Rule2022-19907
Streamline and Update the Department of Transportation Acquisition Regulation (TAR Case 2020-001)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 7, 2022
Effective
November 7, 2022
Issuing agencies
Transportation Department
Abstract
The Department of Transportation (DOT) is issuing a final rule amending the 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all parts of the regulation were reviewed to streamline the regulation, to revise or remove policy that has been superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance that is internal to DOT and move it to the Transportation Acquisition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 87, Number 194 (Friday, October 7, 2022)]
[Rules and Regulations]
[Pages 61152-61211]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19907]
[[Page 61151]]
Vol. 87
Friday,
No. 194
October 7, 2022
Part II
Department of Transportation
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48 CFR Chapter 12
Streamline and Update the Department of Transportation Acquisition
Regulation (TAR Case 2020-001); Final Rule
Federal Register / Vol. 87 , No. 194 / Friday, October 7, 2022 /
Rules and Regulations
[[Page 61152]]
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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: Final rule.
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SUMMARY: The Department of Transportation (DOT) is issuing a final rule
amending the 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regulation, to revise or remove policy that has been superseded by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: This rule is effective on November 7, 2022.
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. Please refer to TAR
Case 2020-001 in any written communications.
SUPPLEMENTARY INFORMATION:
Background
DOT published a proposed rule in the Federal Register at 86 FR
69452 on December 7, 2021, to amend the TAR to implement and/or
supplement the FAR. Please refer to the proposed rule for a discussion
of the reasons why DOT proposed the changes to the TAR described in
that rule document. DOT provided a 60-day comment period for the public
to respond to the proposed rule and submit comments. The public comment
period closed on February 7, 2022. DOT received no public comments on
the proposed rule.
The TAR has been substantially revised and streamlined to update
references to obsolete policies, procedures, and organizations, and to
incorporate electronic links to key references. Revisions to the TAR
were 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.
This rule adopts as a final rule the proposed rule published in the
Federal Register on December 7, 2021, except for technical non-
substantive changes to update terminology in accordance with FAR final
rules and other minor administrative amendments as shown in the
paragraphs that follow. This rule establishes a 2022 baseline edition
of the TAR.
Technical Non-Substantive Changes to the Rule
This rule makes the non-substantive changes to the proposed rule
described in the following paragraphs to provide clarity, eliminate
confusion, and ensure compliance with the Federal Acquisition
Regulation (FAR). Specifically, DOT is revising the term ``commercial
items'' to reflect either ``commercial products and commercial
services'' or ``commercial products or commercial services'' in
alignment with FAR final rule, Federal Acquisition Regulation: Revision
of Definition of ``Commercial Item'', RIN 9000-AN76, effective December
6, 2021 (86 FR 61017). There are 28 mentions of the legacy term
``commercial items'' that were identified in the TAR proposed rule
amendatory language in various TAR parts, subparts, and sections, to
include titles as well as the underlying text. The legacy term
``commercial items'' was also referenced in two FAR clause references
where the FAR title has also been revised because of the referenced FAR
final rule.
The TAR is also updating terminology under TAR part 1239,
Acquisition of Information Technology, and subpart 1239.2, to reflect a
FAR change in terminology from ``Electronic and Information
Technology'' to ``Information and Communication Technology.'' This
includes a change in the heading of subpart 1239.2 to correspond with
the new FAR subpart heading.
Accordingly, DOT is revising the TAR final rule to reflect the
updated terminology in accordance with the FAR final rules as reflected
in the amendatory text as follows (items number 1-14 below):
1. Under 48 CFR chapter 12, Transportation Acquisition Regulation,
Table of Contents, the title for TAR part 12, Acquisition of Commercial
Items, DOT is revising the title from ``Acquisition of Commercial
Items,'' to ``Acquisition of Commercial Products and Commercial
Services''.
2. Under TAR part 12, Acquisition of Commercial Items, DOT is
revising the title from ``Acquisition of Commercial Items,'' to
``Acquisition of Commercial Products and Commercial Services''.
3. Under TAR part 12, in the Table of Contents, subpart 1213.3, DOT
is revising the heading for subpart 1212.3 from ``Solicitation
Provisions and Contract Clauses for the Acquisition of Commercial
Items'' to read ``Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Products and Commercial Services.''
4. Under TAR part 12, in the Table of Contents, section 1212.301,
Solicitation provisions and contract clauses for the acquisition of
commercial items, DOT is revising the heading to read ``Solicitation
provisions and contract clauses for the acquisition of commercial
products and commercial services.''
5. At subpart 1212.3 DOT is revising the heading from
``Solicitation Provisions and Contract Clauses for the Acquisition of
Commercial Items'' to read ``Solicitation Provisions and Contract
Clauses for the Acquisition of Commercial Products and Commercial
Services.''
6. At section 1212.301, DOT is revising the heading from
``Solicitation provisions and contract clauses for the acquisition of
commercial items'' to read ``Solicitation provisions and contract
clauses for the acquisition of commercial products and commercial
services.''
7. Under section 1212.301, at paragraph (f), DOT is revising
``commercial items'' to read ``commercial products or commercial
services.''
8. Under section 1239.7003, Contract clauses, in paragraphs (a),
(b), and (c), where DOT sets forth the prescription to contract clauses
1252.239-72, Compliance with Safeguarding DOT Sensitive Data Controls;
1252.239-73, Limitations on the Use or Disclosure of Third-Party
Contractor Reported Cyber Incident Information; and 1252.239-74,
Safeguarding DOT Sensitive Data and Cyber Incident Reporting,
respectively, DOT is revising the phrase ``commercial items'' in each
prescription to read ``commercial products and commercial services.''
Additionally, in paragraph (b), in the prescription for clause
1252.239-73, Limitations on the Use or Disclosure of Third-Party
Contractor Reported Cyber Incident Information,
[[Page 61153]]
DOT is adding the word ``commercial'' before ``services'' in the last
sentence.
9. Under section 1239.7204, Contract clauses, in each of the
prescriptions in paragraphs (a) through (m), for clauses 1252.239-76,
Cloud Computing Services; 1252.239-77, Data Jurisdiction; 1252.239-78,
Validated Cryptography for Secure Communications; 1252.239-79,
Authentication, Data Integrity, and Non-Repudiation; 1252.239-80, Audit
Record Retention for Cloud Service Providers; 1252.239-81, Cloud
Identification and Authentication (Organizational Users) Multi-Factor
Authentication; 1252.239-82, Identification and Authentication (Non-
Organizational Users); 1252.239-83, Incident Reporting Timeframes;
1252.239-84, Media Transport; 1252.239-85, Personnel Screening--
Background Investigations; 1252.239-86, Boundary Protection--Trusted
internet Connections; 1252.239-87, Protection of Information at Rest;
and 1252.239-88, Security Alerts, Advisories, and Directives,
respectively, DOT is revising the phrase ``commercial items'' in each
prescription to read ``commercial products and commercial services.''
10. Under section 1252.232-71, Limitation of Government's
Obligation, paragraph (b), where it discusses incrementally funding
Contract Line Items Numbers (CLIN(s)), DOT is revising the heading of
the referenced FAR clause 52.214-4, ``Commercial Terms and Conditions--
Commercial Items,'' to read ``Commercial Terms and Conditions--
Commercial Products and Commercial Services.'' And in paragraph (e),
where it discusses the termination provisions and references FAR clause
52.212-4, the heading is also revised to reflect the new updated FAR
heading of ``Commercial Terms and Conditions--Commercial Products and
Commercial Services.''
11. Under section 1252.239-73, Limitations on the Use or Disclosure
of Third-Party Contractor Reported Cyber Incident Information, in
paragraph (c), Subcontract flowdown requirement, of the clause, DOT is
revising the phrase ``commercial items'' to read ``commercial products
or commercial services.''
12. Under section 1252.239-74, Safeguarding DOT Sensitive Data, and
Cyber Incident Reporting, in paragraph (o)(1) of the clause, DOT is
revising the phrase ``commercial items'' to read ``commercial products
or commercial services.''
13. Under section 1252.239-76, Cloud Computing Services, in
paragraph (j), Subcontract flowdown requirement, DOT is revising the
phrase ``commercial items'' to read ``commercial products or commercial
services.'' Additionally, DOT is revising the TAR final rule to revise
the use of the terminology from ``electronic and information technology
(EIT)'' to the FAR updated usage of ``Information and Communication
Technology'' as shown below in item number 14.
14. The following technical/administrative non-substantive
revisions to TAR subpart 1239.2 were made to reflect updated FAR
terminology:
a. Heading of subpart 1232.9 is revised from ``Electronic and
Information Technology'' to read ``Information and Communication
Technology.''
b. Under section 1239.201, Scope of subpart, the first sentence
referring to ``EIT'' is removed and ``Information and Communication
Technology (ICT)'' is used instead. The FAR was updated to reflect
``Information and Communication Technology'' and the TAR final rule
incorporates this new term and usage as well.
c. Under section 1239.203, Applicability, the phrase,
``Solicitations for information technology (information and
communication technology) or IT-related supplies and services may
require submission of a Section 508 Checklist . . .'' is revised to
read ``Solicitations for information and communication technology
supplies and services may require submission of a section 508 Checklist
. . .'' to align with the FAR usage of the updated terminology.
d. Under section 1252.239-93, Information and Communication
Technology Accessibility, paragraph (a), Definition, is removed in its
entirety. The term ``Electronic and Information Technology (EIT)''
supplies and services is no longer necessary because the FAR is updated
to reflect the usage of the phrase ``Information and Communication
Technology'' and the TAR final rule incorporates this new usage as
well.
15. Additionally, the following minor administrative corrections
were made to reflect appropriate citation references in accordance with
the U.S. Government Publishing Office (GPO) Style Manual and the FAR
Drafting Guide:
a. Under section 1201.104, paragraph (a), the reference to
``Chapter 12'' is revised to read ``chapter 12.''
b. Under section 1224.103, the reference ``49 CFR part 10'' is
revised to read ``49 CFR part 10.''
c. Under section 1224.203, the reference ``49 CFR part 7'' is
revised to read ``49 CFR part 7.''
d. Under section 1239.7402, paragraph (a), the reference to ``36
CFR Chapter XII Subchapter B'' is revised to read ``36 CFR chapter XII,
subchapter B.''
e. Under section 1252.239-75, DOT Protection of Information About
Individuals, PII, and Privacy Risk Management Requirements, paragraph
(c)(1), the reference to ``49 CFR part 10'' is revised to read ``49 CFR
part 10.''
f. Under section 1252.239-91, Records Management, paragraph (b),
the reference to ``36 CFR Chapter XII Subchapter B'' is revised to read
``36 CFR chapter XII, subchapter B''.
16. DOT also makes the following general non-substantive technical
and administrative updates to correct grammar or other sentence
formatting and structure, as well as to provide clarity to current DOT
policies and procedures:
a. Under section 1201.102-70, paragraph (a), the second sentence is
revised to read ``. . . and to ensure that the process embodies
fairness . . .'' in lieu of ``to embody fairness . . .''.
b. Under section 1201.105-2, Arrangement of regulations, in the
illustrations at paragraphs (c)(3)(iv) and (v), the TAR citations are
corrected to reflect the example citation of TAR 1201.105-2.
c. Under section 1201.301, Policy, paragraph (a)(1)(ii), the title
``Senior Executive'' is revised to read ``Senior Procurement
Executive.''
d. Under section 1201.301-70, Amendment of the Transportation
Acquisition Regulation, paragraph (a), we added a phrase at the end of
the email address to provide clarity that proposed changes ``must
include the following elements'' referring to paragraphs (a)(1) through
(4).
e. Under section 1201.301-71, Effective dates for Transportation
Acquisition Circulars (TACs), in paragraph (a), the word, ``or'' is
added between ``effective upon receipt'' or ``upon a specified date,''
to ensure proper sentence construction.
f. Under section 1203.204, Treatment of violations, ``DOT'' is
substituted for the referenced ``Government'' legal counsel in
paragraphs (a) and (c) to specify DOT legal counsel will provide advice
to heads of contracting activities.
g. Under section 1203.301, General, ``DOT'' is substituted for the
referenced ``Government'' legal counsel in paragraph (b).
h. Under section 1203.405, Misrepresentations or violations of the
Covenant Against Contingent Fees, ``DOT'' is substituted for the
referenced ``Government'' legal counsel in paragraph (a).
[[Page 61154]]
i. In section 1204.804-570, Supporting closeout documents, the
sentence is reconstructed to move the parenthetical reference referring
to paragraphs (a)(1) through (4) later in the sentence.
j. In section 1204.1301, Policy, the phrase ``or NIST issued
successor publications'' is removed as unnecessary.
k. Under section 1209.403, Definitions, minor revisions are made
for clarity--
(i) Under the definition ``DOT Order 4200.5G'' the phrase ``or its
successor'' is removed as unnecessary.
(ii) Under the definition ``Senior Accountable Official (SAO) for
Suspension and Debarment,'' the term ``departmental'' is removed, and
the phrase ``for the Department of Transportation'' is added to the
second sentence.
(iii) Under the definition ``Suspension and Debarment Coordinator
(SDC),'' the term ``Suspending and Debarring Official (SDO)'' is
spelled out to ensure clarity.
(iv) Under the definition ``Suspending and Debarring Official
(SDO),'' administrative edits to remove the spelled-out term for the
Office of the Secretary of Transportation is removed, and a website
address for where a list of DOT Operating Administration (OA)-appointed
SDOs is provided.
l. In section 1209.405, Effect of listing, in paragraph (e)(2), the
phrase ``that a compelling reason exists'' is revised to ``of
compelling reasons to''. And in paragraph (e)(3), the phrase ``that a
compelling reason exists'' is revised to ``of compelling reasons''.
m. In section 1209.406-1, General, paragraph (c), the word ``each''
is inserted before ``OA-appointed SDO . . .''.
n. In section 1209.406-3, Procedures, paragraph (d)(2), a comma
after ``The SDO reviews submittals'' is removed, and the word ``and''
is inserted.
o. In section 1209.407-3, Procedures, paragraph (d), in the second
sentence a comma after ``The SDO reviews submittals'' is removed and
the word ``and'' is inserted.
p. Under part 1213, Simplified Acquisition Procedures, in section
1213.7000, Applicability, in paragraph (a) the word ``also'' is removed
before the phrase ``applies to Standard Form (SF) 182, . . .''.
q. Under part 1219, Small Business Programs, in section 1219.7000,
General, the link has been updated to a more direct link to DOT's
mentor-prot[eacute]g[eacute] program material on the Office of Small
and Disadvantaged Business Utilization (OSDBU) website.
r. Under part 1223, Environment, Energy and Water Efficiency,
Renewable Energy Technologies, Occupational Safety, and Drug-Free
Workplace, in section 1223.7000, Contract clauses, paragraph (c), the
sentence is reconstructed to make the prescription clear by moving the
condition to the front of the sentence that the clause prescribed shall
be inserted ``in all solicitations and contracts exceeding the
simplified acquisition threshold, . . .''.
s. Under part 1232, Contract Financing, in section 1232.770-4,
Policy, paragraph (a)(1), the word ``or'' is added in the second
sentence after ``DOT''. And in paragraph (a)(6), the word ``an'' is
added before ``individual''.
t. In section 1232.7003, Payment system registration, the two
sentences that comprised the proposed text of the section are removed
as they may duplicate some of the language as stated in section
1232.7002(a). The section heading is retained to reflect the coverage
in the underlying subsections.
u. In section 1235.010-70, Scientific and technical reports--
acquisition, publication and dissemination, we are removing the section
in its entirety as it is unnecessary. The FAR adequately covers content
in this area, though DOT may consider adopting an agency-specific
policy.
v. In section 1235.070, Research misconduct, in paragraph (a), we
have included a link to the cited DOT Deputy Secretary Memorandum,
Implementation of Departmental Scientific Integrity Policy, April 10,
2012, and have removed a reference to an outdated policy document. Note
that DOT intends to update its scientific integrity policies and the
TAR as necessary consistent with the Presidential Memorandum on
Restoring Trust in Government Through Scientific Integrity and
Evidence-Based Policymaking (Jan. 27, 2021).
w. Under part 1237, Service Contracting, in section 1237.110-70,
Contract clauses, in paragraph (a), the word ``and,'' is added after
``Government facilities''.
17. General non-substantive technical updates to the proposed rule
pertaining to part 1239, Acquisition of Information Technology. The
following non-substantive minor administrative corrections were made to
correct grammar or other sentence formatting and structure, as well as
to provide clarity to current DOT policies and procedures:
a. In section 1239.000, Scope of part, DOT is removing the phrase
``information technology-related services and'' after the word
``including'' as it is duplicative to the earlier part of the sentence.
b. In section 1239.101-70-3, Policy, the section is revised
slightly to clarify it by adding ``products or services supporting
the'' before the word ``development'' and the word ``software'' after
DOT.
c. In section 1239.7001, Definitions, under the definition for
``DOT sensitive data'' the word ``as'' is removed after ``unclassified
information''.
d. In section 1239.7203, DOT FedRAMP specific requirements,
paragraph (b), Digital signature cryptography--(authentication, data
integrity, and non-repudiation), DOT has added ``(1-4)'' after the
phrase, ``contracting officers shall specify what level'' to denote
those FIPS 140-2 (1-4) levels referenced in paragraph (a). In paragraph
(d), Cloud identification and authentication (organizational users)
multi-factor authentication, the phrase ``or successor publications''
is removed after the FIPS 201-2, Personal Identity Verification (PIV)
of Federal Employees and Contractors reference as it is unnecessary to
include the phrase. In paragraph (e), the phrase ``are required to'' is
removed as it is redundant. In paragraph (i), the word ``who'' is
inserted in the first sentence before the phrase ``shall undergo
required DOT background investigations . . .'' to correct grammar.
e. In section 1239.7204, Contract clauses, in paragraph (h), the
prescription for clause 1252.239-83 is revised be removing the words
``all services'' before the phrase ``solicitations and contracts,'' and
the word ``and'' is removed before ``for information technology
services . . .'' as both are unnecessary. In paragraph (k), the word
``all'' is removed before ``solicitation and contracts,'' as
unnecessary.
f. In section 1239.7302, Policy, the word ``will'' is removed as
unnecessary.
g. In section 1239.7400, Scope of subpart, the last word in the
section ``exists'' is revised to ``exist.''
h. In section 1239.7402, Policy, paragraph (a)(1), the phrase ``the
Federal Records Act'' is removed as an incorrect title reference, and
the word ``and'' is added in the citation references. In paragraph
(a)(2), the phrase ``the Federal Records Act'' is removed as an
incorrect title reference, and the phrase ``records management laws
and'' is inserted after ``relevant'' and the words ``statute or'' is
removed, and an ``s'' is added to regulations, and the comma is removed
after ``regulation'' so the latter part of the sentence now reads: ``.
. . only as permitted by relevant records management laws and
regulations . . .''.
[[Page 61155]]
In paragraph (a)(3), the citation for 36 CFR part 1230 is corrected by
adding the word ``part'' as shown. In paragraph (a)(4), the phrase ``,
is properly protected'' is removed at the end of the first sentence.
i. In section 1239.7403, Contract clause, the word ``or'' is
removed before the word ``disseminate'' so the end of the sentence now
reads: ``. . . associates collect, access, maintain, use, disseminate
or otherwise handle Federal records.''
18. Additional general non-substantive technical updates to the
proposed rule that follow part 1239 follow. These also include the
following non-substantive minor administrative corrections to correct
grammar or other sentence formatting and structure, as well as to
provide clarity to current DOT policies and procedures:
a. Under part 1242, Contract Administration and Audit Services, in
section 1242.302, Contract administration functions, paragraph (a), the
word ``either'' is removed before ``the cognizant government auditing
agency,'' as unnecessary. In paragraph (a)(13), the acronym ``OA'' is
moved after ``cognizant'' in the second sentence.
b. Under part 1246, Quality Assurance, in section 1246.101-70,
Additional definitions, under the definition ``Major acquisition'' the
word ``also'' is removed before ``for information technology or
information technology related acquisitions, . . .'' as unnecessary.
c. In section 1246.706-70, Warranty terms and conditions--
requirements, in paragraph (a)(9), the word ``and'' is added after
``(e.g., delivery, acceptance, in-service date)'', the word ``ending''
is revised to read ``end'', the word ``period'' is added after
``warranty'', and the word ``specify'' is added before
``circumstances'' in order to provide better clarity to the flow of the
sentence and meaning. In paragraph (b)(1), the word ``that'' is
substituted for ``which.'' In paragraph (b)(3), at the beginning of the
sentence the word ``The'' is removed and replaced with ``A'' so it
reads ``A warranty provided . . .''.
d. Under part 1247, Transportation, in section 1247.506,
Procedures, the long run-on sentence is broken up by adding a period
after ``are not available'' and the words ``MARAD can also'' is added
to start the next sentence, and the words ``and they can'' are removed.
19. Finally, in parts 1252 and 1253 these technical non-substantive
revisions are reflected in the following provisions, clauses, or form
prescription published in the proposed rule. These also include the
following non-substantive minor administrative corrections to correct
grammar or other sentence formatting and structure, as well as to
provide clarity to current DOT policies and procedures:
a. In section 1252.204-70, Contractor Personnel Security and Agency
Access, under paragraph (a), Definitions, the following definitions had
minor administrative or grammatical updates: ``Contractor employee''
and ``Identification card (or ``ID Card'').'' In paragraph (b), the
words ``each level'' was added so the text before the list of levels
now reads ``and each level includes the prior levels''. In paragraph
(f), Background investigation and adjudication, ``PIV-1'' is corrected
to reflect ``PIV-I''.
b. In section 1252.209-71, Limitation of Future Contracting, in
paragraph (c)(2), the word ``remains'' is revised to use ``remain'' in
the phrase ``. . . if these data remain proprietary or confidential, .
. .''.
c. In section 1252.217-72, Performance, in paragraph (d), the words
``or not'' are removed before ``the Contractor''.
d. In section 1252.217-73, Inspection and Manner of Doing Work,
paragraph (e)(9), the singular word ``valve'' is revised to reflect
``valves.''
e. In section 1252.217-76, Liability and Insurance, paragraph
(b)(3)(i)(C) is revised to add ``regardless of'' before ``whether'' and
to remove ``or not'' after ``whether'' in both instances. In paragraph
(c)(2), in the last sentence the word ``does'' is deleted, and the
singular word ``apply'' is revised to ``applies''. This corrects the
grammar and readability of the sentence. In paragraph (f)(3), the word
``in'' is removed before ``the conduct of suits'' in the first sentence
so the end of the sentence now reads: ``. . . attendance of witnesses,
and the conduct of suits.''
f. In section 1252.222-72, Contractor Cooperation in Equal
Employment Opportunity and Anti-Harassment Investigations, in paragraph
(a), Definitions, under the definition ``Good faith cooperation,''
paragraph (3), the words ``the course of'' are deleted before ``EEO'',
and in paragraph (5) under that definition, the term ``the Merit
Systems Protection Board'' is spelled out. In paragraph (b), the term
``Equal Employment Opportunity'' is removed and the acronym ``EEO''
remains.
g. In section 1252.223-73, Seat Belt Use Policies and Programs, we
are removing a reference to a public-private partnership organization
promoting traffic safety. DOT retains a reference to a DOT traffic
safety website.
h. In section 1252.228-70, Loss of or Damage to Leased Aircraft,
the phrase ``as it wishes'' is removed and the phrase ``in its
discretion'' is used in its place as more appropriate terminology.
i. In section 1252.232-70, Electronic Submission of Payment
Requests, paragraph (c), the words ``For vendors'' is removed in the
third sentence and replaced with ``Vendors'' and the words ``they will
be'' are also removed and replace with ``are'' so the sentence reads
more clearly now as ``Vendors submitting invoices are required . . .''.
In paragraph (d), the phrase at the beginning of the sentence ``In
order to'' is removed and replaced with ``To'' so the start of the
sentence now reads ``To receive payment . . .''. And in paragraph (g),
the last sentence removes ``has been'' after ``DELPHI'' and adds the
word ``is'' so it now reads at the beginning of the sentence, ``If
DELPHI is succeeded by later technology . . .''.
j. In section 1252.235-70, Research Misconduct, in paragraph
(c)(2), the word ``or'' is removed before ``knowingly'' so it now
reads: ``The misconduct must have been committed intentionally,
knowingly, or recklessly; and . . .''. In paragraph (f)(3)(i), the text
is removed in its entirety as duplicative of a similarly worded
paragraph in (h) and thus unnecessary; the clarifying sentence is moved
to paragraph (h). The text in paragraph (f)(3)(ii) is moved up into
paragraph (f)(3) and the designation of (ii) is removed as unnecessary.
k. In section 1252.235-71, Technology Transfer, in paragraph
(a)(5), the word ``of'' is removed before ``interest'' and the word
``interest'' is revised to ``interested'' so it now reads as follows at
the end of the sentence, ``stakeholders most likely to be interested in
the commercialization of the research outputs;''. In paragraph (a)(7),
the Contracting Officer fill-in is moved to the end of the sentence.
l. In section 1252.237-70, Qualifications of Contractor Employees,
in paragraph (a) the first sentence is revised to add ``is proprietary
data or'' before ``if subject to unauthorized access,'' and is removed
from later in the sentence for clarity. In paragraph (b), the word
``or'' is inserted before ``sensitive information or resources''. And
in paragraph (c), the word ``of'' is inserted before ``those
employees.''
m. In section 1252.239-70, Security Requirements for Unclassified
Information Technology Resources, paragraph (b), in the last sentence,
the word ``and'' is removed after ``. . . in accordance with Federal
and DOT policies and procedures,'' and the word ``,which'' is added
after ``as amended during the terms of this contract,'' and word
``and'' is removed before ``include''.
[[Page 61156]]
n. In section 1252.239-72, Compliance with Safeguarding DOT
Sensitive Data Controls, paragraph (c), DOT added the reference to
``Revision 2'' to the NIST 800-171 reference and title and updated a
new direct link to the cited publication at <a href="http://nist.gov">nist.gov</a>. We also added in
the Revision 2 (Rev. 2) reference in the clause at paragraphs (d) and
(e).
o. In section 1252.239-74, Safeguarding DOT Sensitive Data and
Cyber Incident Reporting, we revised the wording in paragraph (a) under
the definition for ``Adequate security'' to remove ``balance and''
before the phrase ``are commensurate'', to remove ``impact and'' before
``consequences'', to add the words ``and probability'' after
``consequences'', and to delete the word ``the'' before ``loss,
misuse''. In paragraphs (b)(2)(i) through (iv), references are updated
and an updated link is provided. In paragraph (b)(2)(v), the word
``to'' is removed before ``have an alternate'' so the end of the
sentence now reads ``. . . to be nonapplicable, or have an alternative,
but equally effective, security measure that may be implemented in its
place.'' In paragraph (b)(2)(vi), the words ``the Contractor'' is added
after ``Contracting Officer when'' to clarify who is doing the
requesting and ``requesting'' is revised to ``request''. The end of the
sentence now reads as follows: ``. . . a copy of that approval shall be
provided to the Contracting Officer when the Contractor requests its
recognition under this contract.'' In paragraph (c)(1)(i), the word
``that'' is removed after ``DOT sensitive data'' in the second
sentence, and the words ``whether the incident'' is added and
``affect'' is revised to ``affects'' so the end of the last/second
sentence now reads: ``. . . in order to identify compromised DOT
sensitive data or whether the incident affects the Contractor's ability
to provide operationally critical support; and . . .''. And in
paragraph (o), Subcontract flowdown requirements, the reference to NIST
SP 800-171 is updated to add ``Rev. 2.''
p. In section 1252.239-75, DOT Protection of Information About
Individuals, PII, and Privacy Risk Management Requirements, paragraph
(n), Subcontract flowdown requirements, paragraph (n)(1), the word
``its'' is removed before ``provisions relating to'' and the word
``and'' is deleted before ``Breach Notification''.
q. In section 1252.239-76, Cloud Computing Services, paragraph
(b)(4), the reference to NIST Special Publication 800-53 is updated to
reflect ``Revision 5.'' In paragraph (b)(6)(ii), the phrase ``DOT
Order'' is revised to add an ``s'' and to add ``containing''
immediately afterward so it now reads: ``. . . FedRAMP and DOT Orders
containing cybersecurity and privacy policies.'' In paragraph (g), an
``s'' is added to ``discover'' and ``isolate'' so the beginning of the
sentence now reads ``The Contractor or subcontractor(s) that discovers
and isolates malicious software. . . .''.
r. In section 1252.239-77, Data Jurisdiction, in the first sentence
the words ``in which'' are added after ``all data centers'' and the
word ``that'' is deleted before ``the data'' so the beginning of the
sentence now reads ``The Contractor shall identify all data centers in
which the data at rest or data backup will reside, . . .''.
s. In section 1252.239-81, Cloud Identification and Authentication
(Organizational Users) Multi-Factor Authentication, at the end of the
last sentence the phrase ``or NIST successor publications'' is removed
as unnecessary.
t. In section 1252.239-84, Media Transport, paragraph (a)(1) is
reconstructed to remove ``that is transported outside of controlled
areas'' after ``that require protection'' and a revised phrase of
``when transported outside of controlled areas;'' is added at the end
of the sentence. In paragraph (b), the phrase ``must ensure
accountability'' is removed at the end of the first sentence as it is
redundant to a similar phrase earlier in the sentence.
u. In section 1252.239-85, Personnel Screening--Background
Investigations, an updated active link is provided to a website
containing the referenced Office of Management and Budget (OMB)
memorandum.
v. In section 1252.239-88, Security Alerts, Advisories, and
Directives, the words ``who are'' are added before ``assigned system
administration, . . .'' and the word ``who'' is added after the words,
``and/or security responsibilities and who are . . .''.
w. In section 1252.239-89, Technology Modernization, the word
``or'' is added before ``strengthen the cyber security posture'' in the
second sentence.
x. In section 1252.239-91, Records Management, paragraph (b)(1),
the words ``the Federal Records Act'' is removed as an incorrect title
reference, and the word ``and'' is inserted in the citation reference
chapters for 44 U.S.C. And in paragraph (b)(2), the words ``other'' is
inserted before ``relevant statute'' at the end of the paragraph, ``s''
is added to ``statute'' and ``regulation'' so it now reads at the end
of the last sentence: ``. . . ``other relevant statutes or regulations,
. . .''. And in paragraph (d), the word ``The'' is added to start the
sentence before ``Contractor'' in the second and third sentence.
y. In sections 1252.239-92, Information and Communication
Technology Accessibility Notice, and 1252.239-93, Information and
Communication Technology Accessibility, an updated link to the
<a href="http://www.section508.gov">www.section508.gov</a> site is provided in each.
z. Under part 1253, Forms, in section 1253.204-70, Administrative
matters--agency specified forms, paragraph (b), DOT is providing the
link to the DOT website where forms may be obtained and removing
reference to an appendix as the forms controlled by DOT are provided at
the linked website.
These minor technical nonsubstantive revisions will ensure DOT's
updated regulation is clear and contains the most recent citations,
references, links, and current procedures.
The Department emphasizes that, in addition to the changes
finalized in this rulemaking, it continues to track 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 American 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
[[Page 61157]]
use this public input to inform how DOT implements such guidance in the
TAR.
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.
Paperwork Reduction Act
This final rule includes provisions constituting new 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 submitted the
information collections to OMB for review and approval. No comments
were received on the proposed collections of information. 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 directed by OMB.
Notwithstanding any other provision of law, no person shall be
subject to any penalty for failing to comply with a collection of
information that does not display a valid OMB control number.
Regulatory Flexibility Act
DOT expects that the overall impact of the rule would benefit small
businesses because the updated TAR, among other things, revised
outdated information, removed extraneous procedural information that
applies only to DOT's internal operating procedures, and removed policy
or procedures duplicative of FAR requirements. Any additional costs
associated with the rule, such as costs to implement the substantive
new and revised requirements concerning information technology security
provisions of the Federal Information Security Management Act of 2002
(FISMA) (Title III of the E-Government Act of 2002 (E-Gov Act)) can be
factored into the contract price. On this basis, the Secretary hereby
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities as they are defined in
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant
to 5 U.S.C. 605(b), the initial and final regulatory flexibility
analysis requirements of sections 603 and 604 do not apply.
While based on the foregoing, DOT has determined that the agency is
not required to prepare a Final Regulatory Flexibility Analysis (FRFA),
DOT has prepared a FRFA that is summarized here. No comments were
received by the agency on the proposed rule or on the summary of the
Initial Regulatory Flexibility Analysis.
Final Regulatory Flexibility Analysis
This Final Regulatory Flexibility Analysis has been prepared
consistent with 5 U.S.C. 604.
1. Statement of the Need for, and the Objectives of, the Rule
DOT is issuing a final rule amending the Transportation Acquisition
Regulation (TAR) to implement updates to the TAR, remove extraneous
procedural information that applies only to DOT's internal operating
procedures, and remove policy or procedures duplicative of FAR
requirements. The rule also includes substantive new and revised
requirements concerning information technology (IT) security provisions
of the Federal Information Security Management Act of 2002 (FISMA)
(Title III of the E-Government Act of 2002 (E-Gov Act)). FISMA requires
agencies to identify and provide information security protections
commensurate with security risks to Federal information collected or
maintained for the agency and information systems used or operated on
behalf of an agency by a contractor. The Federal Acquisition Regulatory
Council (FAR Council) contemplated in their previous FAR rules on IT
that subsequent supplemental policymaking at the agency level may have
some impact on small business entities, because FISMA requires that
agencies establish IT security policies commensurate with agency risk
and potential for harm and that meet certain minimum requirements. The
impact on small entities was understood to be variable depending on the
agency implementation. Based on a review of the potential impact on
small business entities, DOT has determined that the requirements
specified in the rule are inherent to successful performance on any
Federal contract.
In addition to updating the TAR to remove outdated information,
remove extraneous procedural information that applies only to DOT's
internal operating procedures, and to remove policy or procedures
duplicative of FAR requirements, the rule implements the IT security
provisions of the FISMA. Section 301 of FISMA (44 U.S.C. 3544) requires
that contractors be held accountable to the same security standards as
Government employees when collecting or maintaining information or
using or operating information systems on behalf of an agency. Security
is to be considered during all phases of the acquisition life cycle.
FISMA requires that agencies establish IT security policies
commensurate with agency risk and potential for harm and that meet
certain minimum requirements. Agencies are further required, through
the Chief Information Officer (CIO) or equivalent, to assure compliance
with agency security policies. The law requires that contractors and
Federal employees be subjected to the same requirements in accessing
Federal IT systems and data.
2. Statement of the Significant Issues Raised by the Public Comments in
Response to the Initial Regulatory Flexibility Analysis, a Statement of
the Assessment of the Agency of Such Issues, and a Statement of any
Changes Made to the Rule as a Result of Such Comments
There were no public comments on the proposed rule, and there were
no significant issues or comments raised by the public in response to
the initial regulatory flexibility analysis.
3. The Response of the Agency to any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Proposed Rule, and a Detailed Statement of any Change Made to
the Proposed Rule in the Final Rule as a Result of the Comments
No comments were filed in response to the proposed rule.
4. Description of and, Where Feasible, Estimate of the Number of Small
Entities to Which the Rule Will Apply
To estimate the number of small businesses who could potentially be
impacted by the rule, DOT identified contract award actions across key
North American Industry Classification
[[Page 61158]]
System (NAICS) codes that could be affected for three fiscal years--FY
2017, 2018, and 2019 as set forth in the table below. DOT focused on
businesses that could be impacted by the revisions to part 1239,
Acquisition of Information Technology, because of the potential costs
resulting from the associated Paperwork Reduction Act information
collection burdens, the cost of which may be assessed by businesses and
included in any proposed price for performance under any awarded
contract.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NAICS NAICS description FY 2017 FY 2018 FY 2019 Total Average
--------------------------------------------------------------------------------------------------------------------------------------------------------
518210.................................... Data Processing, Hosting, 172 177 238 587 196
and Related Services.
541199.................................... All Other Legal Services.... 9 12 15 36 12
541511.................................... Custom Computer Programming 896 1,964 870 3,730 1,243
Services.
541512.................................... Computer Systems Design 754 942 1,036 2,732 911
Services.
541513.................................... Computer Facilities 385 358 329 1,072 357
Management Services.
541519.................................... Other Computer Related 1,270 1,440 1,355 4,065 1,355
Services.
541618.................................... Other Management Consulting 86 53 40 179 60
Services.
541990.................................... All Other Professional, 947 1,002 848 2,797 932
Scientific, and Tech. Svcs..
561110.................................... Office Administrative 373 352 279 1,004 335
Services.
561499.................................... All Other Business Support 20 20 25 65 22
Services.
561621.................................... Security Systems Services... 187 142 146 475 158
-------------------------------------------------------------------------------
Total.................... 5,099 6,462 5,181 16,742 5,581
--------------------------------------------------------------------------------------------------------------------------------------------------------
As shown, DOT awarded over 16,742 contracts for IT or IT-related
services during FY 2017 through FY 2019. To estimate the number of
small businesses potentially impacted by the rule, DOT notes that in FY
2019, the department achieved a 37.12% goal of overall awards to all
small business concerns across all NAICS and all operating
administrations. Using this figure to project the potential impact to
small business entities who may be affected by the rule, the Department
estimates that these businesses could be awarded 10%-25% of such work,
or up to 4,186 contracts awarded to small businesses.
DOT received no comments from the public based on these estimates.
To ensure our original estimates remain roughly the same, we pulled
additional data for FY 2020 and FY 2021. Because DOT recognizes that
the ongoing COVID-19 pandemic during that period may skew that data and
its overall utility, we retain the data estimates from FY 2017-FY 2019
as shown above, and provide the updated information experienced in FY
2020 and FY 2021 below:
----------------------------------------------------------------------------------------------------------------
NAICS NAICS description FY 2020 FY 2021 Total Average
----------------------------------------------------------------------------------------------------------------
518210.................. Data Processing, 336 525 861 431
Hosting, and Related
Services.
541199.................. All Other Legal 19 21 40 20
Services.
541511.................. Custom Computer 769 750 1519 760
Programming Services.
541512.................. Computer Systems 998 1092 2,090 1045
Design Services.
541513.................. Computer Facilities 334 248 582 291
Management Services.
541519.................. Other Computer Related 1280 1181 2461 1231
Services.
541618.................. Other Management 49 35 84 42
Consulting Services.
541990.................. All Other 1247 1263 2510 1255
Professional,
Scientific, and Tech.
Svcs..
561110.................. Office Administrative 251 183 434 217
Services.
561499.................. All Other Business 31 34 65 33
Support Services.
561621.................. Security Systems 231 135 366 183
Services.
---------------------------------------------------------------
Total.............. 5,545 5,467 11,012 5,508
----------------------------------------------------------------------------------------------------------------
The data from FY 2020 and FY 2021 reveal that small businesses that
might potentially be impacted by the rule actually decreased. DOT
awarded over 16,742 contracts for IT or IT-related services during FY
2017 through FY 2019, but for FY 2020 and FY 2021, the same number of
IT or IT-related services equated to 11,012. To estimate the number of
small businesses potentially impacted by the rule, DOT notes that in FY
2020, the department achieved a 34.05% goal of overall awards to all
small business concerns across all NAICS and all operating
administrations. The decrease in small business contract awards could
be attributed to nationwide economic disruptions particularly to small
businesses during the beginning of the COVID-19 pandemic. Using this
updated figure to project the potential impact to small business
entities who may be affected by the final rule, the Department
estimates that these businesses could be awarded 10%--25% of such work,
or up to 2,753 contracts awarded to small businesses and thus the
impact to such businesses is decreased.
5. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including An Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
The revised recordkeeping and reporting requirements and estimated
impacts were described in the Paperwork Reduction Act (PRA) section of
the proposed rule and associated supporting statements are on file with
the Office of Information and Regulatory
[[Page 61159]]
Affairs, the Office of Management and Budget. Those requirements and
estimated impacts are incorporated into this FRFA by reference.
6. Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule
DOT considered whether any other alternatives would reduce the
impact on small businesses but concluded that the rule is necessary for
consistency with the FAR, for FISMA compliance, and to ensure the
information security and integrity of DOT information and information
systems. Many of the provisions of the rule are intended to align with
the FAR, update outdated procedures, remove internal operational
procedures thus streamlining regulation, which could also potentially
reduce the impact on small entities complying with the TAR.
Section 610 Review
As noted in the Department's portion of the Spring 2022 Unified
Agenda, this final rule satisfies the Department's periodic review
requirement pursuant to the Regulatory Flexibility Act, 5 U.S.C. 610.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 (UMRA) requires, at 2
U.S.C. 1532, that agencies prepare an assessment of anticipated costs
and benefits before issuing any rule that may result in the expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. DOT has determined that this final rule
would have no such effect on State, local, and tribal governments or on
the private sector. Therefore, the analytical requirements of UMRA do
not apply.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 1201
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 1203
Conflict of interest, Government procurement.
48 CFR Parts 1202, 1204, 1205, 1206, 1207, 1209, 1211, 1212, 1213,
1215, 1216, 1217, 1223, 1224, 1233, 1236, 1237, 1239, 1252, and 1253
Government procurement.
48 CFR Part 1219
Government procurement, Small businesses.
48 CFR Part 1222
Government procurement, Labor.
48 CFR Part 1227
Copyright, Government procurement, Inventions and patents.
48 CFR Part 1228
Government procurement, Insurance, Surety bonds.
48 CFR Parts 1231, 1232, and 1242
Accounting, Government procurement.
48 CFR Part 1235
Government procurement, Research.
48 CFR Part 1246
Government procurement, Warranties.
48 CFR Part 1247
Government procurement, Transportation.
Signed on or around September 2, 2022.
Polly E. Trottenberg,
Deputy Secretary, Department of Transportation.
0
For the reasons set out in the preamble, DOT amends title 48 of the
Code of Federal Regulations by revising chapter 12 to read as follows:
CHAPTER 12--DEPARTMENT OF TRANSPORTATION
SUBCHAPTER A--GENERAL
PART 1200 [RESERVED]
PART 1201 FEDERAL ACQUISITION REGULATIONS SYSTEM
PART 1202 DEFINITIONS OF WORDS AND TERMS
PART 1203 IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
PART 1204 ADMINISTRATIVE AND INFORMATION MATTERS
SUBCHAPTER B--ACQUISITION PLANNING
PART 1205 PUBLICIZING CONTRACT ACTIONS
PART 1206 COMPETITION REQUIREMENTS
PART 1207 ACQUISITION PLANNING
PART 1209 CONTRACTOR QUALIFICATIONS
PART 1211 DESCRIBING AGENCY NEEDS
PART 1212 ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 1213 SIMPLIFIED ACQUISITION PROCEDURES
PART 1214 [RESERVED]
PART 1215 CONTRACTING BY NEGOTIATION
PART 1216 TYPES OF CONTRACTS
PART 1217 SPECIAL CONTRACTING METHODS
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 1219 SMALL BUSINESS PROGRAMS
PART 1222 APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 1223 ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
PART 1224 PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 1227 PATENTS, DATA, AND COPYRIGHTS
PART 1228 BONDS AND INSURANCE
PART 1231 CONTRACT COST PRINCIPLES AND PROCEDURES
PART 1232 CONTRACT FINANCING
PART 1233 PROTESTS, DISPUTES, AND APPEALS
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 1234 [RESERVED]
PART 1235 RESEARCH AND DEVELOPMENT CONTRACTING
PART 1236 CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
PART 1237 SERVICE CONTRACTING
PART 1239 ACQUISITION OF INFORMATION TECHNOLOGY
PART 1241 [RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 1242 CONTRACT ADMINISTRATION AND AUDIT SERVICES
PART 1245 [RESERVED]
PART 1246 QUALITY ASSURANCE
PART 1247 TRANSPORTATION
SUBCHAPTER H--CLAUSES AND FORMS
PART 1252 SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 1253 FORMS
PARTS 1254-1299 [RESERVED]
Subchapter A--General
PART 1200 [RESERVED]
PART 1201--FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 1201.1--Purpose, Authority, Issuance
Sec.
1201.101 Purpose.
[[Page 61160]]
1201.102-70 DOT statement of guiding principles for Department of
Transportation Acquisition System.
1201.104 Applicability.
1201.105 Issuance.
1201.105-1 Publication and code arrangement.
1201.105-2 Arrangement of regulations.
1201.105-3 Copies.
1201.106 OMB approval under the Paperwork Reduction Act.
Subpart 1201.2--Administration
1201.201 Maintenance of the FAR.
1201.201-1 The two councils.
Subpart 1201.3--Agency Acquisition Regulations
1201.301 Policy.
1201.301-70 Amendment of the Transportation Acquisition Regulation.
1201.301-71 Effective dates for Transportation Acquisition Circulars
(TACs).
1201.301-72 Transportation Acquisition Circular numbering.
1201.304 Agency control and compliance procedures.
Subpart 1201.470--Deviations from the FAR and TAR
1201.403 Individual deviations.
1201.404 Class deviations.
Subpart 1201.6--Career Development, Contracting Authority, and
Responsibilities
1201.602 Contracting officers.
1201.602-2 Responsibilities.
1201.602-3 Ratification of unauthorized commitments.
1201.603 Selection, appointment, and termination of appointment of
contracting officers.
1201.603-1 General.
1201.604 Contracting Officer's Representative (COR).
1201.604-70 Contract clause
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1201.1--Purpose, Authority, Issuance
1201.101 Purpose.
The Department of Transportation (DOT), Transportation Acquisition
Regulation (TAR), establishes uniform acquisition policies and
procedures that implement and supplement the Federal Acquisition
Regulation (FAR). The TAR provides regulatory or policy instruction
when coverage is needed for DOT-specific subject matter not covered in
the FAR. The TAR also includes policy statements that DOT considers
important to both internal and external TAR audiences. The
Transportation Acquisition Manual (TAM) contains internal operating
procedures, providing supplementary guidance and instructions for
carrying out FAR and TAR requirements.
1201.102-70 DOT statement of guiding principles for the Department of
Transportation Acquisition System.
(a) Vision. The TAR applies to all Department acquisitions unless
otherwise excluded by statute. DOT strives to make its acquisition
process effective, efficient, and transparent, and to ensure that the
process embodies fairness and Governmentwide best practices.
(b) Mission. The TAR is a key component of DOT's acquisition
process and is designed to provide clear and current regulatory and
policy oversight to supplement or support implementation of the FAR.
(c) Role of the Office of the Senior Procurement Executive. The
Office of the Senior Procurement Executive (OSPE) applies leadership
and best-in-industry acquisition practices to establish acquisition
policies and procedures. The OSPE supports the DOT's mission by
providing timely, effective, and ethical business policies, practices,
products, innovative programs, strategies, and services.
1201.104 Applicability.
(a) Applicable statutes, the FAR, 48 CFR chapter 1, and the TAR, in
this chapter, apply to all acquisitions within the Department unless
otherwise specifically excluded by statute, the FAR, or the TAR.
(b) The following order of precedence applies to resolve any
question of applicability concerning an acquisition regulation or a
procedure found within the TAR, or the TAM which comprises the
Department's internal operating procedures and guidance--
(1) U.S. Statutes;
(2) The FAR;
(3) The TAR;
(4) DOT Orders; and
(5) The TAM.
(c) The Maritime Administration may depart from the requirements of
the FAR and TAR as authorized by 40 U.S.C. 113(e)(15), but shall adhere
to those regulations to the maximum extent practicable. Deviations from
the FAR or TAR requirements shall be documented according to Maritime
Administration procedures or in each contract file, as appropriate.
(d) The FAR, TAR, and TAM do not apply to the Federal Aviation
Administration as provided by 49 U.S.C. 40110(d).
(e) For purposes of the FAR, TAR, and TAM, the Office of the
Assistant Secretary for Research and Technology shall have the same
authority as an Operating Administration as defined in 1202.1, and the
Assistant Secretary for Research and Technology shall have the same
authority as a Head of the Operating Administration as defined in
1202.1.
1201.105 Issuance.
1201.105-1 Publication and code arrangement.
(a) The TAR is published or available in--
(1) The Federal Register;
(2) Cumulative form in the CFR; and
(3) Online via the internet at <a href="https://www.acquisition.gov/tar">https://www.acquisition.gov/tar</a>.
(b) The TAR is issued as this chapter.
1201.105-2 Arrangement of regulations.
(a) General. The TAR, which encompasses both Department and
Operating Administration (OA)/Office of the Assistant Secretary for
Research and Technology (OST-R)-specific guidance (see subpart 1201.3),
conforms with the arrangement and numbering system prescribed by FAR
1.104. Guidance that is OA-specific contains the OA's acronym directly
after the heading.
(b) Numbering--(1) Department-wide guidance. (i) The numbering
illustrations at FAR 1.105-2(b) apply to the TAR.
(ii) Coverage within the TAR is identified by the prefix ``12''
followed by the complete TAR citation. For example, 1201.201-1(b).
(iii) Coverage in the TAR that supplements the FAR will use part,
subpart, section, and subsection numbers ending in ``70'' through
``89'' (e.g., 1201.301-70). A series of numbers beginning with ``70''
is used for provisions and clauses.
(iv) Coverage in the TAR, other than that identified with a ``70''
or higher number, that implements the FAR uses the identical number
sequence and caption of the FAR segment being implemented, which may be
to the paragraph level. Paragraph numbers and letters are not always
shown sequentially, but may be shown by the specific FAR paragraph
implemented. For example, TAR 1201.201-1 contains only paragraph (b)
because only this paragraph, correlated with the FAR, is implemented in
the TAR.
(2) Operating Administration-unique guidance. Supplementary
material for which there is no counterpart in the FAR or TAR shall be
identified using chapter, part, subpart, section, or subsection numbers
of ``90'' and higher.
(c) References and citations. The Department of Transportation
Acquisition Regulation may be referred to as the TAR. Cross reference
to the FAR in the TAR will be cited by ``FAR'' followed by the FAR
numbered citation, and cross reference to the TAM in the
[[Page 61161]]
TAR will be cited by ``TAM'' followed by the TAM numbered citations.
References to specific citations within the TAR will be referenced by
the numbered citation only, e.g., 1201.105-3.
(3) Using the TAR coverage at 1201.105-2(b) as a typical
illustration, reference to the--
(i) Part would be ``TAR part 1201'' outside the TAR and ``part
1201'' within the TAR.
(ii) Subpart would be ``TAR subpart 1201.1'' outside the TAR and
``subpart 1201.1'' within the TAR.
(iii) Section would be ``TAR 1201.105'' outside the TAR and
``1201.105'' within the TAR.
(iv) Subsection would be ``TAR 1201.105-2'' outside the TAR and
``1201.105-2'' within the TAR.
(v) Paragraph would be ``TAR 1201.105-2(b)'' outside the TAR and
``1201.105-2(b)'' within the TAR.
1201.105-3 Copies.
(a) Copies of the TAR as published in Federal Register and as set
forth in the CFR may be purchased from the Government Publishing Office
(GPO), U.S. Government Online Bookstore on the internet at <a href="https://bookstore.gpo.gov/">https://bookstore.gpo.gov/</a>.
(b) The TAR and Transportation Acquisition Circulars (TACs) are
available on the internet at <a href="https://www.acquisition.gov">https://www.acquisition.gov</a>.
1201.106 OMB approval under the Paperwork Reduction Act.
The information collection and recordkeeping requirements contained
in the TAR have been approved by the Office of Management and Budget
(OMB). Details concerning any TAR- related OMB approved control numbers
are specified in the TAM.
Subpart 1201.2--Administration
1201.201 Maintenance of the FAR.
1201.201-1 The two councils.
(b) The Senior Procurement Executive is responsible for providing a
DOT representative to the Civilian Agency Acquisition Council (CAAC).
Subpart 1201.3--Agency Acquisition Regulations
1201.301 Policy.
(a)(1) Acquisition regulations--(i) Department-wide acquisition
regulations. The Department of Transportation's (DOT's) Senior
Procurement Executive (SPE) is the individual having authority to issue
or authorize the issuance of agency regulations that implement or
supplement the FAR to include agency-unique policies, procedures,
contract clauses, solicitation provisions, and forms that govern the
contracting process. This authority is re-delegated from the Assistant
Secretary for Administration to the SPE.
(ii) Operating Administration (OA) acquisition regulations. OA
supplemental acquisition regulations proposed to be inserted in the TAR
as a TAR supplement regulation shall be reviewed and approved by the
SPE. If approved by the SPE, the Office of the Senior Procurement
Executive will prepare the rule for publication in the Federal Register
in accordance with FAR 1.501. OA regulations may be more restrictive or
require higher approval levels than those required by the TAR unless
otherwise specified.
(2) Acquisition procedures. The SPE issues or authorizes the
issuance of internal agency guidance at any organizational level. DOT
internal operating procedures are contained in the TAM. OA procedures
necessary to implement or supplement the FAR, TAR, or TAM may be issued
by the head of the contracting activity (HCA), who may delegate this
authority to any organizational level deemed appropriate. OA procedures
may be more restrictive or require higher approval levels than those
permitted by the TAM unless otherwise specified.
(b) The authority of the agency head under FAR 1.301(b) to
establish procedures to ensure that agency acquisition regulations are
published for comment in the Federal Register in conformance with the
procedures in FAR subpart 1.5 is delegated to the Office of the General
Counsel, Assistant General Counsel for Regulation.
1201.301-70 Amendment of the Transportation Acquisition Regulation.
(a) Changes to the TAR may be the result of recommendations from
internal DOT personnel, other Government agencies, or the public.
Proposed changes shall be submitted in the following format to the
Office of the Senior Procurement Executive (OSPE), 1200 New Jersey
Avenue, SE, Washington, DC 20590 or <a href="/cdn-cgi/l/email-protection#21656e756042505448524855484e4f714e4d48425861454e550f464e57"><span class="__cf_email__" data-cfemail="32767d66735143475b415b465b5d5c625d5e5b514b72565d461c555d44">[email protected]</span></a> and
must include the following elements:
(1) Problem. Succinctly state the problems created by current TAR
language and describe the factual or legal reasons necessitating
regulatory change.
(2) Recommendation. Identify the recommended change by using the
current language (if applicable) and striking through the proposed
deleted words with a horizontal line. Insert proposed language in bold
and brackets. If the change is extensive, reflect proposed deleted
language in strikethrough and proposed new or revised language with
complete paragraphs in bold and brackets.
(3) Discussion. Explain why the change is necessary and how it will
solve the problem. Address any cost or administrative impact on
Government activities, offerors, and contractors, to include potential
impact to small businesses. Provide any other information and
documents, such as statutes, legal decisions, regulations, and reports,
that may be helpful.
(4) Point of contact. Provide a point of contact who can answer
questions regarding the recommendation.
(b) The TAR is maintained by the SPE through the TAR/TAM change
process. This process consists of input from various DOT elements
including representatives from DOT OAs specifically designated to
formulate Departmental acquisition policies and procedures.
(c) Transportation Acquisition Circulars (TACs) (see 1201.301-72)
will be used to publish the TAR throughout DOT.
1201.301-71 Effective dates for Transportation Acquisition Circulars
(TACs).
(a) Effective dates set forth in TACs. Unless otherwise stated in
the body of TACs, statements to the effect that the policy or
procedures are ``effective upon receipt,'' or ``upon a specified
date,'' or that changes set forth in the document are ``to be used upon
receipt,'' mean that any new or revised provisions, clauses,
procedures, or forms must be included in solicitations, contracts, or
modifications issued thereafter.
(b) Effective dates for in-process acquisitions. Unless expressly
directed by statute or regulation, solicitations in process or
negotiations that are completed when a TAC is issued are not required
to include or insert new requirements, forms, clauses, or provisions,
as may be set forth in a TAC. However, the chief of the contracting
office must determine that it is in the best interest of the Government
to exclude the new information and the determination and findings must
be included in the contract file.
1201.301-72 Transportation Acquisition Circular numbering.
Transportation Acquisition Circulars (TACs) will be numbered
consecutively on a fiscal year basis beginning with number ``01''
prefixed by the last two digits of the fiscal year (e.g., TACs 21-01
and 21-02 indicate the first two TACs issued in fiscal year 2021).
[[Page 61162]]
1201.304 Agency control and compliance procedures.
(a) DOT shall control the proliferation of acquisition regulations
and any revisions thereto (except as noted in paragraph (b) of this
section) by using an internal TAR change process.
(b) Specific OA-unique regulations will not be processed through
the TAR/TAM change process but shall be reviewed by OA legal counsel
and submitted to the OSPE for review and approval. (See 1252.101 for
additional instructions pertaining to provisions and clauses.)
Subpart 1201.470--Deviations From the FAR and TAR
1201.403 Individual deviations.
The head of the contracting activity (HCA), or designee with a rank
that is no lower than that of a Senior Executive Service (SES)
official, may authorize individual deviations to the FAR and TAR,
unless FAR 1.405(e) applies.
1201.404 Class deviations.
The SPE may authorize and approve class deviations from the FAR and
TAR, unless FAR 1.405(e) applies.
Subpart 1201.6--Career Development, Contracting Authority, and
Responsibilities
1201.602 Contracting officers.
1201.602-2 Responsibilities.
(d) 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.
1201.602-3 Ratification of unauthorized commitments.
(b) Policy. DOT policy requires that all procurement decisions
shall be made only by Government officials having authority to carry
out such acquisitions. Procurement decisions made by other than
authorized personnel are contrary to Departmental policy and may be
considered matters of serious misconduct on the part of the employee
making an unauthorized commitment. Disciplinary action against an
employee who makes an unauthorized commitment may be considered.
1201.603 Selection, appointment, and termination of appointment for
contracting officers.
1201.603-1 General.
Each DOT OA is responsible for appointing its contracting officers.
Each HCA shall appoint one Chief of the Contracting Office (COCO) for
each OA. Individuals designated as COCOs are considered contracting
officers and shall be appointed by their respective HCA. The HCA may
select, appoint, and terminate the appointment of contracting officers.
The HCA may re-delegate this authority to a level no lower than that of
the COCO.
1201.604 Contracting Officer's Representative (COR).
1201.604-70 Contract clause.
The contracting officer shall 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 for firm-fixed-
price solicitations and contracts when appointment of a contracting
officer's representative is anticipated.
PART 1202--DEFINITIONS OF WORDS AND TERMS
Subpart 1202.1--Definitions
Sec.
1202.101 Definitions.
Subpart 1202.70--Abbreviations
1202.7000 General.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1202.1--Definitions
1202.101 Definitions.
Agency Advocate for Competition means the Deputy Assistant
Secretary for Administration.
Agency, Federal agency, or Executive agency, as used in the TAR,
means the Department of Transportation (DOT).
Chief Financial Officer (CFO) is the principal fiscal advisor to
the Secretary of DOT responsible for providing leadership, advice, and
guidance in the development, implementation, and administration of
DOT's budget, financial management, and performance management.
Chief Information Officer is the principal information technology
(IT), cyber security, privacy, and records management advisor to the
Secretary, and is the final authority on these matters within the
Department.
Chief of the Contracting Office (COCO) means the individual(s)
responsible for managing the contracting office(s) within an Operating
Administration.
Contracting activity includes all the contracting offices within an
Operating Administration and is the same as the term ``procuring
activity.''
Contracting officer means an individual authorized by virtue of
their position or by appointment to perform the functions assigned by
the Federal Acquisition Regulation (FAR), the Transportation
Acquisition Regulation (TAR), and Transportation Acquisition Manual
(TAM).
Department of Transportation (DOT) means, when referring to the
various suborganizations and components of DOT, all of the Operating
Administrations, as defined in the TAR/TAM, included within DOT.
Head of the agency or Agency head for Departmental procurement
means the Deputy Secretary except for acquisition actions that, by the
terms of a statute or delegation, must be done specifically by the
Secretary of Transportation.
Head of the contracting activity (HCA) means the individual
responsible for managing the contracting offices within an Operating
Administration who is a member of the Senior Executive Service except
for the HCA within the Great Lakes St. Lawrence Seaway Development
Corporation (GLS), which shall be an individual no lower than one level
above the COCO. The term HCA is the same as the term ``head of the
procuring activity.''
Head of the Operating Administration (HOA) means the individual
appointed by the President to manage the DOT operating administration.
Operating Administration (OA) means the following components of
DOT--
(1) Federal Aviation Administration (FAA) (FAA is exempt from FAR,
TAR, and TAM pursuant to the Department of Transportation and Related
Agencies Appropriations Act, 1996 (Pub. L. 104-50));
(2) Federal Highway Administration (FHWA);
(3) Federal Motor Carrier Safety Administration (FMCSA);
(4) Federal Railroad Administration (FRA);
(5) Federal Transit Administration (FTA);
(6) Maritime Administration (MARAD);
(7) National Highway Traffic Safety Administration (NHTSA);
(8) Office of the Secretary of Transportation (OST);
(9) Pipeline and Hazardous Materials Safety Administration (PHMSA);
(10) Great Lakes St. Lawrence Seaway Development Corporation (GLS);
and
(11) Office of the Assistant Secretary for Research and Technology
(OST-R).
Small Business Specialist (SBS) means the individual appointed by
each HCA to assist the Director, Office of Small and Disadvantaged
Business Utilization in carrying out the purpose of the Small Business
Act.
Senior Procurement Executive (SPE) means the Director of the Office
of the Senior Procurement Executive.
[[Page 61163]]
Subpart 1202.70--Abbreviations
1202.7000 General.
The following abbreviations or acronyms may be used throughout the
TAR and the agency's associated internal policies and procedures in the
TAM--
Table 1 to 1202.7000--Abbreviations and Acronyms
------------------------------------------------------------------------
------------------------------------------------------------------------
CFO............................... Chief Financial Officer.
CIO............................... Chief Information Officer.
COCO.............................. Chief of the Contracting Office.
COR............................... Contracting Officer's
Representative.
D&F............................... Determination and Findings.
FOIA.............................. Freedom of Information Act.
HCA............................... Head of the Contracting Activity.
HOA............................... Head of the Operating
Administration.
J&A............................... Justification and Approval.
OA................................ Operating Administration.
OIG............................... Office of the Inspector General.
OSDBU............................. Office of Small and Disadvantaged
Business Utilization.
PCR............................... Procurement Center Representative.
RFP............................... Request for Proposal.
SBA............................... Small Business Administration.
SBS............................... Small Business Specialist.
SPE............................... Senior Procurement Executive.
------------------------------------------------------------------------
PART 1203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 1203.1--Safeguards
Sec.
1203.101-3 Agency regulations.
Subpart 1203.2--Contractor Gratuities to Government Personnel
1203.203 Reporting suspected violations of the Gratuities clause.
1203.204 Treatment of violations.
Subpart 1203.3--Reports of Suspected Antitrust Violations
1203.301 General.
1203.303 Reporting suspected antitrust violations.
Subpart 1203.4--Contingent Fees
1203.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 1203.5--Other Improper Business Practices
1203.502-2 Subcontractor kickbacks.
Subpart 1203.7--Voiding and Rescinding Contracts
1203.703 Authority.
Subpart 1203.9--Whistleblower Protections for Contractor Employees
1203.906 Remedies.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1203.1--Safeguards
1203.101-3 Agency regulations.
(a) Standards of Ethical Conduct for Employees of the Executive
Branch, 5 CFR part 2635, and the Supplemental Standards of Ethical
Conduct for Employees of the Department of Transportation, 5 CFR part
6001, apply to all DOT employees.
Subpart 1203.2--Contractor Gratuities to Government Personnel
1203.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations of the Gratuities clause shall be reported
to the contracting officer responsible for the acquisition (or the
Chief of the Contracting Office (COCO) if the contracting officer is
suspected of the violation). The contracting officer (or COCO) shall
obtain from the person reporting the violation, and any witnesses to
the violation, the following information--
(1) The date, time, and place of the suspected violation;
(2) The name and title (if known) of the individual(s) involved in
the violation; and
(3) The details of the violation (e.g., the gratuity offered or
intended) to obtain a contract or favorable treatment under a contract.
(b) The person reporting the violation and witnesses (if any)
should be requested to sign and date the information certifying that
the information furnished is true and correct. The COCO shall report
suspected violations to the Office of the Inspector General (OIG), 1200
New Jersey Avenue SE, Washington, DC 20590, with a copy to General
Counsel and the OA's Chief Counsel.
1203.204 Treatment of violations.
(a) The HCA is authorized to determine whether a Gratuities clause
violation has occurred. If the HCA has been personally and
substantially involved in the procurement, DOT legal counsel advice
should be sought to determine if a substitute for the HCA should be
designated.
(b) The COCO shall ensure that the contractor is afforded the
hearing procedures required by FAR 3.204(b). Government legal counsel
should be consulted regarding the appropriateness of the hearing
procedures.
(c) If the HCA determines that the alleged gratuities violation
occurred during the ``conduct of an agency procurement'', the COCO
shall consult with DOT legal counsel regarding the approach for
appropriate processing of either the Procurement Integrity Act
violation and/or the Gratuities violation.
Subpart 1203.3--Reports of Suspected Antitrust Violations
1203.301 General.
(b) The same procedures contained in 1203.203 shall be followed for
suspected antitrust violations, except reports of suspected antitrust
violations shall be coordinated with DOT legal counsel for referral to
the Department of Justice, if deemed appropriate.
1203.303 Reporting suspected antitrust violations.
(b) The same procedures contained in 1203.203 shall be followed for
suspected antitrust violations, except reports of suspected antitrust
violations shall be coordinated with legal counsel for referral to the
Department of Justice, if deemed appropriate.
[[Page 61164]]
Subpart 1203.4--Contingent Fees
1203.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) The same procedures contained in 1203.203 shall be followed for
reporting the attempted or actual exercise of improper influence,
misrepresentation of a contingent fee arrangement, or other violation
of the Covenant Against Contingent Fees (see FAR 52.203-5), except
reports of misrepresentation or violations of the Covenant Against
Contingent Fees shall be coordinated with DOT legal counsel for
referral to the Department of Justice, if deemed appropriate.
Subpart 1203.5--Other Improper Business Practices
1203.502-2 Subcontractor kickbacks.
(g) The same procedures contained in 1203.203 shall be followed for
reporting a violation of 41 U.S.C. chapter 87, Kickbacks.
Subpart 1203.7--Voiding and Rescinding Contracts
1203.703 Authority.
(a) 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 (18 U.S.C. 218), in
which there has been a final conviction for bribery, conflict of
interest, or any other violation of 18 U.S.C. 201-224.
(b) The Head of the Operating Administration (HOA) is authorized to
make determinations, in accordance with FAR 3.703(b)(2).
Subpart 1203.9--Whistleblower Protections for Contractor Employees
1203.906 Remedies.
(a) The HCA is authorized to make determinations and take actions
under FAR 3.906(a).
(b) The HCA is authorized to take actions under FAR 3.906(b).
PART 1204--ADMINISTRATIVE AND INFORMATION MATTERS
Subpart 1204.1--Contract Execution
Sec.
1204.103 Contract clause.
Subpart 1204.5--Electronic Commerce in Contracting
1204.502 Policy.
Subpart 1204.8--Government Contract Files
1204.801 General.
1204.804 Closeout of contract files.
1204.804-5 Procedures for closing out contract files.
1204.804-570 Supporting closeout documents.
Subpart 1204.9--Taxpayer Identification Number Information
1204.903 Reporting contract information to the IRS.
Subpart 1204.13--Personal Identity Verification
1204.1301 Policy.
1204.1303 Contract clause.
Subpart 1204.17--Service Contracts Inventory
1204.1703 Reporting requirements.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1204.1--Contract Execution
1204.103 Contract clause.
The contracting officer shall insert the clause at FAR 52.204-1,
Approval of Contract, filled in as appropriate, in solicitations and
contracts when approval to award the resulting contract must be
obtained from an official at a level above the contracting officer.
Subpart 1204.5--Electronic Commerce in Contracting
1204.502 Policy.
(c) DOT's preferred policy is to use electronic signatures, records
and communication methods in lieu of paper transactions whenever
practicable. Before using electronic commerce, the HOA and OA shall
ensure that the OA systems are capable of ensuring authentication and
confidentiality commensurate with the risk of unauthorized access to or
modification of the information.
Subpart 1204.8--Government Contract Files
1204.801 General.
(a) The COCO is designated as the head of each office performing
contracting and contract administration functions. The Chief Financial
Officer (CFO) of the OA is designated as the head of the office
performing paying functions.
1204.804 Closeout of contract files.
1204.804-5 Procedures for closing out contract files.
1204.804-570 Supporting closeout documents.
(a) When applicable and prior to contract closeout, the contracting
officer shall obtain the listed DOT and Department of Defense (DOD)
forms (see paragraphs (a)(1) through (4) of this section) from the
contractor to facilitate contract closeout. See part 1253 for links to
forms.
(1) Form DOT F 4220.4, Contractor's Release, see FAR 52.216-7;
(2) Form DOT F 4220.45, Contractor's Assignment of Refunds,
Rebates, Credits and Other Amounts, see FAR 52.216-7;
(3) Form DOT F 4220.46, Cumulative Claim and Reconciliation
Statement, see FAR 4.804-5(a)(13); and
(4) Department of Defense (DD) Form 882, Report of Inventions and
Subcontracts, see FAR 52.227-14.
(b) The forms listed in paragraph (a) of this section are used
primarily for the closeout of cost-reimbursement, time-and-materials,
and labor-hour contracts. However, the forms may also be used for
closeout of other contract types or when necessary to protect the
Government's interest.
Subpart 1204.9--Taxpayer Identification Number Information
1204.903 Reporting contract information to the IRS.
(a) The SPE is authorized to report certain information, including
Taxpayer Identification Number (TIN) data, to the Internal Revenue
Service (IRS).
Subpart 1204.13--Personal Identity Verification
1204.1301 Policy.
(a) 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, 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 physical and logical access to a federally-controlled
information system.
(c) OAs must designate an official responsible for verifying
contractor employees' personal identity.
1204.1303 Contract clause.
The contracting officer shall insert the clause at 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 routine physical access to a federally-controlled facility and/or
routine physical and logical access to a Departmental/federally-
controlled information system.
[[Page 61165]]
Subpart 1204.17--Service Contracts Inventory
1204.1703 Reporting requirements.
(b)(2) The 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).
Subchapter B--Acquisition Planning
PART 1205--PUBLICIZING CONTRACT ACTIONS
Subpart 1205.1--Dissemination of Information
Sec.
1205.101 Methods of disseminating information.
Subpart 1205.4--Release of Information
1205.402 General public.
1205.403 Requests from Members of Congress.
Subpart 1205.6--Publicizing Multi-Agency Use Contracts
1205.601 Governmentwide database of contracts.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1205.1--Dissemination of Information
1205.101 Methods of disseminating information.
(a) The DOT Office of Small and Disadvantaged Business Utilization,
1200 New Jersey Avenue SE, Washington, DC 20590 publishes a Procurement
Forecast of planned procurements each fiscal year on their website at
<a href="https://www.transportation.gov/osdbu/procurement-forecast/summary/">https://www.transportation.gov/osdbu/procurement-forecast/summary/</a>.
Subpart 1205.4--Release of Information
1205.402 General public.
(a) Upon request, and consistent with DOT Freedom of Information
Act rules and regulations in 49 CFR part 7 and 1224.203, DOT will
furnish the general public with the following information on proposed
contracts and contract awards--
(1) After the opening of sealed bids, names of firms that submitted
bids; and
(2) After contract award, the names of firms that submitted
proposals.
(b) DOT will process requests for other specific information in
accordance with the DOT Freedom of Information Act rules and
regulations in 49 CFR part 7 and 1224.203.
1205.403 Requests from Members of Congress.
The HCA is authorized to approve the release of certain contract
information to Members of Congress under FAR 5.403.
Subpart 1205.6--Publicizing Multi-Agency Use Contracts
1205.601 Governmentwide database of contracts.
(b) The OA HCA is responsible for complying with the requirements
of FAR 5.601(b).
PART 1206--COMPETITION REQUIREMENTS
Subpart 1206.2--Full and Open Competition After Exclusion of Sources
Sec.
1206.202 Establishing or maintaining alternative sources.
Subpart 1206.3--Other Than Full and Open Competition
1206.302 Circumstances permitting other than full and open
competition.
1206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
1206.302-7 Public interest.
Subpart 1206.5--Advocates for Competition
1206.501 Requirement.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1206.2--Full and Open Competition After Exclusion of
Sources
1206.202 Establishing or maintaining alternative sources.
(a) The head of the contracting activity (HCA) is delegated
authority to exclude a particular source from a contract action in
order to establish or maintain an alternative source under the
conditions listed in FAR 6.202(a).
(b) The HCA is also 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).
Subpart 1206.3--Other Than Full and Open Competition
1206.302 Circumstances permitting other than full and open
competition.
1206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(b)(4) The HCA is 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).
1206.302-7 Public interest.
(a)(2) The authority under FAR 6.302-7 whereby full and open
competition need not be provided for when determined that it is not in
the public interest in a particular acquisition is reserved by the
Secretary and may not be delegated. A written determination made and
signed by the Secretary shall be included in the contract file.
(c)(3) The contracting officer shall prepare a justification to
support the determination under FAR 6.302-7(c)(3).
Subpart 1206.5--Advocates for Competition
1206.501 Requirement.
The DOT Agency Advocate for Competition is the Deputy Assistant
Secretary for Administration.
PART 1207--ACQUISITION PLANNING
Subpart 1207.3--Contractor Versus Government Performance
Sec.
1207.305 Solicitation provisions and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1207.3--Contractor Versus Government Performance
1207.305 Solicitation provisions and contract clause.
The contracting officer may insert clause 1252.237-73, Key
Personnel, in solicitations and contracts when the acquisition is
conducted pursuant to OMB Circular A-76 and meets the clause
prescription requirements at 1237.110-70(b).
PART 1209--CONTRACTOR QUALIFICATIONS
Subpart 1209.4--Debarment, Suspension, and Ineligibility
Sec.
1209.400 Scope of subpart.
1209.403 Definitions.
1209.405 Effect of listing.
1209.405-1 Continuation of current contracts.
1209.405-2 Restrictions on subcontracting.
1209.406 Debarment.
1209.406-1 General.
1209.406-3 Procedures.
1209.406-4 Period of debarment.
1209.407 Suspension.
1209.407-1 General.
1209.407-3 Procedures.
1209.470 Fact-finding procedures.
1209.471 Appeals.
Subpart 1209.5--Organizational and Consultant Conflicts of Interest
1209.507 Solicitation provisions and contract clause.
1209.507-270 Contract clauses.
[[Page 61166]]
Subpart 1209.6--Contractor Team Arrangements
1209.602 General.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1209.4--Debarment, Suspension, and Ineligibility
1209.400 Scope of subpart.
This subpart provides DOT's policy and procedures for the debarment
and suspension of contractors.
1209.403 Definitions.
As used in this subpart--
DOT Order 4200.5G means the DOT order establishing DOT's internal
procedures for Suspension and Debarment, and Ineligibility Policies.
Senior Accountable Official (SAO) for Suspension and Debarment
means the Senior Procurement Executive (SPE), as delegated by the
Secretary of DOT, for all suspensions and debarments within DOT. The
SAO sets forth standards for suspension and debarment policies and
procedures for the Department of Transportation, excluding the Office
of Inspector General (OIG).
Suspension and Debarment Coordinator (SDC) means the program
manager for the Suspension and Debarment Program at each OA and Office
of the Secretary of Transportation. The SDC advises the Suspending and
Debarring Official (SDO). The SDC coordinates all materials for
presentation to the SDO 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>.
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 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 at <a href="https://www.transportation.gov/assistant-secretary-administration/procurement/suspension-and-debarment">https://www.transportation.gov/assistant-secretary-administration/procurement/suspension-and-debarment</a>.
1209.405 Effect of listing.
(a) 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 and that has an active exclusion record in the
System for Award Management (SAM) in accordance with FAR 9.405.
(e)(2) The SDO is authorized to make a written determination of
compelling reasons to consider a bid or offer from a contractor whose
name or company is included on the listing.
(3) The SDO is authorized to make a written determination of
compelling reasons for a contracting officer to consider proposals,
quotations, or offers received from any listed contractor that have an
active exclusion record in SAM, and that such proposals, quotations, or
offers may be evaluated for award or included in the competitive range,
and, if applicable, discussions conducted with a listed offeror as set
forth in FAR 9.405(e)(3).
1209.405-1 Continuation of current contracts.
(a) 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, consistent with the procedures
described in FAR 9.405-1(a) setting forth the compelling reasons for
continuing such contract(s) and placing order(s).
(b) The SDO is delegated the authority on behalf of the Secretary
of DOT to make the written determination required under FAR 9.405-1(b).
1209.405-2 Restrictions on subcontracting.
(a) 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).
1209.406 Debarment.
1209.406-1 General.
(c) The OST Suspending and Debarring Official (SDO) and each OA-
appointed SDO (see 1209.403) is authorized to continue business
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)
if the SDO has made a written determination of compelling reasons
justifying the continued business dealings.
(d)(1) The SDO's authority includes debarments from contracts for
the purchase of Federal personal property pursuant to the Federal
Management Regulation at 41 CFR 102-117.295 (see FAR 9.406-1(d)(1)
through (2)).
1209.406-3 Procedures.
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--
(a) Investigation and referral. Any individual may submit a
referral to debar an individual or contractor to the cognizant SDO (the
debarring official) (see 1209.403). The referral for debarment shall be
supported with evidence of a cause for debarment listed in FAR 9.406-2
and this subpart. The contracting officer shall promptly report a
proposed debarment action directly to the SDO. Upon review by the SDO,
if the matter involves possible criminal or fraudulent activities, the
SDO shall also refer the matter to the DOT Office of Inspector General
to ensure coordination of appropriate activity. The report shall
contain the following information:
(1) The DOT official OA code to identify the OA taking action is as
follows: DOT (general) (DOT-OST); Federal Aviation Administration (DOT-
FAA); Federal Highway Administration (DOT-FHWA); Federal Motor Carrier
Safety Administration (DOT-FMCSA); Federal Railroad Administration
(DOT-FRA); Federal Transit Administration (DOT-FTA); Maritime
Administration (DOT-MARAD); National Highway Traffic Safety
Administration (DOT-NHTSA); Pipeline and Hazardous Materials Safety
Administration (DOT-PHMSA); Office of the Assistant Secretary for
Research and Technology (OST-R); and Great Lakes St. Lawrence
Development Corporation (GLS).
(2) Name, address, and telephone number for the point of contact
for the activity making the report.
(3) Name and address of the contractor.
(4) Names and addresses of the members of the board, principal
officers, partners, owners, and managers.
(5) Names and addresses of all known affiliates, subsidiaries, or
parent firms, and the nature of the business relationship.
(6) For each contract affected by the conduct being reported--
(i) The contract number;
(ii) Description of supplies or services;
(iii) The amount;
(iv) The percentage of completion;
(v) The amount paid to the contractor;
(vi) Whether the contract is assigned under the Assignment of
Claims Act and, if so, to whom; and
[[Page 61167]]
(vii) The amount due to the contractor.
(7) For any other contracts outstanding with the contractor or any
of its affiliates--
(i) The contract number(s);
(ii) The amount(s);
(iii) The amounts paid to the contractor;
(iv) Whether the contract(s) is assigned under the Assignment of
Claims Act and, if so, to whom; and
(v) The amount(s) due the contractor.
(8) A complete summary of all pertinent evidence and the status of
any legal proceedings involving the contractor.
(9) An estimate of any damages sustained by the Government as a
result of the contractor's action (explain how the estimate was
calculated).
(10) The comments and recommendations of the contracting officer
and each higher-level contracting review authority regarding--
(i) Whether to suspend or debar the contractor;
(ii) Whether to apply limitations to the suspension or debarment;
(iii) The period of any recommended debarment; and
(iv) Whether to continue any current contracts with the contractor
(explain why a recommendation regarding current contract is not
included).
(11) When appropriate, as an enclosure to the report--
(i) A copy or extracts of each pertinent contract;
(ii) Witness statements or affidavits;
(iii) Copies of investigative reports;
(iv) Certified copies of indictments, judgments, and sentencing
actions; and
(v) Any other appropriate exhibits or documents.
(b) Decisionmaking process. When the SDO finds preponderance of the
evidence for a cause for debarment, as listed in FAR 9.406-2 or this
subpart, the contracting officer in conjunction with the SDC shall
prepare a recommendation and draft notice of proposed debarment for the
SDO's consideration. The contractor (and any specifically named
affiliates) are provided an opportunity to submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment as set forth in paragraph (d) of
this section.
(c) Notice of proposal to debar. DOT shall 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, DOT may send 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. The SDO shall also ensure that the
appropriate parties are listed as excluded in the System for Award
Management (SAM) in accordance with FAR 9.404.
(d) Debarring official's decision. (1) 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 cognizant contracting officer, and refer the case
to the SDO for a decision on whether to debar based on the information
available. 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.
(2) The SDO reviews submittals and case documents, and acts in
accordance with DOT Order 4200.5G and the General DOT Guidelines for
Suspension and Debarment, paragraph 12c.
(i) The SDO, upon the request of the contractor proposed for
debarment, shall, as soon as practicable, allow the contractor an
opportunity 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.
This information submitted by a contractor proposed for debarment is
known as a Presentation of Matters in Opposition as set forth in DOT
Order 4200.5G. DOT shall conduct the proceeding in an informal manner
and without requirement for a transcript. The SDO may use flexible
procedures to allow a contractor to present matters in opposition via
telephone or internet. If so, the debarring official should change the
notice in paragraph (c) of this section to include those flexible
procedures.
(ii) If the SDO finds the contractor's or individual's submission
in opposition to the proposed debarment raises a genuine dispute over
facts material to the proposed debarment and the debarment action is
not based on a conviction or civil judgment, 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
shall conduct a fact-finding proceeding or shall refer the dispute to a
designee for resolution pursuant to 1209.470. The SDC shall provide the
contractor or individual the disputed material fact(s).
(iii) 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, the SDO shall 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 SDC by the contractor.
(e) Notice of debarring official's decision. In actions processed
under FAR 9.406 where no suspension is in place and where a fact-
finding proceeding is not required, DOT shall make the final decision
on the proposed debarment within 30 business days after receipt of any
information and argument submitted by the contractor by the means of
delivery set forth in paragraph (c) of this section, unless the SDO
extends this period for good cause.
1209.406-4 Period of debarment.
(b) The SDC, in conjunction with the contracting officer, may
submit a recommendation to the SDO to extend or reduce the period of
debarment, or amend the scope of the debarment, imposed under FAR
9.406.
1209.407 Suspension.
1209.407-1 General.
(b) For the purposes of FAR 9.407-1, the SDO is the suspending
official under the Federal Management Regulation at 41 CFR 102-117.295.
(d) The SDO is authorized to make a written determination of
compelling reasons justifying continuing business dealings between the
agency and a contractor that is suspended. However, in accordance with
FAR 23.506(e), only the Secretary of Transportation may
[[Page 61168]]
waive the suspension of contract payments, termination of a contract
for default, or suspension of a contractor for actions under FAR
subpart 23.5 and FAR 23.506.
1209.407-3 Procedures.
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--
(a) Investigation and referral. Any individual may submit a
referral to suspend an individual or contractor to the SDC or SDO (the
debarring official) (see 1209.403). The SDC shall promptly report, in
writing, a proposed suspension action directly to the SDO. Upon review
by the SDO, if the matter involves possible criminal or fraudulent
activities, the SDO shall also refer the matter to the DOT OIG to
ensure coordination of appropriate activity.
(b) Decisionmaking process. When the SDC finds adequate evidence of
a cause for suspension, as listed in FAR 9.407-2, the SDC shall prepare
a recommendation and draft notice of suspension for the SDO's
consideration. After receipt of the report from the SDC, the SDO may
request from interested parties, including the contractor if deemed
appropriate, a meeting or additional supporting information to assist
in the suspension decision. The SDC creates a case in the DOT
Suspension and Debarment Tracking System as set forth in DOT Order
4200.5G. The contractor (and any specifically named affiliates) are
provided an opportunity to submit, in person, in writing, or through a
representative, information and argument in opposition to the proposed
debarment as set forth in paragraph (d) of this section.
(c) Notice of suspension. DOT shall 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, DOT may send 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. The SDO shall also ensure that the appropriate parties
are listed as excluded in SAM in accordance with FAR 9.404. After
reviewing the SDC's report, and any additional information received in
accordance with paragraph (b) of this section, the SDO shall prepare
and coordinate with legal counsel a written notice of suspension.
(5) The SDO, upon the request of the contractor suspended, shall,
as soon as practicable, allow the contractor an opportunity 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. DOT shall conduct the proceeding
in an informal manner and without requirement for a transcript.
(6)(i) If the SDC 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),
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 shall
conduct a fact-finding proceeding or refer the dispute to a designee
for resolution pursuant to 1209.470. The SDC shall provide the
contractor or individual the information that established the dispute
of material fact(s) in advance of the fact-finding proceeding, in the
event the contractor would like to add to the facts prior to the
decision of the SDO.
(ii) 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, the SDO
shall 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 may supplement the oral presentation with
written information and argument. The proceeding will be conducted in
an informal manner and without requirement for a transcript.
(d) Suspending official's decision. The SDO shall notify the
contractor of the decision whether to impose a suspension. The SDO
shall then forward the original signed decision to the contracting
officer for inclusion in the contract file. The SDO reviews submittals
and 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. If so, the debarring
official should change the notice in paragraph (c) of this section to
include those flexible procedures.
1209.470 Fact-finding procedures.
The provisions of this section constitute the procedures to be used
to resolve genuine disputes of material fact pursuant to 1209.406-3 and
1209.407-3. The SDC shall establish the date for the fact-finding
hearing, normally to be held within 30 business days after notifying
the contractor or individual that the SDO has determined a genuine
dispute of material fact(s) exists.
(a) The Government's representative and the contractor shall each
have an opportunity to present evidence relevant to the genuine
dispute(s) of material fact identified by the SDO. The contractor or
individual may 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 may
submit documentary evidence, present witnesses, and confront any person
the agency presents.
(b) Witnesses may testify in person. Witnesses will be reminded of
the official nature of the proceedings and that any false testimony
given is subject to criminal prosecution. Witnesses are 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 may be presented and will be
given appropriate weight by the fact-finder.
(c) The proceedings shall be transcribed and a copy of the
transcript shall 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.
(d) The fact-finder shall prepare a written finding(s) of fact for
the record by a preponderance of the evidence for proposed debarments,
and by adequate evidence for suspensions. A copy of the findings of
fact shall be provided to the SDO, the Government's representative, and
the contractor or individual. The
[[Page 61169]]
SDO will consider the written findings of fact in the decision
regarding the suspension or proposed debarment.
1209.471 Appeals.
Based on the decision by the SDO, the respondent may elect to
request reconsideration as provided for in paragraph (a) of this
section. If the request for reconsideration is denied, the respondent
may seek judicial review as provided for in paragraph (b) of this
section.
(a) Request for reconsideration. Upon receiving a final decision to
debar from the SDO, a debarred individual or entity may ask the SDO to
reconsider the debarment decision or to modify the debarment by
reducing the time period or narrowing the scope of the debarment. This
request must be in writing and supported with documentation.
(b) Judicial review. A suspended or debarred individual or entity
may seek judicial review upon denial of a request for reconsideration.
Subpart 1209.5--Organizational and Consultant Conflicts of Interest
1209.507 Solicitation provisions and contract clause.
1209.507-270 Contract clauses.
(a) In accordance with FAR 9.507-2, the contracting officer shall
insert a clause substantially the same as the clause at 1252.209-70,
Organizational and Consultant Conflicts of Interest, as applicable, in
solicitations and contracts.
(b) In accordance with FAR 9.507-2, the contracting officer shall
insert a clause substantially the same as the clause at 1252.209-71,
Limitation of Future Contracting, as applicable, in solicitations and
contracts.
Subpart 1209.6--Contractor Team Arrangements
1209.602 General.
(c) Contracting officers shall require offerors to disclose teaming
arrangements as a part of any offer. The teaming arrangement shall be
evaluated as a part of overall prime contractor responsibility, as well
as under the technical and/or management approach evaluation factor
where applicable.
PART 1211--DESCRIBING AGENCY NEEDS
Subpart 1211.2--Using and Maintaining Requirements Documents
Sec.
1211.204 Solicitation provisions and contract clauses.
1211.204-70 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1211.2--Using and Maintaining Requirements Documents
1211.204 Solicitation provisions and contract clauses.
1211.204-70 Contract clauses.
The contracting officer shall insert the clause at 1252.211-70,
Index for Specifications, when an index or table of contents may be
furnished with the specification.
PART 1212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
Subpart 1212.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Products and Commercial Services
Sec.
1212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1212.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Products and Commercial Services
1212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
(f) The following DOT provisions and clauses are authorized for use
in acquisitions of commercial products or commercial services when
required by the individual provision or clause prescription:
(1) 1252.201-70, Contracting Officer's Representative.
(2) 1252.204-70, Contractor Personnel Security and Agency Access.
(3) 1252.209-70, Organizational and Consultant Conflicts of
Interest.
(4) 1252.209-71, Limitation of Future Contracting.
(5) 1252.211-70, Index for Specifications.
(6) 1252.216-70, Evaluation of Offers Subject to an Economic Price
Adjustment Clause.
(7) 1252.216-71, Determination of Award Fee.
(8) 1252.216-72, Award Fee Plan.
(9) 1252.216-73, Distribution of Award Fee.
(10) 1252.216-74, Settlement of Letter Contract.
(11) 1252.222-70, Strikes or Picketing Affecting Timely Completion
of the Contract Work.
(12) 1252.222-71, Strikes or Picketing Affecting Access to a DOT
Facility.
(13) 1252.223-70, Removal or Disposal of Hazardous Substances--
Applicable Licenses and Permits.
(14) 1252.223-71, Accident and Fire Reporting.
(15) 1252.223-73, Seat Belt Use Policies and Programs.
(16) 1252.232-70, Electronic Submission of Payment Requests.
(17) 1252.237-70, Qualifications of Contractor Employees.
(18) 1252.237-71, Certification of Data.
(19) 1252.237-72, Prohibition on Advertising.
(20) 1252.237-73, Key Personnel.
(21) 1252.239-70, Security Requirements for Unclassified
Information Technology Resources.
(22) 1252.239-71, Information Technology Security Plan and
Accreditation.
(23) 1252.239-72, Compliance with Safeguarding DOT Sensitive Data
Controls.
(24) 1252.239-73, Limitations on the Use or Disclosure of Third-
Party Contractor Reported Cyber Incident Information.
(25) 1252.239-74, Safeguarding DOT Sensitive Data and Cyber
Incident Reporting.
(26) 1252.239-75, DOT Protection of Information About Individuals,
PII, and Privacy Risk Management Requirements.
(27) 1252.239-76, Cloud Computing Services.
(28) 1252.239-77, Data Jurisdiction.
(29) 1252.239-78, Validated Cryptography for Secure Communications.
(30) 1252.239-79, Authentication, Data Integrity, and Non-
Repudiation.
(31) 1252.239-80, Audit Record Retention for Cloud Service
Providers.
(32) 1252.239-81, Cloud Identification and Authentication
(Organizational Users) Multi-Factor Authentication.
(33) 1252.239-82, Identification and Authentication (Non-
Organizational Users).
(34) 1252.239-83, Incident Reporting Timeframes.
(35) 1252.239-84, Media Transport.
(36) 1252.239-85, Personnel Screening--Background Investigations.
(37) 1252.239-86, Boundary Protection--Trusted Internet
Connections.
(38) 1252.239-87, Protection of Information at Rest.
(39) 1252.239-88, Security Alerts, Advisories, and Directives.
(40) 1252.239-89, Technology Modernization.
[[Page 61170]]
(41) 1252.239-90, Technology Upgrades/Refreshment.
(42) 1252.239-91, Records Management.
(43) 1252.239-92, Information and Communication Technology
Accessibility Notice.
(44) 1252.239-93, Information and Communication Technology
Accessibility.
(45) 1252.242-70, Dissemination of Information--Educational
Institutions.
(46) 1252.242-71, Contractor Testimony.
(47) 1252.242-72, Dissemination of Contract Information.
Subchapter C--Contracting Methods and Contract Types
PART 1213--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 1213.70--Department of Transportation Procedures for Acquiring
Training Services
Sec.
1213.7000 Applicability.
1213.7001 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1213.70--Department of Transportation Procedures for
Acquiring Training Services
1213.7000 Applicability.
(a) DOT policy at 1237.7000 applies to Standard Form (SF) 182,
Request, Authorization, Agreement and Certification of Training, which
may be used to acquire training services; however, the policy does not
apply to training services acquired by Governmentwide commercial
purchase card. The Governmentwide commercial purchase card may only be
used to acquire training services valued at the micro-purchase
threshold level or less.
(b) As reflected in 1237.7002, this policy does not apply to
training attended by DOT employees that is scheduled and conducted by
Government sources of supply, educational institutions, or private
entities where DOT does not control or sponsor the training. Examples
of when the policy does and does not apply include:
(1) When SF 182s are issued for three DOT employees to attend a
one-week course at a university or other private entity, the policy
does not apply. DOT does not control the course because the university
or private entity has a contract in place with the training provider
and DOT is placing an order under an existing contract; and
(2) When DOT awards a contract to a university or other private
entity to provide training for DOT and/or other Government personnel,
the policy applies. DOT controls this course; therefore, no soliciting
or advertising of private non-Government training while conducting the
contracted-for training is permitted.
1213.7001 Solicitation provision and contract clause.
(a) Contracting officers shall insert the provision as prescribed
at 1252.237-71, Certification of Data, in all solicitations and
requests for quotations, and the clause as prescribed at 1252.237-72,
Prohibition on Advertising, in solicitations, requests for quotations,
and all contracts (e.g., purchase orders, SF 182s) for training
services when the content and/or presentation of the training is
controlled by DOT.
(b) Contracting officers shall incorporate the successful offeror's
certified data into any resultant contract(s). Certified data may be
adopted by reference, if the contracting officer determines it contains
information sufficient to reliably describe the certified data
submitted. For example, this type of information includes dated
material such as resumes and company or personnel qualifications.
PART 1214--[RESERVED]
PART 1215--CONTRACTING BY NEGOTIATION
Subpart 1215.4--Contract Pricing
Sec.
1215.404 Proposal analysis.
1215.404-470 Payment of profit or fee.
Subpart 1215.6--Unsolicited Proposals
1215.603 General.
1215.604 Agency points of contact.
1215.606 Agency procedures.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1215.4--Contract Pricing
1215.404 Proposal analysis.
1215.404-470 Payment of profit or fee.
The contracting officer shall not pay profit or fee on
undefinitized contracts or undefinitized contract modifications. Any
profit or fee earned shall be paid after the contract or modification
is definitized.
Subpart 1215.6--Unsolicited Proposals
1215.603 General.
DOT will not pay any costs associated with the preparation of
unsolicited proposals. Proposals that do not meet the definition and
applicable content and marking requirements of FAR subpart 15.6 will
not be considered under any circumstances and will be returned to the
submitter.
1215.604 Agency points of contact.
(a) Unsolicited proposals should be submitted to the responsible OA
contracting office for appropriate handling. Specific information
concerning the mission of each DOT OA is available online at <a href="https://www.transportation.gov/">https://www.transportation.gov/</a>. Offerors are urged to contact these
contracting/procurement offices prior to submitting a proposal to
ensure that the unsolicited proposal reaches the correct contracting
office for action. This action will reduce unnecessary paperwork and
wasted time for both the Government and offerors.
1215.606 Agency procedures.
The OA contracting office is the designated point of contact for
receipt and handling of unsolicited proposals (see 1215.604). 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.
PART 1216--TYPES OF CONTRACTS
Subpart 1216.2--Fixed-Price Contracts
Sec.
1216.203 Fixed-price contracts with economic price adjustment.
1216.203-4 Contract clauses.
1216.203-470 Solicitation provision.
Subpart 1216.4--Incentive Contracts
1216.406-70 DOT contract clauses.
Subpart 1216.5--Indefinite-Delivery Contracts
1216.505 Ordering.
Subpart 1216.6--Time-and-Materials, Labor-Hour, and Letter Contracts
1216.603 Letter contracts.
1216.603-4 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1216.2--Fixed-Price Contracts
1216.203 Fixed-price contracts with economic price adjustment.
1216.203-4 Contract clauses.
1216.203-470 Solicitation provision.
The contracting officer shall insert the provision at 1252.216-70,
Evaluation of
[[Page 61171]]
Offers Subject to an Economic Price Adjustment Clause, in solicitations
containing an economic price adjustment clause.
Subpart 1216.4--Incentive Contracts
1216.406-70 DOT contract clauses.
(a) As authorized by FAR 16.406(e), the contracting officer shall
insert the clause at 1252.216-71, Determination of Award Fee, in all
cost-plus-award-fee solicitations and contracts.
(b) The contracting officer shall insert the clause at 1252.216-72,
Award Fee Plan, in all cost-plus-award-fee solicitations and contracts.
(c) The contracting officer shall insert the clause at 1252.216-73,
Distribution of Award Fee, in all cost-plus-award-fee solicitations and
contracts.
Subpart 1216.5--Indefinite-Delivery Contracts
1216.505 Ordering.
(b)(8) Task-order and delivery-order ombudsman. Unless otherwise
designated by the Head of the Operating Administration, the Advocate
for Competition for the Operating Administration (OA) is designated as
the OA Task and Delivery Order Ombudsman. If any corrective action is
needed after reviewing complaints from contractors on task and delivery
order contracts, the OA Ombudsman shall provide a written determination
of such action to the contracting officer. Issues that cannot be
resolved within the OA shall be forwarded to the DOT Task and Delivery
Order Ombudsman for review and resolution. The DOT Task and Delivery
Order Ombudsman is located in the Office of the Senior Procurement
Executive.
Subpart 1216.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
1216.603 Letter contracts.
1216.603-4 Contract clauses.
The contracting officer shall insert the clause at 1252.216-74,
Settlement of Letter Contract, in all definitized letter contracts.
PART 1217--SPECIAL CONTRACTING METHODS
Subpart 1217.70--Fixed-Price Contracts for Vessel Repair, Alteration,
or Conversion
Sec.
1217.7000 Definition.
1217.7001 Clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1217.70--Fixed-Price Contracts for Vessel Repair,
Alteration, or Conversion
1217.7000 Definition.
Lay Days means time allowed to the master of a vessel for loading
and unloading the same.
1217.7001 Clauses.
(a) The clause at 1252.217-70, Guarantee, shall be used where
general guarantee provisions are deemed desirable by the contracting
officer.
(1) When inspection and acceptance tests will afford full
protection to the Government in ascertaining conformance to
specifications and the absence of defects and deficiencies, no
guarantee clause for that purpose shall be included in the contract.
(2) The customary guarantee period, to be inserted in the first
sentence of the clause at 1252.217-70, Guarantee, is 60 days. In
certain instances, it may be advisable for the contracting officer to
include a contract clause for a guarantee period longer than 60 days.
These instances are as follows--
(i) If, as a result of a full inquiry, the contracting officer
determines that there will be no increased costs as a result of a
longer guarantee period, the contracting officer may substitute
guarantee longer than the usual 60 days; or
(ii) When the contracting officer's inquiry discloses that
increased costs will result or are expected to result from a longer
guarantee period, the contracting officer shall submit a letter to the
Chief of the Contracting Office, requesting approval for use of
guarantee period in excess of 60 days. The letter must contain
sufficient facts to justify the use of a longer guarantee period. Upon
approval, the contracting officer may insert a longer period in the
first sentence of the clause at 1252.217-70, Guarantee.
(b) The contracting officer shall insert the following clauses in
solicitations and contracts for vessel repair, alteration or
conversion:
(1) 1252.217-71, Delivery and Shifting of Vessel.
(2) 1252.217-72, Performance.
(3) 1252.217-73, Inspection and Manner of Doing Work.
(4) 1252.217-74, Subcontracts.
(5) 1252.217-76, Liability and Insurance.
(6) 1252.217-77, Title.
(7) 1252.217-78, Discharge of Liens.
(8) 1252.217-79, Delays.
(9) 1252.217-80, Department of Labor Safety and Health Regulations
for Ship Repair.
(c) The contracting officer may insert the clause at 1252.217-75,
Lay Days, in sealed bid fixed-price solicitations and contracts for
vessel repair, alteration, or conversion which are to be performed
within the United States, the District of Columbia, and all territories
and possessions of the United States. The contracting officer may also
insert the clause at 1252.217-75, Lay Days, in negotiated solicitations
and contracts to be performed outside the United States.
Subchapter D--Socioeconomic Programs
PART 1219--SMALL BUSINESS PROGRAMS
Subpart 1219.2--Policies
Sec.
1219.201 General policy.
1219.201-70 Procurement goals for small business.
1219.202 Specific policies.
1219.202-70 Procurement Forecast.
Subpart 1219.4--Cooperation With the Small Business Administration
1219.401 General.
Subpart 1219.5--Set-Asides for Small Business
1219.501 General.
1219.502-8 Rejecting Small Business Administration recommendations.
1219.502-9 Withdrawing or modifying small business set-asides.
Subpart 1219.7--The Small Business Subcontracting Program
1219.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
1219.705-6 Postaward responsibilities of the contracting officer.
Subpart 1219.8--Contracting With The Small Business Administration (the
8(a) Program)
1219.800 General.
1219.815 Release for non-8(a) procurement.
Subpart 1219.70--DOT Mentor-Prot[eacute]g[eacute] Program
1219.7000 General.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1219.2--Policies
1219.201 General policy.
(c) 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 Transportation. (15 U.S.C. 637, 644,
and 657)
[[Page 61172]]
(d) The responsible HCA for each OA shall appoint a Small Business
Specialist (SBS). The SBS will assist the OSDBU Director in carrying
out the functions and duties prescribed in FAR 19.201(d). A list of DOT
SBS is provided at OSDBU's website at <a href="https://www.transportation.gov/osdbu/procurement-assistance/talk-dot-small-business-specialist">https://www.transportation.gov/osdbu/procurement-assistance/talk-dot-small-business-specialist</a>.
1219.201-70 Procurement goals for small business.
As required by the Small Business Act, the Secretary shall
establish annual goals for small business participation in DOT
contracts and subcontracts. Each contracting activity in consultation
with the OSDBU on behalf of the Secretary shall establish annual goals
that present, for that activity, the maximum practicable opportunity
for small business concerns to participate in the performance of the
activity's contracts and subcontracts.
1219.202 Specific policies.
OSDBU is responsible for reviewing procurement strategies and
subcontracting efforts, establishing review thresholds and making
recommendations to further the implementation of this part. The OSDBU
Director may waive review of certain classes of acquisitions that the
Director identifies as providing limited or no opportunity for small
business participation or may delegate review of such acquisitions to
the OA Small Business Specialists.
1219.202-70 Procurement Forecast.
The OSDBU shall prepare and maintain DOT's Procurement Forecast in
coordination with DOT Operating Administrations. The forecast will be
published every year on or before October 1st and can be found at
<a href="https://www.transportation.gov/osdbu/procurement-forecast/summary">https://www.transportation.gov/osdbu/procurement-forecast/summary</a>.
Contracting officers and small business specialists will work with the
OSDBU to maintain accurate procurement forecast information.
Subpart 1219.4--Cooperation With the Small Business Administration
1219.401 General.
(a) 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.
Subpart 1219.5--Set-Asides for Small Business
1219.501 General.
(a) Contracting officers shall set aside to small business concerns
acquisitions of supplies or services that have an anticipated dollar
value above the micro-purchase threshold but not exceeding the
simplified acquisition threshold, as prescribed at FAR 13.003(b)(1).
Contracting officers shall set aside proposed acquisitions exceeding
the simplified acquisition threshold for small business concerns unless
it is determined there is not a reasonable expectation of obtaining
offers from two or more responsible small business concerns that are
competitive in terms of market prices, quality, and delivery (see FAR
19.502-2). Contracting officers will document their determination
utilizing the DOT Form 4250.1, which will include the results of the
market research performed, including justifications.
1219.502-8 Rejecting Small Business Administration recommendations.
(a) If the contracting officer rejects a recommendation of the SBA
procurement center representative, the contracting officer will
coordinate with the OSDBU to submit a written notice to the SBA within
5 working days of the contracting officer's receipt of the
recommendation.
1219.502-9 Withdrawing or modifying small business set-asides.
(a) If the contracting officer makes a determination before
contract award that a set-aside is disadvantageous to the public
interest, withdrawal of an individual small business set-aside shall be
initiated by giving written notice to the small business specialist,
the SBA procurement center representative and the OSDBU stating the
reasons for withdrawal.
(b) If the agency small business specialist does not agree to a
withdrawal or modification, the case shall be referred to the COCO for
review prior to consulting with the assigned SBA representative. The
contracting officer shall follow the documentation requirements of FAR
19.506(c).
Subpart 1219.7--The Small Business Subcontracting Program
1219.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
1219.705-6 Postaward responsibilities of the contracting officer.
(f) The Office of Small and Disadvantaged Business Utilization (S-
40) is responsible for acknowledging receipt of, or rejecting, the
Summary Subcontract Report (SSR) in the Electronic Subcontracting
Reporting System (eSRS).
Subpart 1219.8--Contracting With the Small Business Administration
(the 8(a) Program)
1219.800 General.
(e) The Small Business Administration (SBA) and Department of
Transportation (DOT) have entered into a Partnership Agreement (PA)
delegating SBA's contract execution and administrative functions to
DOT. Contracting officers shall follow the alternate procedures in this
subpart, as applicable, to award 8(a) contracts under the PA. (See
<a href="https://www.transportation.gov/sites/dot.dev/files/docs/Department%20of%20Transportation_Partnership%20Agreement.pdf">https://www.transportation.gov/sites/dot.dev/files/docs/Department%20of%20Transportation_Partnership%20Agreement.pdf</a>.)
(1) The SBA delegates only the authority to sign contracts on its
behalf. Consistent with the provisions of the PA, the SBA remains the
prime contractor on all 8(a) contracts, continues to determine
eligibility of concerns for contract award, and retains appeal rights
under FAR 19.810.
(2) The PA sets forth the delegation of authority and establishes
the basic procedures for expediting the award of 8(a) contract
requirements as reflected in this subpart.
(3) Contracts awarded under the PA may be awarded directly to the
8(a) participant on either a sole source or competitive basis. An SBA
signature on the contract is not required. See FAR 19.811-3 for
contract clauses to use.
1219.815 Release for non-8(a) procurement.
(b) Contracting officers requesting the release of a requirement
for a non-8(a) procurement will follow procedures prescribed at FAR
19.815 and submit requests through the DOT OSDBU Director. The OSDBU
Director will submit the request to SBA's Associate Administrator for
Business Development for consideration.
Subpart 1219.70--DOT Mentor-Prot[eacute]g[eacute] Program
1219.7000 General.
(a) The Small Business Administration provides general oversight to
Federal mentor-prot[eacute]g[eacute] programs. However, DOT has its own
program tailored to assist small business concerns in the
transportation industry to enhance their capability to compete for
Federal procurement opportunities. The program is administered by the
[[Page 61173]]
DOT Office of Small and Disadvantaged Business Utilization (OSDBU) at
<a href="https://www.transportation.gov/osdbu/procurement-assistance/mentor-protege-pilot-program">https://www.transportation.gov/osdbu/procurement-assistance/mentor-protege-pilot-program</a>.
(b) Small business concerns and large DOT prime contractors are
encouraged to participate in the Department's Mentor-
Prot[eacute]g[eacute] Program. Mentor firms provide eligible small
business Prot[eacute]g[eacute] firms with developmental assistance to
enhance their business capabilities and ability to obtain Federal
contracts.
(c) Mentor firms are eligible small businesses and large DOT prime
contractors or other socioeconomic firms capable of providing
developmental assistance. Prot[eacute]g[eacute] firms are small
businesses as defined in 13 CFR part 121.
(d) Developmental assistance is technical, managerial, financial,
and other mutually beneficial assistance that assists
Prot[eacute]g[eacute] firms. The costs for developmental assistance
will not be reimbursed to the Mentor firm.
(e) Mentor and Prot[eacute]g[eacute] firms shall submit an
evaluation of the overall experience in the program to OSDBU at the
conclusion of the agreement or the voluntary withdrawal by either party
from the program, whichever occurs first. At the end of each year, the
Mentor and Prot[eacute]g[eacute] firms will submit a report regarding
program accomplishments under their agreement.
(f) Mentor or Prot[eacute]g[eacute] firms shall notify OSDBU in
writing, at least 30 calendar days in advance of the effective date of
the firm's withdrawal from the program.
PART 1222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 1222.1--Basic Labor Policies
Sec.
1222.101 Labor relations.
1222.101-70 Admittance of union representatives to DOT
installations.
1222.101-7 1 Contract clauses.
Subpart 1222.8--Equal Employment Opportunity
1222.808 Complaints.
1222.810-70 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1222.1--Basic Labor Policies
1222.101 Labor relations.
1222.101-70 Admittance of union representatives to DOT installations.
(a) It is DOT policy to admit labor union representatives of
contractor employees to DOT installations to visit work sites and
transact labor union business with contractors, their employees, or
union stewards pursuant to existing union collective bargaining
agreements. Their presence shall not interfere with the contractor's
work progress under a DOT contract, nor violate the safety or security
regulations that may be applicable to persons visiting the
installation. The union representatives will not be permitted to
conduct meetings, collect union dues, or make speeches concerning union
matters while visiting a work site.
(b) 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 or to the DOT labor
coordinator, the Office of the General Counsel, Office of General Law,
within the Office of the Secretary of Transportation, within two
working days after the request for entry is denied. The report shall
include the reason(s) for the denial, the name of the representative
denied entry, the union affiliation and number, and the name and title
of the person that denied the entry.
1222.101-71 Contract clauses.
(a) When applicable, the contracting officer may insert the clause
at 1252.222-70, Strikes or Picketing Affecting Timely Completion of the
Contract Work, in solicitations and contracts.
(b) When applicable, the contracting officer may insert the clause
at 1252.222-71, Strikes or Picketing Affecting Access to a DOT
Facility, in solicitations and contracts.
Subpart 1222.8--Equal Employment Opportunity
1222.808 Complaints.
Contractors 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 and in accordance
with clause 1252.222-72 as prescribed in this subpart.
1222.810-70 Contract clause.
The contracting officer shall insert the clause at 1252.222-72,
Contractor Cooperation in Equal Employment Opportunity and Anti-
Harassment Investigations, in solicitations, contracts, and orders that
include the clause at FAR 52.222-26, Equal Opportunity.
PART 1223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 1223.3--Hazardous Material Identification and Material Safety
Data
Sec.
1223.303 Contract clause.
Subpart 1223.70--Safety Requirements for Selected DOT Contracts
1223.7000 Contract clauses.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1223.3--Hazardous Material Identification and Material
Safety Data
1223.303 Contract clause.
The contracting officer shall insert the clause at 1252.223-70,
Removal or Disposal of Hazardous Substances--Applicable Licenses and
Permits, in solicitations and contracts involving the removal or
disposal of hazardous waste material.
Subpart 1223.70--Safety Requirements for Selected DOT Contracts
1223.7000 Contract clauses.
(a) Where all or part of a contract will be performed on
Government-owned or leased property, the contracting officer shall
insert the clause at 1252.223-71, Accident and Fire Reporting.
(b) For all solicitations and contracts under which human test
subjects will be utilized, the contracting officer shall insert the
clause at 1252.223-72, Protection of Human Subjects. Contractors can
request copies of applicable Operating Administration (OA)-specific
policies regarding the protection of human subjects directly from
contracting officers.
(c) In all solicitations and contracts exceeding the simplified
acquisition threshold, the contracting officer shall insert the clause
at 1252.223-73, Seat Belt Use Policies and Programs.
PART 1224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 1224.1--Protection of Individual Privacy
Sec.
1224.102-70 General.
1224.103 Procedures.
Subpart 1224.2--Freedom of Information Act
1224.203 Policy.
[[Page 61174]]
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1224.1--Protection of Individual Privacy
1224.102-70 General.
(a) Records maintained in a Privacy Act system of records shall not
be released except by the Government or at the Government's direction
regardless of whether the Government or a contractor acting on behalf
of the Government is maintaining the records. Examples of systems of
records are:
(1) Personnel, payroll and background records about any officer or
employee of DOT, or other person, including his or her residential
address;
(2) Medical histories and medical records concerning individuals,
including applications for licenses; and
(3) Any other record containing information about an individual
which includes that individual's name or other personal identifier.
(b) Examples of records to which the Privacy Act does not apply
are:
(1) Records that are maintained by a contractor on individuals
employed by the contractor in the process of providing goods and
services to the Federal government; and
(2) Student records generated in connection with the student's
attendance (e.g., admission forms, grade reports) at an educational
institution contracted by the agency to provide training to students.
These records must be similar to those maintained on other students and
must not be commingled with records of other students.
1224.103 Procedures.
DOT rules and regulations implementing the Privacy Act of 1974 are
located at 49 CFR part 10.
Subpart 1224.2--Freedom of Information Act
1224.203 Policy.
DOT rules and regulations implementing the Freedom of Information
Act (FOIA) and the names and addresses of the OA FOIA offices are
located in 49 CFR part 7. The DOT FOIA website can be found at <a href="https://www.transportation.gov/foia">https://www.transportation.gov/foia</a>. Specific contract award information shall
be requested from the FOIA office of the OA making the contract award.
Subchapter E--General Contracting Requirements
PART 1227--PATENTS, DATA, AND COPYRIGHTS
Subpart 1227.3--Patent Rights Under Government Contracts
Sec.
1227.304 Procedures.
1227.304-4 Appeals.
1227.305 Administration of patent rights clauses.
1227.305-4 Protection of invention disclosures.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1227.3--Patent Rights Under Government Contracts
1227.304 Procedures.
1227.304-4 Appeals.
(b) Contractors may appeal agency actions listed at FAR 27.304-
4(a)(1), (3), and (4) to the cognizant Head of the Contracting Activity
(HCA). Contracting officers shall coordinate actions under this section
with the legal counsel of the responsible office. The following
procedures apply:
(1) Actions must be appealed within 30 days of receipt of the
written statement issued by DOT required by FAR 27.304-4(a). The
contractor must present all pertinent arguments in the appeal along
with documentary evidence, if any.
(2) The HCA shall issue a determination within 45 days from the
date the contractor's appeal is received.
(c) Contractor appeal of decisions rendered under FAR 27.304-
4(a)(2) are subject to the following requirements:
(1) Actions must be appealed within 30 days of receipt of the
written statement required by FAR 27.304-4(a). The contractor must
present all pertinent arguments in the appeal along with documentary
evidence, if any.
(2) The HCA may hold an informal hearing if deemed appropriate or
at the request of the contractor. The informal hearing shall be held
after all fact-finding is completed.
(i) If a hearing is held, DOT shall provide for a transcribed
record of the hearing unless transcription is waived as provided for in
paragraph (c)(2)(ii) of this section. A copy of the transcript shall be
available to the contractor at cost.
(ii) Transcription of the hearing may be waived by agreement of the
parties.
(3) The HCA shall designate an impartial fact-finding official. The
official conducting the fact-finding shall prepare findings of fact and
transmit them to the HCA promptly after the conclusion of the fact-
finding proceeding along with a recommended determination.
(i) A copy of the findings of fact shall be sent to the contractor
(assignee or exclusive licensee) by mail, to the last known street
address, the last known facsimile number, or the last known email
address and to the contractor's identified counsel. The contractor
(assignee or exclusive licensee) and agency representatives will be
given 30 days to submit written arguments to the HCA; and, upon request
by the contractor, oral arguments will be held before the HCA as part
of an informal hearing. The HCA will make the final determination as to
whether the initial agency action was appropriate under the relevant
laws and procedures (see 1227.304-4(c)).
(ii) Any portion of the informal hearing that involves testimony or
evidence shall be closed to the public. Agencies shall not disclose any
such information obtained during the appeal to persons outside the
Government except when such release is authorized by the contractor
(assignee or licensee).
(4) The HCA's final determination shall be based on the findings of
facts, together with any other information and written or oral
arguments submitted by the contractor (assignee or exclusive licensee)
and agency representatives, and any other information in the
administrative record. The HCA may reject only those facts that have
been found clearly erroneous and must explicitly state the rejection
and the basis for the contrary finding. The HCA shall provide the
contractor (assignee or exclusive licensee) a written determination by
certified or registered mail no later than 90 days after fact-finding
is completed or no later than 90 days after oral arguments, whichever
is later.
1227.305 Administration of patent rights clauses.
1227.305-4 Protection of invention disclosures.
Solicitations and contracts that include a patent rights clause
must provide the contractor the means to report inventions made during
contract performance and at contract completion. This requirement may
be fulfilled by requiring the contractor to submit a Department of
Defense DD Form 882, Report of Inventions and Subcontracts.
PART 1228--BONDS AND INSURANCE
Subpart 1228.1--Bonds and Other Financial Protections
Sec.
1228.106 Administration.
[[Page 61175]]
1228.106-470 Contract clause-notification of payment bond
protection.
1228.106-6 Furnishing information.
1228.106-70 Execution and administration of bonds.
1228.106-71 Performance and payment bonds for certain contracts.
1228.106-7100 Waiver.
1228.106-7101 Exception.
Subpart 1228.3--Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
1228.307-1 Group insurance plans.
1228.311-1 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1228.1--Bonds and Other Financial Protections
1228.106 Administration.
1228.106-470 Contract clause-notification of payment bond protection.
The contracting officer must insert the clause at 1252.228-74,
Notification of Payment Bond Protection, in solicitations and contracts
when payment bonds are required.
1228.106-6 Furnishing information.
(c) When furnishing a copy of a payment bond and contract in
accordance with FAR 28.106-6(b), the requirement for a copy of the
contract 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. The contracting officer furnishing the copies
shall place the statement ``Certified to be a true and correct copy''
followed by his/her signature, title and name of the Operating
Administration using an authenticated electronic signature. 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.
1228.106-70 Execution and administration of bonds.
(a) The contracting officer shall notify the surety within 30 days
of the contractor's failure to perform in accordance with the terms of
the contract.
(b) When a partnership is a principal on a bond, the names of all
the members of the firm shall be listed in the bond following the name
of the firm, and the phrase ``a partnership composed of.'' If a
principal is a corporation, the state of incorporation must also appear
on the bond.
(c) Performance or payment bond(s), other than an annual bond,
shall not predate the contract to which it pertains.
(d) Bonds may be filed with the original contract to which they
apply, or all bonds can be separately maintained and reviewed quarterly
for validity. If separately maintained, each contract file shall cross-
reference the applicable bonds.
1228.106-71 Performance and payment bonds for certain contracts.
1228.106-7100 Waiver.
Pursuant to the authority vested in the Secretary of Transportation
by the Bond statute at 40 U.S.C. chapter 31, subchapter III, Bonds
(historically known as the Miller Act), the requirements of 40 U.S.C.
3131 et seq. are waived, to the extent authorized in accordance with 40
U.S.C. 3134(b).
1228.106-7101 Exception.
A performance and payment bond for the contracts described under
1228.106-7100 may be advantageous in view of unusual circumstances
arising in connection with such contracts. Requests for the authority
to include the requirement for either a performance or payment bond, or
both in the contracts described under 1228.106-7100 shall be submitted
by the contracting officer to the HCA, before a solicitation is issued.
Subpart 1228.3--Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
(a) The contracting officer shall insert the clauses at 1252.228-
70, Loss of or Damage to Leased Aircraft; 1252.228-71, Fair Market
Value of Aircraft; and 1252.228-72, Risk and Indemnities, unless
otherwise indicated by the specific instructions for their use, in any
contract for the lease of aircraft (including aircraft used in out-
service flight training), except in the following circumstances--
(1) When the hourly rental rate does not exceed $250 and the total
rental cost for any single transaction is not in excess of $2,500;
(2) When the cost of hull insurance does not exceed 10 percent of
the contract rate; or
(3) When the lessor's insurer does not grant a credit for uninsured
hours, thereby preventing the lessor from granting the same to the
Government.
(b) As codified, 49 U.S.C. 44112, as amended, provides that an
aircraft lessor under a lease of 30 days or more is not liable for
injury or death of persons, or damage or loss of property, unless the
aircraft is in the actual possession or control of the lessor and the
damage occurs because of--
(1) The aircraft, engine, or propeller; or
(2) The flight of, or an object falling from, the aircraft, engine,
or propeller.
(c) On short-term or intermittent-use leases, however, the owner
may be liable for damage caused by operation of the aircraft. It is
usual for the aircraft owner to retain insurance covering this
liability during the term of such lease. Such insurance can, often for
little or no increase in premium, be made to cover the Government's
exposure to liability as well. To take advantage of this coverage, the
Risks and Indemnities clause at 1252.228-72, prescribed in paragraph
(d) of this section, shall be used.
(d) The contracting officer shall insert the clause at 1252.228-72,
Risk and Indemnities, in any contract for out-service flight training
or for the lease of aircraft when the Government will have exclusive
use of the aircraft for a period of less than thirty days.
(e) 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. The contracting officer
shall insert 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.
1228.307-1 Group insurance plans.
(a) Prior approval requirements. Contractors shall provide plans
required by FAR 28.307-1(a) to the contracting officer for approval.
1228.311-1 Contract clause.
The contracting officer shall insert the clause at FAR 52.228-7,
Insurance Liability to Third Persons, as prescribed in FAR 28.311-1
unless it is waived by an official one level above the contracting
officer.
PART 1231--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 1231.2--Contracts With Commercial Organizations
Sec.
1231.205 Selected costs.
[[Page 61176]]
1231.205-3270 Precontract costs--incurrence of costs.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1231.2--Contracts With Commercial Organizations
1231.205 Selected costs.
1231.205-3270 Precontract costs--incurrence of costs.
(a) The decision to incur precontract costs is the responsibility
of the contractor. DOT officials shall not authorize, demand, or
require a contractor to incur precontract costs. The contracting
officer may advise the prospective contractor that any costs incurred
before contract award are at the contractor's sole risk and that if
negotiations fail to result in a binding contract, payment of these
costs may not be made by the Government.
(b) When the contracting officer determines that incurring
precontract costs was necessary to meet the proposed contract delivery
schedule of a cost-reimbursement contract, the clause at 1252.231-70,
Date of Incurrence of Costs, may be inserted in the resultant contract.
PART 1232--CONTRACT FINANCING
Subpart 1232.7--Contract Funding
Sec.
1232.770 Incremental funding during a Continuing Resolution.
1232.770-1 Scope of section.
1232.770-2 Definition.
1232.770-3 General.
1232.770-4 Policy.
1232.770-5 Limitations.
1232.770-6 Procedures.
1232.770-7 Clause.
Subpart 1232.9--Prompt Payment
1232.905-70 Payment documentation and process--form of invoice.
Subpart 1232.70--Electronic Invoicing Requirements
1232.7000 Scope of subpart.
1232.7001 Definition.
1232.7002 Electronic payment requests--invoices.
1232.7003 Payment system registration.
1232.7003-1 Electronic authentication.
1232.7004 Waivers.
1232.7005 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1232.7--Contract Funding
1232.770 Incremental funding during a Continuing Resolution.
1232.770-1 Scope of section.
This section provides policy and procedures 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 continuing resolution. Heads of the
contracting activities may develop necessary supplemental internal
procedures and guidance to advise offerors and contractors of these
policies and procedures.
1232.770-2 Definition.
Continuing Resolution (CR) means an appropriation, in the form of a
joint resolution, that provides budget authority for Federal agencies,
specific activities, or both to continue operation until the regular
appropriations are enacted. Typically, a continuing resolution is used
when legislative action on appropriations is not completed by the
beginning of a fiscal year.
1232.770-3 General.
The Anti-Deficiency Act, 31 U.S.C. 1341, and FAR 32.702, state that
no officer or employee of the Government may create or authorize an
obligation in excess of the funds available, or in advance of
appropriations unless otherwise authorized by law. A CR provides
funding for continuing projects or activities that were conducted in
the prior fiscal year for which appropriations, funds, or other
authority was previously made available. Each CR is governed by the
specific terms in that specific CR (e.g., duration of the CR) and under
certain CRs, the funding amounts available for award of some contract
actions are inadequate to fund the entire amounts needed.
1232.770-4 Policy.
(a) A fixed-price, time-and-materials, or labor-hour contract or
order for commercial or non-commercial severable services may be
incrementally funded when--
(1) Funds are provided to DOT or operating administration under a
CR. This includes funds appropriated to DOT or an operating
administration, funds appropriated to another entity that will be
directly obligated on a DOT contract, and funds in a revolving fund or
similar account that will be reimbursed by a customer agency funded by
a CR;
(2) The responsible fiscal authority has not allocated sufficient
funds to fully fund the contract action that is otherwise authorized to
be issued;
(3) There is no statutory restriction that would preclude the
proposed use of funds;
(4) Funds are available and unexpired, as of the date the funds are
obligated;
(5) Assurance is provided by the responsible financial authority
that full funding is anticipated once an appropriations act is enacted;
and
(6) The clause prescribed by 1232.770-7 is incorporated into the
contract or order.
(b) Incremental funding may be limited to an individual line
item(s) or a particular order(s).
1232.770-5 Limitations.
This policy does not apply to contract actions using funds that are
not covered by the CR.
1232.770-6 Procedures.
(a) An incrementally funded fixed-price, time-and-materials, or
labor-hour contract shall be fully funded once funds are available.
(b) The contracting officer shall ensure that sufficient funds are
allotted to the contract to cover the total amount payable to the
contractor in the event of termination for convenience by the
Government.
(c) Upon receipt of the contractor's notice under paragraph (c) of
the clause at 1252.232-71, Limitation of Government's Obligation, the
contracting officer shall promptly provide written notice to the
contractor that the Government is--
(1) Obligating additional funds for continued performance and
increasing the Government's limitation of obligation in a specified
amount;
(2) Obligating the full amount of funds needed;
(3) Terminating for convenience, as applicable, the affected line
items or contract; or
(4) Considering whether to allot additional funds; and
(i) The contractor is entitled by the contract terms to stop work
when the Government's limitation of obligation is reached; and
(ii) Any costs expended beyond the Government's limitation of
obligation are at the contractor's risk.
(d) Upon learning that the contract will receive no further funds
by the date provided in the notice under paragraph (c) of the clause at
1252.232-71, Limitation of Government's Obligation, the contracting
officer shall promptly give the contractor written notice of the
Government's decision and terminate the affected line items or
contract, as applicable, for the convenience of the Government.
[[Page 61177]]
1232.770-7 Clause.
(a) The contracting officer shall insert the clause at 1252.232-71,
Limitation of Government's Obligation, in--
(1) Solicitations and contracts for severable services when
incremental funding of a fixed-price, time-and-material, or labor-hour
contract due to a CR is anticipated; or
(2) Contracts or orders for severable services when incremental
funding of a fixed-price, time-and-material, or labor-hour contract is
authorized and DOT or its operating administrations are operating under
a CR (see 1232.770-4).
(b) The contracting officer shall insert the information required
in paragraphs (a) and (c) of clause 1252.232-71. Contracting officers
are authorized, in appropriate cases, to revise paragraph (a) of clause
1252.232-71 to specify the work required under the contract, in lieu of
using contract line item numbers, as well as revise paragraph (c) of
the clause to specify a different notification period and percentage.
The 30-day period may be varied up to 90 days, and the 75 percent can
be varied from 75 up to 85 percent.
Subpart 1232.9--Prompt Payment
1232.905-70 Payment documentation and process--form of invoice.
(a) Under fixed-price contracts, the contracting officer shall
require the contractor to submit an invoice or voucher on any form or
format meeting FAR 32.905(b) requirements.
(b) Under other than fixed-price contracts, the contracting officer
shall require the contractor to submit the Standard Form (SF) 1034,
Public Voucher for Purchases and Services Other Than Personal, and the
SF 1035, Public Voucher for Purchases and Services Other Than Personal
(Continuation Sheet), to request payments. The forms must be completed
as required by figure 1 to this section, Instructions for Completing
the SF 1034, and figure 2 to this section, Instructions for Completing
the SF 1035.
Figure 1 to 1232.905-70
Instructions for Completing the SF 1034
The SF 1034, Public Voucher for Purchases and Services Other Than
Personal, shall be completed in accordance with the below instructions.
The numbered items correspond to the entries on the form.
------------------------------------------------------------------------
Data to be inserted in the
Caption on the SF 1034 block
------------------------------------------------------------------------
1. U.S. DEPARTMENT, BUREAU, OR Name and address of the
ESTABLISHMENT AND LOCATION. contracting office which
issued the contract.
2. DATE VOUCHER PREPARED............... Date voucher submitted to the
designated billing office
cited under the contract or
order.
3. CONTRACT NO. AND DATE............... Contract No. and, when
applicable, the Order No. and
date as shown on the award
document.
4. REQUISITION NO. AND DATE............ Leave blank or fill-in in
accordance with the
instructions in the contract.
5. VOUCHER NO.......................... Start with ``1'' and number
consecutively. A separate
series of consecutive numbers
must be used beginning with
``1'' for each contract number
or order number (when
applicable). Note: Insert the
word ``FINAL'' if this is the
last voucher.
6. SCHEDULE NO.; PAID BY; DATE INVOICE Leave all these blocks blank.
RECEIVED; DISCOUNT TERMS; PAYEE'S
ACCOUNT NO.; SHIPPED FROM/TO; WEIGHT;
GOVERNMENT B/L.
7. PAYEE'S NAME AND ADDRESS............ Name and address of contractor
as it appears on the contract.
If the contract is assigned to
a bank, also show ``CONTRACT
ASSIGNED'' below the name and
address of the contractor.
8. NUMBER AND DATE OF ORDER............ Leave blank. (See #3 above.).
9. DATE OF DELIVERY OR SERVICE......... The period for which the
incurred costs are being
claimed (e.g., month and year;
beginning and ending date of
services, etc.).
10. ARTICLES OR SERVICES............... Insert the following: ``For
detail, see the total amount
of the claim transferred from
the attached SF 1035, page X
of X.'' One space below this
line, insert the following:
``COST REIMBURSABLE-
PROVISIONAL PAYMENT.''
11. QUANTITY; UNIT PRICE; (COST; PER).. Leave blank.
12. AMOUNT............................. Insert the total amount claimed
from the last page of the SF
1035.
Payee must NOT use the space below..... Do NOT write or type below this
line.
------------------------------------------------------------------------
Figure 2 to 1232.905-70
Instructions for Completing the SF 1035
The SF 1035, Public Voucher for Purchases and Services Other Than
Personal (Continuation Sheet), shall be completed in accordance with
the below instructions.
1. Use the same basic instructions for the SF 1035 as used for the
SF 1034. Ensure that the contract and, if applicable, order number, are
shown on each continuation sheet. Use as many sheets as necessary to
show the information required by the contract, contracting officer, or
responsible audit agency; however, if more than one sheet of SF 1035 is
used, each sheet shall be in numerical sequence.
2. The following items are generally entered below the line with
Number and Date of Order; Date of Delivery or Service; Articles or
Services; Quantity; Unit Price; and Amount (but do not necessarily tie
to these captions).
3. Description of data to be inserted as it applies to the contract
or order number including the CLIN or SLIN.
a. Show, as applicable, the target or estimated costs, target or
fixed-fee, and total contract value, as adjusted by any modifications
to the contract or order. The FAR permits the contracting officer to
withhold a percentage of fixed fee until a reserve is set aside in an
amount that is considered necessary to protect the Government's
interest.
b. Show the following costs and supporting data (as applicable) to
the contract or order:
(1) Direct Labor. List each labor category, rate per labor hour,
hours worked, and extended total labor dollars per labor category.
(2) Premium Pay/Overtime. List each labor category, rate per labor
hour, hours worked, and the extended total labor dollars per labor
category. Note: Advance written authorization must be received from the
contracting officer to work overtime or to pay premium rates;
therefore, identify the contracting
[[Page 61178]]
officer's written authorization to the contractor.
(3) Fringe Benefits. If fringe benefits are included in the
overhead pool, no entry is required. If the contract allows for a
separate fringe benefit pool, cite the formula (rate and base) in
effect during the time the costs were incurred. If the contract allows
for billing fringe benefits as a direct expense, show the actual fringe
benefit costs.
(4) Materials, Supplies, Equipment. Show those items normally
treated as direct costs. Expendable items need not be itemized and may
be grouped into major classifications such as office supplies. However,
items valued at $5,000 or more must be itemized. See FAR part 45,
Government Property, for reporting of property.
(5) Travel. List the name and title of traveler, place of travel,
and travel dates. If the travel claim is based on the actual costs
expended, show the amount for the mode of travel (i.e., airline,
private auto, taxi, etc.), lodging, meals, and other incidental
expenses separately, on a daily basis. These actual costs must be
supported with receipts to substantiate the costs paid. Travel costs
for consultants must be shown separately and also supported.
(6) Other Direct Costs. Itemize those costs that cannot be placed
in categories (1) through (5) above. Categorize these costs to the
extent possible.
(7) Total Direct Costs. Cite the sum of categories (1) through (6)
above.
(8) Overhead. Cite the rate, base, and extended amount.
(9) G&A Expense. Cite the rate, base, and extended amount.
(10) Total Costs. Cite the sum of categories (7) through (9) above.
(11) Fee. Cite the rate, base, and extended amount.
(12) Total Cost and Fee Claimed. Enter this amount on the SF 1034.
Completion Voucher
The completion (final) voucher is the last voucher to be submitted
for incurred, allocable, and allowable costs expended to perform the
contract or order. This voucher should include all contract reserves,
allowable cost withholdings, balance of fixed fee, etc. However, the
amount of the completion voucher when added to the total amount
previously paid cannot exceed the total amount of the contract.
Subpart 1232.70--Electronic Invoicing Requirements
1232.7000 Scope of subpart.
This subpart prescribes policy and procedures for submitting and
processing payment requests in electronic form.
1232.7001 Definition.
Payment request, as used in this subpart, means a bill, voucher,
invoice, or request for contract financing payment with associated
supporting documentation.
1232.7002 Electronic payment requests--invoices.
(a) Requirements. Contracts shall require the electronic submission
of payment requests, except for--
(1) Purchases paid for with a Governmentwide commercial purchase
card;
(2) Classified contracts or purchases when electronic submission
and processing of payment requests could compromise classified
information or national security; or
(3) As directed by the contracting officer to submit payment
requests by mail.
(b) Alternate procedures. Where a contract requires the electronic
submission of invoices, the contracting officer may authorize alternate
procedures only if the contracting officer makes a written
determination that the Department of the Transportation (DOT) is unable
to receive electronic payment requests or provide acceptance
electronically and it is approved one level above the contracting
officer.
(c) DOT electronic invoicing system. The Department of
Transportation utilizes the DELPHI eInvoicing System. The DELPHI module
for submitting invoices is called iSupplier. Except as provided in
paragraphs (a) and (b) of this section, contracting officers and DOT
finance officials shall process electronic payment submissions through
the DELPHI System and the DELPHI module for submitting invoices,
iSupplier. iSupplier is also the official system of record for DOT
payment requests. If the requirement for electronic submission of
payment requests is waived under paragraph (a) or (b) of this section,
the contract or alternate payment authorization, as applicable, shall
specify the form and method of payment request submission.
1232.7003 Payment system registration.
1232.7003-1 Electronic authentication.
Access to DELPHI is granted with electronic authentication of
credentials (name & valid email address) utilizing the General Services
Administration (GSA) credentialing platform <a href="http://login.gov">login.gov</a>. Vendors
submitting invoices will be required to submit invoices via iSupplier
(DELPHI) and authenticated via <a href="http://www.login.gov">www.login.gov</a>.
1232.7004 Waivers.
If a vendor is unable to utilize DOT's DELPHI electronic invoicing
system, DOT may consider waivers on a case-by-case basis. Vendors
should contact their COR for procedures, or access the DELPHI website
at <a href="http://www.dot.gov/cfo/delphi-einvoicing-system.html">http://www.dot.gov/cfo/delphi-einvoicing-system.html</a>.
1232.7005 Contract clause.
The contracting officer shall insert the clause at 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.
PART 1233--PROTESTS, DISPUTES, AND APPEALS
Subpart 1233.1--Protests
Sec.
1233.103 Protests to the agency.
1233.104 Protests to GAO.
Subpart 1233.2--Disputes and Appeals
1233.211 Contracting officer's decision.
1233.214 Alternative dispute resolution (ADR).
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1233.1--Protests
1233.103 Protests to the agency.
(c) DOT Operating Administrations (OAs) shall consider the use of
alternative dispute resolution (ADR) in all agency protest actions.
1233.104 Protests to GAO.
The protest process at the Government Accountability Office (GAO)
may include ADR assistance by GAO. The contracting officer shall, with
advice of counsel, explore the possibility of using ADR for all GAO
protests.
Subpart 1233.2--Disputes and Appeals
1233.211 Contracting officer's decision.
(a)(4)(v) In accordance with FAR 33.211(a)(4)(i) through (vi),
contracting officers shall include in a statement of the contracting
officer's decision referenced at FAR 33.211(a)(4)(iv), paragraphs
substantially as follows:
``This is the final decision of the Contracting Officer. You may
appeal this decision to the Civilian Board of Contract Appeals. If
you decide to appeal, you must, within 90 days from the date you
receive this decision, mail or otherwise furnish written notice to
the Civilian Board of Contract Appeals as set forth below and
provide a
[[Page 61179]]
copy to the Contracting Officer from whose decision this appeal is
taken. The notice shall indicate that an appeal is intended,
reference this decision, and identify the contract by number.
Where to File: All filings must be submitted to the Clerk of the
Board. Filings shall be to Civilian Board of Contract Appeals, 1800
F Street NW, Washington, DC 20405 in any of the ways as set forth at
their website at <a href="https://cbca.gov/howto/index.html">https://cbca.gov/howto/index.html</a>.
With regard to appeals to the Civilian Board of Contract
Appeals, you may, solely at your election, proceed under the
board's--
(1) Small claim procedure for claims of $50,000 or less or, in
the case of a small business concern (as defined in the Small
Business Act and regulations under that Act), $150,000 or less; or
(2) Accelerated procedure for claims of $100,000 or less.
Instead of appealing to the Civilian Board of Contract Appeals,
you may bring an action directly in the United States Court of
Federal Claims (except as provided in 41 U.S.C. 7102(d), regarding
Maritime Contracts) within 12 months of the date you receive this
decision.''
1233.214 Alternative dispute resolution (ADR).
(c) The Administrative Dispute Resolution Act (ADRA) of 1990,
Public Law 101-552, as reauthorized by the Administrative Dispute
Resolution Act (ADRA) of 1996, Public Law 104-320, authorizes and
encourages agencies to use mediation, conciliation, arbitration, and
other techniques for the prompt and informal resolution of disputes,
either before or after appeal, and for other purposes. ADR procedures
may be used when--
(1) There is mutual consent by the parties to participate in the
ADR process (with consent being obtained either before or after an
issue in controversy has arisen); and either
(2) Prior to the submission of a claim; or
(3) In resolution of a formal claim.
(d)(1) Use of ADR shall be coordinated with counsel. For all
matters filed with the Civilian Board of Contract Appeals (CBCA), the
CBCA Alternate Dispute Resolution (ADR) procedures contained in 48 CFR
6101.54 shall be followed.
(2) For other matters, pursuant to the Administrative Dispute
Resolution Act (ADRA), DOT has appointed a Dispute Resolution
Specialist, who is responsible for the operations of the Center for
Alternative Dispute Resolution. The Center may provide an internal DOT
neutral agreeable to the parties to conduct any of the alternative
means of dispute resolution set forth in the ADRA, 5 U.S.C. 571(3), on
a non-reimbursable basis for DOT operating administrations and their
contracting partners. Alternative means of dispute resolution include
settlement negotiations, conciliation, facilitation, mediation, fact-
finding, mini-trials, and arbitration, or any combination of these
methods. The Center may also arrange for an external public or private
neutral at the parties' expense.
Subchapter F--Special Categories of Contracting
PART 1234 [RESERVED]
PART 1235--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
1235.003 Policy. 1235.011-70 Contract clause.
1235.012 Patent rights.
1235.070 Research misconduct.
1235.070-1 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
1235.003 Policy.
(b) Cost sharing. DOT cost sharing policies that are not otherwise
required by law shall be in accordance with FAR 16.303 and 42.707(a)
and Operating Administration (OA) procedures.
(c) Recoupment. DOT recoupment not otherwise required by law shall
be in accordance with OA procedures.
1235.011-70 Contract clause.
The contracting officer shall insert the clause at 1252.235-71,
Technology Transfer, in all solicitations and contracts for
experimental, developmental, or research work.
1235.012 Patent rights.
Patent rights shall be in accordance with FAR part 27 and any OA
implementing procedures in this part.
1235.070 Research misconduct.
(a) Applicability. DOT policy on scientific integrity is
implemented in the Deputy Secretary's memorandum dated April 10, 2012,
Implementation of Departmental Scientific Integrity Policy at <a href="https://www.transportation.gov/administrations/assistant-secretary-research-and-technology/memorandum-implementation-departmental">https://www.transportation.gov/administrations/assistant-secretary-research-and-technology/memorandum-implementation-departmental</a>. The Department
is dedicated to preserving the integrity of the research it conducts
and funds and will not tolerate misconduct in the performance of these
activities. This policy applies to all DOT-funded or DOT-conducted
research, including intramural research, research conducted by
contractors, and research performed at research institutions, including
universities and industry.
(b) Definition. Research misconduct means fabrication,
falsification, or plagiarism in proposing, performing, or reviewing
research, or in reporting research results. Research misconduct does
not include honest error or differences of opinion. A finding of
research misconduct means a determination based on a preponderance of
the evidence that research misconduct has occurred, including a
conclusion that there has been a significant departure from accepted
practices of the relevant research community and that it was knowingly,
intentionally, or recklessly committed.
1235.070-1 Contract clause.
The contracting officer shall insert the clause at 1252.235-70,
Research Misconduct, in all solicitations and contracts for research
and development.
PART 1236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 1236.5--Contract Clauses
Sec.
1236.570 Special precautions for work at operating airports.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1236.5--Contract Clauses
1236.570 Special precautions for work at operating airports.
Where any acquisition will require work at an operating airport,
insert the clause at 1252.236-70, Special Precautions for Work at
Operating Airports, in solicitations and contracts.
PART 1237--SERVICE CONTRACTING
Subpart 1237.1--Service Contracts--General
Sec.
1237.110-70 Contract clauses.
Subpart 1237.70--Procedures for Acquiring Training Services
1237.7000 Policy.
1237.7001 Certification of data.
1237.7002 Applicability.
1237.7003 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 1237.1--Service Contracts--General
1237.110-70 Contract clauses.
(a) The contracting officer shall insert the clause at 1252.237-70,
Qualifications of Contractor Employees, in all solicitations and
contracts for services where contractor employees
[[Page 61180]]
will have access to Government facilities and sensitive information,
including proprietary data and/or resources.
(b) The contracting officer shall insert the clause at 1252.237-73,
Key Personnel, in solicitations and contracts for services when the
selection for award is substantially based on the offeror's possession
of special capabilities regarding personnel.
Subpart 1237.70--Procedures for Acquiring Training Services
1237.7000 Policy.
When training services are provided under contract, DOT policy
requires that all prospective contractors:
(a) Certify that the data provided concerning company
qualifications, background statements, and resumes, for example, is
current, accurate, and complete; and
(b) Agree to not solicit or advertise private, non-Government
training while conducting a training course.
1237.7001 Certification of data.
Towards fulfilling DOT's policy at 1237.7000(a), contracting
officers shall request information from prospective contractors for
certification purposes. The type of information requested is dependent
upon the criticality of the service and/or any unique or essential
qualification requirements.
1237.7002 Applicability.
The policy at 1237.7000 applies to all contracts (as defined in FAR
2.101) awarded by DOT for training services when DOT controls the
content and/or presentation of the course. This policy does not apply
to courses attended by DOT employees that are offered and sponsored by
Government sources of supply, educational institutions, or private
entities where DOT does not control the course content or presentation
(see 1213.7100 for examples).
1237.7003 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 1252.237-
71, Certification of Data, in solicitations and the clause at 1252.237-
72, Prohibition on Advertising, in solicitations and contracts for
training services when the content and/or presentation of the course is
controlled by DOT.
(b) The contracting officer shall incorporate the successful
offeror's certified data into any resultant contract(s). Certified data
may be adopted by reference, if the contracting officer determines it
contains sufficient descriptive information (i.e., dated material such
as resumes, company and/or personnel qualifications) to reliably
describe the certified data submitted.
PART 1239--ACQUISITION OF INFORMATION TECHNOLOGY
Sec.
1239.000 Scope of part.
1239.002 Definitions.
Subpart 1239.1--General
1239.101 Policy.
1239.101-70 Policy--software management and development.
1239.101-71 Scope.
1239.101-72 Definitions.
1239.101-73 Policy.
1239.106-70 Contract clauses.
Subpart 1239.2--Information and Communication Technology
1239.201 Scope of subpart.
1239.203 Applicability.
1239.203-70 Information and communication technology accessibility
standards--contract clause and provision.
Subpart 1239.70--Information Security and Incident Response Reporting
1239.7000 Scope of subpart.
1239.7001 Definitions.
1239.7002 Policy.
1239.7003 Contract clauses.
Subpart 1239.71--Protection of Data About Individuals
1239.7100 Scope of subpart.
1239.7101 Definitions.
1239.7102 Policy.
1239.7103 Responsibilities.
1239.7104 Contract clause.
Subpart 1239.72--Cloud Computing
1239.7200 Scope of subpart.
1239.7201 Definitions.
1239.7202 Policy.
1239.7203 DOT FedRAMP specific requirements.
1239.7204 Contract clauses.
Subpart 1239.73--Technology Modernization and Upgrades/Refreshment
1239.7300 Scope of subpart.
1239.7301 Definitions.
1239.7302 Policy.
1239.7303 Contract clauses.
Subpart 1239.74--Records Management
1239.7400 Scope of subpart.
1239.7401 Definition.
1239.7402 Policy.
1239.7403 Contract clause.
Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
1239.000 Scope of part.
In addition to FAR 39.000, this part prescribes acquisition
policies and procedures for use in acquiring information technology and
information technology-related supplies, services and systems,
including information security, to include--
(a) Software management and development;
(b) Section 508 standards and compliance for contracts;
(c) Information security and incident response reporting;
(d) Protection of data about individuals;
(e) Cloud computing;
(f) Technology modernization and upgrade/refreshment; and
(g) Record management.
1239.002 Definitions.
As used in this part--
Information means any communication or representation of knowledge
such as facts, data, or opinions in any medium or form, including
textual, numerical, graphic, cartographic, narrative, or audiovisual
(Committee on National Security Systems Instruction (CNSSI) 4009).
Information system means a discrete set of information resources
organized for the collection, processing, maintenance, use, sharing,
dissemination, or disposition of information (44 U.S.C. 3502).
Media means physical devices or writing surfaces including, but not
limited to, magnetic tapes, optical disks, magnetic disks, large-scale
integration memory chips, and printouts onto which information is
recorded, stored, or printed within an information system.
Subpart 1239.1--General
1239.101 Policy.
1239.101-70 Policy--software management and development.
1239.101-71 Scope.
This subpart applies to all acquisitions of products or services
supporting the development or maintenance of software.
1239.101-72 Definitions.
As used in this subpart--
Application means software that resides above system software and
includes applications such as database programs, word processors and
spreadsheets. Application software may be bundled with system software
or published alone.
Programming software means tools to aid developers in writing
programs including compilers, linkers, debuggers, interpreters and text
editors.
Software means a set of instructions or programs instructing a
computer to do specific tasks including scripts, applications, programs
and a set of instructions. Includes System, Programming, and
Application software.
[[Page 61181]]
System software means a platform comprised of Operating System (OS)
programs and services, including settings and preferences, file
libraries and functions used for system applications. System software
also includes device drivers that run basic computer hardware and
peripherals.
1239.101-73 Policy.
The contracting officer will ensure all documents involving the
acquisition of products or services supporting the development or
maintenance of DOT software applications, systems, infrastructure, and
services contain the appropriate clauses as may be required by Federal
Acquisition Regulation (FAR) and other Federal authorities, in order to
ensure that information system modernization is prioritized accordance
with Federal law, OMB Guidance, and DOT policy.
1239.106-70 Contrac
[…truncated; see source link]Indexed from Federal Register on October 7, 2022.
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.