Department of the Interior Acquisition Regulation; Internal Procedures

DEPARTMENT OF THE INTERIOR

Office of the Secretary

48 CFR Parts 1415, 1426, 1428 and 1452

RIN 1090-AA52

Department of the Interior Acquisition Regulation; Internal

Procedures

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: In the interests of streamlining processes and improving

relationships with contractors, this final rule amends the Department

of the Interior Acquisition Regulation by removing nonessential

portions of those regulations. Internal procedures regarding disclosure

and use of information before award, unsolicited proposals, handling of

preaward mistakes, proposal evaluation, price negotiation, and profit

analysis are being removed. Guidance on Indian Preference contracting,

formerly located in Part 1404, is being reinstated as Part 1426.

Aircraft insurance clauses have been revised.

EFFECTIVE DATE: November 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Dee Emmerich, Office of Acquisition and Property Management, (202) 208-

3348.

SUPPLEMENTARY INFORMATION: Under the auspices of the National

Performance Review, a thorough review of the Department of the Interior

Acquisition Regulation (DIAR) was conducted. The review revealed

unnecessary and outdated regulations, and some excessively burdensome

procedures.

In the interests of streamlining processes and improving

relationships with contractors, nonessential portions of the DIAR are

being removed from the CFR. The eight sections being removed from part

1415 deal with exclusively internal procedures so codification is not

necessary. Section 1415.106 is retained without change.

When the DIAR was issued in 1984 as a supplement to the Federal

Acquisition Regulation (FAR), FAR Part 26, Other Socioeconomic

Programs, did not exist. There being no alternative at the time,

Interior-unique guidance on contracting under Indian preference

procedures was issued as a supplement to FAR Part 4, Administrative

Matters. Therefore, the guidance formerly located at 1404.70 has been

removed, is being replaced in new subpart 1426.70 with only editorial

changes to cross-references and so forth. The clauses formerly located

at 1452.204 are relocated to 1452.226.

The removal of sections 1428.101 and 1428.104, regarding central

maintenance of bid bond information, will simplify DOI's internal

management and eliminate unnecessary paperwork. Editorial revisions

have been made to 1428.306 and 1428.311. 1452.228-70(b) was revised to

relieve contractors of the requirement to use registered mail and to

specify that a certificate of insurance constitutes adequate proof of

insurance.

The title of 1452.228-73 was edited. There were no changes to

1452.228-7, 1452.228-71, or 1452.227-72.

Required Determinations

The Department believes that public comment is unnecessary because

the material being removed is outdated or deals exclusively with

internal procedures. Therefore, in accordance with 5 U.S.C. 553(b)(B),

the Department finds good cause to publish this document as a final

rule. This rule was not subject to Office of Management and Budget

review under Executive Order 12866. This rule does not contain a

collection of information subject to the Paperwork Reduction Act of

1980 (44 U.S.C. 3501 et seq.). In accordance with the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the Department has determined

that this rule will not have a significant economic impact on a

substantial number of small entities because no requirements are being

added for small businesses and no protections are being withdrawn. The

Department has determined that this rule does not constitute a major

Federal action having a significant impact on the human environment

under the National Environmental Policy Act of 1969. The Department has

certified that this rule meets the applicable standards provided in

Sections 2(a) and 2(b)(2) of Executive Order 12778.

List of Subjects in 48 CFR Parts 1415, 1426, 1428 and 1452

Government procurement, Reporting and recordkeeping requirements.

Dated: August 8, 1995.

Robert J. Lamb,

Acting Assistant Secretary, Policy Management and Budget.

Chapter 14 of Title 48 of the Code of Federal Regulations is

amended as follows:

[[Page 53279]]

1. The authority citation for 48 CFR Parts 1415 and 1452 continues

to read as follows:

Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5

U.S.C. 301.

PART 1415--[AMENDED]

2. Part 1415 is amended by removing subparts 1415.4, 1415.5,

1415.6, 1415.8 and 1415.9.

3. Part 1426 is added to subchapter D to read as follows:

PART 1426--OTHER SOCIO-ECONOMIC PROGRAMS

Subpart 1426.70--Indian Preference

1426.7000 Scope of subpart.

1426.7001 Definitions.

1426.7002 Statutory requirements.

1426.7003 Applicability and contract clause.

1426.7004 Compliance enforcement.

1426.7005 Tribal preference requirements.

Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c) and 5

U.S.C. 301); Pub. L. 93-638, 88 Stat. 2205 (25 U.S.C. 450e(b)).

Subpart 1426.70--Indian Preference

1426.7000 Scope of subpart.

This subpart prescribes policies and procedures for implementation

of section 7(b) of the Indian Self-Determination and Education

Assistance Act (Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b)).

1426.7001 Definitions.

For purposes of this subpart the following definitions shall apply:

Indian means a person who is a member of an Indian Tribe. If the

contractor has reason to doubt that a person seeking employment

preference is an Indian, the contractor shall grant the preference but

shall require the individual within thirty (30) days to provide

evidence from the Tribe concerned that the person is a member of the

Tribe.

Indian organization means that governing body of any Indian Tribe

or entity established or recognized by such governing body in

accordance with the Indian Financing Act of 1974 (Pub. L. 93-262, 88

Stat. 77; 25 U.S.C. 1451).

Indian-owned economic enterprise means any Indian-owned commercial,

industrial, or business activity established or organized for the

purpose of profit provided that such Indian ownership shall constitute

not less than 51 percent of the enterprise.

Indian reservation includes Indian reservations, public domain

Indian allotments, former Indian reservations in Oklahoma, and land

held by incorporated Native groups, regional corporations, and village

corporations under the provisions of the Alaska Native Claims

Settlement Act, (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601 et seq.).

Indian Tribe means an Indian Tribe, band, nation, or other

recognized group or community, including any Alaska Native village or

regional or village corporation as defined in or established pursuant

to the Alaska Native Claims Settlement Act (Pub. L. 92-203, 85 Stat.

688; 43 U.S.C. 1601), which is recognized as eligible for the special

programs and services provided by the United States to Indians because

of their status as Indians.

On or near an Indian reservation means on a reservation or the

distance within that area surrounding an Indian reservation(s) that a

persons seeking employment could reasonably be expected to commute to

and from in the course of a work day.

1426.7002 Statutory requirements.

Section 7(b) of the Indian Self-Determination and Education

Assistance Act requires that any contract or subcontract entered into

pursuant to that Act, the Act of April 16, 1934 (48 Stat. 596; 25

U.S.C. 452), as amended, (the Johnson-O'Malley Act), or any other Act

authorizing contracts with Indian organizations or for the benefit of

Indians shall require that, to the greatest extent feasible:

(a) Preferences and opportunities for training and employment in

connection with the administration of such contracts shall be given to

Indians, and

(b) Preference in the award of subcontracts in connection with the

administration of such contracts shall be given to Indian organizations

and to Indian-owned economic enterprises as defined in section 3 of the

Indian Financing Act of 1974 (Sec. 3, Pub. L. 93-262; 88 Stat. 77; 25

U.S.C. 1452).

1426.7003 Applicability and contract clause.

(a) The Contracting Officer (CO) shall insert the clause at

1452.226-70, Indian Preference--Department of the Interior, in

solicitations issued and contracts awarded by

(1) The Bureau of Indian Affairs,

(2) A contracting activity other than the Bureau of Indian Affairs

when the contract is entered into pursuant to an act specifically

authorizing contracts with Indian organizations and

(3) A contracting activity other than the Bureau of Indian Affairs

where the work to be performed is specifically for the benefit of

Indians and is in addition to any incidental benefits which might

otherwise accrue to the general public.

(b) The CO shall insert the clause at 1452.226-71, Indian

Preference Program--Department of the Interior, in all solicitations

issued and contracts awarded by a contracting activity which may exceed

$50,000, which contain the clause required by paragraph (a) of this

section and where it is determined by the CO, prior to solicitation,

that the work under the contract will be performed in whole or in part

on or near an Indian reservation(s). The Indian Preference Program

clause may also be included in solicitations issued and contracts

awarded by a contracting activity which may not exceed $50,000, but

which contain the clause required by paragraph (a) of this section and

which, in the opinion of the CO, offer substantial opportunities for

Indian employment, training or subcontracting.

1426.7004 Compliance enforcement.

(a) The CO is responsible for conducting periodic reviews of the

contractor to ensure compliance with the requirements of the clauses

prescribed in 1426.7003. These reviews may be conducted with the

assistance of the Indian Tribe(s) concerned.

(b) Complaints of noncompliance with the requirements of the

clauses prescribed under 1426.7003 which are received in writing by the

contracting activity shall be promptly investigated by the CO and a

written disposition of the complaint shall be prepared.

1426.7005 Tribal preference requirements.

(a) Where the work under a contract is to be performed on an Indian

reservation, the CO may supplement the clause at 1452.226-71, Indian

Preference Program--Department of the Interior, by adding specific

Indian preference requirements of the Tribe on whose reservation the

work is to be performed. The supplemental requirements shall be jointly

developed for the contract by the CO and the Tribe. Supplemental

preference requirements must represent a further implementation of the

requirements of section 7(b) of Public Law 93-638 and must be approved

by the SOL for legal sufficiency before being added to a solicitation

and resultant contract. Any supplemental preference requirements to be

added to the clause at 1452.226-71 shall be included in the

solicitation and clearly identified in order to ensure uniform

understanding of the additional requirements by all prospective bidders

or offerors.

(b) Nothing in this subpart shall be interpreted to preclude Tribes

from independently developing and enforcing their own tribal preference

requirements. Such independently developed tribal preference

requirements shall not, except as

[[Page 53280]]

provided in paragraph (a) of this section, become a requirement in

contracts covered under this subpart 1426.70 and must not hinder the

Government's right to award contracts and to administer their

provisions.

4. Part 1428 is revised to read as follows:

PART 1428--BONDS AND INSURANCE

Subpart 1428.3--Insurance

Sec.

1428.301 Policy.

1428.306 Insurance under fixed-price contracts.

1428.306-70 Insurance for aircraft service contracts.

1428.311 Solicitation provision and contract clause on liability

insurance under cost-reimbursement contracts.

1428.311-2 Contract clause.

Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5

U.S.C. 301.

Subpart 1428.3--Insurance

1428.301 Policy.

It is the policy of DOI to insure its own risks only when such

action is in the best interest of the Government. Circumstances where

contractors are required to carry insurance are listed under FAR 28.301

and 28.306. In these circumstances, the CO shall insert the clause at

1452.228-70, Liability Insurance--Department of the Interior, in

solicitations and contracts.

1428.306 Insurance under fixed-price contracts.

1428.306-70 Insurance for aircraft services contracts.

(a) Policy. The CO shall insert minimum insurance requirements in

aircraft services contracts in order to protect the Government and its

contractors.

(b) Applicability. The clauses prescribed by paragraph (c) of this

section are applicable to all fixed-price contracts involving use of

aircraft with either a contractor-furnished or a Government-furnished

pilot except for one-time charters when Government exposure is minimal

and time limitations are present.

(c) Clauses. The following clauses shall be used as prescribed:

(1) The CO shall insert the clause at 1452.228-71, Aircraft and

General Public Liability Insurance--Department of the Interior, in

solicitations and contracts when a fixed-price contract for operation

of aircraft where the Government is using a contractor-furnished pilot

is contemplated.

(2) The CO shall insert the clause at 1452.228-72, Liability for

Loss or Damage--Department of the Interior, in solicitations and

contracts when a fixed-price contract for use of aircraft where the

Government does not have a property interest and is using a Government-

furnished pilot is contemplated.

(3) The CO shall insert the clause at 1452.228-73, Liability for

Loss or Damage--Department of the Interior (Property Interest), in

solicitations and contracts when a fixed-price contract for use of

aircraft where the Government has a property interest in the aircraft

and is using a Government-furnished pilot (e.g., a lease with purchase

option) is contemplated.

1428.311 Solicitation provision and contract clause on liability

insurance under cost-reimbursement contracts.

1428.311-2 Contract clause.

The CO shall modify the clause at FAR 52.228-7, Insurance--

Liability to Third Persons, in accordance with 1452.228-7, and insert

in solicitations and contracts as prescribed in FAR 28.311-2.

PART 1452--[AMENDED]

1452.204-7 [Redesignated as 1452.226-70]

5. 1452.204-71 is redesignated as 1452.226-70.

1452.204-72 [Redesignated as 1452.226-71]

6. 1452.204-72 is redesignated as 1452.226-71.

7. 1452.228-70 is revised to read as follows:

1452.228-70 Liability insurance.

As prescribed in 1428.301, insert the following clause in all

contracts where circumstances warrant the carrying of insurance by the

contractor (see FAR 28.301 and 28.306):

Liability Insurance--Department of the Interior (Jul 1995)

(a) The contractor shall procure and maintain during the term of

this contract and any extension thereof liability insurance in form

satisfactory to the Contracting Officer by an insurance company

which is acceptable to the Contracting Officer. The named insured

parties under the policy shall be the Contractor and the United

States of America. The amounts of the insurance shall be not less

than as follows:

$________ each person.*

$________ each occurrence.*

$________ property damage.*

(b) Each policy shall have a certificate evidencing the

insurance coverage. The insurance company shall provide an

endorsement to notify the Contracting Officer 30 days prior to the

effective date of cancellation or termination of the policy or

certificate; or modification of the policy or certificate which may

adversely affect the interest of the Government in such insurance.

The certificate shall identify the contract number, the name and

address of the Contracting Officer, as well as the insured, the

policy number and a brief description of contract services to be

performed. The contractor shall furnish the Contracting Officer with

a copy of an acceptable insurance certificate prior to beginning the

work.

* These amounts to be set by the Contracting Officer.

[End of clause]

8. 1452.228-73 is amended by revising the introductory text to read

as follows:

1452.228-73 Liability for loss or damage (property interest).

As prescribed in 1428.306-70(c)(3), insert the following clause in

all fixed-price contracts involving the use of aircraft with

Government-furnished pilot where the Government has a property interest

in the aircraft (e.g., lease with purchase option):

* * * * *

[FR Doc. 95-25206 Filed 10-12-95; 8:45 am]

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