CHAPTER 1201

FEDERAL ACQUISITION REGULATIONS SYSTEM

SUBCHAPTER 1201.1--PURPOSE, AUTHORITY, ISSUANCE

1201.101 Purpose.

The Department of Transportation Acquisition Manual (TAM) is issued by the Senior Procurement Executive (SPE), Office of the Senior Procurement Executive (OSPE). It establishes for the Department of Transportation (DOT) uniform internal operating acquisition procedures, which implement or supplement the Federal Acquisition Regulation (FAR) and the Transportation Acquisition Regulation (TAR), other agency regulations and statutory requirements.

1201.102 Statement of guiding principles for the Federal Acquisition System.

(a) To create a world class acquisition system that delivers best value products or services to the customer, each OA must follow DOT's Procurement Performance Management System (PPMS) including its policy principles. This system was developed in partnership with and is maintained by the Procurement Management Council (PMC).  Implementation of the PPMS is the responsibility of the Head of the Contracting Activity (HCA).

1201.103 Authority.

The TAM is issued pursuant to DOT Order 4200.18 series, Establishment of a Transportation Acquisition Manual.

1201.104 Applicability.

All acquisitions within the Department are to follow this manual unless otherwise excluded by the FAR, TAR, or this manual.

1201.105 Issuance.

1201.105-170 Publication of TAM.

This manual is issued electronically on the internet at www.dot.gov/ost/m60/earl/tam.htm.

1201.105-270 Arrangement of TAM.

(b) Numbering. (1) This manual conforms to the arrangement and numbering system prescribed by (FAR) 48 C.F.R. 1.105. The numbering illustrations at (FAR) 48 C.F.R. 1.105-2(b) are equally applicable to this manual. TAM addresses the specific paragraphs for which supplementation or implementation applies. For example, this paragraph supplements (FAR) 48 C.F.R. 1.105-2(b)(1); therefore, the only paragraphs cited in TAM 1201.105-270 would be paragraphs (b) and (1).

(2) TAM coverage is identified by the prefix "12" and followed by the complete TAM cite which may be as specific as the paragraph level (e.g., TAM 1201.105-3(a)).

(3) Coverage in the TAM that supplements the FAR will use chapter, subchapter, section and subsection numbers ending in "70" through "89" (e.g., TAM 1201.105-270).

(4) Coverage in the TAM, other than that identified with a "70" or higher number, that implements the FAR or TAR will use the identical number sequence and caption of the FAR or TAR segment being implemented which may be down to the paragraph level (e.g., TAM 1201.602-3(a)).

(c) References and citations. This manual may be referred to as the Transportation Acquisition Manual or the TAM. Cross references to the FAR, TAR, or TAM in this manual will be cited by "FAR", "TAR", or "TAM" followed by its numbered cite. As an electronic document, the TAM contains many links (identified by blue print) to the word or term referenced in the text. An Electronic Acquisition Reference Library (EARL) is also available to research words or terms referenced or cited within the TAM. The EARL is internet-based, maintained by OSPE, and is available via the internet at http://www.dot.gov/ost/m60/elecacq.htm.

1201.105-3 Copies.

(a) The TAM is issued electronically through the E-TAM and available via the internet at http://www.dot.gov/ost/m60/earl/tam.htm. Hardcopies can only be obtained by downloading the TAM since individual hardcopy distribution of the TAM is not made.

1201.106 OMB Approval Under the Paperwork Reduction Act. Prior to obligating funds and entering into a contractual agreement for information collection activities, the contracting officer shall obtain a clearance and approval from OMB. The SF-83, Request for OMB Review, shall be used to request OMB's review and approval. Operating administration (OAs) Paperwork Clearance Officers are available to assist in preparing the information collection justification for the SF-83.

(a) Data collection under proposed contracts. SF-83s must be forwarded to the Office of the Chief Information Officer (CIO), (S-80), for processing to OMB. Early coordination with Paperwork Clearance Officers and S-81 prior to release of the solicitation should prevent delays caused by the requirement to obtain OMB approval.

(b) Data collection under TAR Supplements. An SF-83, along with the calculations used to derive the numbers shown on the SF-83, shall be forwarded to the SPE along with the proposed TAR Supplement coverage (see TAM 1201.304) for coordination with S-81.

SUBCHAPTER 1201.2--ADMINISTRATION

1201.202-70 Departmental compliance with the FAR, TAR, and TAM.

Personnel with questions concerning the FAR, TAR, and TAM may utilize the Listing of Responsible SPE Office Personnel for FAR, TAR, and TAM to identify the appropriate individual to contact within OSPE by Part/Chapter.

SUBCHAPTER 1201.3--AGENCY ACQUISITION REGULATIONS

1201.301 Policy.

(a)(1) Delegations of FAR procurement authority. The following is applicable with respect to delegations of procurement authority within DOT:

(i) Agency head delegations. There are certain (FAR) 48 C.F.R. functions which are non-delegable and reserved by the Secretary and there are some functions that can be delegated. All reserved and delegated functions (either to the Office of the Secretary (OST) or the OAs) to one or more individuals are reflected in the applicable chapters of this manual usually by the words “is non-delegable,”  “is authorized” or “is the individual authorized.”

(A) For those functions that are delegated, the chapters indicate the lowest organizational level for performance of that function. The delegated levels reflected in this manual may be changed to an equivalent or higher level by the Assistant Secretary for Administration or other responsible OST official for OST assigned functions and by the Head of the Operating Administration (HOA) for OA assigned functions. For example, the HOA may change the “debarring official” in TAM 1209.403 from the HCA to the higher HOA level.

Any changes by the HOA to the delegated levels reflected in this manual must be in writing and stored in a centralized location within the OA. A copy of the delegation must be submitted to the SPE upon request.

(B) Lower organizational levels for FAR and TAR agency head functions must be authorized by the SPE (who will coordinate with other OST officials as deemed appropriate).

(ii) Head of the Contracting Activity (HCA) functions. There are certain (FAR) 48 C.F.R. functions which are non-delegable and reserved for the HCA or equivalent organizational level; these reserved functions are reflected in the applicable chapter of this manual. For delegable functions, compliance with the level reflected in the applicable chapter of this manual or the TAR is required unless otherwise authorized by the HCA.

(A) Notwithstanding the above, the HOA or designee at an organizational level equal to or above the HCA may retain both delegable and non-delegable functions assigned to the HCA.

(B) Approved HCA functional delegations which are different from those specified in this manual shall be in writing and stored in a centralized location within the OA. A copy of the delegation shall be submitted to the SPE within 30 days of issuance.

(iii) Any other authorities of this manual besides those mentioned in TAM 1201.301(a)(1)(i) or (ii)  may be authorized to a higher level within the OA than that stipulated in this manual unless specified otherwise. Any authorities assigned or re-delegated pursuant to this paragraph shall be in writing and stored in a centralized location within the OA. A copy of the assignment/re-delegation shall be submitted to the SPE upon request.

1201.301-70 Amendment of TAM.

(a) TAM changes may be the result of suggestions by DOT personnel, other Government agencies, or the public. Proposed changes to this manual, along with rationale for the change, must be submitted in accordance with the format requirements of Transportation Acquisition Regulation 1201.301-70 and submitted to the Department of Transportation, Office of the Senior Procurement Executive (M-60), 400 7th Street, S.W., Washington, D.C. 20590 or by contacting the responsible SPE staff member by electronic mail (see TAM 1201.202-70).

(b) Updates to the TAM will be summarized in a TAM NOTE published via the internet at http://www.dot.gov/ost/m60/.  When the TAM NOTE is issued, the electronic TAM is simultaneously updated to incorporate the changes.

(c) The TAM is maintained by OSPE in electronic form. Maintenance of the TAM will be made through the TAR/TAM change process.

(1) TAM Chapters. This manual will contain internal DOT acquisition procedures within chapters that supplement or implement FAR and TAR material. Chapters are normally coordinated through the TAR/TAM change process prior to issuance.

(2) TAM Notices.

(i) TAM Chapters will be amended by issuance of a TAM Notice (also referred to as a TAM NOTE);

(ii) TAM Notices are: (A) used to disseminate information that is relevant to the TAM; and (B) normally integrated into the TAM. TAM Notices may occasionally contain new material that must be issued quickly without going through the TAR/TAM change process before their release. However, subsequent to their issuance, these TAM NOTES will be disseminated for comment.

(3) TAM Appendices, Attachments, and Exhibits. At the end of TAM Chapters, Notices, and Bulletins, appendices may be used to provide supplementary material not suitable for insertion in the TAM issuance itself (e.g., tables, other agency issuances).  Appendices may contain attachments with or without exhibits.  Attachment(s) supplement the appendix, and exhibit(s) supplement the attachment. Both are made part of the appendix. TAM appendices do not necessarily follow the format and numbering system of this manual. Additional information is available on EARL.

1201.301-71 Effective date.

Unless otherwise stated, the following applies--

(a) Statements in TAM NOTEs to the effect that the material therein is "effective upon receipt," "upon a specified date," or that changes set forth in the document are "to be used upon receipt," mean that any new or revised procedures or forms shall be used when issuing solicitations, contracts, or modifications thereafter; and

(b) If solicitations are already in process or negotiations complete when the TAM NOTE is received, the new procedures or forms need not be used if it is determined by the Chief of the Contracting Office (COCO) that it would not be in the best interest of the Government.

1201.301-72 TAM NOTE numbering.

TAM NOTEs will be numbered consecutively on a fiscal year basis beginning with number "01" prefixed by the last two digits of the fiscal year.

1201.301-73 TAR/TAM change process.

(a) General. The Procurement Management Council (PMC) is an integral part of the TAR/TAM change process. Changes to this manual or the TAR that effect more than one OA are made through coordination with the PMC and other applicable DOT offices.

(b) Process. The TAR/TAM change process involves the formulation of policies and procedures through a comment process. The OSPE uses various methods (e.g., electronic media, hard copy, and discussions) to solicit and resolve comments on proposed TAM revisions.

(1) The PMC is responsible for--

(i) Reviewing proposed TAM changes and providing comments to the SPE or SPE's staff, or recommending solutions to the SPE on acquisition issues;

(ii) Recommending policies and procedures to the SPE for consideration; and

(2) The OSPE is responsible for--

(i) Formulating and distributing proposed changes;

(ii) Soliciting comments from the PMC and other interested and affected DOT offices; and

(iii) Reviewing and resolving all comments or forwarding them to the PMC for resolution.

1201.304 Agency control and compliance procedures.

(a) DOT's goal is to ensure the TAR and TAM are consistent with (FAR) 48 C.F.R. unless (FAR) 48 C.F.R. prescribes otherwise. Due to the lead-time necessary to implement (FAR) 48 C.F.R. changes, conflict or inconsistency may momentarily exist. In those cases, the (FAR) 48 C.F.R. takes precedent over the TAR and TAM.

(b) OA acquisition regulations. OA acquisition regulations shall:

(1) Be incorporated into the TAR as a supplemental regulation;

(2) Be coordinated in accordance with OA internal procedures (including review by legal counsel with evidence of such a review) to ensure compliance with (FAR) 48 C.F.R. 1.301 and DOT's rule-making process before submission to the SPE;

(3) Be submitted to the SPE for review and approval by a transmittal letter signed by an official with a rank no lower than an Associate Administrator or Flag Officer, or equivalent, before proceeding to the public comment process at the initial stages of the regulatory process; include a Paperwork Reduction Act (see TAM 1201.404(a)(2)) and Regulatory Flexibility Act analysis, as appropriate; and a justification supporting the need for the regulation;

(4) Be integrated within the TAR and be available via the internet at http://www.dot.gov/ost/m60; and

(5) Pertain only to that OA.

(c) OA acquisition procedures. OA acquisition procedures shall:

(1) Contain no material which unnecessarily repeats, paraphrases, or is inconsistent with the contents of the FAR, TAR, and this manual;

(2) Be consistent with the policies and procedures of the FAR, TAR, this manual, and other Departmental guidance and follow the format, arrangement, and numbering system specified in TAM 1201.105-270 and TAM 1201.301-70 to the extent practicable; and

(3) Be reviewed, as deemed appropriate, in accordance with internal operating procedures and the following:

(i) OAs shall advise the OSPE in writing (by topic) of their intent to promulgate acquisition guidance implementing or supplementing this manual.  OAs will be advised of any procedures that are to be provided to the OSPE for review.

(ii) The HCA is responsible for ensuring that OA contracting offices limit their promulgation of acquisition procedures and, if procedures are necessary, to ensure they comply with paragraphs (1) and (2) of this section.

SUBCHAPTER 1201.4-70--DEVIATIONS FROM THE FAR, TAR, AND TAM

1201.403 Individual deviations.

Requests for individual deviations from the FAR, TAR, and this manual can be granted. The HCA or designee, who must have a rank that is no lower than that of a Senior Executive Service (SES) official or of a Flag Officer level, is authorized to approve individual deviations to this manual, except when this authority has been otherwise assigned by regulation (see (FAR) 48 C.F.R. 1.405 regarding requests for deviations from Treaty requirements), statute (e.g., most Cost Accounting Standard (CAS) deviations must be granted by the CAS Board), or this manual. All deviation requests shall:

(a) Be coordinated with legal counsel with evidence of coordination;

(b) Cite the specific part of the FAR, TAR, or this manual from which a deviation is required;

(c) Set forth the nature of the deviation(s); and

(d) State the reasons for the action requested.

1201.404 Class deviations.

(a) The SPE is the individual authorized to grant class deviations unless (FAR) 48 C.F.R. 1.405(e) is applicable. Requests for class deviations to the FAR, TAR, and this manual shall be endorsed by the HCA or designee no lower than the SES/Flag Officer level, before submitting the request to the SPE for approval. Requests submitted shall include the same type of information as required for individual deviations in TAM 1201.403.

(2) Suggested changes to the FAR, TAR, and this manual shall be transmitted to the SPE after review and approval of the manager of the office requesting the change (e.g., COCO). Those FAR recommended changes determined appropriate by the SPE will be forwarded by OSPE to the Civilian Agency Acquisition Council in accordance with (FAR) 48 C.F.R. 1.404.

SUBCHAPTER 1201.6--CAREER DEVELOPMENT, CONTRACTING AUTHORITY AND RESPONSIBILITIES

1201.601 General.

The HOA is authorized to establish contracting activities and delegate broad authority to manage the agency's contracting functions to heads of such contracting activities (HCA).  Establishing a new contracting activity must be coordinated with DOT’s SPE. The Secretary, Deputy Secretary, Assistant Secretary for Administration (OST), SPE, HOAs and HCAs (see EARL for current HCAs) shall be considered contracting officers within DOT by virtue of their positions; no Certificate of Appointment (see TAM 1201.603-3) is required. All other DOT contracting officers shall be selected and appointed under TAM 1201.603.

The Clinger-Cohen Act, P.L. 104-106, and the Office of Federal Procurement Policy, Policy Letter 97-01, direct the implementation of mandatory training, education, and experience requirements for entry and accession in the acquisition career field. The Department of Transportation Acquisition Career Development Policy For Contracting Professionals establishes procedures for the implementation of these requirements and other career development efforts. This document is issued under the authority of TAM 1201.103 as a supplement to TAM Chapter 1201, and is available via the internet at www.dot.gov/ost/m60/workforce/guide.htm.   This policy also includes, as Appendix I, the U.S. Department of Transportation Contracting Officer Technical Representative (COTR) Training Standards.

1201.602 Contracting officers.

1201.602-2 Responsibilities.

Contracting officers may only delegate their responsibilities to an authorized representative(s) such as a Bankcard recipient or a COTR. Any delegation of responsibility must be in writing to specified individuals (by name, not position) and clearly enumerate the delegated responsibilities and any limitations attached thereto. Selection, training, certification, and appointment of COTRs are discussed in TAM 1242.70 and in OA policy.

1201.602-3 Ratification of unauthorized commitments.

(a) Definitions.

(1) "Ratifying official" means the official who may authorize a contract award, purchase order, or other procurement instrument providing for the ratification of an unauthorized commitment.

(2) "Unauthorized commitment", as defined in (FAR) 48 C.F.R. 1.602-3, includes, but is not limited to, any action by a person other than the contracting officer that results in: (i) continued performance by a contractor beyond the expiration date or the price established by the procurement instrument; or (ii) the commencement of performance of work in advance of issuance of a formal procurement instrument properly executed by a duly authorized contracting officer.

(b) Policy.

(2) The authority of the HCA under (FAR) 48 C.F.R. 1.602-3(b)(2) to ratify an unauthorized commitment remains with the HCA unless re-delegated to an organizational level no lower than the COCO in accordance with (FAR) 48 C.F.R. 1.602-3(b)(3).

(c) Limitations.

(7) The following procedures shall be used for ratification of an unauthorized commitment:

(i) The individual who is responsible for actions that result in an unauthorized commitment must provide the following information to the ratifying official:

(A) A description of the circumstances that resulted in an unauthorized commitment;

(B) The reasons why normal procurement procedures were not followed;

(C) A description of the bona fide Government requirement that made the commitment necessary;

(D) The benefit(s) received by the Government;

(E) The dollar value of the commitment and whether the costs were reasonable in relation to the contractor's effort, the hours expended, the services or supplies received, type of labor used, and other costs, as appropriate;

(F) The basis for selecting the contractor and identify other sources considered, if any;

(G) Status of performance;

(H) Any other pertinent facts regarding the circumstances that resulted in an unauthorized commitment;

(I) Any invoices, receiving report, or other documentary evidence related to this transaction;

(J) The signature, following the above information, of the individual responsible for the unauthorized commitment certifying that the information provided is accurate;

(J) Any recommendations regarding corrective action that will preclude the situation from recurring; signed by the responsible individual’s Division Director (or equivalent); and

(K) A complete procurement request, Form DOT F 4200.1, Procurement Request, that includes a certification stating that the purchase request funds for the ratifying action were available at the time the unauthorized commitment occurred as well as the time the unauthorized commitment is ratified.

(ii) If the individual responsible for the unauthorized commitment is not available, the office to which the responsible individual was assigned shall provide the information described in paragraph (i) above with the name (vice signature) of the individual responsible for the unauthorized commitment.

(iii) A written contract, as defined under (FAR) 48 C.F.R. 2.101, is not required to confirm the ratification of an unauthorized commitment. The contracting officer shall decide if a contract or other written means would be appropriate for a particular situation on a case-by-case basis. Factors such as furnishing Government property, promise of product delivery, dispute over invoiced prices, etc., are to be considered when determining whether or not a contract is appropriate.

(A) Before ratification of an action, a letter requesting payment or an invoice from the contractor who provided the supply or service must be received.
 
(B) The complete ratification file shall be submitted for legal review before it is submitted to the ratifying official.  Secretarial offices shall submit the file to the Office of the General Counsel (C-10); OAs shall submit the file to their respective Chief Counsels.

(C) The ratifying official shall determine whether ratification is appropriate based on a complete file containing all the ratification documentation requirements of paragraph (c)(7)(i).

(D) A memorandum signed by the contracting officer that approves the invoice shall be sent to the finance office along with the invoice. The original certified Form DOT F 4200.1, Procurement Request, (covering the total amount of the invoice), a copy of the ratifying official's ratification, and the document confirming the ratification (see paragraph (iii) of this section), shall be attached to the memorandum.

(E) A copy of the memorandum, Form DOT F 4200.1, invoice, and original ratification documentation shall be retained in the contract office file.

(F) A letter explaining the disposition of the unauthorized commitment shall be sent to the contractor by the contracting officer if payment will not be made.

(iv)  Each contracting office shall establish a file to ensure those actions for which ratification was requested can be identified and the documentation listed in (A) through (G) of this paragraph (iv) can be located.  The contracting office shall establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of these files.  Each ratification request must be retained for 6 years and 3 months after final payment or after the ratifying official determines that the action will not be ratified.  The file pertaining to a ratification action must contain the following:

(A) The name of the individual responsible for the unauthorized commitment and the name of the office to which he or she was assigned;

(B) A brief description of the commitment, the amount of the action, and a written determination, with supporting documentation, that either the request should not be ratified or that the ratified price is fair and reasonable;

(C) The name of the firm or person to whom the commitment was made (if not in the ratification document);

(D) The date the commitment was either ratified (if not in the ratification document) or not ratified;

(E) A copy of the ratification document as applicable;

(F) Evidence of legal counsel concurrence with any ratification that is 10 percent or more of the small purchase limitation; and

(G) Any disciplinary action taken or an explanation as to why none was considered necessary.

(d)  Nonratifiable commitments.  If an unauthorized commitment is disapproved for ratification, the contracting officer shall promptly notify the individual responsible for the unauthorized commitment, in writing, stating the reasons for disapproval and recommending the individual obtain legal advice.  The contracting officer must also advise the employee that the Government will not pay for the nonratifiable commitment.  The responsible individual may be held personally liable for the full amount of the unauthorized commitment.    If the unauthorized commitment involves the Purchase Card or payment has already been made via the SMART PAY program, the Government may bill the responsible employee or take other reimbursement action.

1201.603 Selection, appointment, and termination of appointment.

1201.603-1 General.

The HCA shall appoint COCOs for the OA.  Individuals designated as COCOs are considered contracting officers and shall be appointed by their respective HCA.  The HCA is authorized to 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.

1201.603-2 Selection.

Personnel shall be selected as contracting officers using the guidance under the DOT Acquisition Career Development Policy for Contracting Professionals issued as a supplement to TAM Chapter 1201 and available via the internet on the DOT Acquisition and Grants Homepage at www.dot.gov/ost/m60/.

1201.603-3 Appointment.

(a) The delegation of contracting authority is by formal contracting officer appointments under a Certificate of Appointment, SF 1402.

(b) The appointing authority shall maintain information on the limits of contracting officer authority.

1201.603-4 Termination.

The appointing authority (see TAM 1201.603-1) may terminate the appointment of a contracting officer at any time by giving a written notice stating the reasons for, and the effective date of, the termination.

1201.670 Responsibility of other Government personnel.

(a) Responsibility for the decision of what to buy and when to buy rests mainly with program and certain staff offices. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the contracting officer.

(b) Program personnel, using the contracting process to accomplish their programs, must support the contracting officer by ensuring that:

(1) Requirements are clearly defined and specified;

(2) Competitive sources are solicited, evaluated, and selected;

(3) Quality standards are prescribed and met;

(4) Performance or delivery is timely;

(5) Prices, estimated costs, and fees are reasonable; and

(6) Files are documented to substantiate the judgments, decisions, and actions taken.

1201.671 DOT's procurement performance assessment role.

The performance of DOT contracting activities shall be assessed periodically to determine how they are performing their fiduciary responsibility and if they are achieving the primary goal of the acquisition system—to deliver best value products and services on a timely basis to meet the needs of the transportation systems. The OSPE utilizes DOT's Procurement Performance Management System (PPMS) to gauge the Department's performance progress.

SUBCHAPTER 1201.7--DETERMINATIONS AND FINDINGS

1201.704 Content.

The format and content requirements for determinations and findings (D&Fs) are specified in the associated subject text of this manual as considered necessary. The contracting officer is responsible for preparing D&Fs, and requirements and technical personnel are responsible for the accuracy and adequacy of the supporting factual information, which shall be furnished to the contracting officer.

CHAPTER 1202

DEFINITIONS OF WORDS AND TERMS

SUBCHAPTER 1202.1--DEFINITIONS

1202.1 Definitions.

"Agency head for Departmental Procurement"  means the individual  who has been delegated authority to carry out the duties and responsibilities of agency head for DOT procurement within the meaning of the Federal Acquisition Regulation unless otherwise reserved for the Secretary.  The Assistant Secretary for Administration has been delegated this authority and further re-delegated it to the Senior Procurement Executive.

"Chief Acquisition Officer" means the Deputy Secretary.

"Deputy Chief Acquisition Officer" means the Assistant Secretary for Administration who has delegated the authority to carry out the Chief Acquisition Officer functions to the Senior Procurement Executive.

"Contracting officer" means, in addition to the definition in (TAR) 48 C.F.R. 1202.1, the individual authorized by virtue of their position (see TAM 1201.601) or by appointment (see TAM 1201.603-3) to perform the functions assigned by this manual.

"Electronic Acquisition Reference Library (EARL)" is an electronic reference library located on the M-60 homepage (www.dot.gov/ost/m60/) which contains many of the documents referenced in TAM.

"Procurement Management Council (PMC)" is an advisory body comprised of the Senior Procurement Executive and the Heads of the Contracting Activity or a senior procurement official from each OA. The DOT PMC Charter delineates the role of the Council.

1202.270 Listing of acronyms and office symbols used in TAM.

EARL contains a listing of commonly used acronyms and office symbols used in this manual.

CHAPTER 1203

IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

SUBCHAPTER 1203.1--SAFEGUARDS

1203.104 Procurement integrity.

1203.104-1 Definitions.

Designated Agency Ethics Official (DAEO) for DOT is the Deputy General Counsel (C-2).

Deputy Designated Agency Ethics Officials (Deputy DAEO) for the Operating Administrations (OAs) are the Chief Counsels or designees.

Source Selection Information Disclosure Official. The individual authorized to determine whether the disclosure of information marked as "SOURCE SELECTION INFORMATION" would jeopardize the integrity or successful completion of the acquisition to which the information relates is the contracting officer.

1203.104- 4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information.

(a) The contracting officer is the individual authorized to determine whether contractor bid or proposal information or source selection information may be disclosed.

(b) Individuals having access to documents which contain proprietary or source selection information shall:

(i) Ensure that the information is marked as required by (FAR) 48 C.F.R. 2.101 (under the definition for "Source selection information") and 3.104-4;

(ii) Use Form DOT F 4220.36, Cover Page Proprietary Information, to notify the recipient that the information or portions thereof is proprietary information related to the conduct of a Federal agency procurement;

(iii) Use Form DOT F 4220.35, Cover Page Source Selection Information, and comply also with the requirements of (FAR) 48 C.F.R. 3.104-4(c) with respect to the marking of pages, to notify the recipient that the document contains source selection information;

(iv) Ensure that the information is secured and protected both during and after working hours;

(v) Ensure interoffice security mailing of the information; and

(vi) Ensure strict control over where discussions regarding the information or related acquisition are held.

1203.104-5 Disqualification.

(c)(2) Resumption of participation in a procurement.  The HCA’s authority under (FAR) 48 C.F.R. 3.104-5(c)(2) is delegated to the Chief of the Contracting Office (COCO).  The COCO may authorize an agency official to resume participation in a procurement after complying with the requirements of (FAR) 48 C.F.R. 3.104-5(c)(2).

1203.104-570 Information security.

Each contracting office and individual having access to contractor bid or proposal information, source selection information, or other sensitive procurement information shall take the steps necessary to ensure that the integrity of the procurement process is not compromised by the unauthorized disclosure of this information. Responsible employees and officials must pay particular attention to visitors, contract file security, data security, and transmission of sensitive procurement information.

1203.104-7 Violations or possible violations.

(a)(1) The COCO is the reviewing official for processing violations.

(b)(5) The Head of the Operating Administration (HOA) is the individual authorized to determine that the contractor, or someone acting for the contractor, has engaged in conduct constituting an offense punishable under subsection 27(e) of the Procurement Integrity Act, as amended, (41 U.S.C. 423), for the purpose of voiding or rescinding the contract.

(c) If the Head of the Contracting Activity (HCA) believes that a violation has occurred and the information should be disclosed to a criminal investigative agency (e.g., the Department of Justice) or that there may be a possible violation, and an investigation should be conducted, the HCA shall obtain guidance from legal counsel and the OIG prior to taking any action.  Secretarial Offices shall consult the Office of the General Counsel (C-10); OAs shall consult their Chief Counsels.

(d)(2)(ii)(B) The HOA is authorized to make determinations under (FAR) 48 C.F.R. 3.104-7(d)(2)(ii)(B).

(f) The contracting officer shall prepare a memorandum of the facts and circumstances to support the HCA’s determination under (FAR) 48 C.F.R. 3.104-7(f).  If the HCA determines that urgent and compelling circumstances exist, the HCA may authorize contract award after notifying the HOA.

SUBCHAPTER 1203.6--CONTRACTS WITH GOVERNMENT EMPLOYEES OR ORGANIZATIONS OWNED OR CONTROLLED BY THEM

1203.602 Exceptions.

The HCA is authorized to grant an exception to the policy in (FAR) 48 C.F.R. 3.601.  This authority cannot be redelegated.

SUBCHAPTER 1203.7--VOIDING AND RESCINDING CONTRACTS

1203.700 Scope of subpart.

(a)(2) The HOA is authorized to make determinations under (FAR) 48 C.F.R. 3.700(a)(2).

1203.701 Purpose.

(a)(2) The HOA is authorized to make determinations under (FAR) 48 C.F.R. 3.700(a)(2).

1203.703 Authority.

(a) The HCA is authorized to declare void and rescind contracts and other transactions listed in P.L. 87-849 (18 U.S.C. 218).

(b)(2) The HOA is authorized to make determinations under (FAR) 48 C.F.R. 3.700(b).

1203.704 Policy.

(a) The HCA is authorized to declare void and rescind contracts and to recover the amounts expended and property transferred by the agency where there is a final conviction for any violation of 18 U.S.C. 201-224.  Prior to voiding or rescinding a contract or other transaction enumerated in 18 U.S.C. 218, the HCA shall provide written notification to the HOA.

(c) The HOA is authorized to make the determinations under (FAR) 48 C.F.R. 3.704(c).

1203.705 Procedures.

(a) Reporting. The HCA is authorized to receive reports required by (FAR) 48 C.F.R. 3.705(a).  Prior to notifying the Department of Justice the HCA shall notify the HOA in writing.

(b) Decision. The HCA will carry out the functions of (FAR) 48 C.F.R. 3.705(b).  Prior to voiding or rescinding a contract, the HCA shall notify the HOA in writing.

(c) Decision-Making Process. Prior to taking the actions under (FAR) 48 C.F.R. 3.705 concerning voiding or rescinding a contract, the contracting officer shall ensure that the file fully supports the proposed action. The opinion of legal counsel also shall be sought to ensure that all requirements of (FAR) 48 C.F.R. 3.705 have been met.

(c)(4) The HCA is the authorized to issue the written decision under (FAR) 48 C.F.R. 3.705(c)(4).

(e) Final agency decision.  The HCA is authorized to make a final decision under (FAR) 48 C.F.R. 3.705(e).

SUBCHAPTER 1203.8 --LIMITATION ON THE PAYMENT OF FUNDS TO INFLUENCE FEDERAL TRANSACTIONS

1203.804 Policy.

(b) Contracting officers shall forward a copy of all contractor disclosures to the official designated in accordance with OA procedures.

1203.806 Processing suspected violations.

Contracting officers shall report suspected violations of the requirements of 31 U.S.C. 1352 to the Assistant Inspector General for Investigations (JI-1), 400 Seventh Street, S.W., Washington, DC, 20590.

SUBCHAPTER 1203.9--WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES

1203.905 Procedures for investigating complaints.

(b) The HCA is authorized to receive reports of investigative findings under (FAR) 48 C.F.R. 3.905.

(c) The HCA is the official required to comply with (FAR) 48 C.F.R. 3.905(c).

(d) The HCA is authorized to grant extensions under (FAR) 48 C.F.R. 3.905(d).

(e) The HCA is authorized to request additional investigative work under (FAR) 48 C.F.R. 3.905(e).

1203.906 Remedies.

(a) The HCA is authorized to make determinations and take actions under (FAR) 48 C.F.R. 3.906(a).

(b) The HCA is authorized to take actions under (FAR) 48 C.F.R. 3.906(b).

CHAPTER 1204

ADMINISTRATIVE MATTERS

SUBCHAPTER 1204.2--CONTRACT DISTRIBUTION

1204.202 Agency distribution requirements.

(a) In addition to the distribution requirements of (FAR) 48 C.F.R. 4.201, the contracting officer, as appropriate, shall distribute one reproduced, executed copy of all types of awarded procurement instruments to the following:

(1) The Operating Administration’s (OA) property management office or property administrator when Government property is furnished to the contractor or when acquiring personal property as that term is defined in (FAR) 48 C.F.R. 45.101;

(2) The requiring office; and

(3) The recipient of the supplies or services (including construction).

(b) The copy specified in TAM 1204.202(a)(1) is necessary to enable the recording and control of Government property, as required by DOT Order 2700.12 series, Financial Management Control of Property, and DOT 2700.8 series, Accounting Principles and Standards, by the finance office.

(c) The recipient (see paragraph (a)(3) of this section) shall provide the contracting officer or designee with a written acknowledgement of receipt and acceptance of the supplies or services (including construction).

1204.203 Taxpayer identification information.

The contracting officer may use any means to provide the contractor’s taxpayer identification number (TIN) to the payment office as long as the TIN is protected from public disclosure. Disclosure within the OA shall be limited to Government personnel who have a need to know the TIN.

SUBCHAPTER 1204.4--SAFEGUARDING CLASSIFIED INFORMATION WITHIN INDUSTRY

1204.403 Responsibilities of contracting officers.

(a) Presolicitation phase. DOT is covered by the National Industrial Security Program (NISP) when a classified acquisition as defined under (FAR) 48 C.F.R. 4.401 is proposed. When classified information is required by the contractor during contract performance, contracting officers shall follow the procedures of:

(1) Executive Order 12829, National Industrial Security Program (NISP);

(2) National Industrial Security Program Operating Manual (NISPOM);

(3) DOT Order 1640.4 series, Classified Information Management and

(4) (FAR) 48 C.F.R. Subpart 4.4.

(b) Solicitation phase. Contracting officers shall ensure that classified acquisitions are conducted as required by the NISP. All contracting offices shall comply with the requirements of DOT Order 1640.4 series and any OA implementing procedures. Contracting officers should contact the DOT Office of Security (M-40) for assistance in the preparation of the contract security specifications.

(1) If the proposed acquisition is unclassified but the contractor will require access to privileged or sensitive information or have unrestricted access to DOT facilities, contracting officers shall contact the DOT Office of Security (M-40) for assistance.

(2) Contracting officers for the FHWA shall contact their responsible security office for guidance.

SUBCHAPTER 1204.5--ELECTRONIC COMMERCE IN CONTRACTING

1204.502 Policy.

(b) The Senior Procurement Executive (SPE) is authorized to perform the duties outlined in (FAR) 48 C.F.R. 4.502(b).

(c)The SPE is authorized to ensure that the agency systems are capable of ensuring authentication and confidentiality in accordance with the requirements of (FAR) 48 C.F.R. 4.502(c).

SUBCHAPTER 1204.6--CONTRACT REPORTING

1204.602 Federal Procurement Data System.

(a) The government-wide next generation version of the Federal Procurement Data System (FPDS) shall be used by DOT to collect, query, and report data on procurement actions that exceed a dollar value of $2,500. The FPDS is used by all DOT OAs as the primary source of procurement data.  Each contracting officer is responsible for timely and accurate reporting of data to the FPDS.

(c)All actions that exceed a dollar value of $2,500 (except those at 1204.602-70) shall be entered in the FPDS within 10 calendar days of the effective date of an action that obligated or deobligated funds.   The SF 279, Federal Procurement Data System (FPDS)—Individual Contract Action Report, and the SF 281, Federal Procurement Data System (FPDS)—Summary Contract Action Report ($25,000 or Less), are no longer used within DOT.  The next generation FPDS serves as the procurement data collection method for DOT.

(d) When a successful offeror, either in or outside the United States, does not provide their Data Universal Numbering System (DUNS) number, the contracting officer may obtain the number as described in paragraphs (1) through (3) of this section.  Requests to any office other than the Dun and Bradstreet office indicated in paragraph (2) of this section will not be honored.

(1) To obtain up to 10 DUNS by telephone, call (610) 882-7741. Dun & Bradstreet will reject all telephone requests for more than ten DUNS.

(2) To obtain more than 10 DUNS, the request may be submitted by facsimile transmission by dialing (610) 882-7140 or mailed to the following address:

(3) The requestor must provide the following information with each telephone, written, or facsimile request to Dun and Bradstreet:

(i) Reporting agency name: U.S. Department of Transportation;

(ii) Requestor's agency code: 6901 (use this code, not the OA's number);

(iii) Contracting office code: 00059 (use this code, not the procurement office's number);

(iv) Name and telephone number of the person requesting the DUNS;

(v) Contractor's establishment name, street address, city, state, zip code, and telephone number (if available); and

(vi) If this is a foreign contractor (i.e., established outside of the U.S. and its outlying areas), provide the contractor's establishment name, street address, province (if any), city, country, postal code, and telephone number (if available).

(e) Unique Procurement Instrument Identifier (PIID).

(1)  The unique PIID number controls, tracks and identifies each procurement action from receipt of the procurement request through award and closeout of the procurement instrument.  Alphanumeric characters, other than those prescribed in this subchapter, shall not be used as a part of the PIID. If additional identification is needed by the OA for internal reasons, it shall be placed on the procurement instrument in such a location as to separate it from the PIID. The contracting officer shall assign a PIID to each type of instrument described under paragraph (E) of this section.  The number shall be retained for the life of the instrument to which it is assigned.

(i) Basic elements of the PIID. The PIID shall consist primarily of 14 alphanumeric characters which may be expanded to 15 as permitted under paragraph (E) of this section.  The characters shall be positioned as follows:

(A) Positions one and two. A two-digit alphabetic code which identifies the procuring agency. This code must always be "DT" which means the Department of Transportation.

(B) Positions three and four. A two-digit alphabetic code which identifies the DOT OA. The following codes shall be used:

(C) Positions five and six. A two-digit alphanumeric code which identifies the procurement office of the OA that issued the procurement instrument.

(D) Positions seven and eight. A two-digit numeric code which is the last two digits of the fiscal year in which the PIID is assigned to the procurement instrument.

(E) Position nine. A one-digit alphabetic code which identifies the type of procurement instrument (e.g., agreement, sealed bidding, contracts). The following codes shall be used:

LTR	PURPOSE
A -	Agreement: Use for a basic agreement, basic ordering agreement, or blanket purchase agreement as defined under (FAR) 48 C.F.R. 13.2 and 16.7. Do NOT use for Cooperative Agreements.
B -	Sealed Bidding: Use for invitation for bids as defined under FAR 14.2.
C -	Contracts: Use for all contracts (e.g., letter, 8(a), etc.) including contracts for appraisals, surveys, title, closing, and other work related to leasing or acquiring real estate rights. Do NOT use this code for Task or Delivery order contracts.
D -	Task Order or Delivery Order Contracts: Use for Indefinite Quantity, Definite Quantity, and Requirements contracts as defined under (FAR) 48 C.F.R. 16.5 (see paragraph (iii)(C) of this section for numbering of individual orders under task or delivery order contracts).
F -	Task Order or Delivery Orders: Use when placing orders directly against: (1) a contract administered by another Government agency or department (e.g., GSA, the Department of Veterans Affairs, or the Office of Personnel Management); (2) contracts administered by agencies other than DOT including the National Industries for the Blind, National Industries for the Severely Handicapped, and the Federal Prison Industries (UNICOR); and (3) contracts awarded by another DOT OA.
G -	Grants: Reserved for grants when a PIID formatted number is assigned.
H -	Cooperative Agreements: Reserved for cooperative agreements when a PIID formatted number is assigned.
K -	Land Purchases and Condemnations: Use for acquisition of permanent real estate interests (fee simple or easement) by purchase or condemnation. Does not include leasehold interests (land or space) in real property
L -	Lease Agreement: Use for leasing real property and supplies or equipment. Also, includes instruments for both land and space where the Government obtains real estate rights and aerial easements for a limited period of time, and may or may not be monetary in consideration. Does NOT include Interagency Agreements.
N -	N – Intra-agency Agreements:  Use when placing an order with another DOT OA for supplies or services that the servicing OA may be in a position to supply, render or obtain by contract.
P -	Purchase Orders: Use for purchase orders described under FAR Part 13 (assign V, then W when numbering capacity of P becomes exhausted during a fiscal year). Also, includes orders for appraisals, surveys, title, closing, and other work related to leasing or acquiring real estate rights.
Q -	Request for Quotation: Use when the procedures under (FAR) 48 C.F.R. Part 13 are followed.
R -	Request for Proposal: Use when the procedures under (FAR) 48 C.F.R. Part 15 are followed.
S -	Sales Contract: Use for sales and other disposal of real and personal property.
U -	Utilities: Use for contracts for electric, telephone, water, natural gas, and other utilities.
X -	Interagency Agreements: Use when placing an order with any other government agency (does NOT include any DOT OA) for supplies or services that the servicing agency may be in a position or equipped to supply, render, or obtain by contract. (FAR) 48 C.F.R. 17.502 applies.
	The letters E, J, M, T, Y and Z are reserved for the internal use of the OA. These letters may NOT be used to identify a DOT procurement instrument in lieu of the designated codes assigned to the type of instrument found in this section.

(F) Positions ten through fourteen or fifteen. At the discretion of the OA, these characters may be numeric or alphanumeric. A separate set of serial numbers may be used for any type of procurement instrument.

(ii) Illustration of the PIID. An example of a PIID is illustrated as follows:  The PIID DTFA0103B00001 identifies an invitation for bids issued by the Department of Transportation, Federal Aviation Administration, Contracts Division, Washington, D.C., issued in Fiscal Year 2003.

SUBCHAPTER 1204.8--GOVERNMENT CONTRACT FILES

1204.801 General.

The COCO is designated as the head of each office performing contracting and contract administration functions. The chief of the finance office of the OA is designated as the head of the office performing paying functions.

1204.804 Closeout of contract files.

1204.804-170 Monitoring contract closeouts.

(a) Policy. Contracting officers responsible for contract administration must ensure that their contracts are closed out within the time standards set forth under (FAR) 48 C.F.R. 4.804-1. Compliance with these standards may be beyond the contracting officers control in situations where necessary administrative actions are required by others (e.g., responsible audit agency, contractor, etc.). However, the contracting officer shall maintain close liaison with these entities to ensure that the necessary actions are not unduly delayed and are accomplished.

(b) Closeout action for cost reimbursement contracts. The contracting officer shall ensure that closeout action (e.g., request for final audit, closing documents, etc.) commences within 90 calendar days after receipt and acceptance of all contract deliverables (i.e., the contract completion date).

(c) Tracking system. The COCO shall utilize an automated or manual contract closeout tracking information system to identify those contracts which are physically completed and ready for closeout, but have not been administratively closed out and disposed of in accordance with (FAR) 48 C.F.R. 4.8, (TAR) 48 C.F.R. 1204.8, and this subchapter.

(d) Monitoring of tracking system. The COCO is responsible for reviewing quarterly the latest status of the contract closeouts and disposal to ensure that Contracting Officers are closing contracts in a timely manner.

1204.804-5 Procedures for closing out contract files.

(b) COs may use a Contract Completion Statement, to satisfy the requirements of (FAR) 48 C.F.R. 4.804-5(b).

1204.805 Storage, handling, and disposal of contract files.

(a) DOT Order 1324.2 series, DOT Records Retention and Disposal Program, sets forth procedures for handling, storing and disposing of all files, including contract files, established by DOT.  Contracting officers shall seek the guidance of their OA's records management officer (RMO) or their records liaison officer (RLO) for additional information concerning the requirements of the DOT Order. GSA and the National Archives and Records Administration (NARA) are authorized by law to establish, operate, and maintain records centers for Federal agencies. The list of Records Centers (RC) is located at http://www.archives.gov/facilities/records_centers.html.

(b) Files sent to a FRC must have a disposal date annotated on the front of the file. This is the date the file can and will be destroyed by the FRC.  Contracting officers shall determine this date based on the retention period specified in (FAR) 48 C.F.R. 4.805. Since the documents listed under (FAR) 48 C.F.R. 4.805 are normally retained in one file in the contracting office, documents related to contract actions with a dollar value that exceeds $25,000 shall be retained for at least 6 years and 3 months after final payment; documents related to contract actions with a dollar value of $25,000 or less shall be retained for at least 3 years after final payment.

(c) It may be necessary to retrieve a file from the FRC prior to disposal.  Therefore, contracting officers should ensure that the RMO or RLO maintains a record of the files sent to the FRC that includes the identification number assigned to the file by FRC.

SUBCHAPTER 1204.9--Taxpayer Identification Number Information

1204.903 Reporting contract information to the IRS.

(a) The SPE is authorized under (FAR) 48 C.F.R. 4.903 to report certain information to the Internal Revenue Service (IRS).

1204.904 Reporting payment information to the IRS.

In addition to the requirements cited under (FAR) 48 C.F.R. 4.904, 26 U.S.C. 6041 and 6041A, require Federal agencies to report to the IRS all individuals, partnerships, proprietorships, etc. that will be paid $600 or more in a calendar year.

1204.905-70 Solicitation provision.

The provision at (FAR) 48 C.F.R. 52.204-3 requires the offeror to furnish its taxpayer identification number (TIN). If the provision at (FAR) 48 C.F.R. 52.204-3 is required, the contracting officer will provide the TIN to the finance office, who will furnish the TIN to the Department of Treasury with each invoice certified for payment. 

SUBCHAPTER 1204.11--CENTRAL CONTRACTOR REGISTRATION

1204.1103  Procedures.

(e)  Contracting officers are to ensure each contract document transmitted to the payment office includes the assigned DUNS number or, if applicable, the DUNS+4 number, within the award document in accordance with (FAR) 48 C.F.R. 52.204-7(b)(2). 

SUBCHAPTER 1204.70--REVIEW AND APPROVAL OF CONTRACTS AND CONTRACT RELATED DOCUMENTS.

1204.7000 Scope of subchapter.

(a) Except as provided in paragraph (b) of this section, this subchapter sets forth review and approval requirements for proposed solicitations, pre-negotiation objectives, documentation of negotiations, contract awards, and contract modifications when the value of the acquisition (inclusive of options) exceeds the simplified acquisition threshold. The award approval requirements under this subchapter are in addition to the approval requirements of TAM 1205.303, Announcement of contract awards.

(b) This subchapter does not apply to acquisitions made under Parts 8, 13, or 17.5 of (FAR) 48 C.F.R. Part 1.

1204.7001 Definitions.

The following definitions are applicable only to this TAM subchapter:

(a) "Independent review" means review by a procurement professional(s) other than the drafter of the document being reviewed or the contracting officer responsible for the acquisition (e.g., a review board, a member of the policy staff, another contracting officer of an equal or higher organizational equivalent).

(b) "Legal sufficiency" means that the document has been reviewed and determined to be in compliance with applicable statutes, regulations, and procedures by an attorney in the OA legal counsel's office.

(c) "Review" means to scrutinize the document to ensure that the contracting officer has complied with acquisition statutes, regulations, policies and procedures; has followed sound business practices; and has ensured that the contents of the contract file are in accordance with (FAR) 48 C.F.R. 4.803. 

1204.7002 General requirements.

(a) Contracting officers may authorize concurrent reviews of documents as appropriate.

(b) The requirements of this subchapter do not preclude other internal reviews that may be required by the OAs (e.g., coordination with quality assurance personnel, operational users, etc.).

(c) At remote contracting activities where the contracting officer is the highest ranking official, review at a level above the contracting officer is not required, unless otherwise directed by OA procedures.

1204.7003 Review and approval procedures.

(a) The contracting officer responsible for the acquisition shall review the solicitation, prenegotiation objective, the document meeting the (FAR) 48 C.F.R. 15.406-3 requirements, contract or contract modification, as applicable, prior to the other reviews required by this subchapter. The contracting officer is the level of approval for all proposed solicitations, prenegotiation objectives, documentation of price negotiations, contract awards, and contract modification awards valued at or below $500,000. The contracting officer also is the level of approval for selected contract modifications which exceed $500,000 (see paragraph (c)(3) of this section).

(b) The contracting officer shall ensure that all solicitations, contract awards, and contract modification awards are coordinated with the responsible technical/program office prior to issuance or award. Additionally, all solicitations, contract awards, and contract modification awards expected to exceed $500,000 shall be reviewed for legal sufficiency.

(c) In addition to the requirements contained in paragraphs (a) and (b) of this section, OAs shall ensure that review and approval is made of the following documents for proposed acquisitions expected to exceed $500,000:

(1) Solicitations: An independent review shall be performed of the solicitation. Based on this review, an individual at a level above the contracting officer responsible for the action shall approve the solicitation prior to its release to prospective offerors.

(2) Prenegotiation Objectives and Negotiations: Prenegotiation memoranda shall be reviewed and documentation of negotiations approved by an individual at least one level above the contracting officer responsible for the acquisition.

(3) Contract and Contract Modification Awards: An independent review shall be made of the contract or contract modification, as applicable and the contract file. The contract document submitted for review must be accompanied by the file which must contain all required documentation (e.g., prenegotiation objective, documentation of negotiations, determinations and findings, etc.) to support the proposed award. Based on this review, an individual, at a level above the contracting officer responsible for the acquisition, shall approve the proposed award. Note: The contracting officer is the level of approval for all unilateral contract modifications that do not require a proposal from or negotiations with the contractor (e.g., those for incremental funding and exercising options).

1204.7004 Procedural documentation requirements.

(a) The contract file shall clearly indicate that the reviews mandated by this subchapter have been accomplished. All approval decisions and the resolution of all comments shall be written, signed, dated, and placed in the contract file.

(b) If the award approving official conditionally approves or disapproves the award, the contracting officer shall include in the contract file a written determination, which shall be signed and dated, indicating that all of the conditions (e.g., corrections, deletions, additions, changes, etc.) were satisfied prior to award.

1204.7005 Periodic compliance reviews.

OAs with field contracting offices shall conduct, in accordance with the procedures of the OA, periodic oversight reviews (e.g., an established procurement management review program, review of selected procurement actions by Headquarters, etc.) of solicitations, prenegotiation objectives, documentation of negotiations, contract awards, and contract modification awards. All reviews shall be documented in writing.

SUBCHAPTER 1204.71--DOT ADMINISTRATIVE MATTERS.

1204.7100 DOT FEDERAL INFORMATION PROCESSING STANDARD (FIPS) NUMBERS

Contracting officers shall use the following numbers listed by their respective OAs whenever a FIPS number is required in the contracting process:   

APPENDIX A

The following is a listing of reporting requirements (not all inclusive). There may be other procurement related reports which may be required by statute, the FAR, or other agency regulations.

REPORTING REQUIREMENTS

For those reports with an (*), if there was no activity for the period being reported, a negative response for the period must be submitted to the requiring office.

CHAPTER 1205

PUBLICIZING CONTRACT ACTIONS

SUBCHAPTER 1205.1--DISSEMINATION OF INFORMATION

1205.102 Availability of solicitations.

(a)(4)(iii) The Chief of the Contracting Office (COCO) is authorized to make a written determination that access through the Governmentwide point of entry (GPE) is not in the Government’s interest.

SUBCHAPTER 1205.2--SYNOPSES OF PROPOSED CONTRACT ACTIONS

1205.202 Exceptions.

(b) The Head of the Contracting Activity (HCA) is authorized to make the written determination according to (FAR) 48 C.F.R. 5.202(b).

1205.202-70 Waiver of FedBizOpps synopsis for certain simplified acquisitions.

A class waiver to the requirements of (FAR) 48 C.F.R. 5.201 for a FedBizOpps synopsis in connection with competitive simplified acquisitions from small businesses under certain conditions is effective until April 1, 2005.  Instructions for using this waiver are available on EARL at http://www.dot.gov/ost/m60/elecacq.htm.

1205.207 Preparation and transmittal of synopses.

(a) Content. When preparing synopses, the following is applicable:

(6) CLASSIFICATION CODE. The contracting officer is responsible for determining the correct classification code for any FedBizOpps notice. The FedBizOppsstaff is not authorized to determine the classification code for any FedBizOpps notice. A misclassified contract action fails to notify the firms most likely to respond and, therefore, the Competition in Contracting Act may be violated. The contracting officer shall exercise care to avoid misclassification.  However, in the event a notice is not classified correctly, the misclassified contract action must be corrected and re-synopsized in the FedBizOpps. Detailed classification codes are available on the FedBizOpps website at: http://www.FedBizOpps.gov/.

(17) DESCRIPTION. To promote the financial assistance programs available from the OSDBU (S-40), procurement offices must add the following information to Item #17 of each synopsis of an acquisition containing a bonding requirement:

ATTENTION: Minority, Women-owned, and Disadvantaged Business Enterprises (DBEs)! The Department of Transportation (DOT) offers working capital financing and bonding assistance for transportation related contracts. DOT's Bonding Assistance Program (BAP) offers bid, performance and payment bonds on contracts up to $1,000,000. DOT's Short-Term Lending Program (STLP) offers lines of credit to finance accounts receivable. Maximum line of credit is $750,000 with interest at the prime rate, as published daily in the Wall Street Journal, plus 1.75 percent. For further information, call (800) 532-1169. Internet address: http://osdbuweb.dot.gov/.

When synopsizing all other acquisitions that do not require bonding, add the following information to Item #17:

ATTENTION: Minority, Women-owned, and Disadvantaged Business Enterprises (DBEs)! The Department of Transportation (DOT), Short-Term Lending Program (STLP) offers working capital financing in the form of lines of credit to finance accounts receivable for transportation related contracts. Maximum line of credit is $750,000 with interest at the prime rate, as published daily in the Wall Street Journal, plus 1.75 percent. For further information, call (800) 532-1169. Internet address: http://osdbuweb.dot.gov/.

SUBCHAPTER 1205.3--SYNOPSES OF CONTRACT AWARDS

1205.301 General.

If the contracting officer determines that synopsis of award is unnecessary, the rationale must be documented in writing and included in the contract file.

1205.301-70 Synopsis of contracts containing Pub. L. 95-507 subcontracting plans and goals.

When applicable, the synopsis of contract award must include a statement identifying the contract as one containing Pub. L. 95-507 ((FAR) 48 C.F.R. 19.702) subcontracting plans and goals.

1205.302 Preparation and transmittal of synopses of awards.

When a requirement is publicized through FedBizOpps, and an award announcement is required, the award announcement must also be publicized through FedBizOpps.

1205.303 Announcement of contract awards.

(a) Public announcement. Except as provided in (FAR) 48 C.F.R. 15.503), information on contracts valued at the threshold stated in (FAR) 48 C.F.R. 5.303(a) must not be released to any source outside of DOT until the Assistant Secretary for Governmental Affairs (I-1) has advised the contracting officer that the contract may be released. The contracting officer may sign the contract, but no information may be released outside of DOT until the procedures contained in the subparagraphs below have been accomplished.

(1) The contract notification procedures contained in this subchapter and Form DOT F 4220.41, Contract Award Notification (see TAM 1253.205-70), must be used to transmit the required contract award information to I-1. The information contained on Form DOT F 4220.41 will be used by I-1 when preparing press releases and announcing contracts.

(2) Form DOT F 4220.41 must be prepared, signed, and submitted to I-1 by the contracting officer or other official designated by the OA.  The document must be delivered by hand to Room 10408 of the Nassif Building or by facsimile transmission to 202-366-3675.

(3) For those procurements subject to the requirements of TAM 1215.3, Source Selection, after the Source Selection Authority has selected the contractor(s) for award, the contracting officer must be notified immediately so that the Form DOT F 4220.41 can be prepared, signed, and transmitted to I-1. All personnel are reminded that contract information contained on Form DOT F 4220.41 may be competition sensitive. Information concerning the award must not be disclosed to parties outside of DOT except by I-1 and the contracting officer.

(4) Unless I-1 requests the contracting officer or other designated official not to proceed with contract award, awards may be announced on the third working day following receipt of the Form DOT F 4220.41 in I-1. The contracting officer is responsible for documenting the date the DOT F 4220.41 is received by I-1 by verifying receipt at (202) 366-9714.

SUBCHAPTER 1205.4--RELEASE OF INFORMATION

1205.401 General.

The contracting officer must consult OA legal counsel and/or personnel from the Freedom of Information Act (FOIA) office, as applicable, regarding the decision to release or withhold information under (FAR) 48 C.F.R. 5.401(b).  The contract file must document any decision to release or withhold information. A copy of the response from the FOIA office denying a request may be included in the file as the documentation.

1205.403 Requests from Members of Congress.

(a) Individual requests. The HCA is authorized to approve the release of certain contract information to Members of Congress under (FAR) 48 C.F.R. 5.403.

1205.404 Release of long-range acquisition estimates.

1205.404-1 Release procedures.

(a) The contracting officer is authorized to release long-range acquisition estimates.

(b)(1) The contracting officer is responsible for ensuring that classified information is released through existing security channels in accordance with agency security regulations.  Contracting officers must comply with the security requirements set forth under TAM 1204.4 concerning the release of classified information.

(b)(2) The contracting officer is responsible for ensuring that the information is publicized as widely as practicable to all parties simultaneously by any of the means described in (FAR) 48 C.F.R. 5.

SUBCHAPTER 1205.5--PAID ADVERTISEMENTS

1205.502 Authority.

(a) Newspapers. An official one level above the contracting officer is authorized to approve the publication of paid advertisements in newspapers under (FAR) 48 C.F.R. 5.502(a).

(b) Other media. An official one level above the contracting officer is authorized to approve advertisements in media other than newspapers.

CHAPTER 1206

COMPETITION REQUIREMENTS

1206.003-70 Definitions.

"Agency competition advocate" means an individual designated by the Senior Procurement Executive (SPE) to perform, at a minimum, the functions under Federal Acquisition Regulation (FAR) 48 C.F.R. 6.502(b) and is synonymous with "Departmental competition advocate" and "Senior Competition Advocate (SCA)."

"Competition advocate for the procuring activity" means the individual designated by the Head of the Operating Administration (HOA) to approve Justifications for Other than Full and Open Competition (JOTFOCs) as permitted by (FAR) 48 C.F.R. 6.304 and to perform the duties and responsibilities assigned under (FAR) 48 C.F.R. 6.502.  This is synonymous with “procuring activity competition advocate ”and “Operating Administration (OA) Competition Advocate”.

"Procuring activity," for the purposes of this chapter, means any headquarters or field organization designated by the HOA as having a significant acquisition function.

SUBCHAPTER 1206.1--FULL AND OPEN COMPETITION

1206.102 Use of competitive procedures.

(b) If only one responsible offer is received from the release of a competitive solicitation, the contracting officer must attempt to ascertain the reasons for the lack of response and place a written statement in the contract file documenting all conclusions regarding the lack of competition under the solicitation prior to proceeding to award.

SUBCHAPTER 1206.2--FULL AND OPEN COMPETITION AFTER EXCLUSION OF SOURCES

1206.202 Establishing or maintaining alternative sources.

The Head of the Contracting Activity (HCA) is authorized to exclude a particular source from a contract action in order to establish or maintain an alternative source.  The HCA is also the individual authorized to approve a Determination and Findings (D&F) in support of a contract action awarded under the authority of (FAR) 48 C.F.R. 6.202(a).

SUBCHAPTER 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.

The HCA is authorized to determine that only specified makes and models of technical equipment will satisfy the agency's need under (FAR) 48 C.F.R. 6.302-1(b)(4).

1206.302-2 Unusual and compelling urgency.

The contracting officer must ensure that the justification supporting the use of this authority is approved prior to contract award unless immediate loss of life or property, or other equally compelling circumstances, are involved. When such a compelling circumstance exists, the contracting officer should inform the approving official of the action at the earliest opportunity, preferably before award. In cases involving approval after award, the justification required by (FAR) 48 C.F.R. 6.303 must contain a summary of facts justifying approval after award, including a statement of the number of days that were available to execute the justification prior to award.

1206.302-7 Public interest.

(a)(2) The authority of the head of the executive agency to authorize other than full and open competition due to public interest under (FAR) 48 C.F.R. 6.302-7 is reserved by the Secretary and may not be delegated. Operating Administrations (OAs) must coordinate and process all requests for a Secretarial determination under this authority through the SCA via the Head of the Operating Administration (HOA). The SCA must review the request and must prepare a recommendation to the Secretary regarding the merits of the request.

(c) All supporting documentation and a proposed determination and findings to be signed by the Secretary must accompany the request.

1206.304 Approval of the justification.

(a) Individuals acting in the place of approving officials must also meet the qualification requirements of (FAR) 48 C.F.R. 6.304.

(c) Class justifications must be approved by the same approval authority as for individual justifications (see (FAR) 48 C.F.R. 6.304(a) and TAM 1206.304(a) above).

SUBCHAPTER 1206.5--COMPETITION ADVOCATES

1206.501 Requirement.

The SPE is the individual authorized to appoint the Departmental Competition Advocate.  "Departmental competition advocate" is synonymous with "Senior Competition Advocate."  The HOA is the individual authorized to appoint competition advocates for the procuring activities.

1206.502 Duties and Responsibilities.

(b)(2) Competition advocates for the procuring activities shall submit an annual OA report to the Departmental Competition Advocate on or before November 1 for the preceding fiscal year (i.e., the report for FY 05 covering October 1, 2004 through September 30, 2005, is due November 1, 2005).  The Departmental Competition Advocate shall submit an annual Departmental report to the SPE on or before December 15.

1206.570 Competition advocates for the procuring activity.

A listing of OA positions designated as competition advocates for the procuring activities (see TAM 1206.003-70 above) is maintained by the Office of the Senior Procurement Executive (OSPE).  The HOA or designee must provide any revisions to this listing to OSPE within 10 working days of designation.

CHAPTER 1207

ACQUISITION PLANNING

1207.000-70  Scope of chapter.

This chapter establishes a disciplined Departmentwide acquisition planning procedure for procuring supplies, including systems, and services.

SUBCHAPTER 1207.1--ACQUISITION PLANS

1207.101 Definitions.

As used in this chapter-

"Acquisition Plan" means a "written Acquisition Plan" in accordance with (FAR) 48 C.F.R. 7.105,  a "Procurement Forecast," an "Acquisition Strategy Meeting Record," or an "OMB Exhibit 300."

“Acquisition Planning package” means, as a minimum, the acquisition plan; and when bundling is planned, the DOT Form 4250.1, Small Business Program Review Form and the bundling justification documentation.  This term is synonymous with “acquisition package” as specified in (FAR) 48 C.F.R. 19.202-1(e)(1).

“Order” means an order placed under a Federal Supply Schedule contract, or a task-order contract or a delivery-order contract awarded by another agency (i.e., Government-wide acquisition contract or multi-agency contract).

1207.102 Policy.

(a) Acquisition planning should be initiated when an agency need is identified, preferably well in advance of the fiscal year in which contract award(s) is necessary and be accomplished in concert with the budget process.  Preliminary acquisition efforts (e.g., defining requirements; issuing market search synopses and draft specification/statements of work; preparing and releasing draft solicitations) may be performed before the plan is completed and approved. If the approved acquisition strategy in the plan is different than what was included in the initial draft solicitation, strong consideration should be given to issuing another draft solicitation to inform industry of the changes.

(b) No synopsis for a proposed contract action may be released, solicitations issued, or funds transferred within or outside the Department until the plan has been completed and approved.

1207.103 Agency-head responsibilities.

(d)(1) DOT's Acquisition Plans (APs) vary by dollar threshold, complexity, or criticality of the acquisition(s).   Regardless of the AP used, when bundling is planned, the requirements in TAM 1207.107-70 shall be addressed.  For all acquisitions, a written Acquisition Plan (AP) in accordance with (FAR) 48 C.F.R. 7.105 is required, except--

(i) A DOT Procurement Forecast (see DOT F 4220.12) may be used when the acquisition(s) is over the simplified acquisition threshold and less than $2 million.  A Forecast may be used when contract bundling is planned except if it involves bundling pursuant to (FAR) 48 C.F.R. 7.107(c) where the Deputy Secretary is the final DOT authority. 

(ii) An Acquisition Strategy Meeting Record (ASMR), as described in TAM 1207.103-70, may be used when the acquisition(s) is $2 million or more and up to $20 million.

(iii) An OMB Exhibit 300, Capital Asset Plan/Business Case, supplemented by any requirement of (FAR) 48 C.F.R. 7.105 not in the Exhibit 300, shall be used OMB Circular A-11 and, when applicable for information technology, the Department Information Resources Management Manual (DIRMM) are followed. 

(2) The estimated dollar amounts shall include all options, later phases of the same project or program, and follow-on contracts.  Contract modifications, adding of new work, or changes under the "Changes" clause, may require changes to the existing AP or the development of a new AP as determined by the contracting officer in coordination with the requiring office.

(3) Acquisition planning is not required for:

(i) Emergency acquisitions (i.e., when the need for the supplies/services is of such an unusual and compelling urgency that the Government would be seriously injured if the supplies/services were not immediately acquired);

(ii) Actions subsequent to the initial submittal of a plan which have already been included as part of an approved plan (e.g., exercise of options);

(iii) Procurements conducted under the Small Business Innovative Research Program; and

(iv) General Working Agreements and supporting Project Plan Agreements between RITA/Volpe National Transportation Systems Center and DOT Operating Administrations (OAs) (see (TAR) 48 C.F.R. 1202.1).  Acquisitions (pursuant to (FAR) 48 C.F.R. 2.101) resulting from General Work Agreements and Project Plan Agreements are subject to the acquisition planning requirements of this chapter.

(q) See TAM 1207.503 for implementing procedures regarding functions that are inherently governmental.

1207.103-70 Acquisition Strategy Meeting.

The Acquisition Strategy Meeting Record (ASMR) is an AP developed when an acquisition strategy meeting is held and its discussion and decisions recorded. At the meeting, the applicable AP topics and structure specified in (FAR) 48 C.F.R. 7.105 (and if applicable, (FAR) 48 C.F.R. 7.106 and 7.107) are presented in briefing format, charts, handouts, etc. and formal written minutes or a memorandum prepared to summarize the decisions, actions and conclusions made.  Any documentation used to assist in the decision making process shall be made a part of the AP.  Topics not applicable are to be annotated as such with the reason for non-applicability unless it is self-explanatory.  The approved AP is to be included in the contract file.

1207.104  General procedures.

(a) The development of APs and updates is the responsibility of the acquisition planner (e.g., program manager). The acquisition planner is located within the requiring agency (if outside DOT) or within the requiring OA (if within DOT). The acquisition planner, among other functions, shall:

(1) Coordinate with all personnel responsible for significant aspects of the plan (e.g., contracting, fiscal, legal, technical, small business, competition advocate, and logistics);

(2) Provide input to the plan as necessary;

(3) Obtain applicable concurrences;

(4) Forward the plan through the approval process;

(5) Review and update the plan; and

(6) Form a team of individuals responsible for developing acquisition planning information pertinent to their areas of expertise.  Team members include:

(i) Requirements and logistics personnel.  Provides applicable input for the plan (e.g., quality, quantity, delivery requirements).

(ii) Contracting Officer.  Has responsibility for the overall business strategy of the plan including type of contract to be used, procurement milestones, and set-aside considerations.

(iii) Competition Advocate.  Provides input for promoting full and open competition, the acquisition of commercial items, and other related functions. See (FAR) 48 C.F.R. Part 6 and 7.104 for the role of the competition advocate.

(iv) Small Business Specialist (SBS).  Provides input that implements the small business program. See (FAR) 48 C.F.R. 7.104.

1207.104-70 Final DOT authority for bundling justifications.

(a) When the SBS and the Small Business Administration Procurement Center Representative (PCR) (see TAM 1219.201-70) concur in the proposed bundling, the AP approving official makes the final bundling determination when approving the AP package except when the determination is made by the Deputy Secretary under (FAR) 48 C.F.R. 7.107(c).  In this instance, the determination is made by the Deputy Secretary before the HCA approves the AP.  See TAM 1207.170(b)(3). The contracting officer shall provide a copy of the completed DOT Form 4250.1 to the OSDBU. 

(b)  When the SBS or PCR considers bundling unnecessary, unjustified or not identified as bundled, the OSDBU is the final DOT authority to determine whether bundling is justified or necessary unless the conditions of (FAR) 48 C.F.R. 7.107(c) are met, then the Deputy Secretary is the final DOT authority.

(c)  If the PCR disagrees with the OSDBU’s determination that bundling is necessary or justified, the PCR can pursue an appeal with the SBA in accordance with (FAR) 48 C.F.R. 19.505.

1207.105 Contents of written acquisition plans.

Addendums may be used to include supplemental information to the AP.  For example, justification documentation supporting a  contract bundling action at (FAR) 48 C.F.R. 7.107(e) may become part of the AP package by attaching the determination to the AP vice incorporating it within the AP.

1207.106 Additional requirements for major systems.

Planners shall review the requirements at (FAR) 48 C.F.R. 7.106 for consideration in any major acquisition as defined in TAM 1234 and include any relevant information in the AP.

1207.107 Additional requirements for acquisitions involving bundling.

(a) The contracting officer is the individual responsible for ensuring that market research is conducted to determine whether bundling is necessary and justified.  See (FAR) 48 C.F.R. 10.001(c) for additional requirements pertaining to market research.

(c) (1) The authority of the DOT Deputy Secretary (S-2), to determine that bundling is necessary and justified under the circumstances at (FAR) 48 C.F.R. 7.107(c), is non-delegable.

(2) When the contracting officer believes bundling is necessary and justified under the circumstances at (FAR) 48 C.F.R. 7.107(c), a copy of the AP package shall be provided to the Office of the Senior Procurement Executive at the same time it is coordinated with the OSDBU. 

(e) The substantial bundling documentation requirement applies to all proposed DOT contracts and orders (see (FAR) 48 C.F.R. 7.101) that involve bundling and are $2 million or more and not set-aside or reserved entirely for small businesses.

1207.107-70  Requirements for APs involving bundling. 

When a planned acquisition has not been set-aside or reserved entirely for small businesses and bundling is planned, the following minimum requirements apply:

1207.170 Updates and approval of acquisition plans.

(a) Updates. APs are to be reviewed by the acquisition planner at least once every 12 months.

(1) APs are to be updated when there is a significant change to the approved plan.  For example, APs may require updates for a new requirement, a change in existing requirements, a cost growth or a change in acquisition strategy including contract type;

(2) If, during a 12-month period, no significant change has occurred, the plan shall be reviewed by the approving official for accuracy, currency, and completeness.

(b) Approval and coordination.

(1) Before submitting for approval, the responsible requirements official shall coordinate the AP, including its updates, with the contracting officer and when appropriate, the competition advocate, legal counsel, and the SBS.

(2) Unless the AP is set-aside or reserved entirely for small businesses, the SBS and the PCR shall review an AP package when it involves a contract(s) or order(s) over the simplified acquisition threshold to ensure that any contract bundling is identified, necessary and justified and for impacts on the small business program.

(3)  Any AP package containing a bundling justification pursuant to (FAR) 48 C.F.R. 7.107(c) shall be approved by the Head of the Contracting Activity (HCA).  The HCA shall obtain the Deputy Secretary’s concurrence of the bundling determination prior to approving the AP.

(4) The following are DOT’s AP approval levels:

1207.171  Deviations. 

Deviations from the planning requirements of this subchapter are permissible when approved in writing by the applicable approving official in TAM 1207.170.  Deviation documentation is to be included in the contract file. Deviation requests shall:

(a) Describe the planning procedures from which deviation is requested.

(b) Contain details sufficient to explain the basis for the request

(c) Indicate recommended alternative procedures.

SUBCHAPTER 1207.2--PLANNING FOR THE PURCHASE OF SUPPLIES IN ECONOMIC QUANTITIES

1207.204 Responsibilities of contracting officers.

(a) The contracting officer shall transmit in writing to the responsible requirements office the actual offeror responses or a summary of their salient points.

(b) All transmittals shall request a prompt response to indicate whether the acquisition should remain as is, be amended, or cancelled. Before continuing with the negotiation or award of the acquisition, the contracting officer shall decide, in conjunction with the program manager, whether continuing outweighs the potential cost saving benefits of delaying the acquisition.

SUBCHAPTER 1207.4--EQUIPMENT LEASE OR PURCHASE

1207.401 Acquisition considerations.

The decision to lease or purchase equipment shall be documented in the contract file and address, as a minimum, the factors in (FAR) 48 C.F.R. 7.401.

SUBCHAPTER 1207.5--INHERENTLY GOVERNMENTAL FUNCTIONS

1207.503 Policy.

(e) Contracts cannot be awarded for services/functions that are inherently governmental as defined in (FAR) 48 C.F.R. 2.101. A written determination by the requiring office shall accompany purchase requests for services (either in whole or in part) that confirm that none of the services to be performed are inherently governmental. Any disagreement pertaining to the determination shall be resolved by the COCO before release of the solicitation.

CHAPTER 1208

REQUIRED SOURCES OF SUPPLIES AND SERVICES

SUBCHAPTER 1208.1--EXCESS PERSONAL PROPERTY

1208.101 Definition.

The offices listed in Appendix A are authorized to make “excess personal property" determinations.  The Head of the Operating Administration (HOA) or their designees shall notify the Office of the Senior Procurement Executive (OSPE) within 30 days of any updates to this listing.

SUBCHAPTER 1208.4--FEDERAL SUPPLY SCHEDULES

1208.404  Using schedules.

1208.404-3 Requests for waivers.

(a) The office initiating the procurement request or a designated representative shall furnish the contracting officer a signed statement identifying the supplies or services to be purchased and explaining why similar items listed in the applicable schedule will not meet the requirement.  A waiver request shall be endorsed by the Chief of the Contracting Office (COCO) before forwarding to the General Services Administration for approval.

SUBCHAPTER 1208.7--ACQUISITION FROM NON-PROFIT AGENCIES EMPLOYING PEOPLE WHO ARE BLIND OR SEVERELY DISABLED

1208.703  Procurement List.

The Committee’s Procurement List and National Industries for the Blind and NISH regional offices can be found at http://www.jwod.gov/jwod/index.html.

SUBCHAPTER 1208.8--ACQUISITION OF PRINTING AND RELATED SUPPLIES

1208.802 Policy.

(b) Information Services, Office of the Secretary of Transportation (OST), is authorized to establish a central printing authority for DOT.  Each Operating Administration (OA) has appointed a printing control point (see Appendix B).  The approval from Information Services, Publications and Distribution Services Section, shall be obtained prior to acquiring in any manner any of the supplies or services delineated in (FAR) 48 C.F.R. 8.802(b).  HOAs or their designees must notify OSPE within 30 days of any updates to this listing.

SUBCHAPTER 1208.11--LEASING OF MOTOR VEHICLES

1208.1102 Presolicitation requirements.

(a)(2) The Office of Security and Administrative Management, OST, is responsible for issuing Departmental policy regarding the leasing of motor vehicles.  The OA offices shown in Appendix C are responsible for the certification requirements in (FAR) 48 C.F.R. 8.1102(a).  HOAs or their designees shall notify the OSPE within 30 days of any updates to this listing.

(c) COCO approval as required by (FAR) 48 C.F.R. 8.1102(c), shall be in writing and included in the contract file.

APPENDIX A

LISTING OF OA OFFICES RESPONSIBLE FOR MAKING
EXCESS PERSONAL PROPERTY DETERMINATIONS

APPENDIX C

LISTING OF OA OFFICES AUTHORIZED TO CERTIFY
LEASING OF SEDANS AND STATION WAGONS

CHAPTER 1209

CONTRACTOR QUALIFICATIONS

SUBCHAPTER 1209.1--RESPONSIBLE PROSPECTIVE CONTRACTORS

1209.105 Procedures.

1209.105-2 Determinations and documentation.

Form DOT F 4220.1, Determination of Prospective Contractor Responsibility, shall be used to make the determination and document that a contractor is/is not responsible.

SUBCHAPTER 1209.2--QUALIFICATION REQUIREMENTS

1209.202 Policy.

(a)(1) The head of the contracting activity (HCA) is authorized to establish a qualification requirement. Prior to establishing a qualification requirement, the responsible technical office shall prepare and submit a written justification to the contracting officer for coordination and signature of the operating administration (OA) competition advocate.

(b) The responsible technical office shall prepare a written waiver request when applicable. The waiver shall be submitted to the contracting officer for coordination and signature of the OA competition advocate, and approval by the HCA.

(e) The HCA is authorized to approve procurements that do not need to be delayed in order to comply with (FAR) 48 C.F.R. 9.202(a).   A written justification shall be prepared by the responsible technical office and submitted to the contracting officer for coordination and signature of the OA competition advocate, and approval by the HCA.

1209.204 Responsibilities for establishment of a qualification requirement.

(a)(2) The responsible technical office shall prepare a written determination to bear the cost of tests for a small business, and include the document in the contract file.  The name of the firm for which the no-cost qualification tests will be performed, the amount of increased competition expected, and the dollar value of anticipated future requirements for the qualified product should be a part of the determination.

(c) The responsible technical office shall provide the list of qualified manufacturers and suppliers to the contracting officer.

1209.206 Acquisitions subject to qualification requirements.

1209.206-1 General.

(b)  The HCA is authorized to determine that an emergency exists that would preclude enforcement of an established qualification requirement.   A written justification for the emergency shall be prepared by the responsible technical office and submitted to the contracting officer for the OA competition advocate’s concurrence and approval by the HCA.

(e)(3) The request that a qualification requirement not be enforced shall be written and justified by the technical office responsible for the acquisition. The request shall be submitted via the contracting officer with the OA competition advocate’s signature for approval by the HCA.

SUBCHAPTER 1209.3--FIRST ARTICLE TESTING AND APPROVAL

1209.302 General.

The initiator of the procurement request shall prepare a written statement addressing the factors enumerated in (FAR) 48 C.F.R. 9.302 whenever first article testing and approval is required. The statement shall be forwarded with the procurement request to the contracting office.

SUBCHAPTER 1209.4--DEBARMENT, SUSPENSION, AND INELIGIBILITY

1209.402 Policy.

Debarment, suspension, and other actions which render a contractor ineligible to receive contract awards is a serious matter which deserves high level attention since there is an impact not only on DOT, but the entire Federal Government. The DOT procedures to implement the debarment and suspension requirements of (FAR) 48 C.F.R. Subpart 9.4 are set forth in this subchapter.

1209.403 Definitions.

"Debarring official"—

(b) The HCA is authorized to impose debarments.

"Suspending official" –

The HCA is authorized to impose suspensions.

“Unfair trade practices” —

(3) The HCA is authorized to determine that a contractor knowingly made a false statement regarding a material element of a certification concerning the foreign content of an item of supply.

1209.404 List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

(c)(4) The HCA shall maintain records regarding debarment and suspension actions for 3 years after a contractor has been excluded from procurement programs.

(c)(5) The HCA shall establish internal distribution requirements for the list entitled Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs to ensure compliance with (FAR) 48 C.F.R. 9.404(c)(5). A copy of the OA distribution list shall be provided to the Information Services Office (M-30). M-30 shall then notify GSA of the DOT distribution requirements for the list. OAs shall update the list as necessary and provide an updated copy to M-30.

1209.405 Effect of listing.

(a) The HCA 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.

(d) The HCA is authorized to determine that a bid or offer should be considered from a contractor whose name or company is included on the listing.

1209.405-1 Continuation of current contracts.

The HCA is authorized to make a written determination of compelling reasons for continuing contracts and placing orders described in (FAR) 48 C.F.R. 9.405-1 after a contractor is debarred, suspended, or proposed for debarment.

1209.405-2 Restrictions on subcontracting.

The HCA is authorized to allow contracting officers to consent to subcontracts with contractors debarred, suspended, or proposed for debarment.

1209.406 Debarment.

1209.406-1 General.

(c) The HCA is authorized to continue business dealings between the agency and a contractor that is debarred or proposed for debarment. However, see TAM 1223.506(e) regarding waivers to debarment or suspension determinations for actions under (FAR) 48 C.F.R. Subpart 23.5, Drug-Free Workplace.

1209.406-3 Procedures.

(a) Investigation and referral. The Chief of the Contracting Office (COCO) shall promptly report a proposed debarment action directly to the HCA unless otherwise authorized by OA procedures. The report shall be in writing and coordinated with OA legal counsel before the report is signed by the COCO and sent to the HCA. 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); Research and Innovative Technology Administration (DOT-RITA); and Saint Lawrence Development Corporation (DOT-SLSDC).

(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

(vii) The amount due to the contractor.

(7) For any other contracts outstanding with the contractor or any of its affiliates--

(i) The contractor 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. After receipt of the COCO report, the HCA may request from interested parties (including the contractor if deemed appropriate) a meeting or additional supporting information to assist in the debarment decision.

(c) Notice of proposal to debar.  After reviewing the COCO’s report, and any additional information received in accordance with paragraph (b) above, the HCA shall prepare and coordinate with the OA legal counsel, a written notice of proposed debarment.

(d) Debarring official's decision. When the contractor's submission raises a genuine dispute over facts material to the proposed debarment, the HCA may request the DOT Board of Contract Appeals (BCA) to conduct fact finding and provide a report containing the results of the fact finding.

(e) Notice of debarring official's decision.  The HCA shall notify the COCO of the decision whether or not to impose debarment.  The HCA shall forward the original signed decision to the COCO for inclusion in the contract file, and provide copies of the decision to the following offices:

1. GSA in accordance with (FAR) 48 C.F.R. 9.404(c);
   
   
2. SPE within 2 working days after being sent to GSA; and
   
   
3. OA Legal Counsel.
   

1209.407 Suspension.

1209.407-1 General.

(d) The HCA is authorized to continue business dealings between the agency and a contractor that is suspended.  However, see TAM 1223.506(e) regarding waivers to debarment or suspension determinations for actions under (FAR) 48 C.F.R. Subpart 23.5, Drug-Free Workplace.

1209.407-3 Procedures.

(a) Investigation and referral. The COCO shall promptly report a proposed suspension action directly to the HCA unless otherwise authorized by OA procedures. The report shall be in writing and coordinated with OA legal counsel before the report is signed by the COCO and sent to the HCA. The report shall contain the information listed in TAM 1209.406-3.

(b) Decisionmaking process. After receipt of the COCO report, the HCA may request from interested parties (including the contractor if deemed appropriate) a meeting or additional supporting information to assist in the suspension decision.

(c) Notice of suspension.  After reviewing the COCO’s report, and any additional information received in accordance with paragraph (b) above, the HCA shall prepare and coordinate with the OA legal counsel, a written notice of suspension. 

(d) Suspending official's decision. When the contractor's submission raises a genuine dispute over facts material to the proposed suspension, the HCA may request the DOTBCA to conduct fact finding and provide a report containing the results of the fact finding. The HCA shall notify the COCO of the decision whether or not to impose a suspension. The HCA shall then forward the original signed decision to the COCO for inclusion in the contract file. The HCA shall provide copies of the decision to the following offices:

1. GSA in accordance with (FAR) 48 C.F.R. 9.404(c);
   
   
2. SPE within 2 working days after being sent to GSA; and
   
   
3. OA Legal Counsel.
   

1209.408 Certification regarding debarment, suspension, proposed debarment, and other responsibility matters.

(a)(2) When the offeror indicates the existence of an indictment, charge, conviction, or civil judgment, the contracting officer shall obtain from the offeror, the information deemed necessary concerning the issues and seek the advice of legal counsel on the affirmative statement(s).  Prior to proceeding with the contract award, the contracting officer shall notify the HCA of the facts, and submit a written responsibility determination.

SUBCHAPTER 1209.5--ORGANIZATIONAL AND CONSULTANT CONFLICTS OF INTEREST

1209.503 Waiver.

The HCA is authorized to waive any general rule or procedure of FAR 9.503 and this subchapter by determining that its application in a particular situation would not be in the Government's interest.   This authority may not be re-delegated.

TRANSPORTATION ACQUISITION MANUAL

CHAPTER 1210

MARKET RESEARCH

(RESERVED)

CHAPTER 1211

DESCRIBING AGENCY NEEDS

1211.002 Policy.

(b) The use of the metric system in DOT acquisitions is encouraged. Operating Administrations (OAs) requiring offices are responsible for utilizing the metric system in specifications, statements of work, and other related procurement documents. Procurement requests shall stipulate requirements using the metric system of measurement in accordance with the OA's metric transition plan. DOT Order 1020.1 series, Department of Transportation Transition to the Metric System, provides the DOT policy and administrative procedures, including the offices responsible for specific functions pertaining to DOT's use and transition to the metric system.

(d) DOT's implementation of environmental issues (e.g., the Resource and Recovery Act of 1976, Executive Order 13101, Greening the Government through Waste Prevention, Recycling, and Federal Acquisition) are found in TAM 1223.

1211.002–70 DOT policy.

(a) Solicitations and contracts that include electronic and information technology (EIT) deliverables must require contractor compliance with Section 508 Access Board standards. At a minimum, the following or language substantially similar to the following should be included in the statement of work or contract schedule when procuring EIT:

All electronic and information technology deliverables required under this contract must comply with Section 508 of the Rehabilitation Act and the Access Board Standards available for viewing at http://www.section508.gov.  Unless otherwise indicated, the contractor represents by signature on this contract that all deliverables will comply with the Access Board standards.”

(a) Competitive 8(a) awards shall be prepared in accordance with the same standards in TAM 1219.811-1.   

(b) The process for obtaining signatures shall be as specified in TAM 1219.811-1(d). 

1219. 811-70 Additional contract procedures.

The contracting officer shall ensure that all proposed joint ventures involving 8(a) participants are approved by SBA before contracts are awarded.

1219.812 Contract administration.

(d)  The COCO is authorized to either confirm or withdraw the contracting officer’s request to SBA to waive the requirement for contract termination.   

SUBCHAPTER 1219.9--RESERVED.

SUBCHAPTER 1219.10--SMALL BUSINESS COMPETITIVENESS DEMONSTRATION PROGRAM

1219.1003 Purpose.

(c) The DOT OSDBU negotiates the targeted industry categories with the SBA. Contracting officers must follow instructions and guidance issued by the OSDBU, unless such instructions violate Federal acquisition regulations or statutory requirements.

SUBCHAPTER 1219.70--SMALL BUSINESS INNOVATION RESEARCH PROGRAM

1219.7001 Small Business Innovation Research (SBIR) Program.

(a) On December 15, 2000, Congress reauthorized the program by P.L. 106-554 as the Small Business Innovation Research Program Reauthorization Act of 2000. Section 103 of the Act extended the program until September 30, 2008.  The Small Business Innovation Research program established under the Small Business Innovation Development Act of 1982, and reauthorized by the Small Business Research and Development Enhancement Act of 1992 seeks to encourage the initiative of the private sector and to use small businesses as effectively as possible in meeting Federal research and development objectives. Each agency is required to set aside a percentage of their budget for a Small Business Innovation Research Program (SBIR). To comply with obligations of the Act, a DOT Small Business Innovation Research Program was established to conform to these public laws and to guidelines and regulations of the Small Business Administration. By memorandum dated November 5, 1982, the Secretary delegated to the Volpe National Transportation Systems Center, the overall responsibility for coordinating and implementing the DOT SBIR.

(b) Annually, DOT solicits from small businesses, innovative research proposals that address high priority requirements of the DOT and have potential for commercialization. The DOT SBIR Program is a three-phase process:

(1) Phase I is the conduct of feasibility-related experimental or theoretical research or Research and Development (R&D) efforts on specified research topics. The dollar value of the proposal should not exceed $100,000 and the period of performance may be up to six months. The primary basis for award will be the scientific and technical merit of the proposal and its relevance to DOT requirements. Only awardees in Phase I are eligible to participate in Phase II.

(2) Phase II is the principal research or R&D effort having a period of performance of approximately two years with a dollar value of up to $750,000. Phase II proposals under the SBIR Program are accepted only from firms which have previously received a DOT Phase I award. Awards would be based upon the results achieved in Phase I, the technical merit of the Phase II proposals, potential for commercialization and commitment for follow-on funding from non-federal sources for Phase III.

(3) Phase III is to be conducted by the small business with nonFederal funds to pursue commercial applications of the research or R&D funded in Phases I and II by DOT. Phase III may also involve follow-on non-SBIR funded contracts with components of DOT for products or processes for use by the Government.

(c) Pursuant to 15 U.S.C. 638(m), the authority to carry out the Small Business Innovation Research Program expires on September 30, 2008 unless the program is reauthorized by subsequent legislation.

1219.7002 Eligibility requirements.

To be eligible under the DOT SBIR Program, the firm must qualify as a small business having less than 500 employees; the primary employment of the principal investigator must be with the proposing firm at the time of award and during the proposed research effort; and, the research or R&D work must be performed in the United States, including its territories and possessions. Questions regarding the DOT SBIR Program should be addressed to the following:

CHAPTER 1222

APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

1222.001 Definition.

For the purpose of DOT, the term "contracting agency," appearing in (FAR) 48 C.F.R. Part 22, means the Operating Administration (OA).

SUBCHAPTER 1222.1--BASIC LABOR POLICIES

1222.101 Labor relations.

1222.101-1 General.

(e) The authority of the Head of the Contracting Activity (HCA) under (FAR) 48 CFR 22.101-1(e) to designate programs or requirements for which it is necessary that contractors be required to notify the Government of actual or potential labor disputes that are delaying or threaten to delay the timely contract performance is retained by the HCA.

1222.101-170 DOT Labor Coordinator/Advisor.

(a) The labor coordinator for the DOT is under the auspices of the Office of General Counsel (C-10), Office of the Secretary, Washington, DC.

(b) Each OA may appoint a labor advisor at the Headquarters level. If one is appointed, the OAs shall advise, in writing, the contracting offices for which they are responsible of the appointment. The labor advisor will be responsible for coordinating with and/or obtaining advice from the DOT labor coordinator on contracting matters of a severe nature when deemed appropriate or as may be required by this chapter.

1222.101-3 Reporting labor disputes.

(a) Contracting officers shall report to their labor advisor, or the DOT labor coordinator if an OA labor advisor does not exist, any potential or actual labor disputes, such as strikes, that may have a serious impact on the Department's programs. The following information shall be provided to the advisor/coordinator:

(1) The contractor's and, if applicable, subcontractor's name, address, contract number, and the contractor's point of contact at the contractor's plant or the place where work is being performed such as a construction site;

(2) The date the strike began or will begin;

(3) The urgency or critical nature of the affected contract, and whether another source can perform the contract;

(4) Name, address, and telephone number of the local union and union representative(s);

(5) An assessment of the strike with regard to settlement of the issues;

(6) Number of employees affected by the strike; and

(7) The extent, if any, of participation by a federal or state mediation agency.

(b) The contracting officer shall advise, as applicable, the responsible OA labor advisor or DOT labor coordinator when the strike is terminated and the work has resumed under the contract.

1222.101-4 Removal of items from contractors' facilities affected by work stoppages.

(a) The contracting officer shall make the determination under (FAR) 48 C.F.R. 22.101-4 according to the requirements contained therein.  If the contracting officer decides to remove items or materials from the contractor's/ subcontractor's facility, the contracting officer shall follow the below procedures:

(1) Contact the OA's labor advisor or DOT labor coordinator and apprise that person of the decision;

(2) Obtain a list of the contracts the contractor has with other Government agencies or DOT OAs. If contracts of the agency or OA are or may become involved in the removal of items, advise the applicable contracting office of the decision to remove items; and

(3) Unless otherwise advised by the labor advisor or labor coordinator, submit a written request for removal of items to the contractor and the union representative. The request shall include the following:

(i) A statement of the urgency or criticality of the items or materials;

(ii) A full description of the items including color, weight, dimensions, etc., quantity, the contract/subcontract number, the contract line item number, etc.; and

(iii) A decision on whether Government or contractor/subcontractors personnel will remove the items from the location, the mode of transportation and destination, and whether the delivery terms will not be the same as those in the contract.

(b) If the contractor or subcontractor and union representative grant the request for removal of items and Government personnel will remove the items, extreme care must be taken to avoid the use or appearance of force and prevent incidents that might detrimentally affect labor-management relations.

(c) If a negative response is received from the contractor, subcontractor, or union representative and the items are still critical, the contracting officer shall seek advice from the Chief of the Contracting Office (COCO) and the DOT labor coordinator on the next action to be taken. It may also become necessary to seek advice or assistance from the National Office of the Federal Mediation and Conciliation Service, 2100 K Street, N.W., Washington, DC, 20006, or other mediation agency.

1222.103 Overtime.

1222.103-4 Approvals.

(a) An official at least one supervisory level above the contracting officer is authorized to sign the Determination & Findings (D&F) required by (FAR) 48 C.F.R. 22.103-4 unless a higher level is specified in OA procedures. The D&F shall be written in the format of Appendix A, and placed in the contract file.

SUBCHAPTER 1222.3--CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

1222.302 Liquidated damages and overtime pay.

(c)(1) The contracting officer is authorized to reduce the amount of liquidated damages assessed for liquidated damages of $500 or less.

(c)(2) The contracting officer is the individual authorized to release the contractor or subcontractor from the liability for liquidated damages of $500 or less.

(c)(3) The contracting officer is the individual authorized to recommend that the Secretary of Labor reduce or waive liquidated damages over $500.

(d) The contracting officer is authorized to take the actions under (FAR) 48 C.F.R. 22.302(d). If the contractor is entitled to any remaining assessments, the contracting officer shall instruct the finance office to disburse the contractor the amount due. If the Government is entitled to retain funds, the contracting officer shall dispose of the funds in accordance with the instructions of the responsible finance office. The contractor shall be provided with a written decision on the disposition of funds withheld and the basis for the decision.

SUBCHAPTER 1222.4--LABOR STANDARDS FOR CONTRACTS INVOLVING CONSTRUCTION

1222.404 Davis-Bacon Act wage determinations.

1222.404-1 Types of wage determinations.

(a)(2) Wage determinations are available via the Internet at: www.wdol.gov.

1222.404-6 Modifications of wage determinations.

(b)(6) The contracting officer is authorized to request an extension of the 90-day period from the Administrator, Wage and Hour Division.

1222.404-10 Posting wage determinations and notice.

The contracting officer shall mail a copy of Department of Labor (DOL) Publication WH-1321 along with the executed copy of the contract to the contractor. Copies of the poster may be obtained by writing to the Department of Labor, 200 Constitution Avenue, N.W., Washington, DC, 20210, Attn: Wage and Hour-ESA Forms and Publications, Room S-3028. The poster is also available via the Internet at http://www.dol.gov/esa/ or by calling 1-866-4-USA-DOL.

1222.406 Administration and enforcement.

1222.406-2 Wages, fringe benefits, and overtime.

(b) The contracting officer shall submit the information required by (FAR) 48 C.F.R. 22.406-2(b)(2) to the Administrator, Wage and Hour Division, DOL. The contracting officer shall advise interested parties of DOL's determination within ten working days after receipt of the determination.

1222.406-8 Investigations.

(d) Contracting officer's report. The contracting officer shall submit the report required under (FAR) 48 C.F.R. 22.406-8(b) to the COCO. The contracting officer shall use Form DOT F 4220.8, Summary of Underpayments, to support the total number of employees cited on Standard Form (SF) 1446, Labor Standards Investigation Summary Sheet.

1222.406-9 Withholding from or suspension of contract payments.

(c) Disposition of contract payments withheld or suspended.

(4) Liquidated damages. If the contractor is entitled to funds withheld or collected for liquidated damages, the contracting officer shall instruct the finance office to pay the contractor the amount due. If the Government is entitled to retain funds, the contracting officer shall dispose of the funds in accordance with the instructions of the responsible finance office. The contractor shall be provided with a written decision on the disposition of the funds withheld and the basis for the decision.

1222.406-13 Semiannual enforcement reports.

(a) The Headquarters of each DOT OA shall submit the semiannual report by April 25 and October 25 of each calendar year by email to dws@fenix2.dol-esa.gov or by mail to Wage and Hour Division, Office of Enforcement Policy, Government Contracts Team, Room S3018, 200 Constitution Avenue, NW, Washington, DC 20210. Negative responses are not required.

(b) An original and one copy of each report shall be submitted in the Appendix B format, in accordance with the instructions therein.

SUBCHAPTER 1222.6--WALSH-HEALEY PUBLIC CONTRACTS ACT

1222.604 Exemptions.

1222.604-2 Regulatory exemptions.

(b)(1) The HCA is authorized to request specific exemptions under (FAR) 48 C.F.R. 22.604-2(b)(1).  The Senior Procurement Executive (SPE) is authorized to request class exemptions under (FAR) 48 C.F.R. 22.604-2(b)(1).

1222.608 Procedures.

(a) Award. The contracting officer shall mail a copy of DOL Publication WH-1313 along with the executed copy of the contract to the contractor. Copies of the poster may be obtained by writing to the Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, ATTN: Wage and Hour-ESA Forms and Publications, Room S-3028.  The poster is also available via the Internet at http://www.dol.gov/esa/ or by calling 1-866-4-USA-DOL.

(b) Breach of stipulation. Unless otherwise specified by OA procedures, the contracting officer shall submit written notice of any violations to the applicable DOL region.

SUBCHAPTER 1222.8--EQUAL EMPLOYMENT OPPORTUNITY

1222.803 Responsibilities.

(c) The HOA is the individual responsible for ensuring that the requirements of (FAR) 48 C.F.R. 22.8 are carried out within the agency, and for cooperating with and assisting the Office of Federal Contract Compliance (OFCCP) in fulfilling its responsibilities.

(d) The contracting officer shall obtain the assistance of the OA's local legal counsel on matters concerning the applicability of Executive Order (E.O.) 11246.  If further assistance is needed, the matter shall be referred to the Deputy Assistant Secretary, Department of Labor in accordance with OA procedures.

1222.804 Affirmative action programs.

1222.804-2 Construction.

(b) From time to time, the OFCCP, DOL publishes goals and timetables for minority and female utilization in the construction industry in the Federal Register. This is based on appropriate workforce, demographic or other relevant data which covers construction projects or contracts performed in specific geographical areas. The goals are applicable to each construction trade in a covered contractor's or subcontractor's entire workforce which is working in the area covered by the goals and timetables. A copy of the latest goals and timetables may be obtained from M-60.

1222.805 Procedures.

(a) Preaward clearances for contracts and subcontracts of $10 million or more (excluding construction).

(1) Contracting officers may conduct an initial search of a contractor's compliance records via the Internet at: http://www.dol-esa.gov/preaward/.

(6) The contracting officer shall prepare a letter request in substantially the same format as Appendix D, in strict accordance with the instructions of the appendix, to prevent premature disclosure of the proposed contractor, subcontractor, if any, and the amount of the award. Since the OFCCP conducts the compliance review at the primary point of production of each contractor and first-tier subcontractor, contracting officers shall request the clearance from the OFCCP regional office which has jurisdiction over the contractor and subcontractor.

(7) The 15 and 20-day preaward clearance requirement timeframes under (FAR) 48 C.F.R. 22.805(a)(7) shall be included in the acquisition cycle milestone planning.

(b) Furnishing posters. The contracting officer may request copies of the poster titled "Equal Employment Opportunity is the Law, Discrimination is Prohibited" via telephone by calling 1-866-4-USA-DOL.  The poster is also available via the Internet http://www.dol.gov/esa/.

1222.807 Exemptions.

(a)(1) The HCA is authorized to determine that a contract is essential to the national security and that the award of the contract without complying with one or more of the requirements of (FAR) 48 C.F.R. 22.8 is necessary to the national security.

(a)(2) For a request for exemption under (FAR) 48 C.F.R. 22.807(a)(2), the signatory authority is the SPE; and

(b)(5) For a request for exemption under (FAR) 48 C.F.R. 22.807(b)(5), the signatory authority is the HCA.

(c) The contracting officer shall prepare a D&F setting forth clear and convincing reasons why an exemption was necessary under (FAR) 48 C.F.R. 22.807(a)(1) or will be necessary under (FAR) 48 C.F.R. 22.807(a)(2) or (b)(5). The D&F shall be in substantially the same format as Appendix A. The notification to the Deputy Assistant Secretary, OFCCP, as required by (FAR) 48 C.F.R. 22.807(a)(1), or the request to the Deputy Assistant Secretary, OFCCP, for an exemption under (FAR) 48 C.F.R. 22.807(a)(2) or (b)(5), shall be submitted through the OA's channels to the above signatory authorities.

 SUBCHAPTER 1222.10--SERVICE CONTRACT ACT OF 1965, AS AMENDED

1222.1003 Applicability.

1222.1003-4 Administrative limitations, variations, tolerances, and exemptions.

(a) The contracting officer shall submit requests for limitations, variances, tolerances, and exemptions under (FAR) 48 C.F.R. Subpart 22.10, to the Wage and Hour Administrator via the OA labor advisor (if any).  Also, see TAM 1222.1021 for additional procedures concerning rate variances.

1222.1003-7 Questions concerning applicability of the Act.

Contracting officers may request written or oral advice from the OA labor advisor or the DOT labor coordinator; requests to the Administrator, Wage and Hour Division, shall be in writing.

1222.1008-2 Preparation of SF 98a.

The Wage and Hour Division's "Service Contract Act Directory of Occupations" may be available through the Government Printing Office (GPO) rider requisitioning process; therefore, contracting officers shall consult with the GPO or the OA directives coordinator prior to placing a direct purchase order for the Directory with GPO.

1222.1008-7 Required time of submission of Notice.

(d) The contracting officer may make direct written or oral contact with the Wage and Hour Division concerning emergencies that will require an immediate wage determination. However, if the OA has a focal point which processes DOL issues, the written or oral request to DOL shall be coordinated with that individual or office.

1222.1011 Response to Notice by Department of Labor.

1222.1011-2 Requests for status or expediting of response.

Except when there is an OA representative to handle DOL issues, the contracting officer may make direct oral or written contact with the Wage and Hour Division concerning the status or the expediting of wage determinations.

1222.1013 Review of wage determination.

Contracting officers shall contact (orally or in writing) the OA's labor advisor or if none, the DOT labor coordinator for advice when the conditions under (FAR) 48 C.F.R. 22.1013(a) or (b) exist.

1222.1014 Delay of acquisition dates over 60 days.

The contracting officer's inquiry to the Wage and Hour Division as required by (FAR) 48 C.F.R. 22.1014 shall be in writing. A copy of the applicable wage determination shall be attached to the request to facilitate a prompt review and response by DOL. A telephone inquiry should be made if a response to the written inquiry is not received within a reasonable time.

1222.1021 Request for hearing.

1222.1021-70 Additional hearings data.

(a) In addition to the requirements of (FAR) 48 C.F.R. 22.1021 the request for a variance hearing must include copies of the relevant wage determination, if issued, collective bargaining agreement, and the SF 98 and 98a that requested the wage determination in question. Also, a statement of the case setting forth, in detail, the reasons that support the existence of a substantial variance with respect to some or all of the wages and/or fringe benefits, attaching available data concerning wages and/or fringe benefits prevailing in the locality. The statement shall contain an analysis concerning the differences between the collectively bargained rates issued and the rates contained in the following:

(1) Corresponding Federal wage board rates and surveys (while it is not necessary that the challenged rate be higher than the corresponding Federal rate, this is an important factor);

(2) Relevant Bureau of Labor Statistics survey data and the comparable Service Contract Act wage determination;

(3) Other wage data (e.g., rates paid in local hospitals would be appropriate for comparison on contracts for hospital antiseptic services, while rates paid in local schools could be of value in comparison for janitorial or food service workers); and

(4) Other collectively-bargained wages and benefits.

(b) If the contracting officer cannot provide all of the information required in paragraph (a) above with the request for a hearing, the approximate time needed to obtain the data or to develop the information must be provided. The request must clearly demonstrate the efforts being made to obtain or develop the information. A statement that data are not available will not be accepted by DOL.

SUBCHAPTER 1222.13--SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS

1222.1305 Waivers.

(a)(1) For a request for exemption under (FAR) 48 C.F.R. 22.1305(a)(1), the signatory authority is the HCA or designee no lower than the Senior Executive Service (SES) level.

(a)(2) For a request for exemption under (FAR) 48 C.F.R. 22.1305(a)(2), the signatory authority is the SPE.

(b) The HCA is authorized to grant the waiver under (FAR) 48 C.F.R. 22.1305(b).

(c) The contracting officer shall prepare a D&F setting forth clear and convincing reasons why an exemption will be necessary under (FAR) 48 C.F.R. 22.1305(a)(1) or (a)(2) or was necessary under (FAR) 48 C.F.R. 22.1305(b).  The D&F shall be in substantially the same format as Appendix A.  The request to the Deputy Assistant Secretary, OFCCP, for an exemption under (FAR) 48 C.F.R. 22.1305(a)(1) or (a)(2), or the notification to the Deputy Assistant Secretary, OFCCP, as required by (FAR) 48 C.F.R. 22.1305(b) shall be submitted through the OA's channels to the above signatory authorities. The following procedures apply:

(1) When the approving official under (FAR) 48 C.F.R. 22.1305 is the HCA, the OA shall communicate directly with the OFCCP to obtain OFCCP's written concurrence; and

(2) When the approving official under (FAR) 48 C.F.R. 22.1305 is the SPE, the contracting officer shall forward the D&F through the appropriate channels to M-60 for signature. After signature, the contracting officer shall communicate directly with the OFCCP to obtain OFCCP's written concurrence.

1222.1308 Complaint procedures.

The contracting officer shall forward complaints about the administration of the Vietnam Era Veterans Readjustment Assistance Act of 1972, as amended, directly to the DOL OFCCP office. All questions concerning the complaints shall be directed to the appropriate office of the DOL.

1222.1310 Solicitation provision and contract clauses.

(a)(1)(ii) See TAM 1222.1305(b) for the waiver authority granted to the HCA.

SUBCHAPTER 1222.14--EMPLOYMENT OF WORKERS WITH DISABILITIES

1222.1403 Waivers.

(a)(1) The HCA or designee, at a level no lower than the SES, is authorized to waive any or all of the terms of the clause at (FAR) 48 C.F.R. 52.222-36, Affirmative Action for Workers with Disabilities for any contract if a waiver is deemed to be in the national interest.

(a)(2) The SPE is authorized to waive any or all of the terms of the clause at (FAR) 48 C.F.R. 52.222-36, Affirmative Action for Workers with Disabilities, for groups or categories of contracts if a waiver is in the national interest.

(b)(1) The HCA is the individual authorized to waive any requirement of (FAR) 48 C.F.R. 22.14 when a contract is determined to be essential to the national security, and that its award without complying with such requirements is necessary to the national security.

(c) The contracting officer shall write a D&F for signature by the approving official specified under TAM 1222.1403(a)(1), (a)(2) or (b)(1).  The D&F shall be in the format of and as required by Appendix A. The D&F and the concurrence shall be retained in the contract file. The following procedures apply:

(1) When the approving official under (FAR) 48 C.F.R. 22.1403 is the HCA, the OA shall communicate directly with the OFCCP to obtain OFCCP's written concurrence; and

(2) When the approving official under (FAR) 48 C.F.R. 22.1403 is the SPE, the contracting officer shall forward the D&F through the appropriate channels to M-60 for signature. After signature, the contracting officer shall communicate directly with the OFCCP to obtain OFCCP's written concurrence.

1222.1406 Complaint procedures.

When oral complaints are received, contracting officers shall obtain information from the complainant regarding the nature of the complaint.  Contracting officers shall document the information in writing.  It must be signed by the plaintiff and be submitted directly to the OFCCP. Written complaints received by contracting officers shall be forwarded to the OFCCP with a cover letter.

1222.1408 Contract clause.

(a)(2) See TAM 1222.1403(a)(1), (a)(2) or (b)(1) for waiver authorities granted to specific individuals.

(b) See TAM 1222.1403(a)(1), (a)(2) or (b)(1) for waiver authorities granted to specific individuals.

SUBCHAPTER 1222.15--PROHIBITION OF ACQUISITION OF PRODUCTS PRODUCED BY FORCED OR INDENTURED CHILD LABOR

1222.1503 Procedures for acquiring end products on the List of Products Requiring Contractor Certification as to Forced Indentured Child Labor.

(e) Contracting officers shall refer the matter for investigation to the Assistant General for Investigations (JI-1), 400 Seventh Street, S.W., Washington, DC 20590.

APPENDIX A

DETERMINATION AND FINDINGS


Authority to
{indicate what is being waived, exempted, granted, etc.}


FINDINGS

1. {Identify the contracting office, OA, and agency (i.e., DOT), what is being acquired, and the intended use of the product or service.}

2. {Include, as applicable or appropriate, the information required by (FAR) 48 C.F.R. 1.704.}

DETERMINATION

As {insert the title of the approving official that must sign this document}, I hereby determine that {state the determination made (e.g., the contract is essential to the national security, one or more of the terms of a clause is waived, overtime is essential to meet delivery or performance schedules, etc.).}



Date: {Signature of the official making the determination and the date of the determination}

APPENDIX B

SEMI-ANNUAL LABOR COMPLIANCE REPORT

The following semi-annual report (Davis-Bacon and Related Acts and Contract Work Hours and Safety Standards Act) by {insert OA's name} is submitted as required by 29 C.F.R., Part 5.7(b), and All Agency Memorandum #189, dated February 5, 1998.

1. Period covered:
   
   
2. Number of prime contracts awarded:
   
   
3. Total dollar amount of prime contracts awarded:
   .
   
4. Number of contractors against whom complaints were received:
   
   
5. Number of investigations completed:
   
   
6. Number of contractors found in violation:
   
   
7. Amount of back wages found due:
   
   
   • Davis-Bacon Act: (prevailing wage violations)
     
     
   • Contract Work Hours and Safety Standards Act (CWHSSA): (overtime violations)
     
     
8. Amount of back wages paid:
   
   
   • Davis-Bacon Act:
     
     
   • CWHSSA:
     
     
9. Total number of employees paid wage restitution under the Davis-Bacon and related Acts and/or CWHSSA:
   
   
10. Amount of liquidated damages assessed under CWHSSA:

Federal Agency:
Responsible Official:
Title:
Address and Phone No:
E-mail Address (if available):

DOT INSTRUCTIONS FOR COMPLETING THE SEMIANNUAL LABOR COMPLIANCE REPORT

1. Enter the beginning and ending dates of the period covered by the semiannual report.
2. Enter the number of prime contracts which are subject to the Davis-Bacon Act (or any of the related statutes listed in 29 C.F.R. Part 5), awarded by the OA and/or (where applicable) its operating and management contractors. Include federally assisted contracts subject to these Acts.
3. To the extent available, enter the total dollar amount of the contracts.
4. Enter the total number of contractors (including subcontractors) against whom complaints were received by your OA.
5. Enter the total number of investigations completed by your OA.
6. Enter the number of contractors (including subcontractors) found in violation as a result of the investigations reported in item 5 above. Do not count a contractor or subcontractor more than once in a single investigation because of a violation of more than one Act, or because more than one contract is included in the investigation.
7. Enter the total amount of back wages due employees of the contractors/subcontractors reported in item 6 above, showing under (a) the amount found due because of violations of the Davis-Bacon and Related Acts; and (b) the amount of back wages found due because of violations of the Contract Work Hours and Safety Standards Act.
8. Enter the amount of back wages paid showing under (a) the back wages paid due to violations of the Davis-Bacon and Related Acts; and (b) the back wages paid due to violations of the Contract Work Hours and Safety Standards Act.
9. Enter the number of employees paid wage restitution (i.e., back wages) under the Davis-Bacon and related Acts and/or the Contract Work Hours and Safety Standards Act. This figure is the unduplicated count; that is, an employee paid wage restitution as a result of an investigation shall be counted only once, regardless of the fact that the employee may have been paid wage restitution under the Davis-Bacon and Related Acts and also paid wage restitution under the Contract Work Hours and Safety Standards Act.
10. Enter the total amount of liquidated damages assessed as a result of violations of the Contract Work Hours and Safety Standards Act, including any such amounts assessed by your OA as a result of investigations made by DOL.

APPENDIX C

RESERVED

APPENDIX D

Department of Labor
Office of Federal Contract Compliance Program
{Insert the address of the appropriate OFCCP regional office}

This letter, or portions thereof, contains PROPRIETARY OR SOURCE SELECTION INFORMATION related to the conduct of a Federal agency procurement, the disclosure of which is restricted by Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. 423). The unauthorized disclosure of such information may subject both the discloser and recipient of the information to contractual, civil and/or criminal penalties as provided by law.

An Equal Employment Opportunity preaward clearance is requested on {insert the name, address, and telephone number of the prospective contractor}

{Insert all other applicable information required by (FAR) 48 C.F.R. 22.805(a)(5). The amount of the proposed contract(s) and subcontract(s), if any, shall not be disclosed. In lieu thereof, insert "$10 million or more" as the estimated amount of the prime contract and first-tier subcontract(s).}

It is requested that verbal clearance and a written confirmation be provided as soon as possible to {insert the name, title, and telephone number of the point of contact in the contracting office}.


{Insert name, title, and
signature of authorized
contracting person}



Note: The first paragraph of the above letter is primarily for full and open competition acquisitions. The paragraph may be deleted or modified when requesting a preaward clearance for other than full and open competition acquisitions. Written pre-award clearances ARE NOT required if the contractor is listed on the Pre-Award Contractor Registry available via the Internet at http://www.dol-esa.gov/preaward.

CHAPTER 1223

ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

SUBCHAPTER 1223.2--ENERGY AND WATER EFFICIENCY AND RENEWABLE ENERGY

1223.270 Purchase and use of environmentally-sound and energy efficient products and services.

(a) The GSA Global Supply Catalog identifies environmentally-sound and energy efficient products available in the GSA Federal Supply Schedule (FSS) supply system. Copies of the guide may be obtained, without cost, from the GSA by submitting an e-mail to the Centralized Mailing List Service (CMLS), address: cmls@gsa.gov, or by calling (817) 334-5215.

(b) OFPP Policy Letter No. 92-4, dated November 2, 1992, entitled Procurement of Environmentally-Sound and Energy Efficient Products and Services, provides guidance to Federal agencies regarding the implementation of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended, (42 U.S.C. 6962) and E.O. 12780, Federal Agency Recycling and the Council on Federal Recycling and Procurement Policy.   OFPP Policy Letter 92-4 contains references to Executive Order 12780 which was revoked by Executive Order 12873 which was revoked by Executive Order 13101.  However, the guidance provided by the Policy Letter is still in effect.

(c) E.O. 13123, Greening the Government Through Efficient Energy Management, dated June 3, 1999, requires agencies to select for procurement those energy consuming goods or products which are the most life cycle cost-effective (see (FAR) 48 C.F.R. 7.101).

(1) To the extent practicable, each Operating Administration (OA) shall require vendors of goods or products to provide appropriate data that can be used to assess the life cycle cost of each good or product, including building energy system components, lighting systems, office equipment and other energy using equipment.

(2) In preparing solicitations and evaluating and selecting offers for award, contracting personnel shall consider the life cycle cost data along with other relevant evaluation criteria. If life cycle costing is not used, the contract file shall be documented to reflect the rationale for not obtaining and evaluating the data.

SUBCHAPTER 1223.4--USE OF RECOVERED MATERIALS

1223.400 Scope of subpart.

(a) The DOT Affirmative Procurement Program (APP) for Products Containing Recovered Materials required by RCRA, as amended, and Executive Order 13101, is set forth in Appendix A. The purpose of the DOT APP is to foster markets for recovered materials by maximizing the Federal Government's recycled products purchases. A secondary objective is to reduce the amount of solid waste requiring disposal through the purchase and use of products containing recovered materials.

1223.401 Definition.

See Attachment D to Appendix A for supplemental FAR definitions.

1223.402 Authorities.

(a) OFPP Policy Letter 92-4, dated November 2, 1992, establishes Executive branch policies for the acquisition and use of environmentally-sound, energy efficient products and services and provides guidance for agencies to implement Section 6002 of RCRA, as amended, (42 U.S.C. 6962). OFPP Policy Letter 92-4 contains references to Executive Order 12780 which was revoked by Executive Order 12873 which was also revoked by Executive Order 13101. However, the guidance provided by the Policy Letter is still in effect.

(b) Executive Order 13101 created a Steering Committee, a Federal Environmental Executive (FEE) and a Task Force, and established an Agency Environmental Executive (AEE) position within the agency to be responsible for the Order’s implementation.

(c) The responsibility for meeting the requirements of Executive Order 13101 regarding increasing and expanding markets for recovered materials, developing and implementing affirmative procurement programs in accordance with RCRA and Executive Order 13101, is held by DOT’s Assistant Secretary for Administration, M-1.

(d) See (FAR) 48 C.F.R. 23.702 for additional statutes and Federal directives applicable to the acquisition of environmentally preferable and energy-efficient products and services.

1223.403 Policy.

DOT has adopted the Environmental Protection Agency (EPA) guideline recommendations in implementing its APP for recovered materials. Program officials and contracting officers shall use product descriptions and prepare contract specifications reflecting cost-effective procurement and use of designated recycled products, encouraging bidders to supply products containing recycled materials. A program office initiating an acquisition has the responsibility for determining:

(1) Whether recovered materials should be included in the specifications for designated items; and

(2) Whether the statement of work and/or specification involve(s) the use of items subject to the DOT APP (Appendix A).

When purchasing EPA designated items, contracting officers shall purchase, to the maximum extent practicable, items composed of recovered material consistent with the specifications for EPA designated items as set forth in the DOT APP.

1223.404 Agency Affirmative Procurement Programs.

(a) DOT’s APP is found at Appendix A for any questions concerning the applicability of the APP to Federal, State or local agencies, and government contractors and private party recipients of Federal loans, grants, or funds.

(a)(2) The $10,000 threshold applies to DOT-wide procurements and does not represent the purchase of any single OA.  The Office of Transportation and Facilities, Policy Division (M-50) will obtain the data from the Federal Procurement Data System-New Generation (FPDS-NG), combine the OA statistics and provide one DOT response to the Office of the Federal Environmental Executive and the Office of Federal Procurement Policy.

(b) As mandated by Section 6002(e) of RCRA, as amended, (42 U.S.C. 6962), EPA has developed and issued procurement guidelines for use by procuring agencies. The guidelines designate specific items containing recovered materials procuring agencies must purchase to the maximum extent practicable.

The DOT APP is based upon the minimum recovered material content standards developed by EPA which are set in such a way as to assure that the recovered materials content (and in the case of paper, the highest percentage of post consumer recovered materials) is the maximum practicable without jeopardizing the intended use of the item, consistent with Federal procurement law. A list of the EPA designated items and EPA's Recovered Materials Advisory Notice (RMAN) guideline for the minimum recovered material content standards for these items is available from the EPA website. DOT’s APP is found at Appendix A.

For technical information regarding RCRA or the EPA designated items, contact the RCRA Hotline at (800) 424-9346, or in the Washington, DC metropolitan area, (703) 412-9810.

(c) Program offices may request and contracting offices may purchase EPA designated items containing other than recovered materials as set forth in the DOT APP only if one of the conditions set forth in (FAR) 48 C.F.R. 23.405(c) applies.

The program office is responsible for completing and forwarding the Recovered Materials Determination Form (DOT F 4271.1) when submitting a purchase request to acquire EPA designated items from other than Federal supply sources and the Request for Waiver (DOT F 4272.1) when submitting a purchase request to acquire EPA designated items containing other than recovered materials. Both forms must be signed by the responsible program official and maintained in the procurement file.  The contracting officer shall give a copy of the Request for Waiver form (DOT F 4272.1) to the DOT Environmental Executive (M-1) within 30 days after contract award for annual reporting purposes.

(d) The estimate of the percentage of recovered material required to be reported by paragraph (b)(2) of FAR clause 52.223-9 is to be submitted to the Department of Transportation, Office of Transportation and Facilities, Policy Division (M-50), 400 Seventh Street, SW, Washington, DC 20590.

(e) Agency designated items. At the discretion of the OA, items other than EPA designated items for which recovered material content shall be specified may be adopted.

SUBCHAPTER 1223.5--DRUG-FREE WORKPLACE

1223.501 Applicability.

(d) The Head of the Operating Administration (HOA) is authorized to determine the applicability of this subchapter for contracts by law enforcement agencies under (FAR) 48 C.F.R. 23.501(d).

SUBCHAPTER 1223.7--CONTRACTING FOR ENVIRONMENTALLY PREFERABLE PRODUCTS AND SERVICES

1223.703 Policy.

(a) DOT's cost-effective contracting preference program is established in the attached Affirmative Procurement Program (Appendix A).

(b)  EPA guidance for utilizing environmentally preferable products and services is available via the Internet at http://www.ofee.gov/.

1224.103 Procedures.

(a) The requiring and contracting offices shall review requirements for work on any publicly accessible DOT website to ensure appropriate privacy language is included in procurement requests. This language should normally be part of the statement of work, in accordance with the memorandum entitled, (DOT) Public Web Site Requirements, dated May 18, 2004, and shall state as follows:

“The contractor shall ensure that the publicly accessible Web site conforms to the privacy requirements of the E-Government Act of 2002.  This includes ensuring the website:

(1) Uses only session cookies and no persistent cookies or other persistent tracking devices.

 

(2) Posts a Privacy Policy labeled, “Privacy Policy” in accordance with the DOT template and modified according to actual Web site practices.

 

(3) Provides a line labeled, “Privacy Policy” and linked to the Privacy Policy on all pages that collect personal information and that are major entry points to the Web sites (e.g., home page).

 

(4) Posts an accurate and complete XML translation of the Privacy Policy, according to World Wide Web Consortium Platform for Privacy Preferences standards.

The contractor shall provide access to the Government for the purposes of performing scans or conducting other verification techniques to ensure the above requirements are met.”

CHAPTER 1225

1225.103 Exceptions.

(a) Public Interest. The Head of the Operating Administration (HOA) is authorized to determine that domestic preference would be inconsistent with the public interest.

(b)(1)(iii)(C)  The support documentation and the determination shall be submitted to the Senior Procurement Executive (SPE) along with the same documentation requirements as a TAR change found at TAR 1201.301-70.  The SPE will forward the information to the Civilian Agency Acquisition Council for consideration.

(b)(2)(i) The Chief of the Contracting Office (COCO) is authorized to make the determination that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(b)(2)(ii) The support documentation and the determination shall be submitted to the SPE along with the same documentation requirements as a TAR change found at TAR 1201.301-70. The SPE will forward the information to the Civilian Agency Acquisition Council for consideration.

1225.105 Determining reasonableness of cost.

(a)(1) The COCO is authorized to determine that evaluation of offers under a foreign acquisition will differ from the procedures in (FAR) 48 C.F.R. 25.105.  Determinations must be sent to the SPE for possible publication in the TAR.

SUBCHAPTER 1225.2--BUY AMERICAN ACT--CONSTRUCTION MATERIALS

1225.202 Exceptions.

(a)(1) The COCO is authorized to determine that application of the restrictions of the Buy American Act to a particular construction material would be impracticable and inconsistent with the public interest.

SUBCHAPTER 1225.10--ADDITIONAL FOREIGN ACQUISITION REGULATIONS

1225.1001 Waiver of right to examination of records.

(a)(2)(iii) With the concurrence of the Comptroller General, the Head of the Contracting Activity (HCA) is authorized to determine that it will best serve the interest of the United States to use the appropriate alternate clause under (FAR) 48 C.F.R. 25.1001(a)(2). This authority may not be delegated.

CHAPTER 1226

OTHER SOCIOECONOMIC PROGRAMS

SUBCHAPTER 1226.1--INDIAN INCENTIVE PROGRAM

1226.103 Procedures.

(f) The contracting officer must make a decision under (FAR) 48 C.F.R. 26.104 prior to issuing the solicitation. If the contracting officer decides that subcontracting opportunities exist, funds must be obtained to cover the anticipated 5 percent prime contractor incentive payment as it applies to the amount paid the subcontractor. Otherwise, the contracting officer may be in violation of the Anti-Deficiency Act (31 U.S.C. 1341). OA budget or finance procedures shall be followed to obtain the funds.

CHAPTER 1227

PATENTS, DATA, AND COPYRIGHTS

SUBCHAPTER 1227.2--PATENTS

1227.203 Patent indemnification of Government by contractor.

1227.203-6 Clause for Government waiver of indemnity.

The Chief of the Contracting Office (COCO) is authorized to exempt one or more specific United States patents from the patent indemnity clause under (FAR) 48 C.F.R. 27.203-6 . COCO exemption decisions shall be coordinated with legal counsel.

SUBCHAPTER 1227.3--PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

1227.302 Policy.

(a) The Head of the Operating Administration (HOA) is authorized to make determinations under (FAR) 48 C.F.R. 27.302(a).

1227.303 Contract clauses.

The Head of the Contracting Activity (HCA) is authorized under (FAR) 48 C.F.R. 27.303(a)(3), (b)(2), (c)(3), and (d)(1)(ii) to determine, at the time of contracting, that it would be in the national interest to acquire the right to sublicense foreign governments or international organizations pursuant to any existing or future treaty or agreement.

1227.304 Procedures.

1227.304-1 General.

(a)(3) The COCO is authorized under (FAR) 48 C.F.R. 27.304-1(a)(3) to make a decision on the contractor's appeal of the agency determination.  The decision shall be coordinated with legal counsel.

(a)(5) The COCO is authorized under (FAR) 48 C.F.R. 27.304-1(a)(5) to prepare or adopt written findings of fact and is responsible for transmitting the findings, along with a recommended decision, to the HOA. The COCO is also responsible for sending the findings and recommended decision to the contractor by registered or certified mail.

(a)(7) The COCO is the individual authorized under (FAR) 48 C.F.R. 27.304-1(a)(7) to make a decision based on the facts found, together with any argument submitted by the contractor, agency officials, or any other information in the administrative record. The decision shall be coordinated with legal counsel.

(b) The COCO is the individual authorized under (FAR) 48 C.F.R. 27.304-1(b) to grant requests for greater rights provided the interests of the United States and the general public will be better served.  The decision shall be coordinated with legal counsel.

(g)(2) The COCO is authorized to initiate a march-in proceeding according to (FAR) 48 C.F.R. 27.304-1(g)(2).  The decision to initiate a march-in proceeding shall be coordinated with legal counsel.

(g)(3) The COCO is authorized under (FAR) 48 C.F.R. 27.304-1(g)(3) to receive information or argument in opposition to a proposed march-in. If the information raises a genuine dispute over the material facts, the COCO may undertake the matter or refer it to another official.  COCO decisions under this provision shall be coordinated with legal counsel.

(g)(5) The COCO or the official designated by the COCO is authorized under (FAR) 48 C.F.R. 27.304-1(g)(5) to receive written findings of fact from the official conducting the fact-finding; to receive written arguments from the contractor; and, to preside over oral arguments before making the final determination.  The COCO's final determination shall be coordinated with legal counsel.

(g)(6) The COCO is the individual authorized under (FAR) 48 C.F.R. 27.304-1(g)(6) to determine whether march-in rights will be exercised. The COCO's determination shall be coordinated with legal counsel.  The COCO is also responsible for notifying the contractor, its designee or exclusive licensee within periods set forth in (FAR) 48 C.F.R. 27.304-1(g)(6). No march-in rights may be exercised based upon the facts and reasons upon which the proceeding was initiated unless the contractor, its designee, or exclusive licensee is timely notified of DOT's determination.

1227.305-4 Conveyance of invention rights acquired by the Government.

(b) When a contractor discloses an invention under a contract, the contracting officer shall consult with the Operating Administration (OA) Patent Counsel to determine the proper action to be taken. If the OA does not have a Patent Counsel, then the DOT Patent Counsel (C-15) shall be consulted before proceeding.

SUBCHAPTER 1227.4--RIGHTS IN DATA AND COPYRIGHTS

1227.404 Basic rights in data clause.

(h) The COCO is the individual authorized under (FAR) 48 C.F.R. 27.404(h) to concur with the contracting officer's determination that the markings of data are not authorized.

CHAPTER 1228

BONDS AND INSURANCE

SUBCHAPTER 1228.1--BONDS AND OTHER FINANCIAL PROTECTIONS

1228.101 Bid guarantees.

1228.101-1 Policy on use.

(c) The HCA is authorized to approve a class waiver from the requirement to obtain a bid guarantee when a performance or a performance and payment bond is required.

1228.105 Other types of bonds.

The contracting officer is authorized to approve the use of other types of bonds in connection with acquiring particular supplies or services.

1228.106 Administration.

1228.106-2 Substitution of surety bonds.

(a) The contracting officer is authorized to approve the substitution of a new surety bond covering all or part of obligations on a bond previously approved.

1228.106-6 Furnishing information.

(c) The contracting officer is the individual who will furnish to the requestor a certified copy of the payment bond and the contract for which it was given, and determine the reasonable and appropriate costs the requestor must pay for the preparation of copies.

SUBCHAPTER 1228.2--SURETIES

1228.202 Acceptability of corporate sureties.

(d) Department of the Treasury's Listing of Approved Sureties (Department Circular 570) is published annually on July 1. Interim changes are published in the Federal Register as they occur and may be obtained at the address shown in (FAR) 48 C.F.R. 28.202(d).

1228.203 Acceptability of individual sureties.

(g) Contracting officers shall refer evidence of possible criminal or fraudulent activities by an individual surety to legal counsel for review and further action.

1228.203-7 Exclusion of individual sureties.

(a) The HCA is authorized to exclude an individual from acting as a surety on bonds submitted by offerors on procurements by the executive branch of the Federal Government.

(d) The HCA must state, in writing, the compelling reasons for justifying acceptance of a bond from an individual surety whose name is on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs. 

SUBCHAPTER 1228.3--INSURANCE

1228.305 Overseas workers' compensation and war hazard insurance.

(d) The HCA is authorized to recommend to the Secretary of Labor a waiver of the applicability of the Defense Base Act (42 USC 1651) to any contract, subcontract, work location, or classification of employees.

CHAPTER 1229

TAXES

SUBCHAPTER 1229.1--GENERAL

1229.101 Resolving tax problems.

(a) For the purpose of (FAR) 48 C.F.R. 29.101, the designated legal counsel for the Operating Administrations (OAs) is their Office of Chief Counsel.  For the Office of the Secretary (OST), the designated legal counsel is the Office of the General Counsel (C-10).

(b) As a minimum, contracting officers shall seek the advice of the OA legal counsel, when the following problems or circumstances exist:

(1) When tax problems cannot be resolved in accordance with the policy and procedures of (FAR) 48 C.F.R. Part 29;

(2) When the Department of Justice must be consulted for representation or intervention in proceedings concerning taxes;

(3) When a state or local tax appears to have a direct effect on an interstate commerce transaction;

(4) When a judicial or administrative action against the contractor is threatened;

(5) When an actual or potential tax is imposed which resulted from an amendment to a tax law or a change made by tax authorities;

(6) When there is a possibility that paid taxes will be refunded; and

(7) When a problem concerns actual or potentially large sums of taxes.

(c) All problems forwarded to the OA's legal counsel for review and/or resolution shall be accompanied by the following:

(1) A copy of the contract, when applicable;

(2) A comprehensive statement of the facts, any substantiating documents or correspondence, the legal issues, and recommended course of action, if any; and

(3) When applicable, a statement concerning the effect the problem has or will have on existing acquisition policy and procedures, and any recommended changes to them. Any recommended changes to DOT policy or procedures concerning taxes shall be transmitted through appropriate channels to the SPE for action.

SUBCHAPTER 1229.3--STATE AND LOCAL TAXES

1229.303 Application of State and local taxes to Government contractors and subcontractors.

The Head of the Contracting Activity (HCA) is authorized under (FAR) 48 C.F.R. 29.303(a) to review contentions that a contractor is an agent of the Government for the purpose of claiming immunity from State or local sales or use taxes. HCA decisions concerning the designation of prime contractors and subcontractors as agents of the Government for the purpose of claiming immunity from State or local sales or use taxes shall be coordinated with legal counsel.

SUBCHAPTER 1229.4--CONTRACT CLAUSES

1229.401 Domestic contracts.

1229.401-6 New Mexico gross receipts and compensating tax.

(c) Participating agencies. DOT signed an agreement with the State of New Mexico Taxation and Revenue Department, on January 18, 1990.

CHAPTER 1230

1230.201-5 Waiver.

(a) The Senior Procurement Executive (SPE) is authorized to waive the applicability of the Cost Accounting Standards (CAS) that meet the conditions in (FAR) 48 C.F.R. 30.201-5(b). Waiver requests shall be submitted to the SPE for approval at least 30 days before the anticipated contract award.

(d) Any waiver request requiring CAS Board approval in accordance with (FAR) 48 C.F.R. 30.201-5(d) shall be submitted to the SPE for review and forwarding to the CAS Board.

(e) The Office of the SPE will submit DOT’s report to the CAS Board.

1230.202 Disclosure requirements.

1230.202-2 Impracticality of submission.

The authority of the agency head to determine that it is impractical to secure the Disclosure Statement and authorize contract award under (FAR) 48 C.F.R. 30.202-2 is non-delegable.

CHAPTER 1231

CONTRACT COST PRINCIPLES AND PROCEDURES

SUBCHAPTER 1231.1--APPLICABILITY

1231.101 Objectives.

The Senior Procurement Executive (SPE) is authorized to give advance approval of individual deviations concerning cost principles (however, see TAM 1231.205-6(g)).  Individual and class deviations concerning the cost principles shall be submitted to the Office of the Senior Procurement Executive (OSPE) in accordance with (FAR) 48 C.F.R. 1.4 and TAM 1201.4.  The OSPE will process class deviations and, pursuant to (FAR) 48 C.F.R. 31.101, forward the request to the Civilian Agency Acquisition Council.

1231.109 Advance agreements.

See TAM 1231.205-32.

SUBCHAPTER 1231.2--CONTRACTS WITH COMMERCIAL ORGANIZATIONS

1231.205 Selected costs.

1231.205-6 Compensation for personal services.

(g)(6) The Head of the Contracting Activity (HCA), or designee at a level no lower than that of the COCO is authorized to grant the waiver under (FAR) 48 C.F.R. 31.205-6(g)(6).

1231.205-32 Precontract costs.

(a) The use of an "advance agreement," "anticipatory costs," or any other type of "if and when" statement as a vehicle to authorize precontract costs is inappropriate. However, such documents may be used to establish agreement on the treatment of precontract costs such as the effort to be performed, amount to be reimbursed if a contract is awarded.  These documents may only be used in exceptional circumstances where a written approval has been granted by the Chief of the Contracting Office (COCO).  The request for COCO approval shall include:

(1) Identification of the requirement and a brief description of the work for which precontract costs are necessary;

(2) A statement that all statutory and regulatory actions required to justify source selection has occurred;

(3) Name of the prospective contractor;

(4) Total amount of precontract costs involved and a statement that the funds necessary to cover this amount have been provided to the contracting officer;

(5) Total estimated time of the effort requiring precontract costs;

(6) Justification for why it is necessary for the contractor to proceed prior to contract award; and

(7) A statement that the contracting officer advises the prospective contractor that incurrence of precontract costs is solely at its own risk and that in the event negotiations do not result in a contract, the Government shall be under no obligation to reimburse the contractor for precontract