Subpart 7-Foreign Contract Procurement 6.700 Scope of Subpart. This Subpart prescribes policy and procedures relating to the negotiation of foreign contracts. 6.701 Definition of Foreign Contract Procurement. The term “foreign contract procurement" as used in this Subpart means the procurement by negotiation of supplies or services, including construction work and contracts for research and development, where the work is to be performed outside the United States, its possessions, and Puerto Rico, by a foreign government or instrumentality thereof, or a foreign private contractor. The term does not include the following: (i) negotiation of government-to-government agreements; (ii) negotiation of contracts with domestic concerns which involves work to be performed outside the United States, its possessions, and the Commonwealth of Puerto Rico; (iii) contracts with the Canadian Commercial Corporation; or (iv) procurement of books and periodicals from foreign sources of supply. 6.702 Policy. Foreign contract procurement is a specialized area which often requires involved negotiation with instrumentalities of foreign governments. Some of the requirements for contract clauses imposed by United States laws conflict with statutory prohibitions imposed by foreign countries. The resolution of these issues generally involves close coordination between the Office of International Affairs and the Office of General Counsel, NASA Headquarters, and the Department of State. Accordingly, it is the policy of NASA that the responsibility for foreign contract procurement be centralized at NASA Headquarters. 6.703 Assignment of Responsibility for Contract Negotiation. The Headquarters Contracts and Grants Division (Code HW-2), in conjunction with the Offices of International Affairs and General Counsel, is responsible for negotiating and executing contracts with foreign governments and private foreign organizations. This assignment of responsibility is specifically limited to foreign contract procurement, as defined in 6.701. 6.704 Procedure. A Headquarters or field installation technical office requiring a foreign procurement to be made will submit a properly approved Purchase Request (NASA Form 404, or similar form), through channels, to the Headquarters Contracts and Grants Division (Code HW-2), NASA Headquarters, for procurement action. In accordance with 7.000, contract forms and clauses to be used in foreign contract procurement will be as prescribed on a case-by-case basis by the Director of Procurement. 6.705 Assignment of Contract Administration. (a) General. Assignment of contract administration responsibility will be made by agreement between the initiating office and the Headquarters Contracts and Grants Division. Since principal responsibility for the monitoring of contractor progress and performance generally rests with a field installation, the Headquarters Contracts and Grants Division normally will designate the Procurement Officer of the cognizant field installation as his authorized representative for purposes of contract administration. (b) Contracts Performed in Canada. (1) When, in accordance with the provisions of Part 20, Subpart 6, contract administration and related support service functions of the Defense Contract Administration Services are desired on a contract to be performed in Canada (whether placed with Canadian Commercial Corporation or direct with a Canadian firm), a letter of delegation shall be issued to: Defense Supply Agency, DCASO, Ottawa 6th Floor, Canadian Building 219 Laurier Avenue, West Ottawa, Ontario, Canada (K1A035) (2) In order that DCASO, Ottawa may utilize the capabilities of the Canadian Government agencies in the performance of contract administration services functions, each letter of delegation shall provide that the DCASO, Ottawa is delegated authority to act as the contracting officer's representative with power of further delegation for the performance of the requested services. 6.706 Contacts with Foreign Nationals. NASA PROCUREMENT REGULATION 6.706 FOREIGN PURCHASES (a) Proposals by NASA staff members which involve program or contract possibilities with foreign nationals shall be coordinated with the Office of International Affairs, NASA Headquarters, before any contacts are made with foreign nationals. (b) Informal discussions between NASA staff members and foreign nationals could give rise to expectations concerning program or contract possibilities which are not supported by program requirements. Such situations must be avoided to preclude possible embarrassment to the United States, as well as to NASA. (c) Requests or offers by foreign nationals to NASA staff members on program or contract matters shall be reported promptly to the Office of International Affairs. (See NASA Policy Directive 1362.1, “Initiation and Development of International Participation and Cooperation in Aeronautical and Space Programs.") 6.706 CFR TITLE 41 CHAPTER 18 Subpart 8-Balance of Payments Program - Offshore Procurement 6.801 Use of Excess Foreign Currencies. It is the policy of NASA to utilize all possible actions to minimize payments and maximize receipts entering into the balance of payments. In carrying out this policy, procurement offices should, to the maximum extent practicable, ensure that contracts and other obligations incurred in excess and near-excess currency countries are made payable in foreign currencies rather than in U.S. dollars. The expenditure, in these countries, of foreign currencies rather than U.S. dollars provides a saving in the budget and improves the balance of payments situation. 6.801–1 Obligations Incurred in Excess and Near-excess Currency Countries. NASA procurement offices should establish procedures to ensure that contracts and other obligations incurred in excess and near-excess currency countries are made payable in foreign currencies rather than in U.S. dollars, notwithstanding the appropriation or fund that will be used for payment. This should include contracts with American contractors, to the extent that the contractor may be expected to require such currencies for necessary expenses in the country involved. 6.801-2 Designation and Announcement of Excess Currency Countries. Excess and near-excess currency countries are designated by the Treasury Department, and a list of such countries is published in Office of Management and Budget "Foreign Currency Bulletins." Department of State "Foreign Currency Bulletins" list excess and near excess currencies which are available for travel and transportation expenses, or for payment of obligations incurred in those countries. The Director of Financial Management, NASA Headquarters, maintains a current list of excess currency countries and arranges for its publication in the NASA Travel Regulations. NASA PROCUREMENT REGULATION 6.801-2 Subpart 10-Exemption From Examination Requirement 6.1000 Scope of Subpart. This Subpart sets forth policies and procedures for exempting the requirements for the "Examination of Records" clause in contracts with foreign contractors and foreign subcontractors. 6.1001 Statutory Requirements. (a) In accordance with 10 U.S.C. 2313(c), the "Examination of Records" clause may be excluded from negotiated contracts and subcontracts with foreign contractors and foreign subcontractors where: (i) the Administrator determines, with the concurrence of the Comptroller General or his designee, that inclusion of the clause would not be in the public interest; or (ii) where (A) the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its books, documents, papers, or records available for examination, and (B) The Administrator determines, after taking into account the price and availability of the property or services from United States sources, that the public interest would be best served by exclusion of the clause. (b) A determination of the Administrator under (ii) above does not require the concurrence of the Comptroller General or his designee. However, where a determination of the Administrator under (ii) is the basis for exclusion of the “Examination of Records" clause, the statute requires that a written report be furnished to the Congress. This report, which shall explain the reasons for the determination, shall be prepared in triplicate, signed by the head of the installation concerned, and forwarded to the Director of Procurement (Code HC-1) for processing to the Administrator. 6.1002 Policy. The "Examination of Records" clause shall be included wherever possible. Exclusion of the clause should be allowed only after the contracting officer has made all reasonable efforts to include the clause and has considered such factors as alternate sources of supply, additional cost, and time of delivery. “Foreign Contractor" for purposes of this Subpart is defined as "one that is organized or existing under the laws of a country other than the United States, its territories or possessions." 6.1003 Requests for Determinations and Findings. Request for determinations and findings for exclusion ordinarily will be initiated by the contracting officer. The request shall consist of a letter submitted through normal procurement channels, addressed to the Administrator setting forth all the facts necessary to arrive at an appropriate determination and findings. 6.1004 Determination and Findings. The determination and findings made by the Administrator to authorize exclusion of the "Examination of Records" clause from a contract with a foreign contractor or a foreign subcontractor under 10 U.S.C. 2313(c) shall: (i) identify the contract and its purpose, and state, that it is a contract or subcontract with a foreign contractor or foreign subcontractor, or that the contractor or subcontractor is a foreign government or agency thereof; (ii) describe the efforts that have been made to include the clause in the contract or subcontract; (iii) state the reasons for the contractor's or subcontractor's refusal to include the clause; (iv) describe the price and availability of the property or services from United States and other sources; and (v) determine that it is in the public interest to exclude the clause pursuant to the provisions of 10 U.S.C. 2313(c). NASA PROCUREMENT REGULATION 13-139 0-83-4 6.1004 |