[Federal Register Volume 60, Number 213 (Friday, November 3, 1995)]
[Proposed Rules]
[Pages 55827-55830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27248]



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DEPARTMENT OF TRANSPORTATION

48 CFR Parts 1213, 1237 and 1252

[Docket OST-95-775; Notice 95-13]
RIN 2105-AC-30


Revision of Department of Transportation Acquisition Regulation

AGENCY: Transportation.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The proposed rule implements a Department of Transportation 
Office of the Inspector General recommendation resulting from a review 
on the acquisition of commercial training services. The Department is 
proposing to amend the Transportation Acquisition Regulation (TAR) to: 
Require all offerors to certify that the data provided concerning 
company qualifications, background, etc. is current, accurate and 
complete; and prohibit contractors from soliciting or advertising 
private, non-Government training while under contract to the 
Department.

DATES: Comments must be received on or before December 4, 1995, to be 
considered in the formulation of a final rule.


[[Page 55828]]

ADDRESSES: Interested parties should submit written comments, 
preferably in triplicate, to Docket Clerk, Docket No. OST-95-775, 
Department of Transportation, 400 Seventh Street, S.W., Room 4107, 
Washington, D.C. 20590. Please cite TAR revision in all correspondence 
concerning this proposal.

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

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 
they desire. Communications shall identify the Rules Docket number and 
be submitted in triplicate to the address specified above. All 
communications received on or before the closing date for comments 
specified above will be considered before taking action on the proposed 
rule. The proposals contained in this notice may be changed in light of 
the comments received.
    Comments are specifically invited on the proposed approach 
(obtaining certification of data submitted with offers, bids or 
proposals), including suggested alternative approaches to obtaining the 
required information from industry. In particular, the Department is 
exploring ways to reduce paperwork burden on small businesses. All 
comments submitted will be available, both before and after the closing 
date for comments, in the Rules Docket for examination by interested 
persons.

A. Background

    It is the policy of the Department of Transportation to require 
prospective training service contractors (educational institutions, 
large and small businesses) to certify the data provided concerning 
qualifications, background statements, etc., are current, accurate, and 
complete at the time of submitting a quotation or an offer. In 
addition, DOT considers inappropriate the soliciting, advertising or 
marketing of related or unrelated training during the conduct of 
training (i.e., courses, seminars, classes) while under contract to 
DOT. Solicitation provisions and a contract clause will be incorporated 
into the TAR requiring offeror certification and prohibiting the 
marketing of an institution's or vendor's training resources while 
conducting training under contract to DOT.
    The proposed rule does not duplicate, overlap, or conflict with any 
other Federal rules.

B. Regulatory Analyses and Notices

    The Department has determined that this action is not a significant 
regulatory action under Executive Order 12866 or under the Department 
Regulatory Policies and Procedures. The Department does not believe 
that there would be sufficient Federalism implications to warrant the 
preparation of a Federalism assessment. This rule will not have a 
significant economic impact on a substantial number of small entities 
because the basic policies remain unchanged. Therefore, this rule does 
not require a regulatory flexibility analysis under the Regulatory 
Flexibility Act of 1980.

C. Paperwork Reduction Act

    The information collection requirements associated with this rule 
are being submitted to the Office of Management and Budget (OMB) for 
approval in accordance with 44 U.S.C. Chapter 35 under OMB No. 2105-AC-
30; Administration: Office of the Secretary of Transportation; Title: 
Amendment to Transportation Acquisition Regulation; Need for 
Information: To require certification of capability statements and 
background data submitted per the requirements of the solicitation or 
request for quotation; Proposed Use of Information: To verify accuracy 
and completeness of offerors' capability statements and data submitted 
per the requirements of the solicitation or request for quotation; 
Frequency: On occasion; Burden Estimate: 792 hours; Forms: None; 
Average Burden Hours Per Respondent: 1 hour, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
certification requirements. Comments on the proposed information 
collection requirement should be sent to the DOT rulemaking docket for 
this proposed action and comments may also be submitted to: Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Washington, D.C. 20503, Attention: Desk Officer for the Department of 
Transportation.
    This proposal revises record keeping and information collection 
requirements and require approval of OMB under 44 U.S.C. 3501, et seq.

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

    Government procurement.

    This NPRM is issued under the delegated authority of 49 CFR Part 
1.59(q). This authority has been redelegated to the Senior Procurement 
Executive. Issued this 26th day of October 1995, at Washington, D.C.
David J. Litman,
Senior Procurement Executive.

Adoption of Amendments

    For the reasons set out in the preamble, 48 CFR Chapter 12 is 
proposed to be amended as set forth below:
    1. The authority citation for 48 CFR chapter 12, Parts 1213, 1237, 
and 1252 continues to read as follows:

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

PART 1213--SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES

    2. Part 1213 is amended by adding subpart 1213.71, Department of 
Transportation Procedures for Acquiring Training Services as follows:

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


1213.7100  Applicability.

    (a) DOT policy at (TAR) 48 CFR 1237.7000 also applies to the 
Standard Form (SF) 182, Request, Authorization, Agreement and 
Certification of Training, which may be used to acquire training 
services; however, the policy does not apply to training services 
acquired by the Government purchase/credit card. The Government 
purchase/credit card can only be used to acquire training services 
valued at $2,500 or less.
    (b) As reflected in (TAR) 48 CFR 1237.7002, this policy does not 
apply to training attended by DOT employees which is scheduled and 
conducted by Government sources of supply, educational institutions, or 
private entities where DOT does not control or sponsor the training. 
Examples of when the policy does and does not apply include:
    (1) When SF 182s are issued for three DOT employees to attend a one 
week course at a university or other private entity, the policy does 
not apply. DOT does not control this course because the university or 
private entity has a contract in place with the training provider and 
DOT is placing an order under an existing contract; and
    (2) When DOT awards a contract to a university or other private 
entity to provide training for DOT and/or other Government personnel, 
the policy applies. DOT controls this course; 

[[Page 55829]]
therefore, no soliciting or advertising of private, non-Government 
training while conducting the contracted-for training is permitted.


1213.7101  Solicitation provision and contract clause.

    (a) Contracting officers shall insert the provision at (TAR) 48 CFR 
1252.237-71, Certification of Data, in all solicitations and requests 
for quotations, and the clause at (TAR) 48 CFR 1252.237-72, Prohibition 
on Advertising, in solicitations, requests for quotations, and all 
contracts (e.g., purchase orders, SF 182s) for training services when 
the content and/or presentation of the training is controlled by DOT.
    (b) Contracting officers shall incorporate the successful offeror's 
certified data into any resultant contract(s). Certified data may be 
incorporated by reference, if the contracting officer determines it 
contains sufficient descriptive information (i.e., dated material such 
as resumes, company and/or personnel qualifications) to reliably 
describe the certified data submitted.

PART 1237--SERVICE CONTRACTING

    3. Subpart 1237.70, Department of Transportation Procedures for 
Acquiring Training Services, is added as follows:

SUBPART 1237.70--DEPARTMENT OF TRANSPORTATION PROCEDURES FOR 
ACQUIRING TRAINING SERVICES


1237.7000  Policy.

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


1237.7001  Certification of data.

    Towards fulfilling DOT's policy at (TAR) 48 CFR 1237.7000(a), 
contracting officers shall request information from prospective 
contractors for certification purposes. The type of information 
requested is dependent upon the criticality of the service and/or any 
unique or essential qualification requirements.


1237.7002  Applicability.

    The policy at (TAR) 48 CFR 1237.7000 applies to all DOT contracts 
as defined in FAR 2.101 for training services when DOT controls the 
content and/or the presentation of the course. This policy does not 
apply to courses attended by DOT employees which are offered and 
sponsored by Government sources of supply, educational institutions, or 
private entities where DOT does not control the course content or 
presentation. (See (TAR) 48 CFR 1213.7100 for examples.)


1237.7003  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at (TAR) 48 
CFR 1252.237-71, Certification of Data, in solicitations and the clause 
at (TAR) 48 CFR 1252.237-72, Prohibition on Advertising, in 
solicitations and contracts for training services when the content and/
or presentation of the course is controlled by DOT.
    (b) Contracting officers shall incorporate the successful offeror's 
certified data into any resultant contract(s). Certified data may be 
incorporated by reference, if the contracting officer determines it 
contains sufficient descriptive information (i.e., dated material such 
as resumes, company and/or personnel qualifications) to reliably 
describe the certified data submitted.

PART 1252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Part 1252 is amended to add sections 1252.237-71 and 1252.237-72 
to read as follows:


1252.237-71  Certification of data.

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

CERTIFICATION OF DATA (OCT 1995)

    (a) The offeror represents and certifies that to the best of its 
knowledge and belief, the information and/or data (e.g., company 
profile, qualifications, background statements, brochures) submitted 
with its offer is current, accurate, and complete as of the date of 
its offer.
    (b) The offeror understands that any inaccurate data provided to 
the Department of Transportation may subject the offeror, its 
subcontractors, its employees, or its representatives to: (1) 
prosecution for false statements pursuant to 18 U.S.C. 1001 and/or; 
(2) enforcement action for false claims or statements pursuant to 
the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-3812 
and 49 CFR Part 31 and/or; (3) termination for default under any 
contract resulting from its offer and/or; (4) debarment or 
suspension.
    (c) The offeror agrees to obtain a similar certification from 
its subcontractors.
Signature:-------------------------------------------------------------

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

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

Company Name-----------------------------------------------------------

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

(End of provision)


1252.237-72  Prohibition on advertising.

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

PROHIBITION ON ADVERTISING (OCT 1995)

    The contractor or its representatives (including training 
instructors) shall not advertise or solicit business for private, 
non-Government training while conducting training services under 
this contract. This prohibition extends to oral comments, 
distribution or sales of written materials, and/or sales of 
promotional videos or audio tapes regarding non-Government training 
opportunities.
    The contractor agrees to insert this clause in its sub-
contracts.

(End of clause)

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

[[Page 55830]]


Appendix To Subpart 1253.3

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                                                                                           Tar Matrix                                                                                           
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                                                                                                              Principle type and/or purpose of contract                                         
                                Prescribed                         -----------------------------------------------------------------------------------------------------------------------------
      Provision or clause           In      P or C    IBR     UCF     FP     CR     FP     CR     FP     CR     FP     CR    T&M           COM                         IND                  UTL 
                                                                     SUP    SUP    R&D    R&D    SVC    SVC    CON    CON     LH    LMV    SVC    DDR    A&E    FAC    DEL    TRN     SP    SVC 
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1252.237-71  Certification of    1237.7003  P       No      K       .....  .....  .....  .....  A      A      .....  .....  .....  .....  A      .....  .....  .....  A      .....  A           
 Data.                                                                                                                                                                                          
1252.237-72  Prohibition on      1237.7003  C       No      I       .....  .....  .....  .....  A      A      .....  .....  .....  .....  A      .....  .....  .....  A      .....  A           
 Advertising.                                                                                                                                                                                   
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[FR Doc. 95-27248 Filed 11-2-95; 8:45 am]
BILLING CODE 4910-62-P