c)(2) of this clause;

(vi) Claims by the Government arising out of or relating to the contractor’s failure to perform its obligations under this contract.

(5) Nothing in this clause shall be construed to create the basis for a claim or suit where none would otherwise exist.

(6) This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter. 701 is applicable.

(End of clause)

H.A.9 ON-RAMP

The purpose of this on-ramp clause is (1) to ensure competition exists throughout the life of this contract for both Large and Small Business, (2) to allow new qualified service providers not originally accepted for award the opportunity to provide services and (3) for providers to introduce new capabilities not available or identified at the time of the award of the initial contract.

The parties mutually agree that the original solicitation, as revised, shall remain open during the life of this contract and that at any time NASA may award additional contracts for IDIQ requirements. As deemed necessary during the life of this contract, NASA will allow submission of proposals from service providers for contracts. The requirement for submission of on-ramp proposals will be established by a government issued solicitation notice. The decision to request proposals under the clause will be solely at NASA’s discretion and will only occur after this requirement has been synopsized. Cost/Price, Technical/Management Confidence Factor, and Past Performance will remain factors in determining awards.

If NASA issues a solicitation notice, new and incumbent providers will be allowed to submit proposals within the notice’s stated response time. Upon award of each additional contract, NASA shall notify all present Contractors of the award, and the new Contractor shall thenceforth be eligible to compete within the respective CLIN your company is awarded.

Contracts with existing Contractor(s) will be unaffected by the use of this On-Ramp provision and current contracts will remain active. Existing Contractor(s) may propose services consistent with the Instruction to Offerors of the “On-Ramp” Request for Proposal, as revised. If the existing Contractor(s) chooses not to respond to the “On-Ramp” RFP, they remain as a candidate for competition of future orders under the terms of the existing contract. If the existing Contractor chooses to respond to the “On-Ramp” RFP but is not awarded a new contract in that competition, they remain as a candidate for competition of future orders under the terms of the existing contract. If the existing Contractor(s) chooses to respond to the “On-Ramp” RFP and are awarded additional service capabilities in that competition, their existing contract will be modified to incorporate the additional capabilities.

NASA reserves the right to expand the performance capabilities covered by the REMIS contract, by properly soliciting offers from all interested sources.

(End of clause) [End of Sub-Section]

SUB-SECTION H.B – CLAUSES APPLICABLE TO FIRM FIXED-PRICE EFFORTS ONLY

[End of Sub-Section]

SUB-SECTION H.C – CLAUSES APPLICABLE TO COST REIMBURSABLE EFFORTS ONLY

(1) To access the DoD WAWF system, the Contractor shall be required to have a designated electronic business point of contact in the System for Award Management at https://www.acquisition.gov and be registered to use the DoD WAWF at https://wawf.eb.mil following the step-by-step procedures for self-registration available at this web site.

(2) NASA voucher payment information can be obtained at the NASA Shared Services Center (NSSC) Vendor Payment information web site at: https://www.nssc.nasa.gov/vendorpayment For technical WAWF help, contact the WAWF helpdesk at 1-866-618-5988. For additional questions, contact the NSSC Customer Contact Center at 1-877-677-2123.

(3) The Contractor shall ensure that the payment request includes appropriate contract line item descriptions of the work performed or supplies delivered, unit price/cost per unit, fee (if applicable), and all required back-up documentation to support each payment request.

(b) Vouchers for payment of fee resulting from contract performance or provisional fee (if authorized under this contract) shall be prepared using a Standard Form (SF) 1034 and submitted electronically to the following address for payment:

(c) For both cost and fee voucher submissions, a concurrent copy of the voucher shall be provided electronically to the NASA Contracting Officer outside of WAWF. The Contracting Officer may designate other recipients as required.

(d) The NSSC is the designated billing office for cost and fee vouchers for purpose of the Prompt Payment clause of this contract.

(e) In the event that amounts are withheld from payment in accordance with terms of this contract, a separate voucher for the amount withheld will be required before payment for that amount may be made.

(End of clause)

[END OF SECTION]

H-9