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NASA Acquisition Statutes

Page history last edited by Ken Davidian 11 years, 6 months ago

Commercial Preference

 

 

TITLE 10 > Subtitle A > PART IV > CHAPTER 140 > § 2376

§ 2376. Definitions

In this chapter:

(1) The terms “commercial item”, “nondevelopmental item”, “component”, and “commercial component” have the meanings provided in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).

(2) The term “head of an agency” means the Secretary of Defense, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.

(3) The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration.

§ 2377. Preference for acquisition of commercial items

(a) Preference.— The head of an agency shall ensure that, to the maximum extent practicable—

(1) requirements of the agency with respect to a procurement of supplies or services are stated in terms of—

(A) functions to be performed;

(B) performance required; or

(C) essential physical characteristics;

(2) such requirements are defined so that commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial items, may be procured to fulfill such requirements; and

(3) offerors of commercial items and nondevelopmental items other than commercial items are provided an opportunity to compete in any procurement to fill such requirements.

(b) Implementation.— The head of an agency shall ensure that procurement officials in that agency, to the maximum extent practicable—

(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the agency;

(2) require prime contractors and subcontractors at all levels under the agency contracts to incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the agency;

(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial items;

(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial items in response to the agency solicitations;

(5) revise the agency’s procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial items; and

(6) require training of appropriate personnel in the acquisition of commercial items.

(c) Preliminary Market Research.—

(1) The head of an agency shall conduct market research appropriate to the circumstances—

(A) before developing new specifications for a procurement by that agency; and

(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold.

(2) The head of an agency shall use the results of market research to determine whether there are commercial items or, to the extent that commercial items suitable to meet the agency’s needs are not available, nondevelopmental items other than commercial items available that—

(A) meet the agency’s requirements;

(B) could be modified to meet the agency’s requirements; or

(C) could meet the agency’s requirements if those requirements were modified to a reasonable extent.

(3) In conducting market research, the head of an agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2).

 

Anchor Tenancy

 

The following three statutes pertain to NASA's ability to enter into anchor tenancy contracts for the purpose of supporting an emerging commercial space company.

 

15 USCS § 5806: Anchor tenancy and termination liability

 

(a) Anchor tenancy contracts.  Subject to appropriations, the Administrator [of the National Aeronautics and Space Administration] or the Administrator of the National Oceanic and Atmospheric Administration may enter into multiyear anchor tenancy contracts for the purchase of a good or service if the appropriate Administrator [of the National Aeronautics and Space Administration] determines that--

   (1) the good or service meets the mission requirements of the National Aeronautics and Space Administration or the National Oceanic and Atmospheric Administration, as appropriate;

   (2) the commercially procured good or service is cost effective;

   (3) the good or service is procured through a competitive process;

   (4) existing or potential customers for the good or service other than the United States Government have been specifically identified;

   (5) the long-term viability of the venture is not dependent upon a continued Government market or other nonreimbursable Government support; and

   (6) private capital is at risk in the venture.

 

(b) Termination liability.

   (1) Contracts entered into under subsection (a) may provide for the payment of termination liability in the event that the Government terminates such contracts for its convenience.

   (2) Contracts that provide for the payment of termination liability, as described in paragraph (1), shall include a fixed schedule of such termination liability payments. Liability under such contracts shall not exceed the total payments which the Government would have made after the date of termination to purchase the good or service if the contract were not terminated.

   (3) Subject to appropriations, funds available for such termination liability payments may be used for purchase of the good or service upon successful delivery of the good or service pursuant to the contract. In such case, sufficient funds shall remain available to cover any remaining termination liability.

 

(c) Limitations.

   (1) Contracts entered into under this section shall not exceed 10 years in duration.

   (2) Such contracts shall provide for delivery of the good or service on a firm, fixed price basis.

   (3) To the extent practicable, reasonable performance specifications shall be used to define technical requirements in such contracts.

   (4) In any such contract, the appropriate Administrator [of the National Aeronautics and Space Administration] shall reserve the right to completely or partially terminate the contract without payment of such termination liability because of the contractor's actual or anticipated failure to perform its contractual obligations.

 

HISTORY:

   (Nov. 4, 1992, P.L. 102-588, Title V, § 507, 106 Stat. 5127.)

 

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Explanatory notes:

   The bracketed words "of the National Aeronautics and Space Administration" were inserted in subsec. (a) on the authority of Act Nov. 4, 1992, P.L. 102-588, Title I, § 102(f), 106 Stat. 5110, which is unclassified.

 

42 USCS § 2459d: 

 Funding restrictions regarding new commercial space hardware or services

 

 

No amount appropriated to the National Aeronautics and Space Administration in this or any other Act with respect to any fiscal year may be used to fund grants, contracts or other agreements with an expected duration of more than one year, when a primary effect of the grant, contract, or agreement is to provide a guaranteed customer base for or establish an anchor tenancy in new commercial space hardware or services unless an appropriations Act specifies the new commercial space hardware or services to be developed or used, or the grant, contract, or agreement is otherwise identified in such Act.

 

HISTORY:

   (Oct. 28, 1991, P.L. 102-139, Title III, 105 Stat. 771.)

 

 42 U.S.C. 2465d: Requirement to procure commercial launch services

 

(a) In general

 

Except as otherwise provided in this section, the National Aeronautics and Space Administration shall purchase launch services for its primary payloads from commercial providers whenever such services are required in the course of its activities.

 

(b) Exceptions

  

The National Aeronautics and Space Administration shall not be required to purchase launch services as provided in subsection

 

(a) of this section if, on a case by case basis the Administrator of the National Aeronautics and Space  Administration determines that--

               

                (1) the payload requires the unique capabilities of the space shuttle;

                (2) cost effective commerical launch services to meet specific mission requirements are not reasonably available and would not be available when required;

                (3) the use of commerical launch services poses an unacceptable risk of loss of a unique scientific opportunity; or

                (4) the payload serves national security or foreign policy purposes.

Upon any such determination, the Administrator shall, within 30 days, notify in writing the Committee on Science, Space, and Technology of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate of the determination and its rationale.

 

 

 

(c) National Aeronautics and Space Administration launch vehicles

 

Launch vehicles shall be acquired or owned by the National Aeronautcs and Space Administration only--

                (1) as required under circumstances described in subsection (b) of this section; or

                (2) by the National Aeronautics and Space Administration for conducting research and development on, and testing of, launch technology.

 

(d) Phase-in period

 

Subsections (a) and (c) of this section shall not apply to launch services and launch vehicles purchased by the National Aeronautics and Space Administration before November 16, 1990.

 

(e) Historical purposes

 

Sections 2465b to 2465f of this title shall not be interpreted to prohibit the National Aeronautics and Space Administration from acquiring, owning, or maintaining launch vehicles solely for historical display purposes.

 

(Pub. L. 101-611, title II, $ 204, Nov. 16, 1990, 104 Stat. 3206.)

 

Codification

 

Section was enacted as part of the National Aeronautics and Space Administration Authorization Act, Fiscal Year 1991, and also as part of the Launch Services Purchase Act of 1990, and not part of the National Aeronautics and Space Act of 1958 which is classified principally to this chapter.

 

48 CFR 1812.7000:  1812.7000 Prohibition on guaranteed customer bases for new commercial space hardware or services.

 

Public Law 102-139, title III, Section 2459d, prohibits NASA from awarding a contract with an expected duration of more than one year if the primary effect of the contract is to provide a guaranteed customer base for, or establish an anchor tenancy in, new commercial space hardware or services. Exception to this prohibition may be authorized only by an appropriations Act specifically providing otherwise.

 

HISTORY: [63 FR 40189, July 28, 1998]

 

AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: 42 U.S.C. 2473(c)(1).

NOTES: NOTES APPLICABLE TO ENTIRE CHAPTER: EDITORIAL NOTE: Nomenclature changes to chapter 18 appear at 58 FR 51136, Sept. 30, 1993; 67 FR 30602, May 7, 2002.

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