80 FR 27266 - Commerce Acquisition Regulation (CAR); Waiver of Bond Requirement for Contracts To Repair, Alter or Construct Certain Research and Survey Vessels for the National Oceanic and Atmospheric Administration
DEPARTMENT OF COMMERCE Federal Register Volume 80, Issue 92 (May 13, 2015)
Federal Register Volume 80, Issue 92 (May 13, 2015)
| Page Range | 27266-27268 | |
| FR Document | 2015-10620 |
[Federal Register Volume 80, Number 92 (Wednesday, May 13, 2015)] [Rules and Regulations] [Pages 27266-27268] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-10620] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE 48 CFR Parts 1328 and 1352 [Document No.: 150129094-5094-01] RIN 0605-AA37 Commerce Acquisition Regulation (CAR); Waiver of Bond Requirement for Contracts To Repair, Alter or Construct Certain Research and Survey Vessels for the National Oceanic and Atmospheric Administration AGENCY: Department of Commerce (Commerce). ACTION: Interim final rule. ----------------------------------------------------------------------- SUMMARY: We, the Department of Commerce (Commerce), issue an interim final rule to provide procedures for waiving performance and payment bonds required under U.S. law, associated with contracts for the repair, alteration and construction of the National Atmospheric and Oceanographic Administration's (NOAA) fleet of research and survey vessels operated by the Office of Marine and Aviation Operations (OMAO). The regulations implement the authority provided to the Secretary of Commerce in Section 111 of the ``Department of Commerce Appropriations Act, 2015,'' and comport with language in the Appropriation Committee's report instructing NOAA to promulgate regulations prior to implementing the waiver authority. This final rule amends the CAR by inserting a section and amending a part to add the contract language for the waivers. DATES: This action is effective on May 13, 2015. However, Commerce will accept comments on this interim final rule until June 12, 2015. ADDRESSES: The final rule is available at www.regulations.gov, or by contacting the Department of Commerce: Room 1854, 1401 Constitution Avenue NW., Washington, DC 20230. You may submit comments on this interim final rule on regulations.gov, search for RIN 0605-AA37, click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. The Department of Commerce will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Virna Winters, 202-482-3483. SUPPLEMENTARY INFORMATION: Background Section 111 of the ``Department of Commerce Appropriations Act, 2015,'' Division B, Title I of Public Law 113-235 (Dec. 16, 2014) (Appropriations Act) granted the Secretary of Commerce the authority to waive the performance and payment bond requirement under 40 U.S.C. 3131 et seq., for the construction, alteration, or repair of ships in NOAA's fleet of vessels. 40 U.S.C. 3131 et seq. requires prime contractors to furnish performance and payment bonds for contracts in excess of $150,000, for the construction, alteration, or repair of any public building or public work of the Federal government including ship construction, alteration, and repairs. NOAA's Office of Marine and Aviation Operations (OMAO) operates a fleet of hydrographic survey, oceanographic research and fisheries survey vessels, consistent with its mission to perform offshore and deep-sea survey operations, coastal mapping, oceanographic research, and other functions that ensures public safety and the preservation of the Nation's property and natural resources. The waiver authority will align the Commerce's authorities with those of other Federal agencies, including the U.S. Department of the Navy and the U.S. Coast Guard, and is expected to address significant difficulties NOAA has experienced in obtaining competitive bids for ship repairs. The authorization for this waiver lasts as long as it is included in appropriations measures, or authorizing legislation, enacted by Congress. Commerce publishes this action to amend the CAR to provide guidance for implementing the authority granted to the Secretary of Commerce in the Appropriations Act. The following is a summary of the procedures which will be in the amendment to the CAR. NOAA ships enter into either a dry docking or dockside repair period every fiscal year, typically in the first or second quarter of the fiscal year. Each vessel is equipped with highly advanced survey instruments, state of the art electronics, computers, and navigational and communications systems, which must be kept operational to ensure the safety of the crew and the ship's schedule. It also is often necessary for emergency repairs to [[Page 27267]] be made to NOAA's vessels without delay for safety purposes and to ensure that the ships can carry on their missions involving the collection of mission sensitive data, as well as immediate response capabilities for extreme weather-related events involving hurricanes. As noted above, prime contractors performing those maintenance activities on NOAA's vessels have been required to provide performance and payment bonds for that work. These bonding requirements have placed an undue burden on smaller shipyards that have limited financial resources and have hindered their ability to bid on NOAA's requirements. This has resulted in inadequate competition for repairs to the Atlantic and Pacific fleets, delays to ship schedules, inferior quality and increased costs to the Government. The Appropriations Act gives the Secretary of Commerce the authority to waive the bonding requirement for the alteration, repair and construction of NOAA's vessels to encourage contractors, especially small shipyards, to bid on NOAA's vessel projects. In order to implement the authority in an efficient manner and consistent with the congressional mandate, this action allows NOAA to waive bond requirements for ship construction, alteration and repairs. Contracting Officers (CO) may not issue solicitations waiving the requirements for bonds until the waiver request is approved. The CO will retain the discretion to require bonds if the complexity of the work and the level of competition in the region warrant them. All solicitations for ship construction, alteration, or repairs where bonds are not required will include a provision informing potential offerors that the failure to pay subcontractors could adversely affect their past performance and have an impact on their eligibility for award of future contracts. Contractors will provide written confirmation that all subcontractors have been properly paid prior to submission of final invoice. Classification Executive Orders 12866 and 13563: This interim final rule has been drafted according to the requirements of Executive Orders 12866 and 13563, and has been determined to be ``not significant'' under those orders. The Department of Commerce finds good cause under 5 U.S.C. 553(b)(3) and (d) to waive the notice and comment and 30-day delay in effectiveness periods for this action. Congress granted the Secretary of Commerce the authority to waive the bonding requirements involved in this action in the Appropriations Act. That authority lasts the duration of fiscal year 2015 and carries through any years in which Congress reauthorizes the authority. Because the waiver authority may be of limited duration, it is impracticable and contrary to the public's interest to submit this rule to the ordinary notice and comment timeframe. Doing so would restrict the time limit for the authority, contrary to Congressional intent, and thereby reduce or eliminate the benefits to the public and to the Government of waiving the bonding requirements. Use of the waiver will benefit the public by allowing greater competition for shipbuilding and ship repair activities, and helps NOAA's vessels maintain working operation for more days out of the year. Because allowing public comment and delaying the effectiveness of this rule for 30 days is impracticable and contrary to the public's interest, Commerce hereby waives those requirements. Although this interim rule will become effective upon publication in the Federal Register, Commerce is nonetheless seeking public comments on this rule and plans on publishing a final rule in the future that takes into account and responds to public comments. Regulatory Flexibility Act: Because notice and comment under 5 U.S.C. 553 are not required for this rule, the requirements of the Regulatory Flexibility Act do not apply. 5 U.S.C. 603. Accordingly, no regulatory flexibility analysis is required, and none has been prepared. Paperwork Reduction Act (PRA): This rule does not impose any new information collections subject to review and approval by the Office of Management and Budget (OMB) under the PRA. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects 48 CFR Part 1328 Government procurement, Insurance, Reporting and recordkeeping requirements, Surety bonds. 48 CFR Part 1352 Government procurement, Matrix, Reporting and recordkeeping requirements. Ellen Herbst, Chief Financial Officer and Assistant Secretary of Administration, U.S. Department of Commerce. For the reasons set out in the preamble, the Department of Commerce amends 48 CFR parts 1328 and 1352 as follows: PART 1328--BONDS AND INSURANCE 0 1. The authority citation for part 1328 continues to read as follows: Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304. 0 2. Add sections 1328.102, 1328.102-1, 1328.102-2, and 1328.102-3 to subpart 1328.1 to read as follows: 1328.102 Waiver of performance and payment bonds for contracts involving the construction, alteration, and repair of NOAA's fleet of vessels. 1328.102-1 Waiver policy. (a) Pursuant to the authority vested in the Secretary of Commerce, the requirements of 40 U.S.C. 3131 through 3133 may be waived by virtue of the authority vested in him or her pursuant to the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, 128 Stat. 2130, Div. B, Title I, Sec. 111 (2014), with respect to contracts for the repair, alteration, and construction of NOAA's hydrographic survey, oceanographic research, and fisheries survey vessels operated by NOAA Office of Marine and Aviation Operations in the Atlantic and Pacific regions including the Pacific Islands. The Department's policy and procedures for use of the waiver authority is set forth in CAM 1328.102. (b) Contracting officers are required to consider any unusual circumstances that may arise in which either payment or performance bonds, or both, will be advantageous to the Government in connection with these contracts prior to issuing solicitations. 1328.102-2 Waiver authority. The designee authorized to approve bond waivers is set forth in CAM 1328.102. 1328.102-3 Contract clause. The contracting officer shall insert the clause at 1352.228-77, Contractor Assurance of Subcontractor Payments, in solicitations and contracts when performance and payment bonds are waived. [[Page 27268]] PART 1352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 3. The authority for part 1352 continues to read as follows: Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304. 0 4. Add section 1352.228-77 to subpart 1352.2 to read as follows: 1352.228-77 Contractor assurance of subcontractor payments. As prescribed in 48 CFR 1328.102-3, insert the following clause: Contractor Assurance of Subcontractor Payments May 2015 (a) To protect the interests of subcontractors participating in the performance of this contract, the Government requires the assurance that all monies due to subcontractors is timely and properly made prior to the submission of the contractor's final invoice. (b) By accepting this award, in writing or by performance, the offeror/contractor represents that--it will provide full payment to all subcontractors utilized in the performance of the resultant contract prior to the submission of its final invoice. (c) No later than five (5) days after contract award the contractor shall provide the Contracting Officer with a list of all subcontractors to be utilized in the performance of this contract. The contractor must provide updates to the Contracting Officer throughout the contract, should changes be made. (d) The following shall be completed and provided accordingly: Subcontractor List--Contract No.__________ ---------------------------------------------------------------------------------------------------------------- Subcontractor point of contact with contact Contract line item(s) Applicable trade Name of subcontractor business information (number/e- to which subcontract (electrical, mail) work is tied mechanical, etc.) ---------------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------- (e) Reports by subcontractors of delayed or non-payment during the performance of the contract may impact the Government's continued payment of contractor invoices on a percentage of completion basis. (CAR clause, 1352.271-71, Method of Payment and Invoicing Instructions for Ship Repair). (f) The contractor shall include the following statement on its final invoice--``By submission of this invoice, assurance is herein provided that all monies due to any and all subcontractors used in the performance of this contract have been paid in full prior to the submission of this final invoice.'' (g) Failure to pay subcontractors could adversely affect the contractor's past performance evaluation for this contract and have a negative impact on its eligibility for future contract awards. (h) The Government may seek any available remedies in the event the contractor fails to comply with the provisions of this clause. [FR Doc. 2015-10620 Filed 5-12-15; 8:45 am] BILLING CODE 3510-03-P
![27266 Federal Register / Vol. 80, No. 92 / Wednesday, May 13, 2015 / Rules and Regulations
read as floors and caps. Table 2 should
be replaced as follows:
TABLE 2—CAPS AND FLOORS ON PROGRAM IMPROVEMENT PLAN IMPROVEMENT FACTORS RELEVANT TO THE STATEWIDE
DATA INDICATORS
Floor Cap
Statewide Data Indicators for Safety Outcome 1:
Maltreatment in Foster Care ............................................................................................................................ 0.904 0.812
Recurrence of Maltreatment ............................................................................................................................. 0.951 0.902
Statewide Data Indicators for Permanency Outcome 1:
Permanency in 12 Months for Children Entering Foster care ......................................................................... 1.031 1.063
Permanency in 12 Months for Children in Foster Care 12 to 23 months ....................................................... 1.046 1.082
Permanency in 12 Months for Children in Foster Care 24 Months or More ................................................... 1.042 1.091
Re-Entry to Foster Care in 12 Months ............................................................................................................. 0.891 0.834
Placement Stability ........................................................................................................................................... 0.959 0.904
Dated: May 5, 2015. DATES: This action is effective on May alteration, or repair of ships in NOAA’s
Mark H. Greenberg, 13, 2015. However, Commerce will fleet of vessels. 40 U.S.C. 3131 et seq.
Acting Assistant Secretary for Children and accept comments on this interim final requires prime contractors to furnish
Families. rule until June 12, 2015. performance and payment bonds for
[FR Doc. 2015–11515 Filed 5–12–15; 8:45 am] ADDRESSES: The final rule is available at contracts in excess of $150,000, for the
BILLING CODE 4184–25–P www.regulations.gov, or by contacting construction, alteration, or repair of any
the Department of Commerce: Room public building or public work of the
1854, 1401 Constitution Avenue NW., Federal government including ship
DEPARTMENT OF COMMERCE Washington, DC 20230. construction, alteration, and repairs.
You may submit comments on this NOAA’s Office of Marine and Aviation
48 CFR Parts 1328 and 1352 interim final rule on regulations.gov, Operations (OMAO) operates a fleet of
search for RIN 0605–AA37, click the hydrographic survey, oceanographic
[Document No.: 150129094–5094–01]
‘‘Comment Now!’’ icon, complete the research and fisheries survey vessels,
RIN 0605–AA37 required fields, and enter or attach your consistent with its mission to perform
comments. offshore and deep-sea survey
Commerce Acquisition Regulation Comments sent by any other method, operations, coastal mapping,
(CAR); Waiver of Bond Requirement to any other address or individual, or oceanographic research, and other
for Contracts To Repair, Alter or received after the end of the comment functions that ensures public safety and
Construct Certain Research and period, may not be considered. All the preservation of the Nation’s property
Survey Vessels for the National comments received are a part of the and natural resources. The waiver
Oceanic and Atmospheric public record and will generally be authority will align the Commerce’s
Administration posted for public viewing on authorities with those of other Federal
AGENCY: Department of Commerce www.regulations.gov without change. agencies, including the U.S. Department
(Commerce). All personal identifying information of the Navy and the U.S. Coast Guard,
(e.g., name, address, etc.) submitted and is expected to address significant
ACTION: Interim final rule.
voluntarily by the sender will be difficulties NOAA has experienced in
SUMMARY: We, the Department of publicly accessible. Do not submit obtaining competitive bids for ship
Commerce (Commerce), issue an interim confidential business information, or repairs. The authorization for this
final rule to provide procedures for otherwise sensitive or protected waiver lasts as long as it is included in
waiving performance and payment information. The Department of appropriations measures, or authorizing
bonds required under U.S. law, Commerce will accept anonymous legislation, enacted by Congress.
associated with contracts for the repair, comments (enter ‘‘N/A’’ in the required Commerce publishes this action to
alteration and construction of the fields if you wish to remain amend the CAR to provide guidance for
National Atmospheric and anonymous). Attachments to electronic implementing the authority granted to
Oceanographic Administration’s comments will be accepted in Microsoft the Secretary of Commerce in the
(NOAA) fleet of research and survey Word or Excel, WordPerfect, or Adobe Appropriations Act. The following is a
vessels operated by the Office of Marine PDF file formats only. summary of the procedures which will
and Aviation Operations (OMAO). The FOR FURTHER INFORMATION CONTACT: be in the amendment to the CAR.
regulations implement the authority Virna Winters, 202–482–3483. NOAA ships enter into either a dry
provided to the Secretary of Commerce SUPPLEMENTARY INFORMATION: docking or dockside repair period every
in Section 111 of the ‘‘Department of fiscal year, typically in the first or
Commerce Appropriations Act, 2015,’’ Background second quarter of the fiscal year. Each
asabaliauskas on DSK5VPTVN1PROD with RULES
and comport with language in the Section 111 of the ‘‘Department of vessel is equipped with highly
Appropriation Committee’s report Commerce Appropriations Act, 2015,’’ advanced survey instruments, state of
instructing NOAA to promulgate Division B, Title I of Public Law 113– the art electronics, computers, and
regulations prior to implementing the 235 (Dec. 16, 2014) (Appropriations Act) navigational and communications
waiver authority. This final rule amends granted the Secretary of Commerce the systems, which must be kept
the CAR by inserting a section and authority to waive the performance and operational to ensure the safety of the
amending a part to add the contract payment bond requirement under 40 crew and the ship’s schedule. It also is
language for the waivers. U.S.C. 3131 et seq., for the construction, often necessary for emergency repairs to
VerDate Sep<11>2014 15:51 May 12, 2015 Jkt 235001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\13MYR1.SGM 13MYR1](https://thefederalregister.org/doc/80_FR_27358/page/1.svg)
![27268 Federal Register / Vol. 80, No. 92 / Wednesday, May 13, 2015 / Rules and Regulations
PART 1352—SOLICITATION Contractor Assurance of Subcontractor subcontractors utilized in the
PROVISIONS AND CONTRACT Payments May 2015 performance of the resultant contract
CLAUSES prior to the submission of its final
(a) To protect the interests of invoice.
■ 3. The authority for part 1352 subcontractors participating in the
continues to read as follows: performance of this contract, the (c) No later than five (5) days after
Government requires the assurance that contract award the contractor shall
Authority: 41 U.S.C. 414; 48 CFR 1.301– provide the Contracting Officer with a
1.304. all monies due to subcontractors is
timely and properly made prior to the list of all subcontractors to be utilized
■ 4. Add section 1352.228–77 to subpart submission of the contractor’s final in the performance of this contract. The
1352.2 to read as follows: invoice. contractor must provide updates to the
1352.228–77 Contractor assurance of (b) By accepting this award, in writing Contracting Officer throughout the
subcontractor payments. or by performance, the offeror/ contract, should changes be made.
As prescribed in 48 CFR 1328.102–3, contractor represents that—it will (d) The following shall be completed
insert the following clause: provide full payment to all and provided accordingly:
SUBCONTRACTOR LIST—CONTRACT NO.llllllllll
Subcontractor point of contact with Contract line item(s) to Applicable trade
Name of subcontractor business contact information which subcontract work is (electrical,
(number/e-mail) tied mechanical, etc.)
(e) Reports by subcontractors of invoice—‘‘By submission of this contract and have a negative impact on
delayed or non-payment during the invoice, assurance is herein provided its eligibility for future contract awards.
performance of the contract may impact that all monies due to any and all (h) The Government may seek any
the Government’s continued payment of subcontractors used in the performance available remedies in the event the
contractor invoices on a percentage of of this contract have been paid in full contractor fails to comply with the
completion basis. (CAR clause, prior to the submission of this final
provisions of this clause.
1352.271–71, Method of Payment and invoice.’’
Invoicing Instructions for Ship Repair). (g) Failure to pay subcontractors [FR Doc. 2015–10620 Filed 5–12–15; 8:45 am]
(f) The contractor shall include the could adversely affect the contractor’s BILLING CODE 3510–03–P
following statement on its final past performance evaluation for this
asabaliauskas on DSK5VPTVN1PROD with RULES
VerDate Sep<11>2014 15:51 May 12, 2015 Jkt 235001 PO 00000 Frm 00026 Fmt 4700 Sfmt 9990 E:\FR\FM\13MYR1.SGM 13MYR1](https://thefederalregister.org/doc/80_FR_27358/page/3.svg)
Document Created: 2015-12-16 07:47:00
Document Modified: 2015-12-16 07:47:00
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule. | |
| Dates | This action is effective on May 13, 2015. However, Commerce will accept comments on this interim final rule until June 12, 2015. | |
| Contact | Virna Winters, 202-482-3483. | |
| FR Citation | 80 FR 27266 | |
| RIN Number | 0605-AA37 | |
| CFR Citation | 48
CFR
1328 48 CFR 1352 | |
| CFR Associated | Government Procurement; Insurance; Reporting and Recordkeeping Requirements; Surety Bonds and Matrix |
2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR