[Federal Register Volume 80, Number 69 (Friday, April 10, 2015)]
[Proposed Rules]
[Pages 19256-19258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08183]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1511 and 1552

[EPA-HQ-OARM-2012-0478; FRL-9925-99-OARM]


EPAAR Clause for Level of Effort--Cost-Reimbursement Contract

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 the EPAAR clause Level of 
Effort--Cost-Reimbursement Term Contract, modifies the clause title, 
and updates the corresponding EPAAR clause prescription.

DATES: Comments must be received on or before May 11, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2012-0478, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: valentino.thomas@ epa.gov
     Mail: EPA-HQ-OARM-2012-0478, 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-
2012-0478. 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 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: 
valentino.thomas@ epa.gov.

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

[[Page 19257]]

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

    The EPA reviewed EPAAR clause 1552.211-73, Level of Effort--Cost-
Reimbursement Term Contract, to make the clause more prescriptive in 
describing the EPA's responsibilities when the Agency orders less level 
of effort (LOE) than the maximum LOE specified in the subject clause; 
e.g., if the clause specifies 100,000 hours for a given period of 
performance but the contractor only provides 70,000 hours. The clause 
provides that a downward equitable adjustment will be made to reduce 
the fixed fee by the percentage by which the total expended LOE is less 
than 100% of that specified in the LOE clause; e.g., the fixed fee 
amount will be reduced by 30% using the same 100,000/ 70,000 hours 
example. The clause title is also modified so that the clause is now 
applicable to EPA LOE cost-reimbursement contracts. The EPAAR 1511.011-
73 clause prescription is also being updated accordingly.

III. Proposed Rule

    This proposed rule amends the EPAAR to revise the following:
    1. The EPAAR 1511.011-73 clause prescription is updated.
    2. The clause title is revised as follows: Level of Effort--Cost-
Reimbursement Contract.
    3. Paragraph (a) has been revised.
    4. An expositional statement has been added to paragraph (c).

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 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

[[Page 19258]]

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: April 3, 2015.
John R. Bashista,
Director, Office of Acquisition Management.

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

PART 1511--DESCRIBING AGENCY NEEDS

0
1. The authority citation for part 1511 continues to read as follows:

    Authority:  Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).
0
2. Revise 1511.011-73 to read as follows:


1511.011-73  Level of effort

    The Contracting Officer shall insert the clause at 1552.211-73, 
Level of Effort--Cost Reimbursement Contract, in cost-reimbursement 
contracts including cost contracts without fee, cost-sharing contracts, 
cost-plus-fixed-fee (CPFF) contracts, cost-plus-incentive-fee contracts 
(CPIF), and cost-plus-award-fee contracts (CPAF).

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
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.

0
4. Revise 1552.211-73 to read as follows:


1552.211-73  Level of effort--cost-reimbursement contract.

    As prescribed in 1511.011-73, the contracting officer shall insert 
the following contract clause in cost-reimbursement contracts including 
cost contracts without fee, cost-sharing contracts, cost-plus-fixed-fee 
(CPFF) contracts, cost-plus-incentive-fee contracts (CPIF), and cost-
plus-award-fee contracts (CPAF).

Level of Effort--Cost-Reimbursement Contract (__2015)
    (a) The Contractor shall perform all work and provide all 
required reports within the level of effort specified below. The 
Contractor shall provide __ direct labor hours for the base period, 
which represents the Government's best estimate of the level of 
effort to fulfill these requirements, and is provided for advisory 
and estimating purposes. The Government is only obligated to pay for 
direct labor hours used and corresponding fixed fee for labor hours 
completed.
    (b) Direct labor includes personnel such as engineers, 
scientists, draftsmen, technicians, statisticians, and programmers, 
and not support personnel such as company management or data entry/
word processing/ accounting personnel even though such support 
personnel are normally treated as direct labor by the Contractor. 
The level of effort specified in paragraph (a) includes Contractor, 
subcontractor, and consultant non-support labor hours.
    (c) If the Contractor provides less than 90 percent of the level 
of effort specified for the base period or any optional period 
exercised, an equitable downward adjustment of the fixed fee, if 
any, for that period will be made. The downward adjustment will 
reduce the fixed fee by the percentage by which the total expended 
level of effort is less than 100% of that specified in paragraph 
(a). (For instance, if a hypothetical base-period LOE of 100,000 
hours is being reduced to 70,000, the fixed fee shall also be 
reduced by the same 30%. Using a corresponding hypothetical base-
period fixed fee pool of $300,000, the reduced fixed-fee amount is 
calculated as: $300,000 x (70,000 hours/100,000 hours) = $210,000.)
    (d) The Government may require the Contractor to provide 
additional effort up to 110 percent of the level of effort for any 
period until the estimated cost for that period has been reached. 
However, this additional effort shall not result in any increase in 
the fixed fee, if any. If this is a cost-plus-incentive-fee (CPIF) 
contract, the term ``fee'' in this paragraph means ``base fee and 
incentive fee.'' If this is a cost-plus-award-fee (CPAF) contract, 
the term ``fee'' in this paragraph means ``base fee and award fee.''
    (e) If the level of effort specified to be ordered during a 
given base or option period is not ordered during that period, that 
level of effort may not be accumulated and ordered during a 
subsequent period.
    (f) These terms and conditions do not supersede the requirements 
of either the ``Limitation of Cost'' or ``Limitation of Funds'' 
clauses.

(End of clause)

[FR Doc. 2015-08183 Filed 4-9-15; 8:45 am]
 BILLING CODE 6560-50-P