[Federal Register Volume 79, Number 138 (Friday, July 18, 2014)]
[Proposed Rules]
[Pages 41949-41953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15824]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1511 and 1552

[EPA-HQ-OARM-2012-0476; FRL-9913-37-OARM]


EPAAR Clause for Work Assignments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to update policy, procedures, and 
contract clauses. The proposed rule updates EPAAR clause 1552.211-74, 
Work Assignments.

DATES: Comments must be received on or before August 18, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2012-0476, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: EPA-HQ-OARM-2012-0476, OEI Docket, Environmental 
Protection Agency, 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-
2012-0476. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your

[[Page 41950]]

identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email 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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
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 www.regulations.gov, or in hard copy at the Office of Environmental 
Information (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 EPA Docket Center is (202) 
566-1752. This Docket Facility is open from 8:30 a.m. to 4:30 p.m. 
Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Thomas Valentino, Policy, Training, 
and Oversight Division, Office of Acquisition Management (3802R), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: 202-564-4522; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. 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

    On 3 December 2009 the Office of Acquisition Management (OAM) Head 
of the Contracting Activity (HCA) issued a class deviation that revised 
the prescription for the subject clause by eliminating the requirement 
that EPA include total estimated labor hours when issuing work 
assignments. The revised prescription is necessary because including 
total estimated labor hours when work assignments are issued undermines 
the negotiation process by providing the contractor no incentive to 
seek more efficient or innovative approaches to meet the Government's 
needs under a work assignment. The revised prescription advises 
contracting officers (COs) that when the nature of the work is 
nonspecific with changing circumstances (e.g., services at new 
hazardous waste sites, R&D in new areas with uncertain potential 
results) then the CO may provide the contractor with the estimated 
labor hours. Otherwise, COs should not authorize the contractor to 
expend the level of effort beyond the effort needed to develop the work 
plan. The revised prescription was published in the Federal Register on 
14 February 2012. As a result, the subject clause text is being updated 
to make it consistent with the revised prescription.
    In addition, the WA clause prescription is modified to make the 
clause applicable to EPA cost-reimbursement contracts, and the subject 
prescription and clause are being updated to add two alternate clause 
versions. Currently the subject clause has Alternates I and II that are 
used in Superfund contracts and require the contractor to provide a COI 
certification. This clause update adds Alternates III and IV which are 
substantially the same as I and II but are written for non-Superfund 
contracts. A class deviation for Alternates III and IV was issued by 
the HCA on 29 June 1994.

III. Proposed Rule

    This proposed rule amends the EPAAR to revise paragraphs (b) and 
(c) in EPAAR clause 1552.211-74, Work Assignments, and revises 
paragraph (b) of its corresponding 1511.011-74 prescription. Alternates 
III and IV are also being added to clause 1552.211-74.

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 
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.

C. 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 Regulatory Flexibility Act 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

[[Page 41951]]

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 this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
revises a current EPAAR provision 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.
    This rule contains no Federal mandates (under the regulatory 
provisions of the Title II of the UMRA) for State, Local, and Tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, Local or Tribal governments or the private sector. Thus, 
the 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 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.

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 rule does not have 
tribal implications as specified in Executive Order 13175.

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

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health 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 12886, and (2) concerns an 
environmental health or safety risk that may have a proportionate 
effect on children. This 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: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution of Use'' (66 FR 28335 (MAY 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    Section 12(d) (15 U.S.C. 272 note) of NTTA, Public Law 104-113, 
directs EPA to use voluntary consensus standards in it's 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 NTTA 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 1511 and 1552

    Describing agency needs, Solicitation provisions and contract 
clauses.

    Dated: June 11, 2014.
John R. Bashista,
Director, Office of Acquisition Management.

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

0
1. The authority citation for 48 CFR parts 1511 and 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.

PART 1511--DESCRIBING AGENCY NEEDS

0
2. Revise paragraph (b) of 1511.011-74 to read as follows:


1511.011-74  Work Assignments.

* * * * *

[[Page 41952]]

    (b) Contract Clause. The CO shall insert the contract clause at 
1552.211.74, Work Assignments, in cost-reimbursement contracts when 
work assignments are used.
    (1) For Superfund contracts, except for contracts which require 
annual conflict of interest certificates (e.g., Site-Specific 
contracts, the Contract Laboratory Program (CLP), Sample Management 
Office (SMO) contracts), the CO shall use the clause with either 
Alternate I or Alternate II. Alternate I shall be used for contractors 
who have at least three (3) years of records that may be searched for 
certification purposes. Alternate II shall be used for contractors who 
do not have at least three (3) years of records that may be searched.
    (2) For non-Superfund contracts, the CO shall use the clause with 
either Alternate III or Alternate IV. Alternate III shall be used for 
contractors who have at least three (3) years of records that may be 
searched for certification purposes. Alternate IV shall be used for 
contractors who do not have at least three (3) years of records that 
may be searched.

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Revise 1552.211-74 to read as follows:


1552.211-74  Work Assignments.

    As prescribed in 1511.011-74, insert the following contract clause 
in cost-reimbursement contracts when work assignments are to be used.

Work Assignments (---- 2013)

    (a) The contractor shall perform work under this contract as 
specified in written work assignments issued by the Contracting 
Officer.
    (b) Each work assignment may include (1) a numerical 
designation, (2) approved workplan labor hours or an estimated 
initial level of effort provided in accordance with 1511.011-74, (3) 
the period of performance and schedule of deliverables, and (4) the 
description of the work.
    (c) The Contractor shall acknowledge receipt of each work 
assignment by returning to the Contracting Officer a signed copy of 
the work assignment within ---- calendar days after its receipt. The 
Contractor shall begin working on a work plan immediately upon 
receipt of a work assignment. Within ---- calendar days after 
receipt of a work assignment, the Contractor shall submit ---- 
copies of a work plan to the Contract-level Contracting Officer's 
Representative and ---- copies to the Contracting Officer. The work 
plan shall include a detailed technical and staffing plan and a 
detailed cost estimate. Within ---- calendar days after receipt of 
the work plan, the Contracting Officer will provide written approval 
or disapproval of it to the Contractor. The Contractor is not 
authorized to start work without an approved work plan unless 
approved by the Contracting Officer or otherwise specified. Also, if 
the Contracting Officer disapproves a work plan, the Contractor 
shall stop work until the problem causing the disapproval is 
resolved. In either case, the Contractor shall resume work only when 
the Contracting Officer approves the work plan.
    (d) This clause does not change the requirements of the ``Level 
of Effort'' clause, nor the notification requirements of either the 
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
    (e) Work assignments shall not allow for any change to the terms 
or conditions of the contract. Where any language in the work 
assignment may suggest a change to the terms or conditions, the 
Contractor shall immediately notify the Contracting Officer.

(End of clause)

    Alternate I. As prescribed in 1511.011-74, modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of 
interest (COI) certification. Where work assignments or similar 
tasking documents are issued under this contract for work on or 
directly related to a site, the Contractor is only required to 
provide a COI certification for the first work assignment issued for 
that site. For all subsequent work on that site under this contract, 
the Contractor has a continuing obligation to search and report any 
actual or potential COIs, but no additional COI certifications are 
required.
    Before submitting the COI certification, the Contractor shall 
search its records accumulated, at a minimum, over the past three 
years immediately prior to the receipt of the work assignment or 
similar tasking document. In the COI certification, the Contractor 
must certify to the best of the Contractor's knowledge and belief 
that all actual or potential organizational COIs have been reported 
to the Contracting Officer, or that to the best of the Contractor's 
knowledge and belief, no actual or potential organizational COIs 
exist. In addition, the Contractor must certify that its personnel 
who perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal 
and organizational COIs to the Contractor. The COI certification 
shall also include a statement that the Contractor recognizes its 
continuing obligation to identify and report any actual or potential 
COI arising during performance of this work assignment or other work 
related to this site.

    Alternate II. As prescribed in 1511.011-74, modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of 
interest (COI) certification. Where work assignments or similar 
tasking documents are issued under this contract for work on or 
directly related to a site, the Contractor is only required to 
provide a COI certification for the first work assignment issued for 
that site. For all subsequent work on that site under this contract, 
the Contractor has a continuing obligation to search and report any 
actual or potential COIs, but no additional COI certifications are 
required.
    Before submitting the COI certification, the Contractor shall 
initially search through all of its available records to identify 
any actual or potential COIs. During the first three years of this 
contract, the Contractor shall search through all records created 
since the beginning of the contract plus the records of the 
Contractor prior to the award of the contract until a minimum of 
three years of records are accumulated. Once three years of records 
have accumulated, prior to certifying, the Contractor shall search 
its records accumulated, at a minimum, over the past three years 
immediately prior to the receipt of the work assignment or similar 
tasking document. In the COI certification, the Contractor must 
certify to the best of the Contractor's knowledge and belief, that 
all actual or potential organizational COIs have been reported to 
the Contracting Officer, or that to the best of the Contractor's 
knowledge and belief, no actual or potential organizational COIs 
exist. In addition, the Contractor must certify that its personnel 
who perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal 
and organizational COIs to the Contractor. The COI certification 
shall also include a statement that the Contractor recognizes its 
continuing obligation to identify and report any actual or potential 
COI arising during performance of this work assignment or other work 
related to this site.

    Alternate III. As prescribed in 1511.011-74, modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of 
interest (COI) certification.
    Before submitting the COI certification, the Contractor shall 
search its records accumulated, at a minimum, over the past three 
years immediately prior to the receipt of the work assignment or 
similar tasking document. In the COI certification, the Contractor 
must certify to the best of the Contractor's knowledge and belief 
that all actual or potential organizational COIs have been reported 
to the Contracting Officer, or that to the best of the Contractor's 
knowledge and belief, no actual or potential organizational COIs 
exist. In addition, the Contractor must certify that its personnel 
who perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal 
and organizational COIs to the Contractor. The COI certification 
shall also include a statement that the Contractor recognizes its

[[Page 41953]]

continuing obligation to identify and report any actual or potential 
COI arising during performance of this work assignment.

    Alternate IV. As prescribed in 1511.011-74, modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of 
interest (COI) certification.
    Before submitting the COI certification, the Contractor shall 
initially search through all of its available records to identify 
any actual or potential COIs. During the first three years of this 
contract, the Contractor shall search through all records created 
since the beginning of the contract plus records of the Contractor 
prior to the award of the contract until a minimum of three years of 
records have accumulated. Once three years of records have 
accumulated, prior to certifying, the Contractor shall search its 
records, at a minimum, over the past three years immediately prior 
to the receipt of the work assignment or similar tasking document. 
In the COI certification, the Contractor must certify to the best of 
the Contractor's knowledge and belief that all actual or potential 
organizational COIs have been reported to the Contracting Officer, 
or that to the best of the Contractor's knowledge and belief, no 
actual or potential organizational COIs exist. In addition, the 
Contractor must certify that its personnel who perform work under 
this work assignment or relating to this work assignment have been 
informed of their obligation to report personal and organizational 
COIs to the Contractor. The COI certification shall also include a 
statement that the Contractor recognizes its continuing obligation 
to identify and report any actual or potential COI arising during 
performance of this work assignment.

(End of clause)

[FR Doc. 2014-15824 Filed 7-17-14; 8:45 am]
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