[Federal Register Volume 64, Number 12 (Wednesday, January 20, 1999)]
[Proposed Rules]
[Pages 3060-3062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1128]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1537 and 1552
[FRL-6220-9]
Acquisition Regulation: Service Contracting--Avoiding Improper
Personal Services Relationships
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing this
proposed rule to amend the EPA Acquisition Regulation (EPAAR) (48 CFR
Chapter 15) to emphasize the proper relationship between the Government
and its contractors in its non-personal services contracts. The Agency
recognizes that regardless of the express terms of its contracts, if a
contract is administered improperly, an improper personal services
relationship can be the result. This proposed rule is designed to
ensure that the manner in which contracts are administered will not
create an improper employer-employee relationship.
[[Page 3061]]
DATES: Comments should be submitted no later than March 22, 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 and data may also be submitted 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 6.1 format or ASCII file format. No
Confidential Business Information (CBI) should be submitted through e-
mail. Electronic comments on this rule may be filed on-line at many
Federal Depository Libraries.
FOR FURTHER INFORMATION CONTACT: Louise Senzel, U.S. EPA, Office of
Acquisition Management, (3802R), 401 M Street, SW, Washington, D.C.
20460, Telephone: (202) 564-4367.
SUPPLEMENTARY INFORMATION:
A. Background
Recent Agency audits have indicated a vulnerability in the manner
in which Agency contracts have been administered which could create the
existence of improper personal services relationships. The proposed
rule will amend the EPAAR to emphasize the proper relationship between
the Government and its contractors in the Government's non-personal
services contracts. The Agency recognizes that regardless of the
express terms of its contracts, if a contract is administered
improperly, improper personal services relationship can be the result.
Accordingly, the Agency is trying to highlight the nature of the proper
relationship to ensure that the manner in which contracts are
administered will not create an improper employer-employee
relationship.
B. Executive Order 12866
The proposed rule is not a significant regulatory action for the
purposes of E.O. 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.)
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 rule impose no reporting,
record-keeping, or any compliance costs.
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 the
impact of 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 the
aggregate, or the private sector in one year. Any private sector costs
for this action relate to paperwork requirements and associated
expenditures that are far below the level established for UMRA
applicability. Thus, the rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
F. Executive Order 13045
E.O. 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
E.O. 12866, and (2) concerns an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This rule is not subject to E.O. 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks.
G. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
E.O. 12875 requires EPA to provide to the OMB a description of the
extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
E.O. 12875 requires EPA to develop an effective process permitting
elected officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
H. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with these
governments. If EPA complies by consulting EPA must provide to the OMB,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of E.O. 13084 do not apply to this rule.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus
[[Page 3062]]
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
The proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed
rulemaking and, specifically, invites the public to identify
potentially-applicable voluntary consensus standards and to explain why
such standards should be used in this regulation.
List of Subjects in 48 CFR Parts 1537 and 1552
Government procurement.
Authority: The provisions of this regulation are issued under 5
U.S.C. 301; Sec. 205(c), 63 Stat. 390.
Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth
below:
1. The authority citation for Parts 1537 and 1552 continues to read
as follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended.
PART 1537--[AMENDED]
2. Section 1537.110 is amended to add paragraph (g) to read as
follows:
Sec. 1537.110 Solicitation provisions and contract clauses.
* * * * *
(g) To ensure that Agency contracts are administered so as to avoid
creating an improper employer-employee relationship, contracting
officers shall insert the contract clause at 48 CFR 1552.237-76,
``Government-Contractor Relations'', in all solicitations and contracts
for non-personal services.
PART 1552--[AMENDED]
3. Add 1552.237-76 to read as follows:
Sec. 1552.237-76 Government-contractor relations.
As prescribed in 1537.110(g), insert the following clause:
GOVERNMENT-CONTRACTOR RELATIONS
(month and year of publication in the Federal Register)
(a) The Government and the contractor understand and agree that
the services to be delivered under this contract by the contractor
to the Government are non-personal services and the parties
recognize and agree that no employer-employee relationship exists or
will exist under the contract between the Government and the
contractor's personnel. It is, therefore, in the best interest of
the Government to afford both parties a full understanding of their
respective obligations.
(b) Contractor personnel under this contract shall not:
(1) Be placed in a position where they are under the
supervision, direction, or evaluation of a Government employee.
(2) Be placed in a position of command, supervision,
administration or control over Government personnel, or over
personnel of other contractors under other EPA contracts, or become
a part of the Government organization.
(3) Be used in administration or supervision of Government
procurement activities.
(c) Employee Relationship:
(1) The services to be performed under this contract do not
require the Contractor or his/her personnel to exercise personal
judgment and discretion on behalf of the Government. Rather the
Contractor's personnel will act and exercise personal judgment and
discretion on behalf of the Contractor.
(2) Rules, regulations, directives, and requirements that are
issued by the U.S. Environmental Protection Agency under its
responsibility for good order, administration, and security are
applicable to all personnel who enter the Government installation or
who travel on Government transportation. This is not to be construed
or interpreted to establish any degree of Government control that is
inconsistent with a non-personal services contract.
(d) Inapplicability of Employee Benefits: This contract does not
create an employer-employee relationship. Accordingly, entitlements
and benefits applicable to such relationships do not apply.
(1) Payments by the Government under this contract are not
subject to Federal income tax withholdings.
(2) Payments by the Government under this contract are not
subject to the Federal Insurance Contributions Act.
(3) The Contractor is not entitled to unemployment compensation
benefits under the Social Security Act, as amended, by virtue of
performance of this contract.
(4) The Contractor is not entitled to workman's compensation
benefits by virtue of this contract.
(5) The entire consideration and benefits to the Contractor for
performance of this contract is contained in the provisions for
payment under this contract.
(e) Notice. It is the Contractor's, as well as, the Government's
responsibility to monitor contract activities and notify the
Contracting Officer if the Contractor believes that the intent of
this clause has been or may be violated.
(1) The Contractor should notify the Contracting Officer in
writing promptly, within ______ (to be negotiated) calendar days
from the date of any incident that the Contractor considers to
constitute a violation of this clause. The notice should include the
date, nature and circumstance of the conduct, the name, function and
activity of each Government employee or Contractor official or
employee involved or knowledgeable about such conduct, identify any
documents or substance of any oral communication involved in the
contact, and the estimate in time by which the Government must
respond to this notice to minimize cost, delay or disruption of
performance.
(2) The Contracting Officer will promptly, within ______ (to be
negotiated) calendar days after receipt of notice, respond to the
notice in writing. In responding, the Contracting Officer will
either:
(i) Confirm that the conduct is in violation and when necessary
direct the mode of further performance,
(ii) Countermand any communication regarded as a violation,
(iii) Deny that the conduct constitutes a violation and when
necessary direct the mode of further performance; or
(iv) In the event the notice is inadequate to make a decision,
advise the Contractor what additional information is required, and
establish the date by which it should be furnished by the Contractor
and the date thereafter by which the Government will respond.
(End of clause)
Dated: December 9, 1998.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 99-1128 Filed 1-19-99; 8:45 am]
BILLING CODE 6560-50-P