[Federal Register Volume 60, Number 198 (Friday, October 13, 1995)]
[Rules and Regulations]
[Pages 53278-53280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25206]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
48 CFR Parts 1415, 1426, 1428 and 1452
RIN 1090-AA52
Department of the Interior Acquisition Regulation; Internal
Procedures
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: In the interests of streamlining processes and improving
relationships with contractors, this final rule amends the Department
of the Interior Acquisition Regulation by removing nonessential
portions of those regulations. Internal procedures regarding disclosure
and use of information before award, unsolicited proposals, handling of
preaward mistakes, proposal evaluation, price negotiation, and profit
analysis are being removed. Guidance on Indian Preference contracting,
formerly located in Part 1404, is being reinstated as Part 1426.
Aircraft insurance clauses have been revised.
EFFECTIVE DATE: November 13, 1995.
FOR FURTHER INFORMATION CONTACT:
Dee Emmerich, Office of Acquisition and Property Management, (202) 208-
3348.
SUPPLEMENTARY INFORMATION: Under the auspices of the National
Performance Review, a thorough review of the Department of the Interior
Acquisition Regulation (DIAR) was conducted. The review revealed
unnecessary and outdated regulations, and some excessively burdensome
procedures.
In the interests of streamlining processes and improving
relationships with contractors, nonessential portions of the DIAR are
being removed from the CFR. The eight sections being removed from part
1415 deal with exclusively internal procedures so codification is not
necessary. Section 1415.106 is retained without change.
When the DIAR was issued in 1984 as a supplement to the Federal
Acquisition Regulation (FAR), FAR Part 26, Other Socioeconomic
Programs, did not exist. There being no alternative at the time,
Interior-unique guidance on contracting under Indian preference
procedures was issued as a supplement to FAR Part 4, Administrative
Matters. Therefore, the guidance formerly located at 1404.70 has been
removed, is being replaced in new subpart 1426.70 with only editorial
changes to cross-references and so forth. The clauses formerly located
at 1452.204 are relocated to 1452.226.
The removal of sections 1428.101 and 1428.104, regarding central
maintenance of bid bond information, will simplify DOI's internal
management and eliminate unnecessary paperwork. Editorial revisions
have been made to 1428.306 and 1428.311. 1452.228-70(b) was revised to
relieve contractors of the requirement to use registered mail and to
specify that a certificate of insurance constitutes adequate proof of
insurance.
The title of 1452.228-73 was edited. There were no changes to
1452.228-7, 1452.228-71, or 1452.227-72.
Required Determinations
The Department believes that public comment is unnecessary because
the material being removed is outdated or deals exclusively with
internal procedures. Therefore, in accordance with 5 U.S.C. 553(b)(B),
the Department finds good cause to publish this document as a final
rule. This rule was not subject to Office of Management and Budget
review under Executive Order 12866. This rule does not contain a
collection of information subject to the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.). In accordance with the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), the Department has determined
that this rule will not have a significant economic impact on a
substantial number of small entities because no requirements are being
added for small businesses and no protections are being withdrawn. The
Department has determined that this rule does not constitute a major
Federal action having a significant impact on the human environment
under the National Environmental Policy Act of 1969. The Department has
certified that this rule meets the applicable standards provided in
Sections 2(a) and 2(b)(2) of Executive Order 12778.
List of Subjects in 48 CFR Parts 1415, 1426, 1428 and 1452
Government procurement, Reporting and recordkeeping requirements.
Dated: August 8, 1995.
Robert J. Lamb,
Acting Assistant Secretary, Policy Management and Budget.
Chapter 14 of Title 48 of the Code of Federal Regulations is
amended as follows:
[[Page 53279]]
1. The authority citation for 48 CFR Parts 1415 and 1452 continues
to read as follows:
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5
U.S.C. 301.
PART 1415--[AMENDED]
2. Part 1415 is amended by removing subparts 1415.4, 1415.5,
1415.6, 1415.8 and 1415.9.
3. Part 1426 is added to subchapter D to read as follows:
PART 1426--OTHER SOCIO-ECONOMIC PROGRAMS
Subpart 1426.70--Indian Preference
1426.7000 Scope of subpart.
1426.7001 Definitions.
1426.7002 Statutory requirements.
1426.7003 Applicability and contract clause.
1426.7004 Compliance enforcement.
1426.7005 Tribal preference requirements.
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c) and 5
U.S.C. 301); Pub. L. 93-638, 88 Stat. 2205 (25 U.S.C. 450e(b)).
Subpart 1426.70--Indian Preference
1426.7000 Scope of subpart.
This subpart prescribes policies and procedures for implementation
of section 7(b) of the Indian Self-Determination and Education
Assistance Act (Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b)).
1426.7001 Definitions.
For purposes of this subpart the following definitions shall apply:
Indian means a person who is a member of an Indian Tribe. If the
contractor has reason to doubt that a person seeking employment
preference is an Indian, the contractor shall grant the preference but
shall require the individual within thirty (30) days to provide
evidence from the Tribe concerned that the person is a member of the
Tribe.
Indian organization means that governing body of any Indian Tribe
or entity established or recognized by such governing body in
accordance with the Indian Financing Act of 1974 (Pub. L. 93-262, 88
Stat. 77; 25 U.S.C. 1451).
Indian-owned economic enterprise means any Indian-owned commercial,
industrial, or business activity established or organized for the
purpose of profit provided that such Indian ownership shall constitute
not less than 51 percent of the enterprise.
Indian reservation includes Indian reservations, public domain
Indian allotments, former Indian reservations in Oklahoma, and land
held by incorporated Native groups, regional corporations, and village
corporations under the provisions of the Alaska Native Claims
Settlement Act, (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601 et seq.).
Indian Tribe means an Indian Tribe, band, nation, or other
recognized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (Pub. L. 92-203, 85 Stat.
688; 43 U.S.C. 1601), which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
On or near an Indian reservation means on a reservation or the
distance within that area surrounding an Indian reservation(s) that a
persons seeking employment could reasonably be expected to commute to
and from in the course of a work day.
1426.7002 Statutory requirements.
Section 7(b) of the Indian Self-Determination and Education
Assistance Act requires that any contract or subcontract entered into
pursuant to that Act, the Act of April 16, 1934 (48 Stat. 596; 25
U.S.C. 452), as amended, (the Johnson-O'Malley Act), or any other Act
authorizing contracts with Indian organizations or for the benefit of
Indians shall require that, to the greatest extent feasible:
(a) Preferences and opportunities for training and employment in
connection with the administration of such contracts shall be given to
Indians, and
(b) Preference in the award of subcontracts in connection with the
administration of such contracts shall be given to Indian organizations
and to Indian-owned economic enterprises as defined in section 3 of the
Indian Financing Act of 1974 (Sec. 3, Pub. L. 93-262; 88 Stat. 77; 25
U.S.C. 1452).
1426.7003 Applicability and contract clause.
(a) The Contracting Officer (CO) shall insert the clause at
1452.226-70, Indian Preference--Department of the Interior, in
solicitations issued and contracts awarded by
(1) The Bureau of Indian Affairs,
(2) A contracting activity other than the Bureau of Indian Affairs
when the contract is entered into pursuant to an act specifically
authorizing contracts with Indian organizations and
(3) A contracting activity other than the Bureau of Indian Affairs
where the work to be performed is specifically for the benefit of
Indians and is in addition to any incidental benefits which might
otherwise accrue to the general public.
(b) The CO shall insert the clause at 1452.226-71, Indian
Preference Program--Department of the Interior, in all solicitations
issued and contracts awarded by a contracting activity which may exceed
$50,000, which contain the clause required by paragraph (a) of this
section and where it is determined by the CO, prior to solicitation,
that the work under the contract will be performed in whole or in part
on or near an Indian reservation(s). The Indian Preference Program
clause may also be included in solicitations issued and contracts
awarded by a contracting activity which may not exceed $50,000, but
which contain the clause required by paragraph (a) of this section and
which, in the opinion of the CO, offer substantial opportunities for
Indian employment, training or subcontracting.
1426.7004 Compliance enforcement.
(a) The CO is responsible for conducting periodic reviews of the
contractor to ensure compliance with the requirements of the clauses
prescribed in 1426.7003. These reviews may be conducted with the
assistance of the Indian Tribe(s) concerned.
(b) Complaints of noncompliance with the requirements of the
clauses prescribed under 1426.7003 which are received in writing by the
contracting activity shall be promptly investigated by the CO and a
written disposition of the complaint shall be prepared.
1426.7005 Tribal preference requirements.
(a) Where the work under a contract is to be performed on an Indian
reservation, the CO may supplement the clause at 1452.226-71, Indian
Preference Program--Department of the Interior, by adding specific
Indian preference requirements of the Tribe on whose reservation the
work is to be performed. The supplemental requirements shall be jointly
developed for the contract by the CO and the Tribe. Supplemental
preference requirements must represent a further implementation of the
requirements of section 7(b) of Public Law 93-638 and must be approved
by the SOL for legal sufficiency before being added to a solicitation
and resultant contract. Any supplemental preference requirements to be
added to the clause at 1452.226-71 shall be included in the
solicitation and clearly identified in order to ensure uniform
understanding of the additional requirements by all prospective bidders
or offerors.
(b) Nothing in this subpart shall be interpreted to preclude Tribes
from independently developing and enforcing their own tribal preference
requirements. Such independently developed tribal preference
requirements shall not, except as
[[Page 53280]]
provided in paragraph (a) of this section, become a requirement in
contracts covered under this subpart 1426.70 and must not hinder the
Government's right to award contracts and to administer their
provisions.
4. Part 1428 is revised to read as follows:
PART 1428--BONDS AND INSURANCE
Subpart 1428.3--Insurance
Sec.
1428.301 Policy.
1428.306 Insurance under fixed-price contracts.
1428.306-70 Insurance for aircraft service contracts.
1428.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
1428.311-2 Contract clause.
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5
U.S.C. 301.
Subpart 1428.3--Insurance
1428.301 Policy.
It is the policy of DOI to insure its own risks only when such
action is in the best interest of the Government. Circumstances where
contractors are required to carry insurance are listed under FAR 28.301
and 28.306. In these circumstances, the CO shall insert the clause at
1452.228-70, Liability Insurance--Department of the Interior, in
solicitations and contracts.
1428.306 Insurance under fixed-price contracts.
1428.306-70 Insurance for aircraft services contracts.
(a) Policy. The CO shall insert minimum insurance requirements in
aircraft services contracts in order to protect the Government and its
contractors.
(b) Applicability. The clauses prescribed by paragraph (c) of this
section are applicable to all fixed-price contracts involving use of
aircraft with either a contractor-furnished or a Government-furnished
pilot except for one-time charters when Government exposure is minimal
and time limitations are present.
(c) Clauses. The following clauses shall be used as prescribed:
(1) The CO shall insert the clause at 1452.228-71, Aircraft and
General Public Liability Insurance--Department of the Interior, in
solicitations and contracts when a fixed-price contract for operation
of aircraft where the Government is using a contractor-furnished pilot
is contemplated.
(2) The CO shall insert the clause at 1452.228-72, Liability for
Loss or Damage--Department of the Interior, in solicitations and
contracts when a fixed-price contract for use of aircraft where the
Government does not have a property interest and is using a Government-
furnished pilot is contemplated.
(3) The CO shall insert the clause at 1452.228-73, Liability for
Loss or Damage--Department of the Interior (Property Interest), in
solicitations and contracts when a fixed-price contract for use of
aircraft where the Government has a property interest in the aircraft
and is using a Government-furnished pilot (e.g., a lease with purchase
option) is contemplated.
1428.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
1428.311-2 Contract clause.
The CO shall modify the clause at FAR 52.228-7, Insurance--
Liability to Third Persons, in accordance with 1452.228-7, and insert
in solicitations and contracts as prescribed in FAR 28.311-2.
PART 1452--[AMENDED]
1452.204-7 [Redesignated as 1452.226-70]
5. 1452.204-71 is redesignated as 1452.226-70.
1452.204-72 [Redesignated as 1452.226-71]
6. 1452.204-72 is redesignated as 1452.226-71.
7. 1452.228-70 is revised to read as follows:
1452.228-70 Liability insurance.
As prescribed in 1428.301, insert the following clause in all
contracts where circumstances warrant the carrying of insurance by the
contractor (see FAR 28.301 and 28.306):
Liability Insurance--Department of the Interior (Jul 1995)
(a) The contractor shall procure and maintain during the term of
this contract and any extension thereof liability insurance in form
satisfactory to the Contracting Officer by an insurance company
which is acceptable to the Contracting Officer. The named insured
parties under the policy shall be the Contractor and the United
States of America. The amounts of the insurance shall be not less
than as follows:
$________ each person.*
$________ each occurrence.*
$________ property damage.*
(b) Each policy shall have a certificate evidencing the
insurance coverage. The insurance company shall provide an
endorsement to notify the Contracting Officer 30 days prior to the
effective date of cancellation or termination of the policy or
certificate; or modification of the policy or certificate which may
adversely affect the interest of the Government in such insurance.
The certificate shall identify the contract number, the name and
address of the Contracting Officer, as well as the insured, the
policy number and a brief description of contract services to be
performed. The contractor shall furnish the Contracting Officer with
a copy of an acceptable insurance certificate prior to beginning the
work.
* These amounts to be set by the Contracting Officer.
[End of clause]
8. 1452.228-73 is amended by revising the introductory text to read
as follows:
1452.228-73 Liability for loss or damage (property interest).
As prescribed in 1428.306-70(c)(3), insert the following clause in
all fixed-price contracts involving the use of aircraft with
Government-furnished pilot where the Government has a property interest
in the aircraft (e.g., lease with purchase option):
* * * * *
[FR Doc. 95-25206 Filed 10-12-95; 8:45 am]
BILLING CODE 4310-RF-M
