Proposed Rule2021-24421
Streamline and Update the Department of Transportation Acquisition Regulation (TAR Case 2020-001)
Primary source
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Published
December 7, 2021
Issuing agencies
Transportation Department
Abstract
The Department of Transportation (DOT) is proposing to amend and update its Transportation Acquisition Regulation (TAR). Under this initiative, all parts of the regulation were reviewed to streamline the regulation, to revise or remove policy that has been superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance that is internal to DOT and move it to the Transportation Acquisition Manual (TAM) as appropriate, and to incorporate new regulations or policies required to implement or supplement the FAR to execute DOT's unique mission and responsibilities. The TAM will incorporate portions of the internal procedural guidance removed from the TAR, as well as other internal agency acquisition policy. This rulemaking revises the entire TAR.
Full Text
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[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Proposed Rules]
[Pages 69452-69542]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24421]
[[Page 69451]]
Vol. 86
Tuesday,
No. 232
December 7, 2021
Part III
Department of Transportation
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48 CFR Chapter 12
Streamline and Update the Department of Transportation Acquisition
Regulation (TAR Case 2020-001); Proposed Rule
Federal Register / Vol. 86 , No. 232 / Tuesday, December 7, 2021 /
Proposed Rules
[[Page 69452]]
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DEPARTMENT OF TRANSPORTATION
48 CFR Chapter 12
RIN 2105-AE26
Streamline and Update the Department of Transportation
Acquisition Regulation (TAR Case 2020-001)
AGENCY: Department of Transportation.
ACTION: Proposed rule.
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SUMMARY: The Department of Transportation (DOT) is proposing to amend
and update its Transportation Acquisition Regulation (TAR). Under this
initiative, all parts of the regulation were reviewed to streamline the
regulation, to revise or remove policy that has been superseded by
changes in the Federal Acquisition Regulation (FAR), to remove
procedural guidance that is internal to DOT and move it to the
Transportation Acquisition Manual (TAM) as appropriate, and to
incorporate new regulations or policies required to implement or
supplement the FAR to execute DOT's unique mission and
responsibilities. The TAM will incorporate portions of the internal
procedural guidance removed from the TAR, as well as other internal
agency acquisition policy. This rulemaking revises the entire TAR.
DATES: Comments must be received on or February 7, 2022 to be
considered in the formulation of the final rule.
ADDRESSES: Written comments may be submitted through
<a href="http://www.Regulations.gov">www.Regulations.gov</a>; by mail or hand-delivery to Docket Management
System, U.S. Department of Transportation, 1200 New Jersey Avenue SE,
Washington, DC 20590. Please identify the docket number DOT-OST-2020-
0017 at the beginning of your comments and indicate they are submitted
in response to ``RIN 2105-AE26--Streamline and Update the Department of
Transportation Acquisition Regulation (TAR Case 2020-001).'' All
comments will be available on <a href="http://www.Regulations.gov">www.Regulations.gov</a>. You may review the
public docket containing comments to the proposed regulation in person
in the Dockets Office, by calling the front desk at (202) 366-9317 or
(202) 366-9826 to make an appointment. The Dockets Office is on the
Green Line, Navy Yard-Ballpark Metro Stop at the Department of
Transportation's address above. Upon arrival, please call the Front
Desk at (202) 366-9317 or (202) 366-9826 to retrieve an escort.
FOR FURTHER INFORMATION CONTACT: Ms. LaWanda Morton-Chunn, Procurement
Analyst, Acquisition Policy, Oversight & Business Strategies (M-61),
Office of the Senior Procurement Executive (OSPE), Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202)
366-2267. This is not a toll-free telephone number.
SUPPLEMENTARY INFORMATION:
Background
This rulemaking is being taken under the authority of the Office of
Federal Procurement Policy (OFPP) Act which provides the authority for
an agency head to authorize the issuance of agency acquisition
regulations that implement or supplement the FAR. The OFPP Act, as
codified in 41 U.S.C. 1702, provides the authority for the FAR and for
the issuance of agency acquisition regulations consistent with the FAR.
This authority ensures that Government procurements are handled fairly
and consistently, that the Government receives overall best value, and
that the Government and contractors both operate under a known set of
rules.
DOT has determined that changes to the TAR are necessary to align
it to the FAR. DOT conducted a comprehensive review of the 2005 edition
of the TAR with the goal of updating obsolete coverage, streamlining
policies and procedures where applicable consistent with current
guidance, and implementing new internal policies applicable to the DOT
acquisition workforce. As a result, the TAR Integrated Project Team
(IPT) under the direction of the Senior Procurement Executive and
composed of representatives from DOT's operating administrations (OAs)
and agency stakeholders, have participated in a complete revision of
the TAR.
This proposed rule reflects changes made to implement and/or
supplement the FAR. The TAR has been substantially revised and
streamlined to update references to obsolete policies, procedures and
organizations; and incorporate electronic links to references such as
provisions of the FAR. Revisions to the TAR are necessary to
incorporate additional policies, solicitation provisions, or contract
clauses that implement and supplement the FAR to satisfy DOT mission
needs, and to incorporate changes in dollar and approval thresholds,
definitions, and DOT position titles and offices. The reissued TAR
would correct inconsistencies, remove redundant and duplicate material
already covered by the FAR, delete outdated material or information,
and appropriately renumber TAR text, clauses and provisions where
required to comport with FAR format, numbering and arrangement. All
amendments, revisions, and removals have been reviewed and concurred
with by a TAR revision team from each of the OAs and key agency
stakeholders. This effort will create a 2021 edition of the TAR.
Currently, DOT is tracking a number of new FAR case proposed and
final rules, as well as Executive Orders (E.O.s) and directives that
the Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) are reviewing for potential impact
to the FAR system. The Executive Orders include E.O. 13985, ``Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government'' (86 FR 7009; Jan. 25, 2021), E.O. 14005,
``Ensuring the Future is Made in All of America by All of America's
Workers'' (86 FR 7475; Jan. 28, 2021), and E.O. 14008, ``Tackling the
Climate Crisis at Home and Abroad'' (86 FR 7619; Feb. 1, 2021). If and
when FAR cases and proposed rules are drafted and FAR final rules are
published, DOT intends to examine each of these for impact to the TAR
and any updates that may be required to maintain the TAR. DOT is
institutionalizing an ongoing, sustained TAR refreshment process, so
that as FAR proposed and final rules, E.O.s, and other directives are
issued, DOT will initiate new TAR cases to bring the regulation in
alignment and to avoid duplication, as necessary. DOT will examine any
FAR final rules that become effective and will take into consideration
such FAR changes, as appropriate, in subsequent rulemakings. When
needed, DOT will also consider use of an advanced notice of public
rulemaking (ANPRM) to obtain public input as the agency implements
rulemaking to address new and emerging issues that may be identified by
the Councils or by DOT as a result of E.O.s and other directives. DOT
will use this public input to inform how DOT implements such guidance
in the TAR.
The TAR uses the regulatory structure and arrangement of the FAR,
and headings and subject areas are broken up consistent with the FAR
content. The TAR is divided into subchapters, parts (each of which
covers a separate aspect of acquisition), subparts, sections, and
subsections.
When Federal agencies acquire supplies and services using
appropriated funds, the purchase is governed by the FAR, set forth at
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through
53, and the agency regulations that implement and supplement the FAR.
The TAR is set forth at Title 48 CFR, chapter 12, parts 1201 to 1253.
[[Page 69453]]
DOT is proposing to revise the TAR to add new policy or regulatory
requirements and to remove any guidance that is applicable only to
DOT's internal operating processes or procedures. Codified acquisition
regulations may be amended and revised only through rulemaking.
Discussion and Analysis
DOT proposes to make the following changes to the TAR as a part of
its updating and streamlining initiative. For procedural guidance cited
below that is proposed to be deleted from the TAR, each section cited
for removal has been considered for inclusion in DOT's internal agency
operating procedures in accordance with FAR 1.301(a)(2). Similarly,
delegations of authorities that are removed from the TAR will be
included in the TAM as internal agency guidance.
We propose to revise the following parts of the TAR, 48 CFR chapter
12: Parts 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1211, 1213, 1215,
1216, 1217, 1219, 1222, 1223, 1227, 1228, 1231, 1232, 1233, 1235, 1236,
1237, 1239, 1242, 1246, 1247, 1252, and 1253.
We propose to add two parts to the TAR: 1209--Contractor
Qualifications, and 1212--Acquisition of Commercial Items.
And, to streamline the TAR and improve its use and benefit to the
public, small businesses, and the DOT acquisition workforce, we propose
to remove the following two parts from the TAR: 1214--Sealed Bidding,
and 1245--Government Property, and which would also move internal
procedural guidance still applicable to the TAM, and/or remove outdated
and unnecessary text or policy redundant to the FAR.
We propose to revise the authority citations cited in each TAR part
to reflect as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to remove the reference to Public Law 113-76, the
Consolidated Appropriations Act of 2014, because it is unnecessary to
describe the authority of the Secretary of Transportation, as delegated
to the Senior Procurement Executive, to issue agency specific
acquisition regulations. The authority for agencies to issue agency-
specific supplements to the FAR is already set forth in Title 41,
Public Contracts and is the more common reference for Federal agency or
departmental acquisition regulation authority.
We propose to remove the citation to 41 U.S.C. 418(b) as it is
outdated.
We propose to include a reference to 41 U.S.C. 1121(c)(3). This
provision states that the authority of an executive agency under
another law to prescribe policies, regulations, procedures, and forms
for procurement is subject to the authority conferred in section 1121,
as well as other sections of Title 41.
We propose to add an authority citation for 41 U.S.C. 1702 which
addresses the acquisition planning and management responsibilities of
DOT's Senior Procurement Executive.
And we propose to revise the citation currently shown as ``(FAR) 48
CFR 1.3'' to reflect the standard FAR drafting convention citation of
``48 CFR 1.301-1.304.''
Any other proposed changes to authorities are shown under the
individual parts below.
Throughout the proposed rule (including in the discussion of each
proposed revised TAR part), whenever DOT indicates that it proposes to
revise and update the citation(s) to the FAR and TAR, it is for the
purpose of comporting with FAR Drafting Guidelines convention and
style, and in accordance with FAR 1.105-2, Arrangement of regulations,
that specifies how the FAR and by extension the TAR is to be referenced
within the body of the regulation. References to revising and updating
citations are to either correct the current citations, correct any FAR
or TAR references to a more suitable citation, or add appropriate FAR
or TAR citations where necessary.
TAR Part 1201--Federal Acquisition Regulations System
We propose to revise the authority citations for part 1201, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1201.1, Purpose, Authority, Issuance, we propose to
revise 1201.101, Purpose, to expand discussion of how DOT's internal
operational procedures are included in the TAM.
We propose to add 1201.102-70, DOT Statement of guiding principles
for Department of Transportation Acquisition System, to provide the
vision and mission of the TAR, as well as the role of the Office of the
Senior Procurement Executive (OSPE) and its responsibility to establish
DOT's acquisition policies and procedures.
We propose to revise 1201.104, Applicability, to update the
citation to the FAR and TAR to comport with FAR Drafting Guidelines
convention and style and in accordance with FAR 1.105-2, Arrangement of
regulations, as well to remove an outdated agency organizational
reference.
We propose to revise 1201.105, Issuance, and 1201.105-1,
Publication and code arrangement, to update the citation to the FAR and
TAR references, and to provide a new internet website link where the
DOT's online version of the TAR can be accessed.
In 1201.105-2, Arrangement of regulations, we propose to also
revise the FAR and TAR references, and to remove DOT Operating
Administration (OA) acronyms which are unnecessary in this section and
duplicative of the OA acronyms already provided in the TAR under
1202.101, Definitions. And at 1201.105-2(c)(3) we also propose to
implement FAR 1.105-2(c)(3) by including more detail on the appropriate
references and citations to the TAR for the public and the DOT
acquisition workforce to ensure proper citation when referencing the
TAR, as well as ensure appropriate usage within DOT specific clauses
and provisions.
In 1201.105-3, Copies, we propose to revise the text to provide
current methods of acquiring copies of the TAR and links to where DOT's
posted version of the TAR and Transportation Acquisition Circulars
(TACs) are located on the DOT website.
We propose to revise 1201.106, OMB approval under the Paperwork
Reduction Act (PRA), to update current procedures on information
collection and recordkeeping requirements to reflect that details
concerning any OMB approved control numbers are contained in the TAM.
This comports with the style convention benchmarked with other key FAR
agency supplements including the Department of Defense Federal
Acquisition Regulation Supplement (DFARS). This helps streamline the
TAR to remove administrative details on DOT TAR-related OMB control
numbers, when issued for PRA related information collections, which are
available at <a href="http://reginfo.gov">reginfo.gov</a>. The public may also conduct online searches
of DOT-related OMB approved information collection requests (ICRs) at
<a href="http://reginfo.gov">reginfo.gov</a>.
In subpart 1201.2, Administration, we propose to revise section
1201.201-1, The two councils, to spell out the acronym SPE to reflect
``Senior Procurement Executive'' who is responsible for providing a DOT
representative to the Civilian Agency Acquisition Council (CAAC).
In subpart 1201.3--Agency Acquisition Regulations, we propose to
revise 1201.301, Policy, to make grammatical corrections to the text,
as well as to revise citations to the FAR and TAR references. In
addition, we propose to revise policy under this section regarding
Operating
[[Page 69454]]
Administration (OA) acquisition regulations to clarify that the SPE
approval is required for OA supplemental regulations to the TAR and to
state that if approved by the SPE, a rule shall be prepared by the
Office of the Senior Procurement Executive and published in the Federal
Register in accordance with FAR 1.501.
In 1201.301-70, Amendment of TAR 48 CFR chapter 12, we propose to
retitle the section to read: ``Amendment of the Transportation
Acquisition Regulation'' to comport with FAR Drafting Convention style.
We also propose to update the address for the OSPE where recommended
changes to the TAR may be sent, to include providing a new email
address, and to provide updated procedures to follow when submitting
proposed TAR recommendations.
In 1201.301-71, Effective date, we propose to change the title of
the section to read: ``Effective dates for Transportation Acquisition
Circulars'' to more accurately reflect the subject matter covered. We
also propose to revise the underlying text to provide clarity to the
effective dates set forth in TACs to make clear that any new or revised
provisions, clauses, procedures, or forms must be included in
solicitations, contracts or modifications issued thereafter whenever
effect dates indicate the policy or procedures are ``effective upon
receipt,'' ``upon a specified date,'' or that changes set forth in the
document are ``to be used upon receipt.'' We also propose to revise the
text to clarify that unless expressly directed by statute or
regulation, solicitations in process or negotiations that are complete
when a TAC is issued are not required to include or insert new
requirements, forms, clauses, or provisions. We also propose to provide
that the chief of the contracting office must determine that it is in
the best interest of the Government to exclude the new information and
to set forth the requirement that a determination and findings must be
included in the contract file to document that determination.
In 1201.301-72, TAC numbering, we propose to revise the title of
the section to reflect ``Transportation Acquisition Circular
numbering'' to more accurately reflect the subject matter covered. We
also propose to revise the underlying text to spell out acronyms and
update a cited example for the public.
In 1201.304, Agency control and compliance procedures, DOT is
proposing to remove internal procedures that more appropriately belong
in the TAM, and to correct TAR citation references.
In subpart 1201.470, Deviations from the FAR and TAR, we propose to
revise the subpart number from 1201.4-70 to 1201.470 to reflect the
updated numbering convention to indicate DOT is supplementing the FAR.
In 1201.403, Individual deviations, and 1201.404, Class deviations, we
propose to correct capitalization and add an acronym for the head of
the contracting activity (HCA); make grammatical corrections to the
text; and revise citations to FAR and TAR references.
In subpart 1201.6, Career Development, Contracting Authority and
Responsibilities, we propose to revise the title to make a minor
punctuation correction. We propose to add coverage under subpart 1201.6
by adding 1201.602-2, Responsibilities, which would specify that each
DOT OA is responsible for establishing Contracting Officer's
Representative (COR) nomination and appointment procedures consistent
with the DOT Acquisition Workforce Career Development Program. This
would delegate this responsibility to the appropriate organizational
level to ensure the most effective and efficient oversight of the
process. In 1201.602-3, Ratification of unauthorized commitments, DOT
is making no change to the existing text that provides DOT policy that
procurement decisions shall be made only by Government officials having
authority to carry out such acquisitions.
In 1201.603, General, we propose to revise the text to expand on
the responsibility delegated to each DOT OA for appointment of
contracting officers that support the individual OA's mission. It
establishes the requirement for each HCA to appoint a Chief of the
Contracting Office (COCO) for each OA and further delegates to the HCA
the authority to select, appoint, and terminate the appointment of
contracting officers within the OA. It would also further specify that
the HCA may re-delegate the contracting officer appointment authority
to a level no lower than that of the COCO.
In subpart 1201.6 we also propose to add a new section 1201.604-70,
Contract clause, which provides the prescription for contracting
officers to insert the clause at 1252.201-70, Contracting Officer's
Representative, in solicitations and contracts that are identified as
other than firm-fixed-price, and to insert the clause as well in firm-
fixed-price solicitations and contracts when appointment of a
contracting officer's representative is anticipated.
TAR Part 1202--Definitions of Words and Terms
We propose to revise the authority citations for part 1202, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1202.1, Definitions, we propose to renumber section
1202.1 to read 1202.101 to accurately implement FAR 2.101.
In the newly renumbered 1202.101, Definitions, we propose to add
two definitions reflecting frequently used new titles, and to revise
existing definitions to correct citations, add acronyms, to reorder
definitions alphabetically in the section, and to reorder current DOT
Operating Administrations and existing components. We propose to add
definitions for: Agency Advocate for Competition and Chief Financial
Officer (CFO). We also propose to revise the definition for Head of the
Contracting Activity (HCA) to identify an alternate HCA-level for the
Great Lakes St. Lawrence Seaway Development Corporation (GLS) OA. All
HCAs are members of the Senior Executive Service, except for the HCA
within the GLS, who must be an individual no lower than one level above
the COCO.
In subpart 1202.70, internet Links, we propose to revise the title
of the subpart to read: ``Abbreviations'' as it would more accurately
reflect the subject matter of the supplementary subpart since the text
is revised; it would also remove a reference to citing corresponding
internet addresses. The intent of the subpart is to provide commonly
used abbreviations or acronyms rather than internal instructions on how
to cite to the internet within the body of the TAR. In the revised text
we are proposing to add sixteen commonly used abbreviations or acronyms
in common use through the TAR to ensure a common understanding and
usage when utilized within individual TAR parts.
TAR Part 1203--Improper Business Practices and Personal Conflicts of
Interest
We propose to revise the authority citations for part 1203, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1203.1, Safeguards, we propose the revise the text at
1203.101-3, Agency regulations, to reference
[[Page 69455]]
DOT's Supplemental Standards of Ethical Conduct for Employees of the
DOT at 5 CFR part 6001 and state that the standards apply to all DOT
employees.
In subpart 1203.2, Contractor Gratuities to Government Personnel,
we propose to revise 1203.203, Reporting suspected violations of the
Gratuities clause, to correct punctuation and to provide the updated
address where each DOT Operating Administrations' appointed Chief of
the Contracting Office (COCO) is required to report suspected
violations to the Office of the Inspector General. In 1203.204,
Treatment of violations, we propose to revise the text to make one FAR
reference citation revision.
In subpart 1203.3, Reports of Suspected Antitrust Violations, we
propose to revise 1203.301, General, and 1203.303, Reporting suspected
antitrust violations, to correct the TAR citations, and in 1203.303, we
would remove the word ``also'' after ``shall'' in the first sentence so
that it would read: ``The same procedures contained in 1203.203 shall
be followed . . .''.
In subpart 1203.4, Contingent Fees, we propose to revise 1203.405,
Misrepresentations or violations of the Covenant Against Contingent
Fees, to clarify the procedures for reporting the attempted or actual
exercise of improper influence, misrepresentation of a contingent fee
arrangement, or other violations of the Covenant Against Contingent
Fees.
In subpart 1203.5, Other Improper Business Practices, and 1203.502-
2, Subcontractor kickbacks, we propose to add the statutory reference
of 41 U.S.C. chapter 87, Kickbacks, to clarify DOT's procedures for
reporting a violation of subcontractor kickbacks.
We propose to add language at subpart 1203.7, Voiding and
Rescinding Contracts, in 1203.703, Authority, to state that the head of
the contracting activity (HCA) is authorized by the Secretary of
Transportation to declare void and rescind contracts and other
transactions listed in Public Law 87-849 in which there has been a
final conviction for bribery, conflict of interest, or any other
violation of 18 U.S.C. 201-224, and that the Head of the Operating
Administration is authorized to make determinations in accordance with
FAR 3.703(b)(2).
We also propose to add coverage under subpart 1203.9, Whistleblower
Protections for Contractor Employees, and in 203.906, Remedies, that
would provide that the HCA is authorized to make determinations and
take actions under FAR 3.906(a), and to take actions under FAR
3.906(b).
TAR Part 1204--Administrative Matters
We propose to revise the authority citations for part 1204, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise the title of the part to ``Administrative and
Information Matters'' to comport with the FAR and reflect the updated
title of the part.
In subpart 1204.1, Contract Execution, we are correcting the FAR
reference in 1204.103 to a standard drafting convention.
We propose to add coverage in subpart 1204.5, Electronic Commerce
in Contracting, and 1204.502, Policy, to state that DOT's policy
preference is to use electronic signatures, records, and communication
methods in lieu of paper transactions whenever practicable.
In subpart 1204.8, Government Contract Files, we propose to add
section 1204.801, General, to state that the Chief of the Contracting
Office (COCO) is designated as the head of each office performing
contracting and contract administration functions and to state that the
Chief Financial Officer (CFO) of the Operating Administration (OA) is
designated as the head of the office performing paying functions.
We propose to add 1204.804, Closeout of contract files, as a
section title with no text to provide ease of reference to the FAR
implemented paragraph and subject matter.
In 1204.804-570, Supporting closeout documents, we propose to
revise the section to update FAR citation references and to spell out a
reference to a Department of Defense form, DD Form 882, Report of
Inventions and Subcontracts, which is currently authorized for use by
DOT and contractors to report inventions and subcontracts.
We propose to add subpart 1204.9, Taxpayer Identification Number
Information, and 1204.903, Reporting contact information to the IRS, to
authorize the Senior Procurement Executive (SPE) to report certain
information, including Taxpayer Identification Number (TIN) data to the
IRS.
We propose to add subpart 1204.13, Personal Identity Verification,
including 1204.1301, Policy, to state that DOT follows National
Institute of Standards and Technology (NIST) Federal Information
Processing Standards (FIPS) Publication (PUB) Number 201-2, Personal
Identity Verification (PIV) of Federal Employees and Contractors, or
NIST issued successor publications, and OMB implementation guidance for
personal identity verification, for all affected contractor and
subcontractor personnel when contract performance requires contractors
to have routine physical access to a Federally-controlled facility and/
or routine logical access to a Departmental/Federally-controlled
information system. We propose to also add 1204.1303, Contract clause,
which would prescribe clause 1252.204-70, Contractor Personnel Security
and Agency Access, in solicitations and contracts (including task
orders, if appropriate), exceeding the micro-purchase threshold when
contract performance requires contractors to have the access described.
We propose to add subpart 1204.17, Service Contracts Inventory, and
1204.1703, Reporting requirements, to identify DOT's agency reporting
responsibilities and to set forth that the Office of the Senior
Procurement Executive (OSPE) is responsible for compiling and
submitting the DOT annual inventory to OMB and for posting and
publishing the inventory consistent with FAR 4.1703(b)(2).
TAR Part 1205--Publicizing Contract Actions
We propose to revise the authority citations for part 1205, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1205.1, Dissemination of Information, we propose to
revise 1205.101, Methods of disseminating information, to update the
current address of the DOT Office of Small and Disadvantaged Business
Utilization and to provide an updated website address where the
Procurement Forecast summary is published.
In subpart 1205.4, Release of Information, we propose to revise
1205.402, General public, to clarify when DOT, upon request, will
furnish the general public with information on proposed contracts and
contract awards. We propose to add coverage at 1205.403, Requests from
Members of Congress, which would authorize the head of the contracting
activity (HCA) to approve the release of certain contract information
to Members of Congress under FAR 5.403.
We propose to add coverage at subpart 1205.6, Publicizing Multi-
Agency Use Contracts, and 1205.601, Governmentwide database of
contracts, which would state the Operating Administration's (OA) head
of the
[[Page 69456]]
contracting activity is responsible for complying with the requirements
of FAR 5.601(b) to submit the cognizant OA's information to the
referenced databases.
TAR Part 1206--Competition Requirements
We propose to revise the authority citations for part 1206, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to add coverage at subpart 1206.2, Full and Open
Competition After Exclusion of Sources, and 1206.202, Establishing or
maintaining alternative sources, which would delegate to the head of
the contracting activity (HCA) the authority to exclude a particular
source from a contract action to establish or maintain an alternative
source under the conditions listed in FAR 6.202(a). The HCA would also
be delegated authority to approve a Determination and Findings (D&F) in
support of a contract action awarded under the authority of FAR
6.202(a).
We propose to add coverage at subpart 1206.3, Other Than Full and
Open Competition. In 1206.302-1, Only one responsible source and no
other supplies or services will satisfy agency requirements, the HCA
would be authorized to determine that only specified makes and models
of technical equipment and parts will satisfy the agency's needs under
FAR 6.302-1(b)(4). In 1206.302-7, Public interest, the Secretary of DOT
would reserve the authority to approve other than full and open
competition when full and open competition is not in the public
interest, and require the contracting officer to prepare a
justification to support the determination and to include the
justification and Secretary's determination in the file.
In subpart 1206.5, Advocates for Competition, we propose to revise
the title of the subpart from ``Competition Advocates'' to read:
``Advocates for Competition'' to conform with the FAR. In 1206.501,
Requirement, we would revise the section to update the title of the
Agency Advocate for Competition which would remain the Deputy Assistant
Secretary for Administration.
TAR Part 1207--Acquisition Planning
We propose to revise the authority citations for part 1207, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1207.3, Contractor Versus Government Performance, we
propose to remove section 1207.302, General, in its entirely as
unnecessary and to revise 1207.305, Solicitation provision and contract
clause, to properly cite the TAR.
TAR Part 1209--Contractor Qualifications
We propose to revise the authority citations for part 1209, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to add TAR Part 1209, Contractor Qualifications, to
include three subparts--1209.4, 1209.5, and 1209.6.
In subpart 1209.4, Debarment, Suspension, and Ineligibility, we
propose to add coverage to provide DOT's policies and procedures on
debarment, suspensions, and ineligibility and contractors' due process
rights.
We propose to add 1209.403, Definitions, which would provide notice
that DOT's Suspending and Debarring Official (SDO) means the individual
designated responsibility as authorized by the Secretary of DOT to
impose procurement suspensions and debarments, exclusions, and other
related matters pursuant to FAR part 9. Each OA and the Office of the
Secretary of Transportation (OST) has separately appointed SDOs. The
SPE serves as the SDO for OST. A list of the OA appointed SDOs is
maintained on the OSPE website. It also includes a definition for DOT
Order 4200.5G as DOT's internal procedures for Suspension and
Debarment, and Ineligibility Policies that implements TAR subpart
1209.4, to include the procedures described under the subpart. This
section also provides a definition for the Senior Accountable Official
(SAO) for Suspension and Debarment. At DOT, the SAO means the Senior
Procurement Executive (SPE), as delegated by the Secretary of DOT, with
responsibility for all suspensions and debarments within DOT. The SAO
sets forth departmental standards for suspension and debarment policies
and procedures, excluding the Office of Inspector General (OIG). We
also propose to add a definition for Suspension and Debarment
Coordinator (SDC) which means the program manager for the Suspension
and Debarment Program at each OA and Office of the Secretary of
Transportation. The SDC advises the SDO. The SDC coordinates all
materials for presentation to the Suspending and Debarring Official for
proposed suspension or debarment activities, enters information
regarding any administrative agreement into the Federal Awardee
Performance and Integrity Information System (FAPIIS), and enters
information regarding suspensions and debarments into <a href="http://SAM.gov">SAM.gov</a>.
In 1209.405, Effect of listing, DOT is proposing coverage to
provide notice that the SDO is authorized to make a written
determination of compelling reasons to solicit offers from, award
contracts to, or consent to subcontract with contractors debarred,
suspended, or proposed for debarment that have an active exclusion
record in the System for Award Management (SAM). We also add language
that the SDO is authorized to make a written determination that a
compelling reason exists to consider a bid or offer from a contractor
who name or company is included on the listing in SAM, as well as to
consider proposals, quotations, or offers received from any listed
contractor that has an active exclusion record in SAM. It would provide
that such proposals, quotations, or offers may be evaluated for award
or included in the competitive range, and, if applicable and as
authorized by the SDO, that discussions may conducted with a listed
offeror as set forth in FAR 9.405(e)(3).
In 1209.405-1, Continuation of current contracts, we propose to add
language that notwithstanding the suspension, proposed debarment, or
debarment of a contractor, contracting officers may continue contracts
or subcontracts in existence at the time the contractor was suspended,
proposed for debarment, or debarred, if authorized by the SDO and the
SDO makes a written determination of the same. The SDO would be
delegated the authority on behalf of the Secretary of DOT to make the
written determination required under FAR 9.405-1(b).
In 1209.405-2, Restrictions on subcontracting, we propose to add
language that the SDO is delegated the authority on behalf of the
Secretary of DOT to authorize contracting officers to consent to
subcontracts with contractors debarred, suspended, or proposed for
debarment as required by FAR 9.405-2(a).
In 1209.406, Debarment, and 1209.406-1, General, we propose to add
language to identify the OST Suspending and Debarring Official (SDO)
and OA-appointed SDO as the debarring official (see 1209.403) who is
authorized to continue business
[[Page 69457]]
dealings between the agency and a contractor that is debarred or
proposed for debarment under FAR 9.406-1(c), except under FAR
23.506(e). The SDO is required to make a written determination of
compelling reasons justifying the continued business dealings. The
SDO's authority would include debarments from contracts for the
purchase of Federal personal property pursuant to the Federal
Management Regulation at 41 CFR 102-117.295.
In 1209.406-3, Procedures, we propose to add language to set forth
DOT's detailed procedures for debarments and to require that
contracting officers and contracting activities shall comply with DOT
Order 4200.5G, Suspension and Debarment, and Ineligibility Policies,
and this subpart to include the following procedures--
Investigation and referral--who may refer an individual or
contractor for debarment, including the responsibility of the SDO to
refer matters to the DOT Office of Inspector General. It would require
reporting information, to include specific information concerning the
Operating Administration (OA) and activity making the report; the name
and address of the contractor (including the members of the board,
principal officers, partners, owners and managers), known affiliates,
subsidiaries or parent firms; specific information concerning the
contract (including description of supplies/services, amount,
percentage of completion, amount paid to contractor, etc.) and the same
information on affiliates' contracts; summary of evidence; the estimate
of damage sustained by the Government; the recommendations of the
contracting officer whether to suspend or debar the contractor, whether
to apply limitations to the suspension or debarment, the period of any
recommended debarment, and whether to continue any current contractors;
and to provide copies of each pertinent contract, witness statements or
affidavits, copies of investigative reports, certified copies of
indictments, judgments, and sentencing actions; and any other
appropriate exhibits or documents.
Decision-making process--the requirement for the SDC in conjunction
with the contracting officer to prepare a recommendation and draft
notice of proposed debarment for the SDO's consideration.
Notice of proposal to debar--the requirement for DOT to send the
notice of proposed debarment to the last known address of the
individual or contractor, the individual or contractor's counsel, or
agent for service of process, by certified mail, return receipt
requested, or any other means that allows for confirmation of delivery
to include by mail, to the last known street address, to the last known
facsimile numbers, or to the last known email address. In the case of a
contractor, the proposed procedures would permit sending the notice of
proposed debarment to the contractor, any partner, principal, officer,
director, owner or co-owner, or joint venture; to the contractor's
identified counsel for purposes of administrative proceedings; or to
the contractor's agent for the service of process. If sent by email, it
shall be sent to the last known email addresses for all three, if
known. Additionally, for each specifically named affiliate, the notice
shall be sent to the affiliate itself, the affiliate's identified
counsel for purposes of the administrative proceedings, or the
affiliate's agency for service of process. If sent by email, it shall
be sent to the last known email addresses for all three, if known.
DOT's procedures would also require the appropriate parties are listed
as excluded in the System for Award Management (SAM) in accordance with
FAR 9.404.
Debarring official's decision--DOT's procedures would provide that
if DOT does not receive a reply from the contractor within 30 calendar
days after sending the notice of proposed debarment, the SDC shall
prepare a recommendation in conjunction with the contracting officer
and refer the case to the SDO for a decision on whether to debar based
on the information available. The procedures also establish that If DOT
receives a reply from the contractor within 30 calendar days after
sending the notice of proposed debarment, the SDC in conjunction with
the cognizant contracting officer shall consider the information in the
reply before the SDC makes their recommendation to the SDO. The SDO
reviews submittals, case documents and acts in accordance with DOT
Order 4200.5G and the General DOT Guidelines for Suspension and
Debarment, paragraph 12c. It would also provide for the contractor to
have an opportunity to appear before the SDO to present information or
argument, in person or through a representative and to supplement oral
presentations with written information and argument. Further, it would
provide that DOT shall conduct the proceeding in an informal manner and
without requirement for a transcript. It also sets forth that if the
SDO agrees there is a genuine dispute of material facts, the SDO shall
conduct a fact-finding or refer the dispute to a designee for
resolution pursuant to 1209.470, Fact-finding procedures. The SDC shall
provide the contractor or individual the disputed material fact(s). If
the proposed debarment action is based on a conviction or civil
judgment, or if there are no disputes over material facts, or if any
disputes over material facts have been resolved pursuant to 1209.470,
Fact-finding procedures, the SDO would be required to make a decision
on the basis of all information available including any written
findings of fact submitted by the designated fact finder, and oral or
written arguments presented or submitted to the SDO by the contractor.
Notice of debarring official's decision--DOT's procedures would
provide that for actions processed under FAR 9.406 where no suspension
is in place and where a fact-finding proceeding is not required, DOT
would make the final decision on the proposed debarment within 30
business days after receipt of any information and argument submitted
by the contractor, unless the SDO extends this period for good cause.
The SDO may use flexible procedures to allow a contractor to present
matters in opposition via telephone of internet.
In 1209.406-4, Period of debarment, we propose to add coverage that
the SDC in conjunction with the contracting officer may submit a
recommendation to the SDO to extend the period of debarment imposed
under FAR 9.406, amend its scope, or reduce the period of debarment.
In 1209.407, Suspension, and 1209.407-1, General, we propose to add
language to state that the SDO is the suspending official under the
Federal Management Regulation at 41 CFR 102-117.295 (see FAR 9.407-1)
and to authorize the SDO to make a written determination of compelling
reasons justifying continuing business dealings between the agency and
a contractor that is suspended.
In 1209.407-3, Procedures, we propose to add coverage to require
that contracting officers and contracting activities shall comply with
DOT Order 4200.5G, Suspension and Debarment, and Ineligibility
Policies, and this subpart to include the following procedures--
Investigation and referral--who may refer an individual or
contractor for suspension, including the responsibility of the SDC, and
the SDO's responsibility to refer matters involving possible criminal
or fraudulent activities, to the DOT Office of Inspector General.
Decision-making process--the requirement for the SDC to prepare a
recommendation and draft notice of
[[Page 69458]]
suspension for the SDO's consideration. The SDC creates a case in the
DOT Suspension and Debarment Tracking System as set forth in DOT Order
4200.5G.
Notice of suspension--the requirement for DOT to send the notice of
suspension to the last known address of the individual or contractor,
the individual or contractor's counsel, or agent for service of
process, by certified mail, return receipt requested, or any other
means that allows for confirmation of delivery, to include by mail, to
the last known street address, to the last known facsimile numbers, or
to the last known email address. In the case of a contractor, the
proposed procedures would permit sending the notice of suspension to
the contractor, any partner, principal, officer, director, owner or co-
owner, or joint venture; to the contractor's identified counsel for
purposes of administrative proceedings; or to the contractor's agent
for the service of process. If sent by email, it shall be sent to the
last known email addresses for all three, if known. Additionally, for
each specifically named affiliate, the notice shall be sent to the
affiliate itself, the affiliate's identified counsel for purposes of
the administrative proceedings, or the affiliate's agency for service
of process. If sent by email, it shall be sent to the last known email
addresses for all three, if known. DOT's procedures would also require
the appropriate parties to be listed as excluded in SAM in accordance
with FAR 9.404. The procedures would provide, upon request of the
contractor suspended, an opportunity for the contractor to appear
before the SDO to present information or argument, in person or through
a representative. The contractor may supplement the oral presentation
with written information and argument. Further, it would provide that
DOT shall conduct the proceeding in an informal manner and without
requirement for a transcript. It also sets forth that if the SDO finds
the contractor's or individual's submission in opposition to the
suspension raises a genuine dispute over facts material to the
suspension, or for the purposes of FAR 9.407-3(b)(2), Decision making
process, in actions not based on an indictment, the SDC shall submit to
the SDO the information establishing the dispute of material facts. If
the SDO agrees there is a genuine dispute of material facts, the SDO
would be required to conduct a fact-finding proceeding or refer the
dispute to a designee for resolution pursuant to 1209.470, Fact-finding
procedures. The SDC would also be required to provide the contractor or
individual the disputed material fact(s) in advance of the fact-finding
proceeding in the event the contractor would like to add to the record
prior to the decision of the SDO. The procedures would also provide
that if the suspension is based on a conviction or civil judgment, or
if there are no disputes over material facts, or if any disputes over
material facts have been resolved pursuant to 1209.470, Fact-finding
procedures, the SDO would be required to make a decision on the basis
of all information available including any written findings of fact
submitted by the designated fact finder, and oral or written arguments
presented or submitted by the contractor. The contractor would be
permitted to supplement the oral presentation with written information
and argument. The proceeding would be conducted in an informal manner
and without requirement for a transcript.
Suspending official's decision-- DOT's procedures would provide
that the SDO may appoint a designee to conduct a fact-finding and
provide a report containing the results of the fact-finding. The SDO
reviews submittals, case documents and acts in accordance with DOT
Order 4200.5G and the General DOT Guidelines for Suspension and
Debarment, paragraph 12c. The SDO may use flexible procedures to allow
a contractor to present matters in opposition via telephone of
internet. The SDO would be required to notify the contractor of the
decision whether to impose a suspension.
In 1209.470, Fact-finding procedures, we propose to add language to
provide DOT's procedures which would be used to resolve genuine
disputes of material fact pursuant to 1209.406-3 and 1209.407-3 of
proposed part 1209, for both debarments and suspensions. This section
further sets forth coverage on--
Date for fact-finding hearing--normally to be held within 30
business days after the SDC, on behalf of the SDO as the designated
debarring official, notifies the contractor or individual that the SDO
has determined that a genuine dispute of material fact(s) exists.
Opportunity to present evidence--both the Government's
representative and the contractor would have an opportunity to present
evidence relevant to the genuine dispute(s) of material fact identified
by the SDO. The contractor or individual would be permitted to appear
in person or through counsel at the fact-finding hearing and should
address all defenses, contested facts, admissions, remedial actions
taken, and, if a proposal to debar is involved, mitigating and
aggravating factors. The contractor or individual would be able to
submit documentary evidence, present witnesses, and confront any person
the agency presents.
Testimony of witnesses--would permit witnesses to testify in
person, and sets forth that such witnesses would be subject to cross-
examination. The fact-finding proceeding is an informal evidentiary
hearing, during which the Rules of Evidence and Civil Procedure do not
apply. Hearsay evidence would be permitted to be presented and would be
given appropriate weight by the fact-finder.
Transcripts of proceedings--the hearings would be transcribed and a
copy of the transcript would be required to be made available, at cost,
to the contractor upon request, unless the contractor and the
factfinder, by mutual agreement, waive the requirement for a
transcript.
Fact-finder determination--the fact-finder shall prepare written
finding(s) of fact by a preponderance of the evidence for proposed
debarments, and by adequate evidence for suspensions. A copy of the
findings of fact would be required to be provided to the SDO, the
Government's representative, and the contractor or individual. The SDO
would be required to consider the written findings of fact when making
their decision regarding the suspension or proposed debarment.
A new section 1209.471, Appeals, is added to specify that based on
the decision of the SDO, the respondent may elect to request
reconsideration of the SDO's final decision to debar or to request
modification of the debarment by reducing the time period or narrowing
the scope of the debarment. The request must be in writing and
supporting with documentation. A suspended or debarred individual or
entity may also seek judicial review after exhausting all
administrative remedies.
In subpart 1209.5, Organizational and Consultant Conflicts of
Interest, and 1209.507, Solicitation provisions and contract clause,
and 1209.507-270, Contract clauses, we propose to add a prescription
for two clauses--1252.209-70, Organizational and Consultant Conflicts
of Interest, and 1252.209-71, Limitation of Future Contracting. These
are required to provide notice to contractors of the requirement to
identify and mitigate potential organizational and consultant conflicts
of interest, as well as to provide notice to contractors that an
acquisition may give rise to a potential organizational conflict of
interest and to set forth
[[Page 69459]]
restrictions on future contracting that pertains to such conflict(s).
In subpart 1209.6, Contractor Team Arrangements, and 1209.602,
General, we propose to add coverage that requires offerors to disclose
teaming arrangements as a part of any offer and for contracting
officers to evaluate such teaming arrangements as a part of overall
prime contractor responsibility, as well as under the technical and/or
management approach evaluation factor where applicable. This provides
clarity to DOT on the composition of teaming arrangements when offerors
are proposing on DOT solicitations and ensures the Government has the
necessary information to consider when conducting proposal evaluations.
TAR Part 1211--Describing Agency Needs
We propose to revise the authority citations for part 1211, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to remove subpart 1211.11, Selecting and Developing
Requirements, and 1211.101, Order of precedence for requirements
documents, and move any current required coverage to the TAM as
internal DOT procedural guidance not having a significant effect beyond
the internal operating procedures of DOT.
We propose to revise subpart 1211.2, Using and Maintaining
Requirements Documents, by adding the section title 1211.204,
Solicitation provisions and contract clauses, with no text, and by
revising the title of 1211.204-70, Solicitation provisions and contract
clauses, to read ``Contract clauses'' to more appropriately describe
the content.
TAR Part 1212--Acquisition of Commercial Items
We propose to revise the authority citations for part 1212, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to add coverage at TAR part 12, Acquisition of
Commercial Items, and 1212.301, Solicitation provisions and contract
clauses for the acquisition of commercial items. The section would
authorize the use of specific DOT provisions and clauses in
acquisitions of commercial items when required by the individual
provision or clause prescription. This authorizes DOT contracting
officers use of unique DOT provisions and clauses for the acquisition
of commercial items, as prescribed elsewhere in the TAR, when required
to protect the Government's interests in accordance with FAR 12.301(f).
TAR Part 1213--Simplified Acquisition Procedures
We propose to revise the authority citations for part 1213, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 1213.71 by redesignating subpart
1213.71 to 1213.70, and retaining the title, ``Department of
Transportation Procedures for Acquiring Training Services.'' We propose
to redesignate and renumber section 1213.7100 and 1213.7101 to
1213.7000, Applicability, and 1213.7001, Solicitation provision and
contract clause, respectively. We propose to revise the text at the
renumbered 1213.7000, to update it to correct TAR citations in
accordance with standard FAR drafting conventions. At 1213.7001, we
propose to revise the text to remove the notice regarding the
certification of training requirements as an internal DOT determination
that is not appropriate to include within the body of the TAR, and to
correct TAR citations to standard FAR drafting conventions.
TAR Part 1214--Sealed Bidding
We propose to remove TAR part 1214, Sealed Bidding, and Reserve the
part as the coverage currently contained at 1214.302, Bid submission,
contains obsolete practices that are no longer required and for which
the FAR has adequate coverage.
TAR Part 1215--Contracting by Negotiation
We propose to revise the authority citations for part 1215, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to remove subpart 1215.2, Solicitation and Receipt of
Proposals and Information, and 1215.207, Handling proposals and
information, as internal DOT procedural guidance not having a
significant effect beyond the internal operating procedures of DOT. Any
coverage would be considered and revised, as appropriate, for inclusion
in the TAM.
In subpart 1215.6, Unsolicited Proposals, we propose to remove the
coverage at 1215.602, Policy, as unnecessary.
In 1215.603, General, we propose to revise the text to remove the
first sentence as redundant to the FAR and to update the text to
provide clarity and to correct TAR citations to standard FAR drafting
conventions.
We propose to revise 1215.604, Agency points of contact, to remove
the existing paragraph (a) as unnecessary and redundant, and to update
the text in the current paragraph (b), renumber it as paragraph (a),
and provide an updated web address for interested parties to learn more
about DOT and the mission of each Operating Administration.
We also propose to revise 1215.606, Agency procedures, to remove
paragraph (a) as internal DOT procedural guidance not having a
significant effect beyond the internal operating procedures of DOT. Any
coverage would be considered and revised, as appropriate, for inclusion
in the TAM. We propose to redesignate paragraph (b) as undesignated and
to remove the last sentence that pertains only to DOT employees who
might receive an unsolicited proposal to forward it to the contracting
office. As this is internal DOT guidance, it is would be removed from
the TAR and considered for inclusion in the TAM. Lastly, we've added
more pertinent information for the public that the assigned DOT
contracting office will review and evaluate the proposal within 30
calendar days, if practicable, in accordance with FAR 15.606-1, Receipt
and initial review, to inform the offeror of the reasons for rejection
and the proposed disposition of the unsolicited proposal.
Finally, we propose to remove 1215.606-1, Receipt and initial
review, as internal DOT procedural guidance not having a significant
effect beyond the internal operating procedures of DOT. Notice to the
public under 1215.606 provides DOT's target to review the proposal
within 30 calendar days, and to inform the offeror as noted above. Any
coverage would be considered and revised, as appropriate, for inclusion
in the TAM.
TAR Part 1216--Types of Contracts
We propose to revise the authority citations for part 1216, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1216.2, Fixed-Price Contracts, we propose to revise
1216.203-70, Solicitation provision, to
[[Page 69460]]
correct the TAR citation to standard FAR drafting conventions.
In subpart 1216.4, Incentive Contracts, we propose to revise
1216.406-70, DOT contract clauses, to correct TAR citations to standard
FAR drafting conventions, and to revise the title of clause 1252.216-72
in paragraph (b) from ``Performance Evaluation Plan'' to ``Award Fee
Plan'' to align with the new revised clause title set forth in part
1252.
In subpart 1216.5, Indefinite-Delivery Contracts, we propose to
revise 1216.505, Ordering, to renumber the implementing paragraph from
(b)(5) to (b)(8), and to update the title for the Advocate for
Competition to comport with the FAR.
In subpart 1216.6, Time-and-Materials, Labor-Hour, and Letter
Contracts, we propose to revise 1216.603-4, Contract clauses, to
correct the TAR citation to standard FAR drafting conventions.
TAR Part 1217--Special Contracting Methods
We propose to revise the authority citations for part 1217, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1217.70, we propose to correct the title to add a hyphen
between ``Fixed'' and ``Price'' to read: Fixed-Price Contracts for
Vessel Repair, Alteration or Conversion.
We propose to revise 1217.7001, Clauses, to correct TAR citations
to standard FAR drafting conventions, and to revise paragraph (b) to
identify the title of each prescribed clause to be used in
solicitations and contracts for vessel repair, alteration or
conversion. We also propose to revise paragraph (c) to identify the
title of the clause, and to remove paragraphs (d) and (e) as
duplicative and unnecessary.
TAR Part 1219--Small Business Programs
We propose to revise the authority citations for part 1219, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise the part to substantially update to current
DOT policies and procedures regarding implementation of DOT's small
business programs. In subpart 1219.2, Policies, we propose to revise
1219.201, General policy, paragraph (c), to clarify that the Director,
Office of Small and Disadvantaged Business Utilization (OSDBU) shall be
a member of the Senior Executive Service and appointed by the Secretary
of DOT. And we propose to add paragraph (d) to implement FAR 19.201(d)
to specify that the responsible HCA for each OA shall appoint a Small
Business Specialist (SBS) to carry out the duties and functions
specified in the FAR. And we provide a link to DOT's OSDBU website that
contains DOT's list of SBS.
We propose to add coverage at 1219.201-70, Procurement goals for
small business, to supplement the FAR at FAR 1219.201 and require that
each DOT contracting activity in consultation with the OSDBU on behalf
of the Secretary establish annual goals for opportunities for small
businesses to participate in the activity's contracts and subcontracts.
At 1219.202, Specific policies, we propose to add policy that the
OSDBU is responsible for reviewing procurement strategies and
subcontracting efforts, establishing review thresholds, and making
recommendations to further the implementation of part 1219.
We propose to add coverage at 1219.202-70, Procurement Forecast, to
provide information to the public and to provide the website where
DOT's Operating Administrations will publish procurement forecasts
annually.
We propose to add coverage at subpart 1219.4, Cooperation with the
Small Business Administration, and 1219.401, General, to implement
DOT's policy that the OSDBU Director will be the primary point of
contact with the U.S. Small Business Administration and facilitate the
formulation of policies to ensure maximum practicable opportunities are
available to small business concerns in prime and subcontracting
opportunities.
We propose to add subpart 1219.5, Set-Asides for Small Business,
and 1219.501, General; 1219.502-8, Rejecting Small Business
Administration recommendations; and 1219.502-9, Withdrawing or
modifying small business set-asides. This new proposed language would
implement the FAR and DOT's requirement that set-aside decisions will
be documented utilizing DOT Form 4250.1, and to require contracting
officers to coordinate with the OSDBU if they reject a recommendation
of the Small Business Administration (SBA) procurement center
representative. It would also specify the procedures to be followed
when withdrawing or modifying small business set-asides, including
providing appropriate notice to the small business specialist, the SBA
procurement center representative, and the OSDBU. Additionally, the new
language would specify the role of the Chief of the Contracting Office
(COCO) if the agency small business representative does not agree to a
withdrawal or modification of a set-aside.
We propose to add coverage at subpart 1219.7, The Small Business
Subcontracting Program, and 1219.705, Responsibilities of the
contracting officer under the subcontracting assistance program, and
1219.705-6, Post-award responsibilities of the contracting officer, to
identify that the DOT OSDBU is responsible for acknowledging receipt
of, or rejecting, the Summary Subcontracting Report (SSR) in the
Electronic Subcontracting Reporting System (eSRS).
In subpart 1219.8, Contracting with the Small Business
Administration (The 8(a) Program), we propose to revise 1219.800,
General, to update paragraph (f) with current DOT information on the
SBA and DOT Partnership Agreement delegating SBA's contract execution
and administrative functions to DOT and requiring that contracting
officers shall follow the alternate procedures in this subpart, as
applicable, to award 8(a) contracts under the partnership agreement.
We propose to remove 1219.811-3, Contract clauses, and 1219.812,
Contract administration, as obsolete and redundant to existing FAR
coverage.
We propose to remove subpart 1219.10, Small Business
Competitiveness Demonstration Program, and 1219.1003, Purpose, and
1219.1005, Applicability, and the Appendix A in the part as obsolete
and unnecessary coverage.
We propose to add coverage at subpart 1219.70, DOT Mentor-
Prot[eacute]g[eacute] Program, and 1219.7000, General, to provide DOT's
policies and procedures for participation in DOT's Mentor-
Prot[eacute]g[eacute] Program, a current website for the DOT OSDBU, the
office that administers the program on behalf of the Secretary.
TAR Part 1222--Application of Labor Laws to Government Acquisitions
We propose to revise the authority citations for part 1222, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise coverage under subpart 1222.1, Basic Labor
Policies, and specifically 1222.101-70, Admittance of union
representatives to DOT installations, paragraph (b), to
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make clear that whenever a union representative is denied entry to a
work site, the person denying entry shall make a written report to the
labor advisor for the applicable Operating Administration (OA) or to
the DOT labor coordinator, the Office of General Counsel, Office of
General Law, within the Office of the Secretary of Transportation. The
requirement remains the same as previously codified, but the revision
more clearly identifies the labor advisor of the OA at the beginning of
the list of DOT officials who are required to be notified in writing by
the Government official who denies entry to the work site.
We propose to revise 1222.101-71, Contract clauses, to correct TAR
citations to standard FAR drafting conventions.
We propose to remove in its entirety subpart 1222.4, Labor
Standards for Contracts Involving Construction, and the underlying
sections 1222.406, Administration and enforcement, and 1222.406-9,
Withholding from or suspension of contract payments. This subpart
contains internal operating procedures that will be revised and updated
and moved to the TAM, to include removal of the use of DOT Form 4220.7,
Employee Claim for Wage Restitution. DOT proposes removal because this
form would not be processed through a contractor but be handled outside
of the TAR and in accordance with DOL rules.
We propose to add subpart 1222.8, Equal Employment Opportunity, and
section 1222.810-70, Contract clause. In 1222.810-70, the clause
1252.222-72, Contractor Cooperation in Equal Employment Opportunity and
Anti-Harassment Investigations, is prescribed to provide definitions of
terms to provide common meaning, and to require contractors to
cooperate with DOT in investigations of Equal Employment Opportunity
(EEO) and Anti-Harassment complaints after referral to the OFCCP and/or
the Equal Employment Opportunity Commission (EEOC).
TAR Part 1223--Environment, Energy and Water Efficiency, Renewable
Energy Technologies, Occupational Safety, and Drug-Free Workplace
We propose to revise the authority citations for part 1223, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1223.3, Hazardous Material Identification and Material
Safety Data, we propose to revise 1223.303, Contract clause, to correct
the TAR citation to standard FAR drafting conventions.
In subpart 1223.70, Safety Requirements for Selected DOT Contracts,
we propose to revise 1223.7000, Contract clauses, to correct TAR
citations to standard FAR drafting conventions, and to update the
clause to indicate that DOT regulations and any OA specific procedures
apply.
TAR Part 1224--Protection of Privacy and Freedom of Information
We propose to revise the authority citations for part 1224, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1224.1, Protection of Individual Privacy, we propose to
revise 1224.102-70, General, to update for clarity DOT's general
policies on records maintained in a Privacy Act system of records and
the prohibition against release except by the Government or at the
Government's direction, irrespective of whether the Government or a
contractor acting on behalf of the Government is maintaining the
records.
In subpart 1224.2, Freedom of Information Act, we propose to revise
1224.203, Policy, to provide an updated internet address for DOT's FOIA
website.
TAR Part 1227--Patents, Data, and Copyrights
We propose to revise the authority citations for part 1227, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1227.3, Patent Rights Under Government Contracts, and
1227.304, Procedures, we propose to revise the underlying section
1227.304-5, Appeals, to renumber it to 1227.304-4 to align with the
FAR. We also propose to revise the text to make it clearer regarding
which requirements or actions apply to contractors; to update and
correct TAR citations to standard FAR drafting conventions; and to cite
the correct FAR 27.304-4, Appeals, citation in lieu of FAR 27.304-5.
In 1227.305, Administration of patent rights clauses, we propose to
revise the underlying section 1227.305-4, Conveyance of invention
rights acquired by the Government, to retitle it correctly as,
``Protection of invention disclosures,'' to align with the FAR, and to
make a minor revision to incorporate the word ``Department of Defense''
before the referenced DD Form 882, Report of Inventions and
Subcontracts, which DOT permits contractors to use to report inventions
made during contract performance and at contract completion.
TAR Part 1228--Bonds and Insurance
We propose to revise the authority citations for part 1228, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1228.1, Bonds and Other Financial Protections, we
proposed to remove 1228.106-1, Bonds and bond related forms, in its
entirety as coverage is unnecessary as it is duplicative of current FAR
requirements.
We propose to revise 1228.106-470, Contract clause--notification of
payment bond protection, which would revise the title to more
appropriately reflect FAR drafting convention and to move it up in
placement earlier in the subpart in lieu of its current placement after
1228.106-70 and 1228.106-71. This section prescribes a clause at
1252.228-74, Notification of Payment Bond Protection, in solicitations
and contracts when payment bonds are required.
We also propose to add 1228.106-6, Furnishing information, which
provides notice to the public that the requirement for a copy of the
contract, when furnishing a copy of a payment bond and contract in
accordance with FAR 28.106-6(b), may be satisfied by furnishing a .pdf
of the contract's first pages which show the contract number and date,
the contractor's name and signature, the contracting officer's
signature, and the description of the contract work. It also provides
notice that the fee for furnishing the requested certified copies shall
be determined in accordance with the DOT Freedom of Information Act
regulation, 49 CFR part 7, and 1224.203.
We propose to remove in its entirety the previous 1228.106-6,
Furnishing of information, as internal operating procedures for
contracting officers that will be revised and updated and moved to the
TAM.
We propose to revise 1228.106-70, Execution and administration of
bonds, to make a minor administrative punctuation edit. We also propose
to revise 1228.106-71, Performance and payment bonds for certain
contracts, and 1228.106-7100, Waiver. The revisions would amend
paragraph (a) to update the name and title of cited Bond statute
(formerly Miller Act), and to remove unnecessary additional citations.
The revisions would also
[[Page 69462]]
remove paragraph (b) in its entirety as internal operating procedures
intended only for contracting officers that are unnecessary to include
in the TAR, but will be examined and revised as appropriate and moved
to the TAM if necessary.
We propose to revise 1228.106-7101, Exception, to correct TAR
citations to standard FAR drafting conventions.
We also propose to move the previously titled 1228.106-470,
Contract clause, in the order of the subpart as noted above, and to
revise the title to Contract clause--notification of payment bond
protection.
In subpart 1228.3, Insurance, we propose to revise 1228.306,
Insurance under fixed-price contracts, and the underlying section
1228.306-70, Contracts for lease of aircraft, which would make a number
of administrative corrections and substantive updates to provide
clarity, to include the following:
<bullet> Corrections to TAR citations to standard FAR drafting
conventions;
<bullet> Minor corrections to grammar and punctuation;
<bullet> Removal of the first sentence in paragraph (b) as
unnecessary;
<bullet> Removal of paragraph (c) in its entirety;
<bullet> Renumbering paragraph (d) as (b) and by adding correct
ancillary subparagraph numbers in accordance with FAR drafting
convention;
<bullet> Adding a new paragraph (c) to provide more specific
prescription information concerning how the use of clause 1252.228-72,
Risk and Indemnities, as prescribed in a new paragraph (d), shall be
used in short-term or intermittent-use leases, to protect the
Government for damage caused by operation of the aircraft in such
short-term leases;
<bullet> Adding a new paragraph (d), which specifically would
prescribe clause 1252.228-72, Risk and Indemnities, in contracts for
out-service flight training or lease of aircraft when the Government
will have exclusive use of the aircraft for a period of less than
thirty days; and
<bullet> Adding a new paragraph (e) that would require that for any
contract for out-service flight training, the contracting officer shall
include a clause stating substantially that the contractor's personnel
shall always, during the course of training, be in command of the
aircraft and that at no time shall other personnel be permitted to take
command of the aircraft. This would also require that during the
performance of a contract for out-service flight training for DOT,
whether the instruction to DOT personnel is in leased, contractor-
provided, or Government-provided aircraft, contractor personnel shall
always, during the entirety of the course of training and operation of
the aircraft, remain in command of the aircraft. At no time shall
Government personnel or other personnel be permitted to take command of
the aircraft. This prescribes the clause at 1252.228-73, Command of
Aircraft, in any solicitation and contract for out-service flight
training, whether performed utilizing DOT-leased aircraft, contractor-
provided aircraft, or Government-provided aircraft.
We propose to revise 1228.307-1, Group insurance plans, to clarify
that contractors shall provide plans required by FAR 28.307-1(a) to the
contracting officer for approval, and to remove the last sentence as
outdated guidance and more appropriate as internal operating procedures
and if needed, would be moved to the TAM.
We also propose to revise 1228.311-1, Contract clause, to correct
the TAR citation to standard FAR drafting convention.
TAR Part 1231--Contract Cost Principles and Procedures
We propose to revise the authority citations for part 1231, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1231.2, Contracts with Commercial Organizations, we
propose to revise 1231.205-32, Precontract costs, to renumber the
section as 1231.205-3270 to more accurately reflect FAR drafting
convention and that the TAR is supplementing FAR 31.205-32, and to
revise the title to read: ``Precontract costs--incurrence of costs.''
We also propose to make minor edits to clarify the language,
incorporate use of active voice, and to correct the TAR citation to
standard FAR drafting convention.
TAR Part 1232--Contract Funding
We propose to revise the authority citations for part 1232, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise TAR part 1232 overall to add two new
subparts--1232.7 and 1232.70, and to redesignate, renumber and retitle
the existing subpart 1232.70 as 1232.9, as discussed further in this
section of the preamble.
We propose to add subpart 1232.7, Contract Funding, to address
needed guidance for contracting officers and the public as to when
incremental funding is available for use during a Continuing Resolution
(CR), with the following underlying sections:
1232.770, Incremental funding during a Continuing Resolution, as a
section heading only with no text.
1232.770-1, Scope of section, to outline the scope of the subpart
for using incremental funding for fixed-price, time-and-material and
labor-hour contracts during a period in which funds are provided to the
DOT and its operating administrations under a CR, and to authorize HCAs
to develop necessary supplemental internal procedures and guidance to
advise offerors and contractors of such policies and procedures.
1232.770-2, Definition, would provide a common definition for use
in the subpart of ``Continuing Resolution.''
1232.770-3, General, provides general policy regarding what a CR
provides funding for and general information.
1232.770-4, Policy, would provide DOT's policy for when a fixed-
price, time-and-materials or labor-hour contract or order for
commercial or non-commercial severable services may be incrementally
funded.
1232.770-5, Limitations, would provide that the policy does not
apply to contract actions using funding that are not covered by the CR.
1232.770-6, Procedures, details certain procedures that apply when
such incremental funding is authorized, and actions that the
contracting officer is required to take if a contract will receive no
further funds in accordance with the clause 1252.232-71, Limitation of
Government's Obligation.
1232.770-7, Clause, prescribes that contracting officers shall
insert the clause at 1252.232-71, Limitation of Government's Obligation
in certain solicitations and contracts, and that the contracting
officer is required to insert information required in paragraphs (a)
and (b) of the clause. It also would permit the contracting officer to
revise certain paragraphs of the clause, as well as varying
notification periods and percentages for when contractors must make
certain notification to the Government. The 30-day period specified in
the standard clause may be varied from up to 90 days, and the 75
percent specified in the standard clause may be varied from 75 up to 85
percent.
We propose to redesignate, renumber and retitle subpart 1232.70,
Contract Payments, as subpart 1232.9, Prompt Payment, to align with the
FAR. We propose to revise 1232.7002, Invoice and voucher review and
approval, to renumber and retitle it to read: 1232.905-70, Payment
documentation and process--form of invoice, to align it
[[Page 69463]]
properly under FAR 32.905 as supplemental agency-specific policy. We
also propose to revise the text to cite a current FAR citation, and to
retitle the two Appendices as follows: ``Appendix A to Part 1232,
Instructions for Completing the SF 1034,'' to ``Table 1232-1,
Instructions for Completing the SF 1034,'' and ``Appendix B to Part
1232, Instructions for Completing the SF 1035,'' to ``Table 1232-2,
Instructions for Completing the SF 1035,'' respectively. The
instructions in the tables are largely the same as previously codified
with only minor editorial, administrative, or formatting changes.
We propose to add subpart 1232.70, Electronic Invoicing
Requirements, to provide DOT's policies and procedures for submitting
and processing payment requests in electronic form, with the following
underlying sections:
1232.7000, Scope of subpart.
1232.7001, Definition, to provide a common meaning to the
definition of ``payment request.''
1232.7002, Electronic payment requests--invoices, which would
outline DOT's requirements and exceptions for when payments must be
submitted electronically, alternate procedures, and details on the DOT
electronic invoicing system--DELPHI eInvoicing and the specific
iSupplier module.
1232.7003, Payment system registration, which provides the
requirement for contractors to submit payment requests in electronic
form unless directed by the contracting officer. It would also
specifically exempt purchases paid with a Governmentwide commercial
purchase card.
1232.7003-1, Electronic authentication, which provides information
on utilizing the General Services Administration (GSA) credentialing
platform, <a href="http://www.login.gov">www.login.gov</a>.
1232.7004, Waivers, which provides a website for vendors to access
DOT's DELPHI eInvoicing system for procedures or directs them to
contact the Contracting Officer's Representative for procedures.
1232.7005, Contract clause, which prescribes clause 1252.232-70,
Electronic Submission of Payment Requests, in solicitations and
contracts exceeding the micro-purchase threshold, except those for
which the contracting officer has directed or approved otherwise under
1232.7002, and those paid with a Governmentwide commercial purchase
card.
TAR Part 1233--Protests, Disputes, and Appeals
We propose to revise the authority citations for part 1233, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1233.2, Disputes and Appeals, we propose to revise
1233.211, Contracting officer's decision, to remove the existing text
in its entirety as outdated since DOT no longer has its own Board of
Contract Appeals. The Civilian Board of Contract Appeals (CBCA) was
established on January 6, 2006 by the National Defense Authorization
Act for FY2006, Public Law 109-163. Section 847 of the Act vests the
CBCA with jurisdiction over claims that previously would have been
filed before the boards of contract appeals of individual agencies. We
propose to add new coverage at paragraph (a)(4)(v), specifying
contracting officer's actions on claims, including a tailored statement
for DOT contracting officers to insert in the contracting officer's
decision, and where to file, a key CBCA website providing information
on how to file, and alternative procedures for small claims, those
involving a small business concern, or accelerated procedures for
claims of $100,000 or less. This substantially follows that set forth
in FAR 33.211(a)(4)(v), but provides specific language reflecting the
fact that DOT utilizes the CBCA.
We propose to revise 1233.214, Alternative dispute resolution
(ADR), to--
<bullet> Make minor administrative, grammatical, or formatting
revisions for clarity;
<bullet> Retain only the sentence, ``In resolution of a formal
claim,'' under paragraph (c)(3), and relocate the remainder of the text
to a new paragraph (d)(1);
<bullet> Require in the new paragraph (d)(1) that for all matters
filed with the CBCA, the CBCA ADR procedures shall be used; and
<bullet> Renumber paragraph (d) as (d)(2).
TAR Part 1235--Research and Development Contracting
We propose to revise the authority citations for part 1235, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise 1235.003, Policy, to update FAR citations to
comport with FAR drafting convention in paragraph (b), to add
clarifying language, and to add paragraph (c), Recoupment, which would
provide that DOT recoupment not otherwise required by law shall be
conducted in accordance with OA procedures.
We propose to add 1235.010-70, Scientific and technical reports--
acquisition, publication and dissemination, to specify that DOT's
policy for the acquisition, publishing format, and dissemination of
scientific and technical reports is established in DOT Order 1700.18B,
Acquisition, Publication and Dissemination of DOT Scientific and
Technical Reports.
We propose to add 1235.011-70, Contract clause, to prescribe clause
1252.235-71, Technology Transfer, in all solicitations and contracts
for experimental, developmental, or research work, and to add 1235.012,
Patent rights, to implement FAR 35.012 and to provide that such patent
rights would also be in accordance with any Operating Administration
(OA) implementing procedures.
We also propose to renumber ``subpart 1235.70, Research
Misconduct,'' to 1235.070, Research misconduct, and remove any
reference to a ``subpart'' to align the TAR with the FAR, which has no
subparts in FAR part 35. We also propose to add paragraph (a) to set
forth the applicability and DOT's policy on scientific integrity, and
to add paragraph (b) to provide a definition of research misconduct.
We propose to renumber 1235.7000, Contract clause, to 1235.070-1,
Contract clause, and to update the clause prescription and TAR citation
to comport with FAR drafting convention.
TAR Part 1236--Construction and Architect-Engineer Contracts
We propose to revise the authority citations for part 1236, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
In subpart 1236.5, Contract Clauses, we propose to revise 1236.570,
Special precautions for work at operating airports, to correct the TAR
citation to standard FAR drafting convention.
TAR Part 1237--Service Contracting
We propose to revise the authority citations for part 1237, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
[[Page 69464]]
In subpart 1237.1, Service Contracts--General, we propose to update
1237.110, Solicitation provision and contract clauses, to renumber and
retitle it to 1237.110-70, Contract clauses, to more appropriately
comport with FAR drafting and numbering convention, as well as to
correct the TAR citations to standard FAR drafting convention.
In subpart 1237.70, Procedures for Acquiring Training Services, we
propose to revise the title of the subpart to remove ``Department of
Transportation'' as unnecessary so that it now reads: Procedures for
Acquiring Training Services. We propose to revise 1237.7000, Policy, to
add to the list of data that that prospective contractors are required
to certify by adding specifically ``resumes, for example,'' to denote
additional types of information that would be required to be certified,
in lieu of the more general, ``etc.''. We propose to revise 1237.7001,
Certification of data; 1237.7002, Applicability; and 1237.7003,
Solicitation provision and contract clause, to correct TAR citations to
reflect standard FAR drafting convention. In 1237.7003, we are making a
minor revision to the title to replace ``provisions'' with
``provision'' as only one unique TAR provision is prescribed.
TAR Part 1239--Acquisition of Information Technology
We propose to revise the authority citations for part 1239, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to substantially revise TAR part 1239 to add six new
subparts--1239.2, 1239.70, 1239.71, 1239.72, 1239.73, and 1239.74, as
well as to substantively revise subpart 1239.1 to specify additional
policy and procedures. These changes are intended to reflect that
within the Federal government, acquiring information technology and
information-technology-related supplies, services, and systems,
including information technology-related services and information
security, continues to be an evolving area as new Federal laws and
requirements are established. DOT needs to ensure that the TAR
appropriately identifies these requirements so potential offerors and
contractors understand them and are able to appropriately address them
when proposing on DOT acquisitions. Further, DOT needs to ensure its
information and information systems are appropriately protected and
that contractors comply with contract requirements.
We propose to add 1239.000, Scope of part, to reflect specific
areas TAR part 1239 encompasses, to include--
<bullet> Software management and development;
<bullet> Section 508 standards and compliance for contracts;
<bullet> Information security and incident response reporting;
<bullet> Protection of data about individuals;
<bullet> Cloud computing;
<bullet> Technology modernization and upgrade/refreshment; and
<bullet> Record management.
We propose to add 1239.002, Definitions, to provide common meaning
for three terms when used in the part to include: Information,
information system, and media.
In subpart 1239.1, General, we propose to add sections 1239.101-70,
Policy--software management and development; 1239.101-70-1, Scope;
1239.101-70-2, Definitions; and 1239.101-70-3, Policy.
Section 1239.101-70, Policy--software management and development,
adds coverage under 1239.101-70-1, Scope, to identify that the subpart
applies to all acquisitions of products or services supporting the
development or maintenance of software. It would also add four
definitions to provide standard meaning and usage to the terms
application, programming software, software, and system software as
used in the subpart; and in 1239.101-70-3, Policy, to provide
departmental policy that applies to all acquisitions of products or
services supporting the development or maintenance of software. We also
propose to renumber and retitle 1239.70, Solicitation provision and
contract clause, to 1239.106-70, Contract clauses, to better comport
and align with the FAR, and to prescribe two clauses--1252.239-70,
Security Requirements for Unclassified Information Technology
Resources, and 1252.239.71, Information Technology Security Plan and
Accreditation, in all solicitations and contracts exceeding the micro-
purchase threshold that include information technology services.
We propose to add subpart 1239.2, Electronic and Information
Technology, including sections 1239.201, Scope of subpart; 1239.203,
Applicability; and 1239.203-70, Information and communication
technology accessibility standards--contract clause and provision,
which would apply to the acquisition of Electronic and Information
Technology (EIT) supplies and services. The term ``EIT'' as would be
used in this subpart is intended to refer to Information and
Communication Technology (ICT) and any successor terms used to describe
such technology. It concerns the access to and use of information and
data, by both Federal employees with disabilities and members of the
public with disabilities in accordance with FAR 39.201. This implements
DOT policy on Section 508 of the Rehabilitation Act of 1973 (29 U.S.C.
794d) as it applies to contracts and acquisitions. Subpart 1239.2 would
prescribe two clauses for all contracts and orders: 1252.239-92,
Information and Communication Technology Accessibility Notice; and
1252.239-93, Information and Communication Technology Accessibility.
We propose to add subpart 1239.70, Information Security and
Incident Response Reporting, to include sections 1239.7000, Security
incident response; 1239.7001, Definitions; 1239.7002, Policy; and
1239.7003, Contract Clauses, which would apply to contracts and
subcontracts requiring contractors and subcontractors to safeguard DOT
sensitive data that resides in or transits through covered contractor
information systems by applying specified network security
requirements. It also requires reporting of cyber incidents. It would
provide seven definitions and provide common meaning for terms used in
the subpart--adequate security, contractor attributional/proprietary
information, contractor information system, DOT sensitive data, cyber
incident, rapid report, and technical information. DOT's policy
requires contractors and subcontractors to provide adequate security on
all contractor information systems that will collect, use, process,
store, or disseminate DOT sensitive data and to report cyber incidents
directly to DOT via a unique number 24 hours-a-day, 7 days-a-week, 365
days a year (24 x 7 x 365) within two (2) hours of discovery. It would
also require reporting by lower-tier subcontractors. The policy details
specific reporting requirements. It also would set forth the
requirement for the reporting of cyber incidents, if existing
safeguards have ceased to function or new or unanticipated threats or
hazards are discovered by either the Government or contractor, the
discoverer shall immediately bring the situation to the attention of
the other party. It would require reporting in accordance with the
clause 1252.239-74, Safeguarding DOT Sensitive Data and Cyber Incident
Reporting. And the policy further details that support services
contracts supporting Government activities may be involved in forensic
analysis, damage assessment, or other services that
[[Page 69465]]
require access to data from another contractor and would be subject to
restrictions on the use and disclosure of reported information. In
1239.7003, Contract clauses, three clauses are prescribed:
1252.239-72, Compliance with Safeguarding DOT Sensitive Data
Controls, that would require the contracting officer to insert the
clause in all solicitations, including solicitations using FAR part 12
procedures for the acquisition of commercial items, except for
solicitations solely for the acquisition of commercially available off-
the-shelf (COTS) items.
1252.239-73, Limitations on the Use or Disclosure of Third-Party
Contractor Reported Cyber Incident Information, that would require the
contracting officer to insert the clause in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, for services that
include support for the Government's activities related to safeguarding
DOT sensitive data and cyber incident reporting.
1252.239-74, Safeguarding DOT Sensitive Data and Cyber Incident
Reporting, that would require the contracting officer to insert the
clause in all solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items, except for solicitations and contracts solely for the
acquisition of COTS items.
We propose to add subpart 1239.71, Protection of Data About
Individuals, including sections 1239.7100, Scope; 1239.7101,
Definitions; 1239.7102, Policy; 1239.7103, Responsibilities; and
1239.7104, Contract clause, that would include policy on Privacy Act
and data protection considerations for DOT contracts. Data protection
requirements are in addition to provisions concerning the general
protection of individual privacy (see FAR subpart 24.1) and privacy in
the acquisition of information technology (see FAR 39.105). In
1239.7101, Definitions, DOT would provide eight definitions to provide
common meaning for terms used in the subpart--data protection, breach,
information security, integrity, confidentiality, availability,
Personally Identifiable Information (PII), and privacy incident. And in
1239.7102, Policy, DOT would require that data protection is provided
for information and information systems in accordance with current
policies, procedures, and statutes, to include a specific list.
1239.7103, Responsibilities, requires the contracting officer to
include appropriate data protection requirements in all contracts and
other acquisition-related documents for DOT information created,
collected, displayed, used, processed, stored, transmitted, and
disposed of by contractors. In particular, DOT requires that
contracting officers ensure all contracts with contractors maintaining
information systems containing PII contain the appropriate clauses as
may be required by the Federal Acquisition Regulation (FAR) and other
OMB and agency memorandums and directives, to ensure that PII under the
control of the contractor is maintained in accordance with Federal law
and DOT policy. In 1239.7104, Contract clause, the clause 1252.239-75,
DOT Protection of Information About Individuals, PII and Privacy Risk
Management Requirements, is prescribed. Contracting officers shall
insert the clause in solicitations and contracts involving contractor
performance of data protection functions and for contracts involving
the design, development, or operation of an information system with
access to personally identifiable information as described in DOT Order
1351.18, Privacy Risk Management, and DOT Order 1351.37, Departmental
Cyber Security Policy.
We propose to add subpart 1239.72, Cloud Computing, including
sections 1239.7200, Scope of subpart; 1239.7201, Definitions;
1239.7202, Policy; 1239.7203, DOT FedRAMP specific requirements; and
1239.7204, Contract clauses, that would prescribe DOT policies and
procedures for the acquisition of cloud computing services.
In 1239.7201, Definitions, DOT would provide four definitions to
provide common meaning for terms used in the subpart--authorizing
official, cloud computing, Government data, and Government-related
data.
In 1239.7202, Policy, DOT would provide that DOT entities shall
acquire cloud computing services using commercial terms and conditions
consistent with Federal law, and DOT's needs, including those
requirements specified in the subpart. It would require contracting
officers to carefully review commercial terms and conditions and
consult counsel to ensure the terms and conditions are consistent with
Federal law, regulations, and DOT's needs. Except as provided in
1239.7202, the contracting officer shall only award a contract to
acquire cloud computing services from a cloud service provider (e.g.,
contractor or subcontractor, regardless of tier) that has been granted
provisional authorization by the General Services Administration (GSA)
Federal Risk and Authorization Management Program (FedRAMP), and meets
the security requirements set out by the DOT Chief Information Officer
(CIO), at the level appropriate to the requirement to provide the
relevant cloud computing services. Section 1239.7202 would also
prescribe that when contracting for cloud computing services, the
contracting officers shall ensure certain listed information is
provided by the requiring activity (e.g., Government data and
Government-related data descriptions; data ownership, licensing,
delivery and disposition instructions, etc.). Section 1239.7202 would
also provide that: (1) Cloud computing service providers are required
to maintain within the 50 states, the District of Columbia, or outlying
areas of the United States, all Government data that is not physically
located on DOT premises, unless otherwise authorized by the DOT CIO;
and (2) that the contracting officer shall provide written approval to
the contractor when the contractor is permitted to maintain Government
data at a location outside the 50 States, the District of Columbia, and
outlying areas of the United States.
In 1239.7203, DOT's FedRAMP specific requirements are provided, to
include validated cryptography for secure communications; digital
signature cryptography--authentication, data integrity, and non-
repudiation; audit record retention for cloud service providers; cloud
identification and authentication (organizational users) multi-factor
authentication; identification and authentication (non-organizational
users); incident reporting timeframes; media transport requirements;
personnel screening--background investigations; and minimum personnel
security requirements to include U.S. citizenship and clearance.
In 1239.7204, Contract clauses, several clauses are prescribed to
be inserted in solicitations and contracts, including those using FAR
part 12 procedures for the acquisition of commercial items, for
information technology services involving cloud computing services. The
clauses, which are set forth in part 1252, are based on Federal FedRAMP
standard framework language to be used in solicitations and contracts
where FedRAMP requirements exist:
<bullet> 1252.239-76, Cloud Computing Services.
<bullet> 1252.239-77, Data Jurisdiction.
<bullet> 1252.239-78, Validated Cryptography for Secure
Communications.
<bullet> 1252.239-79, Authentication, Data Integrity, and Non-
Repudiation.
[[Page 69466]]
<bullet> 1252.239-80, Audit Record Retention for Cloud Service
Providers.
<bullet> 1252.239-81, Cloud Identification and Authentication
(Organizational Users) Multi-Factor Authentication.
<bullet> 1252.239-82, Identification and Authentication (Non-
Organizational Users).
<bullet> 1252.239-83, Incident Reporting Timeframes.
<bullet> 1252.239-84, Media Transport.
<bullet> 1252.239-85, Personnel Screening--Background
Investigations.
<bullet> 1252.239-86, Boundary Protection--Trusted internet
Connections.
<bullet> 1252.239-87, Protection of Information at Rest.
<bullet> 1252.239-88, Security Alerts, Advisories, and Directives.
We propose to add subpart 1239.73, Technology Modernization and
Upgrades/Refreshment, including sections 1239.7300, Scope of subpart;
1239.7301, Definitions; 1239.7302, Policy; 1239.7303, Contract clauses,
that would prescribe DOT's policies and procedures for incorporating
technology modernization, upgrades and refreshment into acquisitions
involving information technology products or services supporting the
development of applications, information systems, or system software.
In 1239.7301, Definitions, DOT would add five definitions to provide
common meaning for terms used in the subpart--application,
modernization, system software, refresh, and upgrade. In 1239.7302,
Policy, DOT would require contracting officers to ensure all documents
involving the acquisition of development or maintenance of DOT
applications, systems, infrastructure, and services will contain the
appropriate clauses as may be required by the Federal Acquisition
Regulation (FAR) and other Federal authorities, to ensure that
information system modernization is prioritized accordance with Federal
law, OMB Guidance, and DOT policy. And in 1239.7303, Contract clauses,
two clauses as described in part 1252 are prescribed that require
contracting officers to insert them into solicitations and contracts
when the contractor or a subcontractor, at any tier, will develop or
maintain information systems, applications, infrastructure, or
services: 1252.239-89, Technology Modernization; and 1252.239-90,
Technology Upgrades/Refreshment.
We propose to add subpart 1239.74, Records Management, including
sections 1239.7400, Scope of subpart; 1239.7401, Definitions;
1239.7402, Policy; and 1239.7403, Contract clause, to prescribes DOT's
policies for records management requirements for contractors who
create, work with, or otherwise handle Federal records, regardless of
the medium in which the records exist. In 1239.7401, Definition, we
include a key definition of ``federal record'' as used in the subpart,
to provide common meaning. As defined in 44 U.S.C. 3301, ``federal
record'' means all recorded information, regardless of form or
characteristics, made or received by a Federal agency under Federal law
or in connection with the transaction of public business and preserved
or appropriate for preservation by that agency or its legitimate
successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the United
States Government or because of the informational value of data in
them. The term ``Federal record'' would include all DOT records, and
applies to records created, received, or maintained by contractors
pursuant to a DOT contract; it may include deliverables and
documentation associated with deliverables; it does not include
personal materials.
In section 1239.7402, Policy, DOT details key requirements, to
include compliance, applicability, records maintenance, and
unauthorized disclosure. This is necessary to ensure contractors fully
understand the requirement to comply with all applicable records
management laws and regulations, as well as National Archives and
Records Administration (NARA) records policies, including but not
limited to the Federal Records Act (44 U.S.C. chapters 21, 29, 31, 33),
NARA regulations at 36 CFR Chapter XII Subchapter B, and policies
associated with the safeguarding of records covered by Privacy Act of
1974 (5 U.S.C. 552a). These policies include the preservation of all
records, regardless of form or characteristics, mode of transmission,
or state of completion. Contractors would be required to notify the
contracting officer within two hours of discovery of any inadvertent or
unauthorized disclosures of information, data, documentary materials,
records or equipment. Contractors would be required to ensure that the
appropriate personnel, administrative, technical, and physical
safeguards are established to ensure the security and confidentiality
of the information, data, documentary material, records and/or
equipment accessed, maintained, or created, is properly protected.
Additionally, contractors would not be permitted to remove material
from Government facilities or systems, or facilities or systems
operated or maintained on the Government's behalf, without the express
written permission of the contracting officer or contracting officer's
representative. It would also set forth requirements for returning
information to DOT when no longer required, and what security measures
to follow, and prohibit contractors from creating or maintaining any
records containing any non-public DOT information that are not
specifically tied to or authorized by the contract. In 1239.239-91,
Records Management, we propose to prescribe one clause, 1239.239-91,
Records Management, that the contracting officer would be required to
insert it in all solicitations and contracts involving services where
contractors or subcontractors and their employees or associates
collect, access, maintain, use or disseminate or otherwise handle
Federal records.
TAR Part 1242--Contract Administration and Audit Services
We propose to revise the authority citations for part 1242, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to add four subparts to TAR part 1242--subparts 1242.1,
1242.2, 1242.3, and 1242.15, and to remove one subpart--1242.70.
We propose to add subpart TAR 1242.1, Contract Audit Services, to
include sections 1242.101, Contract audit responsibilities; 1242.102-
70, Assignment of contract audit services; and 1242.170, Contract
clause.
In 1242.101, Contract audit responsibilities, the regulations would
provide that DOT policy allows for private certified public accounting
firms to be used to provide audit services as described in FAR 42.101
to DOT contracting officers when procurement schedule demands cannot be
met by the Defense Contract Audit Agency (DCAA) or the agency with
audit cognizance. In 1242.103, Assignment of contract audit services,
DOT would permit contracting officers to acquire audit services from
private certified public accountant (CPA) firms when the responsible
audit agency declines providing the needed services. In 1242.170,
Contract clause, we propose to prescribe clause 1252.242-74, Contract
Audit Support, as described in TAR part 1252, that would require
contracting officers to insert the clause in solicitation and contracts
when other than firm-fixed-price contracts are contemplated.
We propose to add subpart TAR 1242.2, Contract Administration
Services, to include section 1242.270,
[[Page 69467]]
Contract clauses. Three clauses currently prescribed in subpart
1242.70, Contract Administration Clauses, would be moved to section
1242.270 to better align with the FAR and to comport with FAR drafting
convention and numbering:
1252.242-70, Dissemination of Information-Educational Institutions,
that would permit contracting officers to use 1252.242-70 in lieu of
the clause at 1252.242-72, Dissemination of Contract Information, in
DOT research contracts with educational institutions, except contracts
that require the release or coordination of information.
1252.242-71, Contractor Testimony, that would require contracting
officers to insert the clause in all solicitations and contracts issued
by the National Highway Traffic Safety Administration (NHTSA) and would
permit other Operating Administrations to use the clause as deemed
appropriate.
1252.242-72, Dissemination of Contract Information, that would
permit the contracting officer to insert the clause in all DOT
contracts except contracts that require the release or coordination of
information.
We propose to add subpart TAR 1242.3, Contract Administration
Office Functions, to include section 1242.302, Contract administration
functions, to implement FAR 42.302(a). In this subpart, DOT would
authorize contracting officers to: (1) Perform the functions identified
in FAR 42.302(a)(5), (9), (11), and (12) with the assistance of the
cognizant government auditing agency, if assigned and available to
provide support in a timely manner; or (2) use the audit services of a
CPA firm to perform these functions. DOT contracting officers would be
authorized to use this authority if a cognizant Federal agency has not
performed the functions.
Additionally, in 1242.302(a)(13) we propose to implement DOT's
procedures for FAR 42.302(a)(13), to set forth that the assignment of
contract administration to a Defense Contract Management Agency (DCMA)
office by the contracting officer does not affect the designation of
the paying office unless a transfer of DOT funds to the agency of the
Contract Administration Office (CAO) is effected, and the funds are
converted to the CAO agency's account for payment purposes. DOT's
policy and procedures would also require that the CAO, the contracting
officer, or the designated contract specialist in the contracting
office review and approve the invoices and vouchers under the assigned
contracts, and would further specify that the review and approval of
invoices under cost-reimbursement and time-and-materials type contracts
cannot be delegated to the Contracting Officer's Representative (COR).
This is useful information for the public to understand which DOT
Government officials will be reviewing and approving invoices, and that
such reviews on certain types of contracts cannot be delegated to the
COR.
We propose to add subpart TAR 1242.15, Contractor Performance
Information, to include section 1242.1503, Procedures, to provide that
each Operating Administration is responsible for assigning
responsibility and management accountability for the completeness of
past performance submissions as required in FAR 42.1503(a).
And, DOT proposes to remove subpart 1242.70, Contract
Administration Clauses and its underlying section 1242.7000, Contract
clauses. This corrects an error in placement to better align with the
subject matter in the FAR and comports with FAR drafting convention and
numbering. The clauses previously in this subpart are proposed to be
revised and moved to subpart 1242.2, Contract Administration Services.
TAR Part 1245--Government Property
As a part of DOT's initiative to streamline the TAR and make it
more effective, efficient, and transparent, we propose to remove the
entirety of TAR Part 1245, Government Property, to include the
underlying subpart 1245.5, Management of Government Property in the
Possession of Contractors, and sections 1245.505, Records and reports
of Government Property; 1245.505-14, Reports of Government Property;
1245.505-70, Contract clauses; 1245.508-2, Reporting results of
inventories; and 1245.511, Audit of property control system. The
information is outdated and not in accordance with the FAR. DOT has
determined that the clause 1252.245-70, Government Property Reports, is
unnecessary and has eliminated the requirement for contractors to
report property in its possession on a unique DOT Form since the FAR
permits contractors to report it using standard commercial practices.
The prescribed form, DOT F 4220.43, Contractor Report of Government
Property, is obsolete and has been proposed for removal as described in
the section on TAR part 1253.
TAR Part 1246--Quality Assurance
We propose to revise the authority citations for part 1246, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 1246.1, General, and section 1246.101-
70, Additional definitions, to add the introductory sentence, ``As used
in this subpart--'' to align with standard FAR and TAR drafting styles,
and to correct a FAR citation to reflect standard FAR drafting
convention, and to substantively revise only the definition for ``Major
acquisition.'' Previously, DOT had referred to the TAM, an internal
document, for the definition. DOT proposes to provide the common
definition of the term in the TAR to ensure clarity.
In subpart 1246.7, Warranties, we propose to revise 1246.705,
Limitations, and 1245.706, Warranty terms and conditions, to revise the
numbering and title of the sections to comport with standard FAR
drafting guidelines and numbering to supplement the FAR and to make
only minor editorial, formatting, and FAR citation corrections to
comport with FAR drafting guidelines. We propose to revise and retitle
1246.705, Limitations, to 1246.705-70, Limitations--restrictions, to
more accurately supplement the FAR. We also propose to remove paragraph
(b) as unnecessary and therefore remove the numbering for (a) And we
propose to revise and retitle 1245.706, Warranty terms and conditions,
to 1246.706-70, Warranty terms and conditions--requirements, to also
more accurately supplement the FAR.
TAR Part 1247--Transportation
We propose to revise the authority citations for part 1247, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 1247.5, Ocean Transportation by U.S.-
Flag Vessels and section 1247.506, Procedures, to update the name of
the office and address of the Maritime Administration (MARAD) Office of
Cargo and Commercial Sealift.
TAR Part 1252--Solicitation Provisions and Contract Clauses
We propose to revise the authority citations for part 1252, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 1252.1, Instructions for Using
Provisions and
[[Page 69468]]
Clauses, by revising section 1252.101 as follows:
<bullet> Renumber the section as 1252.101-70 to reflect that this
section supplements the FAR and correct capitalization of the title to
conform with FAR Drafting Guidelines so the title reads as ``Using part
1252.''
<bullet> Remove the current ``(b) Numbering.'' nomenclature so it
is unlettered and adding text to introduce the section topic.
<bullet> Remove paragraph (2)(i), Provisions or clauses that
supplement the FAR, heading as unnecessary for the section.
<bullet> Renumber existing paragraphs (b)(2)(i)(A), and (B), as
``(a)'' and ``(b)'', and the subparagraphs accordingly to conform with
FAR 1.105-2(b)(2) numbering conventions and to provide updated FAR
citation references.
We propose to revise subpart 1252.2, Text of Provisions and
Clauses, as follows:
We propose to add clause 1252.201-70, Contracting Officer's
Representative, to provide the text of the clause prescribed by
1201.604-70. This states the contracting officer may designate
Government personnel to act as the Contracting Officer's Representative
(COR) to perform certain specific functions under the contract and that
the contracting officer will provide a written notice of such
designation to the contractor within five working days after contract
award, or for construction, not less than five working days prior to
giving the contractor the notice to proceed.
We propose to add clause 1252.204-70, Contractor Personnel Security
and Agency Access, to provide the text prescribed by 1204.1303. This
clause provides certain key definitions as used in the clause to
provide common meaning to the terms. It outlines specific risk and
sensitivity level designations and associated levels of processing;
details that contractor employees may be required to obtain security
clearances in certain instances; outlines the requirement for
contractors to pre-screen contractor employees and details some of
those instances where DOT may decline to grant agency access to a
contractor employee in some instances, for example, due to conviction
of a felony, a crime of violence, or a misdemeanor involving moral
turpitude. The clause further outlines the requirements as pertains to
citizenship status, background investigation and adjudication issues,
and when agency access may be denied. It also outlines the
identification card application process and that the COR will be the
DOT ID card sponsor and point of contact for the contractor's
application for a DOT ID card. The proposed clause outlines
identification card custody and control requirements to include
notification requirements when a contractor employee's status changes
or if the card is lost or stolen, and further details the requirement
to flow down the clause to any subcontracts at any tier that require
the subcontractor or subcontractor's employees to have access to DOT
facilities, sensitive information, information systems or other
resources. This clause is required to ensure compliance with existing
Federal laws and directives and to ensure DOT facilities, sensitive
information, information systems or other resources are protected and
that contractors and their employees who require access understand the
critical requirements.
We propose to add clause 1252.209-70, Organizational and Consultant
Conflicts of Interest, to provide the text prescribed by 1209.507-
270(a). This clause would require that an offeror shall identify in its
proposal, quote, bid or any resulting contract, any potential or actual
Organizational and Consultant Conflicts of Interest (OCCI) as described
in FAR subpart 9.5. This includes actual or potential conflicts of
interests of proposed subcontractors. If an offeror identifies in its
proposal, quote, bid or any resulting contract, a potential or actual
conflict of interest the offeror would be required to submit an
Organizational and Consultant Conflicts of Interest Plan (OCCIP) to the
contracting officer. The clause would also provide that if a prime
contractor or subcontractor breaches any of the OCCI restrictions, or
does not disclose or misrepresents any relevant facts concerning its
conflict of interest, the government may take appropriate action,
including terminating the contract, in additional to any remedies that
may be otherwise permitted by the contract or operation of law. This
clause is required to ensure compliance with FAR subpart 9.5.
We propose to add clause 1252.209-71, Limitation of Future
Contracting, which would provide the text prescribed by 1209.507-
270(b). The clause would provide notice to contractors that the
contracting officer has determined that the acquisition may give rise
to a potential organizational conflict of interest which the
contracting officer would identify to the public so that potential
contractors can make a considered judgment on whether they can offer or
bid on the solicitation and prepare, as needed, for any organizational
conflicts of interest mitigation strategies. As a result, contractors
would be put on notice that there would potentially be restrictions on
future contracting as a result of performing certain tasks under the
contract. The clause would help DOT ensure that the public is fully on
notice of any potential Organizational Conflicts of Interests that may
arise and that might limit participation on future work at DOT as a
result of work under the contract.
We propose to revise clause 1252.211-70, Index for Specifications,
to correct capitalization in the title and to correct the TAR citation
in the clause.
We propose to revise provision 1252.216-70, Evaluation of Offers
Subject to an Economic Price Adjustment Clause, to make minor
administrative corrections in the title, the TAR citation, and grammar.
We propose to revise clause 1252.216-71, Determination of Award
Fee, to make minor administrative corrections in the title, the TAR
citation, and grammar, as well as to substitute the name of ``Award Fee
Plan'' in lieu of ``Performance Evaluation Plan'' in paragraph (b).
We propose to revise clause 1252.216-72, to change the title from
``Performance evaluation plan'' to ``Award Fee Plan,'' and to
accordingly make the same changes in paragraphs (a), (b), and (c) of
the clause, as well as minor formatting and editorial changes in the
clause.
We propose to revise clause 1252.216-73, Distribution of Award Fee,
to make minor administrative corrections in the title and the TAR
citation, and to correct capitalization of words in the text of the
clause. It would also update the requirement in paragraph (b) that the
reserve shall not exceed 15 percent of the total base fee and potential
award fee or $150,000, whichever is less. The increase to $150,000 from
the ``$100,000'' amount now reflected in the CFR is to recognize that a
general increase in some dollar thresholds may be appropriate since the
last revision of this clause.
We propose to revise clause 1252.216-74, Settlement of Letter
Contract, to make minor administrative corrections in the title and the
TAR citation.
We propose to revise clause 1252.217-70, Guarantee, to make minor
administrative corrections in the title and the TAR citation, and other
minor editorial corrections, and to add in paragraph (a) the phrase,
``in accordance with the contract terms and conditions'' and to delete
the phrase, ``to the satisfaction of the Contracting Officer'' to more
specifically reflect back to the contract requirements. This will help
ensure clarity in the event any work
[[Page 69469]]
performed or materials furnished by the contractor prove defective or
deficient within 60 days from the date of redelivery of the vessel(s).
In such cases, the contractor, as directed by the contracting officer
and at its own expense, shall correct and repair the deficiency ``in
accordance with the contract terms and conditions.''
We propose to revise clause 1252.217-71, Delivery and Shifting of
Vessel, to make minor administrative corrections in the title and the
TAR citation.
We propose to revise clause 1252.217-72, Performance, to make minor
administrative corrections in the title and the FAR and TAR citations,
and to correct the name of the FAR clause in paragraph (c)(3).
We propose to revise clause 1252.217-73, Inspection and Manner of
Doing Work, to make minor administrative corrections in the title and
the FAR and TAR citations, and to correct the name of the FAR clause in
paragraph (e)(7), and update to the current usage of Contracting
Officer's Representative (COR) in lieu of the older ``COTR'' in
paragraph (e)(9), as well as other minor grammatical and administrative
corrections that do not change the substance of the clause.
We propose to revise clause 1252.271-74, Subcontracts, to make to
make minor administrative corrections in the TAR citation referencing
the prescription.
We propose to revise clause 1252.271-75, Lay Days, to make to make
minor administrative corrections in the title and the TAR citation
referencing the prescription.
We propose to revise clause 1252.217-76, Liability and Insurance,
to make to make minor administrative corrections in the title and the
TAR citation referencing the prescription.
We propose to revise clause 1252.217-77, Title, to make to make
minor administrative corrections in the title and the TAR citation
referencing the prescription, and to correct the last word in paragraph
(b) to read ``equipment'' in lieu of ``equipments.''
We propose to revise clause 1252.217-78, Discharge of Liens, to
make to make minor administrative corrections in the title and the TAR
citation referencing the prescription.
We propose to revise clause 1252.217-79, Delays, to make to make
minor administrative corrections in the TAR citation referencing the
prescription.
We propose to revise clause 1252.217-80, Department of Labor Safety
and Health Regulations for Ship Repair, to change the word in the title
from ``Repairing'' to ``Repair'', and to correct the TAR citation
referencing the prescription.
We propose to remove clause 1252.219-71, Section 8(a) Direct
Awards, in its entirety as unnecessary and duplicative of the FAR.
We propose to remove clause 1252.219-72, Notification of
Competition Limited to Eligible 8(a) Concerns--Alternate III, in its
entirety as unnecessary and duplicative of the FAR.
We propose to revise clause 1252.222-70, Strikes or Picketing
Affecting Timely Completion of the Contract Work, to make to make minor
administrative corrections in the title and the TAR citation
referencing the prescription.
We propose to revise clause 1252.222-71, Strikes or Picketing
Affecting Access to a DOT Facility, to make to make minor
administrative corrections in the title and the TAR citation
referencing the prescription.
We proposed to add clause 1252.222-72, Contractor Cooperation in
Equal Employment Opportunity and Anti-Harassment Investigations, which
adds definitions to provide common meaning to three terms as used in
the clause. It would require that in addition to complying with the
clause at FAR 52.222-26, Equal Opportunity, the Contractor shall, in
good faith, cooperate with the Department of Transportation in
investigations of Equal Employment Opportunity (EEO) complaints
processed pursuant to 29 CFR part 1614 as well as internal Anti-
Harassment investigations. It would also provide that failure to
cooperate could be potential grounds for termination for cause or
default, and it requires flowdown of the clause in all subcontracts, at
any tier.
We propose to revise clause 1252.223-70, Removal or Disposal of
Hazardous Substances--Applicable Licenses and Permits, to make to make
minor administrative corrections in the title, the TAR citation
referencing the prescription, and make minor editorial formatting
changes in the clause.
We propose to revise clause 1252.223-71, Accident and Fire
Reporting, to make minor administrative corrections in the title and
the TAR citation referencing the prescription, and other minor
administrative editorial corrections, as well as to remove in paragraph
(b)(1) two outdated reference to ``by telegram or facsimile
transmission'' to instead state that reports of accidents or fires
resulting in a death, hospitalization of five or more persons, or
destruction of Government-owned or leased property (either real or
personal), the total value of which is estimated at $100,000 or more,
shall be reported immediately by telephone to the Contracting Officer
or his/her authorized representative and shall be confirmed in writing
within 24 hours to the Contracting Officer.
We propose to revise clause 1252.223-72, Protection of Human
Subjects, to make minor administrative corrections in the title and the
TAR citation referencing the prescription, to correct a FAR citation in
paragraph (g), and to update the clause to indicate that DOT
regulations and any OA specific procedures apply.
We propose to revise clause 1252.223-73, Seat Belt Use Policies and
Programs, to make minor administrative corrections in the title and the
TAR citation referencing the prescription, to update the name of the
safety campaigns now in use by DOT--``Click It or Ticket'', and to
provide updated website information, as well as make other minor
grammatical corrections.
We propose to revise clause 1252.228-70, Loss of or Damage to
Leased Aircraft, to make minor administrative corrections in the title
and the TAR citation referencing the prescription, as well as to make
other minor editorial corrections.
We propose to revise clause 1252.228-71, Fair Market Value of
Aircraft, to make minor administrative corrections in the title and the
TAR citation referencing the prescription, as well as to make other
minor editorial corrections, and to add the reference to clause number
1252.228-70 to the cited clause title, ``Loss of or Damage to Leased
Aircraft,'' to conform with FAR drafting conventions.
We propose to revise clause 1252.228-72, Risk and Indemnities, to
make minor administrative corrections in the title and the TAR citation
referencing the prescription.
We propose to add clause 1252.228-73, Command of Aircraft, to
require that during the performance of a contract for out-service
flight training for DOT, whether the instruction to DOT personnel is in
leased, contractor-provided, or Government-provided aircraft,
contractor personnel shall always, during the entirety of the course of
training and during operation of the aircraft, remain in command of the
aircraft. At no time shall other personnel be permitted to take command
of the aircraft.
We propose to renumber clause 1252.228-73 to 1252.228-74, and to
revise the title to read ``Notification of Payment Bond Protection,''
in lieu of ``Notification of Miller Act payment bond protection'' to
comport with the
[[Page 69470]]
current reference to the older ``Miller Act'' statute, to correct the
TAR citation referencing the prescription, as well as to make other
minor editorial corrections that would also update the correct title
for the ``Miller Act'' statute to ``Bonds statute'' in paragraphs (a)
and (b). We propose to add a new paragraph (c) to add subcontract
flowdown requirements requiring prime contractors to insert this notice
clause in all first-tier subcontracts and to require the clause to be
subsequently flowed down by all first-tier subcontractors to all
subcontractors, at any tier.
We propose to revise clause 1252.231-70, Date of Incurrence of
Costs, to make minor administrative corrections in the title, the TAR
citation referencing the prescription and to make minor editorial
formatting changes.
We propose to add clause 1252.232-70, Electronic Submission of
Payment Requests, that would provide four definitions to establish a
common meaning when used in the clause; provide notice to contractors
that electronic payment requests are required, with exceptions; specify
the processing system DOT uses and the iSupplier (DELPHI) system and
login address that would be used to submit such electronic invoices;
invoice requirements to receive payment; specify payment registration
system procedures; and specify how waivers are processed and exceptions
and alternate payment procedures for DOT. This clause is required to be
inserted into DOT contracts to ensure contractors and vendors are aware
of electronic invoice processing requirements and how to submit and
process invoices to ensure payment under DOT contracts.
We propose to add clause 1252.232-71, Limitation of Government's
Obligation, that would permit contracting officers, if funding is not
currently available to fully fund the contract due to the Government
operating under a continuing resolution to incrementally fund items if
listed in a table contained in the clause. The clause outlines the
parameters of the incremental funding, to include a requirement that
the contractor provide notice to the contracting officer in writing
when work will reach the point at which the total amount payable by the
Government, including any cost for termination for convenience, will
approximate 85 percent of the total amount then allotted to the
contract for performance of the item(s) identified. The clause also
cautions that nothing in the clause shall be construed as authorization
of voluntary services whose acceptance is otherwise prohibited under 31
U.S.C. 1342. This clause is necessary to permit DOT contracting
officers to proceed with performance during periods of continuing
resolutions if partial funds are available and provide a mechanism to
incrementally fund the contract. This clause was benchmarked with other
Federal agencies who have similarly authorized this type of incremental
funding.
We propose to revise clause 1252.235-70, Research Misconduct, to
make minor administrative corrections in the title and the TAR citation
referencing the prescription, and to make other minor grammatical and
editorial non-substantive edits in the clause to comport with FAR
drafting convention. Further, we propose to add a paragraph (i) to the
clause to add subcontract flowdown language to require the contractor
to include the clause in all subcontracts that involve research.
We propose to add clause 1252.235-71, Technology Transfer, to
provide the text of the clause prescribed by 1235.011-70. The clause
would require the contractor to develop a Technology Transfer Plan in
accordance with the statement of work and to receive approval by the
contracting officer prior to the initiation of any work under the
contract. It details the minimum requirements for the plan, as well as
a requirement to periodically update the plan at least once every six
months via a Technology Transfer Report, and also details the minimum
information for the report. DOT requires this clause to obtain
essential information on the output of research so that the Government
can efficiently identify reporting requirements and leverage research
in which DOT invests. This provides clarity to the public prior to
commencement of work under a cognizant research contract so that the
contractor can appropriate identify and track information prior to
commencement of the effort.
We propose to revise clause 1252.236-70, Special Precautions for
Work at Operating Airports, to make minor administrative corrections in
the title and the TAR citation referencing the prescription, and to
make other minor grammatical and editorial non-substantive edits in the
clause to comport with FAR drafting convention.
We propose to revise clause 1252.237-70, Qualifications of
Contractor Employees, to make minor administrative corrections in the
title and the TAR citation referencing the prescription; to make other
minor grammatical and editorial non-substantive edits in the clause to
comport with FAR drafting convention; and to remove paragraphs (f) and
(g) because it is duplicative of other DOT or FAR clauses or contains
outdated information. We also propose to make substantive edits to
paragraphs (b) and (e). In paragraph (b), we are providing clarity to
the need to protect sensitive information and the requirement for
contractors to train contractor employees who are authorized to access
sensitive information, and detail the requirement for the contractor to
provide information to assist the Government in determining an
individual's suitability to have an authorization to access DOT
information and information systems. In paragraph (e), we removed
subparagraphs (e)(1) and (2) in their entirety to streamline the
paragraph to state that the contractor shall ensure that contractor
employees are citizens of the United States of America or non-citizens
who have been lawfully admitted for permanent residence or employment
(indicated by immigration status) as evidenced by U.S. Citizenship and
Immigration Services (USCIS) documentation. DOT also proposes to add a
new paragraph (f) to describe an updated subcontract flowdown
requirement requiring the contractor to include the clause in
subcontracts whenever clause 1252.237-70 is included in the prime
contractor's contract.
We propose to revise section 1252.237-71, Certification of Data, to
make minor administrative corrections in the title and the TAR citation
referencing the prescription, and to remove the ``NOTICE'' paragraph
text preceding paragraph (a) as it contains an internal DOT
determination and reference to an outdated memorandum that is
unnecessary and inappropriate to include within the body of the
provision. We proposed to add in paragraph (b) ``or for cause'' after
``termination for default'' when stating that offerors submitting
inaccurate data to the Department of Transportation may subject the
offeror, its subcontractors, employees or its representatives to
prosecution for false statements pursuant to 18 U.S.C. 1001 and/or
enforcement action for false claims or statements, or termination for
default or for cause under any contract resulting from its offer, and/
or debarment or suspension. In paragraph (c), we propose to add the
phrase, ``and submit such certification(s) with its offer'' after the
existing sentence so that it now reads: The offeror agrees to obtain a
similar certification from its subcontractors and submit such
certification(s) with its offer.
We propose to revise clause 1252.237-72, Prohibition on
[[Page 69471]]
Advertising, to make minor administrative corrections in the title and
the TAR citation referencing the prescription.
We propose to revise clause 1252.237-73, Key Personnel, to make
minor administrative corrections in the title and the TAR citation
referencing the prescription, as well as minor grammatical corrections
and formatting of contracting officer insert instructions in the text.
We propose to revise clause 1252.239-70, Security Requirements for
Unclassified Information Technology Resources, in its entirety, to make
substantive revisions to the clause to clarify that the contractor
shall be responsible for information technology security for all
systems connected to a DOT network or operated by the contractor for
DOT, regardless of location. It provides examples of tasks that require
security provisions. The clause requires a contractor to develop,
provide, implement, and maintain an IT Security Plan that would
describe the processes and procedures the contractor will follow to
ensure appropriate security of IT resources developed, processed, or
used under the contract. It requires the contractor to submit written
proof of IT security accreditation to the contracting officer and
requires, on an annual basis, the contractor to verify in writing that
the IT Security Plan remains valid. It also requires contractor
personnel to be screened and trained, and that contractors shall
provide the Government access to the Contractor's and subcontractors'
facilities, installations, operations, documentation, databases and
personnel used in performance of the contract. The Contractor shall
provide access to enable a program of IT inspection (to include
vulnerability testing), investigation and audit (to safeguard against
threats and hazards to the integrity, availability and confidentiality
of DOT data or to the function of information technology systems
operated on behalf of DOT), and to preserve evidence of computer crime.
The contractor is also required to flow down the clause to all
subcontracts as specified in the clause. This revision is necessary to
update DOT information system and security requirements to meet current
Federal Governmentwide requirements.
We propose to revise clause 1252.239-71, Information Technology
Security Plan and Accreditation, to make minor administrative
corrections in the title and the TAR citation referencing the
prescription, to use the word ``shall'' in lieu of ``must'' in regards
to the requirement that all offers submitted in response to the
solicitation shall address the approach for completing the security
plan and accreditation requirements, and to add the name of the title
of the referenced clause 1252.239-70, Security Requirements for
Unclassified and Sensitive Information Technology Resources.
We propose to add clause 1252.239-72, Compliance with Safeguarding
DOT Sensitive Data Controls, that would require contractors to
implement security requirements contained in clause 1252.239-74,
Safeguarding DOT Sensitive Data and Cyber Incident Reporting, for all
DOT sensitive data on all Contractor information systems that support
the performance of the contract. This clause would exclude contractor
information systems not part of an information technology service or
system operated on behalf of the Government. The offeror would be
required to represent that it will implement the security requirements
specified by National Institute of Standards and Technology (NIST)
Special Publication (SP) 800-171 ``Protecting Controlled Unclassified
Information in Nonfederal Information Systems and Organizations.'' This
clause would also specify procedures when the contractor proposes to
vary from any security requirements specified by NIST SP 800-171. This
clause would ensure compliance with NIST SP 800-171 requirements
imposed throughout the Federal Government.
We propose to add clause 1252.239-73, Limitations on the Use or
Disclosure of Third-Party Contractor Reported Cyber Incident
Information, as prescribed by 1239.7003(b), to provide six definitions
that would establish common meaning for terms used in the clause. The
clause identifies certain restrictions and conditions that apply to any
information the contractor receives or creates in the performance of
the contract, and it would set forth that a breach of obligations or
restrictions under the contract may subject a contractor to criminal,
civil, administrative, and contractual penalties and other appropriate
remedies and civil actions for damages and other appropriate remedies
by a third party that may report a cyber incident under the clause. It
would also require flowdown in subcontracts.
We propose to add clause 1252.239-74, Safeguarding DOT Sensitive
Data and Cyber Incident Reporting, as prescribed in 1239.7003(c). The
clause would provide 14 key definitions that would establish common
meaning and usage for the terms as used in the clause and outlines the
requirement for a contractor to provide adequate security on all
covered contractor information systems. The clause details the minimum
adequate security requirements; details that if the contractor intends
to use an external cloud service provider to store, process, or
transmit any DOT sensitive data in performance of this contract, the
contractor shall require and ensure that the cloud service provider
meets security requirements equivalent to those established by the
Government for the Federal Risk and Authorization Management Program
(FedRAMP) Moderate baseline (<a href="https://www.fedramp.gov/resources/documents/">https://www.fedramp.gov/resources/documents/</a>) and that the cloud service provider complies with
requirements in paragraphs (c) through (h) of the clause for cyber
incident reporting, malicious software, media preservation and
protection, access to additional information and equipment necessary
for forensic analysis, and cyber incident damage assessment. The clause
outlines in paragraphs (k) and (j) when certain information is
authorized to be released outside of DOT. It would require that
notwithstanding the safeguarding and cyber incident reporting required
by the clause, the contractor retains responsibility for other
safeguarding or cyber incident reporting pertaining to its unclassified
information systems as required by other applicable clauses of a
contract, or as a result of other applicable U.S. Government statutory
or regulatory requirements. The clause would also require flowdown to
subcontracts as required by paragraph (o). Subcontractors would be
required to notify the prime contractor (or next higher-tier
subcontractor) when submitting a request to vary from a NIST SP 800-171
security requirement to the contracting officer, and to provide the
incident report number, automatically assigned by DOT, to the prime
contractor (or next higher-tier subcontractor) as soon as practicable,
when reporting a cyber incident to DOT as required by the clause.
We propose to add clause 1252.239-75, DOT Protection of Information
About Individuals, PII, and Privacy Risk Management Requirements, as
prescribed by 1239.7104. The clause outlines the requirement for
contractors to comply with all applicable Federal law, guidance, and
standards, as well as DOT policies pertaining to the protection of
Personally Identifiable Information (PII), to the extent the contractor
creates, maintains, acquires, discloses, uses, or has access to PII
under the contract. The clause would require action on the part of the
[[Page 69472]]
contractor or the Government when there are unanticipated threats to
bring the situation to the attention of the other party. The clause
also contains requirements with respect to compliance with the Privacy
Act of 1974, including DOT implementing regulations at 49 CFR part 10,
as well as the requirement to protect Privacy Act records, to execute a
confidentiality agreement, and to surrender records when required. The
clause outlines the requirement to comply with NIST FIPS 140-2 and FIPS
199 to protect sensitive information, actions that are required in the
event of a breach to include reporting breaches involving PII directly
to DOT at a centrally manned reporting number within two hours of
discovery, the obligation to information employees and associates of
the obligations contained in the clause, training requirements for such
individuals, and the requirement to flowdown the clause to all
subcontracts.
We propose to add clauses 1252.239-76 through 1252.239-88 to comply
with clause requirements outlined for Federal agencies in accordance
with the Federal Risk and Authorization Management Program (FedRAMP), a
government-wide program that provides a standardized approach to
security assessment, authorization, and continuous monitoring for cloud
products and services:
We propose to add clause 1252.239-76, Cloud Computing Services, as
prescribed in 1239.7204(a). The clause outlines requirements
contractors must comply with when cloud computing services are used to
provide information technology services in the performance of the
contract. The clause provides nine key definitions for terms used in
the clause to provide common meaning and understanding. It would
require contractors to receive permission to use cloud computing
services under the contract if the offer did not provide or anticipate
such use. It would require contractors to implement and maintain
administrative, technical, and physical safeguards and controls with
the security level and services required in accordance with the DOT
Order 1351.37, Departmental Cybersecurity Policy, and the requirements
of DOT Order 1351.18, Departmental Privacy Risk Management Policy. It
would also require the contractor to maintain all Government data not
physically located on DOT premises within the United States, the
District of Columbia, and all territories and possessions of the United
States, unless the contractor receives written notification from the
contracting officer to use another location, in accordance with DOT
Policy. The clause outlines how DOT will determine the security
classification level for the cloud system, the requirement to comply
with certain FedRAMP standards, and the requirement to implement
privacy and security safeguards. The clause provides that the
Government may perform manual or automated audits, scans, reviews, or
other inspections of the vendor's IT environment being used to provide
or facilitate services for the Government. The clause also outlines
limitations on access to and use and disclosure of Government data and
Government-related data; cloud computing services cyber incident
reporting; spillage; malicious software; media preservations and
protection requirements; access to additional information or equipment
necessary for forensic analysis; cyber incident damage assessment
activities; and subcontract flowdown requirements. This clause would
ensure compliance with Federal-wide FedRAMP requirements and cloud
computing services standards and to ensure contractors who perform such
work for DOT are aware of the requirements.
We propose to add clause 1252.239-77, Data Jurisdiction, as
prescribed by 1239.7204(b), that would require contractors to identify
all data centers that the data at rest or data backup will reside,
including primary and replicated storage. It would also require the
contractor to ensure that all data centers not physically located on
DOT premises reside within the United States, the District of Columbia,
and all territories and possessions of the United States, unless
otherwise authorized by the DOT CIO.
We propose to add clause 1252.239-78, Validated Cryptography for
Secure Communications, as prescribed by 1239.7204(c), that would
require a contractor to use only cryptographic mechanisms that comply
with certain levels of FIPS 140-2 using a fill-in. It would also
require that external transmission or dissemination of certain
Government information to or from a Government computer must be
encrypted.
We propose to add clause 1252.239-79, Authentication, Data
Integrity, and Non-Repudiation, as prescribed in 1239.7204(d), that
would require the contractor to provide a cloud service system that
provides for origin authentication, data integrity, and signer non-
repudiation.
We propose to add clause 1252.239-80, Audit Record Retention for
Cloud Service Providers, as prescribed in 1239.7204(e), that would
require the contractor to manage their electronic records in accordance
with 36 CFR1236.20 and 1236.22, as well as other standards, including
NARA Bulletin 2008-05, July 31, 2008, Guidance concerning the use of
email archiving applications to store email. It would also require the
contractor to maintain records to retain functionality and integrity
throughout the records' full lifecycle.
We propose to add clause 1252.239-81, Cloud Identification and
Authentication (Organizational Users) Multi-Factor Authentication, as
prescribed in 1239.7204(f), that would require a contractor to support
a secure, multi-factor method of remote authentication and
authorization to identified Government Administrators that will allow
Government-designated personnel the ability to perform management
duties on the system.
We propose to add clause 1252.239-82, Identification and
Authentication (Non-Organizational Users), as prescribed in
1239.7204(g), that would require contractors to support a secure,
multi-factor method of remote authentication and authorization to
identified Contractor Administrators that will allow Contractor
designated personnel the ability to perform management duties on the
system as required by the contract.
We propose to add clause 1252.239-83, Incident Reporting
Timeframes, as prescribed in 1239.7204(h), that would require
contractors to report all computer security incidents to the DOT
Security Operations Center (SOC) in accordance with Subpart 1239.70--
Information Security and Incident Response Reporting. It also requires
contractors and subcontractors are required to report cyber incidents
directly to DOT via the DOT SOC 24 hours-a-day, 7 days-a-week, 365 days
a year.
We propose to add clause 1252.239-84, Media Transport, as
prescribed in 1239.7204(i), that would require the contractor to
document activities associated with the transport of DOT information
stored on digital and non-digital media and employ cryptographic
mechanisms to protect the confidentiality and integrity of this
information during transport outside of controlled areas. And it would
also require that DOT or other Federal agency sensitive or third-party
provided information that resides on mobile/portable devices (e.g., USB
flash drives, external hard drives, and SD cards) must be encrypted.
We propose to add clause 1252.239-85, Personnel Screening--
Background Investigations, as prescribed in 1239.7204(j), that would
require contractors to provide support
[[Page 69473]]
personnel who are U.S. persons maintaining a NACI clearance or greater
in accordance with OMB memorandum M-05-24, Section C. The clause also
outlines the requirement that contractor employees with access to DOT
systems containing sensitive information may be required to obtain
security clearances (i.e., Confidential, Secret, or Top Secret), and
provides how such investigations and documentation will be processed.
We propose to add clause 1252.239-86, Boundary Protection--Trusted
Internet Connections, as prescribed in 1239.7204(k), that would require
contractors to ensure that Federal information, other than non-
sensitive information, being transmitted from Federal government
entities to external entities using cloud services is inspected by
Trusted Internet Connections (TIC) processes or that all external
connections be routed through a Trusted Internet Connection (TIC).
We propose to add clause 1252.239-87, Protection of Information at
Rest, as prescribed in 1239.7204(l). The clause would require
contractors to provide security mechanisms for handling data at rest
and in transit in accordance with FIPS 140-2 and contains a contracting
officer fill-in for the encryption standard.
We propose to add clause 1252.239-88, Security Alerts, Advisories,
and Directives, as prescribed in 1239.7204(m). The clause would require
contractors to provide a list of contractor personnel, identified by
name and role, who are assigned system administration, monitoring, and/
or security responsibilities and are designated to receive security
alerts, advisories, and directives, as well as a similar list of
individuals responsible for the implementation of remedial actions
associated with them.
We propose to add clause 1252.239-89, Technology Modernization, as
prescribed in 1239.7303(a), that would, after contract award and when
applicable, permit the Government to solicit and the contractor to
propose independently, a modernization approach to the hardware,
software, specifications, or other requirements of the contract. This
would be permitted to increase efficiencies (both system and process
level), reduce costs, strengthen the cyber security posture, or for any
other purpose which presents an advantage to the Government. The clause
outlines proposal requirements, the process for withdrawal of a
proposal not adopted by contract modification within the period
specified in the proposal, as well as requirements for product testing,
contract modification issuance and use of change orders.
We propose to add clause 1252.239-90, Technology Upgrades/
Refreshment, as prescribed in 1239.7303(b). This clause would, after
issuance of the contract, allow the Government to solicit, and
encourage the Contractor to propose independently, technology
improvements to the hardware, software, specifications, or other
requirements of the contract. These improvements may be proposed to
save money, to improve performance, to save energy, to satisfy
increased data processing requirements, or for any other purpose that
presents a technological advantage to the Government. The clause
provides the requirement for a price or cost proposal to be included
with the proposed changes for evaluation, and the minimum information
required to be submitted to the contracting officer. It also provides
that the Government may wish to test and evaluate any item(s) proposed
and provides the procedures the Government will follow.
We propose to add clause 1252.239-91, Records Management, as
prescribed in 1239.7403, that would provide requirements for
contractors to comply with all applicable records management laws and
regulations, as well as National Archives and Records Administration
(NARA) records policies, including but not limited to the Federal
Records Act (44 U.S.C. chapters 21, 29, 31, 33), NARA regulations at 36
CFR Chapter XII Subchapter B, and those policies associated with the
safeguarding of records covered by Privacy Act of 1974 (5 U.S.C. 552a).
These policies include the preservation of all records, regardless of
form or characteristics, mode of transmission, or state of completion.
The clause outlines the applicability of the data that falls under the
purview of the clause, records maintenance requirements and custody
responsibilities, restrictions related to unauthorized disclosure, and
the requirement that the contractor shall not create or maintain any
records containing any non-public DOT information that are not
specifically authorized by the contract. It also provides information
on rights in data under the contract which are set forth in specific
clauses prescribed by FAR part 27 and included in the contract, and
requires that contractors must make any assertion of copyright in the
data or other deliverables under the contract and substantiate such
assertions; requires contractors to mark any data to which contractors
assert any rights; requires contractors to mark any data to which
contractors assert any rights; provides training requirements for
contractor employees and subcontractors; and requires flowdown of the
clause in all subcontracts.
We propose to add provision 1252.239-92, Information and
Communication Technology Accessibility Notice, as prescribed in
1239.203-70(a), that would provide notice to potential offerors that
any offeror responding to this solicitation must comply with
established DOT Information and Communication Technology (ICT)
(formerly known as Electronic and Information (EIT)) accessibility
standards. Information about Section 508 is available at <a href="https://www.section508.gov/">https://www.section508.gov/</a> or <a href="https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards">https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards</a>. The
provision provides notice that to facilitate the Government's
determination whether proposed ICT supplies and services meet
applicable Section 508 accessibility standards, offerors must submit
appropriate Section 508 Checklists, in accordance with the checklist
completion instructions. The purpose of the checklists is to assist DOT
acquisition and program officials in determining whether proposed ICT
supplies or information, documentation and services support conform to
applicable Section 508 accessibility standards. The provision states
that Section 508 accessibility standards applicable to the solicitation
are stated in the clause at 1252.239-81, Information and Communication
Technology Accessibility. This was benchmarked based on similar clauses
at other agencies and ensures that DOT provides the public notice of
important Section 508 requirements and how offerors must submit
information.
We propose to add clause 1252.239-94, Information and Communication
Technology Accessibility, as prescribed in 1239.203-70(b), that would
provide a key definition for the term ``Electronic and Information
Technology (EIT) to provide common meaning as used in the clause and
state that it is intended to refer to Information and Communication
Technology (ICT) and any successor terms used to describe such
technology. The clause would require that all EIT supplies,
information, documentation and services support developed, acquired,
maintained or delivered under the contract or order must comply with
the Information and Communication Technology (ICT) Standards and
Guidelines (see 36 CFR parts 1193 and 1194). It also states that
Section 508 accessibility standards applicable to the contract or order
are identified in the
[[Page 69474]]
Specification, Statement of Work, or Performance Work Statement. The
clause also provides that in the event a modification to the contract
or order adds new ICT supplies or services or revises the type of, or
specifications for, supplies or services, the contracting officer may
require that the contractor submit a completed Section 508 Checklist
and any other additional information necessary to assist the Government
in determining that the ICT supplies or services conform to Section 508
accessibility standards. It also provides that if the contract is an
indefinite-delivery type contract, a Blanket Purchase Agreement or a
Basic Ordering Agreement, the task/delivery order requests that include
ICT supplies or services will define the specifications and
accessibility standards for the order.
We propose to revise clause 1252.242-70, Dissemination of
Information--Educational Institutions, to make minor administrative
corrections in the title and to the TAR citation referencing the
prescription to comport with FAR drafting convention.
We propose to revise clause 1252.242-71, Contractor Testimony, to
make minor administrative corrections in the title and to the TAR
citation referencing the prescription to comport with FAR drafting
convention.
We propose to revise clause 1252.242-72, Dissemination of Contract
Information, to make minor administrative corrections in the title and
to the TAR citation referencing the prescription to comport with FAR
drafting convention.
We propose to remove clause 1252.242-73, Contracting officer's
technical representative, as the clause has been revised and moved to
TAR part 1201 as 1252.201-70, Contracting Officer's Representative.
We propose to add clause 1252.242-70, Contract Audit Support, as
prescribed in 1242.170, that would set forth that the Government may at
its sole discretion utilize certified public accountant(s) to provide
contract audit services in lieu of the cognizant government audit
agency to accomplish the contract administration requirements of FAR
parts 32 and 42 under the terms and conditions of the contract. It
would prohibit disclosure of proprietary financial data or use of such
data for any purpose other than to perform the required audit services.
And it would also detail that when the Government utilizes such
contract audit support under the contract, access to accounting
systems, records and data is required to be provided to the audit
services contractor like that provided to the cognizant government
auditor. This would provide the necessary notice to the contractor that
would permit such non-Government auditors to be utilized.
We propose to remove clause 1252.245-70, Government property
records. The prescription was removed at 1245.505-70 because the
requirement is outdated and in conflict with the updated FAR part 45.
The updated FAR part 45 provides that contractors may submit property
reports using standard commercial practice, and the cited DOT Form
4220.43, Contractor Report of Government Property, is not required to
be utilized. This results in potential savings to contractors who may
use existing standard commercial practices and eliminates the
requirement to use a specialized Government form.
We propose to add subpart 1252.3, Provision and Clause Matrix, and
the section 1252.301, Solicitation provisions and contract clauses
(Matrix). This section states the TAR matrix is not published in the
CFR. It is available on the <a href="http://Acquisition.gov">Acquisition.gov</a> website at <a href="https://www.acquisition.gov/TAR">https://www.acquisition.gov/TAR</a>. This is comparable to the FAR, which also does
not incorporate a matrix in the CFR. The matrix is a tool that explains
how and when prescribed provisions and clauses may be utilized in
accordance with the FAR or TAR, but is not codified and is not policy.
We propose to remove the TAR Provision and Clause Matrix, which is
currently reflected in the TAR part 1252 as an Appendix.
TAR Part 1253--Forms
We propose to revise the authority citations for part 1253, for the
reasons set forth in the discussion and analysis section, to read as
follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 1253.2, Prescription of Forms, and
section 1253.204, Administrative matters, to renumber the section and
title as 1253.204-70, Administrative matters--agency specific forms, to
make minor administrative correction to the TAR citation referencing
the form prescriptions and in the body of the text to comport with FAR
drafting conventions, and to make other non-substantive editorial
edits.
We propose to remove section 1253.222, Application of labor laws to
Government acquisitions, which would remove the prescription for the
use of Form DOT F 4220.7, Employee Claim for Wage Restitution from the
TAR. The requirement for use of this form is currently set forth in
subpart 1222.4, Labor Standards for Contracts Involving Construction,
and the underlying sections 1222.406, Administration and Enforcement,
and 1222.406-9, Withholding from or suspension of contract payments.
These provisions are also proposed for removal. Form DOT F 4220.7 would
only be used if an employee raises an issue with lack of payment of
wages by a contractor. DOT would investigate, with the Department of
Labor and in accordance with the policies and procedures referenced in
FAR 22.406-8--22.406-9. The form would not be submitted to or through a
contractor and thus is unnecessary as part of the TAR. Removal from the
TAR of these provisions, and thus the requirement to use Form DOT F
4220.7, does not impact the rights of employees or the requirement for
the Government to investigate labor standards violations in accordance
with the FAR as cited, nor for a DOT contracting officer to properly
take action under the contract to withhold funds as the investigation
warrants. The form would only be required and used outside of the
Government--contractor communication channels and directly with the
affected employee(s) to help them receive payment for any wages
adjudicated as owed. This scenario would only come into play if the
wage issues are not resolved by the contracting officer and the
contractor under the contract. It is a form the Government uses to pay
Government funds directly to employees when an investigation finds
wages are due and a contractor does not act under the contract to
remedy the issue. In this instance, the form would be used to provide
funds from the U.S. Treasury directly to the affected employee. Thus,
the process involving use of Form DOT F 4220.7 is outside of the TAR.
We propose to add 1253.227, Patents, data, and copyrights, as a
section title with no text, and to revise 1253.227, Conveyance of
invention rights acquired by the Government, to renumber the section
and title as 1253.227-3, Patent rights under Government contracts,
which more accurately conveys where in the TAR the applicable forms fit
within TAR part 1227. The revisions would make minor administrative
corrections to the TAR citation referencing the form prescriptions and
to the body of the text to comport with FAR drafting convention. We
also propose to update the form where the public may obtain a DD Form
882, Report of Inventions and Subcontracts, that is authorized for use
under DOT contracts.
We propose to remove 1253.245-70 Report of Government property,
because the form prescribed in the section is no longer in use. For DOT
to require its use
[[Page 69475]]
would be conflict with FAR part 45. This results in potential savings
to contractors who may use existing standard commercial practices and
eliminates the requirement to use a specialized Government form.
In subpart 1253.3, Illustration of Forms, we propose to revise the
subpart by retitling the subpart to read: ``Forms Used in
Acquisitions'' to comport with FAR subpart 53.3. We also propose to
revise 1253.303, Agency forms, to renumber it as 1253.303-70, and
retitle it as ``DOT agency forms.''
We propose to remove the ``Appendix to Subpart 1253.3 of Part
1253'' as unnecessary, to revise the text to clarify how the public may
access DOT agency forms, and to provide an updated website for the
Office of the Senior Procurement Executive.
We propose to add the Table header, ``Table 1253-1--Forms Use in
DOT Acquisitions'' above the existing table of DOT forms. In this table
we propose to remove the following rows, the reference to the forms,
and the related .pdf and word document links:
The second row and form titled, Employee Claim for Wage
Restitution,'' 4220.7 as the form prescription is removed in 1253.222,
Application of labor laws to Government acquisitions;
The third row and form titled, ``Contractor Report of Government
Property,'' 4220.43, as the prescription is removed in 1253.245-70
Report of Government property; and
The last row and the form titled, ``Report of Inventions and
Subcontracts and Instructions, DD Form 882. The Department of Defense
maintains their own accessible public-facing website where the form can
be obtained as indicated in the proposed section 1253.227-3.
Regulatory Reviews
Executive Order 12866 and 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts,
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has examined the
economic, interagency, budgetary, legal, and policy implications of
this regulatory action, and has determined that this rule is not a
significant regulatory action under E.O. 12866.
DOT's impact analysis can be found as a supporting document at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>, usually within 48 hours after the
rulemaking document is published.
Paperwork Reduction Act
This proposed rule includes provisions constituting collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that require approval by the Office of Management and Budget
(OMB). Accordingly, under 44 U.S.C. 3507(d), DOT has submitted a copy
of this rulemaking action to OMB for its review.
OMB assigns control numbers to collections of information it
approves. DOT may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. DOT is describing 12 collections of
information proposed in this rule under the TAR, 48 CFR part 1252,
Solicitation Provisions and Contract Clauses, that are related to 48
CFR part 1239, Acquisition of Information Technology:
<bullet> 48 CFR 1252.239-70, Security Requirements for Unclassified
Information Technology Resources.
<bullet> 48 CFR 1252.239-72, Compliance with Safeguarding DOT
Sensitive Data Controls.
<bullet> 48 CFR 1252.239-74, Safeguarding DOT Sensitive Data and
Cyber Incident Reporting.
<bullet> 48 CFR 1252.239-75, DOT Protection of Information About
Individuals, PII, and Privacy Risk Management Requirements.
<bullet> 48 CFR 1252.239-76, Cloud Computing Services.
<bullet> 48 CFR 1252.239-77, Data Jurisdiction.
<bullet> 48 CFR 1252.239-80, Audit Record Retention for Cloud
Service Providers.
<bullet> 48 CFR 1252.239-83, Incident Reporting Timeframes.
<bullet> 48 CFR 1252.239-85, Personnel Screening--Background
Investigations.
<bullet> 48 CFR 1252.239-88, Security Alerts, Advisories, and
Directives.
<bullet> 48 CFR 1252.239-89, Technology Modernization.
<bullet> 48 CFR 1252.239-90, Technology Upgrades/Refreshments.
If OMB does not approve the collections of information as
requested, DOT will immediately remove the provisions containing a
collection of information or take such other action as is directed by
OMB.
Comments on the collections of information contained in this
proposed rule should be submitted to the Office of Management and
Budget, Attention: Desk Officer for the Department of Transportation,
Office of Information and Regulatory Affairs, Washington, DC 20503,
with copies sent by mail or hand delivery to the U.S. Department of
Transportation, Office of the Chief Information Officer, Attn: Claire
Barrett, Room E31-312, 1200 New Jersey Avenue SE, Washington, DC 20590;
or email to <a href="/cdn-cgi/l/email-protection#452629242c37206b2724373720313105212a316b222a33"><span class="__cf_email__" data-cfemail="3b58575a52495e15595a49495e4f4f7b5f544f155c544d">[email protected]</span></a>; and email to www.regulations.gov.
Comments should indicate that they are submitted in response to ``RIN
2105-AE26--Streamline and Update the Department of Transportation
Acquisition Regulation (TAR Case 2020-001).''
OMB is required to make a decision concerning the collections of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed rule.
The Department considers comments by the public on proposed
collections of information in--
<bullet> Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
<bullet> Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
TAR Part 1239 related collections of information: Individual
summaries of collection of information, description of need for
information and proposed use of information, along with supporting
estimated data are described below. The total estimates related to PRA
and information collection burden on the public for the proposed rule,
to include the estimated burden hours, average number of respondents,
total estimated
[[Page 69476]]
annual responses, and total estimated annual reporting and
recordkeeping burden are provided below:
Total estimated burden hours: 2,006.
Estimated average number of respondents: 2,200.
Total estimated annual responses: 2,511.
Total estimated annual cost to all respondents (reporting and
recordkeeping burden): $66,398.60 (2,006 hours at $33.10 per hour). The
Bureau of Labor Statistics (BLS) gathers information on full-time wage
and salary workers. According to the latest (May 2019) available BLS
data, the mean hourly wage is $33.10 on BLS wage code--``15-1231
Computer Network Support Specialists.'' This information was taken from
the following website: <a href="https://www.bls.gov/oes/current/oes151231.htm">https://www.bls.gov/oes/current/oes151231.htm</a>.
Summary of Total Cost of ICR to Public
----------------------------------------------------------------------------------------------------------------
Average number Average annual OPM hourly Total annual
Clause Burden hours resp. resp. rate cost
----------------------------------------------------------------------------------------------------------------
1252.239-70................... 422 844 844 $33.10 $13,968.20
1252.239-72................... 21 41 41 33.10 695.10
1252.239-74................... 52 104 104 33.10 1,721.20
1252.239-75................... 622 311 622 33.10 20,588.20
1252.239-76................... 54 36 36 33.10 1,787.40
1252.239-77................... 71 142 142 33.10 2,350.10
1252.239-80................... 54 36 36 33.10 1,787.40
1252.239-83................... 18 36 36 33.10 595.80
1252.239-85................... 71 142 142 33.10 2,350.10
1252.239-88................... 71 142 142 33.10 2,350.10
1252.239-89................... 440 293 293 33.10 14,564.00
1252.239-90................... 110 73 73 33.10 3,641.00
---------------------------------------------------------------------------------
Total..................... 2,006 2,200 2,511
---------------------------------------------------------------------------------
Total Cost to All .............. ................ .............. .............. 66,398.60
Respondents (Sum of
all costs of all
clauses).............
----------------------------------------------------------------------------------------------------------------
The twelve clauses containing collections of information are
described below:
1252.239-70, Security Requirements for Unclassified Information
Technology Resources
The collection of information contained in section 1239.106-70,
Contract clauses, and part 1252 at proposed clause 1252.239-70, is
described immediately following this paragraph.
Summary of Collection of Information
We propose the use of 1252.239-70, Security Requirements for
Unclassified Information Technology Resources, as prescribed at
1239.106-70, Contract clauses.
Proposed revised TAR clause 1252.239-70, Security Requirements for
Unclassified Information Technology Resources, is required in all
solicitations and contracts for Information Technology (IT) services
and is intended to protect DOT information and information technology
by requiring contractors to be responsible for information technology
security for all systems connected to a DOT network or operated by the
contractor for DOT, regardless of location. This clause is applicable
to all or any part of the contract that includes information technology
resources or services in which the contractor has physical or
electronic access to DOT information that directly supports the mission
of DOT. DOT would use the information collection requirements to assess
the contractor's compliance with specific Federal and DOT IT security
requirements. The information collection requirement is necessary to
ensure DOT information and information systems are adequately
protected.
Description of Need for Information and Proposed Use of Information
Under Public Law 113-283, Federal Information Security
Modernization Act of 2014, each agency of the Federal Government must
provide security for the information and information systems that
support the operations and assets of the agency, including those
provided or managed by another agency, contractor, or other source.
To comply with Public Law 113-283, Federal Information Security
Modernization Act of 2014, DOT developed clause 1252.239-70, Security
Requirements for Unclassified Information Technology Resources. The
clause contains the following information collection requirements: An
IT Security Plan within 30 days after contract award, and IT Security
Accreditation and accompanying documents within 6 months of contract
award to include a Final Security Plan, a Risk Assessment, a Security
Test and Evaluation Plan, and a Disaster Recovery/Continuity of
Operations Plan.
Total Burden Hours: 422.
Average Number of Respondents: 844.
Average Annual Responses: 844.
----------------------------------------------------------------------------------------------------------------
x Number of responses Number of burden
Number of respondents per respondent x Number of minutes / By 60 min/hour hours
----------------------------------------------------------------------------------------------------------------
844 1 30 422
----------------------------------------------------------------------------------------------------------------
Note: DOT has estimated the number of respondents based on identified NAICS codes reflecting previous contract
awards averaged over the last three fiscal years--FY 2017, FY 2018, and FY 2019 where the clause may be
required. DOT estimates that in the future for a typical contract performance period estimated of five years,
the majority of the information collection requirements might be required in one of the years and thus
estimates 20% of the total average of contract awards represents the potential pool of number of respondents
who might submit an information collection requirement (ICR) response as shown below.
[[Page 69477]]
------------------------------------------------------------------------
(Respondents) Contract
NAICS code: (as shown below) award actions (average 3
FY)
------------------------------------------------------------------------
518210....................................... 196
541511....................................... 1,243
541512....................................... 911
541513....................................... 357
541519....................................... 1,355
561621....................................... 158
--------------------------
Total.................................... 4,220
------------------------------------------------------------------------
Basis for estimated number of respondents: Number of NAICS code
contract actions = 4220 x 20% estimated number of annual respondents
(based on typical five-year period of performance and ICR would be
submitted in first year of contract) = 844.
1252.239-72, Compliance With Safeguarding DOT Sensitive Data Controls
The collection of information contained in section 1239.7003,
Contract clauses, and part 1252 at proposed clause 1252.239-72, is
described immediately following this paragraph.
Summary of Collection of Information
We propose the use of 1252.239-72, Compliance with Safeguarding DOT
Sensitive Data Controls, as prescribed at 1239.7003, Contract clauses.
New proposed TAR clause 1252.239-72, Compliance with Safeguarding
DOT Sensitive Data Controls, requires contractors to provide to the
Government the submittal and approval(s) of current or previous NIST
800-171 Variance requests and approvals.
Clause 1252.239-72, Compliance with Safeguarding DOT Sensitive Data
Controls, is required to implement security requirements contained in
clause 1252.239-74, Safeguarding DOT Sensitive Data and Cyber Incident
Reporting, for DOT sensitive data on Contractor information systems
that support the performance of the contract. If the Offeror proposes
to vary from any security requirements specified by NIST SP 800-171 in
effect at the time the solicitation is issued or as authorized by the
Contracting Officer, the Offeror shall submit to the Contracting
Officer, for consideration by the DOT Chief Information Officer (CIO),
a written explanation of--(1) Why a particular security requirement is
not applicable; or (2) How the Contractor will use an alternative, but
equally effective, security measure to satisfy the requirements of NIST
SP 800-171. DOT would use the information collection requirements to
assess the contractor's compliance with specific Federal and DOT IT
security requirements. The information is necessary to ensure DOT
information and information systems are adequately protected.
Description of Need for Information and Proposed Use of Information
Under Public Law 113-283, Federal Information Security
Modernization Act of 2014, each agency of the Federal Government must
provide security for the information and information systems that
support the operations and assets of the agency, including those
provided or managed by another agency, contractor, or other source. To
comply with Public Law 113-283, Federal Information Security
Modernization Act of 2014, DOT developed clause 1252.239-72, Compliance
with Safeguarding DOT Sensitive Data Controls.
Total Burden Hours: 21.
Average Number of Respondents: 41.
Average Annual Responses: 41.
----------------------------------------------------------------------------------------------------------------
x Number of responses Number of burden
Number of respondents per respondent x Number of minutes / By 60 min/hour hours
----------------------------------------------------------------------------------------------------------------
41 1 30 21
----------------------------------------------------------------------------------------------------------------
Note: DOT has estimated the number of respondents based on
identified NAICS codes reflecting previous contract awards averaged
over the last three fiscal years--FY 2017, FY 2018, and FY 2019
where the clause may be required. DOT estimates that in the future
for a typical contract performance period estimated of five years,
the majority of the information collection requirements might be
required in one of the years and thus estimates 2% of the total
average of contract awards represents the potential pool of number
of respondents who might submit an information collection
requirement (ICR) response as shown below principally pertaining to
cyber incidents.
------------------------------------------------------------------------
(Respondents) contract
NAICS code: (as shown below) award actions (average 3
FY)
------------------------------------------------------------------------
518210....................................... 196
541199....................................... 12
541513....................................... 357
541618....................................... 60
541990....................................... 932
541110....................................... 335
561499....................................... 22
561621....................................... 158
--------------------------
2,072
------------------------------------------------------------------------
[[Page 69478]]
Basis for estimated number of respondents: Number of NAICS code
contract actions = 2072 x 2% estimated number of annual respondents
might submit a NIST 800-171 variance request or approval ICR = 41.
1252.239-74, Safeguarding DOT Sensitive Data and Cyber Incident
Reporting
The collection of information contained in section 1239.7003,
Contract clauses, and part 1252 at proposed clause 1252.239-74, is
described immediately following this paragraph.
Summary of Collection of Information
We propose the use of 1252.239-74, Safeguarding DOT Sensitive Data
and Cyber Incident Reporting, as prescribed at 1239.7003, Contract
clauses.
New proposed TAR clause 1252.239-74, Safeguarding DOT Sensitive
Data and Cyber Incident Reporting, requires contractors to provide to
the Government--
<bullet> Submittal and approval(s) of current or previous NIST 800-
171 Variance requests and approvals, along with subcontractor reporting
of the same;
<bullet> Cyber incident reporting and assessment; and subcontractor
reporting of the same;
<bullet> Submittal of malicious software; and
<bullet> Submittal of media images of known information systems and
relevant monitoring/packet capture data.
Clause 1252.239-74, Safeguarding DOT Sensitive Data and Cyber
Incident Reporting, requires that contractors shall provide adequate
security on all covered contractor information systems. To provide
adequate security, the contractor shall implement, at a minimum,
information security protections set forth in the clause. DOT would use
the information collection requirements to assess the contractor's
compliance with specific Federal and DOT IT security requirements. The
information is necessary to ensure DOT information and information
systems are adequately protected.
Description of Need for Information and Proposed Use of Information
Under Public Law 113-283, Federal Information Security
Modernization Act of 2014, each agency of the Federal Government must
provide security for the information and information systems that
support the operations and assets of the agency, including those
provided or managed by another agency, contractor, or other source. To
comply with Public Law 113-283, Federal Information Security
Modernization Act of 2014, DOT developed clause 1252.239-74,
Safeguarding DOT Sensitive Data and Cyber Incident Reporting.
Total Burden Hours: 52.
Average Number of Respondents: 104.
Average Annual Responses: 104.
----------------------------------------------------------------------------------------------------------------
x Number of responses Number of burden
Number of respondents per respondent x Number of minutes / By 60 min/hour hours
----------------------------------------------------------------------------------------------------------------
104 1 30 52
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
(Respondents) contract
NAICS code: (as shown below) award actions (average 3
FY)
------------------------------------------------------------------------
518210....................................... 196
541199....................................... 12
541513....................................... 357
541618....................................... 60
541990....................................... 932
541110....................................... 335
561499....................................... 22
561621....................................... 158
--------------------------
2,072
------------------------------------------------------------------------
Basis for estimated number of respondents: Number of NAICS code
contract actions = 2072 x 5% estimated number of annual respondents
might submit a NIST 800-171 variance request or approval ICR or report
and submittal of cyber incidents and associated submittals = 104.
1252.239-75, DOT Protection of Information About Individuals, PII, and
Privacy Risk Management Requirements
The collection of information contained in section 1239.7104,
Contract clause, and part 1252 at proposed clause 1252.239-75, is
described immediately following this paragraph.
Summary of Collection of Information
We propose the use of 1252.239-75, DOT Protection of Information
About Individuals, PII, and Privacy Risk Management Requirements, as
prescribed at 1239.7104, Contract clause.
New proposed TAR clause 1252.239-75, DOT Protection of Information
About Individuals, PII, and Privacy Risk Management Requirements,
contains the following information collection requirements from the
public:
<bullet> Notification/reporting of non-compliance with DOT data
protection standards with respect to Personally Identifiable
Information (PII).
<bullet> Notification of new or unanticipated threats or hazards,
or if existing safeguards have ceased to function.
<bullet> Execution and submittal of confidentiality agreements
(protection of PII).
<bullet> Notification and secure return of PII to Government when
any part of PII, in any form, the Contractor obtains from or behalf of
DOT ceases to be required by Contractor or upon termination of
contract, within ten (10) business days; or, at DOT's written request
to destroy, un-install and/or remove all copies of such PII and provide
certification that PII has been returned, or remove or destroyed; and
subcontractor certification of return of all records within 30 days of
subcontractor's completion of services.
[[Page 69479]]
<bullet> Breach reporting; and subcontractor breach reporting.
<bullet> Notification of subcontractor access to PII.
Clause 1252.239-75, DOT Protection of Information About
Individuals, PII, and Privacy Risk Management Requirements, requires
any contractor under a DOT contract that creates, maintains, acquires,
discloses, uses, or has access to PII in furtherance of the contract,
to comply with all applicable Federal law, guidance, and standards and
DOT policies pertaining to its protection. The clause requires
contractors to comply with the Privacy Act of 1974, 5 U.S.C. 552a, DOT
implementing regulations (49 CFR part 10), and DOT policies issued
under the Act in the design, development, and/or operation of any
system of records on individuals to accomplish a DOT function when the
contract specifically identifies the work that the contractor is to
perform. It imposes certain information collection requirements,
reporting, and submissions as outlined above.
[…truncated; see source link]Indexed from Federal Register on December 7, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.