[Federal Register Volume 61, Number 4 (Friday, January 5, 1996)]
[Rules and Regulations]
[Pages 390-393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-137]



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DEPARTMENT OF TRANSPORTATION

48 CFR Parts 1213, 1237, 1252 and 1253

RIN 2105-AC-30


Revision of Department of Transportation Acquisition Regulation; 
Procedures for Acquiring Training Services

AGENCY: Transportation.

ACTION: Final rule.

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SUMMARY: This final rule implements a Department of Transportation 
Office of the Inspector General recommendation resulting from a review 
of the acquisition of commercial training services. This final rule 
contains revisions to the Transportation Acquisition Regulation (TAR) 
which were published in the November 3, 1995 Federal Register (60 FR 
55827) as a notice of proposed rulemaking (NPRM). The revisions address 
public comments received as a result of the November 3, 1995 NPRM. The 
TAR is codified in Chapter 12 of Title 48 of the Code of Federal 
Regulations.

EFFECTIVE DATE: January 1, 1996.

FOR FURTHER INFORMATION CONTACT: Barbara Perreault Weakley, Office of 
Acquisition  and  Grant  Management, M-61, 400 Seventh Street, S.W., 
Washington, D.C. 20590: (202) 366-4967.

SUPPLEMENTARY INFORMATION:

A. Background

    On November 3, 1995, revisions to the TAR were published in the 
Federal Register (60 FR 55827) as a notice of proposed rulemaking 
(NPRM). Comments were solicited from interested parties, including the 
public and other Federal agencies. The NPRM announced the Department's 
intent to revise the TAR to require all contractors to certify that the 
data provided concerning company qualifications, background, etc., is 
current, accurate and complete; and to prohibit contractors from 
soliciting or advertising private, non-Government (to include non-
appropriated fund instrumentalities) training to students during 
contracted-for training sessions. The NPRM established a public comment 
period which closed on December 4, 1995.

B. Public Comments

    Three substantive comments were received from one commentor in 
response to the proposed rule. The Department fully considered these 
comments in developing the final rule and has reconciled the comments 
as follows:
    Comment: The clause at (TAR) 48 CFR 1252.237-72, Prohibition on 
Advertising, while better in its description of the practices the 
Department wishes to prohibit, still may be too restricted. If 
``conducting training services'' is meant to mean the act of delivering 
the contracted training, it is acceptable. If it refers to any time 
under contract with the Department, we believe it is too restrictive 
and unacceptably interferes with free enterprise and conduct of our 
business. To preclude misunderstandings, recommend the clause be 
changed to read, ``* * * shall not advertise or solicit business from 
attendees for private, non-Government training during the training 
sessions * * *.''
    Response: The comment was adopted with minor changes in wording.
    Comment: The meaning of the phrase ``non-Government'' is not clear. 
Does it mean training that is not applicable to the Government or 
training provided by ``for profit'' and ``not for profit'' companies. 
In the interest of fair competition and free enterprise, this rule 
should extend to all non-appropriated fund instrumentalities. Recommend 
the phrase ``to include non-appropriated fund instrumentalities'' be 
included after each mention of the term ``non-Government.''
    Response: The rule extends to all for profit and not for profit 
companies under contract to provide training to DOT employees. The TAR 
language is considered adequate and no change was required.
    Comment: We believe the clause at (TAR) 1252.237-72 is also too 
restrictive with regard to a common occurrence which arises while 
providing the training. Students who are interested in other subject 
areas may ask about our ability to provide such training. Literally 
interpreted, our instructors could not answer such questions. We do not 
believe this to be the intent of the clause. We recommend inserting the 
word ``unsolicited'' in the second sentence of the clause as follows, 
``This prohibition extends to unsolicited oral comments, * * *.''
    Response: The comment was adopted and (TAR) 48 CFR 1252.237-72 was 
changed to reflect this clarification.

C. Regulatory Analyses 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 sufficient Federalism implications to warrant the 
preparation of a Federalism assessment. This rule will not have a 
significant economic impact on a substantial number of small entities 
because the basic policies remain unchanged. Therefore, this rule does 
not require a regulatory flexibility analysis under the Regulatory 
Flexibility Act of 1980.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) applies because the 
final rule contains information collection requirements which require 
OMB approval under 44 U.S.C. 3501, et seq. OMB has granted approval for 
the period through April 30, 1997, under OMB Control Number 2105-0517.

List of Subjects in 48 CFR Parts 1213, 1237, 1252 and 1253

    Government procurement.

     This final rule is issued by delegated authority under 49 CFR 
1.59(q). This authority has been redelegated to the Senior Procurement 
Executive.

    Issued this 22nd day of December 1995, at Washington, DC.
David J. Litman,

Senior Procurement Executive.

Adoption of Amendments

    Title 48 of the Code of Federal Regulations, Parts 1213, 1237, 1252 
and 1253 are amended as set forth below:
    1. The authority citation for 48 CFR chapter 12, Parts 1213, 1237, 
1252 and 1253 continues to read as follows:

    Authority: 5 U.S.C. 201; 41 U.S.C. 418(b); 48 CFR 3.1.

    2. Part 1213 is amended by adding subpart 1213.71 to read as 
follows:

PART 1213--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES

Subpart 1213.71--Department of Transportation Procedures for Acquiring 
Training Services

1213.7100  Applicability.
1213.7101  Solicitation provision and contract clause.

Subpart 1213.71--Department of Transportation Procedures for 
Acquiring Training Services

Sec. 1213.7100  Applicability.

    (a) DOT policy at (TAR) 48 CFR 1237.7000 also applies to the 
Standard Form (SF) 182, Request, Authorization, Agreement and 
Certification of Training, which may be used to acquire training 
services; however, the policy does not 

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apply to training services acquired by the Government purchase/credit 
card. The Government purchase/credit card can only be used to acquire 
training services valued at $2,500 or less.
    (b) As reflected in (TAR) 48 CFR 1237.7002, this policy does not 
apply to training attended by DOT employees which 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 this 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.


Sec. 1213.7101  Solicitation provision and contract clause.

    (a) Contracting officers shall insert the provision at (TAR) 48 CFR 
1252.237-71, Certification of Data, in all solicitations and requests 
for quotations, and the clause at (TAR) 48 CFR 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 
incorporated 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 1237--SERVICE CONTRACTING

    3. Subpart 1237.70, Department of Transportation Procedures for 
Acquiring Training Services, is added to read as follows:
Subpart 1237.70--Department of Transportation Procedures for Acquiring 
Training Services
1237.7000  Policy.
1237.7001  Certification of data.
1237.7002  Applicability.
1237.7003  Solicitation provision and contract clause.

Subpart 1237.70--Department of Transportation Procedures for 
Acquiring Training Services


Sec. 1237.7000  Policy.

    When training services are provided under contract to DOT, it is 
the policy of DOT that all prospective contractors:
    (a) Certify that the data provided concerning company 
qualifications, background statements, etc., is current, accurate, and 
complete; and
    (b) Agree to not solicit or advertise private, non-Government 
training while conducting a training course.


Sec. 1237.7001  Certification of data.

    Towards fulfilling DOT's policy at (TAR) 48 CFR 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.


Sec. 1237.7002  Applicability.

    The policy at (TAR) 48 CFR 1237.7000 applies to all DOT contracts 
as defined in FAR 2.101 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 which 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 (TAR) 48 CFR 1213.7100 for examples.)


Sec. 1237.7003  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at (TAR) 48 
CFR 1252.237-71, Certification of Data, in solicitations and the clause 
at (TAR) 48 CFR 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) Contracting officers shall incorporate the successful offeror's 
certified data into any resultant contract(s). Certified data may be 
incorporated 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 1252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Part 1252 is amended to add 1252.237-71 and 1252.237-72 in 
subpart 1252.2 as follows:

Subpart 1252.2--Texts of Provisions and Clauses


Sec. 1252.237-71  Certification of data.

    As prescribed in (TAR) 48 CFR 1213.7101 and 1237.7003, insert the 
following provisions:

Certification of Data (Jan 1996)

    (a) The offeror represents and certifies that to the best of its 
knowledge and belief, the information and/or data (e.g., company 
profile, qualifications, background statements, brochures) submitted 
with its offer is current, accurate, and complete as of the date of 
its offer.
    (b) The offeror understands that any inaccurate data provided to 
the Department of Transportation may subject the offeror, its 
subcontractors, its employees, or its representatives to: (1) 
prosecution for false statements pursuant to 18 U.S.C. 1001 and/or; 
(2) enforcement action for false claims or statements pursuant to 
the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-2812 
and 49 CFR part 31 and/or; (3) termination for default under any 
contract resulting from its offer and/or; (4) debarment or 
suspension.
    (c) The offeror agrees to obtain a similar certification from 
its subcontractors.

Signature:-------------------------------------------------------------

Date:------------------------------------------------------------------

Typed Name and Title:--------------------------------------------------

Company Name:----------------------------------------------------------

    This certification concerns a matter within the jurisdiction of 
an agency of the United States and the making of a false, 
fictitious, or fraudulent certification may render the maker subject 
to prosecution under Title 18, United States Code, Section 1001.

(End of provision)


Sec. 1252.237-72  Prohibition on advertising.

    As prescribed in (TAR) 48 CFR 1213.7002 and 1237.7003, insert the 
following clause:

Prohibition on Advertising (Jan. 1996)

    The contractor or its representatives (including training 
instructors) shall not advertise or solicit business from attendees 
for private, non-Government training during contracted-for training 
sessions. This prohibition extends to unsolicited oral comments, 
distribution or sales of written materials, and/or sales of 
promotional videos or audio tapes.
    The contractor agrees to insert this clause in its subcontracts. 


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(End of clause)

PART 1253--FORMS

    5. In the appendix to Subpart 1253.3, the (TAR) Matrix is amended 
by adding 1252.237-71, Certification of Data, and 1252.237-72, 
Prohibition on Advertising, immediately following 1252.237-70, 
Qualifications of Employees, as follows:

Appendix to Subpart 1253.3

*  *  *  *  *  *  *

                                                                                                               Tar Matrix                                                                                                               
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                                                                                                                                             Principle type and/or purpose of contract                                                  
                                                      Prescribed   P  or                 -----------------------------------------------------------------------------------------------------------------------------------------------
                 Provision or clause                      in         C      IBR     UCF                                                                                     COM                             IND                     UTL 
                                                                                          FP SUP  CR SUP  FP R&D  CR R&D  FP SVC  CR SVC  FP CON  CR CON  T&M LH    LMV     SVC     DDR     A&E     FAC     DEL     TRN     SP      SVC 
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1252.237-71 Certification of Data...................   1237.7003      P      No       K   ......  ......  ......  ......      A       A   ......  ......  ......  ......      A   ......  ......  ......      A   ......      A   ......
1252.237-72 Prohibition on Advertising..............   1237.7003       C     No       I   ......  ......  ......  ......      A       A   ......  ......  ......  ......      A   ......  ......  ......      A   ......      A   ......
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[FR Doc. 96-137 Filed 1-4-96; 8:45 am]
BILLING CODE 4910-62-P