[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30443-30445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14066]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1537 and 1552

[FRL-6353-9]


Acquisition Regulation: Service Contracting--Avoiding Improper 
Personal Services Relationships

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing this 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 rule is designed to ensure that 
the manner in which contracts are administered will not create an 
improper employer-employee relationship.

EFFECTIVE DATE: July 8, 1999.

FOR FURTHER INFORMATION CONTACT: Jean A. Rellins, U.S. EPA, Office of 
Acquisition Management, (3802R), 401 M Street, SW, Washington, D.C. 
20460, Telephone: (202) 564-4434.

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. This rule amends 
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. No public comments 
were received.

B. Executive Order 12866

    This 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 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 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 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

    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 affect 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 Executive Order 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 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

G. Executive Order 12875

    Under Executive Order 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. If the mandate is unfunded, EPA must provide 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, Executive Order 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 Executive 
Order 12875 do not apply to this rule.

H. Executive Order 13084

    Under Executive Order 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. If the mandate is unfunded, 
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

[[Page 30444]]

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 Executive Order 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''), Public Law 104-113, section 12(d)(15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rule does not involve technical standards. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

J. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective July 8, 1999.

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

List of Subjects in 48 CFR Parts 1537 and 1552

    Government procurement.

    Therefore, 48 CFR Chapter 15 is 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:


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 that exceed the simplified acquisition 
threshold.

PART 1552--[AMENDED]

    3. Add 1552.237-76 to read as follows:


1552.237-76 Government-Contractor Relations.

    As prescribed in 1537.110(g), insert the following clause:

Government-Contractor Relations (June 1999)

    (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 and inserted 
into the basic contract at contract award) 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 conduct, 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 and inserted into the basic contract at contract 
award) 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,

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    (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: May 14, 1999.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 99-14066 Filed 6-7-99; 8:45 am]
BILLING CODE 6560-50-P