Defense Federal Acquisition Regulation Supplement: Preference for United States Vessels in Transporting Supplies By Sea (DFARS Case 2021-D020), 78992-78996 [2024-21092]
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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations
(2) Required shipping date(s) and
required delivery date(s);
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(f) The Contractor shall, within 30
days after each shipment covered by
this clause, provide the Contracting
Officer and MARAD at Cargo.Marad@
dot.gov, Attention: Military Team, one
copy of the rated on board vessel
operating carrier’s ocean bill of lading,
which shall contain the following
information:
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(i) If the Contractor did not anticipate
transporting any supplies by sea at the
time of contract award and, therefore,
did not provide the notification required
by paragraph (b) of this clause, but prior
to shipment of supplies, the Contractor
learns that supplies will be transported
by sea, the Contractor shall—
(1) Provide the notification required
by paragraph (b) of this clause to the
Contracting Officer and MARAD as soon
as it is known that supplies will be
transported by sea; and
(2) Comply with all the terms and
conditions of this clause.
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Alternate I. As prescribed in
247.574(a) and (a)(2), use the following
clause, which uses a different paragraph
(c) than the basic clause:
Transportation of Supplies by Sea—
Alternate I (OCT 2024)
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(b) If the transportation of supplies by
sea is anticipated under this contract,
the Contractor shall—
(1) Notify the Contracting Officer and
Maritime Administration (MARAD) at
Cargo.Marad@dot.gov—
(i) Within 3 business days after
contract award; or
(ii) Immediately prior to the shipment
departure date necessary to meet
delivery schedules, whichever is earlier;
and
(2) Include in the notification—
(i) A statement of the Contractor’s
intent to transport supplies by sea;
(ii) The contract number; and
(iii) The task-order or delivery-order
number, when applicable.
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(e) * * *
(2) Required shipping date(s) and
required delivery date(s);
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(f) The Contractor shall, within 30
days after each shipment covered by
this clause, provide the Contracting
Officer and MARAD at Cargo.Marad@
dot.gov, Attention: Military Team, one
copy of the rated on board vessel
operating carrier’s ocean bill of lading,
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which shall contain the following
information:
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(i) If the Contractor did not anticipate
transporting any supplies by sea at the
time of contract award and, therefore,
did not provide the notification required
by paragraph (b) of this clause, but prior
to shipment of the supplies, the
Contractor learns that supplies will be
transported by sea, the Contractor
shall—
(1) Provide the notification required
by paragraph (b) of this clause to the
Contracting Officer and MARAD as soon
as it is known that supplies will be
transported by sea; and
(2) Comply with all the terms and
conditions of this clause.
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Alternate II. As prescribed in
247.574(a) and (a)(3), use the following
clause, which uses a different paragraph
(c) than the basic clause:
Transportation of Supplies by Sea—
Alternate II (OCT 2024)
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(b) If the transportation of supplies by
sea is anticipated under this contract,
the Contractor shall—
(1) Notify the Contracting Officer and
Maritime Administration (MARAD) at
Cargo.Marad@dot.gov—
(i) Within 3 business days after
contract award; or
(ii) Immediately prior to the shipment
departure date necessary to meet
delivery schedules, whichever is earlier;
and
(2) Include in the notification—
(i) A statement of the Contractor’s
intent to transport supplies by sea;
(ii) The contract number; and
(iii) The task-order or delivery-order
number, when applicable.
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(e) * * *
(2) Required shipping date(s) and
required delivery date(s);
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(f) The Contractor shall, within 30
days after each shipment covered by
this clause, provide the Contracting
Officer and MARAD at Cargo.Marad@
dot.gov, Attention: Military Team, one
copy of the rated on board vessel
operating carrier’s ocean bill of lading,
which shall contain the following
information:
*
*
*
*
*
(i) If the Contractor did not anticipate
transporting any supplies by sea at the
time of contract award, and, therefore,
did not provide the notification required
by paragraph (b) of this clause, but prior
to shipment of the supplies, the
Contractor learns after the award of the
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contract that supplies will be
transported by sea, the Contractor
shall—
(1) Provide the notification required
by paragraph (b) of this clause to the
Contracting Officer and MARAD as soon
as it is known that supplies will be
transported by sea; and
(2) Comply with all the terms and
conditions of this clause.
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■ 8. Amend section 252.247–7025—
■ a. By revising the section heading; and
■ b. In the introductory text by
removing ‘‘247.574(c)’’ and adding
‘‘247.574(b)’’ in its place.
The revision reads as follows:
252.247–7025
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252.247–7026
Reflagging or Repair Work.
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[Amended]
9. Amend section 252.247–7026 in the
introductory text by removing
‘‘247.574(d)’’ and adding ‘‘247.574(c)’’
in its place.
■ 10. Amend section 252.247–7027—
■ a. By revising the section heading; and
■ b. In the introductory text by
removing ‘‘247.574(e)’’ and adding
‘‘247.574(d)’’ in its place.
The revision reads as follows:
■
252.247–7027 Riding Gang Member
Requirements.
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[FR Doc. 2024–21091 Filed 9–25–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 242, 247, and 252
[Docket DARS–2024–0013]
RIN 0750–AL38
Defense Federal Acquisition
Regulation Supplement: Preference for
United States Vessels in Transporting
Supplies By Sea (DFARS Case 2021–
D020)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal
Year 2021 intended to increase
compliance with military cargo
preference requirements.
SUMMARY:
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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations
DATES:
Effective October 1, 2024.
FOR FURTHER INFORMATION CONTACT:
David Johnson, telephone 202–913–
5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 89 FR 31681 on
April 25, 2024, to implement section
1024 of the William M. (Mac)
Thornberry National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2021 (Pub. L. 116–283).
Section 1024 amends 10 U.S.C. 2631 to,
among other things, clarify
circumstances in which DoD may seek
a waiver from the basic requirement for
DoD supplies to be transported by seas
in either vessels belonging to the United
States or vessels of the United States.
One respondent 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,
as follows:
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A. Summary of Significant Changes
From the Proposed Rule
There are no changes from the
proposed rule resulting from the public
comment.
B. Analysis of Public Comments
Comment: The respondent suggested
the rule should be changed to include
a certification requirement in paragraph
(f) of the clause at DFARS 252.242–
7023, including alternates, in place of a
representation. The respondent further
suggested the clause at DFARS 252.247–
7025 should similarly include a
certification requirement. The
respondent expressed that these changes
would help ensure full compliance with
U.S.-flag vessel preference
requirements.
Response: As expressed at DFARS
201.107, 41 U.S.C. 1304 prohibits new
certification requirements in the DFARS
unless either the certification is
specifically imposed by statute or an
approved justification exists for the
certification. Neither condition is met in
this case. Therefore, DoD declines the
respondent’s suggestion to add
certification requirements to the clauses
at DFARS 252.242–7023 and 252.247–
7025.
C. Other Changes
Two changes are made to the final
rule. First, the final rule removes the
definition of ‘‘foreign shipyard’’ from
DFARS 247.501, because that definition
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is not used in subpart 247.5. Secondly,
the final rule removes the change
included in the proposed rule to the
definition of ‘‘foreign shipyard’’ in the
solicitation provision at DFARS
252.247–7026, because this change
created incongruity with the existing
definition of ‘‘U.S. shipyard’’ in the
provision.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
and for Commercial Services
This final rule amends the clauses at
DFARS 252.247–7023, including
alternates, 252.247–7025, and the
provision at 252.247–7026. However,
this final rule does not impose any new
requirements on contracts at or below
the SAT, for commercial products
including COTS items, or for
commercial services. The clauses and
the provision will continue to apply to
acquisitions at or below the SAT, to
acquisitions of commercial products
including COTS items, and to
acquisitions of commercial services.
78993
final rule with the form, Submission of
Federal Rules Under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
V. 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, as amended.
VII. 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:
DoD is amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 1024 of
the William M. (Mac) Thornberry
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2021.
Section 1024 modifies 10 U.S.C. 2631 to
add a requirement to ensure contractor
compliance with 10 U.S.C. 2631 and
otherwise updates the listed
circumstances in which DoD may waive
the requirement that DoD supplies be
transported by sea in vessels belonging
to the United States or vessels of the
United States. It also modifies the
requirement for reflagging or repair
work in the United States for vessels
used under time-charter contracts.
The public comment raised no issue
in response to the initial regulatory
flexibility analysis.
This rule will apply to small entities
that have contracts that include DFARS
clauses 252.247–7023, Transportation of
Supplies by Sea, and 252.247–7025,
Reflagging or Repair Work. DoD
obtained data from the Procurement
Business Intelligence Service for all
contracts and modifications that include
DFARS clauses 252.247–7023 and
252.247–7025 for fiscal years 2020
through 2022. DoD awarded on average
649,016 contract actions per year that
included either DFARS clause 252.247–
7023 or 252.247–7025, or both, to
31,665 unique entities, of which
approximately 363,260 contract awards
(56 percent) were made to 21,737
unique small entities (69 percent).
This rule does not impose any new
reporting, recordkeeping, or other
compliance requirements.
There are no known alternatives that
would accomplish the stated objectives
of the applicable statute.
VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) applies to this final
rule. However, these changes to the
DFARS do not impose additional
IV. Expected Impact of the Rule
This rule is intended to increase
compliance with military cargo
preference requirements, as amended
under this rule in accordance with
section 1024 of the NDAA for FY 2021.
These changes are largely clarifying in
nature, including clarification of
operational requirements internal to
DoD. Therefore, this rule is not expected
to have a significant impact on the
public.
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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations
information collection requirements to
the paperwork burden previously
approved by the Office of Management
and Budget (OMB) under OMB Control
Number 0704–0245, titled: Defense
Federal Acquisition Regulation
Supplement (DFARS) Part 247,
Transportation and Related Clauses.
List of Subjects in 48 CFR Parts 242,
247, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, the Defense Acquisition
Regulations System amends 48 CFR
parts 242, 247, and 252 as follows:
■ 1. The authority citation for parts 242,
247, and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 242—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
2. Amend section 242.1502—
a. In paragraph (g)(i) by removing the
word ‘‘and’’ at the end of the paragraph;
■ b. In paragraph (g)(ii) by removing the
period at the end of the paragraph and
adding ‘‘; and’’ in its place; and
■ c. By adding paragraph (g)(iii).
The addition reads as follows:
■
■
242.1502
Policy.
(g) * * *
(iii) In accordance with 10 U.S.C.
2631(d), shall include information on
contractor compliance with
requirements of the clause at 252.247–
7023, Transportation of Supplies by Sea
(see 10 U.S.C. 2631(a), (b), and (c)).
PART 247—TRANSPORTATION
3. Amend section 247.570—
a. By revising paragraph (a)(1);
b. In paragraph (a)(2):
i. By removing ‘‘(Pub. L. 109–364)’’
and adding ‘‘(Pub. L. 109–364) (10
U.S.C. 2631 note)’’ in its place; and
■ ii. By removing the word ‘‘and’’ at the
end of the paragraph;
■ c. In paragraph (a)(3) by removing
‘‘(Pub. L. 110–417)’’ and ‘‘chapter 121,
title 46 U.S.C.’’ and adding ‘‘(Pub. L.
110–417) (10 U.S.C. chapter 257 note)’’
and ‘‘46 U.S.C. chapter 121; and’’ in
their places, respectively;
■ d. By adding paragraph (a)(4);
■ e. In paragraph (b) by removing ‘‘46
U.S.C. 1241(b)’’ and adding ‘‘46 U.S.C.
chapter 553’’ in its place; and
■ f. By revising paragraph (c).
The revisions and addition read as
follows:
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247.570
Scope.
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(a) * * *
(1) The Military Cargo Preference Act
of 1904 (‘‘the 1904 Act’’), 10 U.S.C.
2631, which applies to the ocean
transportation of cargo owned by,
destined for use by, or otherwise
transported by DoD;
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(4) Section 1024 of the National
Defense Authorization Act for Fiscal
Year 2021 (Pub. L. 116–283), which
updates the listed circumstances where
DoD may waive the requirement that
DoD supplies be transported by sea in
vessels belonging to the United States or
vessels of the United States, and it
modifies the requirement for reflagging
or repair work in the United States for
vessels used under time-charter
contracts.
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(c) Does not implement—
(1) Section 27 of the Merchant Marine
Act, 1920 (46 U.S.C. chapters 121 and
552), commonly known as the ‘‘Jones
Act,’’ for the application of coastwise
trade; or
(2) Waivers thereof pursuant to 46
U.S.C. 501.
■ 4. Revise section 247.571 to read as
follows:
247.571
Definitions.
As used in this subpart—
Corrective and preventive
maintenance or repair means—
(1) Maintenance or repair actions
performed as a result of a failure in
order to return or restore equipment to
acceptable performance levels; and
(2) Scheduled maintenance or repair
actions to prevent or discover functional
failures.
Covered vessel means a vessel—
(1) Owned, operated, or controlled by
the offeror; and
(2) Qualified to engage in the carriage
of cargo in the coastwise or
noncontiguous trade under 46 U.S.C.
12112 and 50501 and 46 U.S.C. chapter
551.
Foreign-flag vessel means any vessel
that is not a U.S.-flag vessel.
Ocean transportation means any
water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the
like outside the internal waters of the
United States (as defined in 33 CFR
2.24).
Overhaul, repair, and maintenance
work means work requiring a shipyard
period greater than or equal to 5
calendar days.
Reflagging or repair work means work
performed on a vessel—
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(1) To enable the vessel to meet
applicable standards to become a vessel
of the United States; or
(2) To convert the vessel to a more
useful military configuration.
Supplies means supplies that are
clearly identifiable for eventual use by
or owned by DoD at the time of
transportation by sea, or are otherwise
transported by DoD, regardless of
ownership or use by DoD. An item is
clearly identifiable for eventual use by
DoD if, for example, the contract
documentation contains a reference to a
DoD contract number or a military
destination.
U.S.-flag vessel means either a vessel
belonging to the United States or a
vessel of the United States as that term
is defined in 46 U.S.C. 116.
■ 5. Revise section 247.572 to read as
follows:
247.572
Policy.
(a) In accordance with 10 U.S.C.
2631(a), DoD contractors shall transport
supplies exclusively on U.S.-flag
vessels. In accordance with 10 U.S.C.
2631(b), DoD (see 247.573(a)) may waive
this requirement when a U.S.-flag
vessel—
(1) Is not available at a fair and
reasonable rate for commercial vessels
of the United States; or
(2) Is not otherwise available.
(b) Contracts must provide for the use
of vessels belonging to the United States
when security classifications prohibit
the use of other than vessels belonging
to the United States.
(c) In accordance with 10 U.S.C.
2631(c)—
(1) Any vessel used under a time
charter contract for the transportation of
supplies under this section shall have
the following work performed in the
United States or its outlying areas:
(i) Reflagging or repair work, if the
reflagging or repair work is performed—
(A) On a vessel for which the
contractor submitted an offer in
response to the solicitation for the
contract; and
(B) Prior to acceptance of the vessel
by the Government.
(ii) Corrective and preventive
maintenance or repair work for the
duration of the contract, to the greatest
extent practicable.
(2) The Secretary of Defense may
waive this requirement if the Secretary
determines that such waiver is critical
to the national security of the United
States. In accordance with 10 U.S.C.
2631(c)(2), DoD shall immediately
submit, in writing, a notice to the
congressional committees listed at 10
U.S.C. 2631(e) of such a waiver and the
reason for the waiver.
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(d) In accordance with section 1017 of
the National Defense Authorization Act
for Fiscal Year 2007 (Pub. L. 109–364),
when obtaining carriage requiring a
covered vessel, the contracting officer
shall consider the extent to which
offerors have had overhaul, repair, and
maintenance work for covered vessels
performed in shipyards located in the
United States or Guam.
(e) In accordance with section 3504 of
the National Defense Authorization Act
for Fiscal Year 2009 (Pub. L. 110–417),
DoD may not award, renew or extend,
or exercise an option under a charter of,
or contract for carriage of cargo by, a
U.S.-flag vessel documented under 46
U.S.C. chapter 121, unless the contract
contains the clause at 252.247–7027.
6. Amend section 247.573—
a. By revising paragraphs (a) and
(b)(3);
■ b. In paragraph (b)(4) by removing
‘‘Procedures are provided at’’ and
adding ‘‘Follow the procedures at’’ in its
place; and
■ c. By adding paragraph (b)(5).
The revisions and addition read as
follows:
■
■
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247.573
General.
(a) Delegated authority. Pursuant to
10 U.S.C. 2631(b)(2), the Secretary of
Defense has delegated (see PGI 247.573)
the authority to make determinations
either that a U.S.-flag vessel is not
available at a fair and reasonable rate for
commercial vessels of the United States
or is otherwise not available to—
(1) The Commander, United States
Transportation Command; and
(2) The Secretary of the Navy.
(b) * * *
(3) See PGI 247.573(b)(3) for agency
and department procedures relating to
annual reporting requirements of
waivers granted for nonavailability of
U.S.-flag vessels.
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*
(5)(i) In accordance with 10 U.S.C.
2631(d), contracting officers shall
exercise appropriate contractual rights
and remedies against contractors who
fail to comply. Such remedies may
include the determination that a
contractor is ineligible for award of
future contracts, termination of an
existing contract, or suspension or
debarment of the contractor. Also see
242.1502 regarding assessments of the
contractor’s past performance.
(ii) In the event of a contractor’s
unauthorized use of foreign-flag vessels
in the performance of a contract, the
contracting officer is authorized to
consider an equitable adjustment.
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PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
7. Amend section 252.247–7023—
a. By revising paragraphs (a) and (d);
b. In paragraph (e) introductory text
by revising the second sentence;
■ c. By revising paragraph (e)(7);
■ d. In paragraph (f)(10) by removing
‘‘the steamship company’’ and adding
‘‘the carrier’’ in its place;
■ e. In paragraph (g)(3) by removing
‘‘had the written consent of the
Contracting Officer’’ and adding ‘‘had
received a prior-approved waiver for
U.S.-flag vessels’’ in its place;
■ f. In paragraph (g)(4) by removing ‘‘of
the Contracting Officer’’ and adding ‘‘of
DoD’’ in its place;
■ g. In Alternate I—
■ i. By revising paragraphs (a) and (d);
■ ii. In paragraph (e) introductory text
by revising the second sentence;
■ iii. By revising paragraph (e)(7);
■ iv. In paragraph (f)(10) by removing
‘‘steamship company’’ and adding ‘‘the
carrier’’ in its place;
■ v. In paragraph (g)(3) by removing
‘‘had the written consent of the
Contracting Officer’’ and adding ‘‘had
received a prior-approved waiver for
U.S.-flag vessels’’ in its place; and
■ vi. In paragraph (g)(4) by removing ‘‘of
the Contracting Officer’’ and adding ‘‘of
DoD’’ in its place; and
■ h. In Alternate II—
■ i. By revising paragraphs (a) and (d);
■ ii. In paragraph (e) introductory text
by revising the second sentence;
■ iii. By revising paragraph (e)(7);
■ iv. In paragraph (f)(10) by removing
‘‘steamship company’’ and adding ‘‘the
carrier’’ in its place;
■ v. In paragraph (g)(3) by removing
‘‘had the written consent of the
Contracting Officer’’ and adding ‘‘had
received a prior-approved waiver for
U.S.-flag vessels’’ in its place; and
■ vi. In paragraph (g)(4) by removing ‘‘of
the Contracting Officer’’ and adding ‘‘of
DoD’’ in its place.
The revisions read as follows:
■
■
■
252.247–7023
by Sea.
Transportation of Supplies
*
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(a) Definitions. As used in this
clause—
Foreign-flag vessel means any vessel
that is not a U.S.-flag vessel.
Ocean transportation means any
water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the
like outside the internal waters of the
United States as defined in 33 CFR 2.24.
Subcontractor means a supplier,
materialman, distributor, or vendor at
any level below the prime contractor
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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 supplies that are
clearly identifiable for eventual use by
or owned by DoD at the time of
transportation by sea, or are otherwise
transported by DoD, regardless of
ownership or use by DoD. An item is
clearly identifiable for eventual use by
DoD if, for example, the contract
documentation contains a reference to a
DoD contract number or a military
destination.
U.S.-flag vessel means either a vessel
belonging to the United States or a
vessel of the United States as that term
is defined in 46 U.S.C. 116.
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*
*
(d) The Contractor and its
subcontractors may request, via the
Contracting Officer, a waiver of the
requirement to use a U.S.-flag vessel, or
identification of any available U.S.-flag
vessels, if the Contractor or a
subcontractor sufficiently explains
that—
(1) U.S.-flag vessels are not available
at a fair and reasonable rate for
commercial vessels of the United States;
or
(2) U.S.-flag vessels are otherwise not
available.
(e) * * * The Contracting Officer will
process requests submitted after such
date(s) as expeditiously as possible,
however, if a DoD waiver is not
approved prior to the shipper’s sailing
date, this will not of itself constitute a
compensable delay under this or any
other clause of this contract.* * *
*
*
*
*
*
(7) A documented description of
current, diligent 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 quotes will
suffice for this purpose. Copies of
telephone notes, emails, and other
relevant communications will otherwise
be considered for this purpose.
*
*
*
*
*
Alternate I.* * *
(a) Definitions. As used in this
clause—
Foreign-flag vessel means any vessel
that is not a U.S.-flag vessel.
Ocean transportation means any
water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the
like outside the internal waters of the
United States as defined in 33 CFR 2.24.
Subcontractor means a supplier,
materialman, distributor, or vendor at
any level below the prime contractor
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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations
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 supplies that are
clearly identifiable for eventual use by
or owned by DoD at the time of
transportation by sea, or are otherwise
transported by DoD, regardless of
ownership or use by DoD. An item is
clearly identifiable for eventual use by
DoD if, for example, the contract
documentation contains a reference to a
DoD contract number or a military
destination.
U.S.-flag vessel means either a vessel
belonging to the United States or a
vessel of the United States as that term
is defined in 46 U.S.C. 116.
*
*
*
*
*
(d) The Contractor and its
subcontractors may request, via the
Contracting Officer, a waiver of the
requirement to use a U.S.-flag vessel, or
identification of any available U.S.-flag
vessels, if the Contractor or a
subcontractor sufficiently explains
that—
(1) U.S.-flag vessels are not available
at a fair and reasonable rate for
commercial vessels of the United States;
or
(2) U.S.-flag vessels are otherwise not
available.
(e) * * * The Contracting Officer will
process requests submitted after such
date(s) as expeditiously as possible,
however, if a DoD waiver is not
approved prior to the shipper’s sailing
date, this will not of itself constitute a
compensable delay under this or any
other clause of this contract.* * *
*
*
*
*
*
(7) A documented description of
current, diligent 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 quotes will
suffice for this purpose. Copies of
telephone notes, emails, and other
relevant communications will otherwise
be considered for this purpose.
*
*
*
*
*
Alternate II.* * *
(a) Definitions. As used in this
clause—
Foreign-flag vessel means any vessel
that is not a U.S.-flag vessel.
Ocean transportation means any
water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the
like outside the internal waters of the
United States as defined in 33 CFR 2.24.
Subcontractor means a supplier,
materialman, distributor, or vendor at
any level below the prime contractor
VerDate Sep<11>2014
17:15 Sep 25, 2024
Jkt 262001
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 supplies that are
clearly identifiable for eventual use by
or owned by DoD at the time of
transportation by sea, or are otherwise
transported by DoD, regardless of
ownership or use by DoD. An item is
clearly identifiable for eventual use by
DoD if, for example, the contract
documentation contains a reference to a
DoD contract number or a military
destination.
U.S.-flag vessel means either a vessel
belonging to the United States or a
vessel of the United States as that term
is defined in 46 U.S.C. 116.
*
*
*
*
*
(d) The Contractor and its
subcontractors may request, via the
Contracting Officer, a waiver of the
requirement to use a U.S.-flag vessel, or
identification of any available U.S.-flag
vessels, if the Contractor or a
subcontractor sufficiently explains
that—
(1) U.S.-flag vessels are not available
at a fair and reasonable rate for
commercial vessels of the United States;
or
(2) U.S.-flag vessels are otherwise not
available.
(e) * * * The Contracting Officer will
process requests submitted after such
date(s) as expeditiously as possible,
however, if a DoD waiver is not
approved prior to the shipper’s sailing
date, this will not of itself constitute a
compensable delay under this or any
other clause of this contract.* * *
(7) A documented description of
current, diligent 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 quotes will
suffice for this purpose. Copies of
telephone notes, emails, and other
relevant communications will otherwise
be considered for this purpose.
*
*
*
*
*
■ 8. Revise section 252.247–7025 to
read as follows:
252.247–7025
Reflagging or Repair Work.
As prescribed in 247.574(b), use the
following clause:
Reflagging or Repair Work (OCT 2024)
(a) Definitions. As used in this clause—
Corrective and preventive maintenance or
repair means—
(1) Maintenance or repair actions
performed as a result of a failure in order to
return or restore equipment to acceptable
performance levels; and
PO 00000
Frm 00008
Fmt 4701
Sfmt 9990
(2) Scheduled maintenance or repair
actions to prevent or discover functional
failures.
Reflagging or repair work means work
performed on a vessel—
(1) To enable the vessel to meet applicable
standards to become a vessel of the United
States; or
(2) To convert the vessel to a more useful
military configuration.
(b) Requirement. Unless DoD waives this
requirement, the Contractor shall ensure
performance of the following in the United
States or its outlying areas:
(1) Reflagging or repair work, if the
reflagging or repair work is performed—
(i) On a vessel for which the Contractor
submitted an offer in response to the
solicitation for this contract; and
(ii) Prior to acceptance of the vessel by the
Government.
(2) Corrective and preventive maintenance
or repair work for the duration of the
contract, to the greatest extent practicable.
(End of clause)
9. Amend section 252.247–7026—
a. By revising the provision date;
■ b. In paragraph (a) by revising the
definition of ‘‘Covered vessel’’ and
removing the definition of ‘‘Shipyard’’;
■ c. In paragraph (b) and paragraph (c)
introductory text by removing ‘‘offeror’’
and adding ‘‘Offeror’’ in its place;
■ d. In paragraph (e) by removing
‘‘Section 1017 of Public Law 109–364’’
and adding ‘‘section 1017 of Public Law
109–364 (10 U.S.C. 2631 note)’’ in its
place.
The revisions read as follows:
■
■
252.247–7026 Evaluation Preference for
Use of Domestic Shipyards—Applicable to
Acquisition of Carriage by Vessel for DoD
Cargo in the Coastwise or Noncontiguous
Trade.
*
*
*
*
*
Evaluation Preference for Use of
Domestic Shipyards—Applicable To
Acquisition of Carriage by Vessel for
DOD Cargo in the Coastwise or
Noncontiguous Trade (OCT 2024)
(a) * * *
Covered vessel means a vessel—
(1) Owned, operated, or controlled by the
offeror; and
(2) Qualified to engage in the carriage of
cargo in the coastwise or noncontiguous
trade under 46 U.S.C. 12112 and 50501 and
46 U.S.C. chapter 551.
*
*
*
*
*
[FR Doc. 2024–21092 Filed 9–25–24; 8:45 am]
BILLING CODE 6820–FR–P
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[Federal Register Volume 89, Number 187 (Thursday, September 26, 2024)]
[Rules and Regulations]
[Pages 78992-78996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21092]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 242, 247, and 252
[Docket DARS-2024-0013]
RIN 0750-AL38
Defense Federal Acquisition Regulation Supplement: Preference for
United States Vessels in Transporting Supplies By Sea (DFARS Case 2021-
D020)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
William M. (Mac) Thornberry National Defense Authorization Act for
Fiscal Year 2021 intended to increase compliance with military cargo
preference requirements.
[[Page 78993]]
DATES: Effective October 1, 2024.
FOR FURTHER INFORMATION CONTACT: David Johnson, telephone 202-913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 89 FR
31681 on April 25, 2024, to implement section 1024 of the William M.
(Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2021 (Pub. L. 116-283). Section 1024 amends 10 U.S.C. 2631
to, among other things, clarify circumstances in which DoD may seek a
waiver from the basic requirement for DoD supplies to be transported by
seas in either vessels belonging to the United States or vessels of the
United States. One respondent 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, as follows:
A. Summary of Significant Changes From the Proposed Rule
There are no changes from the proposed rule resulting from the
public comment.
B. Analysis of Public Comments
Comment: The respondent suggested the rule should be changed to
include a certification requirement in paragraph (f) of the clause at
DFARS 252.242-7023, including alternates, in place of a representation.
The respondent further suggested the clause at DFARS 252.247-7025
should similarly include a certification requirement. The respondent
expressed that these changes would help ensure full compliance with
U.S.-flag vessel preference requirements.
Response: As expressed at DFARS 201.107, 41 U.S.C. 1304 prohibits
new certification requirements in the DFARS unless either the
certification is specifically imposed by statute or an approved
justification exists for the certification. Neither condition is met in
this case. Therefore, DoD declines the respondent's suggestion to add
certification requirements to the clauses at DFARS 252.242-7023 and
252.247-7025.
C. Other Changes
Two changes are made to the final rule. First, the final rule
removes the definition of ``foreign shipyard'' from DFARS 247.501,
because that definition is not used in subpart 247.5. Secondly, the
final rule removes the change included in the proposed rule to the
definition of ``foreign shipyard'' in the solicitation provision at
DFARS 252.247-7026, because this change created incongruity with the
existing definition of ``U.S. shipyard'' in the provision.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This final rule amends the clauses at DFARS 252.247-7023, including
alternates, 252.247-7025, and the provision at 252.247-7026. However,
this final rule does not impose any new requirements on contracts at or
below the SAT, for commercial products including COTS items, or for
commercial services. The clauses and the provision will continue to
apply to acquisitions at or below the SAT, to acquisitions of
commercial products including COTS items, and to acquisitions of
commercial services.
IV. Expected Impact of the Rule
This rule is intended to increase compliance with military cargo
preference requirements, as amended under this rule in accordance with
section 1024 of the NDAA for FY 2021. These changes are largely
clarifying in nature, including clarification of operational
requirements internal to DoD. Therefore, this rule is not expected to
have a significant impact on the public.
V. 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, as amended.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
Under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VII. 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:
DoD is amending the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 1024 of the William M. (Mac)
Thornberry National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2021. Section 1024 modifies 10 U.S.C. 2631 to add a requirement to
ensure contractor compliance with 10 U.S.C. 2631 and otherwise updates
the listed circumstances in which DoD may waive the requirement that
DoD supplies be transported by sea in vessels belonging to the United
States or vessels of the United States. It also modifies the
requirement for reflagging or repair work in the United States for
vessels used under time-charter contracts.
The public comment raised no issue in response to the initial
regulatory flexibility analysis.
This rule will apply to small entities that have contracts that
include DFARS clauses 252.247-7023, Transportation of Supplies by Sea,
and 252.247-7025, Reflagging or Repair Work. DoD obtained data from the
Procurement Business Intelligence Service for all contracts and
modifications that include DFARS clauses 252.247-7023 and 252.247-7025
for fiscal years 2020 through 2022. DoD awarded on average 649,016
contract actions per year that included either DFARS clause 252.247-
7023 or 252.247-7025, or both, to 31,665 unique entities, of which
approximately 363,260 contract awards (56 percent) were made to 21,737
unique small entities (69 percent).
This rule does not impose any new reporting, recordkeeping, or
other compliance requirements.
There are no known alternatives that would accomplish the stated
objectives of the applicable statute.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this
final rule. However, these changes to the DFARS do not impose
additional
[[Page 78994]]
information collection requirements to the paperwork burden previously
approved by the Office of Management and Budget (OMB) under OMB Control
Number 0704-0245, titled: Defense Federal Acquisition Regulation
Supplement (DFARS) Part 247, Transportation and Related Clauses.
List of Subjects in 48 CFR Parts 242, 247, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System amends 48 CFR
parts 242, 247, and 252 as follows:
0
1. The authority citation for parts 242, 247, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
2. Amend section 242.1502--
0
a. In paragraph (g)(i) by removing the word ``and'' at the end of the
paragraph;
0
b. In paragraph (g)(ii) by removing the period at the end of the
paragraph and adding ``; and'' in its place; and
0
c. By adding paragraph (g)(iii).
The addition reads as follows:
242.1502 Policy.
(g) * * *
(iii) In accordance with 10 U.S.C. 2631(d), shall include
information on contractor compliance with requirements of the clause at
252.247-7023, Transportation of Supplies by Sea (see 10 U.S.C. 2631(a),
(b), and (c)).
PART 247--TRANSPORTATION
0
3. Amend section 247.570--
0
a. By revising paragraph (a)(1);
0
b. In paragraph (a)(2):
0
i. By removing ``(Pub. L. 109-364)'' and adding ``(Pub. L. 109-364) (10
U.S.C. 2631 note)'' in its place; and
0
ii. By removing the word ``and'' at the end of the paragraph;
0
c. In paragraph (a)(3) by removing ``(Pub. L. 110-417)'' and ``chapter
121, title 46 U.S.C.'' and adding ``(Pub. L. 110-417) (10 U.S.C.
chapter 257 note)'' and ``46 U.S.C. chapter 121; and'' in their places,
respectively;
0
d. By adding paragraph (a)(4);
0
e. In paragraph (b) by removing ``46 U.S.C. 1241(b)'' and adding ``46
U.S.C. chapter 553'' in its place; and
0
f. By revising paragraph (c).
The revisions and addition read as follows:
247.570 Scope.
* * * * *
(a) * * *
(1) The Military Cargo Preference Act of 1904 (``the 1904 Act''),
10 U.S.C. 2631, which applies to the ocean transportation of cargo
owned by, destined for use by, or otherwise transported by DoD;
* * * * *
(4) Section 1024 of the National Defense Authorization Act for
Fiscal Year 2021 (Pub. L. 116-283), which updates the listed
circumstances where DoD may waive the requirement that DoD supplies be
transported by sea in vessels belonging to the United States or vessels
of the United States, and it modifies the requirement for reflagging or
repair work in the United States for vessels used under time-charter
contracts.
* * * * *
(c) Does not implement--
(1) Section 27 of the Merchant Marine Act, 1920 (46 U.S.C. chapters
121 and 552), commonly known as the ``Jones Act,'' for the application
of coastwise trade; or
(2) Waivers thereof pursuant to 46 U.S.C. 501.
0
4. Revise section 247.571 to read as follows:
247.571 Definitions.
As used in this subpart--
Corrective and preventive maintenance or repair means--
(1) Maintenance or repair actions performed as a result of a
failure in order to return or restore equipment to acceptable
performance levels; and
(2) Scheduled maintenance or repair actions to prevent or discover
functional failures.
Covered vessel means a vessel--
(1) Owned, operated, or controlled by the offeror; and
(2) Qualified to engage in the carriage of cargo in the coastwise
or noncontiguous trade under 46 U.S.C. 12112 and 50501 and 46 U.S.C.
chapter 551.
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the like outside the internal
waters of the United States (as defined in 33 CFR 2.24).
Overhaul, repair, and maintenance work means work requiring a
shipyard period greater than or equal to 5 calendar days.
Reflagging or repair work means work performed on a vessel--
(1) To enable the vessel to meet applicable standards to become a
vessel of the United States; or
(2) To convert the vessel to a more useful military configuration.
Supplies means supplies that are clearly identifiable for eventual
use by or owned by DoD at the time of transportation by sea, or are
otherwise transported by DoD, regardless of ownership or use by DoD. An
item is clearly identifiable for eventual use by DoD if, for example,
the contract documentation contains a reference to a DoD contract
number or a military destination.
U.S.-flag vessel means either a vessel belonging to the United
States or a vessel of the United States as that term is defined in 46
U.S.C. 116.
0
5. Revise section 247.572 to read as follows:
247.572 Policy.
(a) In accordance with 10 U.S.C. 2631(a), DoD contractors shall
transport supplies exclusively on U.S.-flag vessels. In accordance with
10 U.S.C. 2631(b), DoD (see 247.573(a)) may waive this requirement when
a U.S.-flag vessel--
(1) Is not available at a fair and reasonable rate for commercial
vessels of the United States; or
(2) Is not otherwise available.
(b) Contracts must provide for the use of vessels belonging to the
United States when security classifications prohibit the use of other
than vessels belonging to the United States.
(c) In accordance with 10 U.S.C. 2631(c)--
(1) Any vessel used under a time charter contract for the
transportation of supplies under this section shall have the following
work performed in the United States or its outlying areas:
(i) Reflagging or repair work, if the reflagging or repair work is
performed--
(A) On a vessel for which the contractor submitted an offer in
response to the solicitation for the contract; and
(B) Prior to acceptance of the vessel by the Government.
(ii) Corrective and preventive maintenance or repair work for the
duration of the contract, to the greatest extent practicable.
(2) The Secretary of Defense may waive this requirement if the
Secretary determines that such waiver is critical to the national
security of the United States. In accordance with 10 U.S.C. 2631(c)(2),
DoD shall immediately submit, in writing, a notice to the congressional
committees listed at 10 U.S.C. 2631(e) of such a waiver and the reason
for the waiver.
[[Page 78995]]
(d) In accordance with section 1017 of the National Defense
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), when
obtaining carriage requiring a covered vessel, the contracting officer
shall consider the extent to which offerors have had overhaul, repair,
and maintenance work for covered vessels performed in shipyards located
in the United States or Guam.
(e) In accordance with section 3504 of the National Defense
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417), DoD may not
award, renew or extend, or exercise an option under a charter of, or
contract for carriage of cargo by, a U.S.-flag vessel documented under
46 U.S.C. chapter 121, unless the contract contains the clause at
252.247-7027.
0
6. Amend section 247.573--
0
a. By revising paragraphs (a) and (b)(3);
0
b. In paragraph (b)(4) by removing ``Procedures are provided at'' and
adding ``Follow the procedures at'' in its place; and
0
c. By adding paragraph (b)(5).
The revisions and addition read as follows:
247.573 General.
(a) Delegated authority. Pursuant to 10 U.S.C. 2631(b)(2), the
Secretary of Defense has delegated (see PGI 247.573) the authority to
make determinations either that a U.S.-flag vessel is not available at
a fair and reasonable rate for commercial vessels of the United States
or is otherwise not available to--
(1) The Commander, United States Transportation Command; and
(2) The Secretary of the Navy.
(b) * * *
(3) See PGI 247.573(b)(3) for agency and department procedures
relating to annual reporting requirements of waivers granted for
nonavailability of U.S.-flag vessels.
* * * * *
(5)(i) In accordance with 10 U.S.C. 2631(d), contracting officers
shall exercise appropriate contractual rights and remedies against
contractors who fail to comply. Such remedies may include the
determination that a contractor is ineligible for award of future
contracts, termination of an existing contract, or suspension or
debarment of the contractor. Also see 242.1502 regarding assessments of
the contractor's past performance.
(ii) In the event of a contractor's unauthorized use of foreign-
flag vessels in the performance of a contract, the contracting officer
is authorized to consider an equitable adjustment.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Amend section 252.247-7023--
0
a. By revising paragraphs (a) and (d);
0
b. In paragraph (e) introductory text by revising the second sentence;
0
c. By revising paragraph (e)(7);
0
d. In paragraph (f)(10) by removing ``the steamship company'' and
adding ``the carrier'' in its place;
0
e. In paragraph (g)(3) by removing ``had the written consent of the
Contracting Officer'' and adding ``had received a prior-approved waiver
for U.S.-flag vessels'' in its place;
0
f. In paragraph (g)(4) by removing ``of the Contracting Officer'' and
adding ``of DoD'' in its place;
0
g. In Alternate I--
0
i. By revising paragraphs (a) and (d);
0
ii. In paragraph (e) introductory text by revising the second sentence;
0
iii. By revising paragraph (e)(7);
0
iv. In paragraph (f)(10) by removing ``steamship company'' and adding
``the carrier'' in its place;
0
v. In paragraph (g)(3) by removing ``had the written consent of the
Contracting Officer'' and adding ``had received a prior-approved waiver
for U.S.-flag vessels'' in its place; and
0
vi. In paragraph (g)(4) by removing ``of the Contracting Officer'' and
adding ``of DoD'' in its place; and
0
h. In Alternate II--
0
i. By revising paragraphs (a) and (d);
0
ii. In paragraph (e) introductory text by revising the second sentence;
0
iii. By revising paragraph (e)(7);
0
iv. In paragraph (f)(10) by removing ``steamship company'' and adding
``the carrier'' in its place;
0
v. In paragraph (g)(3) by removing ``had the written consent of the
Contracting Officer'' and adding ``had received a prior-approved waiver
for U.S.-flag vessels'' in its place; and
0
vi. In paragraph (g)(4) by removing ``of the Contracting Officer'' and
adding ``of DoD'' in its place.
The revisions read as follows:
252.247-7023 Transportation of Supplies by Sea.
* * * * *
(a) Definitions. As used in this clause--
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the like outside the internal
waters of the United States as defined in 33 CFR 2.24.
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 supplies that are clearly identifiable for eventual
use by or owned by DoD at the time of transportation by sea, or are
otherwise transported by DoD, regardless of ownership or use by DoD. An
item is clearly identifiable for eventual use by DoD if, for example,
the contract documentation contains a reference to a DoD contract
number or a military destination.
U.S.-flag vessel means either a vessel belonging to the United
States or a vessel of the United States as that term is defined in 46
U.S.C. 116.
* * * * *
(d) The Contractor and its subcontractors may request, via the
Contracting Officer, a waiver of the requirement to use a U.S.-flag
vessel, or identification of any available U.S.-flag vessels, if the
Contractor or a subcontractor sufficiently explains that--
(1) U.S.-flag vessels are not available at a fair and reasonable
rate for commercial vessels of the United States; or
(2) U.S.-flag vessels are otherwise not available.
(e) * * * The Contracting Officer will process requests submitted
after such date(s) as expeditiously as possible, however, if a DoD
waiver is not approved prior to the shipper's sailing date, this will
not of itself constitute a compensable delay under this or any other
clause of this contract.* * *
* * * * *
(7) A documented description of current, diligent 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 quotes will suffice for this purpose. Copies of telephone
notes, emails, and other relevant communications will otherwise be
considered for this purpose.
* * * * *
Alternate I.* * *
(a) Definitions. As used in this clause--
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the like outside the internal
waters of the United States as defined in 33 CFR 2.24.
Subcontractor means a supplier, materialman, distributor, or vendor
at any level below the prime contractor
[[Page 78996]]
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 supplies that are clearly identifiable for eventual
use by or owned by DoD at the time of transportation by sea, or are
otherwise transported by DoD, regardless of ownership or use by DoD. An
item is clearly identifiable for eventual use by DoD if, for example,
the contract documentation contains a reference to a DoD contract
number or a military destination.
U.S.-flag vessel means either a vessel belonging to the United
States or a vessel of the United States as that term is defined in 46
U.S.C. 116.
* * * * *
(d) The Contractor and its subcontractors may request, via the
Contracting Officer, a waiver of the requirement to use a U.S.-flag
vessel, or identification of any available U.S.-flag vessels, if the
Contractor or a subcontractor sufficiently explains that--
(1) U.S.-flag vessels are not available at a fair and reasonable
rate for commercial vessels of the United States; or
(2) U.S.-flag vessels are otherwise not available.
(e) * * * The Contracting Officer will process requests submitted
after such date(s) as expeditiously as possible, however, if a DoD
waiver is not approved prior to the shipper's sailing date, this will
not of itself constitute a compensable delay under this or any other
clause of this contract.* * *
* * * * *
(7) A documented description of current, diligent 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 quotes will suffice for this purpose. Copies of telephone
notes, emails, and other relevant communications will otherwise be
considered for this purpose.
* * * * *
Alternate II.* * *
(a) Definitions. As used in this clause--
Foreign-flag vessel means any vessel that is not a U.S.-flag
vessel.
Ocean transportation means any water-borne transportation aboard a
ship, vessel, boat, barge, ferry, or the like outside the internal
waters of the United States as defined in 33 CFR 2.24.
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 supplies that are clearly identifiable for eventual
use by or owned by DoD at the time of transportation by sea, or are
otherwise transported by DoD, regardless of ownership or use by DoD. An
item is clearly identifiable for eventual use by DoD if, for example,
the contract documentation contains a reference to a DoD contract
number or a military destination.
U.S.-flag vessel means either a vessel belonging to the United
States or a vessel of the United States as that term is defined in 46
U.S.C. 116.
* * * * *
(d) The Contractor and its subcontractors may request, via the
Contracting Officer, a waiver of the requirement to use a U.S.-flag
vessel, or identification of any available U.S.-flag vessels, if the
Contractor or a subcontractor sufficiently explains that--
(1) U.S.-flag vessels are not available at a fair and reasonable
rate for commercial vessels of the United States; or
(2) U.S.-flag vessels are otherwise not available.
(e) * * * The Contracting Officer will process requests submitted
after such date(s) as expeditiously as possible, however, if a DoD
waiver is not approved prior to the shipper's sailing date, this will
not of itself constitute a compensable delay under this or any other
clause of this contract.* * *
(7) A documented description of current, diligent 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 quotes will suffice for this purpose. Copies of telephone
notes, emails, and other relevant communications will otherwise be
considered for this purpose.
* * * * *
0
8. Revise section 252.247-7025 to read as follows:
252.247-7025 Reflagging or Repair Work.
As prescribed in 247.574(b), use the following clause:
Reflagging or Repair Work (OCT 2024)
(a) Definitions. As used in this clause--
Corrective and preventive maintenance or repair means--
(1) Maintenance or repair actions performed as a result of a
failure in order to return or restore equipment to acceptable
performance levels; and
(2) Scheduled maintenance or repair actions to prevent or
discover functional failures.
Reflagging or repair work means work performed on a vessel--
(1) To enable the vessel to meet applicable standards to become
a vessel of the United States; or
(2) To convert the vessel to a more useful military
configuration.
(b) Requirement. Unless DoD waives this requirement, the
Contractor shall ensure performance of the following in the United
States or its outlying areas:
(1) Reflagging or repair work, if the reflagging or repair work
is performed--
(i) On a vessel for which the Contractor submitted an offer in
response to the solicitation for this contract; and
(ii) Prior to acceptance of the vessel by the Government.
(2) Corrective and preventive maintenance or repair work for the
duration of the contract, to the greatest extent practicable.
(End of clause)
0
9. Amend section 252.247-7026--
0
a. By revising the provision date;
0
b. In paragraph (a) by revising the definition of ``Covered vessel''
and removing the definition of ``Shipyard'';
0
c. In paragraph (b) and paragraph (c) introductory text by removing
``offeror'' and adding ``Offeror'' in its place;
0
d. In paragraph (e) by removing ``Section 1017 of Public Law 109-364''
and adding ``section 1017 of Public Law 109-364 (10 U.S.C. 2631 note)''
in its place.
The revisions read as follows:
252.247-7026 Evaluation Preference for Use of Domestic Shipyards--
Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the
Coastwise or Noncontiguous Trade.
* * * * *
Evaluation Preference for Use of Domestic Shipyards--Applicable To
Acquisition of Carriage by Vessel for DOD Cargo in the Coastwise or
Noncontiguous Trade (OCT 2024)
(a) * * *
Covered vessel means a vessel--
(1) Owned, operated, or controlled by the offeror; and
(2) Qualified to engage in the carriage of cargo in the
coastwise or noncontiguous trade under 46 U.S.C. 12112 and 50501 and
46 U.S.C. chapter 551.
* * * * *
[FR Doc. 2024-21092 Filed 9-25-24; 8:45 am]
BILLING CODE 6820-FR-P
