[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66342-66344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27617]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1509 and 1552
[FRL-7402-8]
Acquisition Regulation: Contractor Performance Evaluations
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the EPA
Acquisition Regulation to revise its policy and procedures regarding
the evaluation of contractor performance. This action is necessary
because EPA's current regulation eliminates the use of the National
Institutes of Health (NIH) Contractor Performance System to record
contractor performance histories for construction acquisitions. This
revision will allow EPA contracting officers to utilize the NIH system
for construction type acquisitions in lieu of the Federal Acquisition
Regulation prescribed Standard Form 1420, Performance Evaluation
(Construction Contracts). The NIH obtained approval from the Civilian
Agency Acquisition Council regarding the use of its construction module
in lieu of Standard Form 1420.
DATES: This final rule becomes effective December 2, 2002.
FOR FURTHER INFORMATION CONTACT: Frances Smith, U.S. Environmental
Protection Agency, Office of Acquisition Management, Mail Code 3802R,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Telephone: (202)
564-4368.
SUPPLEMENTARY INFORMATION: Information on the regulation of contractor
performance evaluations is organized as follows:
I. Background
This final rule amends the Environmental Protection Agency
Acquisition Regulation Subpart 1509.170 and 1552.209-76 to allow EPA
contracting officers to utilize the construction module in the National
Institutes of Health's Contractor Performance System. EPA currently
uses the services module in the NIH system to evaluate contractor
performances of both large and small businesses who are awarded EPA
contracts in excess of $100,000.
A proposed rule was published in the Federal Register (67 FR 7657-
7660) on February 20, 2002, providing for a 30 day comment period.
There were no comments received regarding the proposed rule.
II. Final Action
This final rule will allow EPA contracting officers to use either
the services module or the construction module in the National
Institutes of Health's Contractor Performance System, depending on the
type of acquisition.
III. Statutory and Executive Order Reviews
Executive Order 12866
This final rule 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).
Paperwork Reduction Act
The Paperwork Reduction Act applies to this final rule, and the
information collection request has been evaluated by the Office of
Management and Budget. The Office of Information and Regulatory Affairs
within the Office of Management and Budget has issued OMB Clearance No.
9000-0142 for the collection of contractor performance information.
Comments regarding Paperwork Reduction Act concerns should be sent to
the Office of Management and Budget (Attn: EPA Desk Officer).
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 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 rule on small
entities,
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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 proposed 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 requires no reporting or record-keeping by small or
large business contractors. Rather, it provides EPA contractors with a
formal opportunity, generally once a year per contract, to review and
comment on their specific performance evaluations as conducted by the
cognizant EPA contracting officer. Therefore, this final rule will have
no adverse or significant economic impact on small entities.
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
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, this final rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
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.
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'' as defined in the
Executive Order 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 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 distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
National Technology Transfer and Advancement Act of 1995
EPA will use voluntary consensus standards, as directed by 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), in its
procurement activities. The NTTAA 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 rulemaking does not involve technical standards. Therefore,
EPA is not considering use of any voluntary consensus standards.
Executive Order 13211 (Energy Effects)
This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
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
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Congress and to the Comptroller General of the United States. EPA will
submit a report containing this 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).
List of Subjects in 48 CFR Parts 1509 and 1552.
Government procurement.
Dated: October 18, 2002.
Judy S. Davis,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 15 is amended as set forth below:
1. The authority citation for Parts 1509 and 1552 is revised 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 1509--[AMENDED]
2. Section 1509.170-3 is amended by revising paragraphs (a), (c),
and adding paragraph (d) to read as follows:
1509.170-3 Applicability.
(a) This subpart applies to all EPA acquisitions in excess of
$100,000, except for architect-engineer acquisitions, acquisitions
awarded under the Federal Acquisition Regulation (FAR) Subpart 8.6,
Acquisitions from Federal Prison Industries, Incorporated, FAR Subpart
8.7, Acquisitions from Nonprofit Agencies Employing People Who Are
Blind or Severely Disabled, and FAR 13.5, Test Program for Certain
Commercial Items. FAR 36.604 provides detailed instructions for
architect-engineer contractor performance evaluations.
* * * * *
(c) EPA Form 1900-26, Contracting Officer's Evaluation of
Contractor Performance, and EPA Form 1900-27, Project Officer's
Evaluation of Contractor Performance, applies to all performance
evaluations completed prior to May 26, 1999. Thereafter, EPA Forms
1900-26 and 1900-27 are obsolete, and contracting officers shall
complete all contractor performance evaluations by use of the National
Institutes of Health's Contractor Performance System in accordance with
EPAAR paragraph (a) of this section.
(d) Construction acquisitions shall be completed by use of the NIH
construction module. Performance evaluations for construction
acquisitions shall be completed in accordance with EPAAR 1509.170-5.
3. Section 1509.170-4 is amended by revising the last sentence in
paragraph (f) to read as follows:
1509.170-4 Definitions.
* * * * *
(f) * * * Performance categories include quality, cost control,
timeliness of performance, business relations, compliance with labor
standards, compliance with safety standards, and meeting Small
Disadvantaged Business subcontracting requirements.
4. Section 1509.170-5 is amended by revising paragraph (b) to read
as follows:
1509.170-5 Policy.
* * * * *
(b) For service type acquisitions, contracting officers shall use
the National Institutes of Health (NIH) Contractor Performance System
to record evaluations for all contract performance periods expiring
after May 26, 1999. For construction type acquisitions, contracting
officers shall use the NIH system to record evaluations for all
contract performance periods expiring after December 2, 2002.
* * * * *
5. Section 1509.170-8 is amended by revising paragraph (b) to read
as follows:
1509.170-8 Contractor Performance Report.
* * * * *
(b) The performance categories and ratings used in the evaluation
of contractor performance are described in the clause at 1552.209-76.
The NIH system provides instructions to assist contracting officers and
project officers with completing evaluations.
PART 1552--[AMENDED]
6. Section 1552.209-76 is amended by revising the undesignated text
between the section heading and paragraph (a), revising paragraphs
(a)(2), (b)(2) and (b)(4) to read as follows:
1552.209-76 Contractor Performance Evaluations.
As prescribed in section 1509.170-1, insert the following clause in
all applicable solicitations and contracts.
Contractor Performance Evaluations (October 2002)
The contracting officer shall complete a Contractor Performance
Report (Report) within ninety (90) business days after the end of each
12 months of contract performance (interim Report) or after the last 12
months (or less) of contract performance (final Report) in accordance
with EPAAR 1509.170-5. The contractor shall be evaluated based on the
following ratings: 0 = Unsatisfactory, 1 = Poor, 2 = Fair, 3 = Good, 4
= Excellent, 5 = Outstanding, N/A = Not Applicable.
The contractor may be evaluated based on the following performance
categories: Quality, Cost Control, Timeliness of Performance, Business
Relations, Compliance with Labor Standards, Compliance with Safety
Standards, and Meeting Small Disadvantaged Business Subcontracting
Requirements.
(a) * * *
(2) Evaluate contractor performance and assign a rating for
quality, cost control, timeliness of performance, compliance with labor
standards, and compliance with safety standards performance categories
(including a narrative for each rating);
* * * * *
(b) * * *
(2) Assign a rating for the business relations and meeting small
disadvantaged business subcontracting requirements performance
categories (including a narrative for each rating).
* * * * *
(4) Provide any additional information concerning the quality, cost
control, timeliness of performance, compliance with labor standards,
and compliance with safety standards performance categories if deemed
appropriate for the evaluation or future evaluations (if any), and
provide any information regarding subcontracts, key personnel, and
customer satisfaction; and
* * * * *
[FR Doc. 02-27617 Filed 10-30-02; 8:45 am]
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