DOT 49 CFR PART 30-2010 DENIAL OF PUBLIC WORKS CONTRACTS TO SUPPLIERS OF GOODS AND SERVICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS TO U S CONTRACTORS.pdf

1、373 Office of the Secretary of Transportation 30.3 filed by the complainant within 90 days of receipt from the Department of the letter required by 28.170(g). The De-partment may extend this time for good cause. (i) Timely appeals shall be accepted and processed by the Assistant Sec-retary for Trans

2、portation Policy. The appeal will not be heard by the same person who made the initial determina-tion on the request. The decision on the appeal shall constitute the Depart-ments final action in the matter. (j) The Department shall notify the complainant of the results of the ap-peal within 60 days

3、of the receipt of the request. If the Department determines that it needs additional information from the complainant, it shall have 60 days from the date it receives the addi-tional information to make its deter-mination on the appeal. (k) The time limits cited in para-graphs (g) and (j) of this se

4、ction may be extended with the permission of the Assistant Attorney General. (l) The Department may delegate its authority for conducting complaint in-vestigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency. 56 FR 37

5、296, Aug. 6, 1991, as amended at 59 FR 10061, Mar. 3, 1994 28.17128.999 Reserved PART 30DENIAL OF PUBLIC WORKS CONTRACTS TO SUP-PLIERS OF GOODS AND SERV-ICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS TO U.S. CONTRACTORS Sec. 30.1 Purpose. 30.3 Applicability. 30.5 Effective dates. 30.7 Definit

6、ions. 30.9 Citizenship: Direct or indirect control. 30.11 Use of solicitation provisions and con-tract clauses. 30.13 Restrictions on Federal public works projects: Certification. 30.15 Restrictions on Federal public works projects. 30.17 Waivers. 30.19 Buy American Act. AUTHORITY: 49 U.S.C. 322(a);

7、 Containing Resolution on the Fiscal Year 1988 Budget 109(a), Pub. L. 100202; Airport and Airways Safety and Capacity Expansion Act of 1987, 115, Pub. L. 100223. SOURCE: 53 FR 19916, June 1, 1988, unless otherwise noted. 30.1 Purpose. The rules in this part implement sec-tion 109(a) of the Continuin

8、g Resolu-tion on the Fiscal Year 1988 Budget, Public Law No. 100202 (signed Decem-ber 22, 1987) the Continuing Resolu-tion, and section 115 of the Airport and Airways Safety and Capacity Ex-pansion Act of 1987, Public Law No. 100223 (signed December 30, 1987) the Airport Safety Act. These rules are

9、in-tended to give uniform implementation to these statutes throughout DOT pro-curement and grant programs. 30.3 Applicability. (a) The restrictions imposed by sec-tion 109(a) of the Continuing Resolu-tion extend to all DOT agencies as well as all recipients of DOT funds. The re-strictions apply to a

10、ll projects for which funds are obligated or contracts or subcontracts are awarded during fis-cal year 1988, including projects and contracts under all DOT financial as-sistance programs. The prohibition ap-plies to public buildings and public works projects everywhere in the United States or any te

11、rritory or pos-session of the United States. U.S. over-seas bases, installations, and embassies are not subject to this part. (b) The restrictions imposed by sec-tion 115 of the Airport Safety Act ex-tend to all projects for which funds are made available by that Act, whether or not the contracts ar

12、e awarded during fiscal year 1988. The restrictions apply to all contracts entered into under grants authorized by the Airport Safe-ty Act. (c) This part applies to projects cov-ered by section 109(a) of the Continuing Resolution, section 115 of the Airport Safety Act, or both. Whether one or the ot

13、her statute or both apply, the ef-fect on the project shall be the same, subject to paragraph (e) of this section. (d) In addition to construction, alter-ation, and repair contracts, the restric-tions of this part cover all architect, engineering, and other services related to the preparation and pe

14、rformance of VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-374 49 CFR Subtitle A (10110 Edition) 30.5 const

15、ruction, alteration, and repair of public projects and public works. (e) The restrictions of this part also apply to all products used in the con-struction, alteration, or repair of pub-lic projects and public works; Provided, however, That (1) The restrictions of this part do not apply to construct

16、ion equipment or vehicles that do not become part of a delivered structure, product, or project and (2) Notwithstanding paragraph (c) of this section, the restrictions of section 109(a) of the Continuing Resolution do not apply to vehicles to be used by the project, including, but not limited to, bu

17、ses, trucks, automobiles, rail rolling stock, and aircraft. 30.5 Effective dates. The provisions of section 109(a) of the Continuing Resolution apply to con-tracts (or new subcontracts under ex-isting contracts, whether or not sub-ject to the restriction) entered into after December 22, 1987, its da

18、te of en-actment, and before October 1, 1988. The provisions of section 115 of the Air-port Safety Act apply to contracts funded by the Act and entered into after December 30, 1987, its date of en-actment; the restrictions remain effec-tive so long as money provided by the Airport Safety Act is used

19、. Accord-ingly, any contracts or subcontracts subject to the restrictions of this part entered into with contractors or sub-contractors owned or controlled by citizens of subject countries, as defined by 30.7 and 30.9 of this part, since De-cember 22, 1987 shall be canceled at no cost to the Governm

20、ent, subject to the waiver provisions of 30.17 of this part. All public works or public buildings contracts entered into after December 22, 1987, shall include, or be modified to include, a provision prohibiting sub-contracting with citizens of subject countries, as defined by 30.7 and 30.9 of this

21、part. 30.7 Definitions. (a) Funds appropriated for FY 1988 by this resolution or any other law, as used in this part with reference to section 109(a) of the Continuing Resolution, means all appropriated and trust funds available to DOT, its modal adminis-tration, or their grantees for expendi-ture o

22、r obligation in fiscal year 1988, regardless of the fiscal year in which the funds were appropriated. (b) Funds made available by this Act, as used in this part with reference to section 115(a) of the Airport Safety Act, means all funds, including trust funds, made available to DOT, its modal admini

23、strations, or their grant-ees by that Act, whether or not the contracts to be funded are awarded during fiscal year 1988. (c) Contractor and subcontractor means any person, other than a sup-plier of products, performing any archi-tectural, engineering, or other service directly related to the prepar

24、ation for or performance of the construction, al-teration, or repair of any public build-ing or public work in the United States or any territory or possession of the United States. (d) Contractor or subcontractor of a for-eign country means any contractor or subcontractor that is a citizen or na-ti

25、onal of a foreign country, or is con-trolled directly or indirectly by one or more citizens or nationals of a foreign country. (e) Service of a foreign country means any service provided by a person that is a citizen or national of a foreign country, or is controlled by one or more citizens or natio

26、nals of a foreign country. (f) Product of a foreign country means construction materials, i.e., articles, materials, and supplies brought to the construction site for incorporation into the public works project. A product is considered to have been produced in a foreign country if more than fifty pe

27、r-cent of the total cost of the product is allocable to production or manufacture in the foreign country. (g) Foreign country means a country included in the list of countries that discriminate against U.S. firms pub-lished by the U.S.T.R. 30.9 Citizenship: Direct or indirect control. A contractor,

28、subcontractor, or per-son providing a service shall be consid-ered to be a citizen or national of a for-eign country, or controlled directly or indirectly by citizens or nationals of a VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones

29、on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-375 Office of the Secretary of Transportation 30.13 foreign country, within the meaning of this part. (a) If 50 percent or more of the con-tractor or subcontractor is owned by

30、one or more citizens or nationals of the foreign country; (b) If the title to 50 percent or more of the stock of the contractor or sub-contractor is held subject to trust or fi-duciary obligation in favor of one or more citizens or nationals of the for-eign country; (c) If 50 percent or more of the

31、voting power in the contractor or subcon-tractor is vested in or exercisable on behalf of one or more citizens or na-tionals of the foreign country; (d) In the case of a partnership, if any general partner is a citizen or national of the foreign country; (e) In the case of a corporation, if the numb

32、er of its directors necessary to constitute a quorum are citizens of the foreign country or the corporation is organized under the laws of the foreign country or any subdivision, territory, or possession thereof; or (f) In the case of a contractor or sub-contractor that is a joint venture, if any pa

33、rticipant meets any of the cri-teria in paragraphs (a) through (e) of this section. 30.11 Use of solicitation provisions and contract clauses. (a) Unless the President or the Sec-retary waives the restrictions imposed by section 109(a) of the Continuing Res-olution in accordance with 30.17 of this p

34、art, the contracting officer shall insert a clause similar to the clause at 30.15, Restrictions on Federal Public Works Projects, in contractions and so-licitations, if (1) The contract is awarded on or after December 22, 1987, and before Oc-tober 1, 1988; and (2) The contract obligates funds ap-pro

35、priated for use in FY 1988 by the Continuing Resolution or any other law; and (3) The contract is for the acquisition of construction, alteration and repair, architectural, engineering, or other services directly related to the prepa-ration for, or performance of, construc-tion, alteration, and repa

36、ir for Federal public works projects inside the United States, U.S. territories, or U.S. posses-sions. (b) Unless the Secretary waives the restrictions imposed by section 115 of the Airport Safety Act in accordance with 30.17 of this part, the contracting officer shall insert a clause similar to the

37、 clause at 30.15, Restrictions on Federal Public Works Projects, in con-tracts and solicitations relating to any project for which funds, including grant funds, are made available by that Act, whether or not the contract is awarded during fiscal year 1988. (c) Any contract already awarded that shoul

38、d have contained the clause prescribed in paragraph (a) or (b) of this section, but did not, shall be modi-fied to include the clause. In the event that the contracting officer is unable to modify such contract, the contract shall be canceled at no cost to the Gov-ernment, unless a waiver is granted

39、 in accordance with 30.17 of this part. (d) Contracting officers shall insert a provision similar to the solicitation provision at 30.13 of this part, Restric-tions on Public Works ProjectsCer-tification, in solicitations containing the clause at 30.15 of this part, Re-strictions on Federal Public W

40、orks Projects. (e) Any solicitation issued before De-cember 22, 1987, that will result in the award of a contract covered by para-graph (a) of this section after Decem-ber 22, 1987, and before October 1, 1988, and that should have contained a pro-vision similar to that 30.13 of this part, but did no

41、t, shall be amended to include the provision if the contract has not yet been awarded. 30.13 Restrictions on Federal public works projects: Certification. As prescribed in 30.11(c) of this part, the contracting officer shall insert the following provision in solicitations containing the clause at 30

42、.15, Restric-tions on Federal Public Works Projects: RESTRICTIONS ON FEDERAL PUBLIC WORKS PROJECTSCERTIFICATION (a) Definitions. The definitions pertaining to this provision are those that are set forth in 49 CFR 30.730.9. (b) Certification. By signing this solicita-tion, the Offeror certifies that

43、with respect to this solicitation, and any resultant con-tract, the Offeror VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00385 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without licens

44、e from IHS-,-,-376 49 CFR Subtitle A (10110 Edition) 30.15 (1) Is is not a contractor of a for-eign country included on the list of countries that discriminated against U.S. firms pub-lished by the Office of the United States Trade Representative (U.S.T.R.); (2) Has has not entered into any contract

45、 or subcontract with a subcon-tractor of a foreign country included on the list of countries that discriminate against U.S. firms published by the U.S.T.R.; and (3) Has has not entered into any subcontract for any product to be used on the Federal public works project that is pro-duced in a foreign

46、country included on the list of countries that discriminate against U.S. firms published by the U.S.T.R. (c) Applicability of 18 U.S.C. 1001. This cer-tification in this solicitation provision con-cerns a matter within the jurisdiction of an agency of the United States and the making of a false, fic

47、titious, or fraudulent certifi-cation may render the maker subject to prosecution under Title 18, United States Code, Section 1001. (d) Notice. The Offeror shall provide imme-diate written notice to the Contracting Offi-cer if, at any time prior to contract award, the Offeror learns that its certifi

48、cation was erroneous when submitted or has become er-roneous by reason of changed circumstances. (e) Restrictions on contract award. No con-tract will be awarded to an offeror (1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries t

49、hat discriminate against U.S. firms published by the U.S.T.R. or (2) whose subcontractors are owned or controlled by one or more citizens or nation-als of a foreign country on such U.S.T.R. list or (3) who incorporates in the public works project any product of a foreign country on such U.S.T.R. list; unless a waiver to these restrictions is granted by the President of the United States or the Secretary of Trans-po