[Federal Register Volume 61, Number 4 (Friday, January 5, 1996)]
[Rules and Regulations]
[Pages 390-393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-137]
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DEPARTMENT OF TRANSPORTATION
48 CFR Parts 1213, 1237, 1252 and 1253
RIN 2105-AC-30
Revision of Department of Transportation Acquisition Regulation;
Procedures for Acquiring Training Services
AGENCY: Transportation.
ACTION: Final rule.
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SUMMARY: This final rule implements a Department of Transportation
Office of the Inspector General recommendation resulting from a review
of the acquisition of commercial training services. This final rule
contains revisions to the Transportation Acquisition Regulation (TAR)
which were published in the November 3, 1995 Federal Register (60 FR
55827) as a notice of proposed rulemaking (NPRM). The revisions address
public comments received as a result of the November 3, 1995 NPRM. The
TAR is codified in Chapter 12 of Title 48 of the Code of Federal
Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara Perreault Weakley, Office of
Acquisition and Grant Management, M-61, 400 Seventh Street, S.W.,
Washington, D.C. 20590: (202) 366-4967.
SUPPLEMENTARY INFORMATION:
A. Background
On November 3, 1995, revisions to the TAR were published in the
Federal Register (60 FR 55827) as a notice of proposed rulemaking
(NPRM). Comments were solicited from interested parties, including the
public and other Federal agencies. The NPRM announced the Department's
intent to revise the TAR to require all contractors to certify that the
data provided concerning company qualifications, background, etc., is
current, accurate and complete; and to prohibit contractors from
soliciting or advertising private, non-Government (to include non-
appropriated fund instrumentalities) training to students during
contracted-for training sessions. The NPRM established a public comment
period which closed on December 4, 1995.
B. Public Comments
Three substantive comments were received from one commentor in
response to the proposed rule. The Department fully considered these
comments in developing the final rule and has reconciled the comments
as follows:
Comment: The clause at (TAR) 48 CFR 1252.237-72, Prohibition on
Advertising, while better in its description of the practices the
Department wishes to prohibit, still may be too restricted. If
``conducting training services'' is meant to mean the act of delivering
the contracted training, it is acceptable. If it refers to any time
under contract with the Department, we believe it is too restrictive
and unacceptably interferes with free enterprise and conduct of our
business. To preclude misunderstandings, recommend the clause be
changed to read, ``* * * shall not advertise or solicit business from
attendees for private, non-Government training during the training
sessions * * *.''
Response: The comment was adopted with minor changes in wording.
Comment: The meaning of the phrase ``non-Government'' is not clear.
Does it mean training that is not applicable to the Government or
training provided by ``for profit'' and ``not for profit'' companies.
In the interest of fair competition and free enterprise, this rule
should extend to all non-appropriated fund instrumentalities. Recommend
the phrase ``to include non-appropriated fund instrumentalities'' be
included after each mention of the term ``non-Government.''
Response: The rule extends to all for profit and not for profit
companies under contract to provide training to DOT employees. The TAR
language is considered adequate and no change was required.
Comment: We believe the clause at (TAR) 1252.237-72 is also too
restrictive with regard to a common occurrence which arises while
providing the training. Students who are interested in other subject
areas may ask about our ability to provide such training. Literally
interpreted, our instructors could not answer such questions. We do not
believe this to be the intent of the clause. We recommend inserting the
word ``unsolicited'' in the second sentence of the clause as follows,
``This prohibition extends to unsolicited oral comments, * * *.''
Response: The comment was adopted and (TAR) 48 CFR 1252.237-72 was
changed to reflect this clarification.
C. Regulatory Analyses and Notices
The Department has determined that this action is not a significant
regulatory action under Executive Order 12866 or under the Department's
Regulatory Policies and Procedures. The Department does not believe
that there would be sufficient Federalism implications to warrant the
preparation of a Federalism assessment. This rule will not have a
significant economic impact on a substantial number of small entities
because the basic policies remain unchanged. Therefore, this rule does
not require a regulatory flexibility analysis under the Regulatory
Flexibility Act of 1980.
D. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) applies because the
final rule contains information collection requirements which require
OMB approval under 44 U.S.C. 3501, et seq. OMB has granted approval for
the period through April 30, 1997, under OMB Control Number 2105-0517.
List of Subjects in 48 CFR Parts 1213, 1237, 1252 and 1253
Government procurement.
This final rule is issued by delegated authority under 49 CFR
1.59(q). This authority has been redelegated to the Senior Procurement
Executive.
Issued this 22nd day of December 1995, at Washington, DC.
David J. Litman,
Senior Procurement Executive.
Adoption of Amendments
Title 48 of the Code of Federal Regulations, Parts 1213, 1237, 1252
and 1253 are amended as set forth below:
1. The authority citation for 48 CFR chapter 12, Parts 1213, 1237,
1252 and 1253 continues to read as follows:
Authority: 5 U.S.C. 201; 41 U.S.C. 418(b); 48 CFR 3.1.
2. Part 1213 is amended by adding subpart 1213.71 to read as
follows:
PART 1213--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES
Subpart 1213.71--Department of Transportation Procedures for Acquiring
Training Services
1213.7100 Applicability.
1213.7101 Solicitation provision and contract clause.
Subpart 1213.71--Department of Transportation Procedures for
Acquiring Training Services
Sec. 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
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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.
Sec. 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.
(b) Contracting officers shall incorporate the successful offeror's
certified data into any resultant contract(s). Certified data may be
incorporated 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 1237--SERVICE CONTRACTING
3. Subpart 1237.70, Department of Transportation Procedures for
Acquiring Training Services, is added to read as follows:
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 provision and contract clause.
Subpart 1237.70--Department of Transportation Procedures for
Acquiring Training Services
Sec. 1237.7000 Policy.
When training services are provided under contract to DOT, it is
the policy of DOT 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.
Sec. 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.
Sec. 1237.7002 Applicability.
The policy at (TAR) 48 CFR 1237.7000 applies to all DOT contracts
as defined in FAR 2.101 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 which 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.)
Sec. 1237.7003 Solicitation provision and contract 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
incorporated 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 1252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Part 1252 is amended to add 1252.237-71 and 1252.237-72 in
subpart 1252.2 as follows:
Subpart 1252.2--Texts of Provisions and Clauses
Sec. 1252.237-71 Certification of data.
As prescribed in (TAR) 48 CFR 1213.7101 and 1237.7003, insert the
following provisions:
Certification of Data (Jan 1996)
(a) The offeror represents and certifies that to the best of its
knowledge and belief, the information and/or data (e.g., company
profile, qualifications, background statements, brochures) submitted
with its offer is current, accurate, and complete as of the date of
its offer.
(b) The offeror understands that any inaccurate data provided to
the Department of Transportation may subject the offeror, its
subcontractors, its employees, or its representatives to: (1)
prosecution for false statements pursuant to 18 U.S.C. 1001 and/or;
(2) enforcement action for false claims or statements pursuant to
the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-2812
and 49 CFR part 31 and/or; (3) termination for default under any
contract resulting from its offer and/or; (4) debarment or
suspension.
(c) The offeror agrees to obtain a similar certification from
its subcontractors.
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Typed Name and Title:--------------------------------------------------
Company Name:----------------------------------------------------------
This certification concerns a matter within the jurisdiction of
an agency of the United States and the making of a false,
fictitious, or fraudulent certification may render the maker subject
to prosecution under Title 18, United States Code, Section 1001.
(End of provision)
Sec. 1252.237-72 Prohibition on advertising.
As prescribed in (TAR) 48 CFR 1213.7002 and 1237.7003, insert the
following clause:
Prohibition on Advertising (Jan. 1996)
The contractor or its representatives (including training
instructors) shall not advertise or solicit business from attendees
for private, non-Government training during contracted-for training
sessions. This prohibition extends to unsolicited oral comments,
distribution or sales of written materials, and/or sales of
promotional videos or audio tapes.
The contractor agrees to insert this clause in its subcontracts.
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(End of clause)
PART 1253--FORMS
5. In the appendix to Subpart 1253.3, the (TAR) Matrix is amended
by adding 1252.237-71, Certification of Data, and 1252.237-72,
Prohibition on Advertising, immediately following 1252.237-70,
Qualifications of Employees, as follows:
Appendix to Subpart 1253.3
* * * * * * *
Tar Matrix
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Principle type and/or purpose of contract
Prescribed P or -----------------------------------------------------------------------------------------------------------------------------------------------
Provision or clause in C IBR UCF COM IND UTL
FP SUP CR SUP FP R&D CR R&D FP SVC CR SVC FP CON CR CON T&M LH LMV SVC DDR A&E FAC DEL TRN SP SVC
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1252.237-71 Certification of Data................... 1237.7003 P No K ...... ...... ...... ...... A A ...... ...... ...... ...... A ...... ...... ...... A ...... A ......
1252.237-72 Prohibition on Advertising.............. 1237.7003 C No I ...... ...... ...... ...... A A ...... ...... ...... ...... A ...... ...... ...... A ...... A ......
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[FR Doc. 96-137 Filed 1-4-96; 8:45 am]
BILLING CODE 4910-62-P
