[Federal Register Volume 61, Number 217 (Thursday, November 7, 1996)]
[Proposed Rules]
[Pages 57623-57625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28423]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Part 1552

[FRL-5647-4]


Acquisition Regulation; Limitation of Future Contracting

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise its acquisition regulation (48 CFR Chapter 15) to clarify that 
the existing coverage regarding ineligibility of Headquarters policy 
support contractors to enter into EPA response action contracts, unless 
otherwise authorized by the Contracting Officer, also renders EPA 
response action contractors ineligible for award of Headquarters policy 
support contracts, unless otherwise authorized by the Contracting 
Officer.

DATE: Comments should be submitted not later than January 6, 1997.

ADDRESSES: Written comments should be submitted to the contact listed 
below at the following address: U.S. Environmental Protection Agency, 
Office of Acquisition Management (3802F), 401 M Street, SW., 
Washington, DC 20460. Comments and data may also be submitted 
electronically by sending electronic mail (e-mail) to: 
Senzel.L[email protected]. Electronic comments must be submitted as 
an ASCII file avoiding the use of special characters and any form of 
encryption. Comments and data will also be accepted on disks in 
WordPerfect in 5.1 format or ASCII file format. No Confidential 
Business Information (CBI) should be submitted through e-mail. 
Electronic comments on this proposed rule may be filed on-line at many 
Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT: Louise Senzel, Environmental 
Protection Agency, Office of Acquisition Management (3802F), 401 M 
Street, SW., Washington, DC 20460. Telephone: (202) 260-6204.

SUPPLEMENTARY INFORMATION:

A. Background

    Federal Acquisition Regulation 9.504 requires Contracting Officers 
to analyze planned acquisitions to identify and evaluate potential 
organizational conflicts of interest, and to avoid, neutralize, or 
mitigate significant potential conflicts of interest (COI) before 
award. In addition, FAR 9.507-2(a) indicates that a contractor's 
eligibility for future prime contract or subcontract awards may be 
restricted as a condition of a contract award because of COI reasons. 
Two underlying conflict of interest principles as expressed in FAR 
9.505 are to prevent the existence of conflicting roles that might bias 
a contractor's judgment and to prevent unfair competitive advantage.
    EPAAR 1552.209-74, Alternate V, ``Limitation of Future Contracting 
(Headquarters Support)'', paragraph (b) states that if a Contractor, 
under the terms of a policy support contract, is required to develop 
specifications or statements of work that are later incorporated into 
an EPA solicitation, the Contractor shall be ineligible to perform the 
work described in the solicitation as a prime contractor or 
subcontractor under an ensuing EPA contract.
    Additionally, the basic version of Alternate V states that 
Contractors performing Headquarters policy support work, during the 
life of the contract, will be ineligible to enter into a contract with 
EPA to perform response action work, unless otherwise authorized by the 
Contracting Officer. It would be inappropriate for a Contractor to 
participate in Headquarters policy support work, which may involve 
providing assistance in the policy development process for response 
action work, and then to perform the response action work which may be 
affected by the resulting policy for

[[Page 57624]]

which the Contractor provided assistance.
    Similarly, in 1552.209-74, ``Limitation of Future Contracting'' 
(the basic clause and Alternates I, II, III, IV, and VI), Contractors 
are ineligible to enter into a contract or subcontract for response 
action contract projects for which the Contractor has developed the 
statement of work or the solicitation package.
    Logically, and by implication, Contractors and subcontractors 
performing response action contracts would similarly be ineligible for 
the award of a Headquarters policy support contract or subcontract, 
unless otherwise authorized by the Contracting Officer. It would be 
inappropriate for a Contractor or subcontractor performing response 
action work to participate in a Headquarters policy support contract, 
as a prime contractor or a subcontractor, which may involve providing 
assistance in the policy development process for response action work. 
This amendment will make this ineligibility clear and definitive. The 
Agency does not consider this amendment a substantial change, since 
this amendment clarifies the existing ineligibility in Alternate V.

B. Executive Order 12866

    The proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866; therefore, no review is required by 
the Office of Information and Regulatory Affairs.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this proposed 
rule does not contain information collection requirements that require 
the approval of OMB under the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

D. Regulatory Flexibility Act

    The EPA certifies that this proposed rule does not exert a 
significant economic impact on a substantial number of small entities. 
The requirements to contractors under the proposed rule impose no 
reporting, recordkeeping, or any compliance costs.

E. Unfunded Mandates

    This proposed rule will not impose unfunded mandates on state or 
local entities, or others.

F. Regulated Entities

    EPA contractors are entities potentially affected by this action. 
Specifically, those entities competing under solicitations for 
negotiated procurements will be affected.

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                 Category                         Regulated entity      
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Industry..................................  EPA contractors.            
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List of Subjects in 48 CFR Part 1552

    Government procurement.

    Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth 
below:
    1. The authority citation for part 1552 continues to read as 
follows:

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

    2. Section 1552.209-74 is amended by redesignating paragraphs (e), 
(f), (g), (h), and (i) as (f), (g), (h), (i), and (j) and by adding a 
new paragraph (e) to read as follows:


1552.209-74  Limitation of Future Contracting (XX 1996).

* * * * *
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
* * * * *
    3. Section 1552.209-74, Alternate I is amended by redesignating 
paragraphs (e), (f), (g), (h), and (i) as (f), (g), (h), (i), and (j) 
and by adding a new paragraph (e) to read as follows:


1552.209-74  Limitation of Future Contracting Alternate I (TCRR) (XX 
1996).

* * * * *
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work, including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
* * * * *
    4. Section 1552.209-74, Alternate II is amended by redesignating 
paragraphs (e), (f), (g), (h), and (i) as (f), (g), (h), (i), and (j) 
and by adding a new paragraph (e) to read as follows:


1552.209-74  Limitation of Future Contracting Alternate II (TAT) (XX 
1996).

* * * * *
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work, including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
* * * * *
    5. Section 1552.209-74, Alternate III is amended by redesignating 
paragraphs (c), (d), (e), and (f) as (d), (e), (f), and (g) and by 
adding a new paragraph (c) to read as follows:


1552.209-74  Limitation of Future Contracting Alternate III (ESAT) (XX 
1996).

* * * * *
    (c) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work, including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
* * * * *
    6. Section 1552.209-74, Alternate IV is amended by redesignating 
paragraphs (e), (f), (g), (h), and (i) as (f), (g), (h), (i), and (j) 
and by adding a new paragraph (e) to read as follows:


1552.209-74  Limitation of Future Contracting Alternate IV (TES) (XX 
1996).

* * * * *

[[Page 57625]]

    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
authorized by the Contracting Officer. Examples of such contracts 
include, but are not limited to, Superfund Management and Analytical 
support contracts, and Superfund Technical and Analytical support 
contracts.
* * * * *
    7. Section 1552.209-74, Alternate VI is amended by redesignating 
paragraphs (e), (f), (g), (h), (i), and (j) as (f), (g), (h), (i), (j), 
and (k) and by adding a new paragraph (e) to read as follows:


1552.209-74  Limitation of Future Contracting Alternate VI (Site 
Specific) (XX 1996).

* * * * *
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
authorized by the Contracting Officer. Examples of such contracts 
include, but are not limited to, Superfund Management and Analytical 
support contracts, and Superfund Technical and Analytical support 
contracts.
* * * * *
    Dated: October 28, 1996.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 96-28423 Filed 11-6-96; 8:45 am]
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