[Federal Register: February 7, 2005 (Volume 70, Number 24)]
[Rules and Regulations]
[Page 6505-6542]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe05-24]
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Part II
Department of Transportation
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48 CFR Chapter 12
Re-issuance of the Department of Transportation Acquisition Regulation;
Interim Final Rule
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
48 CFR Chapter 12
[Docket No. OST-2004-19899]
RIN 2105-AD28
Re-issuance of the Department of Transportation Acquisition
Regulation
AGENCY: Office of the Secretary, DOT.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of Transportation is reissuing the
Transportation Acquisition Regulation (TAR). This interim final rule
reflects changes made to implement and/or supplement the Federal
Acquisition Regulation (FAR). The TAR has been substantially revised to
update references to obsolete policies, procedures and organizations;
incorporate electronic links to references such as provisions to the
FAR, U.S. Codes, the Code of Federal Regulations; and adopt by
reference Office of Federal Procurement Policy Letters and Executive
orders. The reissued TAR eliminates coverage that is unnecessary or
duplicates the FAR or other directives. Only coverage that is suitable
and necessary will be retained in the regulation. These efforts will
create a 2004 edition of the TAR that is consistent with the 2001
edition of the FAR. The 2004 edition of the TAR will replace the 1994
edition.
DATES: This rule is effective April 8, 2005. Comments should be
received by March 9, 2005. Late-filed comments will be considered to
the extent practicable.
ADDRESSES: Comments on this interim final rule should be filed with:
the Docket Management System, U.S. Department of Transportation, Room
PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. Please
identify the docket number OST-2004-19899 at the beginning of your
comments. You may also submit comments through the internet to http://dms.dot.gov.
You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
comments to the docket on the Internet at http://dms.dot.gov. Search by
using the last set of digits in the docket number (omitting the ``OST-
2004'').
FOR FURTHER INFORMATION CONTACT: Rita Williams, Office of the Senior
Procurement Executive, M-60, 400 Seventh Street SW., Washington, DC
20590, (202) 366-9956.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of Transportation (DOT) has determined that changes
to the Transportation Acquisition Regulation (TAR) are necessary to
implement and align it with the 2001 Federal Acquisition Regulation
(FAR). DOT conducted a comprehensive review of the 1994 Edition of the
TAR with the goal of updating obsolete coverage, and implementing new
internal policies applicable to the DOT acquisition workforce. As a
result, the TAR Re-write team under the direction of the Senior
Procurement Executive, has undertaken a complete re-write of the TAR.
The TAR re-write project was conducted in coordination with all
Operating Administrations (OAS) of the DOT. OAs participated in the
development of the new TAR language and devised processes that were
most efficient and least burdensome to its users.
All United States Coast Guard (USCG) specific language and
subsequent clauses were removed from the TAR as a result of the
transfer of USCG from the DOT to the Department of Homeland Security on
March 1, 2003. As a result of organizational restructuring within DOT,
the Federal Motor Carrier Safety Administration (FMSCA) was established
as an OA and given an appropriate agency code for the purpose of
assigning contract numbers. The delegations of authority and
responsibilities for internal acquisition functions have been
authorized at the lowest reasonable level or allowed by higher level
regulations or statutes. During the re-write of TAR, care was taken to
eliminate unnecessary coverage including clauses, forms and obsolete
DOT notices or orders that no longer exist, and restructured language
that was misaligned with the FAR coverage. The goal of re-writing the
TAR was to ensure the regulation would only contain current and
appropriate coverage for a Department level acquisition regulation, and
to remove and re-designate any internal agency guidance from the TAR to
the Transportation Acquisition Manual (TAM). To implement Executive
Order 13043, the Seat Belt Use Policies and Programs clause was
established. In addition, implementation of the Federal Information
Security Management Act of 2002 and the Computer Security Act of 1987
required the establishment of the Requirements for Unclassified
Information Technology Resources and revision of the Qualification of
Contractor Employees clauses respectively.
Those parts which contain no coverage, and have been reserved are:
Parts 1208, 1209, 1210, 1212, 1218, 1220, 1221, 1225, 1226, 1229, 1230,
1234, 1238, 1240, 1241, 1243, 1244, and 1248 through 1251.
B. Regulatory Analysis and Notices
The Department has determined that this rule is not a significant
regulatory action, and therefore, was not subject to review under
Executive Order 12866 or under the Department's Regulatory Policies and
Procedures. The Department does not believe that there would be
significant federalism implications to warrant the preparation of a
federalism assessment.
C. Regulatory Flexibility Act
The Department certifies that this final rule does not 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 the rule merely restates previous TAR coverage, deletes
certification requirements which do not significantly alter the amount
of information currently required, and makes various editorial
revisions.
This proposed rule is not expected to have a significant impact on
a substantial number of small entities because any additional costs
associated with the rule can be factored into the contract price and
there is no distinction on this issue between a large or small
business. Therefore, an Initial Regulatory Flexibility Analysis has not
been performed. Comments are solicited from small businesses and other
interested parties and will be considered in accordance with section
610 of the Act in the development of the final rule.
D. Paperwork Reduction Act
The information collection requirements associated with this rule
have been submitted to the Office of Management and Budget (OMB) for
approval in accordance with 44 U.S.C. chapter 35 under OMB No. 2105-
0517; Administration: Office of the Secretary of Transportation;
Title: Transportation Acquisition Regulation (TAR);
Summary: This proposal implements requirements of the Federal
Acquisition Regulation (FAR), other regulations and
[[Page 6507]]
statutes to solicit, negotiate, award, and administer contracts;
Use of Information: This information supports the needs of the
Department of Transportation to evaluate offers, to ensure appropriate
contract controls are in place, and to minimize conditions conducive to
fraud, waste, and abuse.
Burden Estimate: 2,514 hours; Forms: DOT Form 1681 and DOT Form
4220.43; clauses: 1252.217-76, 1252.237-70 and 73, 1252.242-70 and 72,
and 1252.245-70.
Respondents (including number of): The likely respondents to this
proposed information are contractors and offerors who will respond to
solicitations or are awarded DOT contracts.
Frequency: Reports are submitted at different times depending upon
the need or requirements stipulated in the FAR or TAR.
Average burden hours per respondent: 7 hours 45 minutes. Comments
on the proposed information collection requirement should be sent to
the DOT rulemaking.
The agency is soliciting comments to--
(1) evaluate whether the proposed information requirements are
necessary;
(2) evaluate the accuracy of the Agency's estimate of the burden;
(3) enhance the quality, utility, and clarity of the information to
be collected; and
(4) minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Individuals and organizations may submit comments on the
information collection requirement by directing them to the address
listed in the ADDRESSES section of the document. Comments may also be
submitted to the Office of Information and Regulatory Affairs, OMB, New
Executive Building, Room 10202, 725 17th Street, NW., Washington, DC
20053. Attention: Desk Officer for the Department of Transportation.
E. Justification for Interim Final Rule
This rulemaking pertains exclusively to procedures concerning
public contracts. Consequently, the requirements of the Administrative
Procedure Act for notice and an opportunity for public comment prior to
issuing a final rule do not apply. Under 5 U.S.C. Sec. 553(a)(2),
matters relating to, among other things, public contracts are not
subject to notice and comment requirements. For this reason, the
Department has not issued a notice of proposed rulemaking for this
final rule. However, consistent with the Department's Regulatory
Policies and Procedures, the Department is providing an opportunity for
public comment before the final rule goes into effect.
List of Subjects in 48 CFR Chapter 12
Government procurement.
This rule is issued this 13th day of January, 2005, at
Washington, DC, under the delegated authority of the Senior
Procurement Executive pursuant to 49 CFR 1.59a (a)(1).
David J. Litman,
Senior Procurement Executive.
0
For the reasons set out in the preamble, 48 CFR chapter 12 is revised
to read as follows:
CHAPTER 12--DEPARTMENT OF TRANSPORTATION
SUBCHAPTER A--GENERAL
Part
1201 Federal Acquisition Regulation System
1202 Definitions of words and terms
1203 Improper business practices and personal conflicts of interest
1204 Administrative matters
SUBCHAPTER B--ACQUISITION PLANNING
1205 Publicizing contract actions
1206 Competition requirements
1207 Acquisition planning
1208 [Reserved]
1209 [Reserved]
1210 [Reserved]
1211 Describing agency needs
1212 [Reserved]
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1213 Simplified acquisition procedures
1214 Sealed bidding
1215 Contracting by negotiation
1216 Types of contracts
1217 Special contracting methods
1218 [Reserved]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1219 Small business programs
1220 [Reserved]
1221 [Reserved]
1222 Application of labor laws to government acquisitions
1223 Environment, energy and water efficiency, renewable energy
technologies, occupational safety, and drug-free workplace
1224 Protection of privacy and freedom of information
1225 [Reserved]
1226 [Reserved]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1227 Patents, data and copyrights
1228 Bonds and insurance
1229 [Reserved]
1230 [Reserved]
1231 Contract cost principles and procedures
1232 Contract financing
1233 Protests, disputes and appeals
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1234 [Reserved]
1235 Research and development contracting
1236 Construction and architect-engineer contracts
1237 Service contracting
1238 [Reserved]
1239 Acquisition of information technology
1240 [Reserved]
1241 [Reserved]
SUBCHAPTER G--CONTRACT MANAGEMENT
1242 Contract administration and audit services
1243 [Reserved]
1244 [Reserved]
1245 Government property
1246 Quality assurance
1247 Transportation
1248 [Reserved]
1249 [Reserved]
1250 [Reserved]
1251 [Reserved]
SUBCHAPTER H--CLAUSES AND FORMS
1252 Solicitations provisions and contract clauses
1253 Forms
PART 1201--FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 1201.1--Purpose, Authority, Issuance
Sec.
1201.101 Purpose.
1201.104 Applicability.
1201.105 Issuance.
1201.105-1 Publication and code arrangement.
1201.105-2 Arrangement of regulations.
1201.105-3 Copies.
1201.106 OMB Approval under the Paperwork Reduction Act.
Subpart 1201.2--Administration
1201.201 Maintenance of the FAR.
1201.201-1 The two councils.
Subpart 1201.3--Agency Acquisition Regulations
1201.301 Policy.
1201.301-70 Amendment of (TAR) 48 CFR Chapter 12.
1201.301-71 Effective date.
1201.301-72 TAC or TN numbering.
1201.304 Agency control and compliance procedures.
Subpart 1201.4-70--Deviations From the FAR and TAR
1201.403 Individual deviations. 1201.105
1201.404 Class deviations.
[[Page 6508]]
Subpart 1201.6--Career Development, Contracting Authority and
Responsibilities
1201.602-3 Ratification of unauthorized commitments.
1201.603-1 General.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Appendix to Part 1252-TAR Matrix
Subpart 1201.1--Purpose, Authority, Issuance
1201.101 Purpose.
The Department of Transportation (DOT) Acquisition Regulation (TAR)
establishes uniform acquisition policies and procedures, which
implement and supplement the Federal Acquisition Regulation (FAR).
1201.104 Applicability.
(a) Statute, the (FAR) Title 48, Code of Federal Regulations (CFR)
chapter 1, and (TAR) 48 CFR chapter 12 apply to all acquisitions within
the Department unless otherwise excluded by statute, the (FAR) 48 CFR
chapter 1, or (TAR) 48 CFR chapter 12.
(b) The following order of precedence applies to resolve any
question of applicability concerning an acquisition regulation or a
procedure found within (TAR) 48 CFR chapter 12 or the Transportation
Acquisition Manual (TAM):
(1) Statute;
(2) (FAR) 48 CFR chapter 1 or other applicable regulation;
(3) (TAR) 48 CFR chapter 12;
(4) DOT Orders; and
(5) TAM.
(c) The Maritime Administration may depart from the requirements of
the (FAR) 48 CFR chapter 1 and (TAR) 48 CFR chapter 12 as authorized by
40 U.S.C. 113(e)(15) but shall adhere to those regulations to the
maximum extent practicable. Exceptions from the requirements of the
(FAR) 48 CFR chapter 1 and/or (TAR) 48 CFR chapter 12 shall be
documented according to Maritime Administration procedures or in each
contract file, as appropriate.
(d) The (FAR) 48 CFR chapter 1, (TAR) 48 CFR chapter 12 and TAM do
not apply to the Federal Aviation Administration as provided by the
Department of Transportation and Related Agencies Appropriations Act,
1996, Public Law 104-50, unless otherwise directed by the Office of the
Secretary of Transportation.
1201.105 Issuance.
1201.105-1 Publication and code arrangement.
(a) The (TAR) 48 CFR chapter 12 is published in:
(1) The Federal Register; and
(2) Cumulative form in the CFR.
(b) The TAR is issued as chapter 12 of Title 48 of the CFR.
1201.105-2 Arrangement of regulations.
(a) General. The (TAR) 48 CFR chapter 12, which encompasses both
Department and Operating Administration (OA)-specific guidance (see
(TAR) 48 CFR 1201.3), conforms with the arrangement and numbering
system prescribed by (FAR) 48 CFR 1.104. Guidance that is OA-specific
contains the OA's acronym directly after the heading. The following
acronyms apply:
FHWA--Federal Highway Administration
FMCSA--Federal Motor Carrier Safety Administration
FRA--Federal Railroad Administration
FTA--Federal Transit Administration
MARAD--Maritime Administration
NHTSA--National Highway Traffic Safety Administration
OST--Office of the Secretary
RSPA--Research and Special Programs Administration
SLSDC--Saint Lawrence Seaway Development Corporation
(b) Numbering. (1) Departmentwide guidance. (i) The numbering
illustrations at (FAR) 48 CFR 1.105-2 apply to (TAR) 48 CFR chapter 12.
(ii) Coverage within (TAR) 48 CFR chapter 12 is identified by the
prefix ``12'' followed by the complete (FAR) 48 CFR chapter 1 cite. For
example, (TAR) 48 CFR 1201.201-1(b)).
(iii) Coverage in (TAR) 48 CFR chapter 12 that supplements (FAR) 48
CFR chapter 1 will use part, subpart, section and subsection numbers
ending in ``70'' through ``89'' (e.g., (TAR) 48 CFR 1201.301-70). A
series of numbers beginning with ``70'' is used for provisions and
clauses.
(iv) Coverage in (TAR) 48 CFR chapter 12, other than that
identified with a ``70'' or higher number, that implements the (FAR) 48
CFR chapter 1 uses the identical number sequence and caption of the
(FAR) 48 CFR chapter 1 segment being implemented, which may be to the
paragraph level. Paragraph numbers and letters are not always shown
sequentially, but may be shown by the specific FAR paragraph
implemented. For example, (TAR) 48 CFR 1201.201-1 contains only
paragraph (b) because only this paragraph, correlated with FAR,
implements (TAR) 48 CFR chapter 12.
(2) Operating Administration-unique guidance. Supplementary
material for which there is no counterpart in (FAR) 48 CFR chapter 1 or
(TAR) 48 CFR chapter 12 shall be identified using chapter, part,
subpart, section, or subsection numbers of ``90'' and higher.
(c) References and citations. (TAR) 48 CFR chapter 12 may be
referred to as the Department of Transportation Acquisition Regulation
or the TAR. Cross reference to the FAR in (TAR) 48 CFR chapter 12 will
be cited by ``FAR'' followed by the FAR numbered cite, and cross
reference to the TAM in (TAR) 48 CFR chapter 12 will be cited by
``TAM'' followed by the TAM numbered cite. References to specific cites
within (TAR) 48 CFR chapter 12 will be referenced by the numbered cite
only.
1201.105-3 Copies.
(a) Copies of the TAR in Federal Register, and CFR form may be
purchased from the Superintendent of Documents, Government Printing
Office, Washington, DC 20402. The electronic version of the Federal
Register may be found at http://www.nara.gov and the CFR at http://www.gpoaccess.gov.
(b) The (TAR) 48 CFR chapter 12 and Transportation Acquisition
Circulars (TACs) are available on the Internet at http://www.dot.gov/ost/m60
.
1201.106 OMB Approval Under the Paperwork Reduction Act.
(a) Data collection by regulation. The information collection and
recordkeeping requirements contained in (TAR) 48 CFR chapter 12 have
been approved by the Office of Management and Budget (OMB).
(b) Data collection under proposed contracts. Under the regulations
implementing the requirements of the Paperwork Reduction Act (5 CFR
1320), OMB must approve, prior to obligation of funds, proposed
contracts which require the collection of information from ten or more
non-Federal persons or entities. Solicitations requiring this level of
information collection may be released prior to OMB approval provided
that:
(1) A statement is included in the solicitation to the effect that
the contract will not be awarded until OMB approval of the information
collection requirements of the proposed contract has been obtained; and
(2) Enough time is permitted to allow receipt of OMB approval prior
to contract award.
Subpart 1201.2--Administration
1201.201 Maintenance of the FAR.
1201.201-1 The two councils.
(b) The SPE is responsible for providing a DOT representative to
the
[[Page 6509]]
Civilian Agency Acquisition Council (CAAC).
Subpart 1201.3--Agency Acquisition Regulations
1201.301 Policy.
(a)(1) Acquisition regulations. (i) Departmentwide acquisition
regulations. The Department of Transportation's (DOT's) Senior
Procurement Executive (SPE) is the individual having authority to issue
or authorize the issuance of agency regulations that implement or
supplement the FAR and to include agency-unique policies, etc. that
govern the contracting process. This authority was re-delegated from
the Assistant Secretary for Administration.
(ii) Operating Administration (OA) acquisition regulations. OA
acquisition regulations, and any changes thereto, shall be reviewed and
approved by the Senior Procurement Executive (SPE) for insertion into
the (TAR) 48 CFR chapter 12 as a TAR supplemental regulation before the
SPE submits the proposed coverage for publication in the Federal
Register in accordance with (FAR) 48 CFR 1.501. OA regulations may be
more restrictive or require higher approval levels than those permitted
by (TAR) 48 CFR chapter 12 unless otherwise specified.
(2) Acquisition procedures. The SPE is the individual who issues or
authorizes the issuance of internal agency guidance at any
organizational level. DOT internal operating procedures are contained
in the Transportation Acquisition Manual (TAM). OA procedures necessary
to implement or supplement the (FAR) 48 CFR chapter 1, (TAR) 48 CFR
chapter 12, or TAM may be issued by the Head of the Contracting Agency
(HCA), who may delegate this authority to any organizational level
deemed appropriate. OA procedures may be more restrictive or require
higher approval levels than those permitted by the TAM unless otherwise
specified.
(b) The authority of the agency head under (FAR) 48 CFR 1.301(b) to
establish procedures to ensure that agency acquisition regulations are
published for comment in the Federal Register in conformance with the
procedures in FAR Subpart 1.5 is delegated to the Office of the General
Counsel, Assistant General Counsel for Regulation and Enforcement (C-
50).
1201.301-70 Amendment of (TAR) 48 CFR chapter 12.
(a) Changes to the regulation may be the result of recommendations
from internal DOT personnel, other Government agencies, or the public.
Changes shall be submitted in the following format to the Office of the
Senior Procurement Executive (OSPE), 400 7th Street, SW., Washington,
DC 20590:
(1) Problem: Succinctly state the problems created by current (TAR)
48 CFR chapter 12 language and describe the factual or legal reasons
necessitating regulatory change.
(2) Recommendation: Identify the recommended change by using the
current language (if applicable), and crossing out the deleted words
with a horizontal line. Insert proposed language in brackets. If the
change is extensive, deleted language may be displayed by forming a box
with diagonal lines connecting the corners.
(3) Discussion: Explain why the change is necessary and how it will
solve the problem. Address any cost or administrative impact on
Government activities, offerors, and contractors. Provide any other
information and documents such as statutes, legal decisions,
regulations, reports, etc., that may be helpful.
(4) Point of contact: Provide a point of contact who can answer
questions regarding the recommendation.
(b) The (TAR) 48 CFR chapter 12 is maintained by the SPE through
the TAR/TAM change process. This process consists of input from various
DOT elements including representatives from DOT OAs specifically
designated to formulate Departmental acquisition policies and
procedures.
(1) Transportation Acquisition Circular (TAC). TACs (see (TAR) 48
CFR 1201.301-72) will be used to amend (TAR) 48 CFR chapter 12.
(2) TAR Notice (TN). (i) TNs shall be issued when interim guidance
is necessary and as often as may be necessary, under any of the
following circumstances:
(A) To quickly promulgate selected material in a general or
narrative manner, in advance of a TAC issuance;
(B) To disseminate other acquisition related information; or
(C) To issue guidance which may be effective for a period of 1 year
or less.
(ii) Each TN will expire by a specific date.
1201.301-71 Effective date.
Unless otherwise stated, the following applies--
(a) Statements in TACs or TNs to the effect that the material
therein is ``effective upon receipt,'' ``upon a specified date,'' or
that changes set forth in the document are ``to be used upon receipt,''
mean that any new or revised provisions, clauses, procedures, or forms
must be included in solicitations, contracts or modifications issued
thereafter; and
(b) Unless expressly directed by statute or regulation,
solicitations in process or completed negotiations when the TAC or TN
is received, new information such as forms and clauses, need not be
included if the chief of the contracting office determines that it
would not be in the best interest of the Government to include the new
information.
1201.301-72 TAC or TN numbering.
TACs and TNs will be numbered consecutively on a fiscal year basis
beginning with number ``01'' prefixed by the last two digits of the
fiscal year (e.g., TNs 04-01 and 04-02 indicate the first two TNs
issued in fiscal year 2004).
1201.304 Agency control and compliance procedures.
(a) DOT shall control the proliferation of acquisition regulations
and any revisions thereto (except as noted in paragraph (b) of this
section) by using an internal (TAR) 48 CFR chapter 12 change process
that involves input from many DOT elements including OA representatives
on the Procurement Management Council. The OA member shall represent
their OA's viewpoint along with Departmentwide considerations in
reaching a decision on (TAR) 48 CFR chapter 12 changes.
(b) OA-unique regulations will not be processed through the TAR/TAM
change process, but shall be reviewed by OA legal counsel and submitted
to the OSPE for review and approval. (See (TAR) 48 CFR 1252.101 for
additional instructions pertaining to provisions and clauses.)
Subpart 1201.4-70--Deviations From the FAR and TAR
1201.403 Individual deviations.
The Head of the Contracting Activity, or designee with a rank that
is no lower than that of Senior Executive Service (SES) official or
that of a Flag Officer, may authorize individual deviations (unless
(FAR) 48 CFR 1.405(e) applies). However, see TAM 1201.403.
1201.404 Class deviations.
The SPE may grant in writing class deviations from the (FAR) 48 CFR
chapter 1 and (TAR) 48 CFR chapter 12, unless (FAR) 48 CFR 1.405(e)
applies.
[[Page 6510]]
Subpart 1201.6--Career Development, Contracting Authority and
Responsibilities
1201.602-3 Ratification of unauthorized commitments.
(b) Policy. DOT policy requires that all procurement decisions
shall be made only by Government officials having authority to carry
out such acquisitions. Procurement decisions made by other than
authorized personnel are contrary to Departmental policy and may be
considered matters of serious misconduct on the part of the employee
making an unauthorized commitment. Disciplinary action against an
employee who makes an unauthorized commitment may be considered.
1201.603-1 General.
Each DOT OA is responsible for appointing its contracting officers.
PART 1202--DEFINITIONS OF WORDS AND TERMS
Subpart 1202.1--Definitions
Sec.
1202.1 Definitions.
Subpart 1202.70--Internet Links
1202.7000 General.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1202.1--Definitions
1202.1 Definitions.
Agency, Federal agency or Executive agency means the Department of
Transportation.
Chief Information Officer means the Director of the Office of the
Chief Information Officer (CIO) (S-80).
Chief of the Contracting Office (COCO) means the individual(s)
responsible for managing the contracting office(s) within an Operating
Administration.
Contracting activity includes all the contracting offices within an
Operating Administration and is the same as the term ``procuring
activity.''
Contracting officer (CO) means an individual authorized by virtue
of their position or by appointment to perform the functions assigned
by the Federal Acquisition Regulation (FAR), the Transportation
Acquisition Regulation (TAR) and Transportation Acquisition Manual
(TAM).
Department of Transportation means all of the Operating
Administrations included within the Department of Transportation (DOT).
Head of the agency or agency head for Departmental procurement
means the Deputy Secretary except for acquisition actions that, by the
terms of a statute or delegation, must be done specifically by the
Secretary of Transportation.
Head of the Contracting Activity (HCA) means the individual
responsible for managing the contracting offices within an Operating
Administration who is a member of the Senior Executive Service or a
flag officer and is the same as the term ``Head of the Procuring
Activity.''
Head of the Operating Administration (HOA) means the individual
appointed by the President to manage the operating administration.
Operating Administration (OA) means the following components of
DOT:
(1) Federal Aviation Administration (FAA); (FAA is exempt from FAR,
TAR and TAM pursuant to the Department of Transportation and Related
Agencies Appropriations Act, 1996, Public Law 104-50;
(2) Federal Highway Administration (FHWA);
(3) Federal Motor Carrier Safety Administration (FMCSA);
(4) Federal Railroad Administration (FRA);
(5) Federal Transit Administration (FTA);
(6) Maritime Administration (MARAD);
(7) National Highway Traffic Safety Administration (NHTSA);
(8) Office of the Secretary of Transportation (OST);
(9) Research and Special Programs Administration (RSPA);
(10) Saint Lawrence Seaway Development Corporation (SLSDC).
Senior Procurement Executive (SPE) means the Director of the Office
of the Senior Procurement Executive (M-60).
Small Business Specialist (SBS) means the individual appointed by
each HCA to assist the Director, Office of the Small and Disadvantaged
Business Utilization in carrying out the purpose of the Small Business
Act.
Subpart 1202.70--Internet Links
1202.7000 General.
Most documents cited throughout (TAR) 48 CFR chapter 12, can be
found on the internet. (TAR) 48 CFR chapter 12 will cite the
corresponding internet address.
PART 1203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 1203.1--Safeguards
Sec.
1203.101-3 Agency regulations.
Subpart 1203.2--Contractor Gratuities to Government Personnel
1203.203 Reporting suspected violations of the Gratuities clause.
1203.204 Treatment of violations.
Subpart 1203.3--Reports of Suspected Antitrust Violations
1203.301 General.
1203.303 Reporting suspected antitrust violations.
Subpart 1203.4--Contingent Fees
1203.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 1203.5--Other Improper Business Practices
1203.502 Subcontractor kickbacks.
1203.502-2 Subcontractor kickbacks.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1203.1--Safeguards
1203.101-3 Agency regulations.
(b) 5 CFR part 2635, Standards of Ethical Conduct for Employees of
the Executive Branch, takes precedence over the DOT regulation at 49
CFR part 99.
Subpart 1203.2--Contractor Gratuities to Government Personnel
1203.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations of the Gratuities clause shall be reported
to the contracting officer responsible for the acquisition (or the COCO
if the contracting officer is suspected of the violation). The
contracting officer (or COCO) shall obtain from the person reporting
the violation, and any witnesses to the violation, the following
information:
(1) The date, time, and place of the suspected violation;
(2) The name and title (if known) of the individual(s) involved in
the violation; and
(3) The details of the violation (e.g., the gratuity offered or
intended) to obtain a contract or favorable treatment under a contract.
(b) The person reporting the violation and witnesses (if any)
should be requested to sign and date the information certifying that
the information furnished is true and correct.
(c) The COCO shall report suspected violations to the Office of the
Inspector General (OIG) (J-1), 400 7th Street, SW., Washington, DC
20590, with a copy to General Counsel (C-1) and the OA's Chief Counsel.
1203.204 Treatment of violations.
(a) The HCA is authorized to determine whether a Gratuities clause
violation has occurred. If the HCA has been personally and
substantially involved in the procurement,
[[Page 6511]]
Government legal counsel advice should be sought to determine if a
substitute for the HCA should be designated.
(b) The COCO shall ensure that the contractor is afforded the
hearing procedures required by (FAR) 48 CFR 3.204(b). Government legal
counsel should be consulted regarding the appropriateness of the
hearing procedures.
(c) If the HCA determines that the alleged gratuities violation
occurred during the ``conduct of an agency procurement'' the COCO shall
consult with Government legal counsel regarding the approach for
appropriate processing of either the Procurement Integrity Act
violation and/or the Gratuities violation.
Subpart 1203.3--Reports of Suspected Antitrust Violations
1203.301 General.
(b) The same procedures contained in (TAR) 48 CFR 1203.203 shall
also be followed for suspected antitrust violations, except reports of
suspected antitrust violations shall be coordinated with legal counsel
for referral to the Department of Justice, if deemed appropriate.
1203.303 Reporting suspected antitrust violations.
(b) The same procedures contained in (TAR) 48 CFR 1203.203 shall
also be followed for suspected antitrust violations, except reports of
suspected antitrust violations shall be coordinated with legal counsel
for referral to the Department of Justice, if deemed appropriate.
Subpart 1203.4--Contingent Fees
1203.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) and (b)(4) The same procedures contained in (TAR) 48 CFR
1203.203 shall also be followed for misrepresentation or violations of
the covenant against contingent fees, except reports of
misrepresentation or violations of the covenant against contingent fees
shall be coordinated with legal counsel for referral to the Department
of Justice, if deemed appropriate.
Subpart 1203.5--Other Improper Business Practices
1203.502 Subcontractor kickbacks.
1203.502-2 Subcontractor kickbacks.
(g) The same procedures contained in (TAR) 48 CFR 1203.203 shall
also be followed for subcontractor kickbacks.
PART 1204--ADMINISTRATIVE MATTERS
Subpart 1204.1--Contract Execution
Sec.
1204.103 Contract clause.
Subpart 1204.8--Government Contract Files
1204.804-5 Procedures for closing out contract.
1204.804-570 Supporting closeout documents.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1204.1--Contract Execution
1204.103 Contract clause.
The contracting officer shall insert the clause at (FAR) 48 CFR
52.204-1, Approval of Contract, filled in as appropriate, in
solicitations and contracts when approval to award the resulting
contract must be obtained from an official at a level above the
contracting officer.
Subpart 1204.8--Government Contract Files
1204.804-5 Procedures for closing out contract files.
1204.804-570 Supporting closeout documents.
(a) When applicable (see paragraphs (a)(1) through (4) of this
section) and prior to contract closeout, the contracting officer shall
obtain the listed DOT and Department of Defense (DOD) forms from the
contractor to facilitate contract closeout.
(1) Form DOT F 4220.4, Contractor's Release, see (FAR) 48 CFR
52.216-7;
(2) Form DOT F 4220.45, Contractor's Assignment of Refunds,
Rebates, Credits and Other Amounts, (FAR) 48 CFR 52.216-7;
(3) Form DOT F 4220.46, Cumulative Claim and Reconciliation
Statement, see (FAR) 48 CFR 4.804-5(a)(13); and
(4) DD Form 882, Report of Inventions and Subcontracts http://www.dior.whs.mil/forms/DD0882.PDF
, see (FAR) 48 CFR 52.227-14.
(b) The forms listed in paragraph (a) of this section are used
primarily for the closeout of cost-reimbursement, time-and-materials,
and labor-hour contracts. However, the forms may also be used for
closeout of other contract types or when necessary to protect the
Government's interest.
PART 1205--PUBLICIZING CONTRACT ACTIONS
Subpart 1205.1--Dissemination of Information
Sec.
1205.101 Methods of disseminating information.
Subpart 1205.4--Release of Information
1205.402 General public.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1205.1--Dissemination Of Information
1205.101 Methods of disseminating information.
(b) The DOT Office of Small and Disadvantaged Business Utilization
(S-40), 400 7th Street, SW., Washington, DC 20590 publishes a
Procurement Forecast of planned procurements each fiscal year on their
Web site at: http://osdbuweb.dot.gov/business/procurement/forecast.html
.
Subpart 1205.4--Release of Information
1205.402 General public.
(a) Upon request, DOT will furnish the general public with the
following information on proposed contracts and contract awards:
(1) Prior to the opening of sealed bids or the closing date for
receipt of proposals, the names of firms invited to submit sealed bids
or proposals;
(2) Prior to the opening of sealed bids or the closing date for
receipt of proposals, the names of firms which attended pre-proposal or
pre-bid conferences, if any;
(3) After the opening of sealed bids, names of firms which
submitted bids; and
(4) After contract award, the names of firms which submitted
proposals.
(b) Requests for other specific information shall be processed in
accordance with the DOT Freedom of Information Act rules and
regulations ((TAR) 48 CFR 1224.203).
PART 1206--COMPETITION REQUIREMENTS
Subpart 1206.5--Competition Advocates
Sec.
1206.501 Requirement.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1206.5--Competition Advocates
1206.501 Requirement.
The DOT Senior Competition Advocate (SCA) is the Deputy Assistant
Secretary for Administration.
PART 1207--ACQUISITION PLANNING
Subpart 1207.3--Contractor Versus Government Performance
Sec.
[[Page 6512]]
1207.302 General.
1207.305 Solicitation provisions and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1207.3--Contractor Versus Government Performance
1207.302 General.
DOT follows OMB Circular A-76, Performance of Commercial
Activities, and (FAR) 48 CFR 7.3 when cost comparisons between
Government and contractor performance are conducted.
1207.305 Solicitation provisions and contract clause.
The contracting officer may insert clause (TAR) 48 CFR 1252.237-73,
Key Personnel, in solicitations and contracts when the acquisition is
conducted pursuant to OMB Circular A-76 and meets the clause
prescription requirements at (TAR) 48 CFR 1237.110(b).
PART 1211--DESCRIBING AGENCY NEEDS
Subpart 1211.1--Selecting and Developing Requirements Documents
Sec.
1211.101 Order of precedence for requirements documents.
Subpart 1211.2--Using and Maintaining Requirements Documents
1211.204-70 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1211.1--Selecting and Developing Requirements Documents
1211.101 Order of precedence for requirements documents.
Safeguards to ensure safety, security (including sensitive
information and information technology security) and environmental
protection shall be included, as applicable, in requirements documents.
Subpart 1211.2--Using and Maintaining Requirements Documents
1211.204-70 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at (TAR) 48 CFR
1252.211-70, Index for Specifications, when an index or table of
contents may be furnished with the specification.
PART 1213--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 1213.71--Department of Transportation Procedures for Acquiring
Training Services
Sec.
1213.7100 Applicability.
1213.7101 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1213.71--Department of Transportation Procedures for
Acquiring Training Services
1213.7100 Applicability.
(a) DOT policy at (TAR) 48 CFR 1237.7000 also applies to the
Standard Form (SF) 182, Request, Authorization, Agreement and
Certification of Training, which may be used to acquire training
services; however, the policy does not apply to training services
acquired by the Government purchase/credit card. The Government
purchase/credit card can only be used to acquire training services
valued at $2,500 or less.
(b) As reflected in (TAR) 48 CFR 1237.7002, this policy does not
apply to training attended by DOT employees which is scheduled and
conducted by Government sources of supply, educational institutions, or
private entities where DOT does not control or sponsor the training.
Examples of when the policy does and does not apply include:
(1) When SF 182s are issued for three DOT employees to attend a one
week course at a university or other private entity, the policy does
not apply. DOT does not control this course because the university or
private entity has a contract in place with the training provider and
DOT is placing an order under an existing contract; and
(2) When DOT awards a contract to a university or other private
entity to provide training for DOT and/or other Government personnel,
the policy applies. DOT controls this course; therefore, no soliciting
or advertising of private non-Government training while conducting the
contracted-for training is permitted.
1213.7101 Solicitation provision and contract clause.
(a) Contracting officers shall insert the provision at (TAR) 48 CFR
1252.237-71, Certification of Data, in all solicitations and requests
for quotations, and the clause at (TAR) 48 CFR 1252.237-72, Prohibition
on Advertising, in solicitations, requests for quotations, and all
contracts (e.g., purchase orders, SF 182s) for training services when
the content and/or presentation of the training is controlled by DOT.
(Notice: The Secretary of Transportation has determined that the
certification required by (TAR) 48 CFR 1252.237-71 shall be retained in
accordance with Section 4301(b)(1)(B)(i)(II) of the Federal Acquisition
Reform Act (Public Law 104-106, 41 U.S.C. 425, note) and DOT Memorandum
dated July 17, 1996.)
(b) Contracting officers shall incorporate the successful offeror's
certified data into any resultant contract(s). Certified data may be
adopted by reference, if the contracting officer determines it contains
information sufficient to reliably describe the certified data
submitted. For example, this type of information includes dated
material such as resumes and company or personnel qualifications.
PART 1214--SEALED BIDDING
Subpart 1214.3--Submission of Bids
Sec.
1214.302 Bid submission.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1214.3--Submission of Bids
1214.302 Bid submission.
(b)(1) Contracting officers may permit telegraphic bids to be
communicated by means of a telephone call from the telegraph office to
the designated office provided that procedures and controls have been
established by the COCO for receiving and safeguarding these incoming
bids.
PART 1215--CONTRACTING BY NEGOTIATION
Subpart 1215.2--Solicitation and Receipt of Proposals and Information
Sec.
1215.207 Handling proposals and information.
Subpart 1215.4--Contract Pricing
1215.404 Proposal analysis.
1215.404-470 Payment of profit or fee.
Subpart 1215.6--Unsolicited Proposals
1215.602 Policy.
1215.603 General.
1215.604 Agency points of contact.
1215.606 Agency procedures.
1215.606-1 Receipt and initial review.
1215.606-2 Evaluation.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1215.2--Solicitation and Receipt of Proposals and
Information
1215.207 Handling proposals and information.
(a) Offeror's proposals and information received in response to a
[[Page 6513]]
request for information shall be marked as required by TAM 1203.104-4,
as applicable.
(b) Proposals may be released outside the Government whenever it is
the only means of receiving the most competent technical and/or
management evaluation available.
Subpart 1215.4--Contract Pricing
1215.404 Proposal analysis.
1215.404-470 Payment of profit or fee.
The contracting officer shall not pay profit or fee on
undefinitized contracts or undefinitized contract modifications. Any
profit or fee earned shall be paid after the contract or modification
is definitized.
Subpart 1215.6--Unsolicited Proposals
1215.602 Policy.
DOT's policy encourages submission of new and innovative ideas that
will support DOT's mission. Through the various Operating
Administrations (OAs), DOT is responsible for transportation safety
improvements, international transportation agreements and the
continuity of transportation services in the public interest.
1215.603 General.
DOT will accept unsolicited proposals from any entity for review
and consideration. However, DOT will not pay any costs associated with
the preparation of these proposals. Proposals that do not meet the
definition and applicable content and marking requirements of (FAR) 48
CFR 15.6 will not be considered under any circumstances and will be
returned to the submitter.
1215.604 Agency points of contact.
(a) The DOT does not have a centralized location to receive
unsolicited proposals. The type of effort submitted in the proposal
determines which DOT OA should receive and evaluate the proposal.
(b) Unsolicited proposals should be submitted to the responsible OA
contracting office for appropriate handling. Specific information
concerning the mission of each DOT OA is available on the worldwide web
at http://www.dot.gov. Prospective contractors are urged to contact
these contracting/procurement offices prior to submitting a proposal to
ensure that the unsolicited proposal reaches the correct contracting
office for action. This action will reduce unnecessary paperwork and
wasted time for both the Government and the prospective contractors.
1215.606 Agency procedures.
(a) The Chief of the Contracting Office is responsible for
establishing procedures for controlling unsolicited proposals received
in the contracting office. Within ten working days after receipt of an
unsolicited proposal, the contracting office shall review the proposal
and determine whether the proposal meets the content and marking
requirements of (FAR) 48 CFR 15.6. If the proposal does not meet these
requirements, it shall be returned to the submitter giving the reasons
for noncompliance.
(b) The OA contracting office is the designated point of contact
for receipt and handling of unsolicited proposals. Persons within DOT
who receive unsolicited proposals, such as technical personnel, shall
forward the document to their responsible contracting office.
1215.606-1 Receipt and initial review.
(a) The agency contact point must make an initial review
determination within seven calendar days after receiving a proposal.
(b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-
1(a), the agency contact point must acknowledge receipt within three
calendar days after making the initial review determination and advise
the offeror of the general timeframe for completing the evaluation.
(c) If the proposal does not meet the requirements of (FAR) 48 CFR
15.606-1(a), the agency contact point must return the proposal within
three calendar days after making the determination. The agency point of
contact must inform the offeror, in writing, of the reasons for
returning the proposal.
1215.606-2 Evaluation.
(a) Comprehensive evaluations should be completed within sixty
calendar days after making the initial review determination. If
additional time is needed, then the agency contact point shall advise
the offeror accordingly and provide a new evaluation completion date.
The evaluating office must neither reproduce nor disseminate the
proposal to other offices without the consent of the contracting office
from which the proposal was received for evaluation. If additional
information from the offeror is required by the evaluating office, the
evaluator must convey this request to the responsible contracting
office. The evaluator shall not directly contact the proposal
originator.
(b) If the evaluator recommends acceptance of the proposal, the
responsible contracting officer shall ensure compliance with all of the
requirements of (FAR) 48 CFR 15.607.
PART 1216--TYPES OF CONTRACTS
Subpart 1216.2--Fixed-Price Contracts
Sec.
1216.203 Fixed-price contracts with economic price adjustment.
1216.203-4 Contract clauses.
1216.203-470 Solicitation provision.
Subpart 1216.4--Incentive Contracts
1216.406-70 DOT contract clauses.
Subpart 1216.5--Indefinite-Delivery Contracts
1216.505 Ordering.
Subpart 1216.6--Time-and-Materials, Labor-Hour, and Letter Contracts
1216.603 Letter contracts.
1216.603-4 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1216.2--Fixed-Price Contracts
1216.203 Fixed-price contracts with economic price adjustment.
1216.203-4 Contract clauses.
1216.203-470 Solicitation provision.
The contracting officer shall insert the provision at (TAR) 48 CFR
1252.216-70, Evaluation of Offers Subject to an Economic Price
Adjustment Clause, in solicitations containing an economic price
adjustment clause.
Subpart 1216.4--Incentive Contracts
1216.406-70 DOT contract clauses.
(a) As authorized by (FAR) 48 CFR 16-406(e), the contracting
officer shall insert the clause at (TAR) 48 CFR 1252.216-71,
Determination of Award Fee, in all cost-plus-award-fee solicitations
and contracts.
(b) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.216-72, Performance Evaluation Plan, in all cost-plus-award-fee
solicitations and contracts.
(c) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.216-73, Distribution of Award Fee, in all cost-plus-award-fee
solicitations and contracts.
Subpart 1216.5--Indefinite-Delivery Contracts
1216.505 Ordering.
(b)(5) Unless otherwise designated by the Head of the Operating
Administration, the Competition Advocate for the Operating
Administration (OA) is designated as the OA Task and Delivery Order
Ombudsman. If any corrective action is needed after reviewing
complaints from
[[Page 6514]]
contractors on task and delivery order contracts, the OA Ombudsman
shall provide a written determination of such action to the contracting
officer. Issues that cannot be resolved within the OA, shall be
forwarded to the DOT Task and Delivery Order Ombudsman for review and
resolution. The DOT Task and Delivery Order Ombudsman is located in the
Office of the Senior Procurement Executive.
Subpart 1216.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
1216.603 Letter contracts.
1216.603-4 Contract clauses.
The contracting officer shall insert the clause at (TAR) 48 CFR
1252.216-74, Settlement of Letter Contract, in all definitized letter
contracts.
PART 1217--SPECIAL CONTRACTING METHODS
Subpart 1217.70--Fixed Price Contracts for Vessel Repair, Alteration or
Conversion
Sec.
1217.7000 Definition.
1217.7001 Clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1217.70--Fixed Price Contracts for Vessel Repair,
Alteration or Conversion
1217.7000 Definition.
Lay Days means the time allowed to the master of a vessel for
loading and unloading the same.
1217.7001 Clauses.
(a) The clause at (TAR) 48 CFR 1252.217-70, Guarantee, shall be
used where general guarantee provisions are deemed desirable by the
contracting officer.
(1) When inspection and acceptance tests will afford full
protection to the Government in ascertaining conformance to
specifications and the absence of defects and deficiencies, no
guarantee clause for that purpose shall be included in the contract.
(2) The customary guarantee period, to be inserted in the first
sentence of the clause at (TAR) 48 CFR 1252.217-70, Guarantee, is 60
days. In certain instances, it may be advisable for the contracting
officer to include a contract clause for a guarantee period longer than
60 days. These instances are as follows:
(i) If, as result of a full inquiry, the contracting officer
determines that there will be no increased costs as a result of a
longer guarantee period, the contracting officer may substitute
guarantee longer than the usual 60 days; or
(ii) When the contracting officer's inquiry discloses that
increased costs will result or are expected to result from a longer
guarantee period, the contracting officer shall submit a letter to the
Chief of the Contracting Office, requesting approval for use of
guarantee period in excess of 60 days. The letter must contain
sufficient facts to justify the use of a longer guarantee period. Upon
approval, the contracting officer may insert a longer period in the
first sentence of the clause at (TAR) 48 CFR 1252.217-70, Guarantee.
(b) The following clauses are required:
(1) (TAR) 48 CFR 1252.217-71 through (TAR) 48 CFR 1252.217-74; and,
(2) (TAR) 48 CFR 1252.217-76 through (TAR) 48 CFR 1252.217-80.
(c) (TAR) 48 CFR 1252.217-75 may be included in sealed bid fixed-
price solicitations and contracts for vessel repair, alteration, or
conversion which are to be performed within the United States, its
possessions, or Puerto Rico.
(d) Unless inappropriate, the clauses set forth in (TAR) 48 CFR
1252.217-71 through (TAR) 48 CFR 1252.217-74 and (TAR) 48 CFR 1252.217-
76 through (TAR) 48 CFR 1252.217-80 shall be included.
(e) (TAR) 48 CFR 1252.217- may be included in negotiated
solicitations and contracts to be performed outside the United States.
PART 1219--SMALL BUSINESS PROGRAMS
Subpart 1219.2--Policies
Sec.
1219.201 General policy.
Subpart 1219.8--Contracting with the Small Business Administration (The
8(a) Program)
1219.800 General.
1219.811-3 Contract clauses.
1219.812 Contract administration.
Subpart 1219.10--Small Business Competitiveness Demonstration Program
1219.1003 Purpose.
1219.1005 Applicability.
Appendix A to Part 1219--Targeted Industry Categories
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1219.2--Policies
1219.201 General policy.
(c) The Director, Office of Small and Disadvantaged Business
Utilization (S-40), is responsible for carrying out the functions and
duties in sections 8, 15, and 31 of the Small Business Act, as amended.
(15 U.S.C. 637, 644, and 657.)
Subpart 1219.8--Contracting with the Small Business Administration
(The 8(a) Program)
1219.800 General.
(f) The Small Business Administration (SBA) and DOT have entered
into a Partnership Agreement (PA) authorizing DOT contracting officers
to enter into direct 8(a) contracts on behalf of SBA.
1219.811-3 Contract clauses.
(d)(3) When an acquisition is processed pursuant to the DOT/SBA
Partnership Agreement, the contracting officer shall use the clause at
(FAR) 48 CFR 52.219-18, Notification of Competition Limited to Eligible
8(a) Concerns, with its Alternate III, (TAR) 48 CFR 1252.219-72.
(f) The contracting officer shall insert the clause at 1252.219-71,
Section 8(a) Direct Awards, in all solicitations and contracts
processed under the PA. In accordance with the CAAC Letter 98-3, the
following FAR clauses shall not be used when processing a Direct 8(a)
award under the MOU: (FAR) 48 CFR 52.219-11, Special 8(a) Contract
Conditions, (FAR) 48 CFR 52.219-12, Special 8(a) Subcontract
Conditions, and (FAR) 48 CFR 52.219-17, Section 8(a) Award.
1219.812 Contract administration.
(d) All direct 8(a) awards made pursuant to the PA are subject to
15 U.S.C. 637(a) (21). These contracts contain the clause at (TAR) 48
CFR 1252.219-71, Section 8(a) Direct Award, which requires the 8(a)
contractor to notify the SBA and the contracting officer when ownership
of the firm is being transferred.
Subpart 1219.10--Small Business Competitiveness Demonstration
Program
1219.1003 Purpose.
(b) Contracting officers shall use the targeted industry categories
listed at (TAR) 48 CFR 1219.1005(b) to expand small business
participation in the small business competitive demonstration program.
1219.1005 Applicability.
(b) Targeted industry categories. DOT's targeted industry
categories are shown in Appendix A to this part.
Appendix A to Part 1219
------------------------------------------------------------------------
FPDS products and service
Targeted industry categories* code
------------------------------------------------------------------------
(1) Engineering Development.............. AT94
(2) Systems Engineering Services (Only).. R414
[[Page 6515]]
(3) Radio/TV Communication Equipment 5820
(except airborne).
(4) Maintenance, Repair, and Rebuilding J028/J010
of engines, turbines, components and
weapons equipment.
(5) ADP Central Processing Units:
Analog................................. 7020
Digital................................ 7021
Hybrid................................. 7022
(6) ADP Support Equipment................ 7035
(7) ADP Components....................... 7050
(8) ADP Development Services and ADP D302/D305
Teleprocessing and Timesharing Services.
(9) Gas Turbines and Jet Engines, 2840
Aircraft; and Components.
(10) Radar Equipment (except airborne) 5840/AT31
and Navigation and Navigational Aids
(basic research).
------------------------------------------------------------------------
\*\ The industry categories were derived from Federal Procurement Data
System Product and Service Codes Manual.
PART 1222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 1222.1--Basic Labor Policies
Sec.
1222.101 Labor relations.
1222.101-70 Admittance of union representatives to DOT
installations.
1222.101-71 Contract clauses.
Subpart 1222.4--Labor Standards for Contracts Involving Construction
1222.406 Administration and enforcement.
1222.406-9 Withholding from or suspension of contract payments.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1222.1--Basic Labor Policies
1222.101 Labor relations.
1222.101-70 Admittance of union representatives to DOT installations.
(a) It is DOT policy to admit labor union representatives of
contractor employees to DOT installations to visit work sites and
transact labor union business with contractors, their employees, or
union stewards pursuant to existing union collective bargaining
agreements. Their presence shall not interfere with the contractor's
work progress under a DOT contract nor violate the safety or security
regulations that may be applicable to persons visiting the
installation. The union representatives will not be permitted to
conduct meetings, collect union dues, or make speeches concerning union
matters while visiting a work site.
(b) Whenever a union representative is denied entry to a work site,
the person denying entry shall make a written report to the DOT labor
coordinator, the Office of the General Counsel, Office of Environmental
Law, Civil Rights and General Law (C-10), within the Office of the
Secretary of Transportation or corresponding OA labor advisor, within
two working days after the request for entry is denied. The report
shall include the reason(s) for the denial, the name of the
representative denied entry, the union affiliation and number, and the
name and title of the person that denied the entry.
1222.101-71 Contract clauses.
(a) When applicable, the contracting officer may insert the clause
at (TAR) 48 CFR 1252.222-70, Strikes or Picketing Affecting Timely
Completion of the Contract Work, in solicitations and contracts.
(b) When applicable the contracting officer may insert the clause
at (TAR) 48 CFR 1252.222-71, Strikes or Picketing Affecting Access to a
DOT Facility, in solicitations and contracts.
Subpart 1222.4--Labor Standards for Contracts Involving
Construction
1222.406 Administration and enforcement.
1222.406-9 Withholding from or suspension of contract payments.
(c) Disposition of contract payments withheld or suspended. (1)
Forwarding wage underpayments to the Secretary of the Treasury. The
contracting officer shall ensure that a completed Form DOT F 4220.7,
Employee Claim for Wage Restitution, is obtained from each employee
claiming restitution under the contract. The Comptroller General
(Claims Division) must receive this form with a completed Standard Form
(SF) 1093, Schedule of Withholding Under the Davis-Bacon Act or the
Contract Work Hours and Safety Standards Act, before payment can be
made to the employee.
PART 1223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 1223.3--Hazardous Material Identification and Material Safety
Data
Sec.
1223.303 Contract clause.
Subpart 1223.70--Safety Requirements for Selected DOT Contracts
1223.7000 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1223.3--Hazardous Material Identification and Material
Safety Data
1223.303 Contract clause.
The contracting officer shall insert the clause at (TAR) 48 CFR
1252.223-70, Removal or Disposal of Hazardous Substances--Applicable
Licenses and Permits, in solicitations and contracts involving the
removal or disposal of hazardous waste material.
Subpart 1223.70--Safety Requirements for Selected DOT Contracts
1223.7000 Contract clauses.
(a) Where all or part of a contract will be performed on
Government-owned or leased property, the contracting officer shall
insert the clause at (TAR) 48 CFR 1252.223-71, Accident and Fire
Reporting.
(b) For all solicitations and contracts under which human test
subjects will be utilized, the contracting officer shall insert the
clause at (TAR) 48 CFR 1252.223-72, Protection of Human Subjects. Upon
written request, copies of the applicable National Highway Traffic
Safety Administration (NHTSA) policies and procedures may be obtained
from NHTSA's Associate Administrator for Administration (NPO-200), 400
7th Street, SW., Washington DC 20590.
(c) Pursuant to Executive Order 13043, Increasing Seat Belt Use in
the United States, the contracting officer shall insert the clause at
(TAR) 48 CFR 1252.223-73, Seat Belt Use Policies and Programs in all
solicitations and contracts, exceeding the simplified acquisition
threshold.
PART 1224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 1224.1--Protection of Individual Privacy
Sec.
1224.102-70 General.
1224.103 Procedures.
Subpart 1224.2--Freedom of Information Act
1224.203 Policy.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1224.1--Protection of Individual Privacy
1224.102-70 General.
(a) Systems of records to which the Privacy Act applies shall not
be released except by the Government regardless of whether the
Government or a contractor acting on behalf of the Government is
maintaining the records. Examples of systems of records are:
[[Page 6516]]
(1) Personnel, payroll and background records personal to any
officer or employee of DOT, or other person, including his or her
residential address;
(2) Medical histories and medical records concerning individuals,
including applications for licenses; and
(3) Any other detailed record containing information identifiable
with a particular person.
(b) Examples of systems of records to which the Privacy Act does
not apply are:
(1) Records that are maintained by a contractor on individuals
employed by the contractor in the process of providing goods and
services to the Federal government; and
(2) Records generated on contract students pursuant to their
attendance (e.g., admission forms, grade reports) when contracting with
an educational institution. These records must be similar to those
maintained on other students, must not reveal their identities, and
must not be commingled with records of other students.
1224.103 Procedures.
DOT rules and regulations implementing the Privacy Act of 1974 are
located at 49 CFR part 10.
Subpart 1224.2--Freedom of Information Act
1224.203 Policy.
DOT rules and regulations implementing the Freedom of Information
Act (FOIA) and the names and addresses of the OA FOIA offices are
located in 49 CFR Part 7. Specific contract award information shall be
requested from the FOIA office of the OA making the contract award.
PART 1227--PATENTS, DATA, AND COPYRIGHTS
Subpart 1227.3--Patent Rights Under Government Contracts
Sec.
1227.304 Procedures.
1227.304-5 Appeals.
1227.305 Administration of patent rights clauses.
1227.305-4 Conveyance of invention rights acquired by the
Government.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1227.3--Patent Rights Under Government Contracts
1227.304 Procedures.
1227.304-5 Appeals.
(b) Agency actions listed at (FAR) 48 CFR 27.304-5(a)(1) and (a)(3)
through (a)(5) may be appealed to the Head of the Contracting Activity
(HCA). Actions under this section shall be coordinated with the legal
counsel of the responsible office.
(1) Actions must be appealed within 30 days of receipt of the
written statement required by (FAR) 48 CFR 27.304-5(a). The contractor
must present all pertinent arguments in the appeal along with
documentary evidence, if any.
(2) The HCA shall issue a determination within 45 days from the
date the contractor's appeal is received.
(c) Appeals of decisions rendered under (FAR) 48 CFR 27.304-5(a)(2)
are subject to the following requirements:
(1) Actions must be appealed within 30 days of receipt of the
written statement required by (FAR) 48 CFR 27.304-5(a). The contractor
must present all pertinent arguments in the appeal along with
documentary evidence, if any.
(2) The HCA may hold an informal hearing if deemed appropriate or
at the request of the contractor. The informal hearing shall be held
after all fact-finding is completed.
(i) If a hearing is held, there shall be a transcribed record of
the same. A copy of the transcript shall be available to the contractor
at cost.
(ii) Transcription of the hearing may be waived by mutual agreement
of the parties.
(3) The HCA shall designate an impartial fact-finding official. The
official conducting the fact-finding shall prepare findings of fact and
transmit them to the HCA promptly after the conclusion of the fact-
finding proceeding along with a recommended determination.
(i) A copy of the findings of fact shall be sent to the contractor
(assignee or exclusive licensee) by registered or certified mail. The
contractor (assignee or exclusive licensee) and agency representatives
will be given 30 days to submit written arguments to the HCA; and, upon
request by the contractor oral arguments will be held before the HCA as
part of an informal hearing. The HCA will make the final determination
as to whether the initial agency action was appropriate under the
relevant laws and procedures (See 1227.304-5(c)(4)).
(ii) Any portion of the informal hearing that involves testimony or
evidence shall be closed to the public. Agencies shall not disclose any
such information obtained in the course of the appeal to persons
outside the government except when such release is authorized by the
contractor (assignee or licensee).
(4) The HCA's final determination shall be based on the findings of
facts, together with any other information and written or oral
arguments submitted by the contractor (assignee or exclusive licensee)
and agency representatives, and any other information in the
administrative record. The HCA may reject only those facts that have
been found clearly erroneous and must explicitly state the rejection
and the basis for the contrary finding. The HCA shall provide the
contractor (assignee or exclusive licensee) a written determination by
certified or registered mail no later than 90 days after fact-finding
is completed or no later than 90 days after oral arguments, whichever
is later.
1227.305 Administration of patent rights clauses.
1227.305-4 Conveyance of invention rights acquired by the Government.
Solicitations and contracts that include a patent rights clause
must provide the contractor the means to report inventions made in the
course of contract performance and at contract completion. This
requirement may be fulfilled by requiring the contractor to submit a DD
Form 882, Report of Inventions and Subcontracts.
PART 1228--BONDS AND INSURANCE
Subpart 1228.1--Bonds and Other Financial Protections
Sec.
1228.106 Administration.
1228.106-1 Bonds and bond-related forms.
1228.106-6 Furnishing of information.
1228.106-70 Execution and administration of bonds.
1228.106-71 Performance and payment bonds for certain contracts.
1228.106-7100 Waiver.
1228.106-7101 Exception.
1228.106-470 Contract clause.
Subpart 1228.3--Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
1228.307-1 Group insurance plans.
1228.311-1 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1228.1--Bonds and Other Financial Protections
1228.106 Administration.
1228.106-1 Bonds and bond-related forms.
(b) Standard Form (SF) 25, Performance Bond, prescribed at (FAR) 48
CFR 28.106-1(b), shall provide coverage for taxes imposed by the United
States which are collected, deducted, or withheld from wages paid by
the contractor. Forms other than the SF 25 (e.g., a commercial form)
shall not
[[Page 6517]]
be used by contractors when a performance bond is required.
1228.106-6 Furnishing of information.
(b) When furnishing surety information, the inquirer should also be
informed that:
(1) Persons believing that they have legal remedies under the
Miller Act (40 U.S.C. 3131-3134) are cautioned to consult their own
legal advisor regarding the proper steps to take to obtain remedies.
(2) On construction contracts exceeding $2,000, if the contracting
officer is informed (through routine compliance checking, a complaint,
or a request for information) that a laborer, mechanic, apprentice,
trainee, watchman, or guard employed by the contractor or subcontractor
at any tier may have been paid wages less than those required by the
applicable labor standards provisions of the contract, the contracting
officer shall promptly initiate an investigation in accordance with
(FAR) 48 CFR subpart 22.4, irrespective of the employee's rights under
the Miller Act. When an employee's request for information is involved,
the contracting officer shall inform the inquirer that such
investigation will be made. To insure proper payment to such employees,
this investigation is required pursuant to the provisions of the Davis-
Bacon Act, Contract Work Hours and Safety Standards Act (40 U.S.C.
3141), and Copeland (Anti-Kickback) Act (41 U.S.C. 51-58).
(c) When furnishing a copy of a payment bond and contract in
accordance with (FAR) 48 CFR 28.106-6(b), the requirement for a copy of
the contract may be satisfied by furnishing a machine-duplicate copy of
the contractor's first pages which show the contract number and date,
the contractor's name and signature, the contracting officer's
signature, and the description of the contract work. The contracting
officer furnishing the copies shall place the statement ``Certified to
be a true and correct copy'' followed by his/her signature, title and
name of the OA. The fee for furnishing the requested certified copies
shall be determined in accordance with the DOT Freedom of Information
Act regulation, 49 CFR part 7, (TAR) 48 CFR 1224.203).
1228.106-70 Execution and administration of bonds.
(a) The contracting officer shall notify the surety within 30 days,
of the contractor's failure to perform in accordance with the terms of
the contract.
(b) When a partnership is a principal on a bond, the names of all
the members of the firm shall be listed in the bond following the name
of the firm, and the phrase ``a partnership composed of.'' If a
principal is a corporation, the state of incorporation must also appear
on the bond.
(c) Performance or payment bond(s), other than an annual bond,
shall not predate the contract to which it pertains.
(d) Bonds may be filed with the original contract to which they
apply, or all bonds can be separately maintained and reviewed quarterly
for validity. If separately maintained, each contract file shall cross-
reference the applicable bonds.
1228.106-71 Performance and payment bonds for certain contracts.
1228.106-7100 Waiver.
(a) Pursuant to the authority vested in the Secretary of
Transportation by the Miller Act, the requirements of 40 U.S.C. 3131 et
seq. are waived, to the extent authorized in 40 U.S.C. 3134(b), with
respect to contracts for the construction, alteration, or repair of
vessels when the contract is made under sections 1535 and 1536 of Title
31, the Merchant Marine Act 1936 (46 App. U.S.C. 1101 et seq.), or the
Merchant Ship Sales Act of 1946 (50 App. U.S.C. 1735 et seq.),
regardless of the terms of the contracts as to payment or title.
(b) The Miller Act's requirement that certain contracts have
payment bonds in place in order to protect the public, including the
Government, material, men and laborers is not generally necessary with
respect to the classes of contracts described under (TAR) 48 CFR
1228.106-7100(a). Inasmuch as the Government would directly or
indirectly bear the burden of premiums for performance and payment
bonds obtained in connection with such contracts, a substantial savings
can be made by waiving the requirement that they be obtained. However,
unusual circumstances may arise in which either payment or performance
bonds, or both, will be advantageous in connection with certain such
contracts.
1228.106-7101 Exception.
A performance and payment bond for the contracts described under
(TAR) 48 CFR 1228.106-7100(a) may be advantageous in view of unusual
circumstances arising in connection with such contracts. Requests for
the authority to include the requirement for either a performance or
payment bond, or both in the contracts described under (TAR) 48 CFR
1228.106-7100(a) shall be submitted by the contracting officer to the
HCA, before a solicitation is issued.
1228.106-470 Contract clause.
The contracting officer must insert the clause at (TAR) 48 CFR
1252.228-73, Notification of Miller Act Payment Bond Protection, in
solicitations and contracts when payment bonds are required.
Subpart 1228.3--Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
(a) The contracting officer shall insert the clauses at (TAR) 48
CFR 1252.228-70 through 1252.228-72, unless otherwise indicated by the
specific instructions for their use, in any contract for the lease of
aircraft (including aircraft used in out-service flight training).
(b) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.228-70, Loss of or Damage to Leased Aircraft, in any contract for
the lease of aircraft, except in the following circumstances:
(1) When the hourly rental rate does not exceed $250 and the total
rental cost for any single transaction is not in excess of $2,500:
(2) When the cost of hull insurance does not exceed 10 percent of
the contract rate; or
(3) When the lessor's insurer does not grant a credit for uninsured
hours, thereby preventing the lessor from granting the same to the
Government.
(c) The contracting officer must insert the clause at (TAR) 48 CFR
1252.228-71, Fair Market Value of Aircraft, when fair market value of
the aircraft can be determined.
(d) 49 U.S.C. 44112, as amended, provides that an aircraft lessor
under a lease of 30 days or more is not liable for injury or death of
persons, or damage or loss of property, unless the aircraft is in the
actual possession or control of the lessor and the damage occurs
because of
(1) The aircraft, engine or propeller, or
(2) The flight of, or an object falling from, the aircraft, engine,
or propeller. On short-term or intermittent-use leases, however, the
owner may be liable for damage caused by operation of the aircraft. It
is usual for the aircraft owner to retain insurance covering this
liability during the term of such lease. Such insurance can, often for
little or no increase in premium, be made to cover the Government's
exposure to liability as well. In order to take advantage of this
coverage, the Risks and Indemnities clause at (TAR) 48 CFR 1252.228-72
[[Page 6518]]
prescribed in paragraph (d)(1) of this section shall be used.
(1) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.228-72, Risk and Indemnities, in any contract for out-service
flight training or for the lease of aircraft when the Government will
have exclusive use of the aircraft for a period of less than thirty
days.
(2) Any contract for out-service flight training shall include a
clause in the contract schedule stating substantially that the
contractor's personnel shall at all times during the course of the
training be in command of the aircraft and that at no time must other
personnel be permitted to take command of the aircraft.
1228.307-1 Group insurance plans.
(a) Prior approval requirements. The contracting officer shall
instruct the contractor on a contract-by-contract basis on proposed
purchases of group insurance plans. Legal advice should be sought where
necessary on the advantages to the Government.
1228.311-1 Contract clause.
The contracting officer shall insert the clause at (FAR) 48 CFR
52.228-7, Insurance Liability to Third Persons, as prescribed in FAR
28.311-1 unless it is waived by an official one level above the
contracting officer.
PART 1231--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 1231.2--Contracts With Commercial Organizations
Sec.
1231.205 Selected costs.
1231.205-32 Precontract costs.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1231.2--Contracts With Commercial Organizations
1231.205 Selected costs.
1231.205-32 Precontract costs.
(a) The decision to incur precontract costs is that of the
contractor. No DOT employee can authorize, demand, or require a
contractor to incur precontract costs. The contracting officer may
advise the prospective contractor that any costs incurred before
contract award are at the contractor's sole risk and that if
negotiations fail to result in a binding contract, payment of these
costs may not be made by the Government.
(b) When the contracting officer determines that incurring
precontract costs was necessary to meet the proposed contract delivery
schedule of a cost-reimbursement contract, the clause at (TAR) 48 CFR
1252.231-70, Date of Incurrence of Costs, may be inserted in the
resultant contract.
PART 1232--CONTRACT FINANCING
Subpart 1232.70--Contract Payments
Sec.
1232.7002 Invoice and voucher review and approval.
Appendix A to Part 1232--Instructions for Completing The SF 1034
Appendix B to Part 1232--Instructions for Completing the SF 1035
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1232.70--Contract Payments
1232.7002 Invoice and voucher review and approval.
(a) Under fixed-price contracts, the contracting officer shall
require the contractor to submit an invoice or voucher in order to
receive payment under the contract. The invoice or voucher may be on a
form or company letterhead as long as it meets the requirements of the
Management and Budget (OMB) regulation at 5 CFR part 1315 as
implemented by (FAR) 48 CFR Subpart 32.9, and the contract.
(b) Under other than fixed-price contracts, the contracting office
shall require the contractor to submit the SF 1034, Public Voucher for
Purchases and Services Other Than Personal, and the SF 1035, Public
Voucher for Purchases and Services Other Than Personal (Continuation
Sheet), to request payments. The forms must be completed as required by
Appendix A to this part, Instructions for Completing the SF 1034, and
Appendix B to this part, Instructions for Completing the SF 1035.
Appendix A to Part 1232--Instructions for Completing the SF 1034
[The SF 1034, Public Voucher for Purchases and Services Other Than
Personal, shall be completed in accordance with the below instructions.
The numbered items correspond to the entries on the form.]
------------------------------------------------------------------------
Data to be inserted in the
Caption on the SF 1034 block
------------------------------------------------------------------------
1. U.S. Department, Bureau, or Name and address of the
establishment and location. contracting office which
issued the contract.
2. Date voucher prepared............... Date voucher submitted to the
designated billing office
cited under the contract or
order.
3. Contract No. and date............... Contract No. and, when
applicable, the Order No. and
date as shown on the award
document.
4. Requisition No. and date............ Leave blank or fill-in in
accordance with the
instructions in the contract.
5. Voucher No.......................... Start with ``1'' and number
consecutively. A separate
series of consecutive numbers
must be used beginning with
``1'' for each contract number
or order number (when
applicable). Note: Insert the
word ``FINAL'' if this is the
last voucher.
6. Schedule No.; paid by; date invoice Leave all these blocks blank.
received; discount terms; payee's
account No.; shipped from/to; weight;
government B/L.
7. Payee's name and address............ Name and address of contractor
as it appears on the contract.
If the contract is assigned to
a bank, also show ``CONTRACT
ASSIGNED'' below the name and
address of the contractor.
8. Number and date or order............ Leave blank. (See 3
above.)
9. Date of delivery or service......... The period for which the
incurred costs are being
claimed (e.g., month and year;
beginning and ending date of
services, etc.).
10. Articles or services............... Insert the following: ``For
detail, see the total amount
of the claim transferred from
the attached SF 1035, page X
of X.'' One space below this
line, insert the following:
``COST REIMBURSABLE-
PROVISIONAL PAYMENT.''
11. Quantity; unit price; (cost; per).. Leave blank.
12. Amount............................. Insert the total amount claimed
from the last page of the SF
1035.
Payee must NOT use the space below..... Do NOT write or type below this
line.
------------------------------------------------------------------------
[[Page 6519]]
Appendix B to Part 1232--Instructions for Completing the SF 1035
The SF 1035, Public Voucher for Purchases and Services Other
Than Personal (Continuation Sheet), shall be completed in accordance
with the below instructions.
1. Use the same basic instructions for the SF 1035 as used for
the SF 1034. Ensure that the contract and, if applicable, order
number, are shown on each continuation sheet. Use as many sheets as
necessary to show the information required by the contract,
contracting officer, or responsible audit agency; however, if more
than one sheet of SF 1035 is used, each sheet shall be in numerical
sequence.
2. The following items are generally entered below the line with
Number and Date of Order; Date of Delivery or Service; Articles or
Services; Quantity; Unit Price; and Amount (but do not necessarily
tie to these captions).
3. Description of data to be inserted as it applies to the
contract or order number.
a. Show, as applicable, the target or estimated costs, target or
fixed-fee, and total contract value, as adjusted by any
modifications to the contract or order. The FAR permits the
contracting officer to withhold a percentage of fixed fee until a
reserve is set aside in an amount that is considered necessary to
protect the Government's interest.
b. Show the following costs and supporting data (as applicable)
to the contract or order:
(1) Direct Labor. List each labor category, rate per labor hour,
hours worked, and extended total labor dollars per labor category.
(2) Premium Pay/Overtime. List each labor category, rate per
labor hour, hours worked, and the extended total labor dollars per
labor category. Note: Advance written authorization must be received
from the contracting officer to work overtime or to pay premium
rates; therefore, identify the contracting officer's written
authorization to the contractor.
(3) Fringe Benefits. If fringe benefits are included in the
overhead pool, no entry is required. If the contract allows for a
separate fringe benefit pool, cite the formula (rate and base) in
effect during the time the costs were incurred. If the contract
allows for billing fringe benefits as a direct expense, show the
actual fringe benefit costs.
(4) Materials, Supplies, Equipment. Show those items normally
treated as direct costs. Expendable items need not be itemized and
may be grouped into major classifications such as office supplies.
However, items valued at $5,000 or more must be itemized. See (FAR)
48 CFR part 45, Government Property, for reporting of property.
(5) Travel. List the name and title of traveler, place of
travel, and travel dates. If the travel claim is based on the actual
costs expended, show the amount for the mode of travel (i.e.,
airline, private auto, taxi, etc.), lodging, meals, and other
incidental expenses separately, on a daily basis. These actual costs
must be supported with receipts to substantiate the costs paid.
Travel costs for consultants must be shown separately and also
supported.
(6) Other Direct Costs. Itemize those costs that cannot be
placed in categories (1) through (5) above. Categorize these costs
to the extent possible.
(7) Total Direct Costs. Cite the sum of categories (1) through
(6) above.
(8) Overhead. Cite the rate, base, and extended amount.
(9) G&A Expense. Cite the rate, base, and extended amount.
(10) Total Costs. Cite the sum of categories (7) through (9)
above.
(11) Fee. Cite the rate, base, and extended amount.
(12) Total Cost and Fee Claimed. Enter this amount on the SF
1034.
Completion Voucher
The completion (final) voucher is the last voucher to be
submitted for incurred, allocable, and allowable costs expended to
perform the contract or order. This voucher should include all
contract reserves, allowable cost withholdings, balance of fixed
fee, etc. However, the amount of the completion voucher when added
to the total amount previously paid cannot exceed the total amount
of the contract.
PART 1233--PROTESTS, DISPUTES, AND APPEALS
Subpart 1233.1 Protests
Sec.
1233.103 Protests to the agency.
1233.104 Protests to GAO.
Subpart 1233.2--Disputes and Appeals
1233.211 Contracting officer's decision.
1233.214 Alternative dispute resolution (ADR).
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1233.1--Protests
1233.103 Protests to the agency.
(c) DOT Operating Administrations (OAs) shall consider the use of
Alternate Dispute Resolution (ADR) in all agency protest actions.
1233.104 Protests to GAO.
The protest process at the Government Accountability Office (GAO)
may include ADR assistance by GAO. The contracting officer shall, with
advice of counsel, explore the possibility of using ADR for all GAO
protests.
Subpart 1233.2--Disputes and Appeals
1233.211 Contracting officer's decision.
For DOT contracts, the Board of Contract Appeals (BCA) referenced
at (FAR) 48 CFR 33.211 is the Department of Transportation Board of
Contract Appeals (S-20), 400 7th Street, SW., Washington, DC 20590. The
DOTBCA Rules of Procedure are contained in 48 CFR chapter 63, part
6301.
1233.214 Alternative dispute resolution (ADR).
(c) The Administrative Dispute Resolution Act (ADRA) of 1990,
Public Law 101-552, as reauthorized by the Administrative Dispute
Resolution Act (ADRA) of 1996, Public Law 104-320, authorizes and
encourages agencies to use mediation, conciliation, arbitration, and
other techniques for the prompt and informal resolution of disputes,
either before or after appeal, and for other purposes. ADR procedures
may be used when:
(1) There is mutual consent by the parties to participate in the
ADR process (with consent being obtained either before or after an
issue in controversy has arisen);
(2) Prior to the submission of a claim; and
(3) In resolution of a formal claim. Use of ADR shall be
coordinated with counsel. For all matters filed with the DOTBCA, the
DOTBCA Alternate Dispute Resolution (ADR) procedures contained in 48
CFR Chapter 63, Section 6302.30, ADR Methods (Rule 30), will be
distributed to the parties, if ADR procedures are used.
(d) Pursuant to the ADRA, DOT has appointed a Dispute Resolution
Specialist, who is responsible for the operations of the Center for
Alternative Dispute Resolution, (C-4). The Center may provide an
internal DOT neutral agreeable to the parties to conduct any of the
alternative means of dispute resolution set forth in the ADRA, 5 U.S.C.
571(3) on a non-reimbursable basis for DOT operating administrations
and their contracting partners. Alternative means of dispute resolution
include settlement negotiations, conciliation, facilitation, mediation,
fact finding, mini-trials, and arbitration, or any combination of these
methods. The Center may also arrange for an external public or private
neutral at the parties' expense.
PART 1235--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
1235.003 Policy.
Subpart 1235.70--Research Misconduct
1235.7000 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
1235.003 Policy.
(b) Cost sharing. DOT cost sharing policies shall be in accordance
with (FAR) 48 CFR 16.303, (FAR) 48 CFR 42.707(a), and Operating
Administration (OA) procedures.
[[Page 6520]]
Subpart 1235.70--Research Misconduct
1235.7000 Contract clause.
The contracting officer shall insert the clause at (TAR) 48 CFR
1252.235-70, Research Misconduct, in all solicitations and contracts
for research and development. For further information, see DOT's
Implementation Guidance for Executive Office of the President, Office
of Science and Technology Policy, ``Federal Policy on Research
Misconduct,'' dated February 2002.
PART 1236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 1236.5--Contract Clauses
Sec.
1236.570 Special precautions for work at operating airports.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1236.5--Contract Clauses
1236.570 Special precautions for work at operating airports.
Where any acquisition will require work at an operating airport,
insert the clause at (TAR) 48 CFR 1252.236-70, Special Precautions for
Work at Operating Airports, in solicitations and contracts.
PART 1237--SERVICE CONTRACTING
Subpart 1237.1--Service Contracts--General
Sec.
1237.110 Solicitation provisions and contract clauses.
Subpart 1237.70--Department of Transportation Procedures for Acquiring
Training Services
1237.7000 Policy.
1237.7001 Certification of data.
1237.7002 Applicability.
1237.7003 Solicitation provisions and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1237.1--Service Contracts--General
1237.110 Solicitation provisions and contract clauses.
(a) Contracting officers shall insert the clause at (TAR) 48 CFR
1252.237-70, Qualifications of Contractor Employees, in all
solicitations and contracts for supplies and/or services where
contractor employees will have access to Government facilities,
sensitive information, including proprietary data and/or resources.
(b) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.237-73, Key Personnel, in solicitations and contracts for services
when the selection for award is substantially based on the offeror's
possession of special capabilities regarding personnel.
Subpart 1237.70--Department of Transportation Procedures for
Acquiring Training Services
1237.7000 Policy.
When training services are provided under contract, DOT policy
requires that all prospective contractors:
(a) Certify that the data provided concerning company
qualifications, background statements, etc., is current, accurate, and
complete; and
(b) Agree to not solicit or advertise private, non-Government
training while conducting a training course.
1237.7001 Certification of data.
Towards fulfilling DOT's policy at (TAR) 48 CFR 1237.7000(a),
contracting officers shall request information from prospective
contractors for certification purposes. The type of information
requested is dependent upon the criticality of the service and/or any
unique or essential qualification requirements.
1237.7002 Applicability.
The policy at (TAR) 48 CFR 1237.7000 applies to all contracts (as
defined in FAR 2.101) awarded by DOT for training services when DOT
controls the content and/or presentation of the course. This policy
does not apply to courses attended by DOT employees that are offered
and sponsored by Government sources of supply, educational
institutions, or private entities where DOT does not control the course
content or presentation. (See (TAR) 48 CFR 1213.7100 for examples.)
1237.7003 Solicitation provisions and contact clause.
(a) The contracting officer shall insert the provision at (TAR) 48
CFR 1252.237-71, Certification of Data, in solicitations and the clause
at (TAR) 48 CFR 1252.237-72, Prohibition on Advertising, in
solicitations and contracts for training services when the content and/
or presentation of the course is controlled by DOT.
(b) Contracting officers shall incorporate the successful offeror's
certified data into any resultant contract(s). Certified data may be
adopted by reference, if the contracting officer determines it contains
sufficient descriptive information (i.e., dated material such as
resumes, company and/or personnel qualifications) to reliably describe
the certified data submitted.
PART 1239--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 1239.1--General
Sec.
1239.70 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1239.1--General
1239.70 Solicitation provision and contract clause.
The contracting officer shall insert the provision at (TAR) 48 CFR
1252.239-71, Information Technology Security Plan and Accreditation,
and the clause at (TAR) 48 CFR 1252.239-70, Security Requirements for
Unclassified Information Technology Resources, in all solicitations and
contracts, exceeding the micro-purchase threshold, that include
information technology services.
PART 1242--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 1242.70--Contract Administration Clauses
Sec.
1242.7000 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1242.70--Contract Administration Clauses
1242.7000 Contract clauses.
(a) The contracting officer may use the clause at (TAR) 48 CFR
1252.242-70, Dissemination of Information--Educational Institutions, in
lieu of the clause at (TAR) 48 CFR 1252.242-72, Dissemination of
Contract Information, in DOT research contracts with educational
institutions that require the release or coordination of information.
(b) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.242-71, Contractor Testimony, in all solicitations and contracts
issued by National Highway Traffic Safety Administration (NHTSA). Other
Operating Administrations (OAs) may use the clause as deemed
appropriate.
(c) The contracting officer may insert the clause at (TAR) 48 CFR
1252.242-72, Dissemination of Contract Information, in all DOT
contracts, except contracts that require the release or coordination of
information.
(d) The contracting officer shall insert the clause at (TAR) 48 CFR
1252.242-73, Contracting Officer's Technical Representative, in
solicitations and contracts when it is intended that a representative
will be assigned to the
[[Page 6521]]
contract to perform functions of a technical nature.
PART 1245--GOVERNMENT PROPERTY
Subpart 1245.5--Management of Government Property in the Possession of
Contractors
Sec.
1245.505 Records and reports of Government property.
1245.505-14 Reports of Government property.
1245.505-70 Contract clauses.
1245.508-2 Reporting results of inventories.
1245.511 Audit of property control system.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1245.5--Management of Government Property in the Possession
of Contractors
1245.505 Records and reports of Government Property.
1245.505-14 Reports of Government property.
When Government property is furnished to or acquired by the
contractor to perform the contract, the contract shall require the
contractor to submit annual reports (see (FAR) 48 CFR 45.505-14) to the
contracting officer not later than September 15 of each year. The
contractor's report shall be submitted on Form DOT F 4220.43,
Contractor Report of Government Property.
1245.505-70 Contract clauses.
Contracting officers shall insert the clause at (TAR) 48 CFR
1252.245-70 in solicitations and contracts when the contract will
require Government provided or contractor acquired property.
1245.508-2 Reporting results of inventories.
The inventory report shall also include the following:
(a) Name and title of the individual(s) that performed the physical
inventory;
(b) An itemized, categorized listing of all property capitalized:
(1) Land and rights therein;
(2) Other real property;
(3) Plant equipment;
(4) Special test equipment; agency peculiar property; and
(5) Special tooling; and
(c) An itemized listing of the property lost, damaged, destroyed,
or stolen, the circumstances surrounding each incident, and the
resolution of the incident.
1245.511 Audit of property control system.
(a) The property administrator (or other Government official
authorized by the contracting officer) shall audit the contractor's
property control system whenever there are indications that the
contractor's property control system may be deficient. Examples of
deficiencies are:
(1) Failure of the contractor to acknowledge receipt of Government-
furnished property;
(2) Failure of the contractor to submit the annual property reports
required by (TAR) 48 CFR 1245.505-14;
(3) Failure of the contractor to reconcile its physical inventory
with its property control record; or
(4) Failure of the contractor to submit a Government property
listing when requested by the property administrator.
(b) When it is determined that the contractor's property control
system is deficient, the property administrator, in coordination with
the contracting officer, shall discuss the deficiencies with the
contractor. If the contractor does not take action to correct the
deficiencies, the contracting officer shall provide the contractor with
a written notice of the deficiencies and the date all deficiencies must
be corrected.
PART 1246--QUALITY ASSURANCE
Subpart 1246.1--General
Sec.
1246.101 Definitions.
1246.101-70 Additional definitions.
Subpart 1246.7--Warranties
1246.705 Limitations.
1246.706 Warranty terms and conditions.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1246.1--General
1246.101 Definitions.
1246.101-70 Additional definitions.
At no additional cost to the Government means at no increase in
price for firm-fixed-price contracts, at no increase in target or
ceiling price for fixed price incentive contracts (see (FAR) 48 CFR
46.707), or at no increase in estimated cost or fee for cost-
reimbursement contracts.
Defect means any condition or characteristic in any supplies or
services furnished by the contractor under the contract that is not in
compliance with the requirements of the contract.
Major acquisition means an acquisition or project as defined by TAM
Chapter 1234, Major System Acquisition.
Performance requirements means the operating capabilities,
maintenance, and reliability characteristics of a system that are
determined to be necessary for it to fulfill the requirement for which
the system is designed.
Subpart 1246.7--Warranties
1246.705 Limitations.
(a) The following restrictions are applicable to DOT contracts:
(1) The contractor shall not be required to honor the warranty on
any property furnished by the Government except for:
(i) Defects in installation; and
(ii) Installation or modification in such a manner that invalidates
a warranty provided by the manufacturer of the property.
(2) Any warranty obtained shall specifically exclude coverage of
damage in time of war (combat damage) or national emergency.
(3) Contracting officers shall not include in a warranty clause any
terms that require the contractor to incur liability for loss, damage,
or injury to third parties.
(b) [Reserved]
1246.706 Warranty terms and conditions.
(a) When appropriate and cost effective, the contracting officer
shall comply with the following requirements when developing the
warranty terms and conditions:
(1) Identify the affected line item(s) and the applicable
specification(s);
(2) Require that the line item's design and manufacture will
conform to:
(i) An identified revision of a top-level drawing; and/or
(ii) An identified specification or revision thereof;
(3) Require that the line item conform to the specified Government
performance requirements;
(4) Require that all line items and components delivered under the
contract will be free from defects in materials and workmanship;
(5) State that if the contractor fails to comply with specification
or there are defects in material and workmanship, the contractor will
bear the cost of all work necessary to achieve the specified
performance requirements, including repair and/or replacement of all
parts;
(6) Require the timely replacement/repair of warranted items and
specify lead times for replacement/repair where possible;
(7) Identify the specific paragraphs containing Government
performance requirements that the contractor must meet;
(8) Ensure that any performance requirements identified as goals or
objectives beyond specification requirements are excluded from the
warranty provision;
(9) Specify what constitutes the start of the warranty period
(e.g., delivery, acceptance, in-service date), the ending
[[Page 6522]]
of the warranty (e.g., passing a test or demonstration, or operation
without failure for a specified time period), and circumstances
requiring an extension of warranty duration (e.g., extending the
warranty period as a result of mass defect correction during warranty
period);
(10) Identify what transportation costs will be paid by the
contractor in relation to the warranty coverage;
(11) In addition to combat damage, identify any conditions which
will not be covered by the warranty, and
(12) Identify any limitation on the total dollar amount of the
contractor's warranty exposure, or agreement to share costs after a
certain dollar threshold to avoid unnecessary warranty returns.
(b) In addition to the terms and conditions listed in paragraph (a)
of this section, the contracting officer shall consider the following
when a warranty clause is being used for a major acquisition:
(1) For line items or components which are commercially available,
obtaining a warranty as is normally provided by the manufacturer or
supplier, in accordance with (FAR) 48 CFR 46.703(d) and (FAR) 48 CFR
46.710(b)(2).
(2) Obtaining a warranty of compliance with the stated requirements
for line items or components provided in accordance with either design
and manufacturing or performance requirements as specified in the
contract or any modification to that contract.
(3) The warranty provided under paragraph (b)(2) of this section
shall provide that in the event the line items or any components
thereof fails to meet the terms of the warranty provided, the
contracting officer may:
(i) Require the contractor to promptly take such corrective action
as the contracting officer determines to be necessary at no additional
cost to the Government, including repairing or replacing all parts
necessary to achieve the requirements set forth in the contract;
(ii) Require the contractor to pay costs reasonably incurred by the
United States in taking necessary corrective action; or
(iii) Equitably reduce the contract price.
(4) Inserting remedies, exclusions, limitations and durations,
provided these are consistent with the specific requirements of this
subpart and (FAR) 48 CFR 46.706.
(5) Excluding from the terms of the warranty certain defects for
specified supplies (exclusions) and limiting the contractor's liability
under the terms of the warranty (limitations), as appropriate, if
necessary to derive a cost-effective warranty in light of the technical
risk, contractor financial risk, or other program uncertainties.
(6) Structuring of a broader and more comprehensive warranty where
such is advantageous. Likewise, the contracting officer may narrow the
scope of a warranty when appropriate (e.g., where it would be
inequitable to require a warranty of all performance requirements
because a contractor had not designed the system).
(c) Any contract that contains a warranty clause must contain
warranty implementation procedures, including warranty notification
content and procedures, and identify the individuals responsible for
implementation of warranty provisions. The contract may also permit the
contractor's participation in investigation of system failures,
providing that the contractor is reimbursed at established rates for
fault isolation work, and that the Government receive credit for any
payments where equipment failure is covered by warranty provisions.
PART 1247--TRANSPORTATION
Subpart 1247.5--Ocean Transportation by U.S.-Flag Vessels
Sec.
1247.506 Procedures.
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1247.5--Ocean Transportation by U.S.-Flag Vessels
1247.506 Procedures.
(a) The Maritime Administration (MARAD) is the enforcing agency of
the cargo preference statutes. MARAD can assist contractors in locating
U.S.-flag carriers and determine when such services are not available
and they can assist contracting officers in evaluating costs, services,
and other matters regarding ocean transportation.
(d) If no transportation officer is available, the contracting
officer shall submit a copy of the rated ``on board'' bill of lading,
for each shipment, no later than 20 days after the vessel's loading
date for exports and 30 days for imports as stated in 46 CFR 381.3. All
non-vessel ocean common carrier bills of lading should be accompanied
by the underlying carrier's ocean bill of lading. The documents shall
be sent to the Maritime Administration, Office of Cargo Preference,
MAR-590, 400 Seventh Street, SW., Washington, DC 20590. The bill of
lading shall contain the following information:
(1) Name of sponsoring Government agency or department;
(2) Name of vessel;
(3) Vessel flag of registry;
(4) Date of loading;
(5) Port of loading;
(6) Port of final discharge;
(7) Commodity description;
(8) Gross weight in kilos;
(9) Total ocean freight revenue in U.S. dollars.
PART 1252--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES
Subpart 1252.1--Instructions for Using Provisions and Clauses
Sec.
1252.101 Using Part 1252.
Subpart 1252.2--Text of Provisions and Clauses
1252.211-70 Index for specifications.
1252.216-70 Evaluation of offers subject to an economic price
adjustment clause.
1252.216-71 Determination of award fee.
1252.216-72 Performance evaluation plan.
1252.216-73 Distribution of award fee.
1252.216-74 Settlement of letter contract.
1252.217-70 Guarantee.
1252.217-71 Delivery and shifting of vessel.
1252.217-72 Performance.
1252.217-73 Inspection and manner of doing work.
1252.217-74 Subcontracts.
1252.217-75 Lay days.
1252.217-76 Liability and insurance.
1252.217-77 Title.
1252.217-78 Discharge of liens.
1252.217-79 Delays.
1252.217-80 Department of Labor Safety and Health Regulations for
Ship Repairing.
1252.219-71 Section 8(a) Direct Awards.
1252.219-72 Notification of Competition Limited to Eligible 8(a)
Concerns--Alternate III.
1252.222-70 Strikes or picketing affecting timely completion of the
contract work.
1252.222-71 Strikes or picketing affecting access to a DOT facility.
1252.223-70 Removal or disposal of hazardous substances--applicable
licenses and permits.
1252.223-71 Accident and fire reporting.
1252.223-72 Protection of human subjects.
1252.223-73 Seat belt use policies and programs.
1252.228-70 Loss of or damage to leased aircraft.
1252.228-71 Fair market value of aircraft
1252.228-72 Risk and indemnities.
1252.228-73 Notification of Miller Act payment bond protection.
1252.231-70 Date of incurrence of costs.
1252.235-70 Research misconduct.
1252.236-70 Special precautions for work at operating airports.
1252.237-70 Qualifications of contractor employees.
1252.237-71 Certification of data.
1252.237-72 Prohibition on advertising.
1252.237-73 Key personnel.
[[Page 6523]]
1252.239-70 Security requirements for unclassified information
technology resources.
1252.239-71 Information technology security plan and accreditation.
1252.242-70 Dissemination of information--educational institutions.
1252.242-71 Contractor testimony.
1252.242-72 Dissemination of contract information.
1252.242-73 Contracting officer's technical representative.
1252.245-70 Government property reports.
Appendix to Part 1252--TAR Matrix
Authority: 5 U.S.C. 301; 41 U.S.C. 418b; (FAR) 48 CFR 1.3.
Subpart 1252.1--Instructions for Using Provisions and Clauses
1252.101 Using Part 1252.
(b) Numbering.
(2)(i) Provisions or clauses that supplement the FAR.
(A) Agency-prescribed provisions and clauses permitted by TAR and
used on a standard basis (i.e., normally used in two or more
solicitations or contracts regardless of contract type) shall be
prescribed and contained in the TAR. Operating Administrations (OAs)
desiring to use a provision or a clause on a standard basis shall
submit a request containing a copy of the clause(s), justification for
its use, and evidence of legal counsel review to the Office of the
Senior Procurement Executive in accordance with (TAR) 48 CFR 1201.304
for possible inclusion in the TAR.
(B) Provisions and clauses used on a one-time basis (i.e., non-
standard provisions and clauses) may be approved by the contracting
officer, unless a higher level is designated by the OA. This authority
is permitted subject to:
(1) Evidence of legal counsel review in the contract file;
(2) Inserting these clauses in the appropriate sections of the
uniform contract format; and
(3) Ensuring the provisions and clauses do not deviate from the
requirements of the FAR and TAR.
Subpart 1252.2--Text of Provisions and Clauses
1252.211-70 Index for specifications.
As prescribed in (TAR) 48 CFR 1211.204-70, insert the following
clause:
Index for Specifications (Apr 2005)
If an index or table of contents is furnished in connection with
specifications, such index or table of contents is for convenience
only. Its accuracy and completeness is not guaranteed, and it is not
a part of the specification. In case of discrepancy between the
index or table of contents and the specifications, the
specifications shall govern.
(End of clause)
1252.216-70 Evaluation of offers subject to an economic price
adjustment clause.
As prescribed in (TAR) 48 CFR 1216.203-470, insert the following
provision:
Evaluation of Offers Subject to an Economic Price Adjustment Clause
(Oct 1994)
Offers shall be evaluated without an amount for an economic
price adjustment being added. Offers will be rejected which: (1)
Increase the ceiling stipulated; (2) limit the downward adjustment;
or (3) delete the economic price adjustment clause. If the offer
stipulates a ceiling lower than that included in the solicitation,
the lower ceiling will be incorporated into any resulting contract.
(End of provision)
1252.216-71 Determination of award fee.
As prescribed in (TAR) 48 CFR 1216.406, insert the following
clause:
Determination of Award Fee (Apr 2005)
(a) The Government shall evaluate contractor performance at the
end of each specified evaluation period to determine the amount of
award. The contractor agrees that the amount of award and the award
fee methodology are unilateral decisions to be made at the sole
discretion of the Government.
(b) Contractor performance shall be evaluated according to a
Performance Evaluation Plan. The contractor shall be periodically
informed of the quality of its performance and areas in which
improvements are expected.
(c) The contractor shall be promptly advised, in writing, of the
determination and reasons why the award fee was or was not earned.
The contractor may submit a performance self-evaluation for each
evaluation period. The amount of award is at the sole discretion of
the Government but any self-evaluation received within ------
(insert number) days after the end of the current evaluation period
will be given such consideration, as may be deemed appropriate by
the Government.
(d) The amount of award fee which can be awarded in each
evaluation period is limited to the amounts set forth at (identify
location of award fee amounts). Award fee which is not earned in an
evaluation period cannot be reallocated to future evaluation
periods.
(End of clause)
1252.216-72 Performance evaluation plan.
As prescribed in (TAR) 48 CFR 1216.406(b), insert the following
clause:
Performance Evaluation Plan (Oct 1994)
(a) A Performance Evaluation Plan shall be unilaterally
established by the Government based on the criteria stated in the
contract and used for the determination of award fee. This plan
shall include the criteria used to evaluate each area and the
percentage of award fee (if any) available for each area. A copy of
the plan shall be provided to the contractor ------ (insert number)
calendar days prior to the start of the first evaluation period.
(b) The criteria contained within the Performance Evaluation
Plan may relate to: (1) Technical (including schedule) requirements,
if appropriate; (2) Management; and (3) Cost.
(c) The Performance Evaluation Plan may, consistent with the
contract, be revised unilaterally by the Government at any time
during the period of performance. Notification of such changes shall
be provided to the contractor ------ (insert number) calendar days
prior to the start of the evaluation period to which the change will
apply.
(End of clause)
1252.216-73 Distribution of award fee.
As prescribed in (TAR) 48 CFR 1216.406(c), insert the following
clause:
Distribution of Award Fee (Apr 2005)
(a) The total amount of award fee available under this contract
is assigned according to the following evaluation periods and
amounts:
Evaluation Period:
Available Award Fee: (insert appropriate information)
(b) After the contractor has been paid 85 percent of the base
fee and potential award fee, the Government may withhold further
payment of the base fee and award fee until a reserve is set aside
in an amount that the Government considers necessary to protect its
interest. This reserve shall not exceed 15 percent of the total base
fee and potential award fee or $100,000, whichever is less.
Thereafter, base fee and award fee payments may continue.
(c) In the event of contract termination, either in whole or in
part, the amount of award fee available shall represent a prorata
distribution associated with evaluation period activities or events
as determined by the Government.
(d) The Government will promptly make payment of any award fee
upon the submission by the contractor to the contracting officer's
authorized representative, of a public voucher or invoice in the
amount of the total fee earned for the period evaluated. Payment may
be made without using a contract modification.
(End of clause)
1252.216-74 Settlement of letter contract.
As prescribed in (TAR) 48 CFR 1216.603-4, insert the following
clause:
Settlement of Letter Contract (Oct 1994)
(a) This contract constitutes the definitive contract
contemplated by issuance of letter contract ------ (insert number)
dated -------- (insert effective date). It supersedes the letter
contract and its modification number(s) -------- (insert number(s))
and, to the extent of any inconsistencies, governs.
(b) The cost(s) and fee(s), or price(s), established in this
definitive contract represents full and complete settlement of
letter contract (insert number and modification number(s) --------
(insert
[[Page 6524]]
number(s)). Payment of the agreed upon fee or profit withheld
pending definitization of the letter contract, may commence
immediately at the rate and times stated within this contract.
(End of clause)
1252.217-70 Guarantee.
As prescribed at (TAR) 48 CFR 1217.7001(a), insert the following
clause:
Guarantee (Apr 2005)
(a) In the event any work performed or materials furnished by
the contractor prove defective or deficient within 60 days from the
date of redelivery of the vessel(s), the Contractor, as directed by
the Contracting Officer and at its own expense, shall correct and
repair the deficiency to the satisfaction of the Contracting
Officer.
(b) If the Contractor or any subcontractor has a guarantee for
work performed or materials furnished that exceeds the 60 day
period, the Government shall be entitled to rely upon the longer
guarantee until its expiration.
(c) With respect to any individual work item identified as
incomplete at the time of redelivery of the vessel(s), the guarantee
period shall run from the date the item is completed.
(d) If practicable, the Government shall give the Contractor an
opportunity to correct the deficiency.
(1) If the Contracting Officer determines it is not practicable
or is otherwise not advisable to return the vessel(s) to the
Contractor, or the Contractor fails to proceed with the repairs
promptly, the Contracting Officer may direct that the repairs be
performed elsewhere, at the Contractor's expense.
(2) If correction and repairs are performed by other than the
Contractor, the Contracting Officer may discharge the Contractor's
liability by making an equitable deduction in the price of the
contract.
(e) The Contractor's liability shall extend for an additional 90
day guarantee period on those defects or deficiencies that the
Contractor corrected.
(f) At the option of the Contracting Officer, defects and
deficiencies may be left uncorrected. In that event, the Contractor
and Contracting Officer shall negotiate an equitable reduction in
the contract price. Failure to agree upon an equitable reduction
shall constitute a dispute under the Disputes clause of this
contract.
(End of clause)
1252.217-71 Delivery and shifting of vessel.
As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the
following clause:
Delivery and Shifting of Vessel (Oct 1994)
The Government shall deliver the vessel to the Contractor at his
place of business. Upon completion of the work, the Government shall
accept delivery of the vessel at the Contractor's place of business.
The Contractor shall provide, at no additional charge, upon 24
hours' advance notice, a tug or tugs and docking pilot, acceptable
to the Contracting Officer, to assist in handling the vessel between
(to and from) the Contractor's plant and the nearest point in a
waterway regularly navigated by vessels of equal or greater draft
and length. While the vessel is in the hands of the Contractor, any
necessary towage, cartage, or other transportation between ship and
shop or elsewhere, which may be incident to the work herein
specified, shall be furnished by the Contractor without additional
charge to the Government.
(End of clause)
1252.217-72 Performance.
As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the
following clause:
Performance (Oct 1994)
(a) Upon the award of the contract, the Contractor shall
promptly start the work specified and shall diligently prosecute the
work to completion. The Contractor shall not start work until the
contract has been awarded except in the case of emergency work
ordered by the Contracting Officer in writing.
(b) The Government shall deliver the vessel described in the
contract at the time and location specified in the contract. Upon
completion of the work, the Government shall accept delivery of the
vessel at the time and location specified in the contract.
(c) The Contractor shall without charge--
(1) Make available to personnel of the vessel while in dry dock
or on a marine railway, sanitary lavatory and similar facilities at
the plant acceptable to the Contracting Officer;
(2) Supply and maintain suitable brows and gangways from the
pier, dry dock, or marine railway to the vessel;
(3) Treat salvage, scrap or other ship's material of the
Government resulting from performance of the work as items of
Government-furnished property, in accordance with the Government
Property (Fixed Price Contracts) clause;
(4) Perform, or pay the cost of, any repair, reconditioning or
replacement made necessary as the result of the use by the
Contractor of any of the vessel's machinery, equipment or fittings,
including, but not limited to, winches, pumps, rigging, or pipe
lines; and
(5) Furnish suitable offices, office equipment and telephones at
or near the site of the work for the Government's use.
(d) The contract will state whether dock and sea trials are
required to determine whether or not the Contractor has
satisfactorily performed the work.
(1) If dock and sea trials are required, the vessel shall be
under the control of the vessel's commander and crew.
(2) The Contractor shall not conduct dock and sea trials not
specified in the contract without advance approval of the
Contracting Officer. Dock and sea trials not specified in the
contract shall be at the Contractor's expense and risk.
(3) The Contractor shall provide and install all fittings and
appliances necessary for dock and sea trials. The Contractor shall
be responsible for care, installation, and removal of instruments
and apparatus furnished by the Government for use in the trials.
(End of clause)
1252.217-73 Inspection and manner of doing work.
As prescribed at (TAR) 48 CFR 1217.7001(b) and (c), insert the
following clause:
Inspection and Manner of Doing Work (Oct 1994)
(a) The Contractor shall perform work in accordance with the
contract, any drawings and specifications made a part of the job
order, and any change or modification issued under the Changes
clause.
(b)(1) Except as provided in paragraph (b)(2