[Federal Register Volume 66, Number 101 (Thursday, May 24, 2001)]
[Rules and Regulations]
[Pages 28673-28676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12701]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Part 1552
[FRL-6955-3]
Acquisition Regulation; Administrative Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is issuing this final rule that amends the Environmental
Protection Agency Acquisition Regulation (EPAAR) by making
administrative changes to be consistent with Federal Acquisition
Regulation (FAR) provisions.
EFFECTIVE DATE: May 24, 2001.
FOR FURTHER INFORMATION CONTACT: Paul Schaffer, U.S. EPA, Office of
Acquisition Management, Mail Code (3802R), 1200 Pennsylvania Avenue,
NW, Washington, DC 20460, Telephone: (202) 564-4366.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule was published in the Federal Register (65 FR
58921) on October 3, 2000, providing for a 60-day public comment
period. Interested parties were afforded an opportunity to participate
in the making of this rule. No public comments were received.
B. Executive Order 12866
This is not a significant regulatory action for the purposes of
Executive Order 12866; therefore, no review is required by the Office
of Information and Regulatory Affairs within the Office of Management
and Budget (OMB).
C. Paperwork Reduction Act (PRA)
The information collection requirement (ICR) in 1552.219-71,
Procedures for Participation in the EPA Mentor-Protege Program, is
covered by OMB clearance number 2030-0006. Copies of the ICR document
may be obtained from Sandy Farmer, by mail at the EPA Office of
Environmental Information, Collection Strategies Division, U.S.
Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW,
Washington, DC 20460, by email at [email protected], or by calling
(201) 260-2740. A copy may also be downloaded off the internet at
http://www.epa.gov/icr. Include the ICR clearance number in any
correspondence.
The government-wide information collection requirement in 1552.245-
73, Government Property, is covered by OMB clearance number 9000-0075,
which is maintained by the General Services Administration. This final
rule contains no other clauses with information requirements that
require the approval of OMB under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.).
D. 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 RFA 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 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 today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the final rule on small entities.'' 5 U.S.C. 603 and
604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. This
final rule merely incorporates existing EPA solicitation and contract
provisions into the EPAAR and will have no adverse impact on small
entities. The requirements under this final rule impose no additional
reporting, record-keeping, or compliance costs on small entities.
E. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess
their regulatory actions on State, local, and Tribal governments, and
the private sector. This final rule does not contain a Federal mandate
that may result in expenditures of $100 million or more for State,
local, and Tribal governments, in the aggregate, or the private sector
in one year. Any private sector costs for this action relate to
paperwork requirements and associated expenditures that are far below
the level established for UMRA applicability. Thus, the final rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
F. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks 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 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final 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.
[[Page 28674]]
G. Executive Order 13132
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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This final 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. This final rule merely
incorporates existing EPA solicitation and contract provisions into the
EPAAR. Thus, the requirements of section 6 of the Executive Order do
not apply to this final rule.
H. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by Tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the OMB, in a separately identified section
of the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected Tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian Tribal government ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
This final rule does not significantly or uniquely affect the
communities of Indian Tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this final
rule.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
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 NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
final rule does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
J. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rules report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this final rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Authority: The provisions of this regulation are issued under 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. 48 CFR Chapter 15 is amended as follows:
List of Subjects in 48 CFR Part 1552
Government procurement.
1. The authority citations for 48 CFR part 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.
2. In Section 1552.211-70, in the clause ``Reports of Work'' and in
alternate 1 revise the effective date of the clause from ``Feb 1998''
to read ``Oct 2000''.
3. In Section1552.211-79 ``Compliance with EPA Policies for
Information Resources Management'' revise the effective date of the
clause from ``Sept 1991'' to read ``Oct 2000.''
4. Section1552.219-70 Mentor-Protege Program is revised to read as
follows:
1552.219-70 Mentor-Protege Program.
As prescribed in 1519.203(a), insert the following clause:
MENTOR-PROTEGE PROGRAM
OCT 2000
(a) The Contractor has been approved to participate in the EPA
Mentor-Protege program. The purpose of the Program is to increase
the participation of small disadvantaged businesses (SDBs) as
subcontractors, suppliers, and ultimately as prime contractors; to
establish a mutually beneficial relationship with SDB's and EPA's
large business prime contractors (although small businesses may
participate as Mentors); to develop the technical and corporate
administrative expertise of SDBs which will ultimately lead to
greater success in competition for contract opportunities; to
promote the economic stability of SDBs; and to aid in the
achievement of goals for the use of SDBs in subcontracting
activities under EPA contracts.
(b) The Contractor shall submit an executed Mentor-Protege
agreement to the contracting officer, with a copy to the Office of
Small and Disadvantaged Business Utilization or the Small Business
Specialist, within thirty (30) calendar days after the effective
date of the contract. The contracting officer will notify the
Contractor within thirty (30) calendar days from its submission if
the agreement is not accepted.
(c) The Contractor as a Mentor under the Program agrees to
fulfill the terms of its agreement(s) with the Protege firm(s).
(d) If the Contractor or Protege firm is suspended or debarred
while performing under an approved Mentor-Protege agreement, the
Contractor shall promptly give notice of the suspension or debarment
to the Office of Small and Disadvantaged Business Utilization and
the contracting officer.
[[Page 28675]]
(e) Costs incurred by the Contractor in fulfilling their
agreement(s) with the Protege firm(s) are not reimbursable on a
direct basis under this contract.
(f) In an attachment to Standard Form 294, Subcontracts Report
for Individual Contracts, the Contractor shall report on the
progress made under their Mentor-Protege agreement(s), providing:
(1) The number of agreements in effect; and
(2) The progress in achieving the developmental assistance
objectives under each agreement, including whether the objectives of
the agreement have been met, problem areas encountered, and any
other appropriate information.
(End of clause)
5. Section 1552.219-71, Procedures for Participation in the EPA
Mentor-Protege Program, is revised to read as follows:
1552.219-71 Procedures for Participation in the EPA Mentor-Protege
Program.
As prescribed in 1519.203(b), insert the following provision:
PROCEDURES FOR PARTICIPATION IN THE EPA MENTOR-PROTEGE PROGRAM
OCT 2000
(a) This provision sets forth the procedures for participation
in the EPA Mentor-Protege Program (hereafter referred to as the
Program). The purpose of the Program is to increase the
participation of small disadvantaged businesses (SDBs) as
subcontractors, suppliers, and ultimately as prime contractors; to
establish a mutually beneficial relationship with SDBs and EPA's
large business prime contractors (although small businesses may
participate as Mentors); to develop the technical and corporate
administrative expertise of the SDBs which will ultimately lead to
greater success in competition for contract opportunities; to
promote the economic stability of SDBs; and to aid in the
achievement of goals for the use of SDBs in subcontracting
activities under EPA contracts. If the successful offeror is
accepted into the Program they shall serve as a Mentor to a Protege
(SDB) firm(s), providing developmental assistance in accordance with
an agreement with the Protege firm(s).
(b) To participate as a Mentor, the offeror must receive
approval in accordance with paragraph (h).
(c) A Protege must be a small disadvantaged business (SDB)
concern as defined under Federal Acquisition Regulation (FAR)
19.001, and a small business for the purpose of the Small Business
Administration (SBA) size standard applicable to the North American
Industry Classification System (NAICS) code applicable to the
contemplated supplies or services to be provided by the Protege firm
to the Mentor firm. Further, consistent with EPA's 1993
Appropriation Act, socially disadvantaged individuals shall be
deemed to include women.
(d) Where there may be a concern regarding the Protege firm's
eligibility to participate in the program, the protege's eligibility
will be determined by the contracting officer after the SBA has
completed any formal determinations.
(e) The offeror shall submit an application in accordance with
paragraph (k) as part of its proposal which shall include as a
minimum the following information.
(1) A statement and supporting documentation that the offeror is
currently performing under at least one active Federal contract with
an approved subcontracting plan and is eligible for the award of
Federal contracts;
(2) A summary of the offeror's historical and recent activities
and accomplishments under their SDB program. The offeror is
encouraged to include any initiatives or outreach information
believed pertinent to approval as a Mentor firm;
(3) The total dollar amount (including the value of all option
periods or quantities) of EPA contracts and subcontracts received by
the offeror during its two preceding fiscal years. (Show prime
contracts and subcontracts separately per year);
(4) The total dollar amount and percentage of subcontract awards
made to all SDB firms under EPA contracts during its two preceding
fiscal years. If recently required to submit a SF 295, provide
copies of the two preceding year's reports;
(5) The number and total dollar amount of subcontract awards
made to the identified Protege firm(s) during the two preceding
fiscal years (if any).
(f) In addition to the information required by (e) above, the
offeror shall submit as a part of the application the following
information for each proposed Mentor-Protege relationship:
(1) Information on the offeror's ability to provide
developmental assistance to the identified Protege firm and how the
assistance will potentially increase contracting and subcontracting
opportunities for the Protege firm, including subcontract
opportunities in industry categories where SDBs are not dominant in
the offeror's vendor base.
(2) A letter of intent indicating that both the Mentor firm and
the Protege firm intend to enter into a contractual relationship
under which the Protege will perform as a subcontractor under the
contract resulting from this solicitation and that the firms will
negotiate a Mentor-Protege agreement. Costs incurred by the offeror
in fulfilling the agreement(s) with the Protege firm(s) are not
reimbursable as a direct cost under the contract. The letter of
intent must be signed by both parties and contain the following
information:
(i) The name, address and phone number of both parties;
(ii) The Protege firm's business classification, based upon the
NAICS code(s) which represents the contemplated supplies or services
to be provided by the Protege firm to the Mentor firm;
(iii) A statement that the Protege firm meets the eligibility
criteria;
(iv) A preliminary assessment of the developmental needs of the
Protege firm and the proposed developmental assistance the Mentor
firm envisions providing the Protege. The offeror shall address
those needs and how their assistance will enhance the Protege. The
offeror shall develop a schedule to assess the needs of the Protege
and establish criteria to evaluate the success in the Program.
(v) A statement that if the offeror or Protege firm is suspended
or debarred while performing under an approved Mentor-Protege
agreement the offeror shall promptly give notice of the suspension
or debarment to the EPA Office of Small Disadvantaged Business
Utilization (OSDBU) and the contracting officer. The statement shall
require the Protege firm to notify the Contractor if it is suspended
or debarred.
(g) The application will be evaluated on the extent to which the
offeror's proposal addresses the items listed in (e) and (f). To the
maximum extent possible, the application should be limited to not
more than 10 single pages, double spaced. The offeror may identify
more than one Protege in its application.
(h) If the offeror is determined to be in the competitive range,
the offeror will be advised by the contracting officer whether their
application is approved or rejected. The contracting officer, if
necessary, may request additional information in connection with the
offeror's submission of its revised or best and final offer. If the
successful offeror has submitted an approved application, they shall
comply with the clause titled ``Mentor-Protege Program.''
(i) Subcontracts of $1,000,000 or less awarded to firms approved
as Proteges under the Program are exempt from the requirements for
competition set forth in FAR 52.244-5(b).
(j) Costs incurred by the offeror in fulfilling their
agreement(s) with a Protege firm(s) are not reimbursable as a direct
cost under the contract. Unless EPA is the responsible audit agency
under FAR 42.703-1, offerors are encouraged to enter into an advance
agreement with their responsible audit agency on the treatment of
such costs when determining indirect cost rates. Where EPA is the
responsible audit agency, these costs will be considered in
determining indirect cost rates.
(k) Submission of Application and Questions Concerning the
Program. The application for the Program shall be submitted to the
contracting officer, and to the EPA OSDBU, at the following
addresses for headquarters procurements:
Socioeconomic Business Program Officer, Office of Small and
Disadvantaged Business Utilization, U. S. Environmental Protection
Agency, Ariel Rios Building (3801R), 1200 Pennsylvania Avenue, NW,
Washington, DC 20460, Telephone: (202) 564-4322, Fax: (202) 565-2473
The application for the Program shall be submitted to the
contracting officer, and to the Small Business Specialist, at the
following address for RTP procurements:
Small Business Program Officer, Contracts Management Division (MD-
33), U. S. Environmental Protection Agency, Research Triangle Park,
NC 27711, Telephone: (919) 541-2249, Fax: (919) 541-5539
The application for the Program shall be submitted to the
contracting officer, and to
[[Page 28676]]
the Small Business Specialist, at the following address for
Cincinnati procurements:
Small and Disadvantaged Business Utilization Officer, Contracts
Management Division, 26 West Martin Luther King Drive, Cincinnati,
OH 45268, Telephone: (513) 487-2024, Fax: (513) 487-2004
(End of provision)
6. Section 1552.219-72, Small Disadvantaged Business Participation
Program, is revised to read as follows:
1552.219-72 Small Disadvantaged Business Participation Program.
As prescribed in 1519.204(a), insert the following clause:
SMALL DISADVANTAGED BUSINESS PARTICIPATION PROGRAM
OCT 2000
(a) Section M of this solicitation contains a source selection
factor or subfactor related to the participation of small
disadvantaged business (SDB) concerns in the performance of the
contract. The nature of the evaluation of an SDB offeror under this
evaluation factor or subfactor is dependent upon whether the SDB
concern qualifies for the price evaluation adjustment under the
clause at FAR 52.219-23, Notice of Price Evaluation Adjustment for
Small Disadvantaged Business Concerns, and whether the SDB concern
specifically waives this price evaluation adjustment.
(b) In order to be evaluated under the source selection factor
or subfactor, an offeror must provide, with its offer, the following
information:
(1) The extent of participation of SDB concerns in the
performance of the contract in terms of the value of the total
acquisition. Specifically, offerors must provide targets, expressed
as dollars and percentages of the total contract value, for SDB
participation in the applicable and authorized North American
Industry Classification System (NAICS) Industry Subsectors as
determined by the Department of Commerce. Total dollar and
percentage targets must be provided for SDB participation by the
prime contractor, including team members and joint venture partners.
In addition, total dollar and percentage targets for SDB
participation by subcontractors must be provided and listed
separately;
(2) The specific identification of SDB concerns to be involved
in the performance of the contract;
(3) The extent of commitment to use SDB concerns in the
performance of the contract:
(4) The complexity and variety of the work the SDB concerns are
to perform; and
(5) The realism of the proposal to use SDB concerns in the
performance of the contract.
(c) An SDB offeror who waives the price evaluation adjustment
provided in FAR 52.219-23 shall provide, with their offer, targets,
expressed as dollars and percentages of the total contract value,
for the work that it intends to perform as the prime contractor in
the applicable and authorized NAICS Industry Subsectors as
determined by the Department of Commerce. All of the offeror's
identified targets described in paragraphs (b) and (c) of this
clause will be incorporated into and made part of any resulting
contract.
(End of provision)
7. Section 1552.219-73, Small Disadvantaged Business Targets, is
revised to read as follows:
1552.219-73 Small Disadvantaged Business Targets.
As prescribed in 1519.204(b), insert the following clause:
SMALL DISADVANTAGED BUSINESS TARGETS
OCT 2000
(a) In accordance with FAR 19.1202-4(a) and EPAAR 1552.219-72,
the following small disadvantaged business (SDB) participation
targets proposed by the contractor are hereby incorporated into and
made part of the contract:
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Percentage of
Contractor targets NAICS major Dollars total contract
group value
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Total Prime Contractor Targets (including joint venture ............... ............... ...............
partners)...................................................
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Total subcontractor targets............................ ............... ............... ...............
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(b) The following specifically identified SDB(s) was (were)
considered under the Section--SDB participation evaluation factor or
subfactor (continue on separate sheet if more space is needed):
(1)--------------------------------------------------------------------
(2)--------------------------------------------------------------------
(3)--------------------------------------------------------------------
(4)--------------------------------------------------------------------
(5)--------------------------------------------------------------------
The contractor shall promptly notify the contracting officer of
any substitution of firms if the new firms are not SDB concerns.
(c) In accordance with FAR 52.219-25, Small Disadvantaged
Business Participation Program--Disadvantaged Status and Reporting,
the contractor shall report on the participation of SDB concerns in
the performance of the contract no less than thirty (30) calendar
days prior to each annual contractor performance evaluation
[contracting officer may insert the dates for each performance
evaluation (i.e., every 12 months after the effective date of
contract)] or as otherwise directed by the contracting officer.
(End of provision)
8. In Section 1552.232-73 ``Payments--Fixed-Rate Services
Contract''revise the effective date of the clause from ``APR 1984 to
read to ``OCT 2000.''
Dated: February 21, 2001.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 01-12701 Filed 5-23-01; 8:45 am]
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