Annual
Report on Department of Transportations (DOT) Commercial
Activities
The
Department of Transportation (DOT) submits an annual inventory of commercial
activities to the Office of Management (OMB) in accordance with the Federal
Activities Inventory Reform (FAIR) Act and OMB Circular A-76 policy. The content of the report varies
depending upon the progress made by each Operating Administration (OA) in
reviewing their inventory and through inventory submissions, review, challenges,
and appeals mandated by the FAIR Act.
OMB issues subsequent guidance if it determines that supplemental reports
or other information is needed for future inventory submissions each year to
assure all agencies correctly implement all of the provisions of the FAIR Act
and take advantage of the management information inherent in the detailed
Commercial Activities Inventory.
Inventory
Review and Publication; Challenges and Appeals 1.
Review
and Publication: In accordance with Section 2 of the FAIR
Act, OMB will review the agency's Commercial Activities Inventory and consult
with the DOT regarding its content.
After this review is completed, OMB will publish a notice in the
Federal Register stating that the inventory is available to the
public. Once the notice is
published, the DOT will transmit a copy of the detailed Commercial Activities
Inventory to Congress and make the materials available to the public through
this Website: http://www.dot.gov/ost/m60/fairact/. 2.
Challenges
and Appeals: Under
Section 3 of the FAIR Act, an "interested party" may administratively challenge
DOT's decision to include or exclude a particular activity from the Commercial
Activities Inventory. If OST or an Operating Administration issues an
adverse decision on the initial challenge, an interested party may also
administratively appeal this adverse decision. Section 3(b) of the FAIR
Act defines
“interested party” as: a.
A
private sector source that (A) is an actual or prospective offeror
for any contract or other form of agreement to perform the activity; and (B) has
a direct economic interest in performing the activity that would be adversely
affected by a determination not to procure the performance of the activity from
a private sector source. b.
A
representative of any business or professional association that
includes within its membership private sector sources referred to in a.
above. c.
An
officer or employee of an organization within an executive
agency that is an actual or prospective offeror to perform the
activity. d.
The
head of any labor organization referred to in section 7103(a) (4)
of title 5, United States Code that includes within its membership officers or
employees of an organization referred to in c. above. 3.
An
interested party may submit to DOT or an Operating Administration an initial
challenge to the inclusion or exclusion of an activity within 30 working days
after publication of OMB’s Federal Register Notice. The inventory challenge shall be limited
to (a) the reclassification of an activity as inherently governmental or
commercial, or (b) the application of reason codes. Function codes shall
not be subject to the inventory challenge process. A written inventory
challenge shall be submitted to agency inventory challenge authorities and shall
specify the agency, agency component, agency organization, function(s), and
location(s) for the activities being challenged. (Source: OMB Circular A-76, May
29, 2003, A-4) 4.
The
Secretary of DOT may delegate the responsibility to designate the appropriate
official(s) to receive and decide the initial challenges. As mandated by the FAIR Act, the
deciding official must decide the initial challenge and transmit to the
interested party a written notification of the decision within 28 working days
after receiving the challenge. The
notification must include a discussion of the rationale for the decision and, if
the decision is adverse, an explanation of the party's right to file an
appeal. 5.
An
interested party may appeal an adverse decision to an initial challenge within
10 working days after receiving the written notification of the decision. The Secretary of DOT may delegate the
responsibility to receive and decide appeals to an Appeal Official who is at the
same level as, or a higher level than, the individual who prepared the
inventory. Within 10 working days of receipt of the
appeal, the Department's Competitive Sourcing Officer (CSO) shall issue a written inventory appeal
decision and the rationale for the decision to the interested party. DOT's CSO must then transmit to OMB and the Congress a copy of any changes to the
inventory that result from this process, make the changes available to the
public and publish a notice of public availability in the Federal
Register. Challenges
- Parties
interested in challenging a Department of Transportation (DOT) or Operating
Administration's (OA) inventory must deliver the written challenge directly to
the appropriate address located at: http://www.dot.gov/ost/m60/fairact/index.html#addchallenges
for each OA or DOT separately.
Please note that a separate challenge is required for each OA or the DOT
inventory that is being challenged.
By law, challenges must be filed within 30 working days of the date of
the Federal
Register notice indicating that DOT's inventory is available on DOT's website. Appeals -
If
an interested party appeals an unsuccessful challenge, the appeal must be
delivered, in writing, to the DOT Appeals Authority Address identified at: http://www.dot.gov/ost/m60/fairact/index.html#addressappeals
within ten working days after receipt of the DOT or OA’s challenge decision. In
addition to providing rationale about why the challenge decision is being appealed,
the appeal package must include: