Defense Federal Acquisition Regulation Supplement (DFARS); Subpart 247.5, Carriage Vessel Overhaul, Repair, and Maintenance

Defense Federal Acquisition Regulation Supplement
Part 247--Transportation

SUBPART 247.5--OCEAN TRANSPORTATION BY U.S.-FLAG VESSELS
(Revised November 24, 2008)
247.570 Scope.
This subpart—
(a) Implements—
(1) The Cargo Preference Act of 1904 ("the 1904 Act"), 10 U.S.C. 2631, which
applies to the ocean transportation of cargo owned by, or destined for use by, DoD; and
(2) Section 1017 of the National Defense Authorization Act for Fiscal Year 2007
(Pub. L. 109-364), which requires consideration, in solicitations requiring a covered
vessel, of the extent to which offerors have had overhaul, repair, and maintenance work
performed in shipyards located in the United States or Guam;
(b) Does not specifically implement the Cargo Preference Act of 1954 ("the 1954
Act"), 46 U.S.C. 1241(b). The 1954 Act is applicable to DoD, but DFARS coverage is not
required because compliance with the 1904 Act historically has resulted in DoD
exceeding the 1954 Act's requirements; and
(c) Does not apply to ocean transportation of the following products, in which case
FAR Subpart 47.5 applies:
(1) Products obtained for contributions to foreign assistance programs.
(2) Products owned by agencies other than DoD, unless the products are clearly
identifiable for eventual use by DoD.
247.571 Definitions.
“Covered vessel,” “foreign shipyard,” “overhaul, repair, and maintenance work,” and
“shipyard,” as used in this subpart, have the meaning given in the provision at 252.2477026, Evaluation Preference for Use of Domestic Shipyards – Applicable to Acquisition
of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade.
247.572 Policy.
(a) DoD contractors must transport supplies, as defined in the clause at
252.247-7023, Transportation of Supplies by Sea, exclusively on U.S.-flag vessels
unless—
(1) Those vessels are not available, and the procedures at 247.573-1(c)(1) or
247.573-2(d)(1) are followed;
(2) The proposed charges to the Government are higher than charges to private
persons for the transportation of like goods, and the procedures at 247.573-1(c)(2) or
247.573-2(d)(2) are followed; or

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(3) The Secretary of the Navy or the Secretary of the Army determines that the
proposed freight charges are excessive or unreasonable in accordance with 247.5731(c)(3) or 247.573-2(d)(3).
(b) Contracts must provide for the use of Government-owned vessels when security
classifications prohibit the use of other than Government-owned vessels.
(c)(1) Any vessel used under a time charter contract for the transportation of
supplies under this section shall have any reflagging or repair work, as defined in the
clause at 252.247-7025, Reflagging or Repair Work, performed in the United States or
its outlying areas, 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 the contract; and
(ii) Prior to acceptance of the vessel by the Government.
(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.
(d) In accordance with Section 1017 of the National Defense Authorization Act for
Fiscal Year 2007 (Pub. L. 109-364)—
(1) When obtaining carriage requiring a covered vessel, the contracting officer
must 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;
and
(2) DoD must submit an annual report to the congressional defense
committees, addressing the information provided by offerors with regard to overhaul,
repair, and maintenance for covered vessels performed in the United States or Guam.
247.573 Procedures.
247.573-1 Ocean transportation incidental to a contract for supplies, services,
or construction.
(a) This subsection applies when ocean transportation is not the principal purpose
of the contract, and the cargo to be transported is owned by DoD or is clearly
identifiable for eventual use by DoD.
(b) The contracting officer must obtain assistance from the cognizant transportation
activity (see 247.105), in developing—
(1) The Government estimate for transportation costs, irrespective of whether
freight will be paid directly by the Government; and
(2) Shipping instructions and delivery terms for inclusion in solicitations and
contracts that may involve transportation of supplies by sea.
(c) If the contractor notifies the contracting officer that the contractor or a
subcontractor considers that—
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(1) No U.S.-flag vessels are available, the contracting officer must request
confirmation of the nonavailability from-(i) The Commander, Military Sealift Command (MSC), through the
Contracts and Business Management Directorate, MSC; or
(ii) The Commander, Military Traffic Management Command (MTMC),
through the Principal Assistant Responsible for Contracting, MTMC.
(2) The proposed freight charges to the Government, the contractor, or any
subcontractor are higher than charges for transportation of like goods to private
persons, the contracting officer may approve a request for an exception to the
requirement to ship on U.S.-flag vessels for a particular shipment.
(i) Prior to granting an exception, the contracting officer must request
advice, oral or written, from the Commander, MSC, or the Commander, MTMC.
(ii) In advising the contracting officer whether to grant the exception, the
Commander, MSC, or the Commander, MTMC, must consider, as appropriate, evidence
from—
(A) Published tariffs;
(B) Industry publications;
(C) The Maritime Administration; and
(D) Any other available sources.
(3) The freight charges proposed by U.S.-flag carriers are excessive or otherwise
unreasonable-(i) The contracting officer must prepare a report in determination and
finding format, and must—
(A) Take into consideration that the 1904 Act is, in part, a subsidy of
the U.S.-flag commercial shipping industry that recognizes that lower prices may be
available from foreign-flag carriers. Therefore, a lower price for use of a foreign-flag
vessel is not a sufficient basis, on its own, to determine that the freight rate proposed by
the U.S.-flag carrier is excessive or otherwise unreasonable. However, such a price
differential may indicate a need for further review;
(B) Consider, accordingly, not only excessive profits to the carrier (to
include vessel owner or operator), if ascertainable, but also excessive costs to the
Government (i.e., costs beyond the economic penalty normally incurred by excluding
foreign competition) resulting from the use of U.S.-flag vessels in extraordinarily
inefficient circumstances; and
(C) Include an analysis of whether the cost is excessive, taking into
account factors such as--

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(1) The differential between the freight charges proposed by the
U.S.-flag carrier and an estimate of what foreign-flag carriers would charge based upon
a price analysis;
(2) A comparison of U.S.-flag rates charged on comparable routes;
(3) Efficiency of operation regardless of rate differential (e.g.,
suitability of the vessel for the required transportation in terms of cargo requirements
or vessel capacity, and the commercial reasonableness of vessel positioning required);
and
(4) Any other relevant economic and financial considerations.
(ii) The contracting officer must forward the report to-(A) The Commander, MSC, through the Contracts and Business
Management Directorate, MSC; or
(B) The Commander, MTMC, through the Principal Assistant
Responsible for Contracting, MTMC.
(iii) If in agreement with the contracting officer, the Commander, MSC, or
the Commander, MTMC, will forward the report to the Secretary of the Navy or the
Secretary of the Army, respectively, for a determination as to whether the proposed
freight charges are excessive or otherwise unreasonable.
247.573-2 Direct purchase of ocean transportation services.
(a) This subsection applies when ocean transportation is the principal purpose of
the contract, including—
(1) Time charters;
(2) Voyage charters;
(3) Contracts for charter vessel services;
(4) Dedicated contractor contracts for charter vessel services;
(5) Ocean bills of lading; and
(6) Subcontracts under Government contracts or agreements for ocean
transportation services.
(b) Coordinate these acquisitions, as appropriate, with the U.S. Transportation
Command, the DoD single manager for commercial transportation and related services,
other than Service-unique or theater-assigned transportation assets, in accordance with
DoDD 5158.4, United States Transportation Command.
(c) All solicitations within the scope of this subsection must provide-(1) A preference for U.S.-flag vessels in accordance with the 1904 Act;

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Part 247--Transportation

(2) An evaluation criterion for offeror participation in the Voluntary Intermodal
Sealift Agreement; and
(3) An evaluation criterion considering the extent to which offerors have had
overhaul, repair, and maintenance work for all covered vessels in an offeror’s fleet
performed in shipyards located in the United States or Guam. Work performed in
foreign shipyards shall not be evaluated under this criterion if—
(i) Such work was performed as emergency repairs in foreign shipyards due
to accident, emergency, Act of God, or an infirmity to the vessel, and safety
considerations warranted taking the vessel to a foreign shipyard; or
(ii) Such work was paid for or reimbursed by the U.S. Government.
(d) Do not award a contract of the type described in paragraph (a) of this subsection
for a foreign-flag vessel unless—
(1) The Commander, MSC, or the Commander, MTMC, determines that no
U.S.-flag vessels are available.
(i) The Commander, MSC, and the Commander, MTMC, are authorized to
make any determinations as to the availability of U.S.-flag vessels to ensure the proper
use of Government and private U.S. vessels.
(ii) The contracting officer must request such determinations-(A) For voyage and time charters, through the Contracts and Business
Management Directorate, MSC; and
(B) For ocean and intermodal transportation of DoD and DoDsponsored cargoes, as applicable under contracts awarded by MTMC, including
contracts for shipment of military household goods, through the Chiefs of the MTMC
Ocean Cargo Clearance Authority.
(iii) In the absence of regularly scheduled U.S.-flag service to fulfill stated
DoD requirements under MTMC solicitations or rate requests, the Commander,
MTMC, may grant, on a case-by-case basis, an on-going nonavailability determination
for foreign-flag service approval with predetermined review date(s);
(2) The contracting officer determines that the U.S.-flag carrier has proposed to
the Government freight charges that are higher than charges to private persons for
transportation of like goods, and obtains the approval of the Commander, MSC, or the
Commander, MTMC; or
(3) The Secretary of the Navy or the Secretary of the Army determines that the
proposed freight charges for U.S.-flag vessels are excessive or otherwise unreasonable.
(i) After considering the factors in 247.573-1(c)(3)(i)(A) and (B), if the
contracting officer concludes that the freight charges proposed by U.S.-flag carriers may
be excessive or otherwise unreasonable, the contracting officer must prepare a report in
determination and finding format that includes, as appropriate—

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(A) An analysis of the carrier's costs in accordance with FAR Subpart
15.4, or profit in accordance with 215.404-4. The costs or profit should not be so high as
to make it unreasonable to apply the preference for U.S.-flag vessels;
(B) A description of efforts taken pursuant to FAR 15.405, to negotiate
a reasonable price. For the purpose of FAR 15.405(d), this report is the referral to a
level above the contracting officer; and
(C) An analysis of whether the costs are excessive (i.e., costs beyond the
economic penalty normally incurred by excluding foreign competition), taking into
consideration factors such as those listed at 247.573-1(c)(3)(i)(C).
(ii) The contracting officer must forward the report to-(A) The Commander, MSC, through the Contracts and Business
Management Directorate, MSC; or
(B) The Commander, MTMC, through the Principal Assistant
Responsible for Contracting, MTMC.
(iii) If in agreement with the contracting officer, the Commander, MSC, or
the Commander, MTMC, will forward the report to the Secretary of the Navy or the
Secretary of the Army, respectively, for a determination as to whether the proposed
freight charges are excessive or otherwise unreasonable.
247.573-3 Annual reporting requirement.
(a) No later than February 15th of each year, departments and agencies shall—
(1) Prepare a report containing all information received from all offerors in
response to the provision at 252.247-7026 during the previous calendar year; and
(2) Submit the report to: Directorate of Acquisition, U.S. Transportation
Command, ATTN: TCAQ, 508 Scott Drive, Scott AFB, IL 62225-5357.
(b) The Director of Acquisition, U.S. Transportation Command, will submit a
consolidated annual report to the congressional defense committees, by June 1st of each
year, in accordance with Section 1017 of Pub. L. 109-364.
247.574 Solicitation provisions and contract clauses.
(a) Use the provision at 252.247-7022, Representation of Extent of Transportation
by Sea, in all solicitations except—
(1) Those for direct purchase of ocean transportation services; or
(2) Those with an anticipated value at or below the simplified acquisition
threshold.
(b)(1) Use the clause at 252.247-7023, Transportation of Supplies by Sea, in all
solicitations and resultant contracts, except those for direct purchase of ocean
transportation services.
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(2) Use the clause with its Alternate I in other than construction contracts, if
any of the supplies to be transported are commercial items that are shipped in direct
support of U.S. military contingency operations, exercises, or forces deployed in
humanitarian or peacekeeping operations.
(3) Use the clause with its Alternate II in other than construction contracts, if
any of the supplies to be transported are commercial items that are commissary or
exchange cargoes transported outside of the Defense Transportation System in
accordance with 10 U.S.C. 2643.
(4) Use the clause with its Alternate III in solicitations and contracts with an
anticipated value at or below the simplified acquisition threshold.
(c) Use the clause at 252.247-7024, Notification of Transportation of Supplies by
Sea, in all contracts for which the offeror made a negative response to the inquiry in the
provision at 252.247-7022, Representation of Extent of Transportation by Sea.
(d) Use the clause at 252.247-7025, Reflagging or Repair Work, in all time charter
solicitations and contracts for the use of a vessel for the transportation of supplies,
unless a waiver has been granted in accordance with 247.572(c).
(e) Use the provision at 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, in solicitations that require a covered vessel for
carriage of cargo for DoD. See 247.573-3 for reporting of the information received from
offerors in response to the provision. See 247.573-2(c)(3) for the required evaluation
criterion.

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