NASA FAR Supplement Regulatory Review No. 2, 57015-57032 [2014-21476]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 79, Number 185 (Wednesday, September 24, 2014)]
[Proposed Rules]
[Pages 57015-57032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21476]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1809, 1815, 1816, 1817, 1819, 1823, 1827, 1828, 1831, 
1832, 1837, 1842, 1849, and 1852

RIN 2700-AE09


NASA FAR Supplement Regulatory Review No. 2

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: NASA is updating the NASA FAR Supplement (NFS) with the goal 
of eliminating unnecessary regulation, streamlining overly-burdensome 
regulation, clarifying language, and simplifying processes where 
possible. This proposed rule is the second in a series and includes 
updates and revisions to 14 parts of the NFS. On January 18, 2011, 
President Obama signed Executive Order (E.O.) 13563, Improving 
Regulations and Regulatory Review, directing agencies to develop a plan 
for a retrospective analysis of existing regulations. The revisions to 
this proposed rule are part of NASA's retrospective plan under E.O. 
13563 completed in August 2011.

DATES: Interested parties should submit comments to NASA at the address 
below on or before November 24, 2014 to be considered in formulation of 
the final rule.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number 2700-AE09 via the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Leigh Pomponio via email at 
leigh.pomponio@NASA.gov.

FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, NASA, Office of 
Procurement, (202) 358-0592, email: leigh.pomponio@NASA.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    The NASA FAR Supplement (NFS) is codified at 48 CFR part 1800. 
Periodically, NASA performs a comprehensive review and analysis of the 
regulation, makes updates and corrections, and reissues the NASA FAR 
Supplement. The last reissue was in 2004. The goal of the review and 
analysis is to reduce regulatory burden where justified and appropriate 
and make the NFS content and processes more efficient and effective, 
faster and simpler, in support of NASA's mission. Consistent with 
Executive Order (E.O.)

[[Page 57016]]

13563, Improving Regulations and Regulatory Review, NASA is currently 
reviewing and revising the NFS with an emphasis on streamlining it and 
reducing associated burdens. Due to the volume of the NFS, these 
revisions are being made in increments. This proposed rule is the 
second of three expected rules which together will constitute the NFS 
update and reissue. This proposed rule includes regulatory revisions to 
the following 14 parts of the NFS:

1809--Contractor Qualifications
1815--Subpart 1815.4, Contract Pricing (Changes to other subparts 
proposed in Rule no. 1)
1816--Types of Contracts
1817--Special Contracting Methods
1819--Small Business Programs
1823--Environment, Energy and Water Efficiency, Renewable Energy 
Technologies, Occupational Safety, and Drug-Free Workplace
1827--Patents, Data, and Copyrights
1828--Bonds and Insurance
1831--Contract Cost Principles and Procedures
1832--Contract Financing
1837--Service Contracting
1842--Contract Administration and Audit Services
1849--Terminations
1852--Solicitation Provisions and Contract Clauses

    Further, this proposed rule provides notice that no regulatory 
changes will be made to the following eight parts of the NFS:

1806--Competition
1810--Market Research
1826--Socio-Economic Programs
1829--Taxes
1830--Cost Accounting Standards Administration
1836--Construction and A&E Contracts
1838--Federal Supply Schedule
1844--Subcontracting

    NASA analyzed the existing regulation to determine whether any 
portions should be modified, streamlined, expanded, or repealed in 
order to make the regulation more efficient and effective. Special 
emphasis was placed on identifying and eliminating or simplifying 
overly burdensome processes that could be streamlined without 
jeopardizing Agency mission effectiveness. Additionally, NASA sought to 
identify current regulatory coverage that is not regulatory in nature, 
and to remove or relocate such coverage to internal guidance. In 
addition to substantive changes, this proposed rule includes 
administrative changes necessary to make minor corrections and updates.
    Specifically, the major changes in this proposed rule are 
summarized as follows:

    Part 1809--Contractor Qualifications:
    --1809.206-70, Small businesses, is deleted. FAR 19.6 adequately 
addresses small business participation and requirements and NASA 
supplementation is not needed.
    --The prescription at 1809.206-71 and the clause at 1852.209-70, 
Product Removal from Qualified Products List, are deleted. The 
clause is not necessary as FAR 52.209-1, Qualification Requirements, 
sufficiently covers product removal from Qualified Products Lists.
    --Contractor Team Arrangements in 1809.6, the prescription at 
1809.607, and the clause at 1852.209-72, Composition of the 
Contractor, are removed. FAR 9.6 adequately addresses teaming 
arrangements and NASA supplementation is not needed.
    Subpart 1815.4--Contract Pricing:
    --To conform to FAR, ``cost or pricing data'' terminology is 
changed throughout the subpart to clearly distinguish between 
``certified cost or pricing data'' and ``data other than certified 
cost or pricing data.'' These changes are consistent with changes 
made to FAR, 15.4, by FAC 2005-45, FAR Case 2005-036, Definition of 
Cost or Pricing Data.
    Part 1816--Types of Contracts:
    --NASA technical performance initiatives at 1816.402-270, and 
the corresponding clause at 1852.216-88, are revised to change 
``non-hardware contracts'' to ``supply and service contracts'' to 
conform to the FAR terminology and to broaden application to include 
services.
    1816.405-274(g)(1)and (2), Award Fee evaluation factors, is 
revised to reflect current small business subcategories by adding 
small disadvantaged business (SDB), and Historically Black Colleges 
and Universities (HBCU) and to delete the requirement to evaluate 
performance against small businesses in specified NAICS groups 
consistent with the ruling in Rothe Dev. Corp. v. Dept. of Defense, 
545 F.3d (Fed. Cir 2008).
    --1816.405-274(g)(4), to add specificity, award fee evaluation 
factors, is revised to specify that 10 percent, in lieu of the 
currently specified `up to 15 percent', of available award fee shall 
be assigned to the contractor's performance against the 
subcontracting plan.
    --Award fee evaluation, at 1816.405-275, is revised to indicate 
that contacting officers may supplement, but not alter, the FAR 
adjectival rating descriptions. The FAR gives COs this authority; it 
is reiterated here because the NFS instructions may otherwise appear 
to override the FAR authority.
    --Part 1817--Special Contracting Methods:
    --1817.71, Exchange or sale of personal property, is deleted 
from this part, and will be relocated to part 1845, and be proposed 
as part of Rule 3 in the NFS Rewrite series.
    --The clause 1852.217-70, Property Administration and Reporting, 
is deleted as unnecessary. The appropriate FAR 45 and NFS 1845 
property clauses should be used for interagency acquisitions.
    --In the clause 1852.217-71, Phased Acquisition Using Down-
Selection Procedures, paragraph (e) is revised to delete the last 
sentence. NASA no longer provides paper copies of solicitations 
because solicitations are electronically available via the internet 
(NASA Acquisition Internet Service, FedBizOps, etc.)
    Part 1819--Small Business Programs:
    --The policy at 1819.201 is revised to clarify an annual goal of 
five percent for prime and subcontract awards to SDBs and to set 
forth a three percent goal for HUBZone and service-disabled, 
veteran-owned small business (SDVOSB) concerns.
    --1819.201 is revised to remove the phrase ``not traditionally 
dominated'' and replace it with ``had low involvement level'' to 
better describe the past participation level of small businesses in 
high-technology area. It is also revised to clarify NASA's annual 
goal of 5 percent of prime and subcontract awards to small SDBs and 
women-owned small businesses (WOSBs), and a three percent goal for 
HubZone and SDVOSB concerns.
    --Protesting a small business representation at 1819.302 is 
revised to include `rerepresentation' in the title, to conform to 
FAR, and to establish a notification requirement to the Agency Small 
Business Office and the Small Business Administration (SBA)when the 
contracting officer (CO) determines that an award must be made to 
protect the public interest.
    --Clause prescriptions are added at 1819.811-3.
    --Subpart 1819.10, Small Business Competitiveness Demonstration 
Program, is removed in its entirety, to conform to FAR.
    --At Subpart 1819.70, the eight percent goal is removed. This is 
an administrative reporting requirement that does not require 
regulatory coverage.
    --Subpart 1819.71, NASA Rural area small business plan, is 
removed. NASA is required to create an internal plan addressing this 
requirement, but there is no need for regulatory coverage.
    --Subpart 1819.72, NASA Mentor-Prot[eacute]g[eacute] Program, is 
updated to clarify policy and program requirements, such as 
indicating the program goal is not only to develop viable suppliers 
for NASA, but also for other Government and commercial entities, 
specify that required subcontracting plan cannot be a commercial 
plan, clarify the office to which applications should be submitted, 
specify that a prot[eacute]g[eacute] many be an active SBIR/STTR or 
AbilityOne Program participant. Further, sections 1819.7203, Mentor 
Approval Process, 1819.7204, Prot[eacute]g[eacute] Selection, and 
1819.7205, Mentor-prot[eacute]g[eacute] agreements, are deleted in 
their entirety because they are not regulatory in nature and are now 
covered in the NASA Mentor-Prot[eacute]g[eacute] Guidance at https://osbp.nasa.mpp/. A note about advance payments that was 
previously under 1819.7205 is retained, renumbered 1819.7203, and 
cross referenced to FAR subpart 32.4 to clarify that there are not 
special considerations for Mentor-Prot[eacute]g[eacute] entities 
with respect to advance payments.
    --1819.7302(c),(d), and (e) are revised to allow the contracting 
officer to deviate from certain SBIR/STTR program requirements after 
coordination with the NASA SBIR Program Manager/Coordinator in 
accordance with SBA's SBIR Program Directive which can be found at 
https://sbir.gov/sites/default/files/sbirpd1-8-
14amendments2-24-14.pdf.
    --Clause 1852.219-11, Special 8(a) Contracting Conditions, and 
Provision

[[Page 57017]]

1852.219-18, Notification of Competition Limited to Eligible 8(a) 
Concerns, are added to implement NASA's Partnership Agreement with 
SBA. The provision and clause are currently used under authority of 
a NASA class deviation, PIC 12-08, dated Nov. 28, 2012, and provide 
NASA-specific instructions and requirements for 8(a) contracts.
    --The clause at 1852.219-75 is retitled as `Individual 
Subcontracting Reports' and a requirement is added for contractors 
to enter goals as a percentage of total contract value as well as a 
percentage of total subcontract dollars.
    --1852.219-76, NASA's eight percent goal is deleted. This is an 
internal NASA reporting requirement and a clause is not necessary.
    --1852.219-79, Mentor Requirements and Evaluation, is revised to 
advise contractors that their evaluation will include consideration 
of the extent to which the mentor has contributed to advancing the 
prot[eacute]g[eacute]'s technical readiness level.
    Part 1823--Environment, Energy and Water Efficiency, Renewable 
Technologies, Occupational Safety, and Drug-Free Workplace:
    --Subpart 1823.10, Federal Compliance with Right-to-Know Laws 
and Pollution Prevention Requirements, is deleted because E. O. 
13423, as implemented in the FAR, now requires contractors to comply 
with the Agency's environmental management system.
    --The prescription at 1823.71 and corresponding clause at 
1852.223-71 are clarified to specifically address radio frequency 
rather than just generic frequency.
    Part 1827--Patents, Data, and Copyrights:
    --The entire part has been revised and renumbered to conform to 
the FAR and the recodification of the National Aeronautics and Space 
Act (Space Act).
    --1827.302(a), the second sentence has been removed as it is not 
necessary. For inventions made under contracts with small businesses 
and nonprofit organizations, NASA follows FAR 27.302.
    --1827.302(b)(2)(v) (formerly at 1827.301(d)) provides 
clarifying language specifying that under NASA contracts, with 
entities other than a small business or nonprofit organizations, 
title to subject inventions may vest in NASA in accordance with its 
authority under the Space Act.
    --1827.302(b)(3) was revised to conform to the language 
regarding waivers in the Space Act (51 U.S.C. 20135). Additionally, 
the changes provide clarifying guidance on NASA's requirements for 
meeting the statutory standard of ``any invention or class of 
inventions.''
    --1827.302(g) is revised to clarify the language, and to 
reference the legal authority underlying the preference for products 
resulting from subject inventions to be manufactured substantially 
in the United States.
    --1827.302(k) adds coverage on NASA policy regarding monetary 
awards for inventions in accordance with 14 CFR 1240.105.
    --1827.303(b)(1)(i)(formerly at 1827.303(a)(1)(B)) has been 
modified to clarify the process for a contracting officer to 
determine status of a contractor that claims to be a small business 
concern or nonprofit organization.
    --1827.303(b)(1)(iii) adds new Agency instructions on completing 
FAR 52.227-11(j), as directed by that clause.
    --1827.303(b)(7) prescribes use of Alternate V of FAR 52.227-11 
when a contractor is directed to fulfill the Government's 
obligations under a Cooperative Research and Development Agreement 
(CRADA).
    --1827.303(d)(formerly 1827.303-70(d)) reflects changes in 
identifying installation Patent Representatives.
    --1827.304-2(a)(3)adds clarifying guidance on use of NFS clauses 
when issuing contracts for other agencies. When the funding agency 
does not specify a patent rights clause to be used, NFS clauses will 
be used.
    --1827.304-3 (formerly at 1827.304-4) clarifies flow down of 
applicable patent rights clauses in subcontracts.
    --Section 1827.404-4(b)(1) clarifies requirements related to 
release of software to others under NFS clause 1852.227-14.
    --1827.404-4(b)(2)(ii)adds open source software release as a 
basis for granting the contractor's request to assert copyright in 
software developed under the contract.
    --1827.405-4 and 1827.409-70 are revised to address Government 
property requirements. In accordance with FAR 45.000, the FAR 
Government-furnished-property provisions do not apply to software 
and intellectual property. Accordingly, NFS clause 1852.227-88, 
Government-Furnished Computer Software and Related Technical Data, 
was added and was modeled, in part, after the Defense Federal 
Acquisition Regulation Supplement(DFARS) Clause 252.227-7025(c), 
Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends.
    --1827.409(d) is revised to provide consistency and protect the 
Government's rights and option for deferred ordering of data; it 
also provides additional guidance on the use of the clause at FAR 
52.227-16, Additional Data Requirements.
    --Clause 1852.227-11 is renamed and renumbered to conform with 
FAR.
    --Clause 1852.227-14(c)(1)(iv) adds a requirement for 
contractors to include a Government rights notice in their 
publications, in order to protect the Government's license in a 
scientific and technical article, based on or containing data first 
produced in the performance of the subject contract, and submitted 
for publication in academic, technical or professional journals, 
symposia proceedings or similar works. This requirement is modeled 
after the Department of Energy Acquisition Regulation (DEAR) clause 
(48 CFR Part 970.5227-2(d)(2)).
    Part 1828--Bonds and Insurance:
    The following are removed from subpart 1828.1 because no 
supplementation is required by NASA. FAR coverage on bid guarantees 
and payment and performance bonds is adequate.
    --1828.101, Bid guarantees
    --1828.101-70, NASA solicitation provision
    --1828.103, Performance and payment bonds and alternatives.
    --1828.103-70, Subcontractors performing construction work under 
non-construction contracts.
    --1828.103-71, Solicitation requirements and contract clauses.
    --The clause prescription at 1828.311-1 is revised to delete 
``must'' and replace it with ``shall'', and to delete ``as 
prescribed in FAR 28.311-1'' and replace it with ``in solicitations 
and contracts, other than those for construction contracts and those 
for architect-engineer services, when a cost-reimbursement contract 
is contemplated'', for clarification because FAR 28.311-1 requires 
use ``in accordance with agency policy.''
    --The clause at 1852.228-73, Bid Bond, is deleted because it is 
redundant. FAR clause 52.228-1 already provides fill-ins for the 
percent or dollar amount of the bid bond.
    Part 1831--Contract Cost Principles and Procedures:
    --The prescription at 1831.205-671, Solicitation provision, and 
the provision at 1852.231-71, Determination of Compensation 
Reasonableness, are revised to delete the $500,000 threshold and 
replace it with the ``threshold for obtaining certified cost or 
pricing data (FAR 15.403-4)'', to conform with the FAR and to ensure 
that periodic inflationary adjustments made in the FAR also apply to 
the NFS.
    Part 1832--Contract Financing:
    --The prescription at 1832.705-270(a), NASA clauses for 
limitation of cost or funds, is revised to require the clause be 
included in all fixed-price, incrementally-funded contracts and task 
orders, rather than just those for research and development. All 
fixed-price, incrementally-funded contracts should include the 
requirements at 1852.232-77.
    --1832.1110, Solicitation provision and contract clauses, is 
revised to indicate that NASA utilizes the System for Award 
Management (SAM) and it is not necessary for contractors to register 
separately with NASA for electronic funds transfer.
    Part 1837--Service Contracting:
    --Coverage on access to sensitive information is deleted at 
1837.203 as well as the clauses at 1852.237-72, Access to Sensitive 
Information, 1852.237-73, Release of Sensitive Information.
    The NFS addresses protection and handling of sensitive 
information in 1827.
    Part 1842--Contract Administration and Audit Services:
    --Because coverage addressing delegation to Contracting 
Officer's Representatives (CORs) is being relocated to NFS Part 1801 
to conform with the FAR, the prescription at 1842.271 and the clause 
at 1852.242-70, Technical Direction, are proposed for deletion from 
1842. These sections will be proposed for addition to 1801 with the 
next NFS rewrite rule, 3 in the series.
    PART 1849--Terminations
    --The prescription at 1849.505-70, NASA contract clause, and the 
clause at 1852.249.72, Termination (Utilities), are deleted because 
the FAR termination clauses do not require supplementation by NASA.

[[Page 57018]]

B. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of E.O. 12866. This proposed rule is not a major rule 
under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    NASA does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because 
it mainly clarifies or updates existing regulations. In several 
instances, this proposed rule deletes existing requirements which eases 
the regulatory burden on all entities, minimizing the number of 
resources used to collect the data and report it to the government.

D. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). Patent 
and copyright reports required by NFS Part 1827 are covered under 
existing, OMB-approved collection 2700-0052.

List of Subjects in 48 CFR 1809, 1815, 1816, 1817, 1819, 1823, 
1827, 1828, 1831, 1832, 1837, 1842, 1849, and 1852

    Government procurement.

Cynthia Boots,
Alternate Federal Register Liaison.

    Accordingly, 48 CFR Parts 1809, 1815, 1816, 1817, 1819, 1823, 1827, 
1828, 1831, 1832, 1837, 1842, 1849, and 1852 are proposed to be amended 
as follows:

PART 1809--CONTRACTOR QUALIFICATIONS

0
1. The authority citation for part 1809 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).


1809.206-70 & 1809.206.71  [Removed]

0
2. Sections 1809.206-70 and 1809.206-71 are removed.

Subpart 1809.6 [Removed]

0
3. Subpart 1809.6 Contractor Team Arrangements is removed in its 
entirety.

Subpart 1815.4--Contract Pricing

0
4. The authority citation for part 1815 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).


1815.403  [Amended]

0
5. In section 1815.403, the section heading is amended by adding the 
word ``certified'' between the words ``Obtaining'' and ``cost''.
0
6. Revise section 1815.403-170 to read as follows:


1815.403-170  Waivers of certified cost or pricing data.

    (a) NASA has waived the requirement for the submission of certified 
cost or pricing data when contracting with the Canadian Commercial 
Corporation (CCC). This waiver applies to the CCC and its 
subcontractors. The CCC will provide assurance of the fairness and 
reasonableness of the proposed price. This assurance should be relied 
on; however, contracting officers shall ensure that the appropriate 
level of data other than certified cost or pricing data is submitted by 
subcontractors to support any required proposal analysis, including a 
technical analysis and a cost realism analysis. The CCC also will 
provide for follow-up audit activity to ensure that any excess profits 
are found and refunded to NASA.
    (b) NASA has waived the requirement for the submission of certified 
cost or pricing data when contracting for Small Business Innovation 
Research (SBIR) program Phase II contracts. However, contracting 
officers shall ensure that the appropriate level of data other than 
certified cost or pricing data is submitted to determine price 
reasonableness and cost realism.

PART 1816--TYPES OF CONTRACTS

0
7. The authority citation for part 1816 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).


1816.307  [Amended]

0
8. In section 1816.307, remove the last sentence.
0
9. Section 1816.402-270 is revised to read as follows:


1816.402-270  NASA technical performance incentives.

    (a) Pursuant to the guidelines in 1816.402, NASA has determined 
that a performance incentive shall be included in all contracts that 
are based on performance-oriented documents (see FAR 11.101(a)), except 
those awarded under the commercial item procedures of FAR Part 12, 
where the primary deliverable(s) is (are) hardware with a total value 
(including options) greater than $25 million. Any exception to this 
requirement shall be approved in writing by the head of the contracting 
activity. Performance incentives may be included in supply and service 
contracts valued under $25 million, acquired under procedures other 
than Part 12, at the discretion of the contracting officer upon 
consideration of the guidelines in 1816.402. Performance incentives, 
which are objective and measure performance after delivery and 
acceptance, are separate from other incentives, such as cost or 
delivery incentives.
    (b) When a performance incentive is used, it shall be structured to 
be both positive and negative based on performance after acceptance, 
unless the contract type requires complete contractor liability for 
product performance (e.g., fixed price). In this latter case, a 
negative incentive is not required. In structuring the incentives, the 
contract shall establish a standard level of performance based on the 
salient performance requirement. This standard performance level is 
normally the contract's target level of performance. No performance 
incentive amount is earned at this standard performance level. Discrete 
units of measurement based on the same performance parameter shall be 
identified for performance above and, when a negative incentive is 
used, below the standard. Specific incentive amounts shall be 
associated with each performance level from maximum beneficial 
performance (maximum positive incentive) to, when a negative incentive 
is included, minimal beneficial performance or total failure (maximum 
negative incentive). The relationship between any given incentive, 
either positive or negative, and its associated unit of measurement 
should reflect the value to the Government of that level of 
performance. The contractor should not be rewarded for above-standard 
performance levels that are of no benefit to the Government.
    (c) The final calculation of the performance incentive shall be 
done when performance, as defined in the contract, ceases or when the 
maximum positive incentive is reached. When performance ceases below 
the standard established in the contract and a negative incentive is 
included, the Government shall calculate the amount due and the 
contractor shall pay the Government that amount. Once performance 
exceeds the standard, the

[[Page 57019]]

contractor may request payment of the incentive amount associated with 
a given level of performance, provided that such payments shall not be 
more frequent than monthly. When performance ceases above the standard 
level of performance, or when the maximum positive incentive is 
reached, the Government shall calculate the final performance incentive 
earned and unpaid and promptly remit it to the contractor.
    (d) When the deliverable supply or service lends itself to 
multiple, meaningful measures of performance, multiple performance 
incentives may be established. When the contract requires the 
sequential delivery of several items (e.g., multiple spacecraft), 
separate performance incentive structures may be established to 
parallel the sequential delivery and use of the deliverables.
* * * * *


1816.405-270  [Amended]

0
10. In section 1816.405-270, paragraph (a) and the first sentence of 
paragraph (b) are removed and paragraphs (b), (c), and (d) are 
renumbered as (a), (b), and (c).


1816.405-272  [Amended]

0
11. In section 1816.405-272(b), remove the word ``should'' in the last 
sentence and replace it with ``shall''.


1816.405-273  [Amended]

0
12. In section 1816.405-273(a), remove the word ``often'' in the first 
sentence.
0
13. In section 1816.405-274 (e)(3), add the word ``fee'' between the 
words ``award'' and ``shall'' in the second sentence.
0
14. In section 1816.405-274, paragraph (g)(1) is revised to read as 
follows:


1816.405-274  Award fee evaluation factors.

* * * * *
    (g)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, small disadvantaged business, HUBZone small business, 
women-owned small business, veteran-owned small business, service-
disabled veteran-owned small business concerns, and Historically Black 
Colleges and Universities--Minority Institutions (HBCU/MIs). The 
evaluation should consider both goals as a percentage of subcontracting 
dollars as well as a percentage of the total contract value.
    (2) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-
Prot[eacute]g[eacute] Program, if applicable, may also be evaluated.
    (3) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (g)(1) and (g)(2) shall be 
significant (up to 10 percent of available award fee) and shall be 
separate from all other factors.
* * * * *
0
15. In section 1816.405-275, paragraph (a) is revised to read as 
follows:


1816.405-275  Award fee evaluation rating.

    (a) All award fee contracts shall utilize the adjectival rating 
categories and associated descriptions as well as the award fee pool 
available to be earned percentages for each adjectival rating category 
contained in FAR 16.401(e)(3)(iv). Contracting officers may supplement 
these descriptions with more specifics relative to their procurement 
but they cannot alter or delete the FAR adjectival rating descriptions.
    * * *


1816.405-274  [Amended]

0
16. In section 1816.405-275 (b), the parenthetical reference at the end 
of the first sentence is amended to read ``(see FAR 16401(e)(3)(iv)).''
0
17. In section 1816.406-70(f), the last sentence is revised to read


1816.406-70  NASA contract clauses.

* * * * *
    (f)* * * A clause substantially as stated at 1852.216-88 may be 
included in lower dollar value supply or service contracts at the 
discretion of the contracting officer.

PART 1817--SPECIAL CONTRACTING METHODS

0
18. The authority citation for part 1817 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

Subpart 1817.71 [Removed]

0
19. Subpart 1817.71 is removed in its entirety.

Subpart 1817.73 [Redesignated]

0
20. Subpart 1817.73 is redesignated as Subpart 1817.70.

PART 1819--SMALL BUSINESS PROGRAMS

0
21. The authority citation for part 1819 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
22. In section 1819.201, the last sentence in paragraph is (a)(i) and 
paragraph (a)(ii) are revised to read as follows:


1819.201  General Policy.

    (a)(i) * * * The participation of these entities is emphasized in 
high-technology areas where they have had low involvement level.
    (a)(ii) NASA biennially negotiates Agency small business prime and 
subcontracting goals with the Small Business Administration pursuant to 
section 15(g) of the Small Business Act (15 U.S.C. 644). In addition, 
NASA has an annual goal of five percent for prime and subcontract 
awards to small disadvantaged businesses (SDBs) and women-owned small 
businesses (WOSBs), and a three percent goal for HubZone and service-
disabled, veteran-owned small business concerns.
* * * * *
0
23. Section 1819.302 is revised to read as follows:


1819.302  Protesting a small business representation or 
rerepresentation.

    (h) When the contracting officer determines in writing that an 
award must be made to protect the public interest, the contracting 
officer shall notify the Headquarters Office of Procurement, Program 
Operations Division, the Headquarters Office of Small Business 
Programs, and the SBA.
0
24. In section 1819.708-70, paragraph (b) is revised to read as 
follows:


1819.708-70  NASA solicitation provision and contract clauses.

* * * * *
    (b) The contracting officer shall insert the clause at 1852.219-75, 
Individual Subcontracts Reporting, in solicitations and contracts 
containing the clause at FAR 52.219-9, except for contracts covered by 
an approved commercial subcontracting plan.
0
25. Section 1819.811-3 is added to read as follows:


1819.811-3  Contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-11, 
Special 8(a) Contract Conditions, in contracts and purchase orders 
awarded directly to the 8(a) contractor when the acquisition is 
accomplished using the procedures of FAR 19.811-1(a) and (b).
    (d) The contracting officer shall insert the clause at 1852.219-18, 
Notification of Competition Limited to Eligible 8(a) Concerns, in 
competitive solicitations and contracts when the acquisition is 
accomplished using the procedures of FAR 19.805.
    (1) The clause at 1852.219-18 with Alternate I to the FAR clause at 
52.219-18 will be used when competition is to

[[Page 57020]]

be limited to 8(a) concerns within one or more specific SBA districts 
pursuant to 19.804-2.
    (2) The clause at 1852.219-18 with Alternate II to the FAR clause 
at 52.219-18 will be used when the acquisition is for a product in a 
class for which the Small Business Administration has waived the 
nonmanufacturer rule (see FAR 19.102(f)(4) and (5)).
    (e) Follow the prescription at FAR 19.811-3(e).


Subparts 1819.10, 1819.70, & 1819.71  [Removed and reserved]

0
26. Subparts 1819.10, 1819.70, and 1819.71 are removed and reserved.
0
27. Section 1819.7201(a)(1) is revised to read as follow:


1819.7201  Scope of subpart.

    (a) * * *
    (1) Provide incentives to NASA contractors, performing under at 
least one active, approved subcontracting plan negotiated with NASA, to 
assist prot[eacute]g[eacute]s in enhancing their capabilities to 
perform as viable NASA contractors, other Government contractors, and 
commercial suppliers on contract and subcontract requirements.
* * * * *
0
28. Sections 1819.7202, 1819.7203, 1819.7204, and 1819.7205 are revised 
to read as follows:


1819.7202  Eligibility.

    (a) Eligibility of Mentors: To be eligible as a mentor, an entity 
must be--
    (1) A large prime contractor performing with at least one approved 
subcontracting plan, other than a commercial plan, negotiated with 
NASA, pursuant to FAR Subpart 19.7, the Small Business Subcontracting 
Program. A contractor may apply to become a mentor if they currently 
are not performing under a NASA contract as long as they are currently 
performing another Federal agency contract with an approved 
subcontracting plan. The NASA mentor-prot[eacute]g[eacute] agreement, 
however, will not be approved until the mentor company is performing 
under a NASA contract with an approved subcontracting plan; and
    (2) Eligible for receipt of Government contracts. An entity will 
not be approved for participation in the Program if, at the time of 
submission of the application to the Headquarters Office of Small 
Business Programs, the entity is currently debarred or suspended from 
contracting with the Federal Government pursuant to FAR Subpart 9.4, 
Debarment, Suspension, and Ineligibility.
    (b) Eligibility of Prot[eacute]g[eacute]s: To be eligible to 
participate as a prot[eacute]g[eacute], an entity must be--
    (1) Classified as a Small Disadvantaged Business (SDB), a small 
disadvantaged business, a women-owned small business, an historically 
underutilized business zone concern, a veteran-owned, service-disabled 
small business, an historically black college and university, or a 
minority institution. The prot[eacute]g[eacute] entity may also be an 
active NASA SBIR/STTR Phase II company, or an entity participating in 
the AbilityOne program.
    (2) Eligible for the award of Federal contracts; and
    (3) A small business according to the Small Business Administration 
(SBA) size standard for the North American Industry Classification 
System (NAICS) code that represents the contemplated supplies or 
services to be provided by the prot[eacute]g[eacute] to the mentor.
    (c) A prot[eacute]g[eacute] firm may self-certify to a mentor firm 
that it meets the requirements set forth in paragraph (b) of this 
seciton. Mentors may rely in good faith on written representations by 
potential prot[eacute]g[eacute]s that they meet the specified 
eligibility requirements.


1819.7203  Mentor-prot[eacute]g[eacute] advance payments.

    If advance payments are contemplated, the mentor must first have 
the advance payments approved the contracting officer in accordance 
with FAR Subpart 32.4, Advance Payments for Non-commercial items.


1819.7204  Agreement submission and approval process.

    (a) To participate in the Program, entities approved as mentors in 
accordance with 1819.7203, will submit a complete agreement package to 
the Contracting Officer who will forward the completed agreement 
package to the cognizant Small Business Specialist at the NASA Center. 
The submission package must include the following--
    (1) A signed mentor-prot[eacute]g[eacute] agreement;
    (2) A signed prot[eacute]g[eacute] application;
    (3) The estimated cost of the technical assistance to be provided, 
broken out per year and per task, in a separate cost volume; and
    (4) Additional information as may be requested by the NASA OSBP; 
and
    (5) A signed letter of endorsement of the agreement by the 
contracting officer and the contracting officer representative.
    (b) The mentor-prot[eacute]g[eacute] agreement must be approved by 
the Assistant Administrator, NASA OSBP, prior to the mentor incurring 
eligible costs for developmental assistance provided to the 
prot[eacute]g[eacute].
    (c) The cognizant NASA center will issue a contract modification, 
if justified, prior to the mentor incurring costs for developmental 
assistance to the prot[eacute]g[eacute].


1819.7205  Award Fee Pilot Program.

    (a) Mentors will be eligible to earn a separate award fee 
associated with the provision of developmental assistance to NASA SBIR/
STTR Phase II Prot[eacute]g[eacute]s only. The award fee will be 
assessed at the end of the Mentor-Prot[eacute]g[eacute] agreement 
period.
    (b) The overall developmental assistance performance of NASA 
contractors, in promoting the use of small businesses as 
subcontractors, will be a required evaluation factor in award fee 
plans.
    (c) Evaluation criteria to determine the award fee should include:
    (1) Benefit of the agreement to NASA;
    (2) Active participation in the Program;
    (3) The amount and quality of developmental assistance provided;
    (4) Subcontracts awarded to small businesses and others;
    (5) Success of the prot[eacute]g[eacute]s in increasing their 
business as a result of receiving developmental assistance; and
    (6) Accomplishment of any other activity as related to the mentor-
prot[eacute]g[eacute] relationship.
    (d) The Award Fee Pilot Program is an addition to the credit 
agreement. Participants that are eligible for award fee may also 
receive credit under their individual contract's award fee plan.


1819.7206, 1819.7207, 1819.7208, 1819.7209, 1819,7210, and 
1819.7211  [Removed and reserved]

0
29. Sections 1819.7206, 1819.7207, 1819.7208, 1819.7209, 1819.7210, and 
1819.7211 are removed and reserved.
0
30. In section 1819.7212, paragraph (e) is revised to read as follows:


1819.7212  Reporting requirements.

* * * * *
    (e) The prot[eacute]g[eacute] semiannual report required by 
paragraph (d) must be submitted separately from the Mentor's semiannual 
report submission.
* * * * *


1819.7213 and 1819.7214  [Removed and reserved]

0
31. Remove and reserve Sections 1819.7213 and 1819.7214.


1819.7301  [Amended]

0
32. In section 1819.7301, add ``,as amended.'' at the end of the first 
sentence.

[[Page 57021]]

0
33. Amend section 1819.7302 by:
0
a. Adding the sentences ``Occasionally, deviations from this 
requirement may be approved. Any deviations from this requirement shall 
be approved in writing by the contracting officer after coordination 
with the Agency SBIR Program Manager/Coordinator '' at the end of 
paragraphs (c), (d) and (e);
0
b. Revise paragraph (f) to read as follows:


1819.7302  NASA contract clauses.

* * * * *
    (f) Contracting officers shall insert the clause at 1852.219-85, 
Conditions for Final Payment--SBIR and STTR Contracts, in all Phase I 
and Phase II contract awarded under the Small Business Technology 
Transfer (STTR) Program and the Small Business Innovation Research 
(SBIR) Program established pursuant to Pub. L. 97-219 (The Small 
Business Innovation Development Act of 1982.)

PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
34. The authority citation for part 1832 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

1823.10  [Removed]

0
35. Subpart 1823.10 is removed.
0
36. In Subpart 1823.71, the subpart heading and section 1823.7101 are 
revised to read as follows:


1823.71  Authorization for Radio Frequency Use


1823.7101  Contract clause.

    The contracting officer shall insert the clause at 1852.223-71, 
Authorization for radio Frequency Use, in solicitations and contracts 
calling for developing, producing, constructing, testing, or operating 
a device for which a radio frequency equipment authorization is 
required.

PART 1827--PATENTS, DATA, AND COPYRIGHTS

0
37-38. Part 1827 is revised to read as follows:

PART 1827--PATENTS, DATA, AND COPYRIGHTS

Sec.
1827.000 Scope of part.
Subpart 1827.3--Patent Rights Under Government Contracts
1827.301 Definitions.
1827.302 Policy.
1827.303 Contract clauses.
1827.304 Procedures.
1827.304-1 General.
1827.304-2 Contracts placed by or for other Government agencies.
1827.304-3 Subcontracts.
1827.304-4 Appeals.
1827.305 Administration of the patent rights clauses.
1827.305-3 Securing invention rights acquired by the Government.
Subpart 1827.4--Rights In Data And Copyrights
1827.404 Basic rights in data clause.
1827.404-4 Contractor's release, publication, and use of data.
1827.409 Solicitation provisions and contract clauses.

    Authority:  51 U.S.C. 20113(a).


1827.000  Scope of part.

    This part prescribes NASA policies, procedures, and contract 
clauses pertaining to patents, data, and copyrights. The provisions of 
FAR Part 27 apply to NASA acquisitions unless specifically excepted in 
this part.

Subpart 1827.3--Patent Rights Under Government Contracts


1827.301  Definitions.

    As used in this subpart--
    Administrator means the Administrator of NASA or a duly authorized 
representative.
    Reportable item means any invention, discovery, improvement, or 
innovation of the contractor, whether or not patentable or otherwise 
protectable under Title 35 of the United States Code, made in the 
performance of any work under any NASA contract or in the performance 
of any work that is reimbursable under any clause in any NASA contract 
providing for reimbursement of costs incurred before the effective date 
of the contract. Reportable items include, but are not limited to, new 
processes, machines, manufactures, and compositions of matter, and 
improvements to, or new applications of, existing processes, machines, 
manufactures, and compositions of matter. Reportable items also include 
new computer programs, and improvements to, or new applications of, 
existing computer programs, whether or not copyrightable or otherwise 
protectable under Title 17 of the United States Code.
    Subject invention, in lieu of the definition in FAR 27.301, means 
any reportable item that is or may be patentable or otherwise 
protectable under Title 35 of the United States Code, or any novel 
variety of plant that is or may be protectable under the Plant Variety 
Protection Act (7 U.S.C. 2321, et seq.).


1827.302  Policy.

    (a) Introduction. NASA policy with respect to any invention, 
discovery, improvement, or innovation made in the performance of work 
under any NASA contract or subcontract with other than a small business 
firm or a nonprofit organization and the allocation of related property 
rights is based upon Section 20135 of the National Aeronautics and 
Space Act (51 U.S.C. 20135) (the Act); and, to the extent consistent 
with this statute, the Presidential Memorandum on Government Patent 
Policy to the Heads of Executive Departments and Agencies, dated 
February 18, 1983, and Section 1(b)(4) of Executive Order 12591. NASA 
contractors subject to Section 20135 of the Act shall ensure the prompt 
reporting of reportable items in order to protect the Government's 
interest and to provide the widest practicable and appropriate 
dissemination, early utilization, expeditious development, and 
continued availability for the benefit of the scientific, industrial, 
and commercial communities and the general public.
    (b) Contractor right to elect title.
    (1) For NASA contracts, the contractor right to elect title under 
the FAR only applies to contracts with small businesses and nonprofit 
organizations. For other business entities, see paragraph (2)(v);
    (2)(v) Under any NASA contract with other than a small business or 
nonprofit organization (i.e., contracts subject to Section 20135(b) of 
the Act), title to subject inventions vests in NASA when the 
determinations of Section 20135(b)(1)(A) or (b)(1)(B) have been made. 
The Administrator may grant the contractor a waiver of title in 
accordance with 14 CFR Part 1245.
    (3) Contractor petitions for waiver of title. The Administrator may 
waive all or any part of the rights of the United States with respect 
to any invention or class of inventions made or which may be made in 
the performance of NASA contracts with other than a small business firm 
or a nonprofit organization if the Administrator determines that the 
interests of the United States will be served. The procedures and 
instructions for contractors to submit petitions for waiver of rights 
in subject inventions are provided in the NASA Patent Waiver 
Regulations, 14 CFR Part 1245, Subpart 1, https://www.gpo.gov/fdsys/pkg/CFR-2012-title14-vol5/pdf/CFR-2012-title14-vol5-part1245.pdf. Waiver 
may be requested in advance of contract award for any subject invention 
or class of subject inventions or during contract performance for 
individually identified

[[Page 57022]]

subject inventions reported under the contract. For individual 
identified subject inventions, the petition shall identify each 
invention with particularity (e.g., by NASA's assigned number to the 
Disclosure of Invention and New Technology report or by title and 
inventorship). For advance waivers, the petition shall identify the 
invention or class of inventions that the Contractor believes will be 
made under the contract and for which waiver is being requested. To 
meet the statutory standard of ``any invention or class of 
inventions,'' the petition must be directed to a single invention or to 
inventions directed to a particular process, machine, manufacture, or 
composition of matter, or to a narrowly-drawn, focused area of 
technology. When a waiver of title is granted, the contractor's right 
to title, the rights reserved by the Government, and other conditions 
and obligations of the waiver, such as requirements for reporting and 
filing patent applications on waived inventions, are provided in the 
NASA Patent Waiver Regulations, 14 CFR Part 1245, Subpart 1, and the 
Instrument of Waiver executed under those Regulations.
    (c) Government license. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or nonprofit organization and for which waiver of title 
has been granted, the Administrator shall reserve an irrevocable, 
nonexclusive, nontransferable, royalty-free license for the practice of 
such invention throughout the world by or on behalf of the United 
States or any foreign Government in accordance with any treaty or 
agreement of the United States.
    (e) Utilization reports. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or a nonprofit organization and for which waiver of title 
has been granted, the requirements for utilization reports shall be as 
set forth in the NASA Patent Waiver Regulations, 14 CFR Part 1245, 
Subpart 1, and the Instrument of Waiver executed under those 
Regulations.
    (f) March-in rights. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or a nonprofit organization and for which waiver of title 
has been granted, march-in rights shall be as set forth in the NASA 
Patent Waiver Regulations, 14 CFR Part 1245, Subpart 1, and the 
Instrument of Waiver executed under those Regulations.
    (g) Preference for United States industry. For each subject 
invention made in the performance of work under a NASA contract with 
other than a small business firm or a nonprofit organization and for 
which waiver of title has been granted, waiver of the requirement for 
substantial manufacture in the United States shall be in accordance 
with Title 35 of the United States Code, Section 204.
    (i) Minimum rights to contractor.
    (1) For NASA contracts with other than a small business firm or a 
nonprofit organization, where title to any subject inventions vests in 
NASA, the contractor is normally granted, in accordance with the NASA 
Patent Waiver Regulations, 14 CFR 1245.108, a revocable, nonexclusive, 
royalty-free license in each patent application filed in any country 
and in any resulting patent. The license extends to any of the 
contractor's domestic subsidiaries and affiliates within the corporate 
structure, and includes the right to grant sublicenses of the same 
scope to the extent the contractor was legally obligated to do so at 
the time the contract was awarded. The license and right are 
transferable only with the approval of the Administrator, except when 
transferred to the successor of that part of the contractor's business 
to which the invention pertains.
    (2) The procedures for revoking or modifying the license to a 
contractor that is other than a small business firm or a nonprofit 
organization are described in 14 CFR 1245.108.
    (k) Awards. It is the policy of NASA to consider for a monetary 
award, when referred to the NASA Inventions and Contributions Board in 
accordance with 14 CFR Part 1240, Subpart 1, any subject invention 
reported to NASA in accordance with this subpart, and for which an 
application for patent has been filed.


1827.303  Solicitation Provisions and Contract clauses.

    (a)(1) The contracting officer shall insert the provision at 
1852.227-84, Patent Rights Clauses, in solicitations for experimental, 
developmental, or research work to be performed in the United States 
when the eventual awardee may be a small business or a nonprofit 
organization.
    (b)(1) When the clause at FAR 52.227-11 is included in a 
solicitation or contract, it shall be modified as set forth at 
1852.227-11.
    (i) To qualify for the clause at FAR 52.227-11, a prospective 
contractor shall be required to represent itself as either a small 
business firm or a nonprofit organization. If the contracting officer 
has reason to question the size or nonprofit status of the prospective 
contractor, the contracting officer will follow the procedures at FAR 
27.304-1(a).
    (iii) The contracting officer shall complete paragraph (j) of the 
clause at FAR 52.227-11 with the following: Communications and 
information submissions required by this clause will be made to the 
individuals identified in the clause at 1852.227-72, Designation of New 
Technology Representative and Patent Representative.
    (iv) See also paragraph (d)(3) of this section.
    (6) Alternate IV to 52.227-11 is not used in NASA contracts. See 
instead 1827.303(b)(1).
    (7) The contracting officer shall consult with the center patent or 
intellectual property counsel regarding the use of Alternate V in 
contracts for the performance of services at a NASA installation when a 
contractor is directed to fulfill the Government's obligations under a 
Cooperative Research and Development Agreement (CRADA) authorized by 15 
U.S.C. 3710a. Alternate V may be included in, or added to, the contract 
when it is contemplated that a Contractor will be directed to fulfill 
NASA's obligations under a CRADA, but should be added prior to the 
contractor performing work under the CRADA.
    (d)(1) The contracting officer shall insert the clause at 1852.227-
70, New Technology-Other than a Small Business Firm or Nonprofit 
Organization, in all NASA solicitations and contracts with other than a 
small business firm or a nonprofit organization (i.e., those subject to 
section 21035(b) of the Act), if the contract is to be performed in the 
United States, and has as a purpose the performance of experimental, 
developmental, research, design, or engineering work. Contracts for any 
of the following purposes may be considered to involve the performance 
of work of the type described above (these examples are illustrative 
and not all inclusive):
    (i) Conduct of basic or applied research.
    (ii) Development, design, or manufacture for the first time of any 
machine, article of manufacture, or composition of matter to satisfy 
NASA's specifications or special requirements.
    (iii) Development of any process or technique for attaining a NASA 
objective not readily attainable through the practice of a previously 
developed process or technique.
    (iv) Testing of, evaluation of, or experimentation with a machine, 
process, concept, or technique to determine whether it is suitable or

[[Page 57023]]

could be made suitable for a NASA objective.
    (v) Construction work or architect-engineer services having as a 
purpose the performance of experimental, developmental, or research 
work or test and evaluation studies involving such work.
    (vi) The operation of facilities or the coordination and direction 
of the work of others, if these activities involve performing work of 
any of the types described in paragraphs (i) through (v) of this 
section.
    (2) The contracting officer shall insert the provision at 1852.227-
71, Requests for Waiver of Rights to Inventions, in all solicitations 
that include the clause at 1852.227-70, New Technology--Other than a 
Small Business Firm or Nonprofit Organization (see subparagraph (1) of 
this paragraph (d)).
    (3) The contracting officer shall insert the clause at 1852.227-72, 
Designation of New Technology Representative and Patent Representative, 
in all solicitations and contracts containing either of the clauses at 
FAR 52.227-11, Patent Rights--Ownership by the Contractor, or 1852.227-
70, New Technology--Other than a Small Business Firm or Nonprofit 
Organization (see subparagraph (1) of this paragraph (d)). It may also 
be inserted, upon consultation with the center patent or intellectual 
property counsel, in solicitations and contracts using another patent 
rights clause. The center New Technology and Patent Representatives are 
identified at https://prod.nais.nasa.gov/portals/pl/
newtechpocs.html.
    (e)(1) When work is to be performed outside the United States by 
contractors that are not domestic firms, the clause at 1852.227-85, 
Invention Reporting and Rights--Foreign, shall be used unless the 
contracting officer determines, with concurrence of the center patent 
or intellectual property counsel, that the objectives of the contract 
would be better served by use of the clause at FAR 52.227-13, Patent 
Rights--Ownership by the Government. For this purpose, the contracting 
officer may presume that a contractor is not a domestic firm unless it 
is known that the firm is not foreign owned, controlled, or influenced. 
(See FAR 27.304-3 regarding subcontracts with U.S. firms.)
    (2) When one of the conditions in FAR 27.303(e)(1)(i) through (iv) 
is met, the contracting officer shall consult with the center patent or 
intellectual property counsel to determine the appropriate clause.


1827.304  Procedures.


1827.304-1   General.

    (b)(1) Exceptions. In any contract with other than a small business 
firm or nonprofit organization, the NASA Patent Waiver Regulations, 14 
CFR Part 1245, Subpart 1, shall apply.
    (c) Greater rights determinations. In any contract with other than 
a small business firm or a nonprofit organization and with respect to 
which advance waiver of rights has not been granted (see 
1827.302(b)(3)), the contractor (or an employee-inventor of the 
contractor after consultation with the contractor) may request waiver 
of title to an individual identified subject invention pursuant to the 
NASA Patent Waiver Regulations, 14 CFR Part 1245, Subpart 1.
    (d) Retention of rights by inventor. The NASA Patent Waiver 
Regulations, 14 CFR Part 1245, Subpart 1, apply for any invention made 
in the performance of work under any contract with other than a small 
business firm or a nonprofit organization.
    (f) Revocation or modification of contractor's minimum rights. For 
contracts with other than a small business firm or a nonprofit 
organization, revocation or modification of the contractor's license 
rights in subject inventions made and reported under the contract shall 
be in accordance with 14 CFR 1245.108 (see 1827.302(i)(2)).
    (g) Exercise of march-in rights. For contracts with other than a 
small business firm or a nonprofit organization, the procedures for the 
exercise of march-in rights shall be as set forth in the NASA Patent 
Waiver Regulations, 14 CFR Part 1245, Subpart 1.
    (h) Licenses and assignments under contracts with nonprofit 
organizations. The Headquarters Agency Counsel for Intellectual 
Property (ACIP) is the approval authority for assignments. Contractor 
requests should be made to the Patent Representative designated in the 
clause at 1852.227-72 and forwarded, with recommendation of the Patent 
Representative, to the ACIP for approval.


1827.304-2  Contracts placed by or for other Government agencies.

    (a)(3)(i) When a contract is placed for another agency with a small 
business or nonprofit organization and the agency does not request the 
use of a specific patent rights clause, the contracting officer shall 
use the clause at FAR 52.227-11, Patent Rights--Ownership by the 
Contractor as modified by 1852.227-11 (see 1827.303(b)(1)).
    (ii) When a contract is placed for another agency with other than a 
small business or nonprofit organization, the contracting officer, in 
accordance with Section 20135 of the Act, shall use the clause at 
1852.227-70, New Technology--Other than a Small Business Firm or 
Nonprofit Organization (see 1827.303(d)(1)).
    (iii) When work is to be performed outside the United States by 
contractors that are not domestic firms, the contracting officer shall 
use one of the clause described in 1827.303(e)(1).


1827.304-3  Subcontracts.

    (a) Unless otherwise authorized or directed by the contracting 
officer, contractors awarding subcontracts at any tier shall select and 
include in the subcontracts one of the clauses identified in 
subparagraphs (a)(1) or (2) of this section. At all tiers, the 
applicable clause identified below shall be modified to identify the 
parties as follows: References to the Government are not changed, and 
in all references to the Contractor the subcontractor is substituted 
for the Contractor so that the subcontractor has all rights and 
obligations of the Contractor in the clause.
    (1) The clause at 1852.227-70, New Technology--Other than a Small 
Business Firm or Nonprofit Organization, shall be used in any 
subcontract with other than a small business firm or a nonprofit 
organization if a purpose of the subcontract is the performance of 
experimental, developmental, research, design, or engineering work of 
any of the types described in 1827.303(d)(1).
    (2) The clause at FAR 52.227-11, Patent Rights--Ownership by the 
Contractor, modified by 1852.227-11 (see 1827.303(b)(1)), shall be used 
in any subcontract with a small business firm or a nonprofit 
organization if a purpose of the subcontract is the performance of 
experimental, developmental, or research work.


1827.304-4  Appeals.

    FAR 27.304-4 shall apply unless otherwise provided in the NASA 
Patent Waiver Regulations, 14 CFR Part 1245, Subpart 1.


1827.305-3  Securing invention rights acquired by the Government.

    When the Government acquires the entire right to, title to, and 
interest in an invention under the clause at 1852.227-70, New 
Technology--Other than a Small Business Firm or Nonprofit Organization, 
a determination of title is to be made in accordance with Section 
20135(b) of the Act (51 U.S.C. 20135(b)),

[[Page 57024]]

and reflected in appropriate instruments executed by NASA Administrator 
and forwarded to the contractor by the contracting officer.

Subpart 1827.4--Rights in Data and Copyrights


1827.404  Basic rights in data clause.


1827.404-4  Contractor's release, publication, and use of data.

    (b)(1) NASA's intent is to ensure the most expeditious 
dissemination of computer software developed by it or its contractor. 
Accordingly, when the clause at FAR 52.227-14, Rights in Data--General, 
is modified by 1852.227-14 (see 1827.409(b)(1)), the contractor shall 
not assert claim to copyright, publish, or release to others computer 
software first produced in the performance of a contract without the 
contracting officer's prior written permission. The prohibition on 
``release to others'' does not prohibit release to another Federal 
Agency for its use or its contractors' use, as long as any such release 
is consistent with any restrictive markings on the software. Any 
restrictive markings on the software shall take precedence over the 
aforementioned release. Any such release to a Federal Agency in 
accordance with this paragraph shall limit use to the Federal Agency or 
its contractors for Government purposes only.
    (2) The contracting officer may, in consultation with the center 
patent or intellectual property counsel, grant the contractor 
permission to assert claim to copyright, publish, or release to others 
computer software first produced in the performance of a contract if:
    (i) The contractor has identified an existing commercial computer 
software product line or proposes a new one and states a positive 
intention of incorporating identified computer software first produced 
under the contract into that line, either directly itself or through a 
licensee;
    (ii) The contractor has identified an existing open source software 
project or proposes a new one and states a positive intention of 
incorporating identified computer software first produced under the 
contract into that project, or has been instructed by the Agency to 
incorporate software first produced under the contract into an open 
source software project or otherwise release the software as open 
source software;
    (iii) The contractor has made, or will be required to make, 
substantial contributions to the development of the computer software 
by co-funding or by cost-sharing, or by contributing resources 
(including but not limited to agreement to provide continuing 
maintenance and update of the software at no cost for Governmental 
use); or
    (iv) The concurrence of the Agency Counsel for Intellectual 
Property, or designee, is obtained.
    (c)(1) The contractor's request for permission in accordance with 
1827.404-4(b) may be made either before contract award or during 
contract performance.
    (2)(i) If the basis for permitting the assertion under 1827.404-
4(b)(2) is subsection (i), then the permission shall be granted by a 
contract modification prepared by the contracting officer in 
consultation with the Center patent or intellectual property counsel 
that contains appropriate assurances that the computer software will be 
incorporated into an existing or proposed new commercial computer 
software product line within a specified reasonable time, with 
contingencies enabling the Government to obtain the right to distribute 
the software for commercial use, including the right to obtain 
assignment of copyright where applicable, in order to prevent the 
computer software from being suppressed or abandoned by the contractor.
    (3) When any permission to copyright is granted, any copyright 
license retained by the Government shall be of the same scope as set 
forth in subparagraph (c)(1) of the clause at FAR 52.227-14 and without 
any obligation of confidentiality on the part of the Government unless, 
in accordance with 1827.404-4(b)(2)(iii), the contributions of the 
Contractor are considered ``substantial'' for the purposes of FAR 
27.408 (i.e., approximately 50 percent), in which case rights 
consistent with FAR 27.408 may be negotiated for the computer software 
in question.
    (d) If the contractor has not been granted permission to assert 
claim to copyright, paragraph (d)(4)(ii) of the clause at FAR 52.227-
14, Rights in Data--General (as modified by 1852.227-14) enables NASA 
to direct the contractor to assert claim to copyright in computer 
software first produced under the contract and to assign, or obtain the 
assignment of, such copyright to the Government or its designated 
assignee. The contracting officer may, in consultation with the center 
patent or intellectual property counsel, so direct the contractor in 
situations where copyright protection is considered necessary in 
furtherance of Agency mission objectives, needed to support specific 
Agency programs, or necessary to meet statutory requirements.


1827.409  Solicitation provisions and contract clauses.

    (b)(1) When the clause at FAR 52.227-14, Rights in Data--General, 
is included in a solicitation or contract, it shall be modified as set 
forth at 1852.227-14. In contracts for basic or applied research to be 
performed solely by universities and colleges, the contracting officer 
shall consult with the center patent or intellectual property counsel 
regarding the addition of subparagraph (4) as set forth at 1852.227-14 
to paragraph (d) of the clause at FAR 52.227-14 and they will consider 
the guidance provided at FAR 27.404-4.
    (2) The contracting officer, with the concurrence of the center 
patent or intellectual property counsel, is the approval authority for 
use of Alternate I of the clause at FAR 52.227-14. An example of its 
use is where the principal purpose of the contract (such as a contract 
for basic or applied research) does not involve the development, use, 
or delivery of items, components, or processes that are intended to be 
acquired for use by or for the Government (either under the contract in 
question or under any anticipated follow-on contracts relating to the 
same subject matter).
    (3) The contracting officer shall review the disclosure purposes 
listed in FAR 27.404-2(c)(1)(i)-(v) and, in consultation with the 
center patent or intellectual property counsel, determine which 
disclosure purposes apply based on the nature of the acquisition, and 
add them to paragraph (g)(3) of Alternate II of the clause at FAR 
52.227-14, Rights in Data--General. If none apply, the CO shall insert 
``none''. Additions to those specific purposes listed may be made only 
with the approval of the procurement officer and concurrence of the 
center patent or intellectual property counsel.
    (4) The contracting officer shall consult with the center patent or 
intellectual property counsel regarding the acquisition of restricted 
computer software with greater or lesser rights than those set forth in 
Alternate III of the clause at FAR 52.227-14, Rights in Data--General. 
Where it is impractical to actually modify the notice of Alternate III, 
such greater or lesser rights may be indicated by express reference in 
a separate clause in the contract or by a collateral agreement that 
addresses the change in the restricted rights.
    (5) The contracting officer, with the concurrence of the center 
patent or intellectual property counsel, is the approval authority for 
the use of Alternate IV in any contract other than a contract for basic 
or applied research to be performed solely by a college or

[[Page 57025]]

university (but not for the management or operation of Government 
facilities). See the guidance at FAR 27.404-3(a)(3).
    (d) The clause at 52.227-16, Additional Data Requirements, shall be 
used in all solicitations and contracts involving experimental, 
developmental, research, or demonstration work (other than basic or 
applied research to be performed under a contract solely by a 
university or college when the contract amount will be $500,000 or 
less), unless after consultation between the Contracting Officer and 
the center patent or intellectual property counsel a determination is 
made otherwise.
    (h) Normally the clause at 52.227-20, Rights in Data--SBIR Program, 
is the only data rights clause used in SBIR contracts. However, if 
during the performance of an SBIR contract (Phase I, Phase II, or Phase 
III) the need arises for NASA to obtain delivery of limited rights data 
or restricted computer software as defined in the clause at FAR 52.227-
20, and the contractor agrees to such delivery, the limited rights data 
or restricted computer software may be acquired by modification of the 
contract (for example, by adding the clause at FAR 52.227-14 with any 
appropriate Alternates and making it applicable only to the limited 
rights data or restricted computer software to be delivered), using the 
rights and related restrictions as set forth in FAR 27.404-2 as a 
guide.
    (m)(1) The contracting officer, shall consult with the center 
patent or intellectual property counsel and the installation software 
release authority to determine when to use the clause at 1852.227-88, 
Government-furnished computer software and related technical data.
    (2) The clause may be included in, or added to, the contract when 
it is contemplated that computer software and related technical data 
will be provided to the contractor as Government-furnished information 
for use in performing the contract.

PART 1828--BONDS AND INSURANCE

0
39. The authority citation for part 1828 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

Subpart 1828.1  [Removed]

0
40. Remove Subpart 1828.1.
0
41. In section 1828.311-1, the introductory text is revised to read as 
follows:


1828.311-1   Contract clause.

    The contracting officer shall insert the clause at FAR 52.228-7, 
Insurance-Liability to Third Persons, in solicitations and contracts, 
other than those for construction contracts and those for architect-
engineer services, when a cost-reimbursement contract is contemplated 
unless--
* * * * *

PART 1831--CONTRACTOR COST PRINCIPLES AND PROCEDURES

0
42. The authority citation for part 1831 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

1831.205-671  [Amended]

0
43. Section 1831.205-671 is amended by removing the phrase ``in excess 
of $500,000'' and replacing it with ``expected to exceed the threshold 
for requiring certified cost and pricing data as set forth in FAR 
15.403-4.''

PART 1832--CONTRACT FINANCING

0
44. The authority citation for part 1832 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
45. Section 1832.705-270, paragraph (a) is revised to read as follows:


1832.705-270   NASA clauses for limitation of cost or funds.

    (a) The contracting officer shall insert the clause at 1852.232-77, 
Limitation of Funds (Fixed-Price Contract), in solicitations and 
contracts for fixed-price, incrementally-funded contracts or task 
orders.
* * * * *
0
46. In section 1832.1110, remove and reserve paragraph (a).

PART 1837--SERVICE CONTRACTING

0
47. The authority citation for part 1837 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

1837.203-70, 1837.203-71, 1837.203-72  [Removed]

0
48. Sections 1837.203-70, 1837.203-71, and 1837.203-72 are removed.

PART 1842--CONTRACT ADMINISTRATION

0
49. The authority citation for part 1842 continues to read as follows:

    Authority:  51 U.S.C. 20113(a).

0
50. Section 1842.271 is removed.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
51. The authority citation for part 1852 continues to read as follows:

    Authority: 51 U.S.C. 20113(a).

1852.209-72  [Removed and reserved]

0
52. Section 1852.209-72 is removed and reserved.


1852.216-88  [Amended]

0
53. Section 1852.216-88 is amended as follow:
0
a. remove the words ``hardware'' and ``delivered'' in paragraph (a);
0
b. remove the word ``hardware'' and the second sentence in subparagraph 
(a)(1);
0
c. remove the word ``hardware'' in paragraph (c);
0
d. remove the word ``hardware'' in paragraph (d);
0
e. remove the word ``hardware'' in paragraph (f); and
0
f. add the word ``descriptor'' in paragraph (g)(1) between 
``numbers(s)'' and ``and/or nomenclature''.


1852.217-70  [Removed and reserved]

0
54. Remove and reserve section 1852.217-70.


1852.217-71  [Amended]

0
55. In the introductory text in section 1852.217-71, the reference 
1817.7302(a) is revised to read as 1817.7002(a), and the last sentence 
in paragraph (e) is removed.
0
56. Sections 1852.219-11 and 1852.219-18 are added to read as follows:


1852.219-11   Special 8(a) Contract Conditions.

    As prescribed in 1819.811-3(a), insert the following clause in lieu 
of 52.219-11:

Special 8(a) Contract Conditions

(XX/XX)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) contractor pursuant to a 
Partnership Agreement between the Small Business Administration 
(SBA) and the National Aeronautics and Space Administration. 
Accordingly, the SBA is not a signatory to this contract. SBA does 
retain responsibility for 8(a) certification, 8(a) eligibility 
determinations and related issues, and providing counseling and 
assistance to the 8(a) contractor under the 8(a) program. The 
cognizant SBA district office is:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------

(insert name and address of cognizant SBA office)

    (b) The contracting activity is responsible for administering 
the contract and taking any action on behalf of the Government under 
the terms and conditions of the contract; provided, however, that 
the contracting activity shall give advance notice to the SBA before 
it issues a final notice terminating performance, either in whole or 
in part, under the contract. The contracting activity

[[Page 57026]]

shall also coordinate with the SBA prior to processing any novation 
agreement. The contracting activity may assign contract 
administration functions to a contract administration office.
    (c) The contractor agrees to notify the Contracting Officer, 
simultaneous with its notification to SBA (as required by SBA's 8(a) 
regulations), when the owner or owners upon whom 8(a) eligibility is 
based plan to relinquish ownership or control of the concern. 
Consistent with Section 407 of Public Law 100-656, transfer of 
ownership or control shall result in termination of the contract for 
convenience, unless SBA waives the requirement for termination prior 
to the actual relinquishing of ownership and control.


(End of clause)


1852.219-18  Notification of Competition Limited to Eligible 8(a) 
Concerns.

    As prescribed in 1819.811-3(d), insert the following clause:

Notification of Competition Limited to Eligible 8(a) Concerns

(XX/XX)

    (a) Offers are solicited only from small business concerns 
expressly certified by the Small Business Administration (SBA) for 
participation in the SBA's 8(a) Program and which meet the following 
criteria at the time of submission of offer--
    (1) The Offeror is in conformance with the 8(a) support 
limitation set forth in its approved business plan; and
    (2) The Offeror is in conformance with the Business Activity 
Targets set forth in its approved business plan or any remedial 
action directed by the SBA.
    (b) By submission of its offer, the Offeror represents that it 
meets all of the criteria set forth in paragraph (a) of this clause.
    (c) Any award resulting from this solicitation will be made 
directly by the Contracting Officer to the successful 8(a) offeror 
selected through the evaluation criteria set forth in this 
solicitation.
    (d)(1) Agreement. A small business concern submitting an offer 
in its own name shall furnish, in performing the contract, only end 
items manufactured or produced by small business concerns in the 
United States or its outlying areas. If this procurement is 
processed under simplified acquisition procedures and the total 
amount of this contract does not exceed $25,000, a small business 
concern may furnish the product of any domestic firm. This paragraph 
does not apply to construction or service contracts.
    (2) The 
[insert name 
of SBA's contractor] will notify the 
 [insert name 
of contracting agency] Contracting Officer in writing immediately 
upon entering an agreement (either oral or written) to transfer all 
or part of its stock or other ownership interest to any other party.


(End of clause)


1852.219-74  [Removed and reserved]

0
57. Remove and reserve section 1852.219-74.
0
58. Section 1852.219-75 is revised to read as follows:


1852.219-75  Individual Subcontracting Reports.

    As prescribed in 1819.708-70(b), insert the following clause:

Individual Subcontracting Reports

(XX/XX)

    When submitting Individual Subcontracting Reports in eSRS in 
accordance with FAR 52.219-9(l)(1), the contractor shall enter goals 
as a percentage of total contract value as well as a percentage of 
total subcontract dollars.


(End of clause)


1852.219-76  [Removed and reserved]

0
59. Remove and reserve section 1852.219-76.


1852.219-77  [Amended]

0
60. In section 1852.219-77, (MAY 2009) is removed and (XX/XX) is added 
in its place, and remove the word ``certified'' in the second sentence 
of paragraph (b)(2).
0
61. Section 1852.219-79 is amended as follows:
0
a. The words (MAY 200) are removed and (XX/XX) is added in its place,
0
b. In the second sentence of paragraph (a), ``NASA SBIR'' is revised to 
read ``NASA SBIR/STTR''.
0
c. Add paragraph (b)(5) to read as follows:
1852.219-79 [AGENCY TO INSERT HEADER]
* * * * *
    (b) * * *
    (5) To what extent the mentor contributed to advancing the 
prot[eacute]g[eacute]'s technical readiness level.
0
62. Section 1852.223-71 is revised to read as follows:


1852.223-71  Authorization for Radio Frequency Use.

    As prescribed in 1823.7101, insert the following clause:

Authorization for Radio Frequency Use

(XX/XX)

    (a) The contractor or subcontractor shall obtain equipment 
authorization of use of radio frequencies required in support of 
this contract following the procedures in NPR 2570.1, NASA Radio 
Frequency (RF) Spectrum Management Manual.
    (b) For any experimental, developmental, or operational 
equipment for which the appropriate equipment frequency 
authorization has not been made, the Contractor or subcontractor 
shall provide the technical and operating characteristics of the 
proposed electromagnetic radiating device to the NASA Center 
Facility Spectrum Manager during the initial planning, experimental, 
or developmental phase of contractual performance.
    (c) This clause, including this paragraph (c), shall be included 
in all subcontracts that call for developing, producing, testing, or 
operating a device for which a radio frequency authorization is 
required.


(End of clause)


1852.223-73  [Amended]

0
63. Section 1852.223-73 is amended as follows:
0
a. Remove (NOVEMBER 2004) and add (DATE) in its place.
0
b. In paragraph (a), the reference ``NPR 8715.3'' is revised to read 
``NASA General Safety Program Requirements Manual, Appendix E''.
0
c. In Alternate, the reference ``NPR 8715.3'' is revised to read ``NASA 
General Safety Program Requirements Manual, Appendix E''.
0
64. Sections 1852.227-11 through 1852.227-87 are revised and section 
1852.227-88 is added to read as follows:


1852.227-11  Patent Rights--Ownership by the Contractor (DATE).

    As prescribed at 1827.303(b)(1), modify the clause at FAR 52.227-11 
by: (1) Adding the following subparagraphs (5) and (6) to paragraph (c) 
of the basic clause; (2) by adding the following subparagraph (iii) to 
paragraph (e)(1) of the basic clause; (3) by using the following 
paragraph (j) in lieu of paragraph (j) of the basic clause; and (4) by 
using the following subparagraph (2) in lieu of subparagraph (k)(2) of 
the basic clause:
    (5) The Contractor may use whatever format is convenient to 
disclose subject inventions required in subparagraph (c)(1). NASA 
prefers that the contractor use either the electronic or paper version 
of NASA Form 1679, Disclosure of Invention and New Technology 
(Including Software) to disclose subject inventions. Both the 
electronic and paper versions of NASA Form 1679 may be accessed at the 
electronic New Technology Reporting Web site https://invention.nasa.gov.
    (6) In addition to the above, the Contractor shall provide the New 
Technology Representative identified in this contract at 1852.227-72 
the following:
    (i) An interim new technology summary report every 12 months (or 
such longer period as the Contracting Officer may specify) from the 
date of the contract, listing all subject inventions required to be 
disclosed during the period or certifying that there were none.
    (ii) A final new technology summary report, within 3 months after 
completion of the contracted work,

[[Page 57027]]

listing all subject inventions or certifying that there were none.
    (iii) Upon request, the filing date, serial number and title, a 
copy of the patent application, and patent number and issue date for 
any subject invention in any country in which the contractor has 
applied for patents.
    (iv) An irrevocable power to inspect and make copies of the patent 
application file, by the Government, when a Federal Government employee 
is a co-inventor.


(End of addition)

    (iii) The Contractor shall, through employee agreements or other 
suitable Contractor policy, require that its employees ``will assign 
and do hereby assign'' to the Contractor all right, title, and interest 
in any subject invention under this Contract.


(End of addition)

    (j) For the purposes of this clause, communications between the 
Contractor and the Government shall be as specified in the NASA FAR 
Supplement at 1852.227-72, Designation of New Technology Representative 
and Patent Representative.


(End of addition)

    (2) The Contractor shall include the clause in the NASA FAR 
Supplement at 1852.227-70, New Technology--Other than a Small Business 
Firm or Nonprofit Organization, suitably modified to identify the 
parties, in all subcontracts, regardless of tier, for experimental, 
developmental, research, design, or engineering work to be performed by 
other than a small business firm or nonprofit organization. At all 
tiers, the New Technology--Other than a Small Business Firm or 
Nonprofit Organization clause shall be modified to identify the parties 
as follows: References to the Government are not changed, and in all 
references to the Contractor the subcontractor is substituted for the 
Contractor so that the subcontractor has all rights and obligations of 
the Contractor in the clause.


(End of substitution)


1852.227-14  Rights in Data--General (DATE).

    As prescribed in 1827.409(b)(1), modify the clause at FAR 52.227-14 
by: (1) Adding the following subparagraph (iv) to paragraph (c)(1) of 
the basic clause; (2) by adding the following provision to the end of 
Alternate IV if used in lieu of paragraph (c)(1) of the basic clause; 
and (3) by adding subparagraph (4) to paragraph (d) of the basic 
clause:
    (iv) The contractor shall mark each scientific and technical 
article based on or containing data first produced in the performance 
of this contract and submitted for publication in academic, technical 
or professional journals, symposia proceedings or similar works with a 
notice, similar in all material respects to the following, on the cover 
or first page of the article, reflecting the Government's non-exclusive 
worldwide license in the copyright.

Government Rights Notice

    This work was authored by employees of [insert the name of the 
Contractor] under Contract No. [insert contract number] with the 
National Aeronautics and Space Administration. The United States 
Government retains and the publisher, by accepting the article for 
publication, acknowledges that the United States Government retains a 
non-exclusive, paid-up, irrevocable, worldwide license to reproduce, 
prepare derivative works, distribute copies to the public, and perform 
publicly and display publicly, or allow others to do so, for United 
States Government purposes. All other rights are reserved by the 
copyright owner.


(End of Notice)

(End of addition)

    The contractor shall mark each scientific and technical article 
based on or containing data first produced in the performance of this 
contract and submitted for publication in academic, technical or 
professional journals, symposia proceedings or similar works with a 
notice, similar in all material respects to the following, on the cover 
or first page of the article, reflecting the Government's non-exclusive 
worldwide license in the copyright.

Government Rights Notice

    This work was authored by employees of [insert the name of the 
Contractor] under Contract No. [insert contract number] with the 
National Aeronautics and Space Administration. The United States 
Government retains and the publisher, by accepting the article for 
publication, acknowledges that the United States Government retains a 
non-exclusive, paid-up, irrevocable, worldwide license to reproduce, 
prepare derivative works, distribute copies to the public, and perform 
publicly and display publicly, or allow others to do so, for United 
States Government purposes. All other rights are reserved by the 
copyright owner.

(End of Notice)

(End of addition)
    (4)(i) The Contractor agrees not to assert claim to copyright, 
publish or release to others any computer software first produced in 
the performance of this contract unless the Contracting Officer 
authorizes through a contract modification.
    (ii) The prohibition on ``release to others'', as set forth in 
(d)(4)(i), does not prohibit release to another Federal Agency for its 
use or its contractors' use, as long as any such release is consistent 
with any restrictive markings on the software. Any restrictive markings 
on the software shall take precedence over the aforementioned release. 
Any release to a Federal Agency shall limit use to the Federal Agency 
or its contractors for Government purposes only. Any other release 
shall require the Contracting Officer's prior written permission.
    (iii) If the Government desires to obtain copyright in computer 
software first produced in the performance of this contract and 
permission has not been granted as set forth in paragraph (d)(4)(i) of 
this clause, the Contracting Officer may direct the contractor to 
assert, or authorize the assertion of, a claim to copyright in such 
data and to assign, or obtain the assignment of, such copyright to the 
Government or its designated assignee.

(End of addition)


1852.227-70  New Technology--Other Than a Small Business Firm or 
Nonprofit Organization.

    As prescribed in 1827.303(d)(1), insert the following clause:

New Technology

(XX/XX)

    (a) Definitions. As used in this clause--
    Administrator means the Administrator of the National 
Aeronautics and Space Administration (NASA) or duly authorized 
representative.
    Made means--
    (1) When used in relation to any invention other than a plant 
variety, the conception or first actual reduction to practice of the 
invention; or
    (2) When used in relation to a plant variety, that the 
Contractor has at least tentatively determined that the variety has 
been reproduced with recognized characteristics.
    Nonprofit organization means a domestic university or other 
institution of higher education or an organization of the type 
described in section 501(c)(3) of the Internal Revenue Code of 1954 
(26 U.S.C. 501(c)) and exempt from taxation under section 501(a) of 
the Internal Revenue Code (26 U.S.C. 501(a)), or any domestic 
nonprofit scientific or educational organization qualified under a 
State nonprofit organization statute.
    Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or 
method; or to operate, in the case of a machine or system; and, in 
each case, under

[[Page 57028]]

such conditions as to establish that the invention is being utilized 
and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    Reportable item means any invention, discovery, improvement, or 
innovation of the contractor, whether or not patentable or otherwise 
protectable under Title 35 of the United States Code, made in the 
performance of any work under any NASA contract or in the 
performance of any work that is reimbursable under any clause in any 
NASA contract providing for reimbursement of costs incurred before 
the effective date of the contract. Reportable items include, but 
are not limited to, new processes, machines, manufactures, and 
compositions of matter, and improvements to, or new applications of, 
existing processes, machines, manufactures, and compositions of 
matter. Reportable items also include new computer programs, and 
improvements to, or new applications of, existing computer programs, 
whether or not copyrightable or otherwise protectible under Title 17 
of the United States Code.
    Small business firm means a domestic small business concern as 
defined at 15 U.S.C. 632 and implementing regulations of the 
Administrator of the Small Business Administration. (For the purpose 
of this definition, the criteria and size standard adopted in the 
FAR Subpart 2.1 definitions for ``small business concern'' and for 
``small business subcontractor'' will be used.)
    Subject invention means any reportable item which is or may be 
patentable or otherwise protectible under Title 35 of the United 
States Code, or any novel variety of plant that is or may be 
protectible under the Plant Variety Protection Act (7 U.S.C. 2321, 
et seq.).
    (b) Allocation of principal rights.
    (1) Presumption of title.
    (i) Any reportable item that the Administrator considers to be a 
subject invention shall be presumed to have been made in the manner 
specified in paragraph (1)(A) or (1)(B) of Section 20135(b) of the 
National Aeronautics and Space Act (51 U.S.C. 20135(b)) (hereinafter 
``the Act''), and the above presumption shall be conclusive unless 
at the time of reporting the reportable item in accordance with 
paragraph (e)(2) of this clause the Contractor submits to the 
Contracting Officer a written statement, containing supporting 
details, demonstrating that the reportable item was not made in the 
manner specified in the Act.
    (ii) Regardless of whether title to a given subject invention 
would otherwise be subject to an advance waiver or is the subject of 
a petition for waiver as described in paragraph (b)(3) of this 
clause, the Contractor may nevertheless file the statement described 
in paragraph (b)(1)(i) of this clause. The Administrator will review 
the information furnished by the Contractor in any such statement 
and any other available information relating to the circumstances 
surrounding the making of the subject invention and will notify the 
Contractor whether the Administrator has determined that the subject 
invention was made in the manner specified in paragraph (1)(A) or 
(1)(B) of Section 20135(b) of the Act.
    (2) Property rights in subject inventions. Each subject 
invention for which the presumption of paragraph (b)(1)(i) of this 
clause is conclusive or for which there has been a determination 
that it was made in the manner specified in paragraph (1)(A) or 
(1)(B) of Section 20135(b) of the Act shall be the exclusive 
property of the United States as represented by NASA unless the 
Administrator waives all or any part of the rights of the United 
States, as provided in paragraph (b)(3) of this clause.
    (3) Waiver of rights.
    (i) Section 20135(g) of the Act provides for the promulgation of 
regulations by which the Administrator may waive all or any part of 
the rights of the United States with respect to any invention or 
class of inventions made or that may be made under conditions 
specified in paragraph (1)(A) or (1)(B) of Section 20135(b) of the 
Act. The promulgated NASA Patent Waiver Regulations, 14 CFR Part 
1245, Subpart 1, provide procedures for the Contractor to submit 
petitions (requests) for waiver of rights and guidance for NASA in 
acting on petitions for such waiver of rights.
    (ii) As provided in 14 CFR 1245, Subpart 1, the Contractor may 
petition, either prior to execution of the contract or within 30 
days after execution of the contract, for advance waiver of rights 
to any invention or class of inventions that may be made under a 
contract. If such a petition is not submitted, or if after 
submission it is denied, the Contractor (or an employee inventor of 
the Contractor) may petition for waiver of rights to an identified 
subject invention within eight months of first disclosure of 
invention in accordance with paragraph (e)(2) of this clause, or 
within such longer period as may be authorized in accordance with 14 
CFR 1245.105.
    (c) Minimum rights reserved by the Government.
    (1) With respect to each subject invention for which a waiver of 
rights has been granted, the Government reserves--
    (i) An irrevocable, nonexclusive, nontransferable, royalty-free 
license for the practice of such invention throughout the world by 
or on behalf of the United States or any foreign government in 
accordance with any treaty or agreement with the United States; and
    (ii) Such other rights as stated in 14 CFR 1245.107.
    (2) Nothing contained in this paragraph (c) shall be considered 
to grant to the Government any rights with respect to any invention 
other than a subject invention.
    (d) Minimum rights to the Contractor.
    (1) The Contractor is hereby granted a revocable, nonexclusive, 
royalty-free license in each patent application filed in any country 
on a subject invention in which the Government has title and in any 
resulting patent, unless the Contractor fails to disclose the 
subject invention within the times specified in paragraph (e)(2) of 
this clause. The Contractor's license extends to its domestic 
subsidiaries and affiliates, if any, within the corporate structure 
of which the Contractor is a party and includes the right to grant 
sublicenses of the same scope to the extent the Contractor was 
legally obligated to do so at the time the contract was awarded. The 
license is transferable only with the approval of the Administrator 
except when transferred to the successor of that part of the 
Contractor's business to which the invention pertains.
    (2) The Contractor's domestic license may be revoked or modified 
by the Administrator to the extent necessary to achieve expeditious 
practical application of the subject invention pursuant to an 
application for an exclusive license submitted in accordance with 37 
CFR Part 404, Licensing of Government Owned Inventions. The 
Contractor's license will not be revoked in that field of use or the 
geographical areas in which the Contractor has achieved practical 
application and continues to make the benefits of the invention 
reasonably accessible to the public. The license in any foreign 
country may be revoked or modified at the discretion of the 
Administrator to the extent the Contractor, its licensees, or its 
domestic subsidiaries or affiliates have failed to achieve practical 
application in that foreign country.
    (3) Before revoking or modifying the Contractor's license, the 
Contractor will be provided a written notice of the Administrator's 
intention to revoke or modify the license, and the Contractor will 
be allowed 30 days (or such other time as may be authorized by the 
Administrator for good cause shown) after the notice to show cause 
why the license should not be revoked or modified. The Contractor 
has the right to appeal to the Administrator any decision concerning 
the revocation or modification of its license.
    (e) Contractor's obligations.
    (1) The Contractor shall establish and maintain active and 
effective procedures to assure that reportable items are promptly 
identified and disclosed to Contractor personnel responsible for the 
administration of this New Technology-Other than a Small Business 
Firm or Nonprofit Organization clause within six months of 
conception and/or first actual reduction to practice, whichever 
occurs first in the performance of work under this contract. These 
procedures shall include the maintenance of laboratory notebooks or 
equivalent records and other records as are reasonably necessary to 
document the conception and/or the first actual reduction to 
practice of the reportable items, and records that show that the 
procedures for identifying and disclosing reportable items are 
followed. Upon request, the Contractor shall furnish the Contracting 
Officer a description of such procedures for evaluation and for 
determination as to their effectiveness.
    (2) The Contractor shall disclose in writing each reportable 
item to the Contracting Officer within two months after the inventor 
discloses it in writing to Contractor personnel responsible for the 
administration of this New Technology-Other than a Small Business 
Firm or Nonprofit Organization clause or within six months after the 
Contractor becomes aware that a reportable item has been made, 
whichever is earlier, but in any event for subject inventions before 
any on sale, public use, or publication of such invention known to 
the Contractor. The

[[Page 57029]]

disclosure to the agency shall identify the inventor(s) or 
innovator(s) and this contract under which the reportable item was 
made. It shall be sufficiently complete in technical detail to 
convey a clear understanding, to the extent known at the time of the 
disclosure, of the nature, purpose, operation, and physical, 
chemical, biological, or electrical characteristics of the 
reportable item. The disclosure shall also identify any publication, 
sale or offer for sale, or public use of any subject invention and 
whether a manuscript describing such invention has been submitted 
for publication and, if so, whether it has been accepted for 
publication at the time of disclosure. In addition, after disclosure 
to the agency, the Contractor will promptly notify the agency of the 
acceptance of any manuscript describing a subject invention for 
publication or of any sale, offer for sale, or public use planned by 
the Contractor for such invention.
    (3) The Contractor may use whatever format is convenient to 
disclose reportable items required in subparagraph (e)(2). NASA 
prefers that the Contractor use either the electronic or paper 
version of NASA Form 1679, Disclosure of Invention and New 
Technology (including computer software) to disclose reportable 
items. Both the electronic and paper versions of NASA Form 1679 may 
be accessed at the electronic New Technology Reporting Web site 
https://invention.nasa.gov.
    (4) The Contractor shall furnish the Contracting Officer the 
following:
    (i) Interim new technology summary reports every 12 months (or 
such longer period as may be specified by the Contracting Officer) 
from the date of the contract, listing reportable items during that 
period, and certifying that all reportable items have been disclosed 
(or that there are no such inventions).
    (ii) A final new technology summary report, within 3 months 
after completion of the contracted work, listing all reportable 
items or certifying that there were no such reportable items, and 
listing all subcontracts at any tier containing a patent rights 
clause or certifying that there were no such subcontracts.
    (5) The Contractor agrees, upon written request of the 
Contracting Officer, to furnish additional technical and other 
information available to the Contractor as is necessary for the 
preparation of a patent application on a subject invention and for 
the prosecution of the patent application, and to execute all papers 
necessary to file patent applications on subject inventions and to 
establish the Government's rights in the subject inventions.
    (6) The Contractor agrees, subject to paragraph 27.302(j) of the 
Federal Acquisition Regulation (FAR), that the Government may 
duplicate and disclose subject invention disclosures and all other 
reports and papers furnished or required to be furnished pursuant to 
this clause.
    (f) Examination of records relating to inventions.
    (1) The Contracting Officer or any authorized representative 
shall, until 3 years after final payment under this contract, have 
the right to examine any books (including laboratory notebooks), 
records, and documents of the Contractor relating to the conception 
or first actual reduction to practice of inventions in the same 
field of technology as the work under this contract to determine 
whether--
    (i) Any such inventions are subject inventions;
    (ii) The Contractor has established and maintained the 
procedures required by paragraph (e)(1) of this clause; and
    (iii) The Contractor and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported 
Contractor invention that the Contracting Officer believes may be a 
subject invention, the Contracting Officer may require the 
Contractor to disclose the invention to the agency for a 
determination of ownership rights.
    (3) Any examination of records under this paragraph will be 
subject to appropriate conditions to protect the confidentiality of 
the information involved.
    (g) Withholding of payment (this paragraph does not apply to 
subcontracts).
    (1) Any time before final payment under this contract, the 
Contracting Officer may, in the Government's interest, withhold 
payment until a reserve not exceeding $50,000 or 5 percent of the 
amount of this contract, whichever is less, shall have been set 
aside if, in the Contracting Officer's opinion, the Contractor fails 
to--
    (i) Establish, maintain, and follow effective procedures for 
identifying and disclosing reportable items pursuant to paragraph 
(e)(1) of this clause;
    (ii) Disclose any reportable items pursuant to paragraph (e)(2) 
of this clause;
    (iii) Deliver acceptable interim new technology summary reports 
pursuant to paragraph (e)(4)(i) of this clause or a final new 
technology summary report pursuant to paragraph (e)(4)(ii) of this 
clause; or
    (iv) Provide the information regarding subcontracts pursuant to 
paragraph (h)(4) of this clause.
    (2) Such reserve or balance shall be withheld until the 
Contracting Officer has determined that the Contractor has rectified 
whatever deficiencies exist and has delivered all reports, 
disclosures, and other information required by this clause.
    (3) Final payment under this contract shall not be made before 
the Contractor delivers to the Contracting Officer all disclosures 
of reportable items required by paragraph (e)(2) of this clause, and 
an acceptable final new technology summary report pursuant to 
paragraph (e)(4)(ii) of this clause.
    (4) The Contracting Officer may decrease or increase the sums 
withheld up to the maximum authorized above. No amount shall be 
withheld under this paragraph while the amount specified by this 
paragraph is being withheld under other provisions of the contract. 
The withholding of any amount or the subsequent payment thereof 
shall not be construed as a waiver of any Government rights.
    (h) Subcontracts.
    (1) Unless otherwise authorized or directed by the Contracting 
Officer, the Contractor shall--
    (i) Include this clause (suitably modified to identify the 
parties) in any subcontract hereunder (regardless of tier) with 
other than a small business firm or nonprofit organization for the 
performance of experimental, developmental, or research work; or
    (ii) Include the clause at FAR 52.227-11, as modified by 
1852.227-11, (suitably modified to identify the parties) in any 
subcontract hereunder (regardless of tier) with a small business 
firm or nonprofit organization for the performance of experimental, 
developmental, or research work; and
    (iii) Modify the applicable clause in any subcontract hereunder 
(regardless of tier) to identify the parties as follows: References 
to the Government are not changed, and in all references to the 
Contractor, the subcontractor is substituted for the Contractor so 
that the subcontractor has all rights and obligations of the 
Contractor in the clause.
    (2) In the event of a refusal by a prospective subcontractor to 
accept such a clause the Contractor--
    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subcontractor's reasons for such refusal 
and other pertinent information that may expedite disposition of the 
matter; and
    (ii) Shall not proceed with such subcontract without the written 
authorization of the Contracting Officer.
    (3) In the case of subcontracts at any tier, the agency, 
subcontractor, and Contractor agree that the mutual obligations of 
the parties created by this clause constitute a contract between the 
subcontractor and NASA with respect to those matters covered by this 
clause.
    (4) The Contractor shall promptly notify the Contracting Officer 
in writing upon the award of any subcontract hereunder (regardless 
of tier) by identifying the subcontractor, the applicable patent 
rights clause in the subcontract, the work to be performed under the 
subcontract, and the dates of award and estimated completion. Upon 
request of the Contracting Officer, the Contractor shall furnish a 
copy of such subcontract, and, no more frequently than annually, a 
listing of the subcontracts that have been awarded.
    (5) The subcontractor will retain all rights provided for the 
Contractor in the clause of paragraph (h)(1)(i) or (ii) of this 
clause, whichever is included in the subcontract, and the Contractor 
will not, as part of the consideration for awarding the subcontract, 
obtain rights in the subcontractor's subject inventions.
    (i) Preference for United States industry. Unless provided 
otherwise, no Contractor that receives title to any subject 
invention and no assignee of any such Contractor shall grant to any 
person the exclusive right to use or sell any subject invention in 
the United States unless such person agrees that any products 
embodying the subject invention will be manufactured substantially 
in the United States. However, in individual cases, the requirement 
may be waived by the Administrator upon a showing by the Contractor 
or assignee that reasonable but unsuccessful efforts have been made 
to grant licenses on similar terms to potential licensees that would 
be likely to manufacture

[[Page 57030]]

substantially in the United States or that under the circumstances 
domestic manufacture is not commercially feasible.


(End of clause)


1852.227-71  Requests for Waiver of Rights to Inventions.

    As prescribed in 1827.303(d)(2), insert the following provision in 
all solicitations that include the clause at 1852.227-70, New 
Technology-Other than a Small Business Firm or Nonprofit Organization:

Requests for Waiver of Rights to Inventions

(XX/XX)

    (a) In accordance with Section 20135(g) of the National Aeronautics 
and Space Act (51 U.S.C. 20135(g)) (hereinafter ``the Act'') and the 
NASA Patent Waiver Regulations, 14 CFR Part 1245, Subpart 1, NASA may 
waive all or any part of the rights of the United States with respect 
to any invention or class of inventions made or that may be made under 
a NASA contract or subcontract with other than a small business firm or 
a domestic nonprofit organization if the Administrator determines that 
the interests of the United States will be served thereby. Waiver of 
rights in inventions made or that may be made under such NASA contract 
or subcontract may be requested at different time periods. Advance 
waiver of rights to any invention or class of inventions that may be 
made under a contract or subcontract may be requested prior to the 
execution of the contract or subcontract, or within 30 days after 
execution by the selected contractor (or such longer period as may be 
specified by the Contracting Officer). In addition, waiver of rights to 
an individually identified invention or to a class of inventions made 
and reported under a contract or subcontract may be requested, even 
though a request for an advance waiver was not made or, if made, was 
not granted.
    (b) Each request for waiver of rights shall be by petition to the 
Administrator. No specific forms need be used, but the request should 
contain a positive statement that waiver of rights is being requested 
under the NASA Patent Waiver Regulations; a clear indication of whether 
the request is for an advance waiver or for a waiver of rights for an 
individually identified invention or class of inventions; whether 
foreign rights are also requested and, if so, the countries, and a 
citation of the specific section or sections of the regulations under 
which such rights are requested. For individually identified inventions 
or a class of inventions, the petition shall identify each invention 
with particularity (e.g., by NASA's assigned number to the Disclosure 
of Invention and New Technology report or by title and inventorship). 
For advance waivers, the petition shall identify the invention or class 
of inventions that the Contractor believes will be made under the 
contract and for which waiver is being requested. To meet the statutory 
standard of ``any invention or class of inventions,'' the petition must 
be directed to a single invention or to inventions directed to a 
particular process, machine, manufacture, or composition of matter, or 
to a narrowly-drawn, focused area of technology. Additionally, each 
petition shall include an identification of the petitioner; place of 
business and address; if petitioner is represented by counsel, the 
name, address and telephone number of the counsel; the name, address, 
and telephone number of the party with whom to communicate when the 
request is acted upon; the signature of the petitioner or authorized 
representative; and the date of signature. In general, waivers are 
granted in order to provide for the widest practicable dissemination of 
new technology resulting from NASA programs, and to promote early 
utilization, expeditious development, and continued availability of 
this new technology for commercial purposes and the public benefit. 
Thus, it is preferable that the petition also include a description of 
the Contractor's plan for commercializing the invention or class of 
inventions for which waiver is being requested (e.g., identify specific 
fields of use).
    (c) Petitions for advance waiver of rights should, preferably, be 
included with the proposal, or at least in advance of contract 
negotiations. Petitions for advance waiver, prior to contract 
execution, shall be submitted to the Contracting Officer. All other 
petitions shall be submitted to the Patent Representative designated in 
the contract.
    (d) Petitions submitted with proposals selected for negotiation of 
a contract will be forwarded by the Contracting Officer to the 
installation Patent Counsel for processing and then to the Inventions 
and Contributions Board. The Board will consider these petitions and 
where the Board makes the findings to support the waiver, the Board 
will recommend to the Administrator that waiver be granted, and will 
notify the petitioner and the Contracting Officer of the 
Administrator's determination. The Contracting Officer will be informed 
by the Board whenever there is insufficient time or information or 
other reasons to permit a decision to be made without unduly delaying 
the execution of the contract. In the latter event, the petitioner will 
be so notified by the Contracting Officer. All other petitions will be 
processed by installation Patent Counsel and forwarded to the Board. 
The Board shall notify the petitioner of its action and if waiver is 
granted, the conditions, reservations, and obligations thereof will be 
included in the Instrument of Waiver. Whenever the Board notifies a 
petitioner of a recommendation adverse to, or different from, the 
waiver requested, the petitioner may request reconsideration under 
procedures set forth in the Regulations.


(End of provision)


1852.227-72  Designation of New Technology Representative and Patent 
Representative.

    As prescribed in 1827.303(d)(3), insert the following clause:

Designation of New Technology Representative and Patent Representative

(XX/XX)

    (a) For purposes of administration of the clause of this 
contract entitled ``New Technology--Other than a Small Business Firm 
or Nonprofit Organization'' or ``Patent Rights--Ownership by the 
Contractor,'' whichever is included, the installation New Technology 
and Patent Representatives identified at https://prod.nais.nasa.gov/
portals/pl/newtechpocs.html are hereby designated 
by the Contracting Officer to administer such clause for the 
appropriate installation:
    (b) Disclosures of reportable items and of subject inventions, 
interim new technology summary reports, final new technology summary 
reports, utilization reports, and other reports required by the 
applicable ``New Technology'' or ``Patent Rights--Ownership by the 
Contractor'' clause, as well as any correspondence with respect to 
such matters, shall be directed to the New Technology Representative 
unless transmitted in response to correspondence or request from the 
Patent Representative. Inquiries or requests regarding disposition 
of rights, election of rights, or related matters shall be directed 
to the Patent Representative. This clause shall be included in any 
subcontract hereunder requiring a ``New Technology--Other than a 
Small Business Firm or Nonprofit Organization'' clause or ``Patent 
Rights--Ownership by the Contractor'' clause, unless otherwise 
authorized or directed by the Contracting Officer. The respective 
responsibilities and authorities of the aforementioned 
representatives are set forth in 1827.305-270 of the NASA FAR 
Supplement.


(End of clause)

[[Page 57031]]

1852.227-84  Patent Rights Clauses.

    As prescribed in 1827.303(a)(1), the contracting officer shall 
insert the following provision in solicitations for experimental, 
developmental, or research work to be performed in the United States 
when the eventual awardee may be a small business or a nonprofit 
organization:

Patent Rights Clauses

(XX/XX)

    This solicitation contains the patent rights clauses of FAR 
52.227-11 (as modified by the NFS) and NFS 1852.227-70. If the 
contract resulting from this solicitation is awarded to a small 
business or nonprofit organization, the clause at NFS 1852.227-70 
shall not apply. If the award is to other than a small business or 
nonprofit organization, the clause at FAR 52.227-11 shall not apply.


(End of Provision)


1852.227-85  Invention Reporting and Rights--Foreign.

    As prescribed in 1827.303(e)(1), insert the following clause:

Invention Reporting and Rights--Foreign

(XX/XX)

    (a) As used in this clause, the term ``invention'' means any 
invention, discovery or improvement, and ``made'' means the 
conception or first actual demonstration that the invention is 
useful and operable.
    (b) The Contractor shall report promptly to the Contracting 
Officer each invention made in the performance of work under this 
contract. The report of each such invention shall:
    (1) Identify the inventor(s) by full name; and
    (2) Include such full and complete technical information 
concerning the invention as is necessary to enable an understanding 
of the nature and operation thereof.
    (c) The Contractor hereby grants to the Government of the United 
States of America as represented by the Administrator of the 
National Aeronautics and Space Administration the full right, title 
and interest in and to each such invention throughout the world, 
except for the foreign country in which this contract is to be 
performed. As to such foreign country, Contractor hereby grants to 
the Government of the United States of America as represented by the 
Administrator of the National Aeronautics and Space Administration 
an irrevocable, nontransferable, nonexclusive, royalty-free license 
to practice each such invention by or on behalf of the United States 
of America or any foreign government pursuant to any treaty or 
agreement with the United States of America, provided that 
Contractor within a reasonable time files a patent application in 
that foreign country for each such invention. Where Contractor does 
not elect to file such patent application for any such invention in 
that foreign country, full right, title and interest in and to such 
invention in that foreign country shall reside in the Government of 
the United States of America as represented by the Administrator of 
the National Aeronautics and Space Administration.
    (d) The Contractor agrees to execute or to secure the execution 
of such legal instruments as may be necessary to confirm and to 
protect the rights granted by paragraph (c) of this clause, 
including papers incident to the filing and prosecution of patent 
applications.
    (e) Upon completion of the contract work, and prior to final 
payment, Contractor shall submit to the Contracting Officer a final 
report listing all inventions required to be reported under this 
contract or certifying that no such inventions have been made.
    (f) In each subcontract, the Contractor awards under this 
contract where the performance of research, experimental design, 
engineering, or developmental work is contemplated, the Contractor 
shall include this clause (suitably modified to substitute the 
subcontractor in place of the Contractor) and the name and address 
of the Contracting Officer.


(End of Clause)


1852.227-86  Commercial Computer Software License.

    As prescribed in 1827.409(g), insert the following clause:

Commercial Computer Software License

(XX/XX)

    (a) Any delivered commercial computer software (including 
documentation thereof) developed at private expense and claimed as 
proprietary shall be subject to the restricted rights in paragraph 
(d) of this clause. Where the vendor/contractor proposes its 
standard commercial software license, those applicable portions 
thereof consistent with Federal laws, standard industry practices, 
the Federal Acquisition Regulations (FAR) and the NASA FAR 
Supplement, including the restricted rights in paragraph (d) of this 
clause, are incorporated into and made a part of this purchase 
order/contract. Those portions of the vendor's/contractor's standard 
commercial license or lease agreement that conflict with Federal law 
(e.g., indemnity provisions or choice of law provisions that specify 
other than Federal law) are not incorporated into and made a part of 
this purchase order/contract and do not apply to any computer 
software delivered under this purchase order/contract.
    (b) If the vendor/contractor does not propose its standard 
commercial software license until after this purchase order/contract 
has been issued, or until at or after the time the computer software 
is delivered, such license shall nevertheless be deemed incorporated 
into and made a part of this purchase order/contract under the same 
terms and conditions as in paragraph (a) of this clause. For 
purposes of receiving updates, correction notices, consultation, and 
similar activities on the computer software, no document associated 
with the aforementioned activities shall alter the terms of this 
clause unless such document explicitly references this clause and an 
intent to amend this clause and is signed by the NASA Contracting 
Officer.
    (c) The vendor's/contractor's acceptance is expressly limited to 
the terms and conditions of this purchase order/contract. If the 
specified computer software is shipped or delivered to NASA, it 
shall be understood that the vendor/contractor has unconditionally 
accepted the terms and conditions set forth in this clause, and that 
such terms and conditions (including the incorporated license) 
constitute the entire agreement between the parties concerning 
rights in the computer software.
    (d) The following restricted rights shall apply:
    (1) The commercial computer software may not be used, 
reproduced, or disclosed by the Government, or Government 
contractors or their subcontractors at any tier, except as provided 
below or otherwise expressly stated in the purchase order/contract.
    (2) The commercial computer software may be--
    (i) Used, or copied for use, in or with any computer owned or 
leased by, or on behalf of, the Government; provided, the software 
is not used, nor copied for use, in or with more than one computer 
simultaneously, unless otherwise permitted by the license 
incorporated under paragraphs (a) or (b) of this clause;
    (ii) Reproduced for safekeeping (archives) or backup purposes;
    (iii) Modified, adapted, or combined with other computer 
software, provided that the modified, combined, or adapted portions 
of the derivative software incorporating restricted computer 
software shall be subject to the same restricted rights; and
    (iv) Disclosed and reproduced for use by Government contractors 
or their subcontractors in accordance with the restricted rights in 
paragraphs (d)(2)(i), (ii), and (iii) of this clause; provided they 
have the Government's permission to use the computer software and 
have also agreed to protect the computer software from unauthorized 
use and disclosure.
    (3) If the incorporated vendor's/contractor's software license 
contains provisions or rights that are less restrictive than the 
restricted rights in paragraph (d)(2) of this clause, then the less 
restrictive provisions or rights shall prevail.
    (4) If the computer software is otherwise available without 
disclosure restrictions, it is licensed to the Government, without 
disclosure restrictions, with the rights in paragraphs (d)(2) and 
(3) of this clause.
    (5) The Contractor shall affix a notice substantially as follows 
to any commercial computer software delivered under this contract:
    Notice--Notwithstanding any other lease or license agreement 
that may pertain to, or accompany the delivery of, this computer 
software, the rights of the Government regarding its use, 
reproduction and disclosure are set forth in Government Contract No. 
.


(End of clause)

[[Page 57032]]

1852.227-88  Government-Furnished Computer Software and Related 
Technical Data.

    As prescribed in 1827.409(m), insert the following clause:
    (a) Definitions. As used in this clause--

    Government-furnished computer software'' or GFCS means computer 
software:
    (1) In the possession of, or directly acquired by, the 
Government whereby the Government has title or license rights 
thereto; and
    (2) Subsequently furnished to the Contractor for performance of 
a Government contract.
    ``Computer software, data and technical data have the meaning 
provided in the Federal Acquisition Regulations (FAR) Subpart 2.1--
Definitions or the Rights in Data--General clause (FAR 52.227-14).
    (b) The Government shall furnish to the Contractor the GFCS 
described in this contract or in writing by the Contracting Officer. 
The Government shall furnish any related technical data needed for 
the intended use of the GFCS.
    (c) Use of GFCS and related technical data. The Contractor shall 
use the GFCS and related technical data, and any modified or 
enhanced versions thereof, only for performing work under this 
contract unless otherwise provided for in this contract or approved 
in writing by the Contracting Officer.
    (1) The Contractor shall not, without the express written 
permission of the Contracting Officer, reproduce, distribute copies, 
prepare derivative works, perform publicly, display publicly, 
release, or disclose the GFCS or related technical data to any 
person except for the performance of work under this contract.
    (2) The Contractor shall not modify or enhance the GFCS unless 
this contract specifically identifies the modifications and 
enhancements as work to be performed. If the GFCS is modified or 
enhanced pursuant to this contract, the Contractor shall provide to 
the Government the complete source code, if any, and all related 
documentation of the modified or enhanced GFCS.
    (3) Allocation of rights associated with any GFCS or related 
technical data modified or enhanced under this contract shall be 
defined by the FAR Rights in Data clause(s) included in this 
contract (as modified by any applicable NASA FAR Supplement 
clauses). If no Rights in Data clause is included in this contract, 
then the FAR Rights in Data--General (52.227-14) as modified by the 
NASA FAR Supplement (1852.227-14) shall apply to all data first 
produced in the performance of this contract and all data delivered 
under this contract.
    (4) The Contractor may provide the GFCS, and any modified or 
enhanced versions thereof, to subcontractors as necessary for the 
performance of work under this contract. Before release of the GFCS, 
and any modified or enhanced versions thereof, to such 
subcontractors (at any tier), the Contractor shall insert, or 
require the insertion of, this clause, including this paragraph 
(c)(4), suitably modified to identify the parties as follows: 
references to the Government are not changed, and in all references 
to the Contractor the subcontractor is substituted for the 
Contractor so that the subcontractor has all rights and obligations 
of the Contractor in the clause.
    (d) The Government provides the GFCS in an ``AS-IS'' condition. 
The Government makes no warranty with respect to the serviceability 
and/or suitability of the GFCS for contract performance.
    (e) The Contracting Officer may by written notice, at any time--
    (1) Increase or decrease the amount of GFCS under this contract;
    (2) Substitute other GFCS for the GFCS previously furnished, to 
be furnished, or to be acquired by the Contractor for the Government 
under this contract;
    (3) Withdraw authority to use the GFCS or related technical 
data; or
    (4) Instruct the Contractor to return or dispose of the GFCS and 
related technical data.
    (f) Title to or license rights in GFCS. The Government shall 
retain title to or license rights in all GFCS. Title to or license 
rights in GFCS shall not be affected by its incorporation into or 
attachment to any data not owned by or licensed to the Government.
    (g) Waiver of Claims and Indemnification. The Contractor agrees 
to waive any and all claims against the Government and shall 
indemnify and hold harmless the Government, its agents, and 
employees from every claim or liability, including attorney's fees, 
court costs, and expenses, arising out of, or in any way related to, 
the misuse or unauthorized modification, reproduction, release, 
performance, display, or disclosure of the GFCS and related 
technical data by the Contractor, a subcontractor, or by any person 
to whom the Contractor has released or disclosed such GFCS or 
related technical data.
    (h) Flow-down of Waiver of Claims and Indemnification. In the 
event a contract includes this NASA FAR Supplement clause 1852.227-
88, the Contractor shall include the foregoing clause 1852.227-
88(g), suitably modified to identify the parties, in all 
subcontracts, regardless of tier, which involve use of the GFCS and/
or related technical data in any way. At all tiers, the clause shall 
be modified to define GFCS as it is defined herein and to identify 
the parties as follows: references to the Government are not 
changed, and in all references to the Contractor the subcontractor 
is substituted for the Contractor so that the subcontractor has all 
rights and obligations of the Contractor in the clause. In 
subcontracts, at any tier, the Government, the subcontractor, and 
the Contractor agree that the mutual obligations of the parties 
created by this clause 1852.227-88 constitute a contract between the 
subcontractor and the Government with respect to the matters covered 
by the clause.


(End of clause)


1852.228-73  [Removed]

0
65. Section 1852.228-73 is removed.
0
66. in section 1852.231-71, paragraph (d) is revised to read as follow


1852.231-71  Determination of Compensation Reasonableness.

    * * *

Determination of Compensation Reasonableness

(XX/XX)

* * * * *
    (d) The offeror shall require all service subcontractors provide, 
as part of their proposal, the information identified in (a) through 
(c) of this provision for cost reimbursement or non-competitive fixed-
price type subcontracts having a total potential value expected to 
exceed the threshold for requiring certified cost or pricing data as 
set forth in FAR 15.403-4.


(End of provision)
0
67. In section 1852.232-70, paragraphs (a)(2) and (c)(3) are revised to 
read as follows:


1852.232-70  NASA Modification of FAR 52.232-12 .

* * * * *

NASA Modification of FAR 52.232-12

(XX/XX)

    (a) * * *
    (2) In paragraph (m)(1), delete ``in the form prescribed by the 
administering office'' and substitute ``and Standard Form 425, Federal 
Financial Report.''
* * * * *
    (c) * * *
    (3) In paragraph (j)(1), insert between ``statements,'' and ``and'' 
``together with Standard Form 425, Federal Financial Report''
* * * * *


1852.237-72, 1852.237-73, 1852.242-70, 1852.249-72  [Removed]

0
68. Sections 1852.237-72 and 1852.237-73 are removed.
0
69. Section 1852.242-70 is removed.
0
70. Section 1852.249-72 is removed.

[FR Doc. 2014-21476 Filed 9-23-14; 8:45 am]
BILLING CODE 7510-13-P