[Federal Register Volume 60, Number 198 (Friday, October 13, 1995)]
[Rules and Regulations]
[Pages 53278-53280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25206]



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DEPARTMENT OF THE INTERIOR

Office of the Secretary

48 CFR Parts 1415, 1426, 1428 and 1452

RIN 1090-AA52


Department of the Interior Acquisition Regulation; Internal 
Procedures

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: In the interests of streamlining processes and improving 
relationships with contractors, this final rule amends the Department 
of the Interior Acquisition Regulation by removing nonessential 
portions of those regulations. Internal procedures regarding disclosure 
and use of information before award, unsolicited proposals, handling of 
preaward mistakes, proposal evaluation, price negotiation, and profit 
analysis are being removed. Guidance on Indian Preference contracting, 
formerly located in Part 1404, is being reinstated as Part 1426. 
Aircraft insurance clauses have been revised.

EFFECTIVE DATE: November 13, 1995.

FOR FURTHER INFORMATION CONTACT:
Dee Emmerich, Office of Acquisition and Property Management, (202) 208-
3348.

SUPPLEMENTARY INFORMATION: Under the auspices of the National 
Performance Review, a thorough review of the Department of the Interior 
Acquisition Regulation (DIAR) was conducted. The review revealed 
unnecessary and outdated regulations, and some excessively burdensome 
procedures.
    In the interests of streamlining processes and improving 
relationships with contractors, nonessential portions of the DIAR are 
being removed from the CFR. The eight sections being removed from part 
1415 deal with exclusively internal procedures so codification is not 
necessary. Section 1415.106 is retained without change.
    When the DIAR was issued in 1984 as a supplement to the Federal 
Acquisition Regulation (FAR), FAR Part 26, Other Socioeconomic 
Programs, did not exist. There being no alternative at the time, 
Interior-unique guidance on contracting under Indian preference 
procedures was issued as a supplement to FAR Part 4, Administrative 
Matters. Therefore, the guidance formerly located at 1404.70 has been 
removed, is being replaced in new subpart 1426.70 with only editorial 
changes to cross-references and so forth. The clauses formerly located 
at 1452.204 are relocated to 1452.226.
    The removal of sections 1428.101 and 1428.104, regarding central 
maintenance of bid bond information, will simplify DOI's internal 
management and eliminate unnecessary paperwork. Editorial revisions 
have been made to 1428.306 and 1428.311. 1452.228-70(b) was revised to 
relieve contractors of the requirement to use registered mail and to 
specify that a certificate of insurance constitutes adequate proof of 
insurance.
    The title of 1452.228-73 was edited. There were no changes to 
1452.228-7, 1452.228-71, or 1452.227-72.

Required Determinations

    The Department believes that public comment is unnecessary because 
the material being removed is outdated or deals exclusively with 
internal procedures. Therefore, in accordance with 5 U.S.C. 553(b)(B), 
the Department finds good cause to publish this document as a final 
rule. This rule was not subject to Office of Management and Budget 
review under Executive Order 12866. This rule does not contain a 
collection of information subject to the Paperwork Reduction Act of 
1980 (44 U.S.C. 3501 et seq.). In accordance with the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), the Department has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities because no requirements are being 
added for small businesses and no protections are being withdrawn. The 
Department has determined that this rule does not constitute a major 
Federal action having a significant impact on the human environment 
under the National Environmental Policy Act of 1969. The Department has 
certified that this rule meets the applicable standards provided in 
Sections 2(a) and 2(b)(2) of Executive Order 12778.

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

    Government procurement, Reporting and recordkeeping requirements.

    Dated: August 8, 1995.
Robert J. Lamb,
Acting Assistant Secretary, Policy Management and Budget.
    Chapter 14 of Title 48 of the Code of Federal Regulations is 
amended as follows:

[[Page 53279]]

    1. The authority citation for 48 CFR Parts 1415 and 1452 continues 
to read as follows:


    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5 
U.S.C. 301.

PART 1415--[AMENDED]

    2. Part 1415 is amended by removing subparts 1415.4, 1415.5, 
1415.6, 1415.8 and 1415.9.
    3. Part 1426 is added to subchapter D to read as follows:

PART 1426--OTHER SOCIO-ECONOMIC PROGRAMS

Subpart 1426.70--Indian Preference

1426.7000  Scope of subpart.
1426.7001  Definitions.
1426.7002  Statutory requirements.
1426.7003  Applicability and contract clause.
1426.7004  Compliance enforcement.
1426.7005  Tribal preference requirements.

    Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c) and 5 
U.S.C. 301); Pub. L. 93-638, 88 Stat. 2205 (25 U.S.C. 450e(b)).

Subpart 1426.70--Indian Preference


1426.7000  Scope of subpart.

    This subpart prescribes policies and procedures for implementation 
of section 7(b) of the Indian Self-Determination and Education 
Assistance Act (Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b)).


1426.7001  Definitions.

    For purposes of this subpart the following definitions shall apply:
    Indian means a person who is a member of an Indian Tribe. If the 
contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual within thirty (30) days to provide 
evidence from the Tribe concerned that the person is a member of the 
Tribe.
    Indian organization means that governing body of any Indian Tribe 
or entity established or recognized by such governing body in 
accordance with the Indian Financing Act of 1974 (Pub. L. 93-262, 88 
Stat. 77; 25 U.S.C. 1451).
    Indian-owned economic enterprise means any Indian-owned commercial, 
industrial, or business activity established or organized for the 
purpose of profit provided that such Indian ownership shall constitute 
not less than 51 percent of the enterprise.
    Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land 
held by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims 
Settlement Act, (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601 et seq.).
    Indian Tribe means an Indian Tribe, band, nation, or other 
recognized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (Pub. L. 92-203, 85 Stat. 
688; 43 U.S.C. 1601), which is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    On or near an Indian reservation means on a reservation or the 
distance within that area surrounding an Indian reservation(s) that a 
persons seeking employment could reasonably be expected to commute to 
and from in the course of a work day.


1426.7002  Statutory requirements.

    Section 7(b) of the Indian Self-Determination and Education 
Assistance Act requires that any contract or subcontract entered into 
pursuant to that Act, the Act of April 16, 1934 (48 Stat. 596; 25 
U.S.C. 452), as amended, (the Johnson-O'Malley Act), or any other Act 
authorizing contracts with Indian organizations or for the benefit of 
Indians shall require that, to the greatest extent feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such contracts shall be given to 
Indians, and
    (b) Preference in the award of subcontracts in connection with the 
administration of such contracts shall be given to Indian organizations 
and to Indian-owned economic enterprises as defined in section 3 of the 
Indian Financing Act of 1974 (Sec. 3, Pub. L. 93-262; 88 Stat. 77; 25 
U.S.C. 1452).


1426.7003  Applicability and contract clause.

    (a) The Contracting Officer (CO) shall insert the clause at 
1452.226-70, Indian Preference--Department of the Interior, in 
solicitations issued and contracts awarded by
    (1) The Bureau of Indian Affairs,
    (2) A contracting activity other than the Bureau of Indian Affairs 
when the contract is entered into pursuant to an act specifically 
authorizing contracts with Indian organizations and
    (3) A contracting activity other than the Bureau of Indian Affairs 
where the work to be performed is specifically for the benefit of 
Indians and is in addition to any incidental benefits which might 
otherwise accrue to the general public.
    (b) The CO shall insert the clause at 1452.226-71, Indian 
Preference Program--Department of the Interior, in all solicitations 
issued and contracts awarded by a contracting activity which may exceed 
$50,000, which contain the clause required by paragraph (a) of this 
section and where it is determined by the CO, prior to solicitation, 
that the work under the contract will be performed in whole or in part 
on or near an Indian reservation(s). The Indian Preference Program 
clause may also be included in solicitations issued and contracts 
awarded by a contracting activity which may not exceed $50,000, but 
which contain the clause required by paragraph (a) of this section and 
which, in the opinion of the CO, offer substantial opportunities for 
Indian employment, training or subcontracting.


1426.7004  Compliance enforcement.

    (a) The CO is responsible for conducting periodic reviews of the 
contractor to ensure compliance with the requirements of the clauses 
prescribed in 1426.7003. These reviews may be conducted with the 
assistance of the Indian Tribe(s) concerned.
    (b) Complaints of noncompliance with the requirements of the 
clauses prescribed under 1426.7003 which are received in writing by the 
contracting activity shall be promptly investigated by the CO and a 
written disposition of the complaint shall be prepared.


1426.7005  Tribal preference requirements.

    (a) Where the work under a contract is to be performed on an Indian 
reservation, the CO may supplement the clause at 1452.226-71, Indian 
Preference Program--Department of the Interior, by adding specific 
Indian preference requirements of the Tribe on whose reservation the 
work is to be performed. The supplemental requirements shall be jointly 
developed for the contract by the CO and the Tribe. Supplemental 
preference requirements must represent a further implementation of the 
requirements of section 7(b) of Public Law 93-638 and must be approved 
by the SOL for legal sufficiency before being added to a solicitation 
and resultant contract. Any supplemental preference requirements to be 
added to the clause at 1452.226-71 shall be included in the 
solicitation and clearly identified in order to ensure uniform 
understanding of the additional requirements by all prospective bidders 
or offerors.
    (b) Nothing in this subpart shall be interpreted to preclude Tribes 
from independently developing and enforcing their own tribal preference 
requirements. Such independently developed tribal preference 
requirements shall not, except as 

[[Page 53280]]
provided in paragraph (a) of this section, become a requirement in 
contracts covered under this subpart 1426.70 and must not hinder the 
Government's right to award contracts and to administer their 
provisions.

    4. Part 1428 is revised to read as follows:

PART 1428--BONDS AND INSURANCE

Subpart 1428.3--Insurance

Sec.
1428.301  Policy.
1428.306  Insurance under fixed-price contracts.
1428.306-70  Insurance for aircraft service contracts.
1428.311  Solicitation provision and contract clause on liability 
insurance under cost-reimbursement contracts.
1428.311-2  Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and 5 
U.S.C. 301.

Subpart 1428.3--Insurance


1428.301  Policy.

    It is the policy of DOI to insure its own risks only when such 
action is in the best interest of the Government. Circumstances where 
contractors are required to carry insurance are listed under FAR 28.301 
and 28.306. In these circumstances, the CO shall insert the clause at 
1452.228-70, Liability Insurance--Department of the Interior, in 
solicitations and contracts.


1428.306  Insurance under fixed-price contracts.


1428.306-70  Insurance for aircraft services contracts.

    (a) Policy. The CO shall insert minimum insurance requirements in 
aircraft services contracts in order to protect the Government and its 
contractors.
    (b) Applicability. The clauses prescribed by paragraph (c) of this 
section are applicable to all fixed-price contracts involving use of 
aircraft with either a contractor-furnished or a Government-furnished 
pilot except for one-time charters when Government exposure is minimal 
and time limitations are present.
    (c) Clauses. The following clauses shall be used as prescribed:
    (1) The CO shall insert the clause at 1452.228-71, Aircraft and 
General Public Liability Insurance--Department of the Interior, in 
solicitations and contracts when a fixed-price contract for operation 
of aircraft where the Government is using a contractor-furnished pilot 
is contemplated.
    (2) The CO shall insert the clause at 1452.228-72, Liability for 
Loss or Damage--Department of the Interior, in solicitations and 
contracts when a fixed-price contract for use of aircraft where the 
Government does not have a property interest and is using a Government-
furnished pilot is contemplated.
    (3) The CO shall insert the clause at 1452.228-73, Liability for 
Loss or Damage--Department of the Interior (Property Interest), in 
solicitations and contracts when a fixed-price contract for use of 
aircraft where the Government has a property interest in the aircraft 
and is using a Government-furnished pilot (e.g., a lease with purchase 
option) is contemplated.


1428.311  Solicitation provision and contract clause on liability 
insurance under cost-reimbursement contracts.


1428.311-2  Contract clause.

    The CO shall modify the clause at FAR 52.228-7, Insurance--
Liability to Third Persons, in accordance with 1452.228-7, and insert 
in solicitations and contracts as prescribed in FAR 28.311-2.

PART 1452--[AMENDED]


1452.204-7  [Redesignated as 1452.226-70]

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


1452.204-72  [Redesignated as 1452.226-71]

    6. 1452.204-72 is redesignated as 1452.226-71.
    7. 1452.228-70 is revised to read as follows:


1452.228-70  Liability insurance.

    As prescribed in 1428.301, insert the following clause in all 
contracts where circumstances warrant the carrying of insurance by the 
contractor (see FAR 28.301 and 28.306):

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

    (a) The contractor shall procure and maintain during the term of 
this contract and any extension thereof liability insurance in form 
satisfactory to the Contracting Officer by an insurance company 
which is acceptable to the Contracting Officer. The named insured 
parties under the policy shall be the Contractor and the United 
States of America. The amounts of the insurance shall be not less 
than as follows:

    $________ each person.*
    $________ each occurrence.*
    $________ property damage.*

    (b) Each policy shall have a certificate evidencing the 
insurance coverage. The insurance company shall provide an 
endorsement to notify the Contracting Officer 30 days prior to the 
effective date of cancellation or termination of the policy or 
certificate; or modification of the policy or certificate which may 
adversely affect the interest of the Government in such insurance. 
The certificate shall identify the contract number, the name and 
address of the Contracting Officer, as well as the insured, the 
policy number and a brief description of contract services to be 
performed. The contractor shall furnish the Contracting Officer with 
a copy of an acceptable insurance certificate prior to beginning the 
work.
    * These amounts to be set by the Contracting Officer.

[End of clause]

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


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

    As prescribed in 1428.306-70(c)(3), insert the following clause in 
all fixed-price contracts involving the use of aircraft with 
Government-furnished pilot where the Government has a property interest 
in the aircraft (e.g., lease with purchase option):
* * * * *
[FR Doc. 95-25206 Filed 10-12-95; 8:45 am]
BILLING CODE 4310-RF-M