[Federal Register Volume 66, Number 101 (Thursday, May 24, 2001)]
[Rules and Regulations]
[Pages 28673-28676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12701]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Part 1552

[FRL-6955-3]


Acquisition Regulation; Administrative Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing this final rule that amends the Environmental 
Protection Agency Acquisition Regulation (EPAAR) by making 
administrative changes to be consistent with Federal Acquisition 
Regulation (FAR) provisions.

EFFECTIVE DATE: May 24, 2001.

FOR FURTHER INFORMATION CONTACT: Paul Schaffer, U.S. EPA, Office of 
Acquisition Management, Mail Code (3802R), 1200 Pennsylvania Avenue, 
NW, Washington, DC 20460, Telephone: (202) 564-4366.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule was published in the Federal Register (65 FR 
58921) on October 3, 2000, providing for a 60-day public comment 
period. Interested parties were afforded an opportunity to participate 
in the making of this rule. No public comments were received.

B. Executive Order 12866

    This 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 (PRA)

    The information collection requirement (ICR) in 1552.219-71, 
Procedures for Participation in the EPA Mentor-Protege Program, is 
covered by OMB clearance number 2030-0006. Copies of the ICR document 
may be obtained from Sandy Farmer, by mail at the EPA Office of 
Environmental Information, Collection Strategies Division, U.S. 
Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW, 
Washington, DC 20460, by email at [email protected], or by calling 
(201) 260-2740. A copy may also be downloaded off the internet at 
http://www.epa.gov/icr. Include the ICR clearance number in any 
correspondence.
    The government-wide information collection requirement in 1552.245-
73, Government Property, is covered by OMB clearance number 9000-0075, 
which is maintained by the General Services Administration. This final 
rule contains no other clauses with information 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 (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impact of today's final rule on small 
entities, small entity is defined as: (1) A small business that meets 
the definition of a small business found in the Small Business Act and 
codified at 13 CFR 121.201; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the final rule on small entities.'' 5 U.S.C. 603 and 
604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. This 
final rule merely incorporates existing EPA solicitation and contract 
provisions into the EPAAR and will have no adverse impact on small 
entities. The requirements under this final rule impose no additional 
reporting, record-keeping, or compliance costs on small entities.

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 final 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 final rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.

F. Executive Order 13045

    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 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 final rule is not subject to Executive Order 13045 because it 
is not an economically significant rule as defined by Executive Order 
12866, and because it does not involve decisions on environmental 
health or safety risks.

[[Page 28674]]

G. Executive Order 13132

    Executive Order 13132 entitled, ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This final rule merely 
incorporates existing EPA solicitation and contract provisions into the 
EPAAR. Thus, the requirements of section 6 of the Executive Order do 
not apply to this final 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 Tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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 government ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    This final 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 final 
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 
final 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 rules report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this final 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); 
and 41 U.S.C. 418b. 48 CFR Chapter 15 is amended as follows:

List of Subjects in 48 CFR Part 1552

    Government procurement.

    1. The authority citations for 48 CFR part 1552 continues to read 
as follows:

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended; 
40 U.S.C. 486(c); and 41 U.S.C. 418b.

    2. In Section 1552.211-70, in the clause ``Reports of Work'' and in 
alternate 1 revise the effective date of the clause from ``Feb 1998'' 
to read ``Oct 2000''.

    3. In Section1552.211-79 ``Compliance with EPA Policies for 
Information Resources Management'' revise the effective date of the 
clause from ``Sept 1991'' to read ``Oct 2000.''

    4. Section1552.219-70 Mentor-Protege Program is revised to read as 
follows:


1552.219-70  Mentor-Protege Program.

    As prescribed in 1519.203(a), insert the following clause:

MENTOR-PROTEGE PROGRAM

OCT 2000

    (a) The Contractor has been approved to participate in the EPA 
Mentor-Protege program. The purpose of the Program is to increase 
the participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; to 
establish a mutually beneficial relationship with SDB's and EPA's 
large business prime contractors (although small businesses may 
participate as Mentors); to develop the technical and corporate 
administrative expertise of SDBs which will ultimately lead to 
greater success in competition for contract opportunities; to 
promote the economic stability of SDBs; and to aid in the 
achievement of goals for the use of SDBs in subcontracting 
activities under EPA contracts.
    (b) The Contractor shall submit an executed Mentor-Protege 
agreement to the contracting officer, with a copy to the Office of 
Small and Disadvantaged Business Utilization or the Small Business 
Specialist, within thirty (30) calendar days after the effective 
date of the contract. The contracting officer will notify the 
Contractor within thirty (30) calendar days from its submission if 
the agreement is not accepted.
    (c) The Contractor as a Mentor under the Program agrees to 
fulfill the terms of its agreement(s) with the Protege firm(s).
    (d) If the Contractor or Protege firm is suspended or debarred 
while performing under an approved Mentor-Protege agreement, the 
Contractor shall promptly give notice of the suspension or debarment 
to the Office of Small and Disadvantaged Business Utilization and 
the contracting officer.

[[Page 28675]]

    (e) Costs incurred by the Contractor in fulfilling their 
agreement(s) with the Protege firm(s) are not reimbursable on a 
direct basis under this contract.
    (f) In an attachment to Standard Form 294, Subcontracts Report 
for Individual Contracts, the Contractor shall report on the 
progress made under their Mentor-Protege agreement(s), providing:
    (1) The number of agreements in effect; and
    (2) The progress in achieving the developmental assistance 
objectives under each agreement, including whether the objectives of 
the agreement have been met, problem areas encountered, and any 
other appropriate information.
(End of clause)


    5. Section 1552.219-71, Procedures for Participation in the EPA 
Mentor-Protege Program, is revised to read as follows:


1552.219-71  Procedures for Participation in the EPA Mentor-Protege 
Program.

    As prescribed in 1519.203(b), insert the following provision:

PROCEDURES FOR PARTICIPATION IN THE EPA MENTOR-PROTEGE PROGRAM

OCT 2000

    (a) This provision sets forth the procedures for participation 
in the EPA Mentor-Protege Program (hereafter referred to as the 
Program). The purpose of the Program is to increase the 
participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; to 
establish a mutually beneficial relationship with SDBs and EPA's 
large business prime contractors (although small businesses may 
participate as Mentors); to develop the technical and corporate 
administrative expertise of the SDBs which will ultimately lead to 
greater success in competition for contract opportunities; to 
promote the economic stability of SDBs; and to aid in the 
achievement of goals for the use of SDBs in subcontracting 
activities under EPA contracts. If the successful offeror is 
accepted into the Program they shall serve as a Mentor to a Protege 
(SDB) firm(s), providing developmental assistance in accordance with 
an agreement with the Protege firm(s).
    (b) To participate as a Mentor, the offeror must receive 
approval in accordance with paragraph (h).
    (c) A Protege must be a small disadvantaged business (SDB) 
concern as defined under Federal Acquisition Regulation (FAR) 
19.001, and a small business for the purpose of the Small Business 
Administration (SBA) size standard applicable to the North American 
Industry Classification System (NAICS) code applicable to the 
contemplated supplies or services to be provided by the Protege firm 
to the Mentor firm. Further, consistent with EPA's 1993 
Appropriation Act, socially disadvantaged individuals shall be 
deemed to include women.
    (d) Where there may be a concern regarding the Protege firm's 
eligibility to participate in the program, the protege's eligibility 
will be determined by the contracting officer after the SBA has 
completed any formal determinations.
    (e) The offeror shall submit an application in accordance with 
paragraph (k) as part of its proposal which shall include as a 
minimum the following information.
    (1) A statement and supporting documentation that the offeror is 
currently performing under at least one active Federal contract with 
an approved subcontracting plan and is eligible for the award of 
Federal contracts;
    (2) A summary of the offeror's historical and recent activities 
and accomplishments under their SDB program. The offeror is 
encouraged to include any initiatives or outreach information 
believed pertinent to approval as a Mentor firm;
    (3) The total dollar amount (including the value of all option 
periods or quantities) of EPA contracts and subcontracts received by 
the offeror during its two preceding fiscal years. (Show prime 
contracts and subcontracts separately per year);
    (4) The total dollar amount and percentage of subcontract awards 
made to all SDB firms under EPA contracts during its two preceding 
fiscal years. If recently required to submit a SF 295, provide 
copies of the two preceding year's reports;
    (5) The number and total dollar amount of subcontract awards 
made to the identified Protege firm(s) during the two preceding 
fiscal years (if any).
    (f) In addition to the information required by (e) above, the 
offeror shall submit as a part of the application the following 
information for each proposed Mentor-Protege relationship:
    (1) Information on the offeror's ability to provide 
developmental assistance to the identified Protege firm and how the 
assistance will potentially increase contracting and subcontracting 
opportunities for the Protege firm, including subcontract 
opportunities in industry categories where SDBs are not dominant in 
the offeror's vendor base.
    (2) A letter of intent indicating that both the Mentor firm and 
the Protege firm intend to enter into a contractual relationship 
under which the Protege will perform as a subcontractor under the 
contract resulting from this solicitation and that the firms will 
negotiate a Mentor-Protege agreement. Costs incurred by the offeror 
in fulfilling the agreement(s) with the Protege firm(s) are not 
reimbursable as a direct cost under the contract. The letter of 
intent must be signed by both parties and contain the following 
information:
    (i) The name, address and phone number of both parties;
    (ii) The Protege firm's business classification, based upon the 
NAICS code(s) which represents the contemplated supplies or services 
to be provided by the Protege firm to the Mentor firm;
    (iii) A statement that the Protege firm meets the eligibility 
criteria;
    (iv) A preliminary assessment of the developmental needs of the 
Protege firm and the proposed developmental assistance the Mentor 
firm envisions providing the Protege. The offeror shall address 
those needs and how their assistance will enhance the Protege. The 
offeror shall develop a schedule to assess the needs of the Protege 
and establish criteria to evaluate the success in the Program.
    (v) A statement that if the offeror or Protege firm is suspended 
or debarred while performing under an approved Mentor-Protege 
agreement the offeror shall promptly give notice of the suspension 
or debarment to the EPA Office of Small Disadvantaged Business 
Utilization (OSDBU) and the contracting officer. The statement shall 
require the Protege firm to notify the Contractor if it is suspended 
or debarred.
    (g) The application will be evaluated on the extent to which the 
offeror's proposal addresses the items listed in (e) and (f). To the 
maximum extent possible, the application should be limited to not 
more than 10 single pages, double spaced. The offeror may identify 
more than one Protege in its application.
    (h) If the offeror is determined to be in the competitive range, 
the offeror will be advised by the contracting officer whether their 
application is approved or rejected. The contracting officer, if 
necessary, may request additional information in connection with the 
offeror's submission of its revised or best and final offer. If the 
successful offeror has submitted an approved application, they shall 
comply with the clause titled ``Mentor-Protege Program.''
    (i) Subcontracts of $1,000,000 or less awarded to firms approved 
as Proteges under the Program are exempt from the requirements for 
competition set forth in FAR 52.244-5(b).
    (j) Costs incurred by the offeror in fulfilling their 
agreement(s) with a Protege firm(s) are not reimbursable as a direct 
cost under the contract. Unless EPA is the responsible audit agency 
under FAR 42.703-1, offerors are encouraged to enter into an advance 
agreement with their responsible audit agency on the treatment of 
such costs when determining indirect cost rates. Where EPA is the 
responsible audit agency, these costs will be considered in 
determining indirect cost rates.
    (k) Submission of Application and Questions Concerning the 
Program. The application for the Program shall be submitted to the 
contracting officer, and to the EPA OSDBU, at the following 
addresses for headquarters procurements:

Socioeconomic Business Program Officer, Office of Small and 
Disadvantaged Business Utilization, U. S. Environmental Protection 
Agency, Ariel Rios Building (3801R), 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460, Telephone: (202) 564-4322, Fax: (202) 565-2473

    The application for the Program shall be submitted to the 
contracting officer, and to the Small Business Specialist, at the 
following address for RTP procurements:

Small Business Program Officer, Contracts Management Division (MD-
33), U. S. Environmental Protection Agency, Research Triangle Park, 
NC 27711, Telephone: (919) 541-2249, Fax: (919) 541-5539

    The application for the Program shall be submitted to the 
contracting officer, and to

[[Page 28676]]

the Small Business Specialist, at the following address for 
Cincinnati procurements:

Small and Disadvantaged Business Utilization Officer, Contracts 
Management Division, 26 West Martin Luther King Drive, Cincinnati, 
OH 45268, Telephone: (513) 487-2024, Fax: (513) 487-2004

(End of provision)


    6. Section 1552.219-72, Small Disadvantaged Business Participation 
Program, is revised to read as follows:


1552.219-72  Small Disadvantaged Business Participation Program.

    As prescribed in 1519.204(a), insert the following clause:

SMALL DISADVANTAGED BUSINESS PARTICIPATION PROGRAM

OCT 2000

    (a) Section M of this solicitation contains a source selection 
factor or subfactor related to the participation of small 
disadvantaged business (SDB) concerns in the performance of the 
contract. The nature of the evaluation of an SDB offeror under this 
evaluation factor or subfactor is dependent upon whether the SDB 
concern qualifies for the price evaluation adjustment under the 
clause at FAR 52.219-23, Notice of Price Evaluation Adjustment for 
Small Disadvantaged Business Concerns, and whether the SDB concern 
specifically waives this price evaluation adjustment.
    (b) In order to be evaluated under the source selection factor 
or subfactor, an offeror must provide, with its offer, the following 
information:
    (1) The extent of participation of SDB concerns in the 
performance of the contract in terms of the value of the total 
acquisition. Specifically, offerors must provide targets, expressed 
as dollars and percentages of the total contract value, for SDB 
participation in the applicable and authorized North American 
Industry Classification System (NAICS) Industry Subsectors as 
determined by the Department of Commerce. Total dollar and 
percentage targets must be provided for SDB participation by the 
prime contractor, including team members and joint venture partners. 
In addition, total dollar and percentage targets for SDB 
participation by subcontractors must be provided and listed 
separately;
    (2) The specific identification of SDB concerns to be involved 
in the performance of the contract;
    (3) The extent of commitment to use SDB concerns in the 
performance of the contract:
    (4) The complexity and variety of the work the SDB concerns are 
to perform; and
    (5) The realism of the proposal to use SDB concerns in the 
performance of the contract.
    (c) An SDB offeror who waives the price evaluation adjustment 
provided in FAR 52.219-23 shall provide, with their offer, targets, 
expressed as dollars and percentages of the total contract value, 
for the work that it intends to perform as the prime contractor in 
the applicable and authorized NAICS Industry Subsectors as 
determined by the Department of Commerce. All of the offeror's 
identified targets described in paragraphs (b) and (c) of this 
clause will be incorporated into and made part of any resulting 
contract.

(End of provision)


    7. Section 1552.219-73, Small Disadvantaged Business Targets, is 
revised to read as follows:


1552.219-73  Small Disadvantaged Business Targets.

    As prescribed in 1519.204(b), insert the following clause:

SMALL DISADVANTAGED BUSINESS TARGETS

OCT 2000

    (a) In accordance with FAR 19.1202-4(a) and EPAAR 1552.219-72, 
the following small disadvantaged business (SDB) participation 
targets proposed by the contractor are hereby incorporated into and 
made part of the contract:

----------------------------------------------------------------------------------------------------------------
                                                                                                  Percentage of
                      Contractor targets                         NAICS major        Dollars       total contract
                                                                    group                             value
----------------------------------------------------------------------------------------------------------------
Total Prime Contractor Targets (including joint venture        ...............  ...............  ...............
 partners)...................................................
                                                              --------------------------------------------------
      Total subcontractor targets............................  ...............  ...............  ...............
----------------------------------------------------------------------------------------------------------------

    (b) The following specifically identified SDB(s) was (were) 
considered under the Section--SDB participation evaluation factor or 
subfactor (continue on separate sheet if more space is needed):

(1)--------------------------------------------------------------------
(2)--------------------------------------------------------------------
(3)--------------------------------------------------------------------
(4)--------------------------------------------------------------------
(5)--------------------------------------------------------------------

    The contractor shall promptly notify the contracting officer of 
any substitution of firms if the new firms are not SDB concerns.
    (c) In accordance with FAR 52.219-25, Small Disadvantaged 
Business Participation Program--Disadvantaged Status and Reporting, 
the contractor shall report on the participation of SDB concerns in 
the performance of the contract no less than thirty (30) calendar 
days prior to each annual contractor performance evaluation 
[contracting officer may insert the dates for each performance 
evaluation (i.e., every 12 months after the effective date of 
contract)] or as otherwise directed by the contracting officer.

(End of provision)

    8. In Section 1552.232-73 ``Payments--Fixed-Rate Services 
Contract''revise the effective date of the clause from ``APR 1984 to 
read to ``OCT 2000.''

    Dated: February 21, 2001.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 01-12701 Filed 5-23-01; 8:45 am]
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