[Federal Register Volume 59, Number 75 (Tuesday, April 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8871]


[[Page Unknown]]

[Federal Register: April 19, 1994]


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Part II





Environmental Protection Agency





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48 CFR Part 1501, et al.




Acquisition Regulation Concerning Conflicts of Interest; Final Rule
ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1501, 1509, 1510, 1512, 1527 and 1552

[FRL-4862-5]

 
Acquisition Regulation Concerning Conflicts of Interest

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule amends the EPA Acquisition Regulation (EPAAR) 
coverage on organizational conflicts of interest for all EPA contracts. 
In addition, it adds EPAAR coverage on conflicts of interest related to 
contractor personnel working under EPA Superfund contracts and 
conflicts of interest related to contractors' future work which may 
jeopardize Superfund work. Under this rule, contracts funded through 
EPA's Superfund program will contain clauses: requiring contractor 
employees working on EPA Superfund contracts to sign confidentiality 
agreements; requiring a contractor to notify the Agency immediately of 
any conflicts of interest regarding contractor personnel working on the 
EPA contract; and restricting a contractor's future contracts, outside 
of those with EPA, when such contracts may conflict with the work 
performed for EPA. These changes are necessary to avoid actual or 
potential conflicts of interest in work performed under EPA Superfund 
contracts.

EFFECTIVE DATE: This rule is effective May 19, 1994.

FOR FURTHER INFORMATION CONTACT: Environmental Protection Agency, 
Office of Acquisition Management (3802F), 401 M Street SW., Washington, 
DC 20460, attn: Calvin C. McWhirter (202) 260-9165.

SUPPLEMENTARY INFORMATION:

A. Background

    Federal Acquisition Regulation (FAR) section 9.501 defines an 
organizational conflict of interest as existing when ``because of other 
activities or relationships with other persons, a person is unable or 
potentially unable to render impartial assistance or advice to the 
Government, or the person's objectivity in performing the contract work 
is or might be otherwise impaired, or a person has an unfair 
competitive advantage.'' Under EPA's Superfund program, contractors are 
often asked to assist the Agency in designing remedial actions to clean 
up hazardous waste sites, in identifying potentially responsible 
parties (PRPs) at hazardous waste sites and in implementing actions to 
effect the cleanup. After identification of PRPs for specific sites, 
the Agency will attempt to secure private party conducted response 
action or to expend Superfund Trust Funds to conduct response action 
and to recover costs expended for cleanup either through consent 
agreements or litigation.
    Under the Superfund program it is essential that contractors not 
enter into outside contracts or use personnel which might result in an 
actual or potential conflict of interest. In addition, since litigation 
may continue for several years after a contractor has completed work 
and the contractor may be asked to testify on the work performed for 
EPA, it is essential that actual or potential conflicts of interest be 
avoided even after the contract work has been completed.
    In addition to organizational conflicts of interest, EPA must 
ensure that contractor personnel assigned to work on EPA contracts are 
free from personal conflicts of interest that might impair their 
ability to perform the required work in an impartial manner. EPAAR 
clauses have been developed which will require EPA's Superfund 
contractors to ensure that actual or potential personal conflicts of 
interest regarding contractor personnel are identified and reported to 
the EPA Contracting Officer.
    These clauses shall be incorporated into new solicitations and new 
contracts. Clauses for contracts existing as of the effective date of 
this rule shall be negotiated by the EPA Contracting Officer, on a 
case-by-case basis, and shall be substantially similar to the clauses 
required by this rule.
    The Agency has developed a Long Term Contracting Strategy to more 
effectively manage the Superfund program over the next ten years. The 
clauses in this rule reflect the changing nature of the Superfund 
program. Although we intend to implement the Strategy with minimal 
program disruption, there may be some changes to the form of some 
existing Superfund contracts. Therefore, we anticipate the clauses in 
this rule may require updating to reflect ongoing changes to the 
Superfund program.
    This rule was published as a proposed rule in the Federal Register 
on April 26, 1990, at 55 FR 17724. Twenty-two public comments were 
received. We express our appreciation to all the interested 
organizations for the time they took in studying the proposed rule and 
preparing comments. As a result of these comments, we have made a 
number of revisions to the rule. In seriously considering all of the 
comments, we implemented recommendations that would improve the quality 
of the rule and minimize the burden to the contractor community, yet 
ensure that EPA's programs are adequately protected. Part B of the 
preamble summarizes the general issues raised and provides EPA's 
response and Part C of the preamble addresses section-specific 
comments.
    In addition, the numbering in EPAAR subpart 1509.5 is being amended 
to conform with numbering changes to FAR subpart 9.5. These changes are 
made solely to conform to the FAR numbering scheme and do not otherwise 
affect the existing EPAAR.

B. General Comments

1. Response to EPA Conflict of Interest Rule

    Many commenters expressed support for an EPA rule on conflict of 
interest although some recommended that EPA withdraw the proposed rule. 
We welcome public support and are committed to implementing a conflict 
of interest rule that protects the integrity of the Superfund and other 
EPA programs.

2. Previously Issued Conflict of Interest Guidance

    Many commenters expressed concern that the January 1990, memorandum 
from the Director of the EPA's Procurement and Contracts Management 
Division, which conveyed general guidance on conflict of interest to 
Superfund contract staff and Superfund contractors, was not published 
with the proposed rule and formally open for public comments. Some also 
expressed concern with issues it raised and requested that it be 
rescinded. Others mentioned that they were pleased that the proposed 
rule was a considerable improvement over the January 1990, guidance. It 
was EPA's intent that the proposed rule supersede the January 1990, 
guidance. We would like to make it clear that this final rule and its 
preamble discussion supersedes the January 1990, guidance and the 
proposed rule.

3. Justification for Special Conflict of Interest Provisions

    Some commenters questioned EPA's authority to implement a conflict 
of interest rule and questioned the need for an EPA rule on conflicts 
of interest stating that adequate safeguards exist. Others contended 
that there is no balance between the benefits to be achieved compared 
to the cost of compliance.
    We disagree. FAR subpart 1.3 provides agencies with the authority 
to implement supplemental acquisition regulations to satisfy specific 
needs of the agency. We have developed the conflict of interest rule to 
address the specific requirements of EPA's Superfund and other programs 
since sufficient coverage is not provided by existing regulations.
    In the past few years, the General Accounting Office (GAO) in 
conducting reviews of EPA's programs, the EPA in performing management 
studies of the Superfund program, and Congressional Committees have all 
concluded that EPA's existing conflict of interest procedures are 
inadequate to protect its programs. The GAO in its report ``Superfund 
Contracts: EPA's Procedures for Preventing Conflicts of Interest Need 
Strengthening'' (GAO/RCED-899-57), dated February 1989, and EPA, in the 
Administrator's Management Review of the Superfund Program (1989), 
pointed out the special vulnerability of the Superfund program and 
strongly recommended that action be taken to strengthen EPA's existing 
procedures.
    EPA is responsible for leading the nation's efforts to protect and 
clean up the environment. This includes the development of 
environmental standards, control of toxic substances and the cleanup of 
hazardous wastes, as well as enforcement of applicable laws and 
regulations. Historically, the Agency has relied heavily upon 
contractors to accomplish its mission, and much of this work is highly 
sensitive, particularly in the Superfund program. The Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA 
or Superfund) 42 U.S.C. 9601-9675, consists of Public Law 96-510 (Dec. 
11, 1980) and the amendments made by subsequent enactments. It provides 
for liability, compensation, cleanup and emergency response for 
hazardous substances released into the environment and the cleanup of 
hazardous waste disposal sites. Because EPA has the dual responsibility 
of cleanup and enforcement and because its contractors are often 
involved in both activities, and may conduct work for EPA and the 
private sector, it is imperative that EPA contractors are free of 
conflicts so as not to jeopardize CERCLA response and enforcement/cost 
recovery actions (hereinafter referred to as enforcement).
    This rule focuses primarily on performance after contract award, 
unlike FAR which focuses on conflict of interest issues related to 
contractor eligibility for award. Under Superfund contracts, work is 
performed at multiple sites and new and constantly changing cleanup 
priorities make it impossible for EPA to identify, prior to contract 
award, all site locations where work will be performed. In addition, it 
is impossible for EPA to predict, prior to contract award, enforcement 
actions against PRPs at specific sites. Moreover, such cases may take 
years to resolve. Therefore, EPA must address conflicts of interest 
during and after contract performance to effectively monitor conflicts 
and safeguard Superfund enforcement.
    U.S. Department of Justice and EPA attorneys, enforcing CERCLA, 
stress the importance of avoiding conflicts of interest in the 
Superfund program. Conflicts of interest discovered after work has 
begun can create costly delays in cleanup of sites when EPA must 
mitigate damage resulting from conflicts to safeguard cleanup work and 
enforcement from further prejudice. Therefore, it is imperative that 
EPA contractors do not perform work for PRPs that conflicts with work 
performed for the Agency. Conflicts arise because of differing 
interests of the EPA and PRPs. EPA's primary concern is to assure that 
adequate environmental protection is provided, as opposed to the 
primary interests of PRPs, who are usually motivated to keep costs 
minimized. Because these conflicts often arise in the context of 
adversarial enforcement proceedings, such conflicts and leaks of 
sensitive enforcement information not only jeopardize cases at the 
litigation stage, but also weaken the Government's position both in 
obtaining PRP commitment to clean up sites and in cost recovery 
negotiations with PRPs. To date, EPA has the potential to seek over 
$4.5 billion in cost recovery; the stakes are high.
    EPA must preserve the integrity of the Superfund Program from 
conflicts of interest and cannot afford to jeopardize the success of 
cost recovery actions and impede PRP cleanup of hazardous waste sites. 
A contractor's conflict of interest can harm our Superfund litigation 
(either cost recovery litigation under section 107 of CERCLA, or 
litigation for injunctive relief under section 106) in several ways: 
(1) By creating a conduit for confidential government information, 
including potential litigation and negotiation strategies, which may be 
leaked to the parties with opposing interests in the litigation, (2) by 
subjecting the credibility of EPA witnesses and/or the work they 
perform on behalf of EPA to attack, and (3) by causing the work 
performed by that contractor to be redone, raising potential issues in 
cost recovery litigation as to whether the cost of the extra work is 
recoverable. This rule requires EPA contractors to disclose all 
conflicts of interest so that EPA will have the opportunity to consider 
the significance of the conflict and to take appropriate measures to 
avoid, mitigate, or neutralize the conflict of interest.
    EPA has indeed faced several actual conflict situations which 
demonstrate the need for the Agency to strengthen its conflict of 
interest procedures in order to protect the public interest: One such 
conflict involved a contractor which had performed a removal action for 
EPA on a hazardous waste-contaminated site and which was currently 
doing research work for EPA pertaining to that site. Another office of 
the contractor's company agreed to serve as an expert witness in the 
EPA cost recovery litigation on behalf of one of the PRPs and, thus, 
against EPA, without knowledge or approval of the Agency. The 
contractor's work in performing the removal action and research for EPA 
in anticipation of cost recovery litigation conflicted directly with 
the contractor's serving as an expert witness on behalf of one of the 
PRPs. Further, the contractor proceeded to convey confidential 
information to the PRP in the context of trying to explain to the PRP 
why there was no conflict. Although settlement negotiations proceeded 
in this case, the strength of the Agency's position was significantly 
weakened because the contractor was working for both parties and 
confidential sensitive information had been divulged to the PRP.
    Many of the issues in Superfund litigation ultimately are matters 
of expert technical opinion for which EPA relies on contractor 
personnel, e.g., support of remedy selection and findings that sites 
present ``imminent and substantial endangerment'' to the public. In 
that role, contractors may be privy to the government's litigation and 
negotiation strategies and other privileged and confidential 
information. The above case has taught us that contractor ``side 
switching'' carries a strong potential for the passing of confidential 
information to defendants, even if unintentionally.
    In another actual case, a contractor was performing remedial 
investigation/feasibility study work for both the EPA and a major PRP 
on a contiguous site. Well over a quarter of a million dollars had been 
expended by EPA prior to the discovery of the conflict. Work 
subsequently had to be stopped and all work which had been completed by 
the contractor had to be either redone and/or verified for accuracy and 
completeness by another independent contractor. In addition to the 
fiscal drain on the Superfund Program that this causes, we are also 
likely to be faced in cost recovery litigation with a defense argument 
that such ``double expense'' is unnecessary and unrecoverable. This may 
also increase the time and expense that the litigation and negotiation 
require, not including the potential millions of dollars at risk during 
the cost recovery/enforcement action itself.
    Still another conflict case in which cost recovery litigation was 
adversely impacted involved a subcontractor who was performing PRP 
searches, negotiation support, and oversight of PRP work on a site for 
the EPA. The subcontractor not only had a significant financial 
relationship with the PRPs of that site, but was also representing and 
performing related work for the PRPs on the same site. The 
repercussions of this conflict involved not only a significant delay in 
the Agency's ability to cleanup the site, but also tens of thousands of 
dollars in transition costs to remove and replace the subcontractor.
    EPA's concerns regarding conflicts of interest are very real. As 
EPA continues to clean up the environment and to try to recover the 
costs of the cleanup from PRPs, EPA seeks, through this rule, to 
protect the public from delays and increased costs. For example, EPA 
contractors may perform remedial design work for EPA by developing 
plans and specifications for a selected cleanup remedy at a site. If 
that contractor also works for a PRP to assess the contamination at the 
same site, EPA, PRPs, and the public may question the integrity and 
objectivity of the work the contractor has performed for EPA. Moreover, 
EPA could face difficulty in utilizing the contractor's expertise and 
experience in supporting the merits of EPA's enforcement case. Judges 
and juries may doubt the credibility of a factual or expert witness who 
has performed conflicting work and may have inconsistent opinions. 
Another example of how EPA's enforcement could be jeopardized in the 
future would be if a contractor who performs technical enforcement 
support for EPA, including searches for and case histories of PRPs, 
subsequently or concurrently worked for the PRP on the same case. 
Again, contractors performing this and other types of Superfund work 
are often privy to sensitive EPA litigation information and case 
management plans and could divulge such information to the PRP. If such 
information was leaked or otherwise divulged intentionally or 
unintentionally, the Government's case may be damaged by disclosure to 
the PRP of litigation strategy. In addition, if documents deemed 
confidential and privileged were released, such documents could then be 
admitted into evidence in opposition to the Government's case.
    We disagree with commenters that the Agency has not considered the 
balance between the cost of the rule and the benefits to EPA of 
avoiding conflicts. We believe there must be uniform regulatory 
requirements to raise contractors' awareness and understanding of 
conflict of interest problems and the procedures needed to prevent 
them. Over the past few years, the development of this rule with its 
strong conflict of interest provisions has created a heightened 
sensitivity to conflict of interest matters throughout EPA's programs 
and the contractor community. As a result, we are already seeing an 
increase in contractors reporting of potential conflicts to the Agency. 
Certainly, with the tremendous cost of cleaning up the environment, we 
need to ensure the integrity of our procurement program and cannot 
afford to jeopardize our enforcement actions and impede PRP cleanup of 
hazardous waste sites. EPA has seriously considered the cost of the 
rule and has worked to minimize the rule's burden to the contractor 
community, yet ensure adequate protection of its programs.

4. Pending FAR Regulations and Consistency With OFPP Policy Letter 89-1

    Some commenters expressed concern with the publication of EPA's 
rule prior to the publication of the pending FAR regulations, and some 
expressed concern that the proposed rule is inconsistent with and goes 
beyond the existing regulations and OFPP Policy Letter 89-1. On October 
22, 1990, the interim regulations were published as FAC 90-1, amending 
the FAR subpart 9.5 on conflicts of interest. On October 25, 1991, the 
interim rule was converted to a final rule. We have carefully reviewed 
our rule to ensure its harmony with FAR subpart 9.5. The rule 
specifically addresses the unique requirements of the Superfund program 
which are not covered by other regulations. To safeguard our 
enforcement actions and ensure the integrity of our cleanup program, it 
is essential that we monitor not only conflicts of interest prior to 
award, but also conflicts during and after performance. These special 
provisions are not inconsistent with FAR subpart 9.5.

5. Definition of Conflicts of Interest

    A number of comments concerned the definition of types of conflicts 
of interest. The term ``conflict of interest'' in this rule has the 
same definition as contained in FAR Subpart 9.5. EPA has not adopted 
any unique or agency specific definitions for types of conflicts of 
interest. EPA also has included the term ``personal conflicts of 
interest'' which is not defined in the FAR. For clarity, we have 
provided a definition of personal conflict of interest in EPAAR Clause 
1552.209-73, Notification of Conflicts of Interest Regarding Personnel. 
A personal conflict of interest is ``a relationship of an employee, 
subcontractor employee, or consultant with an entity that may impair 
the objectivity of the employee, subcontractor employee, or consultant 
in performing the contract work.''

6. Apparent Conflict of Interest

    A number of commenters objected to the expansion of conflict of 
interest to include the term ``apparent'' and indicated that the term 
was too vague and was not defined in the rule. To be consistent with 
FAR Subpart 9.5, this term has been removed from the rule. 
Nevertheless, EPA strongly supports the OFPP approach on this issue and 
will fully comply with section 6(d) of OFPP Policy Letter 89-1, which 
mandates, ``Federal procurement officials shall encourage contractors 
to consider carefully the potential for conflicts of interest in all of 
their activities associated with federal procurement, and shall be 
sensitive to the appearance of conflicts of interest in any contracting 
actions.'' A comment was also received which stressed that contractors 
that work for both private and public parties should avoid and mitigate 
both actual conflicts of interest and the appearance of conflicts in 
order to protect the public interest. Accordingly, our contractors 
should be sensitive to the appearance of conflicts of interest in all 
contract actions.

7. Potential and Actual Conflicts of Interest

    Several commenters took exception to EPA's inclusion of the term 
``potential'' to describe a particular type of conflict as being too 
vague and overly restrictive, and one commenter stated that the term 
``actual conflict'' was undefined and contrary to the FAR. We disagree 
and are retaining the terms in the rule. The concept of potential 
conflicts is well established in acquisition regulations. FAR Subpart 
9.5 provides examples of situations involving potential conflicts of 
interest and also includes the term ``actual'' conflict of interest.

8. Significant Conflict of Interest

    Some commenters recommended that EPA only be concerned with the 
reporting of significant conflicts of interest. We disagree. It is 
unacceptable for contractors to report only conflicts which they 
consider significant. All actual and potential conflicts of interest 
that are identified must be reported to the appropriate EPA Contracting 
Officer. In accordance with the process set out in FAR Section 9.504, 
the EPA Contracting Officer identifies and evaluates conflicts, makes a 
determination of whether a conflict is significant and determines if 
the conflict can be avoided, mitigated, or neutralized.

9. Restriction of Contracting Officer's Decision Making Authority

    Two comments received expressed concern that the rule will infringe 
upon or eliminate the Contracting Officer's decision making authority 
on conflicts of interest. In particular, the comments stressed that it 
is important that Contracting Officers make decisions on a case-by-case 
basis and that EPA is abrogating its responsibilities by placing the 
full burden on contractors to disclose conflicts of interest no matter 
how insignificant or immaterial.
    Nothing in this rule restricts the Contracting Officer from making 
decisions on conflicts of interest on a case-by-case basis. In fact, 
Contracting Officers are required to make decisions on a case-by-case 
basis in accordance with FAR subpart 9.5. The existing EPAAR requires 
contractor disclosure of conflicts and the rule does not change this 
responsibility. This disclosure requirement does not mean that the 
Contracting Officer will find that every reported conflict is 
significant or that it cannot be avoided, neutralized, or effectively 
mitigated, but rather allows the Contracting Officer the opportunity to 
carefully evaluate the facts of each case and make an informed 
determination that protects our programs and the public interest. 
Clearly, both EPA and its contractors have a continuing responsibility 
to identify and prevent conflicts of interest in federal procurement. 
However, it is not feasible or practicable for EPA to routinely search 
and review contractors' business records to unearth conflicts. Such 
action would be inappropriate and intrusive. Therefore, as a practical 
matter, we must require contractors to report conflicts.

10. Limitation of Disclosure

    One commenter recommended that EPA revise the rule to address 
disclosure of client information regarding the same subject matter as 
the instant solicitation, or directly relating to such subject matter 
as the instant solicitation. The commenter recommended either limiting 
disclosure to information connected to the solicitation or to work 
performed in the same state or region where the work for EPA will be 
performed.
    EPA requires disclosure of conflict of interest information related 
to the work performed or that will be performed for EPA. We do not 
require the submission of unrelated client or other information. All 
that is required is sufficient information for the EPA Contracting 
Officer to make an informed conflict of interest determination.

11. Disclosure of Client Information

    One comment raised the concern that contractors may be unable to 
divulge work performed for clients and the dollar value, since this 
information as well as client lists are routinely claimed to be 
confidential.
    The rule does not require the release of client lists or the 
reporting of the dollar value of work performed for clients. Rather, we 
require that a contractor disclose sufficient information to the 
Contracting Officer so that the Contracting Officer can make an 
informed decision. In most cases, this would involve the name of a 
client creating the potential conflict or the contractor, particularly 
if the client is a PRP on the site, and information regarding the 
nature of the work. Each case is different and there may be occasions 
where a client routinely claims confidentiality for the release of its 
name and other information concerning the conflict. If a disclosure 
waiver cannot be obtained from the client, the contractor should 
explore with the Contracting Officer suitable alternatives for 
providing information sufficient to permit the Contracting Officer to 
render an informed decision on the conflict. We urge contractors to 
identify confidential business information and stress that EPA is 
committed to protecting sensitive business and other information to the 
full extent permitted by law.

12. Availability of PRP Listings

    Commenters expressed the concern that contractors can not identify 
all conflicts of interest unless EPA informs contractors of all of the 
PRPs and of the possibility of future enforcement actions. They further 
stated that contractors are unable to sign the certifications 
accurately unless they know these facts. Several commenters also 
suggested that to avoid delays in contractor disclosure and 
certifications, EPA should furnish up-to-date listings of PRPs.
    EPA acknowledges the fact that PRPs are continually being 
identified and that contractors will not always have sufficient 
knowledge of all PRPs at the time certification is submitted. We 
require contractors to certify to the best of their knowledge and 
belief at the time of the certification. It is not EPA's intention to 
hold a contractor accountable for information which the contractor did 
not know or have reason to know at the time the certification was 
executed. We wish to stress, however, that disclosure of conflicts is a 
continuing obligation, and certification is a statement that should 
demonstrate a contractor has made a good faith effort to disclose all 
potential conflicts of interest. In order to alleviate contractors' 
concerns, the time period for the submission of the work assignment 
certification has been extended to permit a more reasonable time period 
for contractors to contact EPA and obtain the most current information 
concerning PRPs and future enforcement actions pertaining to sites 
identified in the work assignments or contract. The term ``work 
assignment'' in this rule includes other similar tasking documents such 
as a delivery order or a technical direction document. EPA is committed 
to providing contractors with the list of known PRPs for sites at the 
time of work assignment issuance. EPA is currently working to make 
available to all Contracting Officers the Superfund Enforcement 
Tracking System (SETS) report, which tracks PRPs by site. This report 
is available to the public through the National Technical Information 
Service (NTIS), Springfield, Virginia.

13. Period of Record for Conflict of Interest Checks

    One commenter requested clarification of the period to be searched 
for organizational and personal conflicts of interest. The commenter 
suggested that the organizational check include all prior work 
performed by the contractor but that the personal conflict of interest 
check be limited to the period of time that the individual is employed 
by the company or for a one year period, whichever is greater.
    In accordance with FAR 9.5, EPA will require all contractors who 
have at least three years of records to search back through the 
immediately preceding three years of records. For contractors who do 
not have three years of records to search, a transition period for 
searches will be implemented requiring the contractor to search any 
records that it has until, over time, three years of records are 
accumulated. Contractors, however, are always required to report any 
conflicts of which they are aware. We emphasize that a contractor is 
not required to collect, maintain or search records on personal 
conflicts of interest. The requirement on the contractor is to inform 
its employees, performing work under or related to EPA contracts, of 
their obligation to report conflicts of interest. It is the employees' 
responsibility to review their current and past activities and to 
report potential conflicts of interest to their employers.

14. Elimination of Conflicts by Full Disclosure of Contractor Roles

    One commenter stated that EPA should focus on full disclosure of 
roles, since where full and open disclosure of a contractor's role 
exists no conflict of interest can occur. We disagree. Although we 
certainly believe in openness regarding the role of contractors in 
EPA's procurement program, we fail to see how full disclosure of the 
role of contractors eliminates the existence of conflicts. Rather, it 
is contractor disclosure of potential conflicts to EPA that provides 
the opportunity to avoid, mitigate, or neutralize conflicts.

15. Centralized Decision Making

    Many comments were received recommending the establishment of a 
centralized decision making function with an administrative contracting 
officer at EPA headquarters having the responsibility for decisions on 
all conflict of interest requests. It was pointed out that this would 
achieve consistency in conflict of interest determinations.
    We have seriously considered this as an option and have rejected 
it. A central administrative contracting officer would not have the 
necessary background or knowledge of the individual contracts to make 
well informed conflict of interest determinations. We believe that a 
decentralized approach to conflict of interest decision making, where 
determinations are made by the EPA Contracting Officer for the contract 
on a case-by-case basis, is the more effective approach.

16. Objective Standards for Determining Conflicts of Interest

    One commenter requested that meaningful objective standards be 
adopted to evaluate significant personal and organizational conflicts 
of interest.
    FAR subpart 9.5 provides definitions and general rules pertaining 
to conflict of interest, but do not include objective standards. 
Conflict of interest is a subject for which objective standards are 
difficult to formulate. However, this does not mean that conflicts 
cannot be described through definitions and general rules. In addition 
to the examples included in the FAR, EPA Contracting Officers receive 
training and assistance on conflict of interest issues from the 
conflict of interest staff within EPA's Office of Acquisition 
Management. Therefore, Contracting Officers will have available 
examples and precedents to assist them in their conflict of interest 
determinations.

17. Limited EPA Resources To Administer Conflict of Interest

    One commenter expressed concern that EPA would not have the 
resources to efficiently administer the rule, and other commenters 
recommended that EPA provide examples of conflicts of interest to help 
Contracting Officers respond consistently and wisely and prevent delays 
associated with these new regulations.
    We believe the Agency has sufficient staff to administer these 
regulations. In the past, response times were sometimes delayed not 
because of a lack of resources but because of insufficient training and 
experience. EPA is committed to a comprehensive conflict of interest 
training program for its Contracting Officers and project personnel. 
The training will include a collection of case studies and examples 
upon which to base conflict of interest decisions.

18. Applicability of the Rule to Superfund Work Outside EPA

    Another commenter, expressing support for the rule, suggested that 
the EPA should consider and clarify how the provisions in the rule can 
be enforced equally with respect to all Superfund contracts, whether 
they are let by EPA or other Federal agencies, such as the U.S. Army 
Corps of Engineers, or the States.
    This rule applies only to contracts awarded by EPA. EPA can 
encourage the use of similar provisions in contracts for Superfund work 
awarded by other agencies or States. However, it cannot require 
agencies or States to include similar provisions in those contracts. 
EPA is currently exploring the possibility of including its clauses in 
agreements that pertain to Superfund work in contracts awarded by other 
agencies or States.

19. Applicability of the Rule to Contractor Work for the Public Sector

    Some commenters suggested that the rule apply to EPA contracts only 
and have no bearing on work performed for other Federal agencies. It 
was pointed out that the rule lacks a discussion of how the 
restrictions in this rule bear on the ability of contractors to seek 
similar work from other Federal agencies and the States. Particular 
concern was raised that EPA not restrict its contractors from working 
simultaneously for other agencies such as the Department of Energy 
(DOE) and the Department of Defense (DOD) since this would be contrary 
to the public interest.
    The EPA is committed to working closely with other agencies and 
States to ensure the effective and expedited cleanup of hazardous waste 
sites throughout the country and encourages the use of the best cleanup 
technology available. It is not our intention to restrict EPA 
contractors from working for the public sector. We strongly encourage 
contractors to perform work for other Federal agencies and States when 
such work does not create a conflict of interest problem which would 
impair the contractor's objectivity in performing work for EPA or 
damage the integrity of the EPA's cleanup and enforcement actions. We 
have intentionally made no distinction between the public and private 
sector in the rule's reporting requirements. To safeguard our programs, 
we must require that all actual or potential conflicts of interest be 
identified, avoided, mitigated, or neutralized.
    The EPA has the responsibility to ensure compliance by Federal and 
State agencies with the requirements of CERCLA and the amendments made 
by subsequent enactments. Because of EPA's enforcement responsibility, 
the interests of EPA and other public organizations will not always be 
parallel and may at times be distinctly at odds. For example, the 
interests of the EPA and DOD or DOE may be very different regarding the 
terms of Federal Facility cleanup agreements. Therefore, it is 
important that our contractors are not placed in conflict situations. 
When an actual or potential conflict of interest exists with work that 
a contractor may wish to perform with another organization, whether 
public or private, the contractor shall report it to its EPA 
Contracting Officer so that an informed determination can be made based 
on a careful review of the facts, the legal and program considerations, 
and the best interest of the United States.

20. Qualified Contractors

    One commenter stated that EPA may not attract the most qualified 
contractors or best expertise as a result of implementing the conflict 
of interest regulations. We disagree. EPA promotes full and open 
competition and attracts the most highly qualified contractors to its 
procurement program. Securing qualified contractors and eliminating 
conflicts of interest are not opposing goals. In fact, most of the 
highly qualified firms which compete for EPA contracts have systems 
established within their organizations to identify and eliminate 
conflicts of interest.

21. Flow Down of the Clause to Subcontractors and Consultants

    A number of commenters stated that the categories of subcontractors 
and consultants exempted from the flow down of the conflict of interest 
clauses are too limited. They specifically questioned why the ``non-
discretionary technical or engineering services, including treatability 
studies,'' exempted in the proposed clause, EPAAR 1552.209-74, 
Limitation of Future Contracting (LOFC), are not included in the flow 
down exemptions of all of the rule's conflict of interest clauses.
    In developing this rule, we carefully evaluated the types of work 
performed by subcontractors and consultants under EPA's contracts, and 
identified certain classes of work that pose a minimal risk of conflict 
of interest. They include well drilling, fence erecting, plumbing, 
utility hookups, security guard services, and electrical services. We 
exempted these classes from the flow down provisions of all of the 
rule's EPAAR conflict of interest clauses. In addition, for the LOFC 
clause only, we also exempted subcontractors and consultants who 
perform ``non-discretionary technical and engineering services, 
including treatability studies.'' Although we believe that non-
discretionary technical and engineering services could pose some risk 
to the Agency, particularly since this category is so broad, we were 
able to exempt this work from the LOFC clause because sufficient 
protection was provided through coverage by the basic conflict of 
interest clauses, (EPAAR 1552.209-71 Organizational Conflicts of 
Interest, EPAAR 1552.209-73 Notification of Conflicts of Interest 
Regarding Personnel, and EPAAR 1552.227-76 Project Employee 
Confidentiality Agreement.)
    In the case of ``treatability studies'', we recognize that this 
type of work may have a high risk of conflict of interest, yet we 
believe it is in the public interest to promote innovative technology 
and exempt such subcontract work from any limitations on future 
contracting. However, because there may be a high risk of conflict for 
this type of work, it is essential that protection is provided by flow 
down of the basic conflict of interest clauses.

22. Expansion of the Class of Exemptions for Subcontractor Flow Down

    Several commenters requested that we broaden the classes of work to 
be exempt from the flow down requirements which apply to subcontractors 
and consultants in all of the conflict of interest clauses. Some 
provided specific suggestions of additional categories to be exempted 
including: Laboratory services, industrial hygiene, selected 
geotechnical consulting, medical surveillance, transportation services, 
and graphics printing.
    We have given serious consideration to the commenters' 
recommendations and believe that categorically exempting these types of 
work from flow down would pose an unacceptable risk of conflict of 
interest to the Agency. For example, if a laboratory services 
subcontractor were also providing environmental consulting services for 
a specific site in support of a PRP's legal position, it would be a 
conflict of interest for the same subcontractor to then take or analyze 
samples for the EPA from the same site. In addition, if a 
transportation subcontractor has a relationship with a disposal 
facility that is a PRP on a site, it would be a conflict of interest 
for that same transportation subcontractor to also perform work at or 
relating to the site for EPA, or involving the disposal facility. Each 
of the other recommended categories also poses such risks, and the 
Agency cannot categorically exempt them. However, we recognize there 
may be special cases in which these type of activities can be excluded 
and each clause allows for Contracting Officers to authorize such 
exemptions. Thus, we have added a provision permitting a contractor to 
request in writing that the Contracting Officer exempt from the flow-
down requirements of the Limitation of Future Contracting clauses a 
particular subcontract or consultant agreement for nondiscretionary 
technical or engineering services not specifically exempted in the 
clauses, including laboratory analysis. The Contracting Officer will 
review and evaluate each request on a case-by-case basis, before 
approving or disapproving the request.

23. Costs Associated With Flow Down of Clauses to Subcontractors

    Commenters expressed concern about the costs associated with the 
flow down requirements of the rule's clauses. One commenter asked if 
EPA is willing to pay for the costs associated with the LOFC flow down 
provision.
    The allowable and allocable costs associated with this rule may be 
chargeable to EPA contracts in accordance with the provisions of FAR 
part 31. This would also apply to allowable and allocable costs 
associated with this rule, which are incurred by non-exempt 
subcontractors or consultants, except that such costs would be 
submitted to EPA's prime contractor rather than to EPA. We anticipate 
that costs associated with future contracting requests under an LOFC 
clause will be minimal and would be performed as a part of the normal 
bid and proposal effort.

24. Expansion of Subcontractor Flow Down Exemption To Apply To Prime 
Contractors

    Some commenters also requested that prime contractors be exempt 
from the LOFC or other conflict of interest clauses when work to be 
performed under the prime contract is one of the exemptions identified 
in the flow down section of the clauses.
    We disagree. EPA prime contracts include a wide variety of tasks, 
many of which pose a high risk for conflict of interest. However, in 
the unlikely event that an EPA prime contractor only performed the type 
of work exempted in a specific subcontractor flow down provision, the 
contractor could request from the Contracting Officer an exemption from 
inclusion of that conflict of interest clause.

25. Small and Minority Business Concerns

    Two commenters raised concern that the rule conflicts with the EPA 
Administrator's initiative to provide more work to small and minority 
owned businesses and with Congressional intent to promote contracting 
with small business. The commenters asserted that small firms cannot 
absorb the high costs of maintaining complex conflict of interest 
systems. Other commenters expressed concern that the LOFC clause will 
hurt small businesses that need local markets because small businesses 
do not have the operational breadth that larger firms possess to avoid 
regions where conflicts may exist.
    It is essential that we avoid, mitigate, or neutralize conflicts of 
interest in all EPA contracting. However, we recognize the importance 
of small and minority owned businesses and strongly support their 
active participation in our procurement programs. We are currently 
implementing a Long Term Contracting Strategy for the Superfund program 
that will enhance the competitive environment and provide greater 
opportunities for small business participation by creating smaller, 
regionally based contracts and subcontracting opportunities under these 
contracts.
    Small businesses currently participate in the Superfund and other 
EPA programs primarily as subcontractors. As detailed in our discussion 
of flow down exemptions, a number of categories of subcontracts are 
specifically exempt from the requirements of the entire rule and ``non-
discretionary technical and engineering services'' subcontract work is 
exempt from all LOFC clause provisions. This substantially minimizes 
cost and associated burdens for many small businesses participating in 
our programs at both the local and national level. Moreover, at any 
time, a small business operating as either a prime contractor or a 
subcontractor may request waiver of clause requirements for 
nondiscretionary work which poses a minimal risk of conflict of 
interest.
    EPA does not require any special type of system to identify and 
report conflicts. Each contractor determines its own procedures for 
searching and identifying conflicts of interest, and in some cases, it 
may already have a process in place to identify conflicts in its 
commercial business. We anticipate that the scope of a company's 
procedures would be commensurate with the company's size and 
complexity, and for small businesses any system would be less complex 
and detailed.

26. Applicability of Rule to Related Organizations

    Several comments were received concerning the applicability of the 
rule to affiliates and other related organizations. A few commenters 
encouraged EPA to publish a uniform policy regarding the disclosure 
burden of contractors for work performed by parent and affiliate 
corporations as well as partnerships and other businesses. Most 
commenters opposed the burden of extending disclosure to conflicts of 
interest associated with related organizations, and stressed that it 
may be difficult to obtain information from affiliates regardless of 
common ownership.
    The issues regarding applicability of the rule to related 
organizations are complex. The rule does not specifically address 
related organizations, and it is not our intent to extend search and 
certification requirements to related organizations and create 
unnecessary reporting burdens. However, we do require our contractors 
to make a good faith effort to report conflicts as they are identified. 
If an EPA contractor is aware of a potential conflict or has reason to 
believe a related organization may create a conflict of interest for 
the contractor, checking with that organization to verify whether a 
conflict exists would certainly be warranted.
    If a contractor reports a conflict of interest involving a related 
organization and includes information which is designated as sensitive 
or proprietary, the EPA will protect such information from unauthorized 
disclosure. An opportunity to so mark such information shall be 
afforded to the submitter of the information.

27. Application of the Rule to Other Units of a contractor's 
Organization Which Do Not Perform Environmental Work

    One commenter wanted to know the extent to which the rule applies 
to other units of a contractor's organization which do not perform 
environmental work. The commenter further stated that it is unfair to 
restrict service areas of a firm that are unrelated to environmental 
consulting work or to the contractor unit working on an EPA contract.
    This rule applies to the corporation or other legal entity that has 
entered into a contract with EPA, and makes no distinction between 
separate divisions or units of the EPA contractor's organization. The 
fact that a part of the organization does not perform environmental 
work does not necessarily mean it would not have a conflict of 
interest. EPA only restricts its contractors from work which poses a 
significant conflict of interest to the Agency. We require our 
contractors to identify all potential conflicts of interest and notify 
the EPA prior to entering into a contract for types of work identified 
in the LOFC clause as posing a significant risk of conflict. This 
provides the EPA an opportunity to evaluate such work and prevent 
conflicts that may jeopardize work performed for EPA or ongoing 
enforcement actions.

28. Establishment of New Organizational Units To Avoid Conflicts of 
Interest

    A comment was received that expressed concern about a contractor 
establishing new ``units'' with the purpose of allowing the contractor 
to perform in different program areas where it might otherwise be 
precluded due to a conflict of interest. The comment included a 
suggestion that there should be a deterrent to allowing this type of 
loophole.
    EPA requires that contractors report to the EPA Contracting Officer 
all potential conflicts of interest with work performed for EPA. While 
there may be instances where an organizational conflict of interest may 
be mitigated effectively, all such potential conflict situations must 
be reported to the EPA so that the Contracting Officer can make an 
informed determination based on a careful evaluation of the facts and 
program and enforcement concerns.

29. Contractor Authority To Decline EPA Work

    One comment stated that an EPA contractor should be allowed to 
decline specific work assignments because of a conflict with other work 
that the contractor may have accepted after the EPA contract was 
awarded. We disagree. The contractor does not have the discretion to 
reject a work assignment. The contractor must report all conflicts of 
interest to the EPA Contracting Officer who evaluates conflicts, makes 
a determination of whether a conflict is significant and determines if 
the conflict can be avoided, mitigated, or neutralized. Under the terms 
of an EPA contract, a contractor is required to accept and perform work 
issued under work assignments. Where there is an overriding public 
interest to perform the work when a conflict of interest exists, the 
Contracting Officer may decide that the work should be performed 
despite the inability to avoid, mitigate, or neutralize the conflict. 
For example, if an emergency situation exists and immediate action is 
needed to stabilize a site to prevent injury to nearby residents, the 
Contracting Officer may determine that performance on the work 
assignment is necessary regardless of the contractor's inability to 
avoid, mitigate, or neutralize a conflict at the site.

30. Contractor's Right To Stop Work

    Commenters stated that a contractor should have the right to stop 
performance if it reasonably believes that there would not be a 
significant impact upon the Agency as a result of the work stoppage. We 
disagree. The contract requires performance, and work may be stopped 
only by the Contracting Officer. The Government's right to control 
costs incurred as a result of stopping work must be protected.

31. Time Limit for Responding to Conflict of Interest Requests

    Several commenters stated there should be a time limit, such as 
three or ten days, established for Contracting Officers to respond to 
any conflict of interest notification or LOFC request. Commenters 
further suggested that contractors should be able to assume that 
approval, if required, has been given if a response has not been 
received from EPA within ten days. The commenters stated that 
contractors may not only be placed in a position which may cause them 
to lose business due to slow responses by EPA, but also may be subject 
to bid bond forfeitures or other penalties for failure to accept a 
contract if time limits are not included in the rule. Also, for Federal 
contracts, contractors may risk having their bids found non-responsive 
if the bid is conditioned upon EPA granting approval to enter into the 
contract.
    Since each conflict of interest situation is unique and has varying 
degrees of complexity and because contractors often do not initially 
provide sufficient information for a Contracting Officer to make a 
timely decision, the establishment of an arbitrary time limit is not 
appropriate. We do not agree with the suggestion that failure to 
respond within ten days should automatically be interpreted as 
approval. Arbitrary time limits can result in procedural questions over 
submission and receipt dates and create delays. Although set response 
times are not included in the rule, EPA is committed to providing 
timely responses. We have clarified our LOFC clauses to indicate that 
contractors may seek an expedited response regarding their initial LOFC 
requests by submitting their requests to the Contracting Officer and 
the next level within the Contracting Officer's organization.

32. Review Process

    Several comments recommended that EPA institute an appeal process 
for contractors that want a review of an adverse conflict of interest 
decision made by a Contracting Officer. The decision on any conflict of 
interest determination is the responsibility of the EPA Contracting 
Officer. We have clarified the review process available for LOFC 
requests if a contractor disagrees with the decision of a Contracting 
Officer. The contractor may file a request with the Contracting Officer 
for reconsideration or the contractor may request that a Contracting 
Officer determination be reviewed at a higher administrative level. 
Filing a request for reconsideration however, does not preclude a 
contractor from seeking review at the next administrative level. The 
LOFC clause has been modified to include the review process.

33. Modification of Existing Contracts

    Comments were received which took exception to a unilateral 
placement of conflict of interest clauses into existing contracts. EPA 
does not intend to unilaterally place the new EPAAR clauses into 
existing contracts. Clauses substantially similar to these clauses 
shall be negotiated by the Contracting Officer for existing contracts, 
on a case-by-case basis, as stated in the general prescription to the 
clauses. The general prescription to the clauses, cited in the proposed 
rule as paragraph (c), EPAAR 1509.508, Solicitation provision and 
contract clauses, is redesignated, under the final rule, as EPAAR 
1509.507-2, Contract clause, to conform with recent numbering changes 
to FAR Subpart 9.5.

34. General Comments Concerning Improper Restriction of Competition and 
Its Effects

    Commenters expressed concern about a restriction of competition on 
Superfund work resulting from this rule. Commenters also stated that 
EPA has improperly restricted competition by placing overly broad 
future contracting limitations affecting sites, types of contracts, and 
parties with whom the contractor may contract. Commenters questioned 
the authority to impose ``post contract'' restrictions and stated that 
such activity should be governed by internal guidelines and market 
forces. Others stated that these clauses prevent EPA from having access 
to the most qualified sources in its contracting program. Other 
comments reflected an interpretation that the restrictions apply to 
affiliates and to contractor clients.
    We disagree with these comments. The LOFC clause and its alternates 
are not overly broad nor do they improperly restrict competition. The 
LOFC clause and each alternate are focused narrowly upon areas which 
have a high potential for conflict. The authority for ``post contract'' 
restriction is recognized in FAR Section 9.507.
    Many EPA Superfund solicitations and contracts currently include 
clauses similar to those contained in this rule. EPA has attracted 
qualified contractors and competition has not diminished. The comment 
concerning the limitation of competition based upon the flow down of 
restrictions to affiliates or to clients reflects an assumption based 
upon a misreading of the proposed rule. There is no flow down of 
restrictions to affiliates or to clients.

35. Negotiation of Specific LOFC Clauses

    One comment suggested that the LOFC clause be negotiated separately 
for each contract. This will occur for existing contracts. However, the 
rule's EPAAR clauses are required for all solicitations and new 
contracts. The Contracting Officer may, however, consider a deviation 
to the inclusion or for the modification of the clause.

36. Assessment of the Cost and Economic Impacts of Limiting Work on 
Existing Contracts

    Commenters were concerned about the limitation on business as a 
result of the inclusion of the LOFC clauses in existing contracts. One 
commenter stated that an assessment of the economic impacts of the rule 
has not been performed for existing contracts. The commenter further 
stated that the limitations contained in the LOFC clause, which will be 
included by modification into existing contracts, will adversely affect 
its future activities. The commenter's concern is that these effects 
were not envisioned by the contractor at the time it submitted its 
offer to the EPA.
    The rule states that the EPAAR clauses are to be placed in all 
solicitations and new contracts unless a deviation is obtained. For 
contracts existing as of the effective date of the rule, clauses 
substantially similar to those in the rule are to be negotiated and 
incorporated into those contracts, on a case-by-case basis. EPA will 
not unilaterally incorporate these new clauses into existing contracts.
    Concerning the cost and economic impacts of the rule, EPA has 
performed a cost burden analysis of the rule and recognizes that there 
will be some economic impact as a result of implementing these clauses. 
During the formulation of the LOFC clause for each existing contract, 
the negotiation process will assure that any specific economic 
attributes associated with the contract are taken into consideration.

37. Unduly Burdensome and Redundant Certifications

    Several commenters stated that the certifications required by the 
rule are unduly burdensome and redundant, and should be deleted from 
the rule. Specifically, the commenters took exception to requirements 
for an annual certification and to the work assignment and work plan 
certifications.
    To respond to these concerns, we have made significant reductions 
in the proposed rule's certification requirements. Under the final 
rule, all Superfund contractors are required to submit certifications, 
but they are no longer required to submit both annual and work 
assignment certifications. In addition, the requirement for work plan 
certifications has been eliminated, and the number of work assignment 
certifications has been reduced. Under the final rule, a work 
assignment certification is required within 20 days from the time the 
contractor receives a work assignment. If a subsequent work assignment 
is issued to the contractor under the same contract for additional work 
at the same site(s) covered by the initial work assignment, an 
additional certification for the new work assignment is not required. 
This is not intended to relieve the contractor from reporting any 
future conflicts of interest relating to the site(s). The contractor 
will still be expected to search and report any conflicts of interest 
based upon new information which has been identified. These 
certification changes will significantly reduce the burden on 
contractors.

38. Multiple Sites Under Work Assignments, Addition of Sites to a Work 
Assignment and the Allocation of Costs

    One commenter expressed concern that since sites and PRPs may be 
added to the work assignments during performance, contractors cannot 
certify at the work assignment acceptance phase that all conflicts have 
been disclosed. This concern also applies to a multi-site work 
assignment where sites are identified as the work arises. The commenter 
also expressed concern about the recovery of costs incurred for records 
retention pertaining to sites under multi-site contracts.
    The work assignment clause requires that the contractor certify to 
the best of its knowledge and belief that all conflicts of interest 
have been reported or that no conflicts of interest exist. We recognize 
that all site and PRP information may not be available at the time of 
the certification, which under the final rule is 20 days after the 
contractor receives the work assignment. If a site is added to the work 
assignment after the certification is submitted, a subsequent 
certification is not required for the additional site. The 
certification includes a statement that the contractor recognizes its 
continuing obligation to identify and report any conflicts arising 
during performance of the work assignment pertaining to all sites.
    Allowable costs associated with work performed under the contract, 
including records retention pertaining to sites, shall be allocated 
consistent with the contractor's cost accounting system. Since work 
assignments are so diverse, questions concerning the proper 
allocability of costs on a specific work assignment should be directed 
to the Contracting Officer.

39. Cost to Contractors Associated With Requesting Approval for Future 
Work After Contract Performance

    Several comments were received concerning the reimbursement of 
costs associated with the submission of LOFC requests, filed after the 
expiration of the EPA contract. Another commenter expressed concern 
about costs contractors may incur as a result of involvement in future 
litigation matters.
    The LOFC clause identifies work that is high risk to the Agency. 
The purpose of this clause is to avoid conflicts that jeopardize the 
Superfund program and EPA's enforcement efforts. After expiration of 
the contract or work assignment, contractors only have to request 
approval for future contracting identified in the LOFC clause. Costs 
associated with this approval process should be minimal and would be 
performed as a part of the normal bid and proposal effort.
    The issue of costs associated with future involvement in litigation 
matters is not within the scope of this rule. However, generally if EPA 
requires expert witness or special litigation support for a Superfund 
case, it would enter into a contract for such services. For costs 
associated with other witness testimony, the Federal Rules of Criminal 
Procedure or the Federal Rules of Civil Procedure would apply.

40. FAR Coverage of Paperwork

    One commenter stated that the FAR requires detailed paperwork only 
when necessary to examine ``significant potential conflicts'' and to 
determine appropriate mitigation measures. We agree. In accordance with 
FAR section 9.505, EPA's Contracting Officers examine each situation on 
the basis of its particular facts and exercise common sense, good 
judgment and sound discretion in order to minimize the paperwork 
burden. Only information which is sufficient to permit the Contracting 
Officer to identify and evaluate conflicts of interest shall be 
requested.

41. Paperwork Requirement and EPA Objectives

    One commenter stated that the paperwork required violates the 
Paperwork Reduction Act and is unnecessary to achieve EPA's program 
objectives. We do not agree. EPA has not violated the Paperwork 
Reduction Act and has made every effort to minimize the paperwork 
burden associated with this rule consistent with achieving its 
objectives in the area of conflict of interest. The final rule reflects 
a substantial reduction in the paperwork burden to contractors 
participating in EPA's procurement program.

42. Paperwork Burden Concerns

     Many commenters expressed concerns about the burden the rule would 
impose upon contractors. Several commenters stated that EPA's burden 
estimate was too low. One commenter stated that its conflict of 
interest review effort required much less time than that which was 
estimated by EPA. Others offered suggestions on how EPA could reduce 
the paperwork burden and still accomplish its objectives. These 
suggestions included elimination of duplicative certifications.
    EPA has considered these suggestions and has made significant 
reductions to the paperwork burden associated with this rule. Under the 
final rule, contractors will not be required to submit certifications 
on both an annual and a work assignment basis. In addition, the work 
plan certification requirement has been eliminated from the proposed 
rule's amendment to the work assignment clause. Under the final rule, a 
single certification will be submitted within twenty days from the time 
the contractor receives the work assignment, and it will cover 
conflicts of interest for all effort to be performed or related to 
sites under the work assignment. Furthermore, if a subsequent work 
assignment is issued to the contractor under the same contract for 
additional work at the same site, an additional certification for the 
new work assignment is not required. The initial certification is 
sufficient because it requires a continuing obligation by the 
contractor to report any conflicts associated with the site(s). The 
paperwork burden associated with the LOFC clause and its alternates has 
been reduced because the time frames for requesting approval commence 
at the conclusion of the work assignment instead of the expiration date 
of the contract. In many cases, this will reduce the LOFC request 
period by several years. In the final rule, EPA has also eliminated the 
requirement for an annual update of the conflict of interest plan in 
order to reduce reporting requirements.

43. Data Base Searches and Cost Reimbursement for Paperwork Burden

    Commenters stated that contractor data bases do not contain the 
type of information that EPA is requesting and, therefore, contractors 
would not be able to provide complete certifications on conflicts of 
interest. Other commenters expressed concerns that the development of 
data bases and the other administrative costs associated with the rule 
will not be recovered by the contractors and have not been included in 
the total cost for conflict of interest systems. They recommended that 
EPA provide a mechanism for contractors to recoup these costs.
    EPA does not require that contractors establish any particular kind 
of information retrieval system. EPA recognizes that contractors often 
do not have all of the information readily accessible upon which to 
base their certifications. Therefore, the certifications contain the 
statement that the contractor is certifying to the best of its 
knowledge and belief as of the date of the certification.
    Concerning the costs associated with the rule and a conflict of 
interest system, the rule states that costs associated with conflicts 
of interest may be chargeable to Government contracts under the 
provisions of FAR Part 31. Following the expiration of the contract, no 
certifications are required. For expired contracts, which involved 
efforts at sites, the costs associated with search effort associated 
with the LOFC clause should be minimal. These post contract costs would 
normally be allocated to the contractor's bid and proposal pool.

C. Section by Section Analysis

    The following is a description of the final rule's EPAAR clauses 
and our response to comments on the specific clauses and their 
prescriptions which are not addressed in the preceding general comments 
section.
    EPAAR 1552.209-71, Organizational Conflicts of Interest, is 
modified to specify that notification of actual or potential 
organizational conflicts of interest should be made prior to 
commencement of work. However, in emergency situations, work may begin 
with notification being made within five work days. The clause also 
identifies specific subcontracts and consultant agreements for which 
this clause is not required.
    As a result of public comment, the following changes have been made 
to the proposed modification of this clause and its prescription:

--The term ``apparent'' has been removed from this clause and all other 
clauses in the rule in response to comments that the term is vague and 
difficult to define.
--The prescription to this clause, paragraph (c)(1) of EPAAR 1509.508, 
Solicitation provision and contract clauses, has been redesignated as 
paragraph (a), EPAAR 1509.507-2, Contract clause. In addition, the 
reference to FAR 9.508-2 has been removed from this paragraph since FAC 
90-1 removed this section from the FAR. These minor changes have been 
made to conform with the numbering changes to FAR subpart 9.5 based on 
FAC 90-1, and are in accord with public comments urging that the final 
rule be consistent with any changes to the FAR.

    Other comments and EPA's response include:
    1. Clarification of ``any work''. One commenter requested that the 
term ``any work'' in paragraph (b) of the clause be clarified. ``Any 
work'' would generally refer to any billable hours to the issued work 
assignment. The term ``work assignment'' in this rule includes other 
similar tasking documents such as a delivery order or a technical 
direction document. Our intent is for contractors to report potential 
conflicts prior to beginning work on a contract or a work assignment 
issued under a contract.
    2. Immediate reporting of whether a conflict of interest exists. 
Some commenters objected to EPA's requiring the immediate reporting of 
whether or not a conflict of interest exists and recommended that such 
reporting not be required until ten days after a work assignment is 
issued. Some also pointed out the difficulty in responding without 
knowledge of future assignments and access to reliable data on PRPs.
    We disagree. Conflicts of interest must be identified immediately 
so we can avoid issuing work when a conflict exists. We recognize that 
contractors may not always have sufficient information to identify all 
conflicts when work assignments are issued since PRPs are continually 
being identified, but this should not delay a good faith disclosure of 
any conflicts that can be identified prior to beginning work. Moreover, 
in response to comments, the final rule does not require contractors to 
certify regarding conflicts of interest related to work assignments 
until 20 days after receipt of the work assignment. (See EPAAR 
1552.212-71, Work Assignments, Alternate I.) Additionally, it should be 
noted that in emergency situations contractors may begin work 
immediately with notification to follow within five days.
    3. Removal of Alternate I to paragraph (e). One commenter 
recommended that Alternate I of paragraph (e) of the clause, which 
applies to non-Superfund contracts, be removed. We disagree. Since the 
types of work exempted from flow down in paragraph (e) are unlikely to 
be performed in non-Superfund contracts, it would be confusing to 
include this language in such contracts. In the event these types of 
work are included in the contract, the Contracting Officer may 
authorize exemption.
    EPAAR 1552.209-73, Notification of Conflicts of Interest Regarding 
Personnel, is added for Superfund contracts to ensure that contractors 
notify the Contracting Officer of actual or potential personal 
conflicts of interest prior to incurring costs for an employee where 
the contractor is aware that the employee has a personal conflict of 
interest. The clause also identifies specific subcontracts and 
consultant agreements for which this clause is not required.
    As a result of public comment, the following changes have been 
made:

--The term ``apparent'' has been removed in response to comments that 
the term is vague and difficult to define.
--Paragraph (a) has been modified slightly to make the language clearer 
that the provisions with regard to employee personnel performing under 
this contract shall apply until the earlier ``of the following two 
dates: the termination date of the affected employee(s) or the 
expiration date of this contract.''
--Paragraph (b) has been rewritten to clarify that a contractor is 
responsible for reporting personal conflicts of interest regarding its 
subcontractor employees and consultants when such conflicts have been 
reported to the contractor. This clarification is made in response to 
public concern that a contractor is unlikely to have knowledge of the 
personal conflicts of interest of its subcontractors' employees and 
should not be held responsible for identifying such personal conflicts 
of interest unless they have been brought to its attention.
--The prescription to this clause, paragraph (c)(2) of EPAAR 1509.508, 
Solicitation provision and contract clauses, has been redesignated as 
paragraph (b), EPAAR 1509.507-2, Contract clause, to conform with 
recent numbering changes to FAR Subpart 9.5.
--The prescription language to this clause has also been changed to be 
consistent with the prescription to the Organizational Conflict of 
Interest Clause. The final prescription, paragraph (b), EPAAR 1509.507-
2 Contract clause, includes a small purchase limitation threshold.

    Other comments and EPA's response include:
    1. Personal conflict of interest certification and disclosure. A 
number of commenters expressed concern that it is unfair and too 
burdensome to require contractors to certify that all personal 
conflicts had been reported. They stressed that since contractors have 
to rely on their employees to report such conflicts that all that 
should be required is a good faith effort to obtain such information. 
Some requested that disclosure be limited to those personal conflicts 
of which the contractor has knowledge. A concern was also raised that 
prime contractors should not be put in a position to certify that there 
are no personal conflicts of interest regarding subcontractor 
employees.
    We agree and have eliminated the personal conflict of interest 
certification that was included as part of the annual certification and 
the work plan/work assignment certification in the proposed rule. Under 
the final rule, all that contractors must certify, as part of either a 
work assignment or annual conflict of interest certification, is that 
they have informed their employees, working under the requirements of 
the work assignment or EPA contract, of their obligation to report 
organizational and personal conflicts of interest. (See EPAAR 1552.212-
71, Work Assignments. Alternate I, and EPAAR 1552.210-80, Annual 
Certification.) When a contractor has been informed of a personal 
conflict, either by an employee or a subcontractor, or has knowledge of 
such a conflict, it should then report this to the EPA Contracting 
Officer.
    2. Applicability of Privacy Act of 1974 and collection of records. 
One commenter raised concern that this clause could have the effect of 
requiring contractors to develop and maintain ``systems of records [as 
defined in the Privacy Act of 1974 (5 U.S.C. 552a)] on individuals on 
behalf of the agency to accomplish an agency function.'' Commenters 
also stated that the systems of records needed would be excessively 
burdensome. Some also expressed concern about the flow down provisions 
of the clause to subcontractors in terms of records and the use of this 
material at the prime contractor level.
    It is not EPA's intention to require contractors or their 
subcontractors to keep records tracking the personal conflicts 
individual employees may have, nor is it our intention that prime 
contractors keep personal conflict of interest records of their 
subcontractors. Such records are not necessary to comply with our 
reporting requirements. EPA's intent is to minimize any paperwork and 
administrative burden by having both prime contractors and 
subcontractors make their employees aware of the sensitivity and 
importance of conflict of interest when working on EPA projects and to 
place with their employees the responsibility for identifying 
conflicts. When the contractor is informed of a personal conflict, it 
should then report the conflict to EPA. When a personal conflict would 
arise at the subcontractor level, the subcontractor would notify the 
prime contractor of the conflict of interest, along with a description 
of actions taken to avoid, mitigate, or neutralize the conflict. The 
prime contractor would in turn notify EPA. If subcontractor information 
is sensitive, the prime contractor will consult with the Contracting 
Officer to determine a procedure that will allow the prime contractor 
to fulfill the conditions of the contract and simultaneously providing 
protection for the information.
    3. Ownership of stock and objectivity of individuals. One commenter 
suggested that without criteria about ownership of stock or the 
knowledge about the psychology of individuals, the concept of personal 
conflict of interest is impossible to define in practice. We recognize 
that analysis of conflict situations may be difficult, and there are no 
objective criteria that can address every situation that might arise. 
The critical test that a contractor must use regarding any potential 
conflict is whether a conflict exists which would impair the person's 
objectivity in performing the work under an EPA contract.
    4. Limiting disclosure requirements to key project personnel. Some 
commenters stated that the proposed clause was too broad and should 
apply to key personnel and not to personnel, such as clerical or 
accounting employees, who have no influence over work on a project. 
Some commenters connected this requirement to the system of records 
issue previously addressed, to demonstrate the prohibitive expense 
associated with the notification requirement by all personnel.
    EPA has carefully considered exempting certain personnel working 
under an EPA contract from the requirements of the clause and has 
decided not to change the clause which extends the notification 
requirements to all personnel performing work under an EPA contract. We 
do not agree that employees below the level of ``key personnel'' do not 
contribute to and influence work on EPA projects. One cannot assume 
that personnel will always perform tasks which are limited to their 
generic job categories, and that such employees never have access to 
sensitive information and never exercise discretion that may impact 
work performed for EPA. The final rule simply requires that a 
contractor inform its employees about their responsibility to report 
conflicts of interest. This process is a significantly less burdensome 
approach to managing personal conflicts of interest. The development or 
maintenance of a system of records about a contractor's employees is 
not necessary to comply with the requirements of the Notification of 
Conflicts of Interest Regarding Personnel clause. Therefore, the 
concern about the expense associated with a system of records is not 
central to the issue of which personnel would be subject to the 
provisions of the clause.
    5. Conflict of interest applied to employee level. One commenter 
stated that it is not clear why EPA is applying conflict of interest 
rules at the individual employee level and that the regulation should 
clarify how the ``objectivity/bias'' rule could be compromised at this 
level.
    Throughout this rule, we have emphasized the special nature of 
Superfund work and the importance of ensuring integrity of work at 
sites so that the enforcement actions are not jeopardized. We believe 
that a contractor employee with a personal conflict of interest that 
impaired his objectivity in performing work for EPA could impact 
Superfund work. Persons working on our contracts must be able to render 
impartial assistance so that the integrity of the work product is not 
questioned. For example, if a contractor employee performed work for 
EPA at a site on which the employee had performed work for a PRP, and 
the individual was called upon to testify in court to support prior 
actions taken by the PRP, as well as to testify to support actions by 
the EPA, the credibility of the employee's testimony may be questioned. 
Moreover, a contractor employee with a conflict of interest stemming 
from a relationship with a PRP at a site could pose an unacceptable 
risk of disclosure of sensitive information that could impact cost 
recovery strategy or other enforcement action regarding the site. All 
we require is that personal conflicts of interest be reported so that 
we have the opportunity to avoid, mitigate, or neutralize conflicts 
that may jeopardize our programs.
    6. Relationships covered by personal conflict of interest clause. 
One commenter requested a definition concerning the types of 
``relationships'' that might be covered by the personal conflict of 
interest clause. ``Relationships'' may include personal, financial or 
business affiliations/connections which would impair a person's 
objectivity in performing the contract work.
    7. Individual ownership of stock and mutual funds. One commenter 
pointed out that the term ``relationship'' in this clause can be 
interpreted either narrowly or broadly, and asked how EPA views the 
ownership of stock in an entity or the owning of shares in a mutual 
fund which owns stock in the entity.
    Since each situation is different and should be examined on a case-
by-case basis, it is not appropriate to establish a position on whether 
certain ownership of stock in an entity would or would not create a 
conflict. We would generally view substantial ownership of stock in an 
entity as having a higher conflict of interest risk than the more 
passive investment in a mutual fund which normally conducts 
transactions without the active participation of the shareholders. 
However, specialized mutual funds may exist which invest in a very 
narrow group of stocks. Therefore, each situation should be considered 
on its own merits.
    8. Notification to the Project Officer and to the Contracting 
Officer. One commenter stated that notification to the EPA Project 
Officer and to the Contracting Officer is redundant and unnecessary and 
that notification to the Contracting Officer should suffice. We have 
reviewed this recommendation and have decided to retain notification to 
the Project Officer. Personal conflicts can have an immediate impact 
upon work that is performed. Notification directly to the Project 
Officer will expedite the EPA response time in avoiding mitigating, or 
neutralizing such conflicts which would be beneficial to both the 
Agency and the contractor.
    9. Remedies for non-disclosure. One commenter stated that the rule 
does not identify what remedies, if any, would be available to the 
Government in the event that EPA concludes that a personal conflict of 
interest was not disclosed by a contractor. The commenter further 
stated that appropriate action referenced in the clause could only be 
termination for convenience. We disagree. Remedies may include 
avoidance, mitigation, and neutralization of the conflict as well as 
any other remedies which would be permitted under the terms and 
conditions of the contract.
    EPAAR 1552.209-74, Limitation of Future Contracting, is added for 
Superfund contracts to ensure that contractors do not perform work that 
may conflict with work performed for EPA and jeopardize Superfund 
enforcement actions. The clause identifies work which poses a high risk 
of conflict of interest and requires contractors to request approval 
from EPA prior to entering into such contracts. Alternates are provided 
that are tailored to specific types of Superfund contracts. The basic 
Limitation of Future Contracting (LOFC) clause is for Alternative 
Remedial Contracting Strategy (ARCS) contracts, and alternates are for 
Time Critical Rapid Response (TCRR), Technical Assistance Team (TAT), 
Environmental Services Assistant Team (ESAT), Technical Enforcement 
Support (TES), Headquarters Support, and Site Specific contracts. 
Depending on the type of EPA work performed, this limitation may extend 
for the period of the contract or from three to seven years after 
completion of a work assignment. The clause does not prevent 
contractors from submitting bids/proposals for outside work prior to 
receiving Contracting Officer approval. However, the clause provides 
that any bids/proposals are submitted at the contractor's own risk and 
expense. This clause must also be placed in subcontract and consultant 
agreements except for specific types of services listed in the clause 
unless otherwise authorized by the Contracting Officer.
    As a result of public comment, including recommendations that the 
applicability of the LOFC clause and its alternates be clarified, the 
following changes have been made:

--The prescription to this clause, paragraph (c)(3) of EPAAR 1509.508, 
Solicitation provision and contract clauses, has been redesignated as 
paragraph (c), EPAAR 1509.507-2, Contract clause, to conform with 
recent numbering changes to FAR Subpart 9.5.
--The prescription to this clause has also been changed to be 
consistent with the prescription for the Organizational Conflict of 
Interest Clause. The final prescription, paragraph (c), EPAAR 1509.507-
2, Contract clause, includes a small purchase limitation threshold.
--In the basic LOFC clause (ARCS) and all alternates except Alternative 
VI, two additional paragraphs have been added to set forth procedures 
for an expedited response to an initial LOFC request and for review of 
an adverse determination. For Alternative VI, three additional 
paragraphs have been added to set forth procedures for a request for 
waiver or modification of the clause, for an expedited response to an 
initial future contracting request, and for review of an LOFC adverse 
determination. This responds to recommendations that we identify a 
review process available for contractors who may question an EPA 
Contracting Officer's decision on an LOFC request.
--In the basic LOFC clause (ARCS) and all alternates, all references to 
``zone'' have been changed to ``assigned geographical area.'' This adds 
clarity by reflecting the new terminology in the Superfund program.
--In the basic LOFC Clause (ARCS) and all alternates, the type of 
Superfund contract covered by each clause is now added at the top of 
each clause. This reduces confusion in reading the text.
--Alternate I has been renamed ``Time Critical Rapid Response'' (TCRR), 
and we have noted in the clause prescription that this term includes 
TCRR, Emergency Response Cleanup Services (ERCS) and other emergency 
type solicitations and contracts. This change has been made to clarify 
the clause's applicability.
--In Alternate I (TCRR), Alternate II (TAT) and Alternate V 
(Headquarters Support), all references to ERCS have been changed to 
TCRR.
--The Field Investigative Team (FIT) Alternate LOFC clause has been 
removed since such work is to be included in the ARCS Superfund 
contracts.
--All alternates to this clause have been renumbered to reflect the 
removal of the FIT Alternate. All further references will be to the new 
numbers of the rule.
--Basic LOFC clause (ARCS) has been changed to reflect the inclusion of 
FIT work in ARCS contracts. Since the proposed rule's FIT LOFC clause 
is less restrictive than the basic LOFC clause (ARCS), language 
specifically tailored to FIT work in ARCS contracts is added to 
minimize contractor burden.
--Basic LOFC clause (ARCS) paragraph (a) has been changed in accordance 
with comments recommending it be consistent with paragraph (a) of its 
alternates, which include ``free to compete for contracts on an equal 
basis'' language. All further references will be to the new paragraph 
(a).
--Basic LOFC clause (ARCS) paragraphs have been relettered to reflect 
the change in paragraph (a) and the inclusion of a paragraph addressing 
FIT work. Paragraphs (a)(1) and (a)(2) are redesignated as paragraphs 
(b) and (c). The new FIT paragraph is designated as paragraph (d). 
Paragraphs previously designated as (b), (c) and (d) have been 
redesignated as paragraphs (e), (f), and (g). All further references 
will be to the new lettering of the final clause.
--In the basic LOFC clause (ARCS) and all alternates, paragraph (a) 
language has been changed from ``It is agreed by the parties to this 
contract* * *'' to ``The parties to this contract agree* * *'' This 
minor change was made so the LOFC clause language conforms with the use 
of the active voice in other EPAAR clauses.
--Basic LOFC clause (ARCS) paragraphs (c) and (d), parallel paragraphs 
(c) of Alternates I (TCRR) and II (TAT) and (d) of Alternate IV (TES), 
and similar paragraph (c) of Alternate VI (Site Specific) have been 
changed as follows:

    (1) These paragraphs have been rewritten to emphasize that all that 
is required is that contractors obtain approval prior to entering into 
a contract with respect to the type of work identified. This gives EPA 
the opportunity to evaluate such requests on a case-by-case basis and 
limit its contractors from performing work which would jeopardize work 
performed for EPA or ongoing enforcement actions. This change was made 
in response to public concern that this paragraph absolutely prohibited 
the nature of work described.
    (2) In further response to public comment on these paragraphs, 
``other than EPA'' has been added after ``any party'' to clarify that 
this clause does not cover future work a contractor may enter into for 
EPA.

--Basic LOFC clause (ARCS) paragraphs (c) and (d), and parallel 
paragraphs (c) of Alternates I (TCRR) and II (TAT) and (d) of Alternate 
IV (TES) have also been modified in response to comments questioning 
the scope of the limitation. We have clarified that all that is 
required is reporting of: ``(1) Any work relating to CERCLA activities 
which pertain to a site where the Contractor previously performed work 
for EPA under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.'' We are 
concerned with evaluating future contractor work related to Superfund 
work performed for EPA on a site to ensure it does not jeopardize 
ongoing EPA Superfund work or enforcement action.
--Alternate VI (Site Specific) paragraph (c), which contains similar 
language addressing Site Specific contracts, has also been modified in 
response to comments questioning its scope. We have clarified that all 
that is required is reporting of: ``(1) Any work relating to CERCLA 
activities which pertain to the site where the Contractor previously 
performed work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to the site where 
the Contractor previously performed work for the EPA under this 
contract.'' We are concerned with evaluating future contractor work 
related to Superfund work performed for EPA on the site covered by its 
contract to ensure it does not jeopardize ongoing EPA Superfund work or 
enforcement action.
--Alternate I (TCRR) paragraph (c) and parallel paragraphs (c) of 
Alternate II (TAT) and (d) of Alternate IV (TES) have further been 
revised. The language ``during the life of the contract'' and ``after 
completion of the contract'' has been changed to be consistent with the 
basic LOFC clause (ARCS), which tracks by tasking document, not by 
contract. This change is made in response to commenters' 
recommendations. It substantially minimizes the burden to contractors 
by reducing the time period for which the contractor must request 
approval for future work.

    The new language in paragraph (c) of Alternate I (TCRR) is ``during 
the life of the delivery order or tasking document'' and ``after the 
completion of the delivery order or tasking document''. The new 
language in paragraph (c) of Alternate II (TAT) is ``during the life of 
the technical direction document'' and ``after the completion of the 
technical direction document''. The language in paragraph (d) of 
Alternate IV (TES) is now ``during the life of the work assignment'' 
and ``after completion of the work assignment''.

--Basic LOFC clause (ARCS) paragraph (f) and identical paragraphs (f) 
of Alternates I (TCRR), II (TAT), IV (TES), VI (Site Specific), (c) of 
Alternate III (ESAT) and (e) of Alternate V (Headquarters Support) have 
been modified. The language ``agrees not to use it to compete with such 
companies'' is removed. This change was made to clarify that it is not 
EPA's intent to restrict its contractors from using their experience 
gained in working on EPA contracts from competing with other companies.
--Alternate I (TCRR) paragraph (d)(3), Alternate II (TAT) paragraph 
(d)(3), and Alternate VI (Site Specific) paragraph (d)(2) have been 
revised to include ``CERCLA administrative order''. This modification 
is made in response to public comment that we cover contracts let prior 
to final issuance of a CERCLA or Resource Conservation and Recovery Act 
(RCRA) consent decree or court order.
--Alternate I (TCRR) paragraphs (d)(1) and (d)(2) language describing 
TAT work is changed from ``Technical Assistance Team activities (TAT 
contracts)'' to ``Technical Assistance Team (TAT) type activities 
(e.g., TAT contracts)''. This change clarifies that this provision 
applies to TAT type activities and that ``TAT contracts'' is an example 
of such work.
--Alternate VI (Site Specific) paragraph (d)(1) language is also 
changed from ``Technical Assistance Team activities (TAT contracts)'' 
to ``Technical Assistance Team (TAT) type activities (e.g., TAT 
contracts)''. This change clarifies that this provision applies to TAT 
type activities and that ``TAT contracts'' is an example of such work.
--In Alternate I (TCRR), paragraph (g), ``treatability studies'' has 
been added to the flow down exemptions to make this Alternate clause 
consistent with all other LOFC clauses in the rule. In addition, 
because the term ``treatability studies'' is not routinely used in TCRR 
contracts, we have noted in the prescription that this term includes 
``TCRR pilot scale studies.''
--In Alternate IV (TES), we have retained the clause's paragraph (b) 
language instead of choosing the proposed rule's option to paragraph 
(b). This responds to public comment that the initial paragraph (b) is 
more cost effective and that implementing the other proposed option 
would be extremely cumbersome and expensive. In addition, we have added 
``during the performance period of this contract'' at the beginning of 
the paragraph in response to comments requesting we clarify the period 
of applicability.
--In Alternate V (Headquarters Support), paragraph (c), we have added 
``unless otherwise authorized by the Contracting Officer.'' This change 
is made in response to public comments expressing concern that there 
may be circumstances where the nature of the work under such contracts 
would not pose a significant conflict for the EPA, and this clause 
should not categorically exempt contractors from performing work 
without examining requests on a case-by-case basis. We agree that the 
Contracting Officer shall make conflict of interest determinations on a 
case-by-case basis and this change reflects our intent. The objective 
of this and all of the LOFC clauses is to identify work which we 
believe may pose significant risk of conflict of interest and provide 
EPA the opportunity to avoid conflicts that would damage the integrity 
of the Superfund program.

    In Alternate V (Headquarters Support) paragraph (c), FIT and 
Remedial Engineering Management (REM) contracts are removed from the 
list of examples of contracts which include response action work. 
Although FIT and REM contracts included response action work, it is no 
longer appropriate to include them as examples since these contracts 
are being phased out of the Superfund program.
    Other public comments and EPA's response include:
    1. Applicability of LOFC clauses to types of work. One commenter 
requested that the LOFC clauses should be unambiguously keyed to types 
of work since the nature of work in different contract types overlap. 
We disagree. The basic LOFC clause and each alternate are identified by 
the Superfund program contract type, i.e., ARCS, TCRR, TAT, ESAT, TES, 
Headquarters Support, and Site Specific. These are the standard terms 
used in the Superfund program to describe types of contracts by nature 
of Superfund work. To key the LOFC clauses to other types of work would 
be confusing, ambiguous and difficult to track both for contractors and 
the EPA.
    2. Different time periods for LOFC clause and alternates. Several 
commenters expressed concern that there was no justification provided 
for the different time periods and suggested that EPA make the 
reporting time frames in the LOFC clauses consistent. Additionally, 
commenters stated the reporting requirements should either be 
applicable after completion of the work assignment or reporting should 
be limited to the duration of the contract. Still other commenters 
suggested the reporting period should be no longer than three years 
after work assignment completion. And other commenters stated the 
reporting requirement after contract completion was overly restrictive 
if it is to be applied to any new contracting activity but would be 
less objectionable if site references were restricted to only National 
Priorities List (NPL) sites.
    We agree reporting requirements for work performed at a site should 
be limited to a period of time after completion of the work assignment 
rather than after contract completion and have made the changes in the 
appropriate LOFC clauses. Each LOFC clause has been carefully studied 
and specifically tailored to fit each program with appropriate time 
periods based on the nature of work performed under the contract and 
the risk of conflict. Because each of the different programs requiring 
an LOFC clause has a different role in Superfund cleanup and 
enforcement, it is necessary for some programs to have different 
reporting requirements. The establishment of each time period was made 
after extensive discussion of program and enforcement issues. Every 
attempt was made, however, to be as consistent as possible without 
jeopardizing the Superfund program.
    We disagree that reporting requirements should be limited to the 
duration of the contract or for only three years. These time limits 
would not adequately protect the interests of the Superfund program. 
Because environmental enforcement cases are averaging seven years from 
start to completion, it would be very damaging to EPA's enforcement 
cases if an EPA contractor could at will perform related work for a PRP 
at or relating to the same site after it had performed work for EPA. 
For example, the TES reporting requirement of seven years is necessary 
to avoid the potential for compromising highly sensitive enforcement 
support information. To reduce this time frame would significantly 
jeopardize our ability to enforce CERCLA. Therefore, to prevent such 
occurrences, it is absolutely necessary for EPA to have procedures in 
place which require contractors to request approval before entering 
into future work with PRPs that could negatively impact the work 
performed for EPA.
    3. Limit LOFC clause to NPL sites. Several commenters recommended 
that the LOFC clause and its alternates apply only to NPL sites. Some 
expressed concern whether ``sites'' includes Federal Facilities and 
requested clarification.
    We disagree that the clause should be limited to NPL sites and 
stress that the rule makes no distinction between private party sites 
and Federal Facilities. Restricting the clause's applicability to work 
on NPL sites would provide insufficient protection to the Superfund 
program. The NPL is a priority listing of hazardous waste sites which 
have been identified for possible long-term remedial cleanup action 
under Superfund. Most sites are not placed on the NPL until they have 
been formally evaluated and meet a Hazard Ranking System threshold. 
Contractors perform emergency Superfund work and pre-remedial work for 
EPA on many hazardous waste sites that may or may not later be placed 
on the NPL and also provide support for enforcement activities at non-
NPL sites. It is important to protect such work from conflicts of 
interest particularly since we may initiate cost recovery action 
against PRPs for cleanup work at sites that are not yet on the NPL and 
may never be placed on the NPL. Moreover, work an EPA contractor may 
wish to perform for a private party on a non-NPL site may directly 
conflict with work performed for EPA and jeopardize CERCLA enforcement 
activities. Therefore, the LOFC clause intentionally makes no 
distinction between NPL and non-NPL site work in its reporting 
requirements.
    4. ``Any party''. Some commenters expressed concern that the term 
``any party'' used in the LOFC clause was too broad, and stated that 
the term could be interpreted to include another Federal agency. We 
disagree that the term is too broad and it is our intent that it 
include Federal agencies. The rule makes no distinction between private 
and public sector work in its reporting requirements. Contractors must 
report work which is identified as having a high risk of conflict 
whether it is for a private party or a Federal agency.
    5. ``Jeopardize CERCLA enforcement actions''. One commenter 
recommended that the language in paragraph (c) and (d) of the basic 
LOFC clause (ARCS) and the parallel language in the Alternates be 
removed since it is difficult for contractors to determine whether 
proposed actions will jeopardize CERCLA enforcement actions. We 
disagree with this recommendation. The language is included to require 
contractors to request approval from the EPA Contracting Officer before 
entering into a contract for work which may damage our Superfund 
enforcement actions so that EPA has the opportunity to protect its 
enforcement actions from prejudice. When a contractor believes that 
there is a risk that work may jeopardize CERCLA enforcement actions, 
the contractor shall submit a request to the EPA Contracting Officer 
who will make the determination.
    6. Define ``CERCLA activities''. Several commenters requested that 
we define ``CERCLA activities'' and one commenter specifically 
requested that we exempt from the definition activities under Sections 
312 and 313 of the Superfund Amendments and Reauthorization Act of 1986 
(SARA).
    The scope of CERCLA activities is set out in Section 101 of CERCLA. 
``CERCLA activities'' includes the terms ``remove or removal'' the 
terms ``remedy or remedial action'' and the terms ``respond or 
response'' as defined in Sections 101 (23), (24) and (25). Activities 
under Sections 312 and 313 of SARA are by definition excluded from the 
term ``CERCLA activities''. Sections 312 and 313 are reporting 
requirements in SARA Title III, ``Emergency Planning and Community 
Right-To-Know Act of 1986'', which is not part of CERCLA.
    7. LOFC and unrelated sites. Commenters stated that the LOFC 
clauses should not be broadened but should only cover a site where a 
contractor previously worked for EPA. One commenter stated that EPA had 
no authority to deny private contracting on an unrelated site. Another 
commenter stated that it would be almost impossible to administer or 
enforce the abstract concept of doing CERCLA work for a private client 
at a given site where work had not been performed before.
    The first comment refers to the LOFC clause for ARCS and its 
alternates for TCRR, TAT, TES, and Site Specific contracts. Each of 
these clauses contains restrictions pertaining to sites where the 
contractor previously worked for EPA and on any work that may 
jeopardize CERCLA enforcement actions which pertain to a site where the 
contractor previously performed work for the EPA under the contract. 
This limitation is required because work on related sites could 
adversely affect EPA's CERCLA enforcement action at a site where the 
contractor previously performed work for EPA. The LOFC alternates for 
TCRR, TAT and TES contain limitations for geographic areas. These 
limitations apply only during the period of performance of the 
contract. They are included in the TCRR and TAT clauses because these 
two types of work cannot be performed by the same contractor in the 
same geographic area because the risk of a conflict occurring is too 
great. In the TES contracts, the geographic limitation on remedial and 
implementation work is necessary because of the risk associated with 
extremely sensitive litigation information, the unauthorized disclosure 
of which would jeopardize EPA's enforcement actions.
    The second commenter uses the term ``unrelated sites'' in the 
comment concerning restrictions on private contracting. We are unclear 
as to the commenter's definition of this term. EPA's LOFC clause and 
alternates limit CERCLA work which pertains to a site, or limit work 
that may jeopardize enforcement actions which pertain to a site, where 
the contractor previously performed work for EPA under the contract. 
The only other site limitations are those in the TCRR, TAT and TES 
Alternates which pertain to sites within the geographic area of the 
contract. There are no restrictions to sites outside these limitations.
    We agree with the commenter that stated that it would be difficult 
to administer or enforce the limitations that pertain to the 
performance of CERCLA work or work which jeopardizes enforcement 
actions at sites where a contractor has not performed previous work for 
EPA. However, EPA's intent in the LOFC clause is not to require 
excessive administration but rather to have contractors rely on 
information of which they are aware at the time they consider entering 
into a contract for work at other sites. No extensive searches, 
certifications, or control systems associated with administration are 
required.
    8. Basic LOFC clause (ARCS) paragraphs (a) and (b)--Contractors 
right to compete. One commenter suggested that the clause include the 
same ``free to compete on an equal basis'' language in the alternate 
LOFC clauses. The commenter further stated that the clauses require 
clarification that, when a contractor has prepared the statement of 
work or other solicitation package for a private party, the restriction 
of the clause does not apply. Another commenter requested that the 
clause be expanded to provide that any contractor that contributes to 
the development of the statement of work or the solicitation package 
should be ineligible to participate in follow-on Superfund remedial 
action projects.
    We agree with the recommendation that the clause be changed to be 
consistent with its alternates, which include ``free to compete on an 
equal basis'' language, and have made this change in the final clause 
language. We also agree with the commenter's conclusion that the 
restriction when a contractor has prepared a statement of work or 
solicitation package under the terms and conditions of a Government 
contract, as either a prime contractor or subcontractor, would not 
apply to work performed for private contractors. EPA does not generate 
statements of work or solicitations for the use and benefit of a 
private party. Therefore, no clarification to the clause is necessary.
    The ARCS contracts provide for a contractor's involvement with the 
complete cleanup of a site from the beginning to the end, including 
follow-on remedial action projects. The LOFC clause for the ARCS 
contracts has been specifically written to accommodate the special 
nature of the ARCS program to take advantage of a contractor's 
expertise and keep the competitive base as open as possible, especially 
when EPA has purchased the technology. Therefore, we disagree with the 
comment that the clause should be expanded to make any contractors, 
which participate in the development of the statement of work or 
solicitation package, ineligible from participating in such activities. 
To make ARCS contractors ineligible would be overly restrictive and 
disruptive to the Superfund program.
    9. Basic LOFC clause (ARCS) paragraph (c)--Broaden limitation. One 
commenter recommended that we broaden this paragraph to exclude a 
contractor from working for any party on any contract for the types of 
work specified. We disagree. Such a change would be too restrictive to 
ARCS contractors.
    10. Alternate I (TCRR) paragraph (d)(3)--Applicability of TAT 
restriction. One commenter recommended that the clause be clarified to 
indicate the TAT restriction in the TCRR clause only applies to TAT 
type contracts offered by the Federal Government because if it applied 
to both Government and the private sector it would be overly broad and 
restrictive.
    We disagree. The clause as written clearly requires TCRR 
contractors to request approval prior to performing TAT type 
activities, regardless of whether another Federal agency or a private 
party issues the contract. A TCRR contractor is required to provide 
cleanup services on numerous sites within its respective geographic 
area and this work often involves work performed in ``emergency'' 
situations. It is vital that TCRR contractors be free of conflicts to 
perform work for the Agency. Therefore, it is necessary to require TCRR 
contractors to request approval before performing any TAT type 
activities for any other party within its respective geographic area 
that result from a CERCLA administrative order, a CERCLA or RCRA 
consent decree or a court order.
    11. Alternate II (TAT) paragraph (d)(2)--Expand competition 
restriction. One commenter requested we delete the language ``Unless an 
individual design for the site has been prepared by a third party''. 
The commenter contended that any knowledge of a site is critical and a 
contractor having access to a site over a long period of time would be 
in a better position to plan and price for unforeseen contingencies. 
Therefore, this would be patently unfair to other contractors.
    We disagree. If the clause were to be modified as suggested, it 
would have the opposite effect by making the clause overly restrictive 
for contractors performing TAT work. Although such a contractor may 
have gained some knowledge about a site while working there, it would 
not necessarily be an unfair competitive advantage when a third party 
has prepared the design.
    12. Alternate II (TAT) paragraph (d)(2)--Inability to plan future 
TAT work. One commenter suggested that this paragraph not include TAT 
work that a contractor plans to perform because contractors have no 
role in determining future TAT work and TAT work dealing with 
emergencies cannot be planned.
    We disagree. In many cases, TAT work is planned and advance site 
information is provided to contractors by EPA. Therefore, the final 
clause includes the requirement that a contractor shall not perform 
remedial construction work on a site where it has knowledge that it 
will be performing TAT work for EPA, unless otherwise authorized by the 
EPA Contracting Officer.
    13. Alternate II (TAT) paragraph (d)(3)--Site specific limitations. 
One commenter suggested the restriction on TAT contractors be site 
specific rather than a restriction covering the entire zone. The 
commenter further stated that alternate zone contractors should be used 
if conflicts arise.
    We disagree. TAT contracts are established to provide TAT type 
activities, including TCRR oversight, on potentially all sites within 
the geographic area. If contractors perform work for PRPs on sites 
within the geographic area, and if EPA were to require oversight on 
these sites, EPA's ability to plan and promptly commence oversight work 
would be significantly impaired. Geographic crossovers are possible in 
a few unusual circumstances. However, the administrative cost and 
additional time associated with this process for a number of sites pose 
too large a risk to the effective operation of the TAT program.
    14. Alternate III (ESAT)--LOFC applicability to ESAT. One commenter 
recommended we delete this Alternate since an LOFC clause is not 
appropriate for ESAT work. We disagree. This clause contains the 
limitation on future performance where the contractor develops the 
specifications or statement of work under a Superfund contract. This 
limitation is common to all Superfund contracts including ESAT.
    15. Alternate IV (TES) paragraph (b)--Remove or limit restriction. 
One commenter suggested that the TES LOFC clause be limited to CERCLA 
activities by a private party at the NPL sites where work was performed 
under TES contracts. The commenter stated that requiring future 
contracting requests for any work of a remedial nature within the 
regions covered by a TES contract is arbitrary and inconsistent with 
the requirements of actual site work required under other EPA 
contracts.
    It is our intent for paragraph (b) to cover the entire geographic 
area covered by the contract. The TES clause coverage is different than 
the other clauses because of the special sensitivity of TES work which 
includes support for enforcement cases. We have seriously considered 
the recommendation to change this language. However, because of the 
high sensitivity of enforcement work, we believe this provision is 
necessary to best protect the Agency's enforcement and cost recovery 
cases. Moreover, because of the sensitivity of all Superfund 
enforcement work, the clause cannot just be limited to CERCLA 
activities at NPL sites.
    16. Alternate IV (TES) paragraph (d)--Broaden TES LOFC restriction. 
One commenter recommended TES contractors should be absolutely 
prohibited from working for private sector PRPs in order to avoid the 
potential for compromising enforcement related data. Although we agree 
that TES work is highly sensitive, we believe the rule provides 
adequate measures to protect EPA's interests. To broaden the LOFC 
clause would be too restrictive to competition.
    17. Alternate V (Headquarters Support) paragraph (c)--Response 
action work. Several commenters expressed concern about the vagueness 
of the term ``response action work'' and asked if it had the same 
meaning as the SARA definition of ``response action contract''. To 
clarify the term ``response action work'', we included a number of 
examples in the proposed and the final clause. The examples in the 
final clause include ARCS, TCRR, TAT, and TES contracts. It is our 
intention that ``response action work'' have the same definition as 
``response action contract'' provided in CERCLA Section 119, as amended 
by SARA. However, we have included, in the prescription to this clause, 
authorization for the Contracting Officer to modify this paragraph to 
reflect any unique limitations applicable to the program requirements.
    18. Alternate VI (Site Specific)--Site specific contracts for 
construction or other non-discretionary work. Some commenters assumed 
that this clause would primarily affect construction contractors and 
recommended that EPA not apply this clause to site specific contracts 
which are for construction. Another commenter suggested that work which 
a contractor believes is non-discretionary should also be exempted.
    We disagree. When a solicitation, prime contract or work assignment 
is issued solely for construction work or for work that the contractor 
believes is non-discretionary, the offeror or contractor can request 
that the LOFC clause be modified or waived. The Contracting Officer has 
the authority to approve the request if the work does not pose a high 
risk of conflict to the Superfund program. Under Alternate VI, to 
ensure that prime contractors clearly understand they have the option 
of requesting a waiver from or modification of this clause when non-
discretionary work is performed, language has been added to Alternate 
VI, describing how to obtain a waiver or modification from the 
Contracting Officer.
    19. Alternate VI (Site Specific) paragraph (b)--Site 
specifications. One commenter suggested that the words ``for the site'' 
be inserted in paragraph (b) of the clause so that the clause would 
only apply to EPA solicitations for the site. We disagree. 
Specifications could be developed under a site specific contract which 
may be included in other EPA solicitations.
    EPAAR 1552.210-80, Annual Certification, is added to require all 
Superfund contractors that do not provide other EPA conflict of 
interest certifications during contract performance to certify annually 
that all organizational conflicts of interest have been reported to 
EPA, and contractor employees have been informed of their obligation to 
report conflicts.
    As a result of public comment, the following changes are made to 
the clause and its prescription:

--The proposed annual certification requirement is changed from 
applying to all Superfund contracts to only contracts where the 
contract does not include the submission of other conflict of interest 
certifications during contract performance. Superfund contracts 
requiring annual certification include: Site Specific contracts and the 
Contract Laboratory Program (CLP) and the Sample Management Office 
(SMO) contracts. This change is made in response to comments that 
multiple certification requirements are duplicative and overburdensome.
--To reduce reporting requirements, the update of conflict of interest 
plan requirement, which was included in the proposed rule's clause, 
EPAAR 1552.210-78, Annual Certification and Update of Conflict of 
Interest Plan, has been deleted. Its prescription has also been removed 
from the proposed rule's prescription, EPAAR 1510.011-78, Annual 
Certification and Update of Conflict of Interest Plan.
--The annual certification requirement in the proposed rule's EPAAR 
1552.210-78 and the prescription EPAAR 1510.011-78 is designated, under 
the final rule, as EPAAR 1552.210-80, Annual Certification, and its 
prescription is EPAAR 1510.011-80, Annual Certification.
--The requirement that contractors certify annually that all personal 
conflicts of interest have been reported is changed to ``the Contractor 
shall certify that it has informed its personnel who perform work under 
EPA contracts or relating to EPA contracts of their obligation to 
report personal and organizational conflicts of interest to the 
contractors.'' This change was made in response to public comments that 
it is unfair and overburdensome to require contractors to certify that 
personal conflicts have been reported since contractors have to rely on 
their personnel to report such conflicts.
--The term ``apparent'' has been removed in response to comments that 
the term is vague and difficult to define.
--The prescription to this clause has been changed to be consistent 
with the prescription to the Organizational Conflict of Interest 
Clause. The final prescription, EPAAR 1510.011-80, Annual 
Certification, includes a small purchase limitation threshold.

    Other comments and our response include:
    1. Timing of submittal of annual certification. One comment 
expressed concern that the timing of the annual certification should be 
changed to a date certain or tied to a company's fiscal year calendar. 
We retain the requirement that the annual certification cover a one 
year period from time of award, and all subsequent certifications shall 
cover successive annual periods thereafter. Such certification must be 
received by the Contracting Officer no later than 45 days after the 
close of the certification period covered. However, if a contractor has 
sufficient justification to change the filing date, the contractor may 
submit a request to the Contracting Officer who can consider the 
request for an adjustment and has the authority to modify the contract 
accordingly.
    Other comments and our response include:
    1. Clarification of conflict of interest plan, evaluation process 
and confidential data. Some commenters recommended that we clarify what 
should be in a conflict of interest plan and the evaluation process and 
exclude confidential data. Conflict of interest plans are only required 
for solicitations in which the Contracting Officer makes a 
determination that a significant potential for conflict of interest 
exists. Any requirements for conflict of interest plans and information 
regarding their evaluation will be included in individual 
solicitations. If any confidential information is provided, e.g., 
sensitive corporate structure information, the contractor should mark 
it accordingly and it will be safeguarded to the full extent of the 
law.
    EPAAR 1552.212-71, Work Assignments, is amended to add two 
alternate clauses to be used for all Superfund contracts which do not 
require annual certifications. The alternate clauses require 
contractors to certify within 20 days of receipt of a work assignment 
that all actual or potential organizational conflicts of interest have 
been reported to the Contracting Officer, or that no actual, or 
potential organizational conflicts of interest exist. Where work 
assignments are issued under a contract for work related to a site, a 
contractor is only required to provide a certification for the first 
work assignment issued for that site under the contract. In addition, 
the clauses require a contractor to 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 conflicts of interest.
    In response to public comments the following changes have been 
made:

--The work assignment certification requirement under the proposed rule 
has been reduced from applying to all Superfund contracts to only 
Superfund contracts that are not required to submit annual 
certifications in accordance with EPAAR 1552.210-80. This change was 
made in response to comments that the certification requirements were 
overly burdensome and duplicative.
--The final rule's prescription to the work assignment clause, 
paragraph (b) of EPAAR 1512.104, Contract clauses, reflects the 
reduction in certification requirement by stating that the work 
assignment certification provision is not used for contracts which 
require annual conflict of interest certifications (e.g., Site Specific 
contracts and the Contract Laboratory Program (CLP) and the Sample 
Management Office (SMO) contracts).
--The number of work assignment certifications required has also been 
reduced to minimize contractor burden. Where contracts include site 
work, the final clause only requires contractors to provide a conflict 
of interest certification for the first work assignment under the 
contract issued for that site. For all subsequent work for that site, 
under the contract, the contractor has a continuing obligation to 
search and report any actual or potential conflicts but no additional 
conflict of interest certifications are required. To reflect this 
obligation, the certification includes a statement that the contractor 
recognizes its continuing obligation to identify and report any actual 
or potential conflict of interest arising during performance of this 
work assignment or other work related to this site.
--The time of work assignment certification has been extended to 20 
days after receipt of work assignment. This change was made in response 
to comments that five days is insufficient time to search and certify.
--Alternate I affirmatively provides that a contractor must, as a 
minimum requirement, search through its immediate past three years of 
records prior to submitting its certification. Language has been added 
to the clause to minimize any misunderstandings about how far back 
contractors must search. Although contractors are only required to 
affirmatively search back through the past three years of records, 
contractors are always required to report any conflicts of which they 
are aware.
--The requirement that a contractor certify that all personal conflicts 
of interest have been reported has been removed. The final clause 
requires a contractor to certify only that it has informed its 
personnel who perform work under this work assignment or relating to 
this work assignment of their obligation to report personal and 
organizational conflicts of interest to the contractor. This change was 
made in response to public comments that it is unfair and too 
burdensome to require contractors to certify that personal conflicts 
have been reported since contractors have to rely on their personnel to 
report such conflicts and all that should be required is a good faith 
effort to obtain such information.
--The term ``apparent'' has been removed from this clause in response 
to comments that the term is vague and difficult to define.
--Alternate II to the Work Assignment clause provides for a transition 
period for contractors who do not have three years of records to 
search. The contractor will be required to search any records that it 
has, until over time, three years of records are accumulated. The 
contractor is still always required to report any conflicts of which it 
is aware.

    EPAAR 1552.227-76, Project Employee Confidentiality Agreement, is 
added to ensure that EPA enforcement efforts under the Superfund 
program are not damaged by contractor employees' release of information 
which has either been provided to the contractor by the Government or 
first generated under contract. Employees of contractors will be 
prohibited from release of such information to any parties external to 
EPA, the Department of Justice or the contractor without permission of 
the EPA Contracting Officer. Superfund contractors will be required to 
obtain confidentiality agreements from all employees working on 
requirements under the contract. The contractor must also include the 
clause in all subcontracts and consultant agreements unless 
specifically excluded under this clause.
    As a result of public comment, the following changes have been 
made:

--``Including subcontractors and consultants'' is removed from 
paragraph (a) in response to: (1) Comments that it is redundant because 
of the mandatory flow down provision; and (2) commenters' mistaken 
interpretation that the proposed clause required contractors to 
maintain files for their subcontractors.
--The language in the prescription to this clause, EPAAR 1527.409 
Solicitation provisions and contract clauses, has been changed to be 
consistent with prescription for the Organizational Conflict of 
Interest Clause. The final prescription includes a small purchase 
limitation threshold.

    Other comments and EPA's response include:
    1. Exemption of lower level employees. Some commenters stated that 
contractors' lower level employees should be exempted from the 
requirement that contractors obtain confidentiality agreements from all 
employees working under requirements of the EPA contract. We disagree. 
Because of the sensitivity of Superfund work and the potential for 
serious damage to enforcement efforts as a result of unauthorized 
release of information at any level, we cannot exempt any employees 
working under the requirements of the EPA contract. However, it is not 
our intention to impose an undue hardship on our contractors. To comply 
with this clause, it would suffice for contractors to obtain one non-
disclosure agreement from its employees who work on multiple EPA 
contracts.
    2. Scope of information. One commenter stated that it is 
unrealistic to limit discussion of information already in the public 
domain and one commenter stated that this clause should not preclude 
disclosure of information routinely disclosed in the normal course of 
business. We disagree. This clause's limitation is on data of a 
sensitive nature provided by the Government or first generated during 
contract performance. Such information should not be categorically 
authorized for release. However, if a contractor believes such 
information may be releasable, the contractor may, on a case-by-case 
basis, request written permission from the EPA Contracting Officer to 
disclose such information. Such requests will be carefully evaluated to 
ensure adequate protection of sensitive information.
    3. Liability for post-employment release of information. One 
commenter expressed concern that contractors have no control over 
employees after their employment and that EPA should make it clear that 
contractors are not liable for employees who have left their 
employment. We agree that contractors should not be held liable for 
employees breaching confidentiality agreements after they have left the 
firm. The intent of this clause is to have contractors obtain 
confidentiality agreements from employees to ensure that employees are 
aware of their obligation not to disclose sensitive information.

D. Executive Order 12866

    Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

E. Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and have been assigned OMB control number 2030-0023.
    Public reporting burden for this collection of information is 
estimated to average 16 hours per response, including time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch; EPA; 401 M Street SW. 
(2136); Washington, DC 20460; and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20530, marked ``Attention: Desk Officer for EPA.''

F. Regulatory Flexibility Act

    The rule may have moderate economic impact upon a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. The following regulatory 
flexibility analysis has been prepared.

Regulatory Flexibility Analysis

Conflict of Interest
    1. Purpose. The EPA is strengthening its existing Organizational 
Conflict of Interest EPAAR Clause and adding additional coverage in the 
EPAAR to guard against conflicts of interest in work performed under 
Superfund contracts. Prime contractors, non-exempted subcontractors and 
consultants working under EPA Superfund contracts will be required to 
have employees working on requirements under contract sign 
confidentiality agreements. Prime contractors will be required to: 
notify EPA immediately of any conflicts of interest regarding 
contractor or subcontractor personnel working on the EPA contract; 
submit to EPA either a one time per site certification for work issued 
under a work assignment or an annual certification concerning 
disclosure of conflicts of interest; and seek Contracting Officer 
approval of other work when such work might conflict with work 
performed under an EPA contract.
    2. Affected small entities. Small entities awarded EPA Superfund 
contracts or small entities serving as subcontractors or consultants 
under EPA Superfund contracts will be affected. Presently, 
approximately 75 small entities are performing such contracts and 
subcontracts. It is impossible to estimate the number of small 
businesses that ultimately will receive EPA Superfund contracts or 
serve as subcontractors or consultants under these contracts and, 
thereby, be affected by this rule.
    3. Description of projected reporting and recordkeeping 
requirements. We estimate that businesses generally maintain data on 
the work previously performed by the company in their normal business 
practices which may also be used to prevent conflicts of interest. For 
entities that maintain this data, there will be limited additional 
costs associated with reviewing, evaluating, and reporting work 
previously performed and future work being considered that may pose a 
conflict of interest. EPA does not require any special type of system 
to identify and report conflicts. Each contractor determines its own 
procedures for searching and identifying conflicts of interest, and in 
some cases, it may already have a process in place to identify 
conflicts in its commercial business. An automated system to store and 
retrieve information is not required in order to perform the functions 
associated with a conflict of interest system. We anticipate that the 
scope of a company's procedures would be commensurate with the 
company's size and complexity, and for small businesses any system 
should be less complex and detailed.
    Since a significant portion of small business participation in EPA 
programs occurs under subcontracts for classes of work which are exempt 
under EPA's conflict of interest clauses, many small businesses will 
not be affected by the provisions of this rule. Moreover, at any time, 
a small business operating as either a prime contractor or a 
subcontractor may request waiver of clause requirements for non-
discretionary work which poses a minimal risk of conflict of interest. 
The total impact upon small business should be significantly less than 
the impact upon large business.
    Depending on the specific contract, contractors will either be 
required to certify annually that all actual or potential conflicts of 
interest have been reported to EPA during the preceding year of the 
contract or certify on a work assignment basis for work first performed 
at a site. The significant change to the final rule, in which 
certifications have been reduced from three to one, results in a 
substantial reduction in the total effort required to comply with the 
requirements of this rule. Because small businesses generally have less 
complex organizational structures and less data to maintain and search, 
the burden associated with search and certification requirements for 
small business should be substantially less than the burden applicable 
to a large business.
    EPA anticipates that any cost increases experienced by these 
entities may be chargeable to Government contracts under the provisions 
of FAR Part 31.
    In addition to concerns about data and certification burden which 
have been addressed above, a comment was submitted expressing concern 
that responding to the questionnaire, which EPA included in a January 
1990, memorandum regarding conflicts of interest, would add 
significantly to the contractor burden. As stated in Part B of the 
preamble to this rule, General Comments, this memorandum has been 
superseded, and the questionnaire is not required. Another commenter 
expressed concern that the burden associated with requests for future 
contracting had not been considered in the calculation of burden. In 
fact, the burden associated with requests for future contracting was 
considered in this analysis and is reflected in the calculations 
contained in the initial and final Information Collection Request.
    4. Federal rules which may duplicate, overlap, or conflict with the 
rule. The EPA reviewed the FAR coverage on organizational conflicts of 
interest and rights in data, which this rule supplements.
    The FAR requires Contracting Officers to identify and evaluate 
potential organizational conflicts of interest before contract award 
and to avoid, neutralize or mitigate significant potential conflicts. 
This rule fulfills and is consistent with these requirements. In 
addition, this rule will address limitations on a firm's other 
contracting efforts during contract performance, and in some cases 
after completion of the work assignment or other similar tasking 
document, or after performance of the EPA work contract. The FAR also 
recognizes that Federal agencies may restrict a contractor's right to 
distribute or use data first produced in performance of a contract when 
necessary in the furtherance of the agency mission objectives. The 
rule's requirement for contractor employees working under Superfund 
contracts to sign confidentiality agreements restricting release of 
contract data and other information generally conforms to these FAR 
requirements.
    The EPA also reviewed FAR subpart 9.5 Organizational and Consultant 
Conflicts of Interest which deals with conflict of interest standards 
for advisory and assistance service contracts and marketing consultants 
to contractors. The EPA rule specifically addresses EPA contracts and 
subcontracts under the Superfund program. Although the FAR guidance and 
the EPA rule have the same general objectives of identifying, avoiding 
mitigating, and neutralizing conflicts of interest, the EPA provisions 
include reporting requirements to ensure that conflicts of interest are 
reviewed not only prior to contract award, but also during the period 
of contract performance and after contract performance to ensure 
enforcement actions are not jeopardized. It is only in this way that 
EPA can examine whether a contractor's work efforts, which may be 
initiated during the EPA contract performance period or in some cases 
thereafter, may present an unacceptable risk to the Agency. This rule 
does not duplicate, overlap, or conflict with other Federal rules.
    5. Alternatives to the rule. EPA considered alternatives to the 
final rule, such as establishing different compliance or reporting 
requirements or simplifying the requirements for small entities. EPA 
also considered exempting small entities from all or part of the rule. 
EPA concluded that the stated objectives cannot be met under such 
alternatives. An undisclosed conflict of interest poses the same risk 
to EPA whether it is a conflict involving a large or small business 
contractor. EPA believes the final rule, along with other established 
internal controls within the Agency, will avoid actual or potential 
conflicts of interest that may jeopardize future actions by the Agency.

List of Subjects in 48 CFR Parts 1501, 1509, 1510, 1512, 1527 and 1552

    General contract clauses, Contract delivery or performance, 
Contractor qualifications, Copyrights, Data, Government procurement, 
Patents, Purchase descriptions, Solicitation provisions, 
Specifications, Standards.

    Dated: April 7, 1994.
Betty L. Bailey,
Director, Office of Acquisition Management.

    For the reasons set out in the preamble, Chapter 15 of Title 48 
Code of Federal Regulations is amended as set forth below:
    1. The authority citation for parts 1501, 1509, 1510, 1512, 1527, 
and 1552 continues to read as follows:

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).

    (a) Section 1501.370 is revised to read as follows:


Sec. 1501.370  OMB control numbers.

    The information collection activities contained in the EPAAR 
sections listed below have been approved by the Office of Management 
and Budget (OMB) and have been issued OMB numbers in accordance with 
section 3504(h) of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, 
et seq.

------------------------------------------------------------------------
                                                             OMB control
                      48 CFR citation                            No.    
------------------------------------------------------------------------
  Specification, Standards and other Purchase Descriptions              
                                                                        
1510.011-70 through 1510.011-74............................    2030-0005
1510.011-80 through 1510.011-81............................    2030-0023
Contract delivery or performance 1512.104..................    2030-0023
                                                                        
  Small Purchase and Other Simplified Purchase Procedures               
                                                                        
1513.505 through 1513.570..................................    2030-0007
                                                                        
        Solicitation Provisions and Contract Clauses                    
                                                                        
1552.209-71................................................    2030-0023
1552.209-73 through 1552.209-74............................    2030-0023
1552.210-71 through 1552.210-73............................    2030-0005
1552.210-80................................................    2030-0023
1552.212-71................................................    2030-0023
1552.215-72 through 1552.215-76............................    2030-0006
1552.227-76................................................   2030-0023 
------------------------------------------------------------------------

PART 1509--CONTRACTOR QUALIFICATIONS


1509.506  [Redesignated as 1509.505-70]  1509.507  [Redesignated as 
1509.506]  1509.508  [Redesignated as 1509.507-
1]  1509.509  [Redesignated as 1509.508]

    2. Subpart 1509.5 is amended by: Redesignating section 1509.506 as 
1509.505-70; redesignating section 1509.507 as 1509.506 and amending 
paragraph (b) by placing a period after ``Contracting Officer's 
decision'' and removing the remainder of the paragraph; redesignating 
section 1509.508 as 1509.507-1, revising the section heading to read 
``Solicitation provisions'' and removing paragraph (c); revising ``FAR 
9.508-1'' in newly designated 1509.507-1(a)(1) to read ``(FAR) 48 CFR 
9.507-1''; revising ``1509.508(a)'' in newly designated 1509.507-1(b) 
to read ``1509.507-1(a)(1)''; and redesignating section 1509.509 as 
1509.508.
    3. Section 1509.507-2 is added to read as follows:


1509.507-2  Contract clause.

    (a) The Contracting Officer shall include the clause at 1552.209-71 
in all contracts in excess of the small purchase limitation and, as 
appropriate, in small purchases. Contracts for other than Superfund 
work shall include Alternate I in this clause in lieu of paragraph (e).
    (b) The Contracting Officer shall include the clause at 1552.209-73 
in all solicitations and contracts for Superfund work in excess of the 
small purchase limitation and, as appropriate, in small purchases for 
Superfund work.
    (c) The Contracting Officer shall include the clause at 1552.209-74 
or its alternates in the following solicitations and contracts for 
Superfund work in excess of the small purchase limitation and, as 
appropriate, in small purchases for Superfund work. The Contracting 
Officer shall include the clause at 1552.209-74 in all Alternative 
Remedial Contracting Strategy (ARCS) solicitations and contracts, 
except Site Specific solicitations and contracts. Alternate I shall be 
used in all Time Critical Rapid Response (TCRR) solicitations and 
contracts, except site specific solicitations and contracts. The term 
``TCRR'' in the Limitation of Future Contracting clauses includes not 
only TCRR solicitations and contracts but Emergency Response Cleanup 
Services (ERCS) and other emergency type solicitations and contracts. 
TCRR pilot scale studies are included in the term ``treatability 
studies''. Alternate II shall be used in all Technical Assistance Team 
(TAT) solicitations and contracts. Alternate III shall be used in all 
Environmental Services Assistance Team (ESAT) solicitations and 
contracts. Alternate IV shall be used in all Technical Enforcement 
Support (TES) solicitations and contracts. Alternate V shall be used in 
all Superfund Headquarters Support solicitations and contracts. The 
Contracting Officer is authorized to modify paragraph (c) of Alternate 
V to reflect any unique limitations applicable to the program 
requirements. Alternate VI shall be used in all Site Specific 
solicitations and contracts.
    (d) Clauses for incorporation into contracts existing as of May 19, 
1994 shall be negotiated by the EPA Contracting Officer, on a case-by-
case basis, and shall be substantially similar to those prescribed in 
this section.

PART 1510--SPECIFICATIONS, STANDARDS, AND OTHER DESCRIPTIONS

    4. Part 1510 is amended by adding section 1510.011-80 to read as 
follows:


1510.011-80  Annual Certification.

    The Contracting Officer shall insert the clause at 1552.210-80 in 
Superfund solicitations and contracts in excess of the small purchase 
limitation, where the solicitation or contract does not include EPAAR 
1552.212-71, Work Assignments, Alternate I, or a similar clause 
requiring conflict of interest certifications during contract 
performance.
    This clause requires an annual conflict of interest certification 
from contractors when the contract does not require the submission of 
other conflict of interest certifications during contract performance. 
Contracts requiring annual certifications include: Site Specific 
contracts and the Contract Laboratory Program (CLP) and the Sample 
Management Office (SMO) contracts.
    The annual certification requires a contractor to certify that all 
organizational conflicts of interest have been reported, and that its 
personnel performing work under EPA contracts or relating to EPA 
contracts have been informed of their obligation to report personal and 
organizational conflicts of interest to the Contractor. The annual 
certification shall cover the one-year period from the date of contract 
award for the initial certification, and a one-year period since the 
previous certification for subsequent certifications. The certification 
must be received by the Contracting Officer no later than 45 days after 
the close of the certification period covered.

PART 1512--CONTRACT DELIVERY OR PERFORMANCE

    5. Section 1512.104 is amended by adding three sentences at the end 
of paragraph (b) to read as follows:


1512.104  Contract clauses.

* * * * *
    (b) * * * For Superfund contracts, except for contracts which 
require annual conflict of interest certifications (e.g., Site Specific 
contracts and the Contract Laboratory Program (CLP) and Sample 
Management Office (SMO) contracts), the Contracting Officer shall use 
the clause with either Alternate I or Alternate II. Alternate I shall 
be used for contractors who have at least 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 years of records that may be 
searched.

PART 1527--PATENTS, DATA, AND COPYRIGHTS

    6. Part 1527 is amended by adding section 1527.409, to read as 
follows:


1527.409  Solicitation provisions and contract clauses.

    The Contracting Officer shall insert the clause in 1552.227-76 in 
all Superfund solicitations and contracts in excess of the small 
purchase limitation and, as appropriate, in small purchases. The clause 
may be used in other contracts if considered necessary by the 
Contracting Officer.

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7. Sections 1552.209-70 and 1552.209-72 are amended by revising the 
reference ``1509.508(b)'' in the introductory text to read ``1509.507-
1(b)''.
    8. Section 1552.209-71 is amended by revising the reference 
``1509.508(c)'' in the introductory text to read ``1509.507-2''; 
revising the clause heading; removing paragraph (d) of the clause; 
redesignating paragraph (c) of the clause as paragraph (d); in newly 
redesignated paragraph (d) inserting the word ``it'' after the word 
``disclose''; revising paragraph (b) of the clause; and adding new 
paragraphs (c) and (e) and Alternate I to the clause to read as 
follows:


1552.209-71  Organizational conflicts of interest.

* * * * *

Organizational Conflicts of Interest (May 1994)

* * * * *
    (b) Prior to commencement of any work, the Contractor agrees to 
notify the Contracting Officer immediately that, to the best of its 
knowledge and belief, no actual or potential conflict of interest 
exists or to identify to the Contracting Officer any actual or 
potential conflict of interest the firm may have. In emergency 
situations, however, work may begin but notification shall be made 
within five (5) working days.
    (c) The Contractor agrees that if an actual or potential 
organizational conflict of interest is identified during 
performance, the Contractor will immediately make a full disclosure 
in writing to the Contracting Officer. This disclosure shall include 
a description of actions which the Contractor has taken or proposes 
to take, after consultation with the Contracting Officer, to avoid, 
mitigate, or neutralize the actual or potential conflict of 
interest. The Contractor shall continue performance until notified 
by the Contracting Officer of any contrary action to be taken.
* * * * *
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (e), unless otherwise authorized by 
the Contracting Officer.

(End of clause)

Alternate I to Paragraph (e)

    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this 
paragraph (e), unless otherwise authorized by the Contracting 
Officer.

    9. Section 1552.209-73 is added to read as follows:


1552.209-73  Notification of conflicts of interest regarding personnel.

    As prescribed in 1509.507-2(b) insert the following clause:

Notification of Conflicts of Interest Regarding Personnel (May 1994)

    (a) In addition to the requirements of the contract clause 
entitled ``Organizational Conflicts of Interest,'' the following 
provisions with regard to employee personnel performing under this 
contract shall apply until the earlier of the following two dates: 
the termination date of the affected employee(s) or the expiration 
date of the contract.
    (b) The Contractor agrees to notify immediately the EPA Project 
Officer and the Contracting Officer of (1) any actual or potential 
personal conflict of interest with regard to any of its employees 
working on or having access to information regarding this contract, 
or (2) any such conflicts concerning subcontractor employees or 
consultants working on or having access to information regarding 
this contract, when such conflicts have been reported to the 
Contractor. A personal conflict of interest is defined as a 
relationship of an employee, subcontractor employee, or consultant 
with an entity that may impair the objectivity of the employee, 
subcontractor employee, or consultant in performing the contract 
work.
    (c) The Contractor agrees to notify each Project Officer and 
Contracting Officer prior to incurring costs for that employee's 
work when an employee may have a personal conflict of interest. In 
the event that the personal conflict of interest does not become 
known until after performance on the contract begins, the Contractor 
shall immediately notify the Contracting Officer of the personal 
conflict of interest. The Contractor shall continue performance of 
this contract until notified by the Contracting Officer of the 
appropriate action to be taken.
    (d) The Contractor agrees to insert in any subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (d), unless otherwise authorized by 
the Contracting Officer.

(End of clause)

    10. Section 1552.209-74 is added to read as follows:


1552.209-74  Limitation of future contracting.

    As prescribed in 1509.507-2(c), insert the following clause or 
alternate:

Limitation of Future Contracting (ARCS) (May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) The Contractor will be ineligible to enter into a contract 
for remedial action projects for which the Contractor has developed 
the statement of work or the solicitation package.
    (c) The following applies when ARCS work is performed under this 
contract and when both ARCS work and Field Investigative Team (FIT) 
work are performed on the same site under this contract: Unless 
prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of five (5) years after the completion 
of the work assignment, agrees not to enter into a contract with or 
to represent any party, other than EPA, with respect to: (1) any 
work relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or 
(2) any work that may jeopardize CERCLA enforcement actions which 
pertain to a site where the Contractor previously performed work for 
the EPA under this contract.
    (d) The following applies to FIT work at sites under this 
contract where only FIT work is performed, except for those sites 
where EPA has made a determination of ``no further remedial action 
planned'' (NFRAP): Unless prior written approval is obtained from 
the cognizant EPA Contracting Officer, the Contractor, during the 
life of the work assignment and for a period of three (3) years 
after the completion of the work assignment, agrees not to enter 
into a contract with or to represent any party, other than EPA, with 
respect to: (1) Any work relating to CERCLA activities which pertain 
to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (e) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (f) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (g) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting Alternate I (TCRR) (May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontractor under an ensuing EPA contract.
    (c) Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the 
delivery order or tasking document and for a period of five (5) 
years after the completion of the delivery order or tasking 
document, agrees not to enter into a contract with or to represent 
any party, other than EPA, with respect to: (1) any work relating to 
CERCLA activities which pertain to a site where the Contractor 
previously performed work for EPA under this contract; or (2) any 
work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA 
under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the 
Contracting Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA within the Contractor's Time 
Critical Rapid Response (TCRR) assigned geographical area(s), either 
as a prime contractor, subcontractor, or consultant.
    (2) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA as a prime contractor, 
subcontractor or consultant at a site where it has performed or 
plans to perform TCRR work.
    (3) It will be ineligible for award of TAT type activities 
contracts for sites within its respective TCRR assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (f) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (g) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting, Alternate II (TAT) (May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontractor under an ensuing EPA contract.
    (c) Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the 
technical direction document and for a period of five (5) years 
after the completion of the technical direction document, agrees not 
to enter into a contract with or to represent any party, other than 
EPA, with respect to: (1) Any work relating to CERCLA activities 
which pertain to a site where the Contractor previously performed 
work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to a site where 
the Contractor previously performed work for the EPA under this 
contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the 
Contracting Officer:
    (1) It will not provide to EPA cleanup services (e.g., Time 
Critical Rapid Response (TCRR) contracts) within the Contractor's 
Technical Assistance Team (TAT) assigned geographical area(s), 
either as a prime Contractor, subcontractor, or consultant.
    (2) Unless an individual design for the site has been prepared 
by a third party, it will not provide to EPA as a prime contractor, 
subcontractor or consultant any remedial construction services at a 
site where it has performed or plans to perform TAT work. This 
clause will not preclude TAT contractors from performing 
construction management services under other EPA contracts.
    (3) It will be ineligible for award of TCRR type activities 
contracts for sites within its respective TAT assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (f) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (g) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting; Alternate III (ESAT) (May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontractor under an ensuing EPA contract.
    (c) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (d) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (d) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (e) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (f) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting, Alternate IV (TES) (May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) During the performance period of this contract, the 
Contractor will be ineligible to enter into any contract for 
remedial planning and/or implementation projects for sites within 
the assigned geographical area(s) covered by this contract without 
the prior written approval of the EPA Contracting Officer.
    (c) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontractor under an ensuing EPA contract.
    (d) Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of seven (7) years after the completion 
of the work assignment, agrees not to enter into a contract with or 
to represent any party, other than EPA, with respect to: (1) Any 
work relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or 
(2) any work that may jeopardize CERCLA enforcement actions which 
pertain to a site where the Contractor previously performed work for 
the EPA under this contract.
    (e) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (f) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (g) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting, Alternate V (Headquarters Support) 
(May 1994)

    (a) The parties to this contract agree that the Contractor will 
be restricted in its future contracting in the manner described 
below. Except as specifically provided in this clause, the 
Contractor shall be free to compete for contracts on an equal basis 
with other companies.
    (b) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontractor under an ensuing EPA contract.
    (c) The Contractor, during the life of this contract, will be 
ineligible to enter into a contract with EPA to perform response 
action work (e.g., Alternative Remedial Contracting Strategy (ARCS), 
Time Critical Rapid Response (TCRR), Technical Assistance Team 
(TAT), and Technical Enforcement Support (TES) contracts), unless 
otherwise authorized by the Contracting Officer.
    (d) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (e) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (f) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (f) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (g) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (h) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

Limitation of Future Contracting; Alternate VI (Site Specific) (May 
1994)

    The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall 
be free to compete for contracts on an equal basis with other 
companies.
    (b) If the Contractor, under the terms of this contract, or 
through the performance of work pursuant to this contract, is 
required to develop specifications or statements of work and such 
specifications or statements of work are incorporated into an EPA 
solicitation, the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime contractor or 
subcontractor under an ensuing EPA contract.
    (c) Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the 
contract and for a period of five (5) years after the expiration of 
the contract agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) any work 
relating to CERCLA activities which pertain to the site where the 
Contractor previously performed work for EPA under this contract; or 
(2) any work that may jeopardize CERCLA enforcement actions which 
pertain to the site where the Contractor previously performed work 
for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the 
Contracting Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA on the site either as a 
prime contractor, subcontractor, or consultant.
    (2) It will be ineligible for award of contracts pertaining to 
this site which result from a CERCLA administrative order, a CERCLA 
or RCRA consent decree or a court order.
    (e) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause, then the bids/proposals are 
submitted at the Contractor's own risk. Therefore, no claim shall be 
made against the Government to recover bid/proposal costs as a 
direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (f) To the extent that the work under this contract requires 
access to proprietary or confidential business or financial data of 
other companies, and as long as such data remains proprietary or 
confidential, the Contractor shall protect such data from 
unauthorized use and disclosure.
    (g) Contractors who are performing nondiscretionary technical or 
engineering services, including construction work, may request a 
waiver from or modification to this clause by submitting a written 
request to the Contracting Officer. The Contracting Officer shall 
make the determination regarding whether to waive or modify the 
clause on a case-by-case basis.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence 
erecting, plumbing, utility hookups, security guard services, or 
electrical services, provisions which shall conform substantially to 
the language of this clause, including this paragraph (h) unless 
otherwise authorized by the Contracting Officer. The Contractor may 
request in writing that the Contracting Officer exempt from this 
clause a particular subcontract or consultant agreement for 
nondiscretionary technical or engineering services not specifically 
listed above, including laboratory analysis. The Contracting Officer 
will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for 
reconsideration to the Contracting Officer or a request for review 
submitted to the next administrative level within the Contracting 
Officer's organization. An adverse determination resulting from a 
request for reconsideration by the Contracting Officer will not 
preclude the Contractor from requesting a review by the next 
administrative level. Either a request for review or a request for 
reconsideration must be submitted to the appropriate level within 30 
calendar days after receipt of the initial adverse determination.

(End of clause)

    11. Section 1552.210-80 is added to read as follows:


Sec. 1552.210-80  Annual certification.

    As prescribed in 1510.011-80, insert the following clause:

Annual Certification (May 1994)

    The Contractor shall submit an annual conflict of interest 
certification to the Contracting Officer. In this certification, the 
Contractor shall certify annually that, to the best of the 
Contractor's knowledge and belief, all actual or potential 
organizational conflicts of interest have been reported to EPA. In 
addition, in this annual certification, the Contractor shall certify 
that it has informed its personnel who perform work under EPA 
contracts or relating to EPA contracts of their obligation to report 
personal and organizational conflicts of interest to the Contractor. 
Such certification must be signed by a senior executive of the 
company and submitted in accordance with instructions provided by 
the Contracting Officer. The initial certification shall cover the 
one-year period from the date of contract award, and all subsequent 
certifications shall cover successive annual periods thereafter, 
until expiration or termination of the contract. The certification 
must be received by the Contracting Officer no later than 45 days 
after the close of the certification period covered.

(End of clause)

    12. Section 1552.212-71 is amended by adding Alternate I and II, to 
be used alternatively and not together, at the end of the section:


1552.212-71  Work assignments.

* * * * *
    Alternate I. As prescribed in 1512.104(b), 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 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 
conflict of interest 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 conflicts of interest, but no 
additional conflict of interest certifications are required.
    Before submitting the conflict of interest 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 
conflicts of interest have been reported to the Contracting Officer 
or that to the best of the Contractor's knowledge and belief, no 
actual or potential organizational conflicts of interest 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 conflicts of interest to the Contractor. The 
certification shall also include a statement that the Contractor 
recognizes its continuing obligation to identify and report any 
actual or potential conflicts of interest arising during performance 
of this work assignment or other work related to this site.
    Alternate II. As prescribed in 1512.104(b), 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 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 
conflict of interest 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 conflicts of interest, but no 
additional conflict of interest certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall initially search through all of its available 
records to identify any actual or potential conflicts of interest. 
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 
certification, the Contractor must certify to the best of the 
Contractor's knowledge and belief, that all actual or potential 
organizational conflicts of interest have been reported to the 
Contracting Officer or that to the best of the Contractor's 
knowledge and belief, no actual or potential organizational 
conflicts of interest 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 conflicts of 
interest to the Contractor. The certification shall also include a 
statement that the Contractor recognizes its continuing obligation 
to identify and report any actual or potential conflicts of interest 
arising during performance of this work assignment or other work 
related to this site.

(End of clause)

    13. Section 1552.227-76 is added to read as follows:


1552.227-76  Project employee confidentiality agreement.

    As prescribed in 1527.409, insert the following clause:

Project Employee Confidentiality Agreement (May 1994)

    (a) The Contractor recognizes that Contractor employees in 
performing this contract may have access to data, either provided by 
the Government or first generated during contract performance, of a 
sensitive nature which should not be released to the public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees to obtain confidentiality agreements from all of 
its employees working on requirements under this contract.
    (b) Such agreements shall contain provisions which stipulate 
that each employee agrees that the employee will not disclose, 
either in whole or in part, to any entity external to EPA, the 
Department of Justice, or the Contractor, any information or data 
(as defined in FAR Section 27.401) provided by the Government or 
first generated by the Contractor under this contract, any site-
specific cost information, or any enforcement strategy without first 
obtaining the written permission of the EPA Contracting Officer. If 
a contractor, through an employee or otherwise, is subpoenaed to 
testify or produce documents, which could result in such disclosure, 
the Contractor must provide immediate advance notification to the 
EPA so that the EPA can authorize such disclosure or have the 
opportunity to take action to prevent such disclosure. Such 
agreements shall be effective for the life of the contract and for a 
period of five (5) years after completion of the contract.
    (c) The EPA may terminate this contract for convenience, in 
whole or in part, if it deems such termination necessary to prevent 
the unauthorized disclosure of information to outside entities. If 
such a disclosure occurs without the written permission of the EPA 
Contracting Officer, the Government may terminate the contract, for 
default or convenience, or pursue other remedies as may be permitted 
by law or this contract.
    (d) The Contractor further agrees to insert in any subcontract 
or consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph, unless otherwise authorized by the 
Contracting Officer.

(End of clause)

[FR Doc. 94-8871 Filed 4-18-94; 8:45 am]
BILLING CODE 6560-50-P