[Federal Register Volume 78, Number 153 (Thursday, August 8, 2013)]
[Proposed Rules]
[Pages 48397-48404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18972]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 216, 247, and 252

RIN 0750-AH90


Defense Federal Acquisition Regulation Supplement: Clauses With 
Alternates--Transportation (DFARS Case 2012-D057)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to create an overarching prescription for 
each set of transportation-related provisions/clauses with one or more 
alternates. The rule also proposes to add a separate prescription for 
the basic clause as well as each alternate. In addition, the proposed 
rule would include the full text of each provision and/or clause 
alternate.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before October 7, 2013, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2012-D057, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D057'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2012-D057.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2012-D057'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2012-D057 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Meredith Murphy, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense 
Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6098; 
facsimile 571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to amend the DFARS to create an overarching 
prescription for each set of transportation-related provisions/clauses 
with one or more alternates. The rule also proposes to add a separate 
prescription for the basic clause as well as each alternate. In 
addition, the proposed rule would include the full text of each 
provision/clause alternate. For clarity, the preface of the alternate 
will continue to explain what portions of that alternate are different 
from the basic provision/clause.
    Separate prescriptions for the basic and alternates of DFARS 
provisions and clauses will facilitate the use of automated contract 
writing systems. The proposed rule will not revise the prescriptions in 
any substantive way or change the applicability of the provisions/
clauses or their alternates.
    The inclusion of the full text of each provision/clause alternate 
aims to make the terms of a provision/clause alternate clearer to 
offerors and to DoD contracting officers. The current convention for 
alternates is to show only the changed paragraphs from the basic 
provision or clause. This proposed rule would include the full text of 
each provision/clause and each alternate, which will assist in making 
solicitation and contract terms and conditions easier to read and 
understand. By placing alternates in full text, all paragraph 
substitutions from the basic provision/clause will have already been 
made. Inapplicable paragraphs from the basic provision/clause that are 
superseded by the alternate will not be included in the solicitation or 
contract in order to prevent confusion.
    Although this rule proposes to include each alternate in full, it 
retains the language that precedes the provision/clause or alternate, 
which includes the location of the alternate's prescription and a 
statement that identifies which paragraphs were changed from the basic 
provision/clause. Further, alternates are proposed to have individual 
titles that tie them to the basic clause, e.g., ``Requirements--
Alternate I'' in lieu of ``Alternate I.''
    This rule proposes to revise the naming convention for provisions/
clauses with alternates to indicate that

[[Page 48398]]

there is at least one alternate by revising the title of the basic 
clause to read ``Title--Basic.'' Thus, if adopted as final, the naming 
convention will differentiate at the provision/clause title whether 
there are any alternates associated with that provision/clause.

II. Discussion

    This proposed rule addresses only the solicitation provisions and 
clauses in DFARS part 247 that have, or are, alternates. The remaining 
prescriptions in DFARS part 247 are not proposed to be changed in any 
way by this proposed rule.
    There are three DFARS transportation-related provisions/clauses 
that would be affected by this rule, as follows:
     252.247-7008, Evaluation of Bids, with one alternate.
     252.247-7023, Transportation of Supplies by Sea, with 
three alternates.
     252.247-7015, which is an alternate to FAR 52.216-21.
    The clause currently at DFARS 252.247-7015, Requirements, presents 
a unique situation. Although it is located with transportation clauses, 
it is an alternate to be used with the basic FAR clause at 52.216-21, 
also entitled ``Requirements,'' and with Alternate III to the FAR 
clause. This rule proposes to create a stand-alone DFARS clause and one 
alternate and to relocate them to DFARS 252.216 because they apply 
principally to requirement contracts rather than transportation. The 
rule proposes to create the corresponding prescriptions at 216.506(d).
    The other two clauses addressed in this proposed rule are proposed 
to remain in DFARS 252.247. DFARS 252.247-7008, Evaluation of Bids, and 
its Alternate I are prescribed at DFARS 247.271-3(a). The introductory 
text in DFARS 247.271-3 provides the overarching prescription for 15 
provisions/clauses. This rule proposes to revise paragraph (a) of DFARS 
247.271-3 to provide the prescriptions for DFARS 252.247-7008, 
Evaluation of Bids. ``Alternate I'' to DFARS 252.247-7008 would be 
prescribed to apply when adding ``additional services'' items to the 
schedule. The text of the current DFARS 252.247-7008 Alternate I would 
no longer consist solely of paragraph (e); it would be renamed 252.247-
7008, Evaluation of Bids--Alternate I, and its text would include the 
entire text of DFARS 252.247-7008 with the addition of paragraph (e).
    The clause at DFARS 252.247-7023, Transportation of Supplies by 
Sea, currently has three alternates and is prescribed at DFARS 
247.574(b). The rule proposes to add a prescription for the basic 
clause at DFARS 247.574(b)(1). The rule also proposes to eliminate 
Alternate III, because it proposes to revise the basic clause and 
Alternates I and II to add the phrase ``If this contract exceeds the 
simplified acquisition threshold'' as a condition precedent to the 
applicability of paragraphs (f) and (g). This change would eliminate 
the need for Alternate III, which applies only when the anticipated 
value of the procurement is at or below the simplified acquisition 
threshold.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD does not expect this rule 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 it merely 
revises the format, not the substance, of prescriptions for provisions 
and clauses with alternates, as well as includes the full text of each 
provision or clause in each alternate.
    However, an initial regulatory flexibility analysis has been 
performed and is summarized as follows:
    The purpose of this case is to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to create an overarching 
prescription for each set of provisions/clauses with one or more 
alternates. The overarching prescription is intended to include the 
common requirements for the use of that provision/clause set.
    The use of automated contract writing systems will be facilitated 
by revising the prescription format for DFARS provisions/clauses that 
have one or more alternates. This rule proposes to revise the 
prescription format so that there is an overarching prescription that 
covers the elements that the basic provision/clause and all its 
alternates have in common. Then, there will be a separate prescription 
for use of the basic prescription/clause and each alternate. In 
addition, each alternate provision/clause will be presented in total, 
not just the paragraph or section that is different from the basic 
provision/clause. This will make the terms of a provision or clause 
alternate clearer to offerors, as well as to DoD contracting officers, 
because all paragraph substitutions will have already been made. 
Inapplicable paragraphs from the basic provision/clause that are 
superseded by the alternate will not be included in the solicitation or 
contract to prevent confusion.
    Potential offerors, including small businesses, initially may be 
affected by this rule by seeing an unfamiliar format for provision/
clause alternates in solicitations and contracts issued by DoD 
contracting activities. An average of 12,618,521 new contracts was 
awarded in Fiscal Years 2011 and 2012, and an average of 1,557,852 of 
these actions (12.35%) was awarded to small businesses. It is unknown 
how many of these contracts were awarded that included an alternate to 
a DFARS provision or clause. Nothing substantive will change in 
solicitations or contracts for potential offerors, and only the 
appearance of how provision/clause alternates are presented in 
solicitations and contracts will be changed. This rule may result in 
potential offerors, including small businesses, expending more time to 
become familiar with and to understand the new format of provision/
clause alternates in full text contained in contracts issued by any DoD 
contracting activity. The rule also anticipates saving contractors time 
by making all paragraph substitutions from the basic clause, and by not 
requiring offerors to read inapplicable paragraphs contained in the 
basic provisions/clauses where alternates are also included in the 
solicitations and contracts. The overall burden caused by this rule is 
expected to be negligible and will not be any greater on small 
businesses than it is on large businesses.
    This rule does not add any new information collection requirements. 
The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were determined that will accomplish the 
objectives of the rule.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5

[[Page 48399]]

U.S.C. 610 (DFARS Case 2012-D057), in correspondence.

V. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 216, 247, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.
    Therefore, 48 CRF parts 212, 216, 247, and 252 are proposed to be 
amended as follows:

0
1. The authority citation for parts 212, 216, 247, and 252 continues to 
read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR Chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Section 212.301 is amended by revising paragraph (f)(lvii) to read 
as follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f) * * *
    (lvii) Use the clause at 252.247-7023, Transportation of Supplies 
by Sea, as prescribed in 247.574(b)(1), to comply with the Cargo 
Preference Act of 1904 (10 U.S.C. 2631(a)).
    (A) Use the clause Transportation of Supplies by Sea--Basic, as 
prescribed in 247.574(b)(1).
    (B) Use the clause Transportation of Supplies by Sea--Alternate I, 
as prescribed in 247.574(b)(2).
    (C) Use the clause Transportation of Supplies by Sea--Alternate II, 
as prescribed in 247.574(b)(3).
* * * * *

PART 216--TYPES OF CONTRACTS

0
3. Amend section 216.506 by revising paragraph (d) to read as follows:


216.506  Solicitation provisions and contract clauses.

* * * * *
    (d) Use the basic or the alternate of the clause at 252.216-70XX, 
Requirements, in lieu of the clause at FAR 52.216-21, Requirements, in 
solicitations and contracts when a requirement for the preparation of 
personal property for shipment or storage, or for the performance of 
intra-city or intra-area movement, is contemplated.
    (1) Use the clause Requirements--Basic if the acquisition does not 
involve a partial small business set-aside.
    (2) Use the clause Requirements--Alternate I if the acquisition 
involves a partial small business set-aside.
* * * * *

PART 247--TRANSPORTATION

0
4. Revise section 247.271-3 to read as follows:


247.271-3  Solicitation provisions, schedule formats, and contract 
clauses.

    When acquiring services for the preparation of personal property 
for movement or storage, or for performance of intra-city or intra-area 
movement, use the following provisions, clauses, and schedules. Revise 
solicitation provisions and schedules, as appropriate, if using 
negotiation rather than sealed bidding. Overseas commands, except those 
in Alaska and Hawaii, may modify these clauses to conform to local 
practices, laws, and regulations.
    (a) The basic or the alternate of the provision at 252.247-7008, 
Evaluation of Bids.
    (1) Use the provision Evaluation of Bids--Basic when there are no 
``additional services'' items being added to the schedule.
    (2) Use the provision Evaluation of Bids--Alternate I when adding 
``additional services'' items to the schedule.
    (b) The provision at 252.247-7009, Award.
    (c) In solicitations and resulting contracts, the schedules 
provided by the installation personal property shipping office. Follow 
the procedures at PGI 247.271-3(c) for use of schedules.
    (d) The clause at 252.247-7010, Scope of Contract.
    (e) The clause at 252.247-7011, Period of Contract. When the period 
of performance is less than a calendar year, modify the clause to 
indicate the beginning and ending dates. However, the contract period 
must not end later than December 31 of the year in which the contract 
is awarded.
    (f) In addition to designating each ordering activity, as required 
by the clause at FAR 52.216-18, Ordering, identify by name or position 
title the individuals authorized to place orders for each activity. 
When provisions are made for placing oral orders in accordance with FAR 
16.504(a)(4)(vii)), document the oral orders in accordance with 
department or agency instructions.
    (g) The clause at 252.247-7012, Ordering Limitation.
    (h) The clause at 252.247-7013, Contract Areas of Performance.
    (i) The clause at 252.247-7014, Demurrage. See additional 
information at PGI 247.271-3(c)(1) for demurrage and detention charges.
    (j) The clause at 252.247-7016, Contractor Liability for Loss and 
Damage.
    (k) The clause at 252.247-7017, Erroneous Shipments.
    (l) The clause at 252.247-7018, Subcontracting.
    (m) The clause at 252.247-7019, Drayage.
    (n) The clause at 252.247-7020, Additional Services.
    (o) The clauses at FAR 52.247-8, Estimated Weight or Quantities Not 
Guaranteed, and FAR 52.247-13, Accessorial Services--Moving Contracts.
    (p) See the prescription at 216.506(d) requiring the use of 
252.216-70XX, Requirements.
0
5. Amend section 247.574 by revising paragraph (b) to read as follows:


247.574  Solicitation provisions and contract clauses.

* * * * *
    (b) Use the basic or one of the alternates at 252.247-7023, 
Transportation of Supplies by Sea, in all solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, except those for direct purchase 
of ocean transportation services.
    (1) Use the clause Transportation of Supplies by Sea--Basic, unless 
any of the supplies to be transported are commercial items that are--
    (i) Shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations when the contract is not a construction 
contract; or
    (ii) Commissary or exchange cargoes transported outside of the 
Defense Transportation System when the contract is not a construction 
contract.
    (2) Use the clause Transportation of Supplies by Sea--Alternate I, 
if any of the supplies to be transported are commercial items that are 
shipped in direct support of U.S. military contingency operations, 
exercises, or forces deployed in humanitarian or peacekeeping 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations, when the contract is not a construction 
contract.
    (3) Use the clause Transportation of Supplies by Sea--Alternate II, 
if any of the supplies to be transported are commercial items that are 
commissary

[[Page 48400]]

or exchange cargoes transported outside of the Defense Transportation 
System (10 U.S.C. 2643), when the contract is not a construction 
contract.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Add section 252.247-70XX to read as follows:


252.216-70XX  Requirements.

    As prescribed in 216.506(d), use the following clause or its 
alternate.
    (a) Requirements--Basic. For the specific prescription for use of 
the basic clause, see 216.506(d)(1).

REQUIREMENTS--BASIC (DATE)

    (a) This is a requirements contract for the supplies or services 
specified, and effective for the period stated, in the Schedule. The 
quantities of supplies or services specified in the Schedule are 
estimates only and are not purchased by this contract. Except as 
this contract may otherwise provide, if the Government's 
requirements do not result in orders in the quantities described as 
``estimated'' or ``maximum'' in the Schedule, that fact shall not 
constitute the basis for an equitable price adjustment.
    (b) Delivery or performance shall be made only as authorized by 
orders issued in accordance with the Ordering clause. Subject to any 
limitations in the Order Limitations clause or elsewhere in this 
contract, the Contractor shall furnish to the Government all 
supplies or services specified in the Schedule and called for by 
orders issued in accordance with the Ordering clause. The Government 
may issue orders requiring delivery to multiple destinations or 
performance at multiple locations.
    (c) Except as this contract otherwise provides, the Government 
shall order from the Contractor all the supplies or services 
specified in the Schedule that are required to be purchased by the 
Government activity or activities specified in the Schedule.
    (d) The Government is not required to purchase from the 
Contractor requirements in excess of any limit on total orders under 
this contract.
    (e) If the Government urgently requires delivery of any quantity 
of an item before the earliest date that delivery may be specified 
under this contract, and if the Contractor will not accept an order 
providing for the accelerated delivery, the Government may acquire 
the urgently required goods or services from another source.
    (f) Orders issued during the effective period of this contract 
and not completed within that time shall be completed by the 
Contractor within the time specified in the order. The rights and 
obligations of the Contractor and the Government for those orders 
shall be governed by the terms of this contract to the same extent 
as if completed during the effective period.


(End of clause)
    (b) Requirements--Alternate I. For the specific prescription for 
use of Alternate I, see 216.506(d)(2). Alternate I uses a different 
paragraph (c) than the basic clause.

REQUIREMENTS--ALTERNATE I (DATE)

    (a) This is a requirements contract for the supplies or services 
specified, and effective for the period stated, in the Schedule. The 
quantities of supplies or services specified in the Schedule are 
estimates only and are not purchased by this contract. Except as 
this contract may otherwise provide, if the Government's 
requirements do not result in orders in the quantities described as 
``estimated'' or ``maximum'' in the Schedule, that fact shall not 
constitute the basis for an equitable price adjustment.
    (b) Delivery or performance shall be made only as authorized by 
orders issued in accordance with the Ordering clause. Subject to any 
limitations in the Order Limitations clause or elsewhere in this 
contract, the Contractor shall furnish to the Government all 
supplies or services specified in the Schedule and called for by 
orders issued in accordance with the Ordering clause. The Government 
may issue orders requiring delivery to multiple destinations or 
performance at multiple locations.
    (c) The Government's requirements for each item or subitem of 
supplies or services described in the Schedule are being purchased 
through one non-set-aside contract and one set-aside contract. 
Therefore, the Government shall order from each Contractor 
approximately one-half of the total supplies or services specified 
in the Schedule that are required to be purchased by the specified 
Government activity or activities. The Government may choose between 
the set-aside Contractor and the non-set-aside Contractor in placing 
any particular order. However, the Government shall allocate 
successive orders, in accordance with its delivery requirements, to 
maintain as close a ratio as is reasonably practicable between the 
total quantities ordered from the two Contractors.
    (d) The Government is not required to purchase from the 
Contractor requirements in excess of any limit on total orders under 
this contract.
    (e) If the Government urgently requires delivery of any quantity 
of an item before the earliest date that delivery may be specified 
under this contract, and if the Contractor will not accept an order 
providing for the accelerated delivery, the Government may acquire 
the urgently required goods or services from another source.
    (f) Orders issued during the effective period of this contract 
and not completed within that time shall be completed by the 
Contractor within the time specified in the order. The rights and 
obligations of the Contractor and the Government for those orders 
shall be governed by the terms of this contract to the same extent 
as if completed during the effective period.


(End of clause)
0
7. Revise section 252.247-7008 to read as follows:


252.247-7008  Evaluation of bids.

    As prescribed in 247.271-3(a), use the basic provision or its 
alternate:
    (a) Evaluation of Bids--Basic. For the specific prescription for 
use of the basic provision, see 247.271-3(a)(1).

EVALUATION OF BIDS--BASIC (DATE)

    (a) The Government will evaluate bids on the basis of total 
aggregate price of all items within an area of performance under a 
given schedule.
    (1) An offeror must bid on all items within a specified area of 
performance for a given schedule. Failure to do so shall be cause 
for rejection of the bid for that area of performance of that 
Schedule. If there is to be no charge for an item, an entry such as 
``No Charge,'' or the letters ``N/C'' or ``0,'' must be made in the 
unit price column of the Schedule.
    (2) Any bid which stipulates minimum charges or graduated prices 
for any or all items shall be rejected for that area of performance 
within the Schedule.
    (b) In addition to other factors, the Contracting Officer will 
evaluate bids on the basis of advantages or disadvantages to the 
Government that might result from making more than one award 
(multiple awards).
    (1) In making this evaluation, the Contracting Officer will 
assume that the administrative cost to the Government for issuing 
and administering each contract awarded under this solicitation 
would be $500.
    (2) Individual awards will be for the items and combinations of 
items which result in the lowest aggregate cost to the Government, 
including the administrative costs in paragraph (b)(1).
    (c) When drayage is necessary for the accomplishment of any item 
in the bid schedule, the Offeror shall include in the unit price any 
costs for bridge or ferry tolls, road use charges or similar 
expenses.
    (d) Unless otherwise provided in this solicitation, the Offeror 
shall state prices in amounts per hundred pounds on gross or net 
weights, whichever is applicable. All charges shall be subject to, 
and payable on, the basis of 100 pounds minimum weight for 
unaccompanied baggage and a 500 pound minimum weight for household 
goods, net or gross weight, whichever is applicable.


(End of provision)
    (b) Evaluation of Bids--Alternate. For the specific prescription 
for use of Alternate I, see 247.271-3(a)(2). Alternate I adds a 
paragraph (e).

EVALUATION OF BIDS--ALTERNATE I (DATE)

    (a) The Government will evaluate bids on the basis of total 
aggregate price of all items within an area of performance under a 
given schedule.
    (1) An offeror must bid on all items within a specified area of 
performance for a given schedule. Failure to do so shall be cause 
for rejection of the bid for that area of performance of that 
Schedule. If there is to be no charge for an item, an entry such as 
``No Charge,'' or the letters ``N/C'' or ``0,''

[[Page 48401]]

must be made in the unit price column of the Schedule.
    (2) Any bid which stipulates minimum charges or graduated prices 
for any or all items shall be rejected for that area of performance 
within the Schedule.
    (b) In addition to other factors, the Contracting Officer will 
evaluate bids on the basis of advantages or disadvantages to the 
Government that might result from making more than one award 
(multiple awards).
    (1) In making this evaluation, the Contracting Officer will 
assume that the administrative cost to the Government for issuing 
and administering each contract awarded under this solicitation 
would be $500.
    (2) Individual awards will be for the items and combinations of 
items which result in the lowest aggregate cost to the Government, 
including the administrative costs in paragraph (b)(1).
    (c) When drayage is necessary for the accomplishment of any item 
in the bid schedule, the Offeror shall include in the unit price any 
costs for bridge or ferry tolls, road use charges or similar 
expenses.
    (d) Unless otherwise provided in this solicitation, the Offeror 
shall state prices in amounts per hundred pounds on gross or net 
weights, whichever is applicable. All charges shall be subject to, 
and payable on, the basis of 100 pounds minimum weight for 
unaccompanied baggage and a 500 pound minimum weight for household 
goods, net or gross weight, whichever is applicable.
    (e) Notwithstanding paragraph (a), when ``additional services'' 
are added to any schedule, such ``additional services'' items will 
not be considered in the evaluation of bids.


(End of provision)


252.247-7015   [Removed and Reserved]

0
8. Remove and reserve section 252.247-7015.
0
9. Revise section 252.247-7023 to read as follows:


252.247-7023  Transportation of supplies by sea.

    As prescribed in 247.574(b)(1), use the following clause or one of 
its alternates.
    (a) Transportation of Supplies by Sea--Basic. For the specific 
prescription for use of the basic clause, see 247.574(b)(1).

TRANSPORTATION OF SUPPLIES BY SEA--BASIC (DATE)

    (a) Definitions. As used in this clause--
    (1) ``Components'' means articles, materials, and supplies 
incorporated directly into end products at any level of manufacture, 
fabrication, or assembly by the Contractor or any subcontractor.
    (2) ``Department of Defense'' (DoD) means the Army, Navy, Air 
Force, Marine Corps, and defense agencies.
    (3) ``Foreign flag vessel'' means any vessel that is not a U.S.-
flag vessel.
    (4) ``Ocean transportation'' means any transportation aboard a 
ship, vessel, boat, barge, or ferry through international waters.
    (5) ``Subcontractor'' means a supplier, materialman, 
distributor, or vendor at any level below the prime contractor whose 
contractual obligation to perform results from, or is conditioned 
upon, award of the prime contract and who is performing any part of 
the work or other requirement of the prime contract.
    (6) ``Supplies'' means all property, except land and interests 
in land, that is clearly identifiable for eventual use by or owned 
by the DoD at the time of transportation by sea.
    (i) An item is clearly identifiable for eventual use by the DoD 
if, for example, the contract documentation contains a reference to 
a DoD contract number or a military destination.
    (ii) ``Supplies'' includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of 
every character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; 
stores of all kinds; end items; construction materials; and 
components of the foregoing.
    (7) ``U.S.-flag vessel'' means a vessel of the United States or 
belonging to the United States, including any vessel registered or 
having national status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when 
transporting any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this 
contract shall use U.S.-flag vessels if--
    (i) This contract is a construction contract; or
    (ii) The supplies being transported are--
    (A) Noncommercial items; or
    (B) Commercial items that--
    (1) The Contractor is reselling or distributing to the 
Government without adding value (generally, the Contractor does not 
add value to items that it subcontracts for f.o.b. destination 
shipment);
    (2) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations; or
    (3) Are commissary or exchange cargoes transported outside of 
the Defense Transportation System in accordance with 10 U.S.C. 2643.
    (c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or 
unreasonable; or
    (3) Freight charges are higher than charges to private persons 
for transportation of like goods.
    (d) The Contractor must submit any request for use of other than 
U.S.-flag vessels in writing to the Contracting Officer at least 45 
days prior to the sailing date necessary to meet its delivery 
schedules. The Contracting Officer will process requests submitted 
after such date(s) as expeditiously as possible, but the Contracting 
Officer's failure to grant approvals to meet the shipper's sailing 
date will not of itself constitute a compensable delay under this or 
any other clause of this contract. Requests shall contain at a 
minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;
    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone 
numbers) with at least two U.S.-flag carriers contacted. Copies of 
telephone notes, telegraphic and facsimile message or letters will 
be sufficient for this purpose.
    (e) The Contractor shall, within 30 days after each shipment 
covered by this clause, provide the Contracting Officer and the 
Maritime Administration, Office of Cargo Preference, U.S. Department 
of Transportation, 400 Seventh Street SW., Washington, DC 20590, one 
copy of the rated on board vessel operating carrier's ocean bill of 
lading, which shall contain the following information:
    (1) Prime contract number.
    (2) Name of vessel.
    (3) Vessel flag of registry.
    (4) Date of loading.
    (5) Port of loading.
    (6) Port of final discharge.
    (7) Description of commodity.
    (8) Gross weight in pounds and cubic feet if available.
    (9) Total ocean freight in U.S. dollars.
    (10) Name of steamship company.
    (f) If this contract exceeds the simplified acquisition 
threshold, the Contractor shall provide with its final invoice under 
this contract a representation that to the best of its knowledge and 
belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels 
were used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all non-U.S.-flag 
ocean transportation; or
    (4) Ocean transportation was used and some or all of the 
shipments were made on non-U.S.-flag vessels without the written 
consent of the Contracting Officer. The Contractor shall describe 
these shipments in the following format:

[[Page 48402]]



----------------------------------------------------------------------------------------------------------------
                                                                                Contract line
                                                            Item description        items           Quantity
----------------------------------------------------------------------------------------------------------------
 
    Total.................................................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition 
threshold and if the final invoice does not include the required 
representation, the Government will reject and return it to the 
Contractor as an improper invoice for the purposes of the Prompt 
Payment clause of this contract. In the event there has been 
unauthorized use of non-U.S.-flag vessels in the performance of this 
contract, the Contracting Officer is entitled to equitably adjust 
the contract, based on the unauthorized use.
    (h) In the award of subcontracts, for the types of supplies 
described in paragraph (b)(2) of this clause, including subcontracts 
for commercial items, the Contractor shall flow down the 
requirements of this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (h), in subcontracts that exceed the 
simplified acquisition threshold in part 2 of the Federal 
Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (h), in subcontracts 
that are at or below the simplified acquisition threshold in part 2 
of the Federal Acquisition Regulation.

    (End of clause)
    (b) Transportation of Supplies by Sea--Alternate I. For the 
specific prescription for use of Alternate I, see 247.574(b)(2). 
Alternate I uses a different paragraph (b) for paragraph (b) of [than] 
the basic clause.

TRANSPORTATION OF SUPPLIES BY SEA--ALTERNATE I (DATE)

    (a) Definitions. As used in this clause--
    (1) ``Components'' means articles, materials, and supplies 
incorporated directly into end products at any level of manufacture, 
fabrication, or assembly by the Contractor or any subcontractor.
    (2) ``Department of Defense'' (DoD) means the Army, Navy, Air 
Force, Marine Corps, and defense agencies.
    (3) ``Foreign flag vessel'' means any vessel that is not a U.S.-
flag vessel.
    (4) ``Ocean transportation'' means any transportation aboard a 
ship, vessel, boat, barge, or ferry through international waters.
    (5) ``Subcontractor'' means a supplier, materialman, 
distributor, or vendor at any level below the prime contractor whose 
contractual obligation to perform results from, or is conditioned 
upon, award of the prime contract and who is performing any part of 
the work or other requirement of the prime contract.
    (6) ``Supplies'' means all property, except land and interests 
in land, that is clearly identifiable for eventual use by or owned 
by the DoD at the time of transportation by sea.
    (i) An item is clearly identifiable for eventual use by the DoD 
if, for example, the contract documentation contains a reference to 
a DoD contract number or a military destination.
    (ii) ``Supplies'' includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of 
every character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; 
stores of all kinds; end items; construction materials; and 
components of the foregoing.
    (7) ``U.S.-flag vessel'' means a vessel of the United States or 
belonging to the United States, including any vessel registered or 
having national status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when 
transporting any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this 
contract shall use U.S.-flag vessels if the supplies being 
transported are--
    (i) Noncommercial items; or
    (ii) Commercial items that--
    (A) The Contractor is reselling or distributing to the 
Government without adding value (generally, the Contractor does not 
add value to items that it subcontracts for f.o.b. destination 
shipment);
    (B) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations (Note: This contract requires shipment of 
commercial items in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations); or
    (C) Are commissary or exchange cargoes transported outside of 
the Defense Transportation System in accordance with 10 U.S.C. 2643.
    [(c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or 
unreasonable; or
    (3) Freight charges are higher than charges to private persons 
for transportation of like goods.
    (d) The Contractor must submit any request for use of other than 
U.S.-flag vessels in writing to the Contracting Officer at least 45 
days prior to the sailing date necessary to meet its delivery 
schedules. The Contracting Officer will process requests submitted 
after such date(s) as expeditiously as possible, but the Contracting 
Officer's failure to grant approvals to meet the shipper's sailing 
date will not of itself constitute a compensable delay under this or 
any other clause of this contract. Requests shall contain at a 
minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;
    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone 
numbers) with at least two U.S.-flag carriers contacted. Copies of 
telephone notes, telegraphic and facsimile message or letters will 
be sufficient for this purpose.
    (e) The Contractor shall, within 30 days after each shipment 
covered by this clause, provide the Contracting Officer and the 
Maritime Administration, Office of Cargo Preference, U.S. Department 
of Transportation, 400 Seventh Street SW., Washington, DC 20590, one 
copy of the rated on board vessel operating carrier's ocean bill of 
lading, which shall contain the following information:
    (1) Prime contract number;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Description of commodity;
    (8) Gross weight in pounds and cubic feet if available;
    (9) Total ocean freight in U.S. dollars; and
    (10) Name of steamship company.
    (f) If this contract exceeds the simplified acquisition 
threshold, the Contractor shall provide with its final invoice under 
this contract a representation that to the best of its knowledge and 
belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels 
were used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all non-U.S.-flag 
ocean transportation; or
    (4) Ocean transportation was used and some or all of the 
shipments were made on non-U.S.-flag vessels without the written 
consent of the Contracting Officer. The Contractor shall describe 
these shipments in the following format:

[[Page 48403]]



----------------------------------------------------------------------------------------------------------------
                                                                                Contract line
                                                            Item description        items           Quantity
----------------------------------------------------------------------------------------------------------------
 
Total.....................................................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition 
threshold and the final invoice does not include the required 
representation, the Government will reject and return it to the 
Contractor as an improper invoice for the purposes of the Prompt 
Payment clause of this contract. In the event there has been 
unauthorized use of non-U.S.-flag vessels in the performance of this 
contract, the Contracting Officer is entitled to equitably adjust 
the contract, based on the unauthorized use.
    (h) In the award of subcontracts for the types of supplies 
described in paragraph (b)(2) of this clause, the Contractor shall 
flow down the requirements of this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (h), in subcontracts that exceed the 
simplified acquisition threshold in Part 2 of the Federal 
Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (h), in subcontracts 
that are at or below the simplified acquisition threshold in Part 2 
of the Federal Acquisition Regulation.


(End of clause)]
    (c) Transportation of Supplies by Sea--Alternate II. For the 
specific prescription for use of Alternate II, see 247.574(b)(3). 
Alternate II uses a different paragraph (b) than the basic clause.

TRANSPORTATION OF SUPPLIES BY SEA--ALTERNATE II (DATE)

    (a) Definitions. As used in this clause--
    (1) ``Components'' means articles, materials, and supplies 
incorporated directly into end products at any level of manufacture, 
fabrication, or assembly by the Contractor or any subcontractor.
    (2) ``Department of Defense'' (DoD) means the Army, Navy, Air 
Force, Marine Corps, and defense agencies.
    (3) ``Foreign flag vessel'' means any vessel that is not a U.S.-
flag vessel.
    (4) ``Ocean transportation'' means any transportation aboard a 
ship, vessel, boat, barge, or ferry through international waters.
    (5) ``Subcontractor'' means a supplier, materialman, 
distributor, or vendor at any level below the prime contractor whose 
contractual obligation to perform results from, or is conditioned 
upon, award of the prime contract and who is performing any part of 
the work or other requirement of the prime contract.
    (6) ``Supplies'' means all property, except land and interests 
in land, that is clearly identifiable for eventual use by or owned 
by the DoD at the time of transportation by sea.
    (i) An item is clearly identifiable for eventual use by the DoD 
if, for example, the contract documentation contains a reference to 
a DoD contract number or a military destination.
    (ii) ``Supplies'' includes (but is not limited to) public works; 
buildings and facilities; ships; floating equipment and vessels of 
every character, type, and description, with parts, subassemblies, 
accessories, and equipment; machine tools; material; equipment; 
stores of all kinds; end items; construction materials; and 
components of the foregoing.
    (7) ``U.S.-flag vessel'' means a vessel of the United States or 
belonging to the United States, including any vessel registered or 
having national status under the laws of the United States.
    (b)(1) The Contractor shall use U.S.-flag vessels when 
transporting any supplies by sea under this contract.
    (2) A subcontractor transporting supplies by sea under this 
contract shall use U.S.-flag vessels if the supplies being 
transported are--
    (i) Noncommercial items; or
    (ii) Commercial items that--
    (A) The Contractor is reselling or distributing to the 
Government without adding value (generally, the Contractor does not 
add value to items that it subcontracts for f.o.b. destination 
shipment);
    (B) Are shipped in direct support of U.S. military contingency 
operations, exercises, or forces deployed in humanitarian or 
peacekeeping operations; or
    (C) Are commissary or exchange cargoes transported outside of 
the Defense Transportation System in accordance with 10 U.S.C. 2643 
(Note: This contract requires transportation of commissary or 
exchange cargoes outside of the Defense Transportation System in 
accordance with 10 U.S.C. 2643).
    (c) The Contractor and its subcontractors may request that the 
Contracting Officer authorize shipment in foreign-flag vessels, or 
designate available U.S.-flag vessels, if the Contractor or a 
subcontractor believes that--
    (1) U.S.-flag vessels are not available for timely shipment;
    (2) The freight charges are inordinately excessive or 
unreasonable; or
    (3) Freight charges are higher than charges to private persons 
for transportation of like goods.
    (d) The Contractor must submit any request for use of other than 
U.S.-flag vessels in writing to the Contracting Officer at least 45 
days prior to the sailing date necessary to meet its delivery 
schedules. The Contracting Officer will process requests submitted 
after such date(s) as expeditiously as possible, but the Contracting 
Officer's failure to grant approvals to meet the shipper's sailing 
date will not of itself constitute a compensable delay under this or 
any other clause of this contract. Requests shall contain at a 
minimum--
    (1) Type, weight, and cube of cargo;
    (2) Required shipping date;
    (3) Special handling and discharge requirements;
    (4) Loading and discharge points;
    (5) Name of shipper and consignee;
    (6) Prime contract number; and
    (7) A documented description of efforts made to secure U.S.-flag 
vessels, including points of contact (with names and telephone 
numbers) with at least two U.S.-flag carriers contacted. Copies of 
telephone notes, telegraphic and facsimile message or letters will 
be sufficient for this purpose.
    (e) The Contractor shall, within 30 days after each shipment 
covered by this clause, provide the Contracting Officer and the 
Maritime Administration, Office of Cargo Preference, U.S. Department 
of Transportation, 400 Seventh Street SW., Washington, DC 20590, one 
copy of the rated on board vessel operating carrier's ocean bill of 
lading, which shall contain the following information:
    (1) Prime contract number;
    (2) Name of vessel;
    (3) Vessel flag of registry;
    (4) Date of loading;
    (5) Port of loading;
    (6) Port of final discharge;
    (7) Description of commodity;
    (8) Gross weight in pounds and cubic feet if available;
    (9) Total ocean freight in U.S. dollars; and
    (10) Name of steamship company.
    (f) If this contract exceeds the simplified acquisition 
threshold, the Contractor shall provide with its final invoice under 
this contract a representation that to the best of its knowledge and 
belief--
    (1) No ocean transportation was used in the performance of this 
contract;
    (2) Ocean transportation was used and only U.S.-flag vessels 
were used for all ocean shipments under the contract;
    (3) Ocean transportation was used, and the Contractor had the 
written consent of the Contracting Officer for all non-U.S.-flag 
ocean transportation; or
    (4) Ocean transportation was used and some or all of the 
shipments were made on non-U.S.-flag vessels without the written 
consent of the Contracting Officer. The Contractor shall describe 
these shipments in the following format:

[[Page 48404]]



----------------------------------------------------------------------------------------------------------------
                                                                                Contract line
                                                            Item description        items           Quantity
----------------------------------------------------------------------------------------------------------------
 
Total.....................................................
----------------------------------------------------------------------------------------------------------------

    (g) If this contract exceeds the simplified acquisition 
threshold and the final invoice does not include the required 
representation, the Government will reject and return it to the 
Contractor as an improper invoice for the purposes of the Prompt 
Payment clause of this contract. In the event there has been 
unauthorized use of non-U.S.-flag vessels in the performance of this 
contract, the Contracting Officer is entitled to equitably adjust 
the contract, based on the unauthorized use.
    (h) In the award of subcontracts for the types of supplies 
described in paragraph (b)(2) of this clause, the Contractor shall 
flow down the requirements of this clause as follows:
    (1) The Contractor shall insert the substance of this clause, 
including this paragraph (h), in subcontracts that exceed the 
simplified acquisition threshold in Part 2 of the Federal 
Acquisition Regulation.
    (2) The Contractor shall insert the substance of paragraphs (a) 
through (e) of this clause, and this paragraph (h), in subcontracts 
that are at or below the simplified acquisition threshold in Part 2 
of the Federal Acquisition Regulation.


(End of clause)

[FR Doc. 2013-18972 Filed 8-7-13; 8:45 am]
BILLING CODE 5001-06-P