[Federal Register Volume 79, Number 138 (Friday, July 18, 2014)]
[Proposed Rules]
[Pages 41949-41953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15824]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1511 and 1552
[EPA-HQ-OARM-2012-0476; FRL-9913-37-OARM]
EPAAR Clause for Work Assignments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA
Acquisition Regulation (EPAAR) to update policy, procedures, and
contract clauses. The proposed rule updates EPAAR clause 1552.211-74,
Work Assignments.
DATES: Comments must be received on or before August 18, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2012-0476, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: [email protected].
Mail: EPA-HQ-OARM-2012-0476, OEI Docket, Environmental
Protection Agency, 2822T, 1200 Pennsylvania Ave. NW., Washington, DC
20460. Please include a total of three (3) copies.
Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA
West, Room B102, 1301 Constitution Ave. NW., Washington, DC 20004. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-
2012-0476. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your
[[Page 41950]]
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket, and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment, and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties, and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov, or in hard copy at the Office of Environmental
Information (OEI) Docket, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-1752. This Docket Facility is open from 8:30 a.m. to 4:30 p.m.
Monday through Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Thomas Valentino, Policy, Training,
and Oversight Division, Office of Acquisition Management (3802R),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number: 202-564-4522; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI, and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Background
On 3 December 2009 the Office of Acquisition Management (OAM) Head
of the Contracting Activity (HCA) issued a class deviation that revised
the prescription for the subject clause by eliminating the requirement
that EPA include total estimated labor hours when issuing work
assignments. The revised prescription is necessary because including
total estimated labor hours when work assignments are issued undermines
the negotiation process by providing the contractor no incentive to
seek more efficient or innovative approaches to meet the Government's
needs under a work assignment. The revised prescription advises
contracting officers (COs) that when the nature of the work is
nonspecific with changing circumstances (e.g., services at new
hazardous waste sites, R&D in new areas with uncertain potential
results) then the CO may provide the contractor with the estimated
labor hours. Otherwise, COs should not authorize the contractor to
expend the level of effort beyond the effort needed to develop the work
plan. The revised prescription was published in the Federal Register on
14 February 2012. As a result, the subject clause text is being updated
to make it consistent with the revised prescription.
In addition, the WA clause prescription is modified to make the
clause applicable to EPA cost-reimbursement contracts, and the subject
prescription and clause are being updated to add two alternate clause
versions. Currently the subject clause has Alternates I and II that are
used in Superfund contracts and require the contractor to provide a COI
certification. This clause update adds Alternates III and IV which are
substantially the same as I and II but are written for non-Superfund
contracts. A class deviation for Alternates III and IV was issued by
the HCA on 29 June 1994.
III. Proposed Rule
This proposed rule amends the EPAAR to revise paragraphs (b) and
(c) in EPAAR clause 1552.211-74, Work Assignments, and revises
paragraph (b) of its corresponding 1511.011-74 prescription. Alternates
III and IV are also being added to clause 1552.211-74.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
therefore, not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
No information is collected under this action.
C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute; unless the agency certifies that the rule
will not have a significant
[[Page 41951]]
economic impact on a substantial number of small entities. Small
entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impact of today's final rule on small
entities, ``small entity'' is defined as: (1) A small business that
meets the definition of a small business found in the Small Business
Act and codified at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
revises a current EPAAR provision and does not impose requirements
involving capital investment, implementing procedures, or record
keeping. This rule will not have a significant economic impact on small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Local, and Tribal
governments and the private sector.
This rule contains no Federal mandates (under the regulatory
provisions of the Title II of the UMRA) for State, Local, and Tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, Local or Tribal governments or the private sector. Thus,
the rule is not subject to the requirements of Sections 202 and 205 of
the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and Local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government as
specified in Executive Order 13132.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
tribal implications as specified in Executive Order 13175.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997),
applies to any rule that: (1) Is determined to be economically
significant as defined under Executive Order 12886, and (2) concerns an
environmental health or safety risk that may have a proportionate
effect on children. This rule is not subject to Executive Order 13045
because it is not an economically significant rule as defined by
Executive Order 12866, and because it does not involve decisions on
environmental health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution of Use'' (66 FR 28335 (MAY 22, 2001), because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act of 1995 (NTTAA)
Section 12(d) (15 U.S.C. 272 note) of NTTA, Public Law 104-113,
directs EPA to use voluntary consensus standards in it's regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This proposed rulemaking does not involve human health or
environmental affects.
List of Subjects in 48 CFR Parts 1511 and 1552
Describing agency needs, Solicitation provisions and contract
clauses.
Dated: June 11, 2014.
John R. Bashista,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth
below:
0
1. The authority citation for 48 CFR parts 1511 and 1552 continues to
read as follows:
Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended,
40 U.S.C. 486(c); and 41 U.S.C. 418b.
PART 1511--DESCRIBING AGENCY NEEDS
0
2. Revise paragraph (b) of 1511.011-74 to read as follows:
1511.011-74 Work Assignments.
* * * * *
[[Page 41952]]
(b) Contract Clause. The CO shall insert the contract clause at
1552.211.74, Work Assignments, in cost-reimbursement contracts when
work assignments are used.
(1) For Superfund contracts, except for contracts which require
annual conflict of interest certificates (e.g., Site-Specific
contracts, the Contract Laboratory Program (CLP), Sample Management
Office (SMO) contracts), the CO shall use the clause with either
Alternate I or Alternate II. Alternate I shall be used for contractors
who have at least three (3) years of records that may be searched for
certification purposes. Alternate II shall be used for contractors who
do not have at least three (3) years of records that may be searched.
(2) For non-Superfund contracts, the CO shall use the clause with
either Alternate III or Alternate IV. Alternate III shall be used for
contractors who have at least three (3) years of records that may be
searched for certification purposes. Alternate IV shall be used for
contractors who do not have at least three (3) years of records that
may be searched.
PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Revise 1552.211-74 to read as follows:
1552.211-74 Work Assignments.
As prescribed in 1511.011-74, insert the following contract clause
in cost-reimbursement contracts when work assignments are to be used.
Work Assignments (---- 2013)
(a) The contractor shall perform work under this contract as
specified in written work assignments issued by the Contracting
Officer.
(b) Each work assignment may include (1) a numerical
designation, (2) approved workplan labor hours or an estimated
initial level of effort provided in accordance with 1511.011-74, (3)
the period of performance and schedule of deliverables, and (4) the
description of the work.
(c) The Contractor shall acknowledge receipt of each work
assignment by returning to the Contracting Officer a signed copy of
the work assignment within ---- calendar days after its receipt. The
Contractor shall begin working on a work plan immediately upon
receipt of a work assignment. Within ---- calendar days after
receipt of a work assignment, the Contractor shall submit ----
copies of a work plan to the Contract-level Contracting Officer's
Representative and ---- copies to the Contracting Officer. The work
plan shall include a detailed technical and staffing plan and a
detailed cost estimate. Within ---- calendar days after receipt of
the work plan, the Contracting Officer will provide written approval
or disapproval of it to the Contractor. The Contractor is not
authorized to start work without an approved work plan unless
approved by the Contracting Officer or otherwise specified. Also, if
the Contracting Officer disapproves a work plan, the Contractor
shall stop work until the problem causing the disapproval is
resolved. In either case, the Contractor shall resume work only when
the Contracting Officer approves the work plan.
(d) This clause does not change the requirements of the ``Level
of Effort'' clause, nor the notification requirements of either the
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
(e) Work assignments shall not allow for any change to the terms
or conditions of the contract. Where any language in the work
assignment may suggest a change to the terms or conditions, the
Contractor shall immediately notify the Contracting Officer.
(End of clause)
Alternate I. As prescribed in 1511.011-74, modify the existing
clause by adding the following paragraph (f) to the basic clause:
(f) Within 20 days of receipt of the work assignment or similar
tasking document, the Contractor shall provide a conflict of
interest (COI) certification. Where work assignments or similar
tasking documents are issued under this contract for work on or
directly related to a site, the Contractor is only required to
provide a COI certification for the first work assignment issued for
that site. For all subsequent work on that site under this contract,
the Contractor has a continuing obligation to search and report any
actual or potential COIs, but no additional COI certifications are
required.
Before submitting the COI certification, the Contractor shall
search its records accumulated, at a minimum, over the past three
years immediately prior to the receipt of the work assignment or
similar tasking document. In the COI certification, the Contractor
must certify to the best of the Contractor's knowledge and belief
that all actual or potential organizational COIs have been reported
to the Contracting Officer, or that to the best of the Contractor's
knowledge and belief, no actual or potential organizational COIs
exist. In addition, the Contractor must certify that its personnel
who perform work under this work assignment or relating to this work
assignment have been informed of their obligation to report personal
and organizational COIs to the Contractor. The COI certification
shall also include a statement that the Contractor recognizes its
continuing obligation to identify and report any actual or potential
COI arising during performance of this work assignment or other work
related to this site.
Alternate II. As prescribed in 1511.011-74, modify the existing
clause by adding the following paragraph (f) to the basic clause:
(f) Within 20 days of receipt of the work assignment or similar
tasking document, the Contractor shall provide a conflict of
interest (COI) certification. Where work assignments or similar
tasking documents are issued under this contract for work on or
directly related to a site, the Contractor is only required to
provide a COI certification for the first work assignment issued for
that site. For all subsequent work on that site under this contract,
the Contractor has a continuing obligation to search and report any
actual or potential COIs, but no additional COI certifications are
required.
Before submitting the COI certification, the Contractor shall
initially search through all of its available records to identify
any actual or potential COIs. During the first three years of this
contract, the Contractor shall search through all records created
since the beginning of the contract plus the records of the
Contractor prior to the award of the contract until a minimum of
three years of records are accumulated. Once three years of records
have accumulated, prior to certifying, the Contractor shall search
its records accumulated, at a minimum, over the past three years
immediately prior to the receipt of the work assignment or similar
tasking document. In the COI certification, the Contractor must
certify to the best of the Contractor's knowledge and belief, that
all actual or potential organizational COIs have been reported to
the Contracting Officer, or that to the best of the Contractor's
knowledge and belief, no actual or potential organizational COIs
exist. In addition, the Contractor must certify that its personnel
who perform work under this work assignment or relating to this work
assignment have been informed of their obligation to report personal
and organizational COIs to the Contractor. The COI certification
shall also include a statement that the Contractor recognizes its
continuing obligation to identify and report any actual or potential
COI arising during performance of this work assignment or other work
related to this site.
Alternate III. As prescribed in 1511.011-74, modify the existing
clause by adding the following paragraph (f) to the basic clause:
(f) Within 20 days of receipt of the work assignment or similar
tasking document, the Contractor shall provide a conflict of
interest (COI) certification.
Before submitting the COI certification, the Contractor shall
search its records accumulated, at a minimum, over the past three
years immediately prior to the receipt of the work assignment or
similar tasking document. In the COI certification, the Contractor
must certify to the best of the Contractor's knowledge and belief
that all actual or potential organizational COIs have been reported
to the Contracting Officer, or that to the best of the Contractor's
knowledge and belief, no actual or potential organizational COIs
exist. In addition, the Contractor must certify that its personnel
who perform work under this work assignment or relating to this work
assignment have been informed of their obligation to report personal
and organizational COIs to the Contractor. The COI certification
shall also include a statement that the Contractor recognizes its
[[Page 41953]]
continuing obligation to identify and report any actual or potential
COI arising during performance of this work assignment.
Alternate IV. As prescribed in 1511.011-74, modify the existing
clause by adding the following paragraph (f) to the basic clause:
(f) Within 20 days of receipt of the work assignment or similar
tasking document, the Contractor shall provide a conflict of
interest (COI) certification.
Before submitting the COI certification, the Contractor shall
initially search through all of its available records to identify
any actual or potential COIs. During the first three years of this
contract, the Contractor shall search through all records created
since the beginning of the contract plus records of the Contractor
prior to the award of the contract until a minimum of three years of
records have accumulated. Once three years of records have
accumulated, prior to certifying, the Contractor shall search its
records, at a minimum, over the past three years immediately prior
to the receipt of the work assignment or similar tasking document.
In the COI certification, the Contractor must certify to the best of
the Contractor's knowledge and belief that all actual or potential
organizational COIs have been reported to the Contracting Officer,
or that to the best of the Contractor's knowledge and belief, no
actual or potential organizational COIs exist. In addition, the
Contractor must certify that its personnel who perform work under
this work assignment or relating to this work assignment have been
informed of their obligation to report personal and organizational
COIs to the Contractor. The COI certification shall also include a
statement that the Contractor recognizes its continuing obligation
to identify and report any actual or potential COI arising during
performance of this work assignment.
(End of clause)
[FR Doc. 2014-15824 Filed 7-17-14; 8:45 am]
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