Federal Register: August 17, 2000 (Volume 65, Number 160)
Rules and Regulations
DEPARTMENT OF DEFENSE
48 CFR Parts 212, 242, 247, and 252
Defense Federal Acquisition Regulation Supplement; Transportation Acquisition Policy
AGENCY: Department of Defense (DoD).
SUMMARY: The Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise policy pertaining to the acquisition of transportation, transportation-related services, and transportation in supply contracts. The rule provides for the use of evaluation factors that address support for DoD readiness programs such as the Civil Reserve Air Fleet and the Voluntary Intermodal Sealift Agreement.
FOR FURTHER INFORMATION CONTACT: Amy Williams, Defense Acquisition
Regulations Council, OUSD(AT&L)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062; telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 99-D009.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends the DFARS to revise policy pertaining to the acquisition of transportation, transportation-related services, and transportation in supply contracts. For contracts for transportation or transportation-related services, the rule specifies that contracting officers should consider using, as evaluation factors or subfactors, the offeror's record of claims involving loss or damage, provider availability, and support for DoD readiness programs such as the Civil Reserve Air Fleet and the Voluntary Intermodal Sealift Agreement. For contracts that will include a significant requirement for
transportation of items outside the continental United States, the rule contains a requirement for use of an evaluation factor or subfactor that favors suppliers, third-party logistics providers, and integrated logistics managers that commit to using carriers that participate in one of the readiness programs.
The rule implements a policy memorandum issued by the Under Secretary of Defense (Acquisition, Technology, and Logistics) on January 15, 1998, Subject: Transportation Acquisition Policy. The January 15, 1998, memorandum is available via the Internet at http:// www.acq.osd.mil/log/tp/trans__programs/defense__trans__library/ tp__library.html. The rule also updates references and organizational names and addresses, and makes other editorial changes.
DoD published a proposed rule at 65 FR 2104 on January 13, 2000. Seven sources submitted comments on the proposed rule. DoD considered all comments in the development of the final rule.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act DoD certifies that this final rule will 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 most small entities that are eligible to transport DoD cargo or passengers already participate in DoD readiness programs.
C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 212, 242, 247, and 252
Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 212, 242, 247, and 252 are amended as follows:
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(b)(i) For the acquisition of transportation and transportation-related services, also consider evaluating offers in accordance with the criteria at 247.206(1).
(ii) For the acquisition of transportation in supply contracts that will include a significant requirement for transportation of items outside the continental United States, also evaluate offers in accordance with the criterion at 247.301-71.
(iii) For the direct purchase of ocean transportation services, also evaluate offers in accordance with the criterion at 247.572-2(c)(2).]
* * * * *
242.1401 General.
(b)(12) Chapter 39 of the Defense Traffic Management Regulation (DTMR) (AR 55-355, NAVSUPINST 4600.70, AFM 75-2, MCO P4600 14A, DLAR 4500.3) contains methods for tracing and expediting shipments.
(a)(2) In reporting planned and actual volume movements-
(A) The contracting officer-
(1) Provides production schedules and planned destinations to the servicing transportation office as soon as the information is available to permit the transportation office to determine if volume movements will occur. If a volume movement appears likely, the transportation office reports a planned volume movement under Chapters 12 and 13 of the DTMR[in accordance with DoD 4500.9-R, Defense Transportation Regulation, Part II, Chapter 201].
(2) Sends a copy of the volume movement report to the contract administration office.
* * * * *
(C) Include the destination country, foreign [freight] forwarder, and, if known, port of embarkation on volume movement reports for foreign military sale shipments.
(a)(i) * * *
(ii) The term ["]commercial bills of lading["] includes the use of any commercial form or procedure. Appendix J of the DTMR lists carriers and carrier associations that provide transportation within the continental United States under commercial forms and procedures.
* * * * *
(a) See also Chapter 41 of the Defense Traffic Management Regulation (DTMR)[DoD 4500.9-R, Defense Transportation Regulation, Part II, Chapter 210,] for discrepancy procedures.
(a) Procedures for payment or collection of demurrage or detention charges are contained in Chapter 38 of the DTMR.
(b)[(a)] Carrier demurrage rules usually allow for a "free time" for loading or unloading cars or for any other purpose, and impose charges for cars held beyond this period. If a contractor detains railroad cars beyond the "free time," the contractor has to pay the carrier's published tariff charges for demurrage.
(c)[(b)] Detention results when a shipper or consignee holds motor carrier equipment beyond a reasonable period for loading, unloading, forwarding directions, or any other reason. Detention rules and charges are not uniform; they are published in individual carrier or agency tenders.
* * * * *
For definitions of "Civil Reserve Air Fleet" and "Voluntary Intermodal Sealift Agreement," see Joint Pub 1-02, DoD Dictionary of Military and Associated Terms.]
247.103 Transportation Documentation and Audit Regulation (TDA).
(b)(2) Appendix J of the Defense Traffic Management Regulation lists the carriers and carrier associations that have agreed to provide transportation under commercial forms and procedures within CONUS.
(a) Section 10721 rates do not apply to foreign military sale (FMS) shipments.
(i) On shipments of stock fund items from a contractor to a depot, when some of the items in a specific transportation unit are clearly for FMS-
(A) Section 10721 rates do not apply to FMS items shipped on a separate bill of lading; and
(B) Section 10721 rates do apply to the non-FMS items.
(a) See Section XI, Chapter 32 of the Defense Traffic Management Regulation [DoD 4500.9-R, Defense Transportation Regulation, Part II, Chapter 206,] for instructions on converting commercial bills of lading to Government bills of lading within CONUS.
(a[b])(i) Transportation assistance includes all transportation factors, such as-
(A) Freight rates[Rates and prices] (for evaluation of bids or routing purposes);
* * * * *
(ii) Within CONUS, the Military Traffic Management Command (MTMC), through its eastern and western area commands, is responsible for the performance of traffic management functions. These functions include the direction, control, and supervision of all functions incident to the acquisition and use of commercial freight and passenger transportation services. See Chapters 1 and 2 of the Defense Traffic Management Regulation for the locations and geographical areas of jurisdiction of each area headquarters.
(iii) For assistance with international shipments-
* * * * *
(D) Of supplies between points outside the CONUS, including Alaska and Hawaii, request assistance, rates, or other costs from the military service sponsoring the cargo. Direct the requests to:
Army |
Deputy Chief of Staff for Logistics
ATTN: DALO-TSP Washington, DC 20310-05 |
Navy |
Naval Supply Systems Command Code
[5450 Carlisle Pike PO Box 2050 Mechanicsburg, PA 17055-0791] |
Air Force |
Applicable overseas Air Force Command[:] HQ PACAF/LGT 25 East Street, Suite I- Hickam AFB, HI 96853-5427 |
HQ USAFE/LGT Unit 3050, Box 105 APO AE 09094-0105 | |
HQ AFSPACECOM/LGT 150 Vandenberg Street, Suite 1105 Peterson AFB, CO 80914- | |
Marine Corps |
HQ, U.S. Marine Corps [Traffic Management Branch (LFT1)] 2 Navy Annex] Washington, DC 20380[-1775] |
* * * * *
This subpart does not apply to the operation of vessels owned by, or bareboat chartered by, the Government.
(1) Consistent with FAR 15.304 and 215.304, consider using the following as evaluation factors or subfactors:
(i) Record of claims involving loss or damage;
(ii) Provider availability; and
(iii) Commitment of transportation assets to readiness support (e.g., Civil Reserve Air Fleet and Voluntary Intermodal Sealift Agreement).
(2) To the maximum extent practicable, structure contracts and agreements to allow for their use by DoD contractors.]
247.270-1 Scope of section.
This section contains procedures peculiar[unique] to stevedoring. Other portions of the FAR and DFARS dealing with service contracting also apply to stevedoring contracts.
(a) "Commodity rate" is-
(1) The price quoted for handling a ton (weight or measurement) of a specified commodity.[; and]
(2) Computed by dividing the hourly stevedoring gang cost by the estimated number of tons of the specified commodity which [that] can be handled in one hour.
* * * * *
Normally, use an indefinite-quantity type contract.
(a) Because conditions vary at different ports, and sometimes within the same port, it is not practical to develop standard technical provisions covering all phases of stevedoring operations.
(b) When including [rail] car[, truck, or intermodal equipment] loading and unloading[,] or other dock and terminal work under a stevedoring contract, include these requirements as separate items of work.
As a minimum, require that offers include-
(a) Tonnage or commodity rates which[that] apply to the bulk of the cargo worked under normal conditions;
(b) Labor-hour rates which[that] apply to services not covered by commodity rates, or to work performed under hardship conditions; and
(c) Cost of[Rates for] equipment rental.
Make the award to the contractor[offeror] submitting the offer most advantageous to the Government, considering cost or price and other factors specified elsewhere in the solicitation. Evaluation will include, but is not limited to-
(a) Total estimated cost of tonnage to be moved at commodity rates;
(b) Estimated cost at labor-hour rates; and
(c) Cost of equipment rental.
Use the following clauses in solicitations and contracts for stevedoring services as indicated-[:]
(a) 252.247-7000, Hardship Conditions, as appropriate;[in all solicitations and contracts.]
(b) 252.247-7001, Price Adjustment, when using sealed bidding;[.]
(c) 252.247-7002, Revision of Prices, when using negotiation;[.]
(d) 252.247-7003, Termination, when it is desirable to permit either party to terminate the contract;
(e[d]) 252.247-7004, Indefinite Quantities--Fixed Charges, when the contract [is an indefinite-quantity type and] will provide for the payment of fixed charges;[.]
(f[e]) 252.247-7005, Indefinite Quantities--No Fixed Charges, when the contract [is an indefinite-quantity type and] will not provide for the payment of fixed charges;[.]
(g[f]) 252.247-7006, Removal of Contractor's Employees;[, in all solicitations and contracts.] and
(h[g]) 252.247-7007, Liability and Insurance[, in all solicitations and contracts].
This section contains procedures peculiar[unique] to the preparation of personal property for shipment or storage, and for the performance of intra-area or intra-city movement. Other portions of the FAR and DFARS dealing with service contracting also apply to these services.
(a) Annual contracts. Normally-
(1) Use requirements contracts awarded through sealed bidding to acquire services for the-
* * * * *
(c) Maximum requirements-minimum capability. The contracting officer shall[must]-
(1) Establish realistic quantities on the Estimated Quantities Report in DoD 4500.34-R, Personal Property Traffic Management Regulation[DoD 4500.9-R, Defense Transportation Regulation, Part IV];
(2) Ensure that the Government's minimum acceptable daily capability-
* * * * *
(ii) Will not preclude bidding by small business firms[encourage maximum participation of small business concerns as offerors].
(a) CONUS military activities assigned multi-service personal property areas of responsibility.
(1) When two or more military installations or activities have personal property responsibilities in a given area, one activity shall[must] contract for the estimated requirements of all activities in the area. The installation commanders concerned shall[must] designate the activity by mutual agreement.
(2) The Commander, [Military Traffic Management Command (]MTMC[)], shall[must] designate the contracting activity when local commanders are unable to reach agreement.
(b) Additional services and excess requirements.
* * * * *
(2) Additional services are those not specified in the bid items.
* * * * *
(iii) Each personal property shipping activity shall[must] determine if local requirements exist for any additional services.
* * * * *
(c) Contract distribution. In addition to the distribution requirements of FAR Subpart 4.2, furnish one copy of each contract as follows-[:]
(1) CONUS personal property shipping activities shall[must] send the copy to the Commander, Military Traffic Management Command, ATTN: MTPP-CI, Room 408, 5611 Columbia Pike, Falls Church, VA 22041-5050.
(2) In the European and Pacific areas, personal property shipping activities shall[must] send the copy to either the Property Directorate, MTMC Europe, or the MTMC Field Office-Pacific.
(3) Other overseas personal property shipping activities shall[must] send the copy to the Commander, Military Traffic Management Command, ATTN: MTPP-Q, 5611 Columbia Pike, Falls Church, VA 22041-5050.
247.271-4 Solicitation provisions, schedule formats, and contract clauses.
When acquiring services for the preparation of personal property for movement or storage, and for performance of intra-city or intra-area movement, use the following provisions, clauses, and schedules. Revise solicitation provisions and schedules, as appropriate, if using negotiation rather than sealed bidding. Overseas commands, except those in Alaska and Hawaii, may modify these clauses to conform to local practices, laws, and regulations.
* * * * *
(c) In solicitations and resulting contracts, the schedules contained in DoD 4500.34-R, Personal Property Traffic Management Regulation [DoD 4500.9-R, Defense Transportation Regulation, Part IV], as provided by the installation personal property shipping office.
* * * * *
(4) All generic terminology, schedule, and item numbers in proper sequence shall[must] follow those contained in the basic format.
(5) When it is in the Government's best interest to have both outbound and inbound services within a given area of performance furnished by the same contractor, modify the schedule format to combine both services in a single schedule. However, items shall[must] follow the same sequential order as in the basic format.
(6) Process any modification of schedule format, other than those authorized in paragraphs (c)(1) through (5) of this subsection, as a request for deviation through MTMC area commands/field offices to HQ, MTMC[to the Commander, MTMC].
* * * * *
(e) The clause at 252.247-7011, Period of Contract. When the period of performance is less than a calendar year, modify the clause to indicate the beginning and ending dates. However, the contract period shall[must] not end later than December 31 of the year in which the contract is awarded.
(f) In addition to designating each ordering activity, as required by the clause at FAR 52.216-18, Ordering, identify by name or position title the individuals authorized to place orders for each activity. When provisions are made for placing oral orders in accordance with FAR 16.506(b)[5(a)(4)], document the oral orders in accordance with departmental/ [or] agency instructions.
* * * * *
(j) When using the clause at FAR 52.216-21, Requirements, see 216.505[6](d) which prescribes use of Alternate I at 252.247-7015[an alternate to the clause].
* * * * *
(p) The clauses at FAR 52.247-2, Permits, Authorities, or Franchises; FAR 52.247-8, Estimated Weight or Quantities Not Guaranteed;[, and FAR] 52.247-13, Accessorial Services--Moving Contracts; and FAR 52.247-17, Charges.
"Integrated logistics managers" or "third-party logistics providers" means providers of multiple logistics services. Some examples of logistics services are the management of transportation, demand forecasting, information management, inventory maintenance, warehousing, and distribution.
For contracts that will include a significant requirement for transportation of items outside CONUS, include an evaluation factor or subfactor that favors suppliers, third-party logistics providers, and integrated logistics managers that commit to using carriers that participate in one of the readiness programs (e.g., Civil Reserve Air Fleet and Voluntary Intermodal Sealift Agreement).]
(b) Consignment instructions shall[must] include, as a minimum-
(i) The clear text and coded MILSTRIP data as follows-[:]
(A) Consignee code and clear text identification of consignee and destination as published in-
(1) DoD 4000.25-6-M, Department of Defense Activity Address Directory (DoDAAD);
(2) DoD 4000.25-8-M, Military Assistance Program Address Directory (MAPAD)[System]; [or]
(3) Commercial and Government Entity (CAGE) Handbook H4/H8; or
(4[3]) Transportation Control and Movement Document. Reporting procedures and instructions shall[must] comply with DoD Regulation 4500.32-R, [Military Standard Transportation and Movement Procedures (]MILSTAMP[)].
(B) Project code, when applicable;[.]
(C) Transportation priority;[.]
(D) Required delivery date; and[.]
(E) Coded MILSTRIP document number, demand/suffix code, a supplementary address and signal code.
(ii) Non-MILSTRIP shipments shall[must] include data similar to [that described in] paragraph[s] (b)(i)(A) through (D) of this subsection[.] and the applicable portion of paragraph (b)(i)(E) with the notation "Non-MILSTRIP."
(iii) In amended shipping instructions include, in addition to the data requirements of paragraphs (b)(i)(A) through (E[D]) of this subsection, the following, when appropriate-[:]
(A) Name of the activity originally designated, from which the stated quantities are to be deducted; and[.]
(B) Any other features of the amended instructions not contained in the basic contract.
(iv) If a contract is assigned for any contract administration function listed in FAR Subpart 42.3, to any office listed in the Federal Directory of Contract Administration Services Components, then [When assigning contract administration responsibility in accordance with FAR 42.202,] include in instructions the-
(A) Modification serial number; and,
[(B) I]if a new line item is created by the issuance of shipping instructions;[-]
(B[1]) New line item number; and
(C[2]) Existing line item number, if affected.
(v) For petroleum, oil[,] and lubricant products, instructions for diversions need not include the modification serial number and new line item number, when the instructions are-
(A) For diversions overseas to new destinations;
(B) Issued by an office other than that issuing the contract or delivery order; and
(C) Issued by telephone, teletype, or telegram[or electronic media].
* * * * *
When complete consignment instructions are not known initially, use the Standard Form [(SF)] 30, Amendment of Solicitation/Modification of Contract, to issue or amend consignment instructions, and when necessary, to confirm consignment instructions issued by telephone, teletype, or telegram[or electronic media].
* * * * *
(b) Process the confirming SF 30 as follows-
* * * * *
(3) [For o]Other contracts-
(i) Telephone-within five [5] working days; and
(ii) Teletype or telegraph[Electronic media]--consolidate on a monthly basis.
* * * * *
This subpart-
(a) Implements the Cargo Preference Act of 1904 [("the 1904 Act")], 10 U.S.C. 2631, which applies to the ocean transportation of cargo owned by, or destined for use by, the DoD.[;]
(b) Does not specifically implement the Cargo Preference Act of 1954 [("the 1954 Act")], 46 U.S.C. 1241(b). The 1954 Act is applicable to the DoD, but DFARS coverage is not required because compliance with the 1904 Act historically has resulted in the DoD exceeding the 1954 Act's requirements.[; and]
(c) Is an approved class deviation from FAR Subpart 47.5 in its entirety (but see 247.571(c))[Does not apply to ocean transportation of the following products, in which case FAR Subpart 47.5 applies:
(1) Products obtained for contributions to foreign assistance programs.
(2) Products owned by agencies other than DoD, unless the products are clearly identifiable for eventual use by DoD.]
(a) DoD contractors shall[must] transport supplies, as defined in the clause at 252.247-7023, Transportation of Supplies by Sea, exclusively on U.S.-flag vessels unless-
(1) Those vessels are not available, and [the procedures at 247.572-1(d)(1) or 247.572-2(d)(1) are followed]notices are given and approvals received in accordance with this subpart;
(2) The Secretary of the Navy determines that the freight charged is excessive or unreasonable; or
(3) The contracting officer finds that the [proposed] charges to the Government are higher than charges to private persons for the transportation of like goods[, and the procedures at 247.572-1(d)(2) or 247.572-2(d)(2) are followed; or
(3) The Secretary of the Navy or the Secretary of the Army determines that the proposed freight charges are excessive or unreasonable in accordance with 247.572-1(d)(3) or 247.572-2(d)(3).]
(b) Contracts shall[must] provide for the use of Government-owned vessels when security classifications prohibit the use of other than Government-owned vessels.
(c)(1) Any vessel used under a time charter contract for the transportation of supplies [under this section] shall [must] have any reflagging or repair work, as defined in the clause at 252.247-7025, Reflagging or Repair Work, performed in the United States or its territories, if the reflagging or repair work is performed-
(i) On a vessel for which the contractor submitted an offer in response to the solicitation for the contract; and
(ii) Prior to acceptance of the vessel by the Government.
(2) The Secretary of Defense may waive this requirement if the Secretary determines that such waiver is critical to the national security of the United States.
(d) The Cargo Preference Act of 1904 does not apply to ocean transportation of-
(1) Products obtained for contributions to foreign assistance programs; or
(2) Products owned by agencies other than the DoD. In these cases, FAR Subpart 47.5 applies.
(a) This subsection applies when ocean transportation is not the [principal] purpose of the contract[, and the cargo to be transported is owned by DoD or is clearly identifiable for eventual use by DoD].
(b) The contracting officer shall [must] obtain assistance from the cognizant transportation activity (see 247.105), in developing-
(1) The Government estimate for transportation costs, irrespective of whether freight will be paid directly by the Government; [and]
(2) Shipping instructions and delivery terms for inclusion in solicitations and contracts that may involve transportation of supplies by sea.
(c) The contracting officer shall [must] ask each offeror whether it will transport supplies by sea if awarded the contract (see 247.573(a)). Even if the successful offeror responds that it does not anticipate sea transport of supplies, it may discover during contract performance that ocean transportation is required. In that event, the [1904] Act will apply to the contract, and it[the contractor] must-
(1) Notify the Government that it now intends to use ocean transportation;
(2) Use U.S.-flag vessels unless certain conditions exist (see 247.571(a)); and
(3) Comply with the other requirements of the clause at 252.247-7023, Transportation of Supplies by Sea.
(d) When[If] the [contractor notifies the] contracting officer is notified that the contractor or [a] subcontractor considers that-
(1) No U.S.-flag vessels are available, the contracting officer shall[must] request confirmation of the nonavailability from[-
(i) The Commander, Military Sealift Command (MSC), through] the Director, Office of Contracts and Business Management [Directorate, MSC], Military Sealift Command (MSC)[; or
(ii) The Commander, Military Traffic Management Command (MTMC), through the Principal Assistant Responsible for Contracting, MTMC].
(2) The [proposed] freight charges to the Government, the contractor[,] or any subcontractor, are higher than charges for transportation of like goods to private persons, the contracting officer may approve any request for a waiver of [an exception to] the requirement to ship on U.S.-flag vessels for a particular shipment.
(i) Prior to granting a waiver[an exception], the contracting officer shall[must] request advice, oral or written, from the Commander, MSC[, or the Commander, MTMC].
(ii) In advising the contracting officer whether to grant the waiver[exception], the Commander, MSC, [or the Commander, MTMC,] shall[must] consider, as appropriate, evidence from-
(A) Published tariffs;
(B) Industry publications;
(C) The Maritime Administration; and
(D) Any other available sources.
(3) The freight charged[s proposed] by U.S.-flag carriers is considered [are] excessive or otherwise unreasonable, the contracting officer shall forward a report to the Commander, MSC, through the head of the contracting activity, and the Director, Office of Contracts and Business Management, MSC.[-]
(i) The [contracting officer must prepare a] report shall be in determination and finding format, and [must]-
(A) Take into consideration that the 1904 Act is, in part, a subsidy of the U.S.-flag commercial shipping industry that recognizes that lower prices may be available from foreign[-flag] shippers[carriers. Therefore, a lower price for use of a foreign-flag vessel is not a sufficient basis, on its own, to determine that the freight rate proposed by the U.S.-flag carrier is excessive or otherwise unreasonable. However, such a price differential may indicate a need for further review];
(B) Consider, accordingly, not only excessive profits to the [carrier (to include] vessel owner [or operator)], if ascertainable, but also excessive costs [to the Government] (i.e., costs beyond the economic penalty normally incurred by excluding foreign competition) resulting from the use of U.S.-flag vessels in extraordinarily inefficient circumstances; [and]
(C) Include, as appropriate (1) A[a]n analysis of whether the cost is excessive, taking into account factors such as[-
(1) T]the differential between [the] freight charges [proposed] by the U.S.-flag carrier and an estimate of what foreign-flag carriers would charge based upon a price analysis;
(2) A comparison of U.S.-flag rates charged on comparable routes;
(3) Efficiency of operation regardless of rate differential (i.e.[e.g.], suitability of the vessel for the required transportation in terms of cargo requirements/ [or] vessel capacity;[, and] the commercial reasonableness of vessel positioning required, etc.); and
(4) Any other relevant economic and financial considerations.
(D) Consider that the fact that it would be less expensive to use a foreign-flag vessel is not a sufficient basis, on its own, to determine that the freight rate proposed by the U.S.-flag carrier is excessive or otherwise unreasonable. However, such a differential may indicate a need for further review.
[(ii) The contracting officer must forward the report to-
(A) The Commander, MSC, through the Contracts and Business Management Directorate, MSC; or
(B) The Commander, MTMC, through the Principal Assistant Responsible for Contracting, MTMC.]
(ii[i]) If [in agreement with the contracting officer,] the Commander, MSC, concurs with the contracting officer,[or the Commander, MTMC,] the Commander will forward the report to the Secretary of the Navy, via ASN(RDA)(PP)[or the Secretary of the Army, respectively], for a determination as to whether the [proposed] freight charges are excessive or otherwise unreasonable.
(a) This subsection applies when ocean transportation is the principal purpose of the contract, including-
(1) Time charters;
(2) Voyage charters;
(3) Contracts of affreightment[for charter vessel services];
(4) Dedicated contractor contracts of affreightment[for charter vessel services];
(5) Ocean bills of lading; and
(6) Subcontracts under Government contracts or agreements for ocean transportation services.
(b) Coordinate these acquisitions, as appropriate, with the MSC [U.S. Transportation Command, the DoD single manager for commercial transportation and related services, other than Service-unique or theater-assigned transportation assets,] in accordance with DoDD 5160.10, Single Manager Assignment for Ocean Transportation[5158.4, United States Transportation Command].
(c) The Commander, MSC, is authorized to make any determination as to the availability of U.S.-flag vessels, in order to ensure the proper utilization of Government and private U.S. vessels.
(d) All solicitations for ocean transportation services for supplies owned by the military departments shall[within the scope of this subsection must] provide[-
(1) A]a preference for U.S.-flag vessels as an evaluation factor[in accordance with the 1904 Act; and
(2) An evaluation factor or subfactor for offeror participation in the Voluntary Intermodal Sealift Agreement].
(e[d]) [Do] The contracting officer shall not award a contract of the type described in paragraph (a) of this subsection for a foreign-flag vessel unless-
(1) The contracting officer [Commander, MSC, or the Commander, MTMC,] determines that no U.S.-flag vessels are available, and obtains approval of the Commander, MSC[.
(i) The Commander, MSC, and the Commander, MTMC, are authorized to make any determinations as to the availability of U.S.-flag vessels to ensure the proper use of Government and private U.S. vessels.
(ii) The contracting officer must request such determinations-
(A) For voyage and time charters, through the Contracts and Business Management Directorate, MSC; and
(B) For ocean and intermodal transportation of DoD and DoD-sponsored cargoes, as applicable under contracts awarded by MTMC, including contracts for shipment of military household goods, through the Chiefs of the MTMC Ocean Cargo Clearance Authority.
(iii) In the absence of regularly scheduled U.S.-flag service to fulfill stated DoD requirements under MTMC solicitations or rate requests, the Commander, MTMC, may grant, on a case-by-case basis, an on-going nonavailability determination for foreign-flag service approval with pre-determined review date(s)]; or
(2) The contracting officer determines that the freight charges [U.S.-flag carrier has] proposed by U.S.-flag vessels to the Government [freight charges that] are higher than charges to private persons for transportation of like goods, and obtains the approval of the Commander;[,] MSC[, or the Commander, MTMC]; or
(3) The Secretary of the Navy [or the Secretary of the Army] determines (see paragraph (f) of this subsection) that the [proposed] freight charges for U.S.-flag vessels are excessive or otherwise unreasonable.
(f[i]) [After considering the factors in 247.572-1(d)(3)(i)(A) and (B),] When[if] the contracting officer concludes, based solely on economic considerations, that the [freight] charge[s] offered for a[proposed by] U.S.-flag vessel[carriers may be] is excessive or otherwise unreasonable, the contracting officer will send[must prepare] a report through the head of the contracting activity to the Commander, MSC.
(1) The fact that it would be less expensive to use a foreign-flag vessel is an insufficient basis, on its own, to determine that the freight rate proposed by the U.S.-flag carrier is excessive or otherwise unreasonable. However, such a differential may indicate a need for further review.
(2) The Commander, MSC, will forward the report, if in agreement with the contracting officer, to the Secretary of the Navy for a determination.
(3) The report shall be in determination and finding format; take into consideration the factors in 247.572-1(d)(3); and [that] include[s], as appropriate-
(i[A]) An analysis of the carrier's cost[s] in accordance with FAR Subpart 15.4, or profit in accordance with 215.404-4. The costs or profit should not be so high as to make it unreasonable to apply the preference for U.S.-flag vessels;
(ii[B]) A description of efforts taken pursuant to FAR 15.405, to negotiate a reasonable price. For the purpose of FAR 15.405(d), this report is the referral to a level above the contracting officer; and
(iii[C]) An analysis of whether the cost[s are] is excessive (i.e., cost[s] beyond the economic penalty normally incurred by excluding foreign competition), taking into consideration such factors [such] as [those listed at 247.572-1(d)(3)(i)(C).]-
(A) The differential between freight charges by the U.S.-flag carrier and an estimate of what foreign-flag carriers would charge based upon a price analysis;
(B) A comparison of rates charged by other U.S.-flag carriers on comparable routes;
(C) Efficiency of operation regardless of rate differential (i.e., suitability of the vessel capacity/cargo requirements; the commercial reasonableness of the vessel positioning required, etc.); and
(D) Any other relevant economic and financial considerations affecting the Government.
[(ii) The contracting officer must forward the report to-
(A) The Commander, MSC, through the Contracts and Business Management Directorate, MSC; or
(B) The Commander, MTMC, through the Principal Assistant Responsible for Contracting, MTMC.
(iii) If in agreement with the contracting officer, the Commander, MSC, or the Commander, MTMC, will forward the report to the Secretary of the Navy or the Secretary of the Army, respectively, for a determination as to whether the proposed freight charges are excessive or otherwise unreasonable.]
* * * * *
* * * * *
As prescribed in 247.270-7[6](a), use the following clause:
HARDSHIP CONDITIONS (DEC 1991[AUG 2000])
(a) [If t]The Contractor shall promptly notify the Contracting Officer of[finds] unusual [ship, dock, or cargo] conditions associated with loading or unloading a particular cargo, which[that] will work a hardship on the Contractor if loaded or unloaded at the basic commodity rates.[, the Contractor shall-
(1) Notify the Contracting Officer before performing the work, if feasible, but no later than the vessel sailing time; and
(2) Submit any associated request for price adjustment to the Contracting Officer within 10 working days of the vessel sailing time.]
(b) Unusual conditions include, but are not limited to, inaccessibility of place of stowage to the ship's cargo gear, side port operations, and small quantities of cargo in any one hatch.
(c) The Contracting Officer shall[will] investigate the conditions promptly after receiving the notice. If the Contracting Officer finds that the conditions are unusual and do materially affect the cost of loading or unloading, the Contracting Officer will authorize payment at the extra-labor[applicable man-hour] rates set forth in the schedule of rates of this contract.
(End of clause)
As prescribed in 247.270-7[6](b), use the following clause:
* * * * *
As prescribed in 247.270-7[6](c), use the following clause:
* * * * *
As prescribed in 247.270-7(d), use the following clause:
TERMINATION (DEC 1991)
(a) Either the Contracting Officer or the Contractor may terminate this contract at any time upon 60 days (or such other number of days provided in the Schedule) written notice to the other. Termination under this clause does not affect any obligation or liability that may have accrued before the termination.
(b) Upon termination of this contract under either paragraph (a) or the Default clause of this contract, the Government shall pay the Contractor any amount due for services performed under this contract to the date of termination.
(c) In the event of partial termination, payment for services furnished under the portion of the contract not terminated shall be in accordance with the terms of this contract.
(d) Any payments under this clause shall be without prejudice to any Government claim against the Contractor. The Government has the right to offset any such claims against any such payment.
(End of clause)
As prescribed in 247.270-7(e)[6(d)], use the following clause:
* * * * *
As prescribed in 247.270-7(f)[6(e)], use the following clause:
* * * * *
As prescribed in 247.270-7(g)[6(f)], use the following clause:
* * * * *
As prescribed in 247.270-7(h)[6(g)], use the following clause:
* * * * *
As prescribed in 247.271-4(o), use the following clause:
ADDITIONAL SERVICES (DEC 1991[AUG 2000])
The Contractor shall provide additional services not included in the s[S]chedule, but required for satisfactory completion of the services ordered under this contract, at a rate comparable to the rate for like services as contained in tenders on file with the Interstate Commerce Commission, state regulatory bodies, or the Military Traffic Management Command, in effect at time of order.
(End of clause)
Federal Register: August 17, 2000 (Volume 65, Number 160)
Rules and Regulations
DEPARTMENT OF DEFENSE
48 CFR Parts 217, 219, 236, and Appendix I to Chapter 2
Defense Federal Acquisition Regulation Supplement; North American Industry Classification System
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comments.
SUMMARY: The Director of defense Procurement has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to convert programs based on the Standard Industrial Classification system to the North American Industry Classification System, in
accordance with the final rule issued by the Small Business Administration on May 15, 2000.
Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before October 16, 2000 to be considered in the formation of the final rule.
ADDRESSES: Interested parties should submit written comments to: Defense Acquisition Regulations Council, Attn: Ms. Susan Schneider, OUSD (AT&L)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062; telefax (703) 602-0350.
E-mail comments submitted via the Internet should be addressed to: dfars@acq.osd.mil
Please cite DFARS Case 2000-D015 in all correspondence related to this rule. E-mail comments should cite DFARS Case 2000-D015 in the subject line.
FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, (703) 602-0326.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends the DFARS to convert programs based on the Standard Industrial Classification (SIC) system to the North American Industry Classification System (NAICS). The Small Business Administration (SBA) issued a final rule at 65 FR 30836 on May 15, 2000, providing a new size standards listing that is based on NAICS rather than SIC codes. The SBA rule requires Federal agencies to use the new size standards, beginning October 1, 2000, to determine whether a business is a small business concern. An interim rule amending the Federal Acquisition Regulation was published at 65 FR 46055 on July 26, 2000, with an effective date of October 1, 2000, to establish policy for use of the new size standards in Government acquisitions. This rule
makes corresponding changes to the DFARS. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to 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 this rule implements the final rule issued by SBA on May 15, 2000, and SBA has certified that the impact of the change from SIC to NAICS on each business will not be substantial. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D015.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish this interim rule prior to affording the public an opportunity to comment. The SBA issued a final rule on May 15, 2000, providing a new size standards listing that is based on NAICS rather than SIC codes. The SBA rule requires Federal agencies to use the new size standards, beginning October 1, 2000, to determine whether a business is a small business
concern. An interim rule amending the Federal Acquisition Regulation was published on July 26, 2000, with an effective date of October 1, 2000, to establish policy for use of the new size standards in Government acquisitions. Corresponding changes to the DFARS are now needed. The required implementation date of October 1, 2000, does not permit time for issuance of a proposed rule and evaluation of public comments. DoD will consider comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 217, 219, and 236
Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 217, 219, 236 and Appendix I to Chapter 2 are amended as follows:
1. The authority citation for 48 CFR parts 217, 219, 236, and
Appendix I to Subchapter I continues to read as follows:
* * * * *
(1) When leader company contracting is to be considered, take special effort to select a small disadvantaged business (SDB) concern as the follower company if-
(i) The follower company will be a subcontractor and the Standard Industrial Classification (SIC) Major Group [North American Industry Classification System (NAICS) Industry Subsector] of the acquisition is one in which use of an evaluation factor or subfactor for participation of SDB concerns is currently authorized (see FAR 19.201(b)); or
(ii) The follower company will be a prime contractor and the SIC Major Group [NAICS Industry Subsector] of the acquisition is one in which use of a price evaluation adjustment is currently authorized (see FAR 19.201(b)).
* * * * *
* * * * *
(f) The Directors, Office of Small and Disadvantaged Business Utilization, of the military departments and defense agencies are responsible for determining whether use of the price evaluation adjustment to achieve a small disadvantaged business goal has caused non-SDB firms in a particular Standard Industrial Classification Major Group [North American Industry Classification System Industry Subsector] to bear an undue burden or other inappropriate effect. * * *
* * * * *
(c)(1) If the Standard Industrial Classification Major Group [North American Industry Classification System Industry Subsector] of the acquisition is one in which use of a price evaluation adjustment for small disadvantaged business concerns is currently authorized (see FAR 19.201(b)), [apply] the adjustment shall be applied to the non-set-aside portion.
* * * * *
* * * * *
(b) The targeted industry categories for DoD are:
Standard Industrial Classification (SIC) SIC Code
[North American Industry Classification [NAICS Code]
System (NAICS) Description]
(1) Pharmaceutical preparations 2834
[Pharmaceutical Preparation Manufacturing 325412]
(2) Ammunition, except for small arms 3483
[Ammunition (except Small Arms) Manufacturing 332993]
(3) Ordnance and accessories, not elsewhere 3489
classified
[Other Ordnance and Accessories Manufacturing 332995]
(4) Turbines and turbine generator sets 3511
[Turbine and Turbine Generator Set Unit
Manufacturing 333611]
(5) Aircraft engines and engine parts 3724
[(i) Aircraft Engine and Engine Parts
Manufacturing 336412
(ii) Research and Development in the
Physical, Engineering, and Life
Sciences (Aircraft Engines and
Engine Parts only) 54171]
(6) Guided missiles and space vehicles 3761
[(i) Guided Missile and Space Vehicle Manufacturing 336414
(ii) Research and Development in the
Physical, Engineering, and Life
Sciences (Guided Missiles and
Space Vehicles only) 54171]
(7) Space vehicle equipment, NEC 3769
[(i) Other Guided Missile and Space Vehicle
Parts and Auxiliary Equipment
Manufacturing 336419
(ii) Research and Development in the
Physical, Engineering, and Life
Sciences (Guided Missile and Space
Vehicle Parts and Auxiliary Equipment
only) 54171]
(8) Tanks and tank components 3795
[Military Armored Vehicle, Tank and
Tank Component Manufacturing 336992]
(9) Search and navigation equipment 3812
[Search and Navigation System and
Instrument Manufacturing 334511]
(10) Communication services, NEC 4899
[(i) Cellular and Other Wireless 513322
Telecommunications
(ii) Satellite Telecommunications 51334
(iii) Other Telecommunications 51339]
* * * * *
The contracting officer shall encourage increased subcontracting opportunities for SDB concerns in negotiated acquisitions by providing monetary incentives in the SIC Major Groups [North American Industry Classification System Industry Subsectors] for which use of an evaluation factor or subfactor for participation of SDB concerns is currently authorized (see FAR 19.201(b)). * * *
* * * * *
* * * * *
(a)(i) * * *
(6) * * *
(A) Consider the volume of work awarded by DoD during the previous 12 months. In considering equitable distribution of work among A-E firms, include small business concerns; historically black colleges and universities and minority institutions; firms that have not had prior DoD contracts; and small disadvantaged business concerns and joint ventures with small disadvantaged business participants if the Standard Industrial Classification Major Group [North American Industry Classification System (NAICS) Industry Subsector] of the acquisition is one in which use of a price evaluation adjustment is currently authorized (see FAR 19.201(b)).
* * * * *
(C) Consider the extent to which potential contractors identify and commit to small business, to small disadvantaged business (SDB) if the Standard Industrial Classification Major Group [NAICS Industry Subsector] of the subcontracted effort is one in which use of an evaluation factor or subfactor for participation of SDB concerns is currently authorized (see FAR 19.201(b)), and to historically black college or university and minority institution performance as subcontractors.
* * * * *
* * * * *
(a) An entity may qualify as a protege firm if it is-
(1) * * *
(ii) A small business according to the Small Business Administration (SBA) size standard for the Standard Industrial Classification (SIC) [North American Industry Classification System (NAICS)] code that represents the contemplated supplies or services to be provided by the protege firm to the mentor firm; or
* * * * *
* * * * *
(c) In addition to the information required in paragraph (b) of this section, companies must submit the following information for each proposed mentor-protege relationship:
* * * * *
(2) * * *
(ii) The protege firm's business classification, based upon the SIC [NAICS] code(s) that represents the contemplated supplies or services to be provided by the protege firm to the mentor firm.
* * * * *
* * * * *
(b) Each signed mentor-protege agreement submitted for approval under the Program must include-
* * * * *
(2) The SIC [NAICS] code that represents the contemplated supplies or services to be provided by the protege firm to the mentor firm and a statement that, at the time the agreement is submitted for approval, the protege firm, if an SDB concern, does not exceed the size standard for the appropriate SIC [NAICS] code;
* * * * *
Federal Register: August 17, 2000 (Volume 65, Number 160)
DEPARTMENT OF DEFENSE
48 CFR Part 219 and Appendix I to Chapter 2
Defense Federal Acquisition Regulation Supplement; Mentor-Protégé Program Improvements
AGENCY: Department of Defense (DoD).
SUMMARY: The Director of Defense Procurement has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 811 of the National Defense Authorization Act for Fiscal Year 2000. Section 811 amends
statutory provisions pertaining to the DoD Pilot Mentor-Protégé Program.
FOR FURTHER INFORMATION CONTACT: Ms. Susan L. Schneider, Defense Acquisition Regulations Council, OUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; telefax (703) 602-0350. Please cite DFARS Case 99-D307.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 65 FR 6554 on February 10, 2000. The rule amended policy on the Mentor-Protege Program in DFARS Subpart 219.71 and Appendix I to implement Section 811 of The National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65). This final
rule contains additional clarifying amendments, to include clarification that progress reports required from protege firms may be submitted as part of the mentor firm's annual report.
Three sources submitted comments on the interim rule. DoD considered all comments in the development of the final rule. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will 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 changes procedures for administering and monitoring the Mentor-Protege Program, but maintains the primary objective of providing incentives for major DoD contractors to assist small disadvantaged business concerns and qualified organizations employing the severely disabled in enhancing their capabilities to satisfy Government and commercial contract requirements.
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this rule, for use through July 31, 2003, under OMB Clearance Number 0704-0412.
List of Subjects in 48 CFR Part 219
Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Part 219 and Appendix I to Chapter 2, which was published at 65 FR 6554 on February 10, 2000, is adopted as a final rule with the following changes:
1. The authority citation for 48 CFR Part 219 and Appendix I to
Subchapter I continues to read as follows:
* * * * *
* * * * *
Contracting officers must-
(a) * * *
(b) * * *
(c) * * *
(d) * * *
(e) Negotiate and award a separate contract for
reimbursement of developmental assistance costs [only] if-
(1) * * *
(2) * * *
(3) * * *
(f) [Not a]Authorize reimbursement for costs of assistance furnished to a protege firm in excess of $1,000,000 in a fiscal year only after receipt of [unless] a written determination from the Director, SADBU, OUSD(AT&L)[, is obtained].
(g) * * *
(h) Provide a copy of the approved Mentor-Protege agreement to the Defense Contract Management Command [Agency] administrative contracting officer responsible for conducting the annual performance review (see Appendix
I, Section I-112).
* * * * *
The Defense Contract Management Command [Agency] will conduct annual performance reviews of all mentor-protege agreements as indicated in Appendix I, Section I-112. [The determinations made in these reviews should be a major factor in determinations of amounts of reimbursement, if any, that the mentor firm is eligible to receive in the remaining years of the Program participation term under the agreement.]
* * * * *
Appendix I--Policy and Procedures for the DoD Pilot Mentor-Protege Program
* * * * *
(a) * * *
(b) * * *
(c) DoD will measure the overall success of the Program by the extent to which the Program results in-
(1) An increase in the dollar value of subcontracts awarded to protege [SDB] firms by mentor firms under DoD contracts;
* * * * *
(a) * * *
(b) * * *
(c) * * *
(1) * * *
(2) * * *
(3) * * *
(4) A statement from the protege firm indicating its commitment to comply with the requirements for reporting and for review of the agreement during the duration of the agreement and for 2 years thereafter.
(d) A company that has identified Program funds to be made available through a DoD program manager must provide the information in paragraphs (b) and (c) of this section through the appropriate program manager and the cognizant Director, SADBU, to the Director, SADBU, OUSD(AT&L), with a letter signed by the appropriate program manager indicating the amount of funding that has been identified for the developmental assistance program. The company must submit a justification and endorsement from the cognizant Director, SADBU, when requesting [any of the following unusual actions:]/
(1) Reimbursement of developmental costs in excess of $1,000,000;[.]
(2) Reimbursement through a separate
contract; or[.]
(3) A Program participation term greater than 3, but not more than 5, years.
* * * * *
(a) * * *
(b) * * *
(1) * * *
(2) * * *
(3) * * *
(4) [A statement from the protege firm indicating its commitment to comply with the requirements for reporting and for review of the agreement during the duration of the agreement and for 2 years thereafter;]
(4[5]) * * *
(5[6]) * * *
(6[7]) * * *
(7[8]) * * *
(8[9]) * * *
(c) Mentor firms must send a copy of any termination notices to the Director, SADBU, OUSD(AT&L), [the cognizant Director, SADBU,] and the Defense Contract Management Command [Agency] administrative contracting officer responsible for conducting the annual performance review, and, where funding is made available through a DoD program manager, must provide a copy to the program manager and to the contracting officer.
* * * * *
(a) * * *
(b) The protege firm must report on progress made under the mentor-protege agreement annually by October 31st. The protege firm must concur with or rebut its mentor's report that covers the period ending September 30th and must provide data on the firm's employment, annual revenue, and annual participation in DoD contracts The report is required annually during the protege firm's Program participation term and for 2 fiscal years after the expiration of the Program participation term.
[The mentor firm and the protege firm-
(1) Must provide data on the progress made by the protege firm in employment, revenues, and participation in DoD contracts during-
(i) Each fiscal year of the Program participation term; and
(ii) Each of the 2 fiscal years following the expiration of the Program participation term;
(2) Must provide the data by October 31st of each year to address the prior fiscal year; and
(3) During the Program participation term, may provide the data as part of the mentor report required by paragraph (a) of this section for the period ending September 30th.]
(c) Progress reports must be submitted as follows:
(1) For agreements that provide credit toward SDB subcontracting goals for costs incurred under the Program, to the Director, SADBU, OUSD(AT&L), and the Defense Contract Management Command [Agency] (DCMC[A]) administrative contracting officer.
(2) For agreements that provide for reimbursement of costs incurred under the Program, to the Director, SADBU, OUSD(AT&L), the contracting officer, the DCMC[A] administrative contracting officer, the program office[manager], and the cognizant Director, SADBU.
The Defense Contract Management Command [Agency] will conduct annual performance reviews of the progress and accomplishments realized under approved mentor-protege agreements. These reviews must verify data provided on the semiannual reports and must provide information as to--
(a) Whether all costs reimbursed to the mentor firm under the agreement were reasonably incurred to furnish assistance to the protege firm in accordance with the mentor-protege agreement and applicable regulations and procedures; [and]
(b) Whether the mentor firm and protege firm accurately reported progress made by the protege firm in employment, revenues, and participation in DoD contracts during the Program participation term and for 2 fiscal years following the expiration of the agreement [Program participation term.] ; and
(c) The amount of reimbursement, if any, that the mentor firm is eligible to receive in the remaining Program participation term of the agreement.
Federal Register: August 17, 2000 (Volume 65, Number 160)
Rules and Regulations
DEPARTMENT OF DEFENSE
48 CFR Parts 222 and 252
Defense Federal Acquisition Regulation Supplement; Construction and Service Contracts in Noncontiguous States
AGENCY: Department of Defense (DoD).
SUMMARY: The Director of Defense Procurement has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 8071 of the Fiscal Year 2000 Defense Appropriations Act. Section 8071 provides that DoD
contracts for construction or services performed in a noncontiguous State, that has an unemployment rate in excess of the national average, must include a clause requiring the contractor to employ individuals who are residents of that State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 99-D308.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 65 FR 14402 on March 16, 2000. The interim rule revised DFARS Subpart 222.70 and the clause at 252.222-7000, pertaining to restrictions on the employment of personnel in noncontiguous States, to implement Section 8071 of the Fiscal Year 2000 Defense Appropriations Act (Pub. L. 106-79). The final rule contains additional revisions to further clarify the definition of ``noncontiguous State'' and to delegate authority for waiver of the
employment restrictions to the head of the agency. One source submitted comments on the interim rule. DoD considered those comments in the development of the final rule.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will 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, prior to this rule, a similar requirement existed for the noncontiguous States of Alaska and Hawaii. DoD knows of no economic impact on small entities that resulted from the implementation of this requirement in those States.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 222 and 252
Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Parts 222 and 252, which was published at 65 FR 14402 on March 16, 2000, is adopted as a final rule with the following changes:
* * * * *
(a) This subpart implements Section 8071 of the Fiscal Year 2000 Defense Appropriations Act, Pub. L. 106-79, and similar sections in subsequent Defense Appropriations Acts.
(b) This subpart applies only-
(1) To construction and service contracts to be performed in whole or in part within a noncontiguous State; and
(2) When the unemployment rate in the noncontiguous State is in excess of the national average rate of unemployment as determined by the Secretary of Labor.
"Noncontiguous State," as used in this subpart, means Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and any minor outlying island of the United States [Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Island].
222.7002 General.
A contractor awarded a contract subject to this subpart must employ, for the purpose of performing that portion of the contract work within the noncontiguous State, individuals who are residents of that noncontiguous State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills to perform the contract.
The Secretary of Defense [head of the agency] may waive the requirements of 222.7002 on a case-by-case basis in the interest of national security.
222.7004 Contract clause.
Use the clause at 252.222-7000, Restrictions on Employment of Personnel, in all solicitations and contracts subject to this subpart. Insert the name of the appropriate noncontiguous State in paragraph (a) of the clause.
Federal Register: August 17, 2000 (Volume 65, Number 160)
Rules and Regulations
DEPARTMENT OF DEFENSE
48 CFR Part 236
Defense Federal Acquisition Regulation Supplement; Special Procedures for Negotiation of Construction Contracts
AGENCY: Department of Defense (DoD)
SUMMARY: The Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove obsolete text pertaining to special procedures for fee negotiation under cost-reimbursement contracts for construction.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 2000-D010.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule removes DFARS Subpart 236.4, section 236.403, which contained special procedures for fee negotiation under cost-reimbursement contracts for construction. This DFARS text previously supplemented Federal Acquisition Regulation (FAR) text that ids now located at FAR 36.215. DoD has determined that this supplemental DFARS text is no longer necessary.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577 and publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance
with 5 U.S.C. 610. Such comments should cite DFARS Case 2000-D010.
C. Paperwork Reduction Act
The paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 236
Government procurement.
Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Part 236 is amended as follows:
* * * * *
(1) For cost-plus-fixed-fee contracts, negotiate the fee for a prime contractor using departmental procedures approved by the Assistant Secretary of Defense (Production and Logistics).
(2) For cost-plus-incentive-fee contracts, negotiate the target fee for a prime contractor using the criteria and fee schedule in departmental procedures to determine-
(i) The reasonableness of the target cost;
(ii) The maximum and minimum fees to be established; and
(iii) The fee adjustment formula.
Federal Register: August 17, 2000 (Volume 65, Number 160)
Rules and Regulations
DEPARTMENT OF DEFENSE
48 CFR Part 252
Defense Federal Acquisition Regulation Supplement; Contract Drawings, Maps, and Specifications
AGENCY: Department of Defense (DoD).
SUMMARY: The Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause used in construction contracts. The revised clause explicitly allows the Government to furnish drawings and specifications to construction contractors in electronic form and requires construction contractors to reproduce and print contract drawings and specifications as needed.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD(AT&L)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 99-D025.
SUPPLEMENTARY INFORMATION:
A. Background
DoD uses the clause at DFARS 252.236-7001, Contract Drawings, Maps, and Specifications, in fixed-price construction contracts. The clause previously stated that the Government will provide five sets (unless another quantity is specified) of large-scale drawings and specifications to the contractor without charge; or, at the Government's option, may furnish the contractor with one set of reproducibles, or half-size drawings. This rule revises the clause to specify that the Government will provide one set of drawings and specifications to the contractor in electronic or paper media, as
chosen by the contracting officer, and that the contractor will reproduce and print contract drawings and specifications as needed. In addition, the rule removes the term ``maps'' from the clause title,
since the text of the clause does not contain this term.
DoD published a proposed rule at 65 FR 6574 on February 10, 2000. Three sources submitted comments on the proposed rule. DoD considered all comments in the development of the final rule.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will 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 reproducing and printing contract drawings and specifications normally does not constitute a significant expense, and the contractor can pass this expense along to the Government as part of the contract price.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 252
Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Part 252 is amended as follows:
* * * * *
As prescribed in 236.570(a), use the following clause:
CONTRACT DRAWINGS, MAPS, AND SPECIFICATIONS (DEC 1991[AUG 2000])
(a) The Government-(1) W[w]ill provide [to] the Contractor, without charge, ______ sets (five unless otherwise specified) [one set] of large-scale contract drawings and specifications[,] except publications incorporated into the technical provisions by reference;[, in electronic or paper media as chosen by the Contracting Officer.]
(3) May, at its option, furnish the Contractor one set of reproducibles, or half-size drawings, in lieu of the drawings in paragraph (a)(1) of this clause.
(b) The Contractor shall-
(1) Check all drawings furnished immediately upon receipt;
(2) Compare all drawings and verify the figures before laying out the work;
(3) Promptly notify the Contracting Officer of any discrepancies; and
(4) Be responsible for any errors which [that] might have been avoided by complying with this paragraph (b).[; and
(c) Large scale drawings shall, in general, govern small scale drawings. Figures marked on drawings shall, in general, be followed in preference to scale measurements.
[In general-
(d) Omissions from the drawings or specifications or the misdescription of details of work which [that] are manifestly necessary to carry out the intent of the drawings and specifications, or which [that] are customarily performed, shall not relieve the c[C]ontractor from performing such omitted or misdescribed details of the work,[.] but[The Contractor] shall be performed [such details] as if fully and correctly set forth and described in the drawings and specifications.
(e) The work shall conform to the specifications and the contract drawings identified on the following index of drawings:
Title |
File |
|
Drawing No. |
(End of clause)