[Federal Register Volume 62, Number 249 (Tuesday, December 30, 1997)]
[Rules and Regulations]
[Pages 67749-67752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33688]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
48 CFR Parts 1201, 1202, 1203, 1205, 1206, 1209, 1214, 1216, 1217,
1222, 1224, 1225, 1236, 1237, 1246, and 1252
Amendment of Department of Transportation Acquisition Regulations
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Transportation Acquisition
Regulation (TAR) to reflect the changes to the Federal Acquisition
Regulation through the Federal Acquisition Circular 90-46 and to delete
certification requirements.
DATES: This rule is effective January 29, 1998.
FOR FURTHER INFORMATION CONTACT: Charlotte Hackley, Office of
Acquisition and Grant Management, M-60, 400 Seventh Street SW.,
Washington, DC 20590: (202) 366-4267.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of Transportation has determined that changes to the
[[Page 67750]]
Transportation Acquisition Regulation (TAR) are necessary to implement
and align it with 48 CFR Chapter Circulars 90-43 through 90-46, to
delete certification requirements, amend part 1211 to insert language
inadvertently omitted in 61 FR 50248, September 25, 1996, to implement
statutory requirements, and to make minor editorial revisions and
corrections.
B. Regulatory Analysis 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 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 minor editorial revisions.
D. Paperwork Reduction Act
There are no new information collection requirements that require
clearance previously approved under OMB Control No. 2105-0517.
List of Subjects in 48 CFR Parts 1201, 1202, 1203, 1205, 1206,
1209, 1214, 1216, 1217, 1222, 1224, 1225, 1236, 1237, 1246, and
1252
Government procurement.
The Final rule is issued under the delegated authority of 49 CFR
part 1.59(p). This authority is redelegated to the Senior Procurement
Executive, issued this 18th day of December 1997, at Washington, DC.
David J. Litman,
Director of Acquisition and Grant Management.
Adoption of Amendments
For the reasons set out in the preamble, 48 CFR Chapter 12 is
amended as follows:
1. The authority citation for 48 CFR chapter 12, parts 1201, 1202,
1203, 1205, 1206, 1209, 1214, 1216, 1217, 1222, 1224, 1225, 1236, 1237,
1246, and 1252 continues to read as follows:
Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.
PART 1201--FEDERAL ACQUISITION REGULATIONS SYSTEM [AMENDED]
2. Section 1201.105-2(b)(1)(i) is amended by revising ``(FAR) 48
CFR 1.104-2(b)'' to read ``(FAR) 48 CFR 1.105-2.''
2a. Section 1201.105-3 is amended by designating the existing text
as paragraph (a) and adding paragraph (b) to read as follows:
Sec. 1201.105-3 Copies.
* * * * *
(b) The (TAR) 48 CFR chapter 12 and Transportation Acquisition
Circulars (TACs) are available on the internet. See part 1202, appendix
A, for the internet address.
2b. Section 1201.106(a) is amended by revising ``April 30, 1997''
to read ``May 31, 2000.''
PART 1202--DEFINITIONS OF WORDS AND TERMS
3. Section 1202.1 paragraphs (b) through (j) are redesignated as
paragraphs (c) through (k); paragraph (b) is added and newly designated
paragraphs (i), (j)(1) and (j)(7) are revised to read as follows:
Sec. 1202.1 Definitions.
* * * * *
(b) Chief Information Officer (CIO) means the Director of the
Office of the CIO (S-80).
* * * * *
(i) Head of the operating administration (HOA) means the individual
appointed by the President to manage the operating administration. (For
acquisition related matters, the Director, Transportation
Administrative Service Center (TASC) is the HOA for TASC.)
(j) * * *
(1) Federal Aviation Administration (FAA). (FAA is exempt from the
TAR (48 CFR chapter 12) and TAM in accordance with the ``Department of
Transportation and Related Appropriations Act for FY 1996'');
* * * * *
(7) Transportation Administrative Service Center (TASC);
* * * * *
3a. Subpart 1202.70 is added as follows:
Subpart 1202.70--Internet Links
Sec. 1202.7000 General.
Throughout the (TAR) 48 CFR chapter 12, referenced documents which
can be found on the internet will cite the applicable internet address.
These addresses are located in Appendix A of this part.
3b. Appendix A to part 1202 is added to read as follows:
Appendix A to Part 1202.--List of Internet Addresses for TAR Documents
----------------------------------------------------------------------------------------------------------------
TAR part Document name Internet address
----------------------------------------------------------------------------------------------------------------
1201................ TAR................................................... http://www.dot.gov/ost/m60/tamtar/
part1201.htm
TAC................................................... http://www.dot.gov/ost/m60/tamtar/
part1201.htm
1205................ DOT Procurement Forecast.............................. http://osdbuweb.dot.gov/
consolic.htm
1234................ Major Acquisition Policies and Procedures............. http://www.dot.gov/ost/m60/tamtar/
chap1234.htm
________________________________________________________
PART 1203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 1203.1--Safeguards
Sec. 1203.104-11 [Amended]
4. The heading of section 1203.104-11 is revised to read ``Criminal
and civil penalties, and further administrative remedies.''
PART 1205--PUBLICIZING CONTRACT ACTIONS
5. In part 1205, subpart 1205.90 is added to read as follows:
Subpart 1205.90--Publicizing Contract Actions For Personal Services
Contracting
Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.
[[Page 67751]]
Subpart 1205.90--Publicizing Contract Actions for Personal Services
Contracting
Sec. 1205.9000 Applicability. (USCG)
Contracts awarded by the U.S. Coast Guard using the procedures in
(TAR) 48 CFR 1237.104-91 are expressly authorized under Section 1091 of
Title 10 U.S.C. as amended by Pub. L. 104-106, DOD Authorization Act,
Section 733 for the Coast Guard and are exempt from the requirements of
(FAR) 48 CFR part 5.
PART 1206--COMPETITION REQUIREMENTS
6. In part 1206, subpart 1206.90 is added to read as follows:
Subpart 1206.90--Competition Requirements for Personal Services
Contracting
Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.
Subpart 1206.90--Competition Requirements for Personal Services
Contracting
Sec. 1206.9000 Applicability. (USCG)
Contracts awarded by the U.S. Coast Guard using the procedures in
(TAR) 48 CFR 1237.104-91 are expressly authorized under Section 1091 of
Title 10 U.S.C. as amended by Pub. L. 104-106, DOD Authorization Act,
Section 733 for the Coast Guard and are exempt from the competition
requirements of (FAR) 48 CFR part 6.
PART 1209--CONTRACTOR QUALIFICATIONS
7. Subpart 1209.4 is added to read as follows:
Subpart 1209.4--Debarment, Suspension, and Ineligibility
Sec. 1209.408-70 Denial of funds.
(a) In accordance with Section 558 of the National Defense
Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and Section
206 of the Coast Guard Authorization Act of 1996 (Pub. L. 104-324), no
funds available under appropriations acts for any fiscal year for DOT
may (with respect to recruiting) be provided by contract to any
institution of higher education that has a policy or practice,
regardless of when implemented, that either prohibits or in effect
prevents the Secretary of Defense from obtaining for military
recruiting purposes:
(1) Entry to campuses or access to students on campuses; or
(2) Access to directory information on students.
(b) Directory information means the student's name, address,
telephone listing, date and place of birth, level of education,
academic major, degrees received, and the most recent educational
institution in which the student was enrolled.
(c) Students referred to in paragraph (a)(1) of this section are
individuals who are 17 years of age or older and are enrolled at a
covered school.
(d) Covered school means an institution of higher education, or a
subelement of an institution of higher education.
PART 1214--SEALED BIDDING
8. Section 1214.303 is removed.
PART 1216--TYPES OF CONTRACTS
9. Section 1216.405 is redesignated as section 1216.406 and
paragraphs (a) through (c) are redesignated as (e)(1)(i) through (iii),
respectively.
PART 1217--SPECIAL CONTRACTING METHODS
10. Subpart 1217.1 (1217.102 and 1217.102-1) is removed.
PART 1222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
11. Subpart 1222.6 (1222.608 and 1222.608-4) is removed.
PART 1224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION:
12. Section 1224.202 is redesignated as section 1224.203.
PART 1225--FOREIGN ACQUISITION
13. Part 1225 (FAA Supplement) is removed and reserved.
PART 1236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
14. Section 1236.602-1 is amended by removing paragraphs (a),
(a)(1) through (a)(5)(iii), and (c).
PART 1237--SERVICE CONTRACTING
15. Section 1237.104-90 is revised and 1237.104-91 is added to read
as follows:
Sec. 1237.104-90 Delegation of authority. (USCG)
(a) Section 733(a) of Pub. L. 104-106, the DOD Authorization Act of
1996, amended Title 10 of the United States Code to include a new
provision which authorizes the Secretary, with respect to the Coast
Guard, to enter into personal services contracts at medical treatment
facilities (10 U.S.C. 1091).
(b) The authority of the Secretary of Transportation under Pub. L.
104-106 to award personal services contracts for medical services at
facilities for the Coast Guard is delegated to the HCA with the
authority to redelegate to contracting officers under procedures
established by the HCA, who will address applicable statutory
limitations under Section 1091A of Title 10 U.S.C.
Sec. 1237.104-91 Personal services contracts with individuals under
the authority of 10 U.S.C. 1091 (USCG).
(a) Personal services contracts for health care services are
authorized by 10 U.S.C. 1091 for the Coast Guard. Sources for contracts
for health care services under the authority of 10 U.S.C. 1091 shall be
selected through procedures established in this section. These
procedures do not apply to contracts awarded to business entities other
than individuals. Selections made using the procedures in this section
are exempt by statute from (TAR) 48 CFR part 1206 competition
requirements (see (TAR) 48 CFR 1206.9000 (USCG)) and from (FAR) 48 CFR
Part 6 competition requirements.
(b) The contracting officer must provide adequate advance notice of
contracting opportunities to individuals residing in the area of the
facility. The notice should include the qualification criteria against
which individuals responding shall be evaluated. Contracting officers
shall solicit offerors through the most effective means of seeking
competition, such as a local publication which serves the area of the
facility. Acquisitions for health care services using personal services
contracts are exempt from posting and synopsis requirements of (FAR) 48
CFR part 5.
(c) The contracting officer shall provide the qualifications of
individuals responding to the notice to the representative(s)
responsible for evaluation and ranking in accordance with the
evaluation procedures. Individuals must be considered solely on the
professional qualifications established for the particular health care
services being acquired and the Government's estimate of reasonable
rates, fees, or costs. The representative(s) responsible for the
evaluation and ranking shall provide the contracting officer with
rationale for the ranking of the individuals consistent with the
required qualifications.
(d) Upon receipt of the ranked listing of offerors, the contracting
officer shall either:
[[Page 67752]]
(1) Enter into negotiations with the highest ranked offeror. If a
mutually satisfactory contract cannot be negotiated, the contracting
officer shall terminate negotiations with the highest ranked offeror
and enter into negotiations with the next highest, or;
(2) Enter into negotiations with all qualified offerors and select
on the basis of qualifications and rates, fees, or other costs.
(e) In the event only one individual responds to an advertised
requirement, the contracting officer is authorized to negotiate the
contract award. In this case, the individual must still meet the
minimum qualifications of the requirement and the contracting officer
must be able to make a determination that the price is fair and
reasonable.
(f) If a fair and reasonable price cannot be obtained from a
qualified individual, the requirement should be canceled and acquired
using procedures other than those set forth in this section.
(g) The total amount paid to an individual in any year for health
care services under a personal services contract shall not exceed the
paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition
Procedures.
(h) The contract may provide for the same per diem and travel
expenses authorized for a Government employee, including actual
transportation and per diem in lieu of subsistence for travel between
home or place of business and official duty station and only for travel
outside the local area in support of the statement of work.
(i) Coordinate benefits, taxes and maintenance of records with the
appropriate office(s).
(j) The contracting officer shall insure that contract funds are
sufficient to cover all contingency items that may be cited in the
statement of work for health care services.
PART 1246--QUALITY ASSURANCE
16. Section 1246.705 is amended by revising paragraph (a)(3) to
read as follows:
Sec. 1246.705 Limitations.
(a) * * *
(3) Any warranty obtained shall specifically exclude coverage of
damage in time of war or national emergency.
PART 1252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
17. Section 1252.223-70, 1252.228-70, 1252.228-72 are revised to
read as follows and 1252.225-90 and 1252.225-91 are removed
Sec. 1252.223-70 Removal or disposal of hazardous substances--
applicable licenses and permits.
As prescribed in (TAR) 48 CFR 1223.303, insert the following
clause:
Removal or Disposal of Hazardous Substances--Applicable Licenses and
Permits (Dec. 1997)
The Contractor must have all licenses and permits required by
Federal, state, and local laws to perform hazardous substance(s)
removal or disposal services. If the Contractor does not currently
possess these documents, it must obtain all requisite licenses and
permits within __ days after date of award. The Contractor shall
provide evidence of said documents to the Contracting Officer or
designated Government representative prior to commencement of work
under the contract.
(End of clause)
Sec. 1252.228-70 Loss of or damage to leased aircraft.
As prescribed in (TAR) 48 CFR 1228.306-70 (a) and (b), insert the
following clause:
Loss of or Damage to Leased Aircraft (Dec. 1997)
(a) The Government assumes all risk of loss of, or damage
(except normal wear and tear) to, the leased aircraft during the
term of this lease while the aircraft is in the possession of the
Government.
(b) In the event of damage to the aircraft, the Government, at
its option, shall make the necessary repairs with its own facilities
or by contract, or pay the Contractor the reasonable cost of repair
of the aircraft.
(c) In the event the aircraft is lost or damaged beyond repair,
the Government shall pay the Contractor a sum equal to the fair
market value of the aircraft at the time of such loss or damage,
which value may be specifically agreed to in clause 1252.228-71,
``Fair Market Value of Aircraft,'' less the salvage value of the
aircraft. However, the Government may retain the damaged aircraft or
dispose of it as it wishes. In that event, the Contractor will be
paid the fair market value of the aircraft as stated in the clause.
(d) The Contractor agrees that the contract price does not
include any cost attributable to hull insurance or to any reserve
fund it has established to protect its interest in the aircraft. If,
in the event of loss or damage to the leased aircraft, the
Contractor receives compensation for such loss or damage in any form
from any source, the amount of such compensation shall be:
(1) Credited to the Government in determining the amount of the
Government's liability; or
(2) For an increment of value of the aircraft beyond the value
for which the Government is responsible.
(e) In the event of loss of or damage to the aircraft, the
Government shall be subrogated to all rights of recovery by the
Contractor against third parties for such loss or damage and the
Contractor shall promptly assign such rights in writing to the
Government.
(End of clause)
Sec. 1252.228-72 Risk and indemnities.
As prescribed in (TAR) 48 CFR 1228.306-70(a) and (d), insert the
following clause:
Risk and Indemnities (Dec. 1997)
The Contractor hereby agrees to indemnify and hold harmless the
Government, its officers and employees from and against all claims,
demands, damages, liabilities, losses, suits and judgments
(including all costs and expenses incident thereto) which may be
suffered by, accrue against, be charged to or recoverable from the
Government, its officers and employees by reason of injury to or
death of any person other than officers, agents, or employees of the
Government or by reason of damage to property of others of
whatsoever kind (other than the property of the Government, its
officers, agents or employees) arising out of the operation of the
aircraft. In the event the Contractor holds or obtains insurance in
support of this covenant, evidence of insurance shall be delivered
to the Contracting Officer.
(End of clause)
TAR MATRIX
18. In Part 1253, subpart 1253.3, is amended by removing the
entries for ``FAA 1252.225-90'' and ``FAA 1252.225-91'' from the TAR
matrix.
[FR Doc. 97-33688 Filed 12-29-97; 8:45 am]
BILLING CODE 4910-62-P
