1. The Intersection of Procurement Contracts and Space Act Agreements A Practical Guide to Recognizing and Understanding Some Common Issues November 20, 2013 Amy Voigt Xenofos Assistant Chief Counsel, General Law & External Partnerships Office of Chief Counsel NASA Johnson Space Center National Aeronautics and Space Administration SAA Street Procurement

2. Definitions – Procurement Contract – Space Act Agreement Intersections – 1: Excess Capacity Utilization for Unique Facilities – 2: Subcontracting with NASA – 3: Interagency Agreements – 4: Data Rights – 5: Organizational Conflict of Interest Agenda

3. Procurement Contract A contract is a mutually binding legal relationship and may comprise an obligation placed on a seller to furnish supplies or services and a buyer to pay for them. The principal purpose is to acquire, for NASA's direct use or benefit, a well- defined, specific effort clearly required for the accomplishment of a scheduled NASA mission or project. Authority: Space Act (Sec. 20113(e)); and Armed Services Procurement Act (10 U.S.C. Chapter 137) Implementing regulations: Federal Acquisition Regulation, Title 48, Chapter 1, Code of Federal Regulations; NASA FAR Supplement, Title 48, Chapter 18, Code of Federal Regulations Process Owner: BA/Office of Procurement

4. Space Act Agreements (SAAs) The National Aeronautics & Space Act authorizes NASA "to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate..." A Space Act Agreement (SAA) is a legally enforceable commitment of Agency resources (including personnel, funding, services, equipment, expertise, information, or facilities). Authority: The National Aeronautics and Space Act, 51 U.S.C. 20113(e) Types: Reimbursable, Nonreimbursable, Funded Implementing policies: NPD 1050.1; Space Act Agreements Guide (NAII 1050- 1C) Process Owner: AO/Strategic Opportunities & Partnership Development Office

5. Procurement Contract vs. SAA When to use one or the other? Determined through a “proper instrument analysis” conducted by Office of Chief Counsel or General Counsel. Heirarchy of instruments – Procurements, grants, cooperative agreements at top – SAAs at the bottom. This is an “other transaction.” If no other authority accomplishes the purpose, an SAA may be appropriate. e.g., Advanced R&D, Reimbursable activities for a Partner’s Benefit using unique NASA resources Sample questions to ask: – Is there a demonstrable NASA mission or program requirement? – Does the proposed activity continue an effort previously performed or currently performed under a specific transactional instrument? – Does NASA require the delivery of any item under the proposed activity?

6. Intersection #1: Use of Govt Facilities for Non-Contract Purposes Authority derives from FAR Subpart 45.3, Authorizing the Use & Rental of Govt Property Comes up with support services contracts where a contractor is tasked with managing a building or facility. Ex: JETS, NSOC, TEST. – Does not apply to “excess capacity” of services or capabilities. FAR allows for collection of consideration, but provides no authority to retain consideration. Space Act provides authority to retain. Therefore, a reimbursable SAA is used to document work allowed & retain consideration. – The Contractor does not charge NASA under its contract for the time it spends to execute the transaction and responsibilities associated with fulfilling the third party customer’s order. – NASA is fully reimbursed for facility utilization and any tangential NASA Civil Servant resources. – Practice is to request an External Customer Plan from the contractor describing how it will bring work requests to NASA and the review/approval process. This plan may be requested under the contract or the SAA> In the event of a conflict, the contract takes precedence over the SAA. – Will generally carve out an exception for liability and intellectual property terms. NASA/JSCContractor External Customer Procurement K SAA K

7. Intersection #2: Subcontracting with NASA Arises when NASA prime contractor requires support from a NASA Center to perform requirements under a NASA contract. – Ex: LM needs support from KSC in support of Orion contract – Ex: Boeing needs support from WSTF in support of SLS contract Centers can do work on a reimbursable basis. General way to document reimbursable work from an outside entity is an SAA. Creates confusion to have NASA provided equipment/service to perform contract work not provided through contract. – Conflicting terms between contract and SAA. – Charging of overhead fees back to programs. – Program in the middle of communication between contractor and center performing work Agency policy in work to document these relationships in a “letter agreement” under the contract. Not an SAA. – Documents scope of work, milestones, and cost However, if Government Provided Services are not feasible, an RSAA is allowed IF (1) it’s identified in the contract and (2) the contract defines an implementation method (e.g., a RSAA). Note: For SBIRs contracts, a Federal agency may not act as a subcontractor to an SBIR contractor unless the SBA grants a waiver. See SBA’s SBIR Policy Directive, Chp. 9, Para. (e)(4), Oct. 18, 2012

8. Intersection #3: Interagency Agreements Two types of interagency agreements: Reimbursable and funded Funded IAAs are procurements & handled consistent with FAR 17.5 and NFS 1817.5. NASA cites the Space Act as authority, but follows Economy Act procedures. Use Dept of Treasury Forms 7600A and 7600B to implement consistent with NASA’s IAA process. Reimbursable IAAs may cite the Space Act or the Economy Act (31 U.S.C. 1535). Handled consistent with NPR 9090.1 and the SAA Guide If under the Economy Act, must ensure requesting agency has provided NASA (servicing agency) its D&F for transaction Must be accompanied by at least 1 funding order (ex: MIPR) May be documented using Treasury forms, SAAM format, or in body of MIPR document.

9. Intersection #4: Data Rights Contractors often support SAA activities. A RSAA generally restricts data produced by NASA (or its contractors) in performance of a SAA. FAR 52.227-14, Rights in Data-General and NFS 1852.227-14 grant broad data rights for data produced by a contractor in performance of its contract. It is often necessary to modify a contract (for applicability across the entire contract or on a TO/DO basis) restricting the contractor’s data rights consistent with the terms of the SAA. Footnote 50 of NAII 1050.1C, SAA Guide includes a sample clause that implements the above restriction. Consultation with an intellectual property attorney in the JSC Office of Chief Counsel is highly recommended. SAA Partner NASA/JSC SAA Contractor Procurement K

10. Intersection #5: Organizational Conflicts of Interest (OCI) Typically in collaborative activities involving advanced R&D, potential OCI issues can arise. The above scenario potentially creates “unequal access to information” and “biased ground rules” problems. BA personnel will most likely not be aware of such issues until no earlier than in the actual procurement process. Mitigation techniques are available at the SAA development phase. Announcement/competition of opportunity to collaborate under SAA Unlimited data rights to NASA in SAA for data produced in performance of the SAA Leads to publication of results prior to future procurement Independent development by NASA personnel of specification for future procurement SAA Executed NASA Shares Reqs. & Corp. Knowledge Partner Dev. Add. Reqs. &Technology SAA Expires NASA Publishes RFP Based on Reqs & Technology Developed Per the SAA Partner Submits an Offer

11. Conclusion Procurement Contracts and SAAs are used for different purposes. However, intersections between the two transactional instruments do occur. It is incumbent on personnel who work on SAAs and Procurement Contracts to recognize these intersections and understand how to address implementation options and collateral consequences. The JSC Office of Chief Counsel is an available resource for help.