[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Proposed Rules]
[Pages 2104-2109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-768]


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DEPARTMENT OF DEFENSE

48 CFR Parts 212, 242, 247, and 252

[DFARS Case 99-D009]


Defense Federal Acquisition Regulation Supplement; Transportation 
Acquisition Policy

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: The Acting Director of Defense Procurement is proposing to 
amend the Defense Federal Acquisition Regulation Supplement (DFARS) to 
revise policy pertaining to the acquisition of transportation, 
transportation-related services, and transportation in supply 
contracts. The rule provides for the use of evaluation factors that 
address support for DoD readiness programs such as the Civil Reserve 
Air Fleet and the Voluntary Intermodal Sealift Agreement.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before March 13, 2000, to be considered 
in the formation of the final rule.

ADDRESSES: Interested parties should submit written comments on the 
proposed rule to: Defense Acquisition Regulations Council, Attn: Ms. 
Amy Williams, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, 
Washington, DC 20301-3062. Telefax (703) 602-0350.
    E-mail comments submitted via the Internet should be addressed to: 
[email protected]
    Please cite DFARS Case 99-D009 in all correspondence related to 
this proposed rule. E-mail correspondence should cite DFARS Case 99-
D009 in the subject line.

FOR FURTHER INFORMATION CONTACT:
Ms. Amy Williams, (703) 602-0288.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule proposes amendments to the DFARS to revise policy 
pertaining to the acquisition of transportation, transportation-related 
services, and transportation in supply contracts. For contracts for 
transportation or transportation-related services, the rule specifies 
that contracting officers should consider using, as evaluation factors 
or subfactors, the offeror's record of claims involving loss or damage, 
provider availability, and support for DoD readiness programs such as 
the Civil Reserve Air Fleet and the Voluntary Intermodal Sealift 
Agreement. For contracts that will include a significant requirement 
for transportation of items outside the continental United States, the 
rule contains a requirement for use of an evaluation factor or 
subfactor that favors suppliers, third-party logistics providers, and 
integrated logistics managers that commit to using carriers that 
participate in one of the readiness programs. The rule implements a 
policy memorandum issued by the Under Secretary of Defense 
(Acquisition, Technology and Logistics) on January 15, 1998, Subject: 
Transportation Acquisition Policy. The January 15, 1998, memorandum is 
available via the Internet at http://www.acq.osd.mil/log/tp/
trans__programs/defense__trans__library/tp__library.html. The rule also 
updates references and organizational names and addresses, and make 
other editorial changes.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    The proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because 
information available to DoD indicates that most small entities that 
are eligible to transport DoD cargo or passengers already participate 
in DoD readiness programs. Therefore, DoD has not performed an initial 
regulatory flexibility analysis. DoD invites comments from small 
businesses and other interested parties. DoD also will

[[Page 2105]]

consider comments from small entities concerning the affected DFARS 
subparts in accordance with 5 U.S.C. 610. Such comments should be 
submitted separately and should cite DFARS Case 99-D009.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 212, 242, 247, and 252

    Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

    Therefore, DoD proposes to amend 48 CFR Parts 212, 242, 247, and 
252 as follows:
    1. The authority citation for 48 CFR Parts 212, 242, 247, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    2. Subpart 212.6 is added to read as follows:

Subpart 212.6--Streamlined Procedures for Evaluation and Solicitation 
for Commercial Items

Sec.
212.602  Streamlined evaluation of offers.

Subpart 212.6 [Added]


212.602  Streamlined evaluation of offers.

    (b)(i) For the acquisition of transportation and transportation-
related services, also consider evaluating offers in accordance with 
the criteria at 247.206(1).
    (ii) For the acquisition of transportation in supply contracts that 
will include a significant requirement for transportation of items 
outside the continental United States, also evaluate offers in 
accordance with the criterion at 247.301-71.
    (iii) For the direct purchase of ocean transportation services, 
also evaluate offers in accordance with the criterion at 247.572-
2(c)(2).

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES


242.1401  [Removed]

    3. Section 242.1401 is removed.
    4. Section 242.1402 is amended in paragraph (a)(2)(A)(1) by 
revising the last sentence; and in paragraph (a)(2)(C) by removing the 
word ``foreign'' the first time it appears and adding in its place the 
word ``freight''. The revised text reads as follows:


242.1402  Volume movements within the continental United States.

    (a)(2) * * *
    (A) * * *
    (1) * * * If a volume movement appears likely, the transportation 
office reports a planned volume movement in accordance with DoD 
4500.9R, Defense Transportation Regulation, Part II, Chapter 201.
* * * * *


242.1403  [Amended]

    5. Section 242.1403 is amended in paragraph (a)(ii) by removing the 
last sentence.
    6. Section 242.1405 is revised to read as follows:


242.1405  Discrepancies incident to shipment of supplies.

    (a) See also DoD 4500.9R, Defense Transportation Regulation, Part 
II, Chapter 210, for discrepancy procedures.


242.1470  [Amended]

    7. Section 242.1470 is amended by removing paragraph (a) and 
redesignating paragraphs (b) and (c) as paragraphs (a) and (b), 
respectively.

PART 247--TRANSPORTATION

    8. Section 247.001 is added preceding subpart 247.1 to read as 
follows:


247.001  Definitions.

    ``Civil Reserve Air Fleet (CRAF)'' means a readiness program that 
provides for civil air carriers to contractually pledge their airlift 
resources to support DoD mobility requirements in times of emergency or 
contingency in return for a portion of DoD's peacetime airlift 
business.
    ``Voluntary Intermodal Sealift Agreement (VISA)'' means a readiness 
program that provides for commercial ocean carriers to contractually 
pledge their sealift resources to support DoD mobility requirements in 
times of emergency or contingency in return for a portion of DoD's 
peacetime sealift business or, when consistent with applicable policy, 
by priority consideration for such business.


247.103  [Removed]

    9. Section 247.103 is removed.


247.104-3  [Removed]

    10. Section 247.103-3 is removed.
    11. Section 247.104-5 is revised to read as follows:


247.104-5  Citation of Government rate tenders.

    (a) See DoD 4500.9-R, Defense Transportation Regulation, Part II, 
Chapter 206, for instructions on converting commercial bills of lading 
to Government bills of lading within CONUS.
    12. Section 247.105 is amended by revising paragraphs (a)(i)(A), 
(a)(ii), and (a)(iii)(D) to read as follows:


247.105  Transportation assistance.

    (a)(i) * * *
    (A) Rates and prices (for evaluation of bids or routing purposes);
* * * * *
    (ii) Within CONUS, the Military Traffic Management Command (MTMC), 
is responsible for the performance of traffic management functions. 
These functions include the direction, control, and supervision of all 
functions incident to the acquisition and use of commercial freight and 
passenger transportation services.
    (iii) * * *
    (D) Of supplies between points outside the CONUS, including Alaska 
and Hawaii, request assistance, rates, or other costs from the military 
service sponsoring the cargo. Direct the requests to:

Army:
    Deputy Chief of Staff for Logistics, ATTN: DALO-TSP, Washington, DC 
20310-0500

Navy:
    Naval Supply Systems Command Code 4D, 5450 Carlisle Pike, P.O. Box 
2050, Mechanicsburg, PA 17055-0791

Air Force:
    Applicable overseas Air Force Command, HQ PACAF/LGT, 25 East 
Street, Suite I-305, Hickam AFB, HI 96853-5427
    HQ USAFE/LGT, Unit 3050, Box 105, APO AE 09094-0105
    HQ AFSPACECOM/LGT, 150 Vandenberg Street, Suite 1105, Peterson AFB, 
CO 80914-4540

Marine Corps:
    Transportation Division, CMC Code LFT4, 2 Navy Annex, Washington, 
DC 20380-1775
* * * * *
    13. Sections 247.200 and 247.206 are added to read as follows:


247.200  Scope of subpart.

    This subpart does not apply to the operation of vessels owned by, 
or bareboat chartered by, the Government.

[[Page 2106]]

247.206  Preparation of solicitations and contracts.

    (1) Consistent with FAR 15.304 and 215.304, consider using the 
following as evaluation factors or subfactors:
    (i) Record of claims involving loss or damage;
    (ii) Provider availability; and
    (iii) Commitment of transportation assets to readiness support 
(e.g., CRAF and VISA.)
    (2) To the maximum extent practicable, structure contracts and 
agreements to allow for their use by DoD contractors.


247.270-1  [Amended]

    14. Section 247.270-1 is amended in the first sentence by removing 
the word ``peculiar'' and adding in its place the word ``unique''.


247.270-2  [Amended]

    15. Section 247.270-2 is amended in the definition of ``Commodity 
rate'', in paragraph (2), by removing the word ``which'' and adding in 
its place the word ``that''.


247.270-3  [Removed and Reserved]

    16. Section 247.270-3 is removed and reserved.
    17. Section 247.270-4 is amended by revising paragraph (b) to read 
as follows:


247.270-4  Technical provisions.

* * * * *
    (b) When including rail car, truck, or intermodal equipment loading 
and unloading, or other dock and terminal work under a stevedoring 
contract, include these requirements as separate items of work.
    18. Section 247.270-5 is revised to read as follows:


247.270-5  Evaluation of bids and proposals.

    As a minimum, require that offers include--
    (a) Tonnage of commodity rates that apply to the bulk of the cargo 
worked under normal conditions;
    (b) Labor-hour rates that apply to services not covered by 
commodity rates, or to work performed under hardship conditions; and
    (c) Rates for equipment rental.


247.270-6  [Amended]

    19. Section 247.270-6 is amended in the introductory text in the 
first sentence by removing the word ``contractor'' and adding in its 
place the word ``offeror'', and by removing the word ``elsewhere''.
    20. Section 247.270-7 is revised to read as follows:


247.270-7  Contract clauses.

    Use the following clauses in solicitations and contracts for 
stevedoring services as indicated:
    (a) 252.247-7000, Hardship Conditions, in all solicitations and 
contracts.
    (b) 252.247-7001, Price Adjustment, when using sealed bidding.
    (c) 252.247-7002, Revision of Prices, when using negotiation.
    (d) 252.247-7004, Indefinite Quantities--Fixed Charges, when the 
contract is an indefinite-quantity type and will provide for the 
payment of fixed charges.
    (e) 252.247-7005, Indefinite Quantities--No Fixed Charges, when the 
contract is an indefinite-quantity type and will not provide for the 
payment of fixed charges.
    (f) 252.247-7006, Removal of Contractor's Employees, in all 
solicitations and contracts.
    (g) 252.247-7007, Liability and Insurance, in all solicitations and 
contracts.


247.271-1  [Amended]

    21. Section 247.271-1 is amended in the first sentence by removing 
the word ``peculiar'' and adding in its place the word ``unique.''
    22. Section 247.271-2 is amended by revising paragraph (a)(1) 
introductory text, paragraph (c) introductory text, and paragraphs 
(c)(1) and (c)(2)(ii) to read as follows:


247.271-2  Policy.

    (a) * * *
    (1) Use requirements contracts to acquire services for the--
* * * * *
    (c) Maximum requirements-minimum capability. The contracting 
officer must--
    (1) Establish realistic quantities on the Estimated Quantities 
Report in DoD 4500.9-R, Defense Transportation Regulation, Part IV;
    (2) * * *
    (ii) Will encourage maximum participation of small business 
concerns as offerors.
    23. Section 247.271-3 is amended as follows:
    a. In paragraph (a)(1) in the first and second sentences by 
removing the word ``shall'' and adding in its place the word ``must'';
    b. By revising paragraph (a)(2); and
    c. In paragraphs (b)(2)(iii), (c)(1), (c)(2), and (c)(3) by 
removing the word ``shall'' and adding in its place the word ``must.'' 
The revised text reads as follows:


247.271-3  Procedures.

    (a) * * *
    (a) The Commander, Military Traffic Management Command (MTMC), must 
designate the contracting activity when local commanders are unable to 
reach agreement.
* * * * *
    24. Section 247.271-4 is amended as follows:
    a. By revising paragraph (c) introductory text;
    b. In paragraph (c)(4) and in the second sentence of paragraph 
(c)(5) by removing the word ``shall'' and adding in its place the word 
``must'';
    c. By revising paragraph (c)(6);
    d. In paragraph (e) in the last sentence by removing the word 
``shall'' and adding in its place the word ``must'';
    e. By revising the last sentence of paragraph (f); and
    f. By revising paragraphs (j) and (p). The revised text reads as 
follows:


247.271-4  Solicitation provisions, schedule formats, and contract 
clauses.

* * * * *
    (c) In solicitations and resulting contracts, the schedules 
contained in DoD 4500.9R, Defense Transportation Regulation, Part IV, 
as provided by the installation personal property shipping office.
* * * * *
    (6) Process any modification of schedule format, other than those 
authorized in paragraphs (c)(1) through (5) of this subsection, as a 
request for deviation to HQ MTMC.
* * * * *
    (f) * * * When provisions are made for placing oral orders in 
accordance with FAR 16.505(a)(4), document the oral orders in 
accordance with department or agency instructions.
* * * * *
    (j) When using the clause at FAR 52.216-21, Requirements, see 
216.506(d), which prescribes an alteration to the clause.
* * * * *
    (p) The clauses at FAR 52.257-8, Estimated Weight or Quantities Not 
Guaranteed, and 52.247-13, Accessorial Services--Moving Contracts.
    25. Sections 247.301, 247.301-70, and 247.301-71 are added to read 
as follows:


247.301  General.


247.301-70  Definition.

    ``Integrated logistics managers'' or ``third-party logistics 
providers'' means providers of multiple logistics services. Some 
examples of logistics services are the management of transportation, 
demand forecasting, information management, inventory maintenance, 
warehousing, and distribution.

[[Page 2107]]

247.301-71  Evaluation factor or subfactor.

    For contracts that will include a significant requirement for 
transportation of items outside CONUS, include an evaluation factor or 
subfactor that favors suppliers, third-party logistics providers, and 
integrated logistics managers that commit to using carriers that 
participate in one of the readiness programs (e.g., CRAF and VISA).
    26. Section 247.305-10 is revised to read as follows:


247.305-10  Packing, marking, and consignment instructions.

    (b) Consignment instructions must include, as a minimum--
    (i) The clear text and coded MILSTRIP data as follows:
    (A) Consignee code and clear text identification of consignee and 
destination as published in--
    (1) DoD 4000.25-6-M, Department of Defense Activity Address 
Directory (DoDAAD);
    (2) DoD 4000.25-8-M, Military Assistance Program Address Directory 
(MAPAD) System; or
    (3) Transportation Control and Movement Document. Reporting 
procedures and instructions must comply with DoD 4500.32-R, Military 
Standard Transportation and Movement Procedures (MILSTAMP).
    (B) Project code, when applicable.
    (C) Transportation priority.
    (D) Required delivery date.
    (ii) Non-MILSTRIP shipments must include data similar to that 
described in paragraph (b)(i) (A) through (D) of this subsection.
    (iii) In amended shipping instructions include, in addition to the 
data requirements of paragraphs (b)(i) (A) through (D) of this 
subsection, the following, when appropriate:
    (A) Name of the activity originally designated, from which the 
stated quantities are to be deducted; and
    (B) Any other features of the amended instructions not contained in 
the basic contract.
    (iv) When assigning contract administration responsibility in 
accordance with FAR 42.202, include the following instructions:
    (A) Modification serial number; and, if a new line item is created 
by the issuance of shipping instructions;
    (B) New line item number; and
    (C) Existing line item number, if affected.
    (v) For petroleum, oil, and lubricant products, instructions for 
diversions need not include the modification serial number and new line 
item number, when the instructions are--
    (A) For diversions overseas to new destinations;
    (B) Issued by an office other than that issuing the contract or 
delivery order; and
    (C) Issued by telephone or electronic media.
    27. Section 247.370 is amended by revising the introductory text 
and paragraph (b)(3) to read as follows:


247.370  Use of Standard Form 30 for consignment instructions.

    When complete consignment instructions are not known initially, use 
the Standard Form (SF) 30, Amendment of Solicitation/Modification of 
Contract, to issue or amend consignment instructions, and when 
necessary, to confirm consignment instructions issued by telephone or 
electronic media.
* * * * *
    (b) * * *
    (3) For other contracts--
    (i) Telephone--within five working days; and
    (ii) Electronic media--consolidate on a monthly basis.
    28. Sections 247.570 and 247.571 are revised to read as follows:


247.570  Scope.

    This subpart--
    (a) Implements the Cargo Preference Act of 1904 (the 1904 Act), 10 
U.S.C. 2631, which applies to the ocean transportation of cargo owned 
by, or destined for use by, DoD. The 1904 Act does not apply to ocean 
transportation of--
    (1) Products obtained for contributions to foreign assistance 
programs; or
    (2) Products owned by agencies other than DoD.
    (b) Does not specifically implement the Cargo Preference Act of 
1954 (the 1954 Act), 46 U.S.C. 1241(b) (see FAR subpart 47.5). The 1954 
Act is applicable to DoD, but DFARS coverage is not required because 
compliance with the 1904 Act historically has resulted in DoD exceeding 
the 1954 Act's requirements.
    (c) Is an approved class deviation from FAR subpart 47.5 in its 
entirety for all DoD procurements subject to the 1904 Act.


247.571  Policy.

    (a) DoD contractors must transport supplies, as defined in the 
clause at 252.247-7023, Transportation of Supplies by Sea, exclusively 
on U.S.-flag vessels unless--
    (1) Those vessels are not available, and the procedures at 247.572-
1(d)(1) or 247.572-2(d)(1) are followed;
    (2) The proposed charges to the Government are higher than charges 
to private persons for the transportation of like goods, and the 
procedures at 247.572-1(d)(2) or 247.572-2(d)(2) are followed; or
    (3) The Secretary of the Navy or the Secretary of the Army 
determines that the freight charged is excessive or unreasonable in 
accordance with 247.572-1(d)(3) or 247.572-2(d)(3).
    (b) Contracts must provide for the use of Government-owned vessels 
when security classifications prohibit the use of other than 
Government-owned vessels.
    (c)(1) Any vessel used under a time charter contract for the 
transportation of supplies must have any reflagging or repair work, as 
defined in the clause at 252.247-7025, Reflagging or Repair Work, 
performed in the United States or its territories, if the reflagging or 
repair work is performed--
    (i) On a vessel for which the contractor submitted an offer in 
response to the solicitation for the contract; and
    (ii) Prior to acceptance of the vessel by the Government.
    (2) The Secretary of Defense may waive this requirement if the 
Secretary determines that such waiver is critical to the national 
security of the United States.
    29. Sections 247.572-1 and 247.572-2 are revised to read as 
follows:


247.572-1  Ocean transportation incidental to a contract for supplies, 
services, or construction.

    (a) This subsection applies when ocean transportation is not the 
principal purpose of the contract, and the cargo to be transported is 
owned by DoD or clearly identifiable for eventual use by DoD.
    (b) The contracting officer must obtain assistance from the 
cognizant transportation activity (see 247.105) in developing--
    (1) The Government estimate for transportation costs, irrespective 
of whether freight will be paid directly by the Government; and
    (2) Shipping instructions and delivery terms for inclusion in 
solicitation and contracts that may involve transportation of supplies 
by sea.
    (c) The contracting officer must ask each offeror whether it will 
transport supplies by sea if awarded the contract (see 247.573(a)). 
Even if the successful offeror responds that it does not anticipate sea 
transport of supplies, it may discover during contract performance that 
ocean transportation is required. In that event, the 1904 Act will 
apply to the contract, and the contractor must--
    (1) Notify the Government that it now intends to use ocean 
transportation;

[[Page 2108]]

    (2) Use U.S.-flag vessels unless certain conditions exist (see 
247.571(a)); and
    (3) Comply with the other requirements of the clause at 252.247-
7023, Transportation of Supplies by Sea.
    (d) If the contractor notifies the contracting officer that the 
contractor or a subcontractor considers that--
    (1) No U.S.-flag vessels are available, the contracting officer 
must request confirmation of the nonavailability from--
    (i) The Commander, Military Sealift Command (MSC), through the 
Contracts and Business Management Directorate, MSC; or
    (ii) The Commander, Military Traffic Management Command (MTMC), 
through the Principal Assistant Responsible for Contracting, MTMC.
    (2) The freight charges to the Government, the contractor, or any 
subcontractor are higher than charges for transportation of like goods 
to private persons, the contracting officer may approve a request for 
an exception to the requirement to ship on U.S.-flag vessels for a 
particular shipment.
    (i) Prior to granting an exception, the contracting officer must 
request advice, oral or written, from the Commander, MSC, or the 
Commander, MTMC.
    (ii) In advising the contracting officer whether to grant the 
exception, the Commander, MSC, or the Commander, MTMC, must consider, 
as appropriate, evidence from--
    (A) Published tariffs;
    (B) Industry publications;
    (C) The Maritime Administration; and
    (D) Any other available sources.
    (3) The proposed freight charged by U.S.-flag carriers is excessive 
or otherwise unreasonable--
    (i) The contracting officer must prepare a report in determination 
and finding format, and must--
    (A) Take into consideration that the 1904 Act is, in part, a 
subsidy of the U.S.-flag commercial shipping industry that recognizes 
that lower prices may be available from foreign shippers. Therefore, a 
lower price for use of a foreign-flag vessel is not a sufficient basis, 
on its own, to determine that the freight rate proposed by the U.S.-
flag carrier is excessive or otherwise unreasonable. However, such a 
price differential may indicate a need for further review;
    (B) Consider, accordingly, not only excessive profits to the 
carrier (to include vessel owner or operator), if ascertainable, but 
also excessive costs to the Government (i.e., costs beyond the economic 
penalty normally incurred by excluding foreign competition) resulting 
from the use of U.S.-flag vessels in extraordinarily inefficient 
circumstances; and
    (C) Include an analysis of whether the cost is excessive, taking 
into account factors such as--
    (1) The differential between freight charges by the U.S.-flag 
carrier and an estimate of what foreign-flag carriers would charge 
based upon a price analysis;
    (2) A comparison of U.S.-flag rates charged on comparable routes;
    (3) Efficiency of operation regardless of rate differential (e.g., 
suitability of the vessel for the required transportation in terms of 
cargo requirements or vessel capacity, and the commercial 
reasonableness of vessel positioning required); and
    (4) Any other relevant economic and financial considerations.
    (ii) The contracting officer must forward the report to--
    (A) The Commander, MSC, through the Contracts and Business 
Management Directorate, MSC; or
    (B) The Commander, MTMC, through the Principal Assistant 
Responsible for Contracting, MTMC.
    (iii) If in agreement with the contracting officer, the Commander, 
MSC, or the Commander, MTMC, will forward the report to the Secretary 
of the Navy or the Secretary of the Army, respectively, for a 
determination as to whether the freight charges are excessive or 
otherwise unreasonable.


247.572-2  Direct purchase of ocean transportation services.

    (a) This subsection applies when ocean transportation is the 
principal purpose of the contract, including--
    (1) Time charters;
    (2) Voyage charters;
    (3) Contracts for charter vessel services;
    (4) Dedicated contractor contracts for charter vessel services;
    (5) Ocean bills of lading; and
    (6) Subcontracts under Government contracts or agreements for ocean 
transportation services.
    (b) Coordinate these acquisitions, as appropriate, with the U.S. 
Transportation Command, the DoD single manager for commercial 
transportation and related services, other than Service-unique or 
theater-assigned transportation assets, in accordance with DoDD 5158.4, 
United States Transportation Command.
    (c) All solicitations within the scope of this subsection must 
provide--
    (1) A preference for U.S.-flag vessels in accordance with the 1904 
Act; and
    (2) An evaluation factor or subfactor for offeror participation in 
VISA.
    (d) Do not award a contract of the type described in paragraph (a) 
of this subsection for a foreign-flag vessel unless--
    (1) The Commander, MSC, and the Commander, MTMC, determines that no 
U.S.-flag vessels are available.
    (i) The Commander, MSC and the Commander, MTMC, are authorized to 
make any determinations as to the availability of U.S.-flag vessels to 
ensure the proper use of Government and private U.S. vessels.
    (ii) The contracting officer must request such determinations--
    (A) For voyage and time charters through the Contracts and Business 
Management Directorate, MSC; and
    (B) For ocean and intermodal transportation of DoD and DoD-
sponsored cargoes, as applicable under contracts awarded by MTMC, 
including contracts for shipment of military household goods, through 
the Chiefs of the MTMC Ocean Cargo Clearance Authority.
    (iii) In the absence of regularly scheduled U.S.-flag service to 
fulfill stated DoD requirements under MTMC solicitations or rate 
requests, the Commander, MTMC, may grant, on a case-by-case basis, an 
on-going nonavailability determination for foreign-flag service 
approval with pre-determined review date(s);
    (2) The contracting officer determines that the U.S.-flag carrier 
has proposed to the Government freight charges that are higher than 
charges to private persons for transportation of like goods, and 
obtains the approval of the Commander, MSC, or the Commander, MTMC; or
    (3) The Secretary of the Navy or the Secretary of the Army 
determines that the proposed freight charges for U.S.-flag vessels are 
excessive or otherwise unreasonable.
    (i) After considering the factors in 247.572-(d)(3)(i) (A) and (B), 
if the contracting officer concludes that the freight charges proposed 
by U.S.-flag carriers may be excessive or otherwise unreasonable, the 
contracting officer must prepare a report in determination and finding 
format that includes, as appropriate--
    (A) An analysis of the carrier's costs in accordance with FAR 
subpart 15.4, or profit in accordance with 215.404-4. The costs or 
profit should not be so high as to make it unreasonable to apply the 
preference for U.S.-flag vessels;
    (B) A description of efforts taken pursuant to FAR 15.405, to 
negotiate a reasonable price. For the purpose of FAR 15.405(d), this 
report is the referral to a level above the contracting officer; and
    (C) An analysis of whether the costs are excessive (i.e., costs 
beyond the economic penalty normally incurred by excluding foreign 
competition), taking

[[Page 2109]]

into consideration factors such as those listed at 247.572-
1(d)(3)(i)(C).
    (ii) The contracting officer must forward the report to--
    (A) The Commander, MSC, through the Contracts and Business 
Management Directorate, MSC; or
    (B) The Commander, MTMC, through the Principal Assistant 
Responsible for Contracting, MTMC.
    (iii) If in agreement with the contracting officer, the Commander, 
MSC, or the Commander, MTMC, will forward the report to the Secretary 
of the Navy or the Secretary of the Army, respectively, for a 
determination as to whether the freight charges are excessive or 
otherwise unreasonable.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    30. Section 252.247-7000 is revised to read as follows:


252.247-7000  Hardship Conditions.

    As prescribed in 247.270-7(a), use the following clause:

Hardship Conditions (XXX 2000)

    (a) The Contractor shall promptly notify the Contracting Officer 
of unusual ship, dock, or cargo conditions associated with loading 
or unloading a particular cargo, that will work a hardship on the 
Contractor if loaded or unloaded at the basic commodity rates. The 
Contractor shall provide the notification in advance of work, if 
feasible, but not later than the time of sailing.
    (b) Unusual conditions include, but are not limited to, 
inaccessibility of place of stowage to the ship's cargo gear, side 
port operations, and small quantities of cargo in any one hatch.
    (c) The Contracting Officer shall investigate the conditions 
promptly after receiving the notice. If the Contracting Officer 
finds that the conditions are unusual and do materially affect the 
cost of loading or unloading, the Contracting Officer will authorize 
payment at the applicable man-hour rates set forth in the schedule 
of rates of this contract. The Contractor shall submit hardship 
claims to the Contracting Officer within ten working days of the 
vessel sailing time.

(End of clause)


252.247-7003  [Removed and Reserved]

    31. Section 252.247-7003 is removed and reserved.


252.247-7004  [Amended]

    32. Section 252.247-7004 is amended in the introductory text by 
revising the reference ``247.270-7(e)'' to read ``247.270-7(d)''.


252.247-7005  [Amended]

    33. Section 252.247-7005 is amended in the introductory text by 
revising the reference ``247.270-7(f)'' to read ``247.270-7(e)''.


252.247-7006  [Amended]

    34. Section 252.247-7006 is amended in the introductory text by 
revising the reference ``247.270-7(g)'' to read ``247.270-7(f)''.


252.247-7007  [Amended]

    35. Section 252.247-7007 is amended in the introductory text by 
revising the reference ``247.270-7(h)'' to read ``247.270-7(g)''.
    36. Section 252.247-7020 is revised to read as follows:


252.247-7020  Additional Services.

    As prescribed in 247.271-4(o), use the following clause:

Additional Services (XXX 2000)

    The Contractor shall provide additional services not included in 
the Schedule, but required for satisfactory completion of the 
services ordered under this contract, at a rate comparable to the 
rate for like services as contained in tenders on file with the 
Military Traffic Management Command in effect at time of order.

(End of clause)

[FR Doc. 00-768 Filed 1-12-00; 8:45 am]
BILLING CODE 5000-04-M