[Federal Register Volume 79, Number 76 (Monday, April 21, 2014)]
[Rules and Regulations]
[Pages 22036-22041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08855]
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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: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to revise and update
transportation-related clauses and their prescriptions to create basic
and alternate clauses structured in a manner to facilitate use of
automated contract writing systems. The rule also includes the full
text of each alternate, rather than only showing the paragraphs that
differ from the basic clause.
DATES: Effective April 21, 2014.
FOR FURTHER INFORMATION CONTACT: Annette Gray, telephone 571-372-6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 78 FR
48397 on August 8, 2013, to revise the presentation of DFARS part 247
clauses with alternates and their prescriptions in the DFARS. One
respondent
[[Page 22037]]
submitted a public comment in response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comment in the development of the final
rule. A discussion of the comment is provided below.
A. Public Comment
Comment: The respondent recommended revising the prescription for
the proposed clause at 252.216-70XX (renumbered 252.216-7010 in the
final rule) to include a statement that the clause applies to
requirements-type contracts.
Response: DoD reviewed and accepted the public comment in the
development of the final rule. In the prescription at DFARS 216.506(d)
for the clause at 252.216-7010, Requirements, (formerly DFARS 252.247-
7015, Requirements) the phrase ``when a requirements contract is
contemplated'' is added.
B. Other Changes
Minor editorial changes were made: (1) To standardize language used
in the final rule for the clause prescriptions and prefaces in order to
provide uniform arrangement in the regulations, and (2) in 252.247-
7023, to provide for consistent use of the term ``foreign-flag
vessels'' in the clause.
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
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
and is summarized as follows:
This rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to revise and update transportation-related clauses
and their prescriptions to create basic and alternate clauses
structured in a manner to facilitate use of automated contract writing
systems. The rule also includes the full text of each alternate, rather
than only showing the paragraphs that differ from the basic clause.
There will be an initial small impact on potential offerors,
including small businesses, because this rule provides an unfamiliar
format for provision/clause alternates in solicitations and contracts
issued by DoD contracting activities. According to the Federal
Procurement Data System, in Fiscal Year 2012, DoD made approximately
270,000 contract awards (not including modification and orders) that
exceeded the micro-purchase threshold, of which approximately 180,000
(67%) were awarded to small businesses. It is unknown how many of these
contracts were awarded that included an alternate to a DFARS provision
or clause. Since similar changes are being made (by part number) to all
DFARS prescriptions and clauses and these changes are not substantive,
this rule is expected to result in a net savings for potential
offerors, including small businesses, by increasing clarity.
No comments were received from the public on the Regulatory
Flexibility analysis. No comments were received from the Chief Counsel
for Advocacy of the Small Business Administration.
This rule does not add any new reporting, recordkeeping, or other
compliance requirements. It should not result in any economic impact on
small entities.
There are no alternatives to this rule that would attain the stated
objective of making the terms of clause alternates clearer and that
will facilitate the use of automated contract writing systems.
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 CFR parts 212, 216, 247, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR 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. Amend section 212.301 by revising paragraph (f)(lxv) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(lxv) Use the basic or one of the alternates of the clause at
252.247-7023, Transportation of Supplies by Sea, as prescribed in
247.574(b), to comply with the Cargo Preference Act of 1904 (10 U.S.C.
2631(a)).
(A) Use the basic clause as prescribed in 247.574(b)(1).
(B) Use the alternate I clause as prescribed in 247.574(b)(2).
(C) Use the alternate II clause as prescribed in 247.574(b)(3).
* * * * *
PART 216--TYPES OF CONTRACTS
0
3. In 216.506, revise paragraph (d) to read as follows:
216.506 Solicitation provisions and contract clauses.
* * * * *
(d) Use the basic or the alternate of the clause at 252.216-7010,
Requirements, in lieu of the clause at FAR 52.216-21, Requirements, in
solicitations and contracts when a requirements contract 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 basic clause if the acquisition does not involve a
partial small business set-aside.
(2) Use the alternate I clause if the acquisition involves a
partial small business set-aside.
* * * * *
PART 247--TRANSPORTATION
0
4. Revise the section 247.271 heading to read as follows:
247.271 Contracts for the preparation of personal property for
shipment or storage or for performance of intra-city or intra-area
movement.
* * * * *
0
5. Amend section 247.271-3 by--
0
a. In the introductory text, removing ``and for performance of intra-
city or intra-area movement,'' and adding ``or for performance of
intra-city or intra-area movement,'' in its place;
0
b. Revising paragraph (a);
0
c. Removing paragraph (j) and redesignating paragraphs (k) through (p)
as paragraphs (j) through (o), respectively; and
[[Page 22038]]
0
d. Adding a new paragraph (p).
The revision and addition read as follows:
247.271-3 Solicitation provisions, schedule formats, and contract
clauses.
* * * * *
(a) Use the basic or the alternate of the provision at 252.247-
7008, Evaluation of Bids.
(1) Use the basic provision when there are no ``additional
services'' items being added to the schedule.
(2) Use the alternate I provision when adding ``additional
services'' items to the schedule.
* * * * *
(p) See the prescription at 216.506(d) requiring the use of
252.216-7010, Requirements.
0
6. In 247.574, revise paragraph (b) to read as follows:
247.574 Solicitation provisions and contract clauses.
* * * * *
(b) Use the basic or one of the alternates of the clause 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 basic clause 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 alternate I clause 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 when the contract is not a
construction contract.
(3) Use the alternate II clause if any of the supplies to be
transported are commercial items that are commissary 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
7. Add section 252.216-7010 to read as follows:
252.216-7010 Requirements.
As prescribed in 216.506(d), use one of the following clauses:
Basic. As prescribed at 216.506(d)(1), use the following clause.
REQUIREMENTS--BASIC (APR 2014)
(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)
Alternate I. As prescribed in 216.506(d)(2), use the following
clause, which uses a different paragraph (c) than the basic clause.
REQUIREMENTS--ALTERNATE I (APR 2014)
(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
8. Amend section 252.247-7008 by--
0
a. Revising the introductory text, clause title and date; and
0
b. Revising Alternate I.
The revisions read as follows:
[[Page 22039]]
252.247-7008 Evaluation of Bids.
As prescribed in 247.271-3(a), use one of the following provisions:
Basic. As prescribed at 247.271-3(a)(1), use the following
provision.
EVALUATION OF BIDS--BASIC (APR 2014)
* * * * *
Alternate I. As prescribed in 247.271-4(a)(2), use the following
provision, which adds a paragraph (e) not included in the basic
provision.
EVALUATION OF BIDS--ALTERNATE I (APR 2014)
(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.
(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
9. Remove and reserve section 252.247-7015.
0
10. Amend section 252.247-7023 by--
0
a. Revising the introductory text, clause title and date;
0
b. In paragraph (a), removing the numerical paragraph designations of
(1) through (7) for the definition paragraphs; and removing ``foreign
flag vessel'' and adding ``foreign-flag vessel'' in its place.
0
c. In paragraph (d), removing ``for use of other than U.S.-flag
vessels'' and adding ``for use of foreign-flag vessels'' in its place.
0
d. In paragraph (f) introductory text, removing ``The Contractor
shall'' and adding ``If this contract exceeds the simplified
acquisition threshold, the Contractor shall'' in its place; and in
paragraphs (f)(3) and (4), removing ``non-U.S.-flag'' and adding
``foreign-flag'' in its place
0
e. In paragraph (g), removing ``If the final invoice'' and adding ``If
this contract exceeds the simplified acquisition threshold and the
final invoice'' in its place; and removing ``non-U.S.-flag vessels''
and adding ``foreign-flag vessels'' in its place.
0
f. Revising Alternate I and Alternate II; and
0
g. Removing Alternate III.
The revisions read as follows:
252.247-7023 Transportation of Supplies by Sea.
As prescribed in 247.574(b), use one of the following clauses:
Basic. As prescribed in 247.574(b)(1), use the following clause.
TRANSPORTATION OF SUPPLIES BY SEA--BASIC (APR 2014)
* * * * *
Alternate I. As prescribed in 247.574(b)(2), use the following
clause, which uses a different paragraph (b) than the basic clause.
TRANSPORTATION OF SUPPLIES BY SEA--ALTERNATE I (APR 2014)
(a) Definitions. As used in this clause--
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.
Department of Defense (DoD) means the Army, Navy, Air Force,
Marine Corps, and defense agencies.
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any transportation aboard a ship,
vessel, boat, barge, or ferry through international waters.
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.
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.
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 foreign-
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;
[[Page 22040]]
(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 foreign-flag
ocean transportation; or
(4) Ocean transportation was used and some or all of the
shipments were made on foreign-flag vessels without the written
consent of the Contracting Officer. The Contractor shall describe
these shipments in the following format:
----------------------------------------------------------------------------------------------------------------
Item description Contract line 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 foreign-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)
Alternate II. As prescribed in 247.574(b)(3), use the following
clause, which uses a different paragraph (b) than the basic clause.
TRANSPORTATION OF SUPPLIES BY SEA--ALTERNATE II (APR 2014)
(a) Definitions. As used in this clause--
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.
Department of Defense (DoD) means the Army, Navy, Air Force,
Marine Corps, and defense agencies.
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any transportation aboard a ship,
vessel, boat, barge, or ferry through international waters.
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.
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.
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 foreign-
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.,
[[Page 22041]]
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 foreign-flag
ocean transportation; or
(4) Ocean transportation was used and some or all of the
shipments were made on foreign-flag vessels without the written
consent of the Contracting Officer. The Contractor shall describe
these shipments in the following format:
----------------------------------------------------------------------------------------------------------------
Item description Contract line 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 foreign-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)
[FR Doc. 2014-08855 Filed 4-18-14; 8:45 am]
BILLING CODE 5001-06-P