Page images

power of redelegation. A copy of each authorized deviation shall be sent to the Director of Installations and Logistics.

(d) Request for deviations from the FPR or DOTPR affecting more than one contract or contractor shall be forwarded to the Director of Installations and Logistics. Requests involving deviations from the FPR will be considered jointly by the Department and the General Services Administration, unless, in the judgment of the Assistant Secretary for Administration, after due consideration of the objective of uniformity and program responsibility of the Department, circumstances preclude such joint effort. In such cases, the Assistant Secretary for Administration will approve such class deviations as he determines necessary and will appropriately notify the General Services Administration.

§ 12-1.010 Interagency Procurement

Policy Committee. The Director of Installations and Logistics, OST has been designated the representative for the Department of Transporation on the Interagency Procurement Policy Committee.

(1) The Chief, Procurement and Supply Division, Transportation Systems Center, Cambridge, Mass.

(2) The Chief, Procurement Operations Division, Washington, D.C.

(b) In the Federal Aviation Administration:

(1) The Director, Logistics Service, Washington, D.C.

(2) The Director, Metropolitan Washington Airport Service, Gravelly Point, Va. Capital Airports, Falls Church, Va.

(3) The Director, Alaskan Region, Anchorage, Alaska.

(4) The Director, Western Region, Los Angeles, Calif.

(5) The Director, Southern Region, Atlanta, Ga.

(6) The Director, Pacific Region, Honolulu, Hawaii.

(7) The Director, Central Region, Kansas City, Mo.

(8) The Director, Eastern Region, New York, N.Y.

(9) The Director, Southwest Region, Fort Worth, Tex.

(10) The Director, Aeronautical Center, Oklahoma City, Okla.

(11) The Director, National Aviation Facilities Experimental Center, Atlantic City, N.J.

(12) The Director, New England Region, Burlington, Mass.

(13) The Director, Great Lakes Region, Des Plaines, Ill.

(14) The Director, Rocky Mountain Region, Denver, Colo.

(15) The Director, Northwest Region, Seattle, Wash.

(c) In the Coast Guard, the Comptroller of the Coast Guard, Washington, D.C.

(d) For the Federal Highway Administration, the Associate Administrator for Administration, Washington, D.C.

(e) For the National Highway Traffic Safety Administration, the Associate Administrator for Administration, Washington, D.C.

(f) For the Federal Railroad Administration, the Associate Administrator for Administration, Washington, D.C.

(g) For the St. Lawrence Seaway Development Corporation, the Director, Office of Procurement and Supply, Massena, N.Y.

(h) For the Urban Mass Transportation, the Director, Office of Procure

Subpart 12-1.2-Definition of Terms

8 12–1.204 Head of the agency.

"Head of the agency” means the Secretary and the following assistant chief officials: the Deputy Secretary, the Assistant Secretary for Administration; and for procurements within their Administrations, the Administrators of the Federal Aviation Administration, Federal Highway Administration, Federal Railroad Administration, Urban Mass Transportation Administration, National Highway Traffic Safety Administration, St. Lawrence Seaway Development Corporation, and the Commandant, U.S. Coast Guard, and the Director, Transportation System Center.

§ 12–1.206 Head of the procuring activity.

The following officials have been designated as “head of the procuring activity":

(a) In the Office of the Secretary:


ment and Third Party Review, Washington, D.C.

8 12–1.250 Administration.

“Administration" means the Federal Aviation Administration, the Federal Highway Administration, the Federal Railroad Administration, the Urban Mass Transportation Administration, the Coast Guard, the St. Lawrence Seaway Development Corporation, and the National Highway Traffic Safety Administration. The term “Administration” also includes the Transportation Systems Center, and the Office of Administrative Operations of the Office of the Secretary. The term “Administration" as used, for example, in the phrase "in accordance with Administration procedures” would include the foregoing organizations, unless the paragraph states otherwise.

§ 12-1.251 Procurement office.

"Procurement office” means an office with a designated contracting officer with authority to enter into contracts over $10,000 in value.

8 12–1.252 Change order.

“Change order" means a unilateral written order signed by the contracting officer, and issued to a contractor pursuant to the Changes clause of the contract.

§ 12-1.253 Supplemental agreement.

"Supplemental agreement” means any contract modification or contract amendment which is accomplished by mutual action of the parties.

§ 12-1.254 Shall.

Shallis imperative.

[ocr errors]

8 12-1.255 May.

May” is permissive. However, the words “no person may

Subpart 12-1.3—General Policies

12-1.302-3 Contracts between the Gov

ernment and Government employees or business concerns substantially owned or controlled by Government employ


Unless a higher authority is specified within an Administration, heads of procuring activities are authorized to except individual contracts from the policy against awarding contracts to Government employees or business concerns substantially owned or controlled by Government employees. Each such exception shall be evidenced by a written determination signed by the head of the procuring activity, setting forth the facts in sufficient detail to demonstrate that the exception is being granted for the most compelling reasons, and attaching any supporting documentation. A copy of each such determination, with attachments, shall be forwarded to the Director of Installations and Logistics, OST.

8 12-1.305-3. Deviations from Federal

specifications. (a) Each Administration shall designate an official to carry out the responsibilities set forth in FPR 1-1.3053. One copy of each such designation shall be forwarded to the Director of Installations and Logistics, OST.

(b) Whenever a notification or recommendation for a change in a Federal Specification is submitted to the General Services Administration, as provided in FPR 1-1.305-3(b)(5), an information copy shall be forwarded to the Director of Installations and Logistics, OST. Similarly, the Director of Installations and Logistics shall be advised any time the General Services Administration disapproves a devi. ation from a Federal Specification.

mean that no person is required, authorized, or permitted to do the act proscribed.

$ 12-1.305-50 Index to Federal and De

partment of Defense Specifications and Standards. The "Index of Federal Specifications and Standards” and the “Department of Defense Index of Specifications and Standards” are issued annually with periodic supplements. These indexes contain general information pertain

ing to their use and the availability of actions and other data. Adherence to other Government specifications. this policy will require the assembly of

either the original or a copy of all doc8 12-1.306-1 Mandatory use and applica uments pertaining to the procurement tion of Federal Standards.

in a file consisting of one or more foldWhenever a request for an exception ers. It will also require documentation to the use of a Federal Standard is for the record of all understandings, submitted to the General Services Ad oral agreements, and any other facts ministration, an information copy of or information pertinent to the transthe submission and GSA's response action. It is left to the discretion of shall be forwarded to the Director of the procurement official to determine Installations and Logistics, OST.

the manner in which unwritten mat

ters are documented. However, it 8 12-1.307-5 Limitations on use of "brand

would be expected, for example, that name or equal” purchase description.

those of a complex nature would be Purchase descriptions containing the carefully documented by typewritten phrase “or equal” shall not be used as “memorandum for the record”, while a device to grant an advantage to par routine data might be recorded by a ticular manufacturers by favoring one handwritten notation in the file. Phoproduct over other products, or to sub

tographs should be employed wherevstantiate a determination that no

er they will serve to effectively docuother manufacturer's products are

ment pertinent contract matters. equal in quality and performance to

(b) Complete documentation will the products specifically named.

permit ready reconstruction of all Where a proper determination has

stages of the transaction in order to: been made that only one supplier can

(1) Support actions taken by various furnish the required item or items, the

personnel in the procurement cycle. procurement will be accomplished by negotiation in accordance with FPR

(2) Provide information for internal Part 1-3.

management review and for reviews by

the General Accounting Office. 8 12-1.311 Priorities, allocations and allot (3) Supply data for use in preparing ments.

replies to legitimate inquiries. The programs of the Coast Guard (4) Furnish essential facts in the and certain programs of the Federal

event of litigation. Aviation Administration are defense (c) Small purchase records shall be related programs to which the prior

maintained in accordance with FPR ities and allocations regulations apply. Subpart 1-3.6 and DOTPR Subpart Rateable contracts and purchase

12-3.6. orders shall contain the clause set forth in DOTPR 12-7.150-3 and the

8 12-1.315 Use of liquidated damages proappropriate DO or DX rating (and the

visions in procurement contracts. appropriate allotment number if the order calls for authorized controlled

8 12-1.315-2 Policy. materials) in accordance with the pro (a) Criteria for use. (1) In proposed visions of DMS (Defense Materials contracts involving an item where only System) Regulation 1 and BDSA Reg a portion of the quantity ordered is ulation 2. These regulations are avail. for immediate programs, and liquidatable from the Business and Defense ed damages provisions are considered Services Administration of the Depart to be necessary, care shall be taken to ment of Commerce.

have the liquidated damages provi

sions apply only to the urgent quanti§ 12-1.313 Records of contract actions.

ty. (a) In compliance with the require. (2) The use of liquidated damages ments of FPR 1-1.313, each procure provisions should never be construed ment office shall maintain for each as relieving procurement officials of procurement exceeding $10,000 a con the obligation of establishing realistic tract file containing a comprehensive delivery or performance schedules. Rerecord of all pre-award and post-award alistic delivery or performance sched

(c) Enforcement. Where liquidated damages provisions are used, they shall be strictly enforced. In making partial or progress payments, deductions for damages should be made on the basis of the actual number of days of delay multiplied by the rate.

(d) Termination. If the contract is terminated, the contractor remains liable for liquidated damages that have accrued. Moreover, on a default termination, liquidated damages continue to accrue even after default, until the Department can reasonably obtain delivery of the supplies or performance of the service. This is in addition to any other rights of the Government to damages under default provisions for the excess costs of reprocuring the supplies or services of the terminated contract.

(e) Remission. An information copy of each submission to the Comptroller General of a recommendation for the remission of liquidated damages shall be forwarded to the Director of Installations and Logistics, OST.

ules should be a prerequisite to the use of liquidated damages.

(3) Liquidated damages provisions generally should not be used:

(i) In contracts for supplies or services required for routine administrative purposes.

(ii) In contracts for standard commercial or "shelf items”.

(iii) In any contract where time would permit the needs of the Department to be met by termination and reprocurement if the initial contractor defaults.

(iv) In small purchases.

(V) In study, experimental, development, or research contracts, including equipment contracts requiring developmental work.

(b) Rate of assessment. (1) Contracting officers must assure that the rate of liquidated damages stipulated for a given contract is a reasonable forecast of the Government's anticipated damages. A fixed formula, based on percentage of value, shall not be used to establish the rate of damages. The minimum amount of liquidated damages should be based on the estimated cost of inspection and superintendence for each day of delay in completion. In addition, the following factors are examples of matters to be considered in establishing the rate of damages:

(i) The importance of the item in relation to the facility or project for which it is intended.

(ii) The relative importance of the item to the facility or project in the overall program of the Department.

(iii) Any rental of facilities necessitated by the delay in a construction completion date.

(iv) Cost of additional maintenance required on structures being replaced by contract items.

(v) Any unusual damages that can be anticipated.

(2) Unless it is clear that partial delivery will proportionately reduce the extent of probable damages, rates shall not be specified to be applicable to individual units of an item, but rather to quantities of an item or to groups of items which are required for delivery or completion at the same time. Rates should generally be expressed in terms of even dollars per day of delay.

§ 12-1.318 Disputes clause.

When a dispute cannot be settled by agreement and a decision under the Disputes clause is necessary, the contracting officer shall review the available facts pertinent to the dispute before making his final decision. When there is any doubt as to whether the issue in dispute is subject to the disputes procedure, a decision will be made pursuant to the Disputes clause. The disputes procedure shall not be invoked in cases when a dispute is clearly not subject to the procedure. The contracting officer shall obtain, from assigned legal and other advisors, such advice and assistance as is required to render a decision. However, the decision must be that of the contracting officer. 8 12-1.318–50 Contracting officer's deci.

sion under the Disputes clause. When a final decision of the contracting officer concerns a dispute that is or may be subject to the Disputes clause, the following paragraph shall be added to the paragraph contained in FPR 1-1.318-1:

The Department of Transportation Contract Appeals Board is the authorized representative of the Secretary in hearing, considering, and deciding such appeals. The rules of the Department of Transportation Contract Appeals Board are set forth in the Code of Federal Regulations (41 CFR Part 12-60 et seq.).

(b) In cases where the question of entitlement only has been decided by the Board and the matter of amount has been remanded to the parties for negotiation, if agreement is not reached the appellant will be afforded a prompt decision and an opportunity to appeal on the matter of amount.

8 12-1.318-51 Agreement after appeal is

filed. After an appeal has been filed, contracting agencies are encouraged to seek agreement as to disposition of the controversy. However, such efforts to dispose of a controversy shall not be conducted in lieu of formal Board actions or hearings and shall not result in suspension of processing of an appeal, except as ordered or authorized by the Department of Transportation Contract Appeals Board.

8 12-1.320 Subcontractor gifts and kick

backs. Reports of suspected violations and action being taken shall be furnished to the Director of Installations and Logistics, OST.

§ 12–1.351 Contract number prefixes.

All contracts, exclusive of purchase orders, issued by the Department will be identified by a number or combination of letters and numbers, in accordance with Department Order 4220.1A (set forth in DOTPR Part 12-99).

8 12–1.318-52 Payment after appeal is

filed. In the event of an appeal, the amount determined to be payable in the decision of the contracting officer, less any portion previously paid, normally should be paid in advance of any decision by the Board without prejudice to the rights of either party or the appeal.

8 12-1.318-53 Implementation of decisions

of the Contract Appeals Board. (a) It is the policy of the Department of Transportation to take prompt action to effect payment in accordance with any decision of the Contract Appeals Board wholly or partially favorable to the appellant. If, however, an Administration believes such decision is not "appropriate for review in court under prevailing statutory and judicial standards”, it may recommend that action be taken to seek judicial review of the Board's decision. The recommendation shall be made to the DOT General Counsel who shall determine whether or not judicial review of the Board's decision will be sought. In the event that the DOT General Counsel determines that judi. cial review will be sought, the matter shall be referred to the Department of Justice and the appellant shall be promptly advised that payment in accordance with the Board's decision will not be made.

§ 12-1.352 Industrial security.

(a) Pursuant to Executive Order 10865 (3 CFR, 1959-63 Comp.) an agreement between the Department of Defense and the Department of Transportation was entered into on June 1, 1967, extending regulations prescribed by the Secretary of Defense under the Executive order to apply to protect releases of classified information relating to DOT contracts and releases of other classified information which DOT has the responsibility for safeguarding. The Office of Investigations and Security, OST, has been designated as the Department of Transportation liaison for industrial security matters. The Defense Logistics Agency will perform all cognizant security office functions specified in, and will have the authority and responsibilities prescribed by, Department of Defense Industrial Security Regulations (ISR) (DOD 5220.22R) and Department of Defense Industrial Security Manual (DOD 5220.22M).

(b) Any DOT contract or prospective contract which would require access to classified information by the contractor or any of his employees in the bid, negotiation, award, performance, or termination of the contract, including clearances required for visit purposes, is considered to be a "classified con

« PreviousContinue »