Revision of Department of Transportation Acquisition Regulation

DEPARTMENT OF TRANSPORTATION

48 CFR Parts 1213, 1237 and 1252

[Docket OST-95-775; Notice 95-13]

RIN 2105-AC-30

Revision of Department of Transportation Acquisition Regulation

AGENCY: Transportation.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The proposed rule implements a Department of Transportation

Office of the Inspector General recommendation resulting from a review

on the acquisition of commercial training services. The Department is

proposing to amend the Transportation Acquisition Regulation (TAR) to:

Require all offerors to certify that the data provided concerning

company qualifications, background, etc. is current, accurate and

complete; and prohibit contractors from soliciting or advertising

private, non-Government training while under contract to the

Department.

DATES: Comments must be received on or before December 4, 1995, to be

considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments,

preferably in triplicate, to Docket Clerk, Docket No. OST-95-775,

Department of Transportation, 400 Seventh Street, S.W., Room 4107,

Washington, D.C. 20590. Please cite TAR revision in all correspondence

concerning this proposal.

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:

Comments Invited

Interested persons are invited to participate in the making of the

proposed rule by submitting such written data, views, or arguments as

they desire. Communications shall identify the Rules Docket number and

be submitted in triplicate to the address specified above. All

communications received on or before the closing date for comments

specified above will be considered before taking action on the proposed

rule. The proposals contained in this notice may be changed in light of

the comments received.

Comments are specifically invited on the proposed approach

(obtaining certification of data submitted with offers, bids or

proposals), including suggested alternative approaches to obtaining the

required information from industry. In particular, the Department is

exploring ways to reduce paperwork burden on small businesses. All

comments submitted will be available, both before and after the closing

date for comments, in the Rules Docket for examination by interested

persons.

A. Background

It is the policy of the Department of Transportation to require

prospective training service contractors (educational institutions,

large and small businesses) to certify the data provided concerning

qualifications, background statements, etc., are current, accurate, and

complete at the time of submitting a quotation or an offer. In

addition, DOT considers inappropriate the soliciting, advertising or

marketing of related or unrelated training during the conduct of

training (i.e., courses, seminars, classes) while under contract to

DOT. Solicitation provisions and a contract clause will be incorporated

into the TAR requiring offeror certification and prohibiting the

marketing of an institution's or vendor's training resources while

conducting training under contract to DOT.

The proposed rule does not duplicate, overlap, or conflict with any

other Federal rules.

B. 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

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.

C. Paperwork Reduction Act

The information collection requirements associated with this rule

are being submitted to the Office of Management and Budget (OMB) for

approval in accordance with 44 U.S.C. Chapter 35 under OMB No. 2105-AC-

30; Administration: Office of the Secretary of Transportation; Title:

Amendment to Transportation Acquisition Regulation; Need for

Information: To require certification of capability statements and

background data submitted per the requirements of the solicitation or

request for quotation; Proposed Use of Information: To verify accuracy

and completeness of offerors' capability statements and data submitted

per the requirements of the solicitation or request for quotation;

Frequency: On occasion; Burden Estimate: 792 hours; Forms: None;

Average Burden Hours Per Respondent: 1 hour, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

certification requirements. Comments on the proposed information

collection requirement should be sent to the DOT rulemaking docket for

this proposed action and comments may also be submitted to: Office of

Management and Budget, Office of Information and Regulatory Affairs,

Washington, D.C. 20503, Attention: Desk Officer for the Department of

Transportation.

This proposal revises record keeping and information collection

requirements and require approval of OMB under 44 U.S.C. 3501, et seq.

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

Government procurement.

This NPRM is issued under the delegated authority of 49 CFR Part

1.59(q). This authority has been redelegated to the Senior Procurement

Executive. Issued this 26th day of October 1995, at Washington, D.C.

David J. Litman,

Senior Procurement Executive.

Adoption of Amendments

For the reasons set out in the preamble, 48 CFR Chapter 12 is

proposed to be amended as set forth below:

1. The authority citation for 48 CFR chapter 12, Parts 1213, 1237,

and 1252 continues to read as follows:

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

PART 1213--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES

2. Part 1213 is amended by adding subpart 1213.71, Department of

Transportation Procedures for Acquiring Training Services as follows:

Subpart 1213.71--Department of Transportation Procedures for

Acquiring Training Services

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 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.

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 as follows:

SUBPART 1237.70--DEPARTMENT OF TRANSPORTATION PROCEDURES FOR

ACQUIRING TRAINING SERVICES

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.

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.

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 the 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.)

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 sections 1252.237-71 and 1252.237-72

to read as follows:

1252.237-71 Certification of data.

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

following provision:

CERTIFICATION OF DATA (OCT 1995)

(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. 3801-3812

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)

1252.237-72 Prohibition on advertising.

As prescribed in (TAR) 48 CFR 1213.7001 and 1237.7003, insert the

following clause:

PROHIBITION ON ADVERTISING (OCT 1995)

The contractor or its representatives (including training

instructors) shall not advertise or solicit business for private,

non-Government training while conducting training services under

this contract. This prohibition extends to oral comments,

distribution or sales of written materials, and/or sales of

promotional videos or audio tapes regarding non-Government training

opportunities.

The contractor agrees to insert this clause in its sub-

contracts.

(End of clause)

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

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Tar Matrix

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Principle type and/or purpose of contract

Prescribed -----------------------------------------------------------------------------------------------------------------------------

Provision or clause In P or C IBR UCF FP CR FP CR FP CR FP CR T&M COM IND UTL

SUP SUP R&D R&D SVC SVC CON CON LH LMV SVC DDR A&E FAC DEL TRN SP SVC

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1252.237-71 Certification of 1237.7003 P No K ..... ..... ..... ..... A A ..... ..... ..... ..... A ..... ..... ..... A ..... A

Data.

1252.237-72 Prohibition on 1237.7003 C No I ..... ..... ..... ..... A A ..... ..... ..... ..... A ..... ..... ..... A ..... A

Advertising.

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[FR Doc. 95-27248 Filed 11-2-95; 8:45 am]

BILLING CODE 4910-62-P