One of Brian’s Favorite Quotes
Quidquid latine dictum sit, altum viditur. (Whatever is said in Latin sounds profound.)”
Drug- and Alcohol-Free Workforce and Mission Critical Systems Personnel Reliability Program
NASA is proposing to revise the NASA FAR Supplement (NFS) to remove policy at 1846.370 NASA contract clauses, and the related clause at 1852.246-70, Mission Critical Space System Personnel Reliability Program. Additionally, other revisions, partially related to the removal of the Mission Critical Space System Personnel Reliability Program, and to clarify and update the guidance, are proposed to Subpart 1823.5, Drug-Free Workplace, and the associated clause at 1852.223-74, Drug- and Alcohol-Free Workforce.
NASA discontinued the Mission Critical Space System Personnel Reliability Program (the Program) effective April 8, 2014. As stated at 79 FR 7391, the Agency conducted an analysis of its existing regulations and determined that 14 CFR part 1214, entitled “Space Flight Mission Critical Systems Personnel Reliability Program,” was obsolete and had been replaced by other measures to ensure that contractor employees assigned to mission-critical positions meet established screening requirements. Accordingly, NFS policy implementing the Program is no longer needed. However, the Program was linked to the prescription for the Drug- and Alcohol-Free Workforce clause which directed contracting officers to use the clause in
NASA’s authority to require contractor alcohol and drug testing is derived from the Civil Space Employee Testing Act of 1991, Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619. The Act states the success of the United States civil space program is contingent upon the safe and successful development and deployment of the many varied components of that program and that the greatest efforts must be expended to eliminate the abuse of alcohol and use of illegal drugs. To this end, NASA is authorized to prescribe regulations which require contractors to conduct preemployment, reasonable suspicion, random, and post-accident testing of contractor employees responsible for safety-sensitive, security, or national security functions for use, in violation of applicable law or Federal regulation, of alcohol or a controlled substance. While the NFS drug and alcohol testing requirements are partially tied to the Mission Critical Space System Personnel Reliability Program, rescission of the program does not remove the need for such testing. Furthermore, 14 CFR, subpart 1214.5, contained two key terms and their definitions that will be helpful to Agency contracting officers in determining which contracts should include the drug and alcohol testing requirements. These terms are “mission critical space system” and “mission critical positions/duties.” This rule proposes to add these terms to NFS 1823.570, Drug- and Alcohol-free Workplace, and the associated clause at 1852.223-74, Drug- and Alcohol-Free Workforce.
Two other terms, “employee” and “controlled substance,” are referenced, but not defined at 1823.570-1. These terms are defined at FAR 23.503. Additionally, NFS 1823.570-1 contained the statement, “The use of a controlled substance in accordance with the terms of a valid prescription, or other uses authorized by law shall not be subject to the requirements of 1823.570 to 1823.570-3 and the clause at 1852.223-74.” This exemption of a controlled substance used in accordance with the terms of a valid prescription, or other uses authorized by law was removed from the definitions and added to paragraph (c)(1) of the clause, so that contractors may easily see when use of a controlled substance may be permitted.
A revised section (b)(2) to the clause adds a reference to NASA Procedural Requirements (NPR) 3792.1, NASA’s Plan for a Drug Free Workplace, Appendices A and B on “Testing Designated Positions” (TDPs) for federal employees, as a guide for contractors to use when determining if an employee is in a sensitive position and subject to drug and alcohol testing.
The most recent titles and references for the applicable Federal drug testing programs are added: “Mandatory Guidelines for Federal Workplace Drug Testing Programs” published by the Department of Health and Human Services 73 FR 71858 and the procedures in 49 CFR part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs. Additionally, the rule expands the list of drugs required to be tested for from “marijuana and cocaine” to add amphetamines, opiates and phencyclidine (PCP) in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs Mandatory Guidelines, Section 3.1, and 49 CFR 40.85.
Based on the Civil Space Employee Testing Act requirements, the current clause at 1852.223-74 requires contractors to conduct “post-accident” drug and alcohol testing. A new paragraph (5) is added to specify post-accident testing is required when the contractor determines the employee’s actions are reasonably suspected of having caused or contributed to an accident resulting in death or personal injury requiring immediate hospitalization or damage to Government or private property estimated to exceed $20,000. Additionally, the contractor is advised that the contracting officer may request the results of this post-accident testing. The purpose of this is to inform any accident investigation NASA may conduct. The contractor is required to provide only information on whether the testing was conducted and whether results showed any evidence of drug or alcohol use in violation of the clause. The contractor is not required to provide the names of individuals tested or of individual employee’s test results.