[Federal Register Volume 73, Number 43 (Tuesday, March 4, 2008)]
[Proposed Rules]
[Pages 11602-11606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4153]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1537 and 1552

[Docket ID No. EPA-HQ-OARM-2007-1115; FRL-8536-8]
RIN 2030-AA96


Acquisition Regulation: Guidance on Technical Direction

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the EPA Acquisition Regulation (EPAAR) to revise the prescription 
for and the content of a clause that addresses issuing technical 
direction in contracts. This revision incorporates and supersedes 
several class deviations to the EPAAR and updates terminology and 
procedures related to issuing technical direction.

DATES: Comments must be received on or before April 3, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2007-1115, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-0224.
     Mail: OEI Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of three (3) copies
     Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-
2007-1115. EPA's policy is that all timely comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other

[[Page 11603]]

information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
http://www.regulations.gov or e-mail. The http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through http://www.regulations.gov your e-mail address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the OEI Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
OEI Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Valen D. Wade, Policy, Training, and 
Oversight Division, Office of Acquisition Management (3802R), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-564-2284; fax number: 202-
565-2474; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this proposed action include firms 
that are performing or will perform under contract to the EPA. This 
includes firms in all industry groups.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI). In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    Under certain contracts the contracting officer authorizes a 
designated individual, e.g., the contracting officer technical 
representative or COTR, to issue technical direction to the contractor. 
The technical direction clause in the contract defines what constitutes 
technical direction, which officials are authorized to issue technical 
direction, and procedures for issuing technical direction.
    Since the EPAAR technical direction guidance was originally issued, 
several class deviations to the clause have been approved. (A class 
deviation is a change to the EPAAR necessary to meet specific contract 
requirements.) This proposed revision would incorporate and supersede 
the class deviations and make additional revisions to the technical 
direction guidance as specified below.

III. Proposed Rule

    This proposed rule would amend the EPAAR to revise the prescription 
for using the Technical Direction clause and the wording of the clause 
itself. The current prescription states the clause is used in cost 
reimbursement type solicitations and contracts. The revised 
prescription would allow contracting officers to use the clause, or a 
clause substantially the same, in solicitations and contracts where the 
contracting officer will delegate authority to issue technical 
direction to the contracting officer technical representative.
    The EPAAR clause entitled ``Technical Direction'' is revised in 
several ways. First, two new terms are added and defined: ``contracting 
officer technical representative'' and ``task order.'' The reason for 
adding these terms is to standardize titles and terminology used at EPA 
with terms used in the Federal Acquisition Regulation (FAR) and other 
Federal procurement policy. For example, the current clause refers to 
the ``project officer'' as the individual who may be authorized to 
issue technical direction. Other terms, such as task order project 
officer, work assignment manger, and delivery order project officer are 
also used at EPA. The revised clause will standardize these terms under 
the title ``contracting officer technical representative.''
    Instead of merely stating technical direction is direction which 
assists the contractor in accomplishing the statement of work, the 
revised clause provides more detail in describing technical direction 
as authorized instruction to the contractor which approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general description of work; or shifts emphasis among work areas or 
tasks.
    The technical direction clause specifically states the contracting 
officer technical representative cannot request a change outside the 
scope of the contract, i.e., a cardinal change. The clause also 
protects against constructive changes by requiring the contractor to 
contact the contracting officer if

[[Page 11604]]

direction given by the contracting officer technical representative: 
(1) Institutes additional work outside the scope of the contract or 
work request; (2) Constitutes a change as defined in the ``Changes'' 
clause; (3) Causes an increase or decrease in the estimated cost of the 
contract or task order; (4) Alters the period of performance of the 
contract or task order; or (5) Changes any of the other terms or 
conditions of the contract or task order. The contractor is reminded 
that following any direction given by any person other than the 
contracting officer or the contracting officer technical representative 
shall be at the contractor's risk.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO)12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
No information is collected under this action.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes: the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 proposed 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 proposed 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, because the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed 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 
action revises a current EPAAR clause and does not impose requirements 
involving capital investment, implementing procedures, or record 
keeping. This rule will not have a significant economic impact on small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for: notifying potentially affected small governments; enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates; and, informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. The rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Thus, today's rule is not subject to the requirements 
of Sections 202 and 205 of the UMRA.

E. Executive Order 13132 (Federalism)

    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.''
    This proposed 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

[[Page 11605]]

distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Today's proposed 
rule on technical direction provides guidance on the interaction 
between contracting officials and contractors only. Thus, Executive 
Order 13132 does not apply to this rule. In the spirit of Executive 
Order 13132, and consistent with EPA policy to promote communications 
between EPA and State and local governments, EPA specifically solicits 
comment on this proposed rule from State and local officials.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule on technical direction provides guidance on the 
interaction between contracting officials and contractors only. Thus, 
Executive Order 13175 does not apply to this rule. EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``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 
proposed 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.

H. Executive Order 13211 (Energy Effects)

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

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, 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 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This proposed rulemaking does not involve human health or 
environmental affects.

List of Subjects in 48 CFR Parts 1537 and 1552

    Government procurement.

    Dated: February 21, 2008.
Denise Benjamin Sirmons,
Director, Office of Acquisition Management.

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

PART 1537--SERVICE CONTRACTING

    1. The authority citation for part 1537 continues to read as 
follows:

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

    2. Amend Sec.  1537.110 by revising paragraph (b) to read as 
follows:


1537.110  Solicitation provisions and contract clauses.

* * * * *
    (b) The contracting officer shall insert a clause substantially the 
same as the clause in 1552.237-71, Technical Direction, in 
solicitations and contracts where the contracting officer intends to 
delegate authority to issue technical direction to the contracting 
officer technical representative(s).
* * * * *

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. The authority citation for 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.

    4. Revise Sec.  1552.237-71 to read as follows:


1552.237-71  Technical Direction.

    As prescribed in 1537.110, insert a clause substantially the same 
as the following:
Technical Direction (XXX 2008)
    (a) Definitions.
    Contracting officer technical representative (COTR), means an 
individual appointed by the contracting officer in accordance with 
Agency procedures to perform specific technical and administrative 
functions.
    Task order, as used in this clause, means work assignment, delivery 
order, or any other document issued by the contracting officer to order 
work under a service contract.
    (b) The contracting officer technical representative(s) may provide 
technical direction on contract or work request performance. Technical 
direction includes:
    (1) Instruction to the contractor that approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general description of

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work; shifts emphasis among work areas or tasks; and
    (2) Evaluation and acceptance of reports or other deliverables.
    (c) Technical direction must be within the scope of work of the 
contract and any task order thereunder. The contracting officer 
technical representative(s) does not have the authority to issue 
technical direction which:
    (1) Requires additional work outside the scope of the contract or 
task order;
    (2) Constitutes a change as defined in the ``Changes'' clause;
    (3) Causes an increase or decrease in the estimated cost of the 
contract or task order;
    (4) Alters the period of performance of the contract or task order; 
or
    (5) Changes any of the other terms or conditions of the contract or 
task order.
    (d) Technical direction will be issued in writing or confirmed in 
writing within five (5) days after oral issuance. The contracting 
officer will be copied on any technical direction issued by the 
contracting officer technical representative.
    (e) If, in the contractor's opinion, any instruction or direction 
by the contracting officer technical representative(s) falls within any 
of the categories defined in paragraph (c) of this clause, the 
contractor shall not proceed but shall notify the contracting officer 
in writing within 3 days after receiving it and shall request that the 
contracting officer take appropriate action as described in this 
paragraph. Upon receiving this notification, the contracting officer 
shall:
    (1) Advise the contractor in writing as soon as practicable, but no 
later than 30 days after receipt of the contractor's notification, that 
the technical direction is within the scope of the contract effort and 
does not constitute a change under the ``Changes'' clause of the 
contract;
    (2) Advise the contractor within a reasonable time that the 
government will issue a written modification to the contract; or
    (3) Advise the contractor that the technical direction is outside 
the scope of the contract and is thereby rescinded.
    (f) A failure of the contractor and contracting officer to agree as 
to whether the technical direction is within the scope of the contract, 
or a failure to agree upon the contract action to be taken with respect 
thereto, shall be subject to the provisions of the clause entitled 
``Disputes'' in this contract.
    (g) Any action(s) taken by the contractor, in response to any 
direction given by any person acting on behalf of the government or any 
government official other than the contracting officer or the 
contracting officer technical representative, shall be at the 
contractor's risk.(End of clause)

 [FR Doc. E8-4153 Filed 3-3-08; 8:45 am]
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