Effective Date: September 15, 1997
Expiration Date: September 15, 2022
NPR 5101.1E, Requirements for Legal Review of Procurement Matters
Updated with 1400 compliance, and clarify responsibilitie and requirements..
|12/15/2017||Updated with 1400 compliance, updated policy statement, clarify responsibilities and added an Attachment A: References.|
It is NASA's policy to provide legal advice and services, within their assigned areas of responsibility, to all elements of NASA on procurement matters. These matters arise out of the award and administration of contracts, grants, cooperative agreements, and similar instruments, and involve the preparation and negotiation of such legal instruments.
a. This NPD is applicable to NASA Headquarters and NASA Centers, including Component Facilities and Technical and Service Support Centers.
b. In this directive, all mandatory actions (i.e., requirements) are denoted by statements containing the term "shall." The terms: "may" or "can" denote discretionary privilege or permission, "should" denotes a good practice and is recommended, but not required, "will" denotes expected outcome, and "are/is" denotes descriptive material.
c. In this directive, all document citations are assumed to be the latest version unless otherwise noted.
The National Aeronautics and Space Act, as amended, 51 U.S.C. § 20113(a).
a. The NASA General Counsel, or designee, shall:
(1) Assist in preparing, drafting, negotiating, and interpreting contracts, grants, cooperative agreements, and similar instruments, including statements of work and specifications.
(2) Advise program and procurement officials in the administration of contracts, grants, cooperative agreements, and similar instruments.
(3) Participate, as appropriate, in every phase of the procurement cycle.
b. Consistent with the procedures and thresholds established pursuant to subparagraph d. below, legal counsel, either at the Centers or Headquarters, shall review and concur in or comment on the following matters:
(1) Proposed procurement policies, procedures, instructions, and regulations, and deviations therefrom; delegations of authority; and contract forms and clauses.
(2) Proposed preaward, award, and postaward procurement actions of substantial importance. As a minimum, legal counsel shall participate in acquisition strategy meetings and source selection presentations. Legal counsel should also review solicitations, determinations, evaluations, awards, contract modifications, and terminations.
(3) Orders placed with other Government agencies for the procurement of supplies or services that commit NASA, and any significant communications with such agencies on procurement matters, to the extent not otherwise covered by subparagraph b(2).
(4) Procurement matters involving intellectual property rights.
(5) Procurement-related submissions to the Congress, congressional Committees, individual Senators and Representatives, the Comptroller General, the Department of Justice, Federal or State agencies, courts and other judicial tribunals, the Armed Services Board of Contract Appeals, and the NASA Contract Adjustment Board.
(6) Procurement-related actions that affect the public. Such actions include disposition of protested procurements, rejection of bids, mistakes in bid, contract terminations, and other claims or requests for relief.
(7) All actions related to litigation under the Contract Disputes Act, such as the following:
(a) findings, decisions, and appeals, including all pertinent documents and summaries of anticipated testimony of all Government witnesses; and
(b) notifications to courts, boards, contractors, and interested parties.
(8) Correspondence and other communications with contractors and other interested parties that interpret contractual provisions, commit the Government, or otherwise involve questions having legal implications.
c. Program offices will participate in procurement matters set forth in subparagraph b. above.
d. Legal Counsel should review all actions within each of the categories in subparagraph b. Resources may not, however, permit legal review of every action in each category. Offices concerned shall:
(1) issue procedures and establish thresholds for review that ensure that, as a minimum, all significant or sensitive actions in each category receive adequate legal review.
(2) Determe review thresholds taking into account programmatic, financial, and litigation risk, as well as legal and procurement workload and resources, to maximize the likelihood that the procurement action will meet the center or Agency needs in a timely and cost-effective manner. Such thresholds may not exclude any category of actions listed in subparagraph b. as requiring legal review.
(3) Issue procedures that ensure that Center counsel review and concur, or provide comments for the record, regarding any action to be submitted to NASA Headquarters for approval or further action.
e. Each NASA Center and the office providing procurement support to Headquarters if not covered by the Center, shall develop implementing procedures and thresholds pursuant to subparagraph d. above.
f. When the Center has reached an agreement on the procedures and policies developed pursuant to subparagraph e. above, the Chief Counsel shall forward to the Associate General Counsel (Contracts), NASA Headquarters, a copy of the proposed implementing procedures and thresholds.
g. The Associate General Counsel (Contracts) NASA Headquarters shall return the approved implementing procedures and thresholds to the Centers.
h. Any future modification to the approved implementating procedures and thresholds shall be submitted by the Center to the Associate General Counsel (Contracts), NASA Heqadquarters for approval prior to revision.
i.The Headquarters Office of Procurement and the Office of General Counsel should do a yearly assessment of Center review thresholds to ensure that a risk based approach has been undertaken for the Agency.
The General Counsel will measure compliance with this directive through existing communications and reporting channels.
NPD 5101.1D, Requirements for Legal Review of Procurement Matters, dated September 15, 1997.
A.1 NPD 1000.3, The NASA Organization.
A.2 NPD 2000.1, Authority To Take Certain Actions for the General Counsel.