[Federal Register Volume 62, Number 249 (Tuesday, December 30, 1997)]
[Rules and Regulations]
[Pages 67749-67752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33688]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

48 CFR Parts 1201, 1202, 1203, 1205, 1206, 1209, 1214, 1216, 1217, 
1222, 1224, 1225, 1236, 1237, 1246, and 1252


Amendment of Department of Transportation Acquisition Regulations

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the Transportation Acquisition 
Regulation (TAR) to reflect the changes to the Federal Acquisition 
Regulation through the Federal Acquisition Circular 90-46 and to delete 
certification requirements.

DATES: This rule is effective January 29, 1998.

FOR FURTHER INFORMATION CONTACT: Charlotte Hackley, Office of 
Acquisition and Grant Management, M-60, 400 Seventh Street SW., 
Washington, DC 20590: (202) 366-4267.

SUPPLEMENTARY INFORMATION:

A. Background

    The Department of Transportation has determined that changes to the

[[Page 67750]]

Transportation Acquisition Regulation (TAR) are necessary to implement 
and align it with 48 CFR Chapter Circulars 90-43 through 90-46, to 
delete certification requirements, amend part 1211 to insert language 
inadvertently omitted in 61 FR 50248, September 25, 1996, to implement 
statutory requirements, and to make minor editorial revisions and 
corrections.

B. Regulatory Analysis and Notices

    The Department has determined that this action is not a significant 
regulatory action under Executive Order 12866 or under the Department's 
Regulatory Policies and Procedures. The Department does not believe 
that there would be significant Federalism implications to warrant the 
preparation of a Federalism assessment.

C. Regulatory Flexibility Act

    The Department certifies that this final rule does not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq., because the rule merely restates previous TAR coverage, deletes 
certification requirements which do not significantly alter the amount 
of information currently required, and makes minor editorial revisions.

D. Paperwork Reduction Act

    There are no new information collection requirements that require 
clearance previously approved under OMB Control No. 2105-0517.

List of Subjects in 48 CFR Parts 1201, 1202, 1203, 1205, 1206, 
1209, 1214, 1216, 1217, 1222, 1224, 1225, 1236, 1237, 1246, and 
1252

    Government procurement.

    The Final rule is issued under the delegated authority of 49 CFR 
part 1.59(p). This authority is redelegated to the Senior Procurement 
Executive, issued this 18th day of December 1997, at Washington, DC.
David J. Litman,
Director of Acquisition and Grant Management.

Adoption of Amendments

    For the reasons set out in the preamble, 48 CFR Chapter 12 is 
amended as follows:
    1. The authority citation for 48 CFR chapter 12, parts 1201, 1202, 
1203, 1205, 1206, 1209, 1214, 1216, 1217, 1222, 1224, 1225, 1236, 1237, 
1246, and 1252 continues to read as follows:

    Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.

PART 1201--FEDERAL ACQUISITION REGULATIONS SYSTEM [AMENDED]

    2. Section 1201.105-2(b)(1)(i) is amended by revising ``(FAR) 48 
CFR 1.104-2(b)'' to read ``(FAR) 48 CFR 1.105-2.''
    2a. Section 1201.105-3 is amended by designating the existing text 
as paragraph (a) and adding paragraph (b) to read as follows:


Sec. 1201.105-3  Copies.

* * * * *
    (b) The (TAR) 48 CFR chapter 12 and Transportation Acquisition 
Circulars (TACs) are available on the internet. See part 1202, appendix 
A, for the internet address.
    2b. Section 1201.106(a) is amended by revising ``April 30, 1997'' 
to read ``May 31, 2000.''

PART 1202--DEFINITIONS OF WORDS AND TERMS

    3. Section 1202.1 paragraphs (b) through (j) are redesignated as 
paragraphs (c) through (k); paragraph (b) is added and newly designated 
paragraphs (i), (j)(1) and (j)(7) are revised to read as follows:


Sec. 1202.1  Definitions.

* * * * *
    (b) Chief Information Officer (CIO) means the Director of the 
Office of the CIO (S-80).
* * * * *
    (i) Head of the operating administration (HOA) means the individual 
appointed by the President to manage the operating administration. (For 
acquisition related matters, the Director, Transportation 
Administrative Service Center (TASC) is the HOA for TASC.)
    (j) * * *
    (1) Federal Aviation Administration (FAA). (FAA is exempt from the 
TAR (48 CFR chapter 12) and TAM in accordance with the ``Department of 
Transportation and Related Appropriations Act for FY 1996'');
* * * * *
    (7) Transportation Administrative Service Center (TASC);
* * * * *
    3a. Subpart 1202.70 is added as follows:

Subpart 1202.70--Internet Links


Sec. 1202.7000  General.

    Throughout the (TAR) 48 CFR chapter 12, referenced documents which 
can be found on the internet will cite the applicable internet address. 
These addresses are located in Appendix A of this part.
    3b. Appendix A to part 1202 is added to read as follows:

                     Appendix A to Part 1202.--List of Internet Addresses for TAR Documents                     
----------------------------------------------------------------------------------------------------------------
      TAR part                             Document name                               Internet address         
----------------------------------------------------------------------------------------------------------------
1201................  TAR...................................................  <a href="http://www.dot.gov/ost/m60/tamtar/
part1201.htm">http://www.dot.gov/ost/m60/tamtar/
part1201.htm</a>                     
                      TAC...................................................  <a href="http://www.dot.gov/ost/m60/tamtar/
part1201.htm">http://www.dot.gov/ost/m60/tamtar/
part1201.htm</a>                     
1205................  DOT Procurement Forecast..............................  <a href="http://osdbuweb.dot.gov/
consolic.htm">http://osdbuweb.dot.gov/
consolic.htm</a>                     
1234................  Major Acquisition Policies and Procedures.............  <a href="http://www.dot.gov/ost/m60/tamtar/
chap1234.htm
________________________________________________________

PART">http://www.dot.gov/ost/m60/tamtar/
chap1234.htm
________________________________________________________

PART</a> 1203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 1203.1--Safeguards


Sec. 1203.104-11  [Amended]

    4. The heading of section 1203.104-11 is revised to read ``Criminal 
and civil penalties, and further administrative remedies.''

PART 1205--PUBLICIZING CONTRACT ACTIONS

    5. In part 1205, subpart 1205.90 is added to read as follows:

Subpart 1205.90--Publicizing Contract Actions For Personal Services 
Contracting

    Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.

[[Page 67751]]

Subpart 1205.90--Publicizing Contract Actions for Personal Services 
Contracting


Sec. 1205.9000  Applicability. (USCG)

    Contracts awarded by the U.S. Coast Guard using the procedures in 
(TAR) 48 CFR 1237.104-91 are expressly authorized under Section 1091 of 
Title 10 U.S.C. as amended by Pub. L. 104-106, DOD Authorization Act, 
Section 733 for the Coast Guard and are exempt from the requirements of 
(FAR) 48 CFR part 5.

PART 1206--COMPETITION REQUIREMENTS

    6. In part 1206, subpart 1206.90 is added to read as follows:

Subpart 1206.90--Competition Requirements for Personal Services 
Contracting

    Authority: 5 U.S.C. 301; 41 U.S.C. 418(b); 48 CFR 3.1.

Subpart 1206.90--Competition Requirements for Personal Services 
Contracting


Sec. 1206.9000  Applicability. (USCG)

    Contracts awarded by the U.S. Coast Guard using the procedures in 
(TAR) 48 CFR 1237.104-91 are expressly authorized under Section 1091 of 
Title 10 U.S.C. as amended by Pub. L. 104-106, DOD Authorization Act, 
Section 733 for the Coast Guard and are exempt from the competition 
requirements of (FAR) 48 CFR part 6.

PART 1209--CONTRACTOR QUALIFICATIONS

    7. Subpart 1209.4 is added to read as follows:

Subpart 1209.4--Debarment, Suspension, and Ineligibility


Sec. 1209.408-70  Denial of funds.

    (a) In accordance with Section 558 of the National Defense 
Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and Section 
206 of the Coast Guard Authorization Act of 1996 (Pub. L. 104-324), no 
funds available under appropriations acts for any fiscal year for DOT 
may (with respect to recruiting) be provided by contract to any 
institution of higher education that has a policy or practice, 
regardless of when implemented, that either prohibits or in effect 
prevents the Secretary of Defense from obtaining for military 
recruiting purposes:
    (1) Entry to campuses or access to students on campuses; or
    (2) Access to directory information on students.
    (b) Directory information means the student's name, address, 
telephone listing, date and place of birth, level of education, 
academic major, degrees received, and the most recent educational 
institution in which the student was enrolled.
    (c) Students referred to in paragraph (a)(1) of this section are 
individuals who are 17 years of age or older and are enrolled at a 
covered school.
    (d) Covered school means an institution of higher education, or a 
subelement of an institution of higher education.

PART 1214--SEALED BIDDING

    8. Section 1214.303 is removed.

PART 1216--TYPES OF CONTRACTS

    9. Section 1216.405 is redesignated as section 1216.406 and 
paragraphs (a) through (c) are redesignated as (e)(1)(i) through (iii), 
respectively.

PART 1217--SPECIAL CONTRACTING METHODS

    10. Subpart 1217.1 (1217.102 and 1217.102-1) is removed.

PART 1222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    11. Subpart 1222.6 (1222.608 and 1222.608-4) is removed.

PART 1224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION:

    12. Section 1224.202 is redesignated as section 1224.203.

PART 1225--FOREIGN ACQUISITION

    13. Part 1225 (FAA Supplement) is removed and reserved.

PART 1236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    14. Section 1236.602-1 is amended by removing paragraphs (a), 
(a)(1) through (a)(5)(iii), and (c).

PART 1237--SERVICE CONTRACTING

    15. Section 1237.104-90 is revised and 1237.104-91 is added to read 
as follows:


Sec. 1237.104-90  Delegation of authority. (USCG)

    (a) Section 733(a) of Pub. L. 104-106, the DOD Authorization Act of 
1996, amended Title 10 of the United States Code to include a new 
provision which authorizes the Secretary, with respect to the Coast 
Guard, to enter into personal services contracts at medical treatment 
facilities (10 U.S.C. 1091).
    (b) The authority of the Secretary of Transportation under Pub. L. 
104-106 to award personal services contracts for medical services at 
facilities for the Coast Guard is delegated to the HCA with the 
authority to redelegate to contracting officers under procedures 
established by the HCA, who will address applicable statutory 
limitations under Section 1091A of Title 10 U.S.C.


Sec. 1237.104-91  Personal services contracts with individuals under 
the authority of 10 U.S.C. 1091 (USCG).

    (a) Personal services contracts for health care services are 
authorized by 10 U.S.C. 1091 for the Coast Guard. Sources for contracts 
for health care services under the authority of 10 U.S.C. 1091 shall be 
selected through procedures established in this section. These 
procedures do not apply to contracts awarded to business entities other 
than individuals. Selections made using the procedures in this section 
are exempt by statute from (TAR) 48 CFR part 1206 competition 
requirements (see (TAR) 48 CFR 1206.9000 (USCG)) and from (FAR) 48 CFR 
Part 6 competition requirements.
    (b) The contracting officer must provide adequate advance notice of 
contracting opportunities to individuals residing in the area of the 
facility. The notice should include the qualification criteria against 
which individuals responding shall be evaluated. Contracting officers 
shall solicit offerors through the most effective means of seeking 
competition, such as a local publication which serves the area of the 
facility. Acquisitions for health care services using personal services 
contracts are exempt from posting and synopsis requirements of (FAR) 48 
CFR part 5.
    (c) The contracting officer shall provide the qualifications of 
individuals responding to the notice to the representative(s) 
responsible for evaluation and ranking in accordance with the 
evaluation procedures. Individuals must be considered solely on the 
professional qualifications established for the particular health care 
services being acquired and the Government's estimate of reasonable 
rates, fees, or costs. The representative(s) responsible for the 
evaluation and ranking shall provide the contracting officer with 
rationale for the ranking of the individuals consistent with the 
required qualifications.
    (d) Upon receipt of the ranked listing of offerors, the contracting 
officer shall either:

[[Page 67752]]

    (1) Enter into negotiations with the highest ranked offeror. If a 
mutually satisfactory contract cannot be negotiated, the contracting 
officer shall terminate negotiations with the highest ranked offeror 
and enter into negotiations with the next highest, or;
    (2) Enter into negotiations with all qualified offerors and select 
on the basis of qualifications and rates, fees, or other costs.
    (e) In the event only one individual responds to an advertised 
requirement, the contracting officer is authorized to negotiate the 
contract award. In this case, the individual must still meet the 
minimum qualifications of the requirement and the contracting officer 
must be able to make a determination that the price is fair and 
reasonable.
    (f) If a fair and reasonable price cannot be obtained from a 
qualified individual, the requirement should be canceled and acquired 
using procedures other than those set forth in this section.
    (g) The total amount paid to an individual in any year for health 
care services under a personal services contract shall not exceed the 
paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition 
Procedures.
    (h) The contract may provide for the same per diem and travel 
expenses authorized for a Government employee, including actual 
transportation and per diem in lieu of subsistence for travel between 
home or place of business and official duty station and only for travel 
outside the local area in support of the statement of work.
    (i) Coordinate benefits, taxes and maintenance of records with the 
appropriate office(s).
    (j) The contracting officer shall insure that contract funds are 
sufficient to cover all contingency items that may be cited in the 
statement of work for health care services.

PART 1246--QUALITY ASSURANCE

    16. Section 1246.705 is amended by revising paragraph (a)(3) to 
read as follows:


Sec. 1246.705  Limitations.

    (a) * * *
    (3) Any warranty obtained shall specifically exclude coverage of 
damage in time of war or national emergency.

PART 1252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    17. Section 1252.223-70, 1252.228-70, 1252.228-72 are revised to 
read as follows and 1252.225-90 and 1252.225-91 are removed


Sec. 1252.223-70  Removal or disposal of hazardous substances--
applicable licenses and permits.

    As prescribed in (TAR) 48 CFR 1223.303, insert the following 
clause:

Removal or Disposal of Hazardous Substances--Applicable Licenses and 
Permits (Dec. 1997)

    The Contractor must have all licenses and permits required by 
Federal, state, and local laws to perform hazardous substance(s) 
removal or disposal services. If the Contractor does not currently 
possess these documents, it must obtain all requisite licenses and 
permits within __ days after date of award. The Contractor shall 
provide evidence of said documents to the Contracting Officer or 
designated Government representative prior to commencement of work 
under the contract.

(End of clause)


Sec. 1252.228-70  Loss of or damage to leased aircraft.

    As prescribed in (TAR) 48 CFR 1228.306-70 (a) and (b), insert the 
following clause:

Loss of or Damage to Leased Aircraft (Dec. 1997)

    (a) The Government assumes all risk of loss of, or damage 
(except normal wear and tear) to, the leased aircraft during the 
term of this lease while the aircraft is in the possession of the 
Government.
    (b) In the event of damage to the aircraft, the Government, at 
its option, shall make the necessary repairs with its own facilities 
or by contract, or pay the Contractor the reasonable cost of repair 
of the aircraft.
    (c) In the event the aircraft is lost or damaged beyond repair, 
the Government shall pay the Contractor a sum equal to the fair 
market value of the aircraft at the time of such loss or damage, 
which value may be specifically agreed to in clause 1252.228-71, 
``Fair Market Value of Aircraft,'' less the salvage value of the 
aircraft. However, the Government may retain the damaged aircraft or 
dispose of it as it wishes. In that event, the Contractor will be 
paid the fair market value of the aircraft as stated in the clause.
    (d) The Contractor agrees that the contract price does not 
include any cost attributable to hull insurance or to any reserve 
fund it has established to protect its interest in the aircraft. If, 
in the event of loss or damage to the leased aircraft, the 
Contractor receives compensation for such loss or damage in any form 
from any source, the amount of such compensation shall be:
    (1) Credited to the Government in determining the amount of the 
Government's liability; or
    (2) For an increment of value of the aircraft beyond the value 
for which the Government is responsible.
    (e) In the event of loss of or damage to the aircraft, the 
Government shall be subrogated to all rights of recovery by the 
Contractor against third parties for such loss or damage and the 
Contractor shall promptly assign such rights in writing to the 
Government.

(End of clause)


Sec. 1252.228-72  Risk and indemnities.

    As prescribed in (TAR) 48 CFR 1228.306-70(a) and (d), insert the 
following clause:

Risk and Indemnities (Dec. 1997)

    The Contractor hereby agrees to indemnify and hold harmless the 
Government, its officers and employees from and against all claims, 
demands, damages, liabilities, losses, suits and judgments 
(including all costs and expenses incident thereto) which may be 
suffered by, accrue against, be charged to or recoverable from the 
Government, its officers and employees by reason of injury to or 
death of any person other than officers, agents, or employees of the 
Government or by reason of damage to property of others of 
whatsoever kind (other than the property of the Government, its 
officers, agents or employees) arising out of the operation of the 
aircraft. In the event the Contractor holds or obtains insurance in 
support of this covenant, evidence of insurance shall be delivered 
to the Contracting Officer.

(End of clause)
TAR MATRIX
    18. In Part 1253, subpart 1253.3, is amended by removing the 
entries for ``FAA 1252.225-90'' and ``FAA 1252.225-91'' from the TAR 
matrix.

[FR Doc. 97-33688 Filed 12-29-97; 8:45 am]
BILLING CODE 4910-62-P