[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Proposed Rules]
[Pages 67845-67848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32683]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1526 and 1552

[FRL-6196-6]


Acquisition Regulation: Contractor Proposal Evaluations

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule with request for comments.

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[[Page 67846]]

SUMMARY: The Environmental Protection Agency (EPA) is amending the EPA 
Acquisition Regulation (EPAAR) to include new regulations on 
Socioeconomic Programs, and to amend regulations regarding Solicitation 
Provisions and Contract Clauses. These amendments will allow 
contractors to receive technical points in the proposal evaluation 
process for their ability to utilize local employment and training 
while performing under EPA contracts. The use of the solicitation 
provision and contract clause will assist in decreasing the 
unemployment rate and support economic development (i.e., provide 
training to local employees) in geographical locations where 
contractual requirements will be performed.

DATES: Comments should be submitted not later than February 8, 1999.

ADDRESSES: Written comments should be submitted to the contact listed 
below at the following address: U.S. Environmental Protection Agency, 
Office of Acquisition Management (3802R), 401 M Street, SW, Washington, 
D.C. 20460. Comments will also be accepted on disks in WordPerfect 6.1 
format or by electronic mail (E-mail) to [email protected]. 
E-mail comments must be submitted as an ASCII file, avoiding the use of 
special characters and any form of encryption. No Confidential Business 
Information (CBI) should be submitted through E-mail.

FOR FURTHER INFORMATION CONTACT: Frances Smith, U.S. Environmental 
Protection Agency, Office of Acquisition Management, (3802R), 401 M 
Street, SW, Washington, D.C. 20460, Telephone: (202) 564-4368.

SUPPLEMENTARY INFORMATION:

A. Background

    The EPA Office of Small and Disadvantaged Business Utilization 
initiated an effort to encourage local hiring and training in EPA 
Superfund contracts. The overall objective of the OSDBU initiative was 
to support economic development in areas where EPA contracts would be 
performed. As such, this proposed rule is intended to assist in 
decreasing the unemployment rate and providing training to local 
employees in geographical locations of contractor performance regarding 
any type of procurement above the simplified acquisition threshold 
($100,000). The Agency has determined that competing offerors may be 
evaluated on the extent to which they employ and train citizens 
residing in the communities serviced by EPA contracts. Offerors may be 
evaluated in such a manner provided that the employment and training 
preference is based on geography.
    The Department of Justice (DOJ) has recognized preferences based on 
geography as legitimate race-neutral alternatives to achieve agencies' 
contracting goals. The DOJ indicated that race-neutral alternatives may 
include preferences based on wealth, income, education, family, and 
geography. EPA is hereby establishing a preference based solely on 
geography (i.e., location of contract performance).

B. Executive Order 12866

    This 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 within the Office of 
Management and Budget (OMB).

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.). Comments regarding Paperwork Reduction Act 
concerns should be sent to OMB (Attn: EPA Desk Officer). OMB is 
required to make a decision concerning the collection of information 
contained in the proposed rule between 30 and 60 days after publication 
of this document in the Federal Register. Therefore, a comment to OMB 
is best assured of having its full effect if OMB receives it within 30 
days of publication. This does not affect the deadline for the public 
to comment to EPA on this proposed rule.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), whenever EPA is required to publish notice of general 
rulemaking, EPA must prepare an initial regulatory flexibility analysis 
(IRFA) describing the economic impact of the proposal on small 
entities, unless the Agency certifies that a proposed rule will not 
have a ``significant economic impact on a substantial number of small 
entities.'' As defined in RFA/SBREFA, small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. After consideration of the economic impacts of today's 
proposed rule on small entities, the Agency certifies that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.
    Because it is anticipated that the proposed preference for local 
employment and training contemplated herein will be used primarily in 
the Agency's Superfund contracts, an impact on a substantial number of 
small entities is not expected. Historically, the Agency's Superfund 
contracts have been large enough in scope where small business 
participation at the prime contractor level has not been substantial. 
Furthermore, if there was any economic impact, it would not be 
significant. Any evaluation credit given to an offeror competing for an 
Agency contract for its proposed local employment and training would 
not be significant in comparison to other evaluation criteria used in 
determining the awardee of the contract.
    The monthly status report identified in this proposed rule is a 
deliverable requirement. This deliverable requires contractors to 
specifically track the following throughout the duration of the 
contract: the number of local residents employed, the labor category 
for each local employee, the number of hours each local employee 
worked, the labor rate for each local employee, the date each local 
employee received specific training, the amount of training hours each 
local employee received, the start date for each local employee, and 
the date and reason for termination of employment by the contractor or 
local employee.

E. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess 
their regulatory actions on State, local, and tribal governments, and 
the private sector. This proposed rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in aggregate, or the private 
sector in one year. The rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.

F. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the

[[Page 67847]]

environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 12866, and because it 
does not involve decisions on environmental health or safety risks.

List of Subjects in 48 CFR Parts 1526 and 1552

    Environmental protection, Government procurement.

    Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth 
below:

SUBCHAPTER D--[AMENDED]

    1. Part 1526, Other Socioeconomic Programs, is added to Subchapter 
D of the EPAAR as follows:

PART 1526--OTHER SOCIOECONOMIC PROGRAMS

Subpart 1526.1--Preference for Local Employment and Training

1526.100  Scope of subpart.
1526.101  Definitions.
1526.102  Policy.
1526.103  Solicitation provision and contract clause.
1526.103-1  Solicitation provision.
1526.103-2   Contract clause.

    Authority: Sec. 205(c), 63 stat. 390, as amended.

Subpart 1526.1--Preference for local employment and training.


1526.100  Scope of subpart.

    This subpart provides a preference for prime contractors to employ, 
hire, and train local employees in geographical locations where 
contractual requirements will be performed. This preference is intended 
to assist in decreasing the unemployment rate and to provide training 
to local employees in geographical locations of contract performance. 
Offerors will receive technical points in the proposal evaluation 
process for their ability to employ and train citizens in the 
geographical location of contract performance.


1526.101  Definitions.

    Local employment, as used in this subpart, refers to employment and 
new hiring of people who reside in the geographical location where 
contractual requirements will be performed.
    Geographical location, as used in this subpart, refers to the state 
and county where contractual requirements will be performed.
    Training, as used in this subpart, refers to skilled-based 
instructions provided to local residents (local employees) to perform 
specified contractual requirements.


1526.102  Policy.

    (a) The preference to use local employment and training as an 
evaluation factor for award is optional in EPA acquisitions. 
Contracting officers may include the solicitation provision at 
1552.226-70 and the contract clause at 1552.226-71 in solicitations and 
contracts to encourage contractors to employ, hire, and train local 
residents.
    (b) Contracting officers, in consultation with the project officer, 
shall define the specific geographical location boundaries for local 
employment and training in each solicitation and contract. The 
designated geographical location must coincide with the ``area type'' 
indicator used to identify the unemployment rate for the geographical 
location (see paragraph (e) of this section). Offerors must ensure that 
employees reside within the stated geographical location boundaries 
throughout the duration of the contract.
    (c) The Bureau of Labor Statistics shall be used to verify 
unemployment statistics in geographical areas. Contracting officers, in 
consultation with project officers, shall compare the National 
unemployment rate with the unemployment rate in the designated 
geographical area where contract performance will take place.
    (1) If the unemployment rate in the designated geographical area is 
equivalent to or exceeds the National unemployment rate, this clause 
should be used to support economic development in that particular 
geographical area.
    (2) If the unemployment rate in the designated geographical area is 
less than the National unemployment rate, this clause may also be used 
if deemed appropriate by the contracting officer. The contracting 
officer shall document the contract file with rationale to support use 
of this clause when the unemployment rate in the designated 
geographical area is less than the National unemployment rate.
    (d) The contracting officer and the project officer may obtain the 
National unemployment rate by use of the Internet website as follows:
    (1) http://stats.bls.gov/blshome.htm
    (2) Click ``Economy at a Glance''
    (3) Review the ``unemployment rate'' pertaining to the most current 
month in which the solicitation will be issued.
    (e) The contracting officer and the project officer shall verify 
the Bureau of Labor Statistics for unemployment rates in designated 
geographical areas by use of the Internet website as follows:
    (1) http://stats.bls.gov/blshome.htm
    (2) Click ``Data''
    (3) Click ``Selective Access''
    (4) Scroll down and click on ``Local Area Unemployment Statistics''
    (i) Check ``not seasonally adjusted'' and click ``next form''
    (ii) Select ``unemployment rate'' and click ``next form''
    (iii) Choose the ``area type'' that corresponds with the designated 
geographical location
    (iv) Select the most current year, format ``2. Table'', ``HTML 
Tables: Yes'', ``Catalog: Yes'', ``Delimiter: Space'', and click 
retrieve data.
    (f) Compare the National unemployment rate to the unemployment rate 
pertaining to the most current month in which the solicitation will be 
issued.
    (g) The contractor's current employees who reside in the designated 
geographical area may be included toward the achievement of technical 
evaluation points when this clause is used.
    (h) All local employees must provide proof of residency to the 
contractor (i.e., copy of employee's driver's license or confirm 
address on W-2 Form).


1526.103  Solicitation provisions and contract clause.


1526.103-1  Solicitation provision.

    Contracting officers shall include the provision at 1552.226-70 in 
solicitations when the technical evaluation criteria will include 
technical points pertaining to the contractor's ability to employ, 
hire, and train local residents in the geographical location of 
contract performance.


1526.103-2  Contract clause.

    Contracting officers shall include the contract clause at 1552.226-
71 in contracts to require the contractor to deliver monthly status 
reports on local employment and training.

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    2. The authority citation for Part 1552 continues to read as 
follows:

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended.

    3. Part 1552 is amended by adding 1552.226-70 and 1552.226-71 as 
follows:

[[Page 67848]]

1552.226-70  Preference for local employment and training 
certification.

    As prescribed in 1526.103-1, insert the following provision in 
solicitations when applicable.

Preference for Local Employment and Training Certification (Dec 19XX)

    (a) The offeror hereby certifies that local employment and 
training [  ] will [  ] will not be used in the geographical 
location where contractual requirements will be performed.
    (b) The offeror hereby certifies that procedures for local 
employment and training [  ] are [  ] are not stated in the 
offeror's proposal, and [  ] will [  ] will not be utilized in the 
event that the offeror is awarded this contract.
    (c) The offeror [  ] has [  ] has not specified the labor 
category, labor hours, labor rate, and the amount of training hours 
for local employment in the offeror's proposal.
    (d) The offeror [  ] is [  ] is not aware that the technical 
evaluation criteria concerning this award will include technical 
points for the offeror's ability to utilize local employment and 
training.

(End of provision)


1552.226-71  Preference for local employment and training.

    As prescribed in 1526.103-2, insert the following clause in 
contracts when applicable.

Local Employment and Training (Dec 19XX)

    (a) The contractor shall employ and train __ [contracting 
officer insert # of people] local residents in performance of this 
contract. A total of __ [contracting officer insert # of people] 
local residents must be employed and trained throughout the duration 
of this contract.
    (b) Upon employing local residents, the contractor shall ensure 
that each local resident receives training associated with the 
required contractual performance.
    (c) The contractor shall deliver monthly status reports 
consisting of the number of local residents employed, the labor 
category for each local employee, the number of hours each local 
employee worked, the labor rate for each local employee, the date 
each local employee received specific training, the amount of 
training hours each local employee received, the start date for each 
local employee, and the date and reason for termination of 
employment by the contractor or local employee.
    (d) The contractor shall deliver the information identified in 
paragraph (c) of this clause, to the contracting officer and project 
officer as part of the standard monthly report specified in this 
contract.

(End of clause)

    Dated: November 17, 1998.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 98-32683 Filed 12-8-98; 8:45 am]
BILLING CODE 6560-50-P