[Federal Register Volume 80, Number 99 (Friday, May 22, 2015)]
[Notices]
[Pages 29708-29709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12408]


=======================================================================
-----------------------------------------------------------------------

GULF COAST ECOSYSTEM RESTORATION COUNCIL

[Docket Number: 105002015- 1111-04]


Notice and Request for Comment on Local Contracting Preference 
Interpretation

AGENCY: Gulf Coast Ecosystem Restoration Council.

ACTION: Notice of interpretation and implementation with request for 
comment.

-----------------------------------------------------------------------

SUMMARY: The Gulf Coast Ecosystem Restoration Council (Council) is 
seeking comment on its planned implementation of the local contracting 
preference requirement of the Resources and Ecosystem Sustainability, 
Tourist Opportunities, and Revived Economies of the Gulf Coast States 
Act of 2012 (RESTORE Act).

DATES: Comments on this notice of interpretation and implementation are 
due June 22, 2015.

ADDRESSES: The Council invites comments on its planned implementation 
of the local contracting preference requirement. Comments may be 
submitted through one of these methods:
    Electronic Submission of Comments: Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. Electronic submission of comments allows 
the commenter maximum time to prepare and submit a comment, ensures 
timely receipt, and enables the Council to make them available to the 
public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public.
    Mail: Send to Gulf Coast Ecosystem Restoration Council, 500 Poydras 
Street, Suite 1117, New Orleans, LA 70130.
    Email: Send to [email protected].
    In general, the Council will make such comments available for 
public inspection and copying on its Web site, http://www.restorethegulf.gov/ without change, including any business or 
personal information provided, such as names, addresses, email 
addresses, or telephone numbers. All comments received, including 
attachments and other supporting materials, will be part of the public 
record and subject to public disclosure. You should only submit 
information that you wish to make publicly available.

FOR FURTHER INFORMATION CONTACT: Jeffrey Roberson at 202-482-1315.

SUPPLEMENTARY INFORMATION: 

I. Background

    The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33 
U.S.C. 1321(t) and note, makes funds available for the restoration and 
protection of the Gulf Coast Region through a new trust fund in the 
Treasury of the United States, known as the Gulf Coast Restoration 
Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the 
administrative and civil penalties paid by the responsible parties 
after July 6, 2012, under the Federal Water Pollution Control Act in 
connection with the DEEPWATER HORIZON oil spill. These funds will be 
invested and made available through five components of the RESTORE Act. 
On August 15, 2014, the Department of Treasury (Treasury) issued 
regulations (79 FR 48039) applicable to all five components, and which 
generally describe the responsibilities of the Federal and State 
entities that administer RESTORE Act programs and carry out restoration 
activities in the Gulf Coast Region.
    Two of the five components, the Comprehensive Plan and Spill Impact 
Components, are administered by the Council, an independent federal 
entity created by the RESTORE Act. Under the Comprehensive Plan 
component (33 U.S.C. 1321(t)(2)), the subject of this notice, 30 
percent of funds in the Trust Fund will be used to fund the operations 
of the Council and to carry out projects and programs adopted in the 
Council's Comprehensive Plan. An Initial Comprehensive Plan was adopted 
by the Council in August 2013 and is available at http://www.restorethegulf.gov/sites/default/files/Initial%20Comprehensive%20Plan%20Aug%202013.pdf. In the coming months, 
the Council will create a Funded Priorities List (FPL) to fund and/or 
prioritize for further review programs and projects that restore and 
protect the natural resources, ecosystems, fisheries, marine and 
wildlife habitats, beaches, and coastal wetlands of the Gulf Coast 
region.
    Programs and projects selected for funding in the FPL will be 
funded either through grants to the State members of the Council 
(Alabama, Florida, Louisiana, Mississippi, and Texas) or interagency 
agreements to the Federal members of the Council (the Departments of 
Agriculture, Army, Commerce, and the Interior, the Department in which 
the Coast Guard is operating, and the Environmental Protection Agency). 
Those State and Federal members of the Council may in turn award grants 
or contracts to carry out the funded programs and projects.

II. Discussion of This Interpretation and Implementation

    The RESTORE Act requires the Council to ``develop standard terms to 
include in contracts for projects and programs awarded pursuant to the 
Comprehensive Plan that provide a preference to individuals and 
companies that reside in, are headquartered in, or are principally 
engaged in business in a Gulf Coast State''. 33 U.S.C. 
1321(t)(2)(C)(vii)(V). Application of a local contracting preference at 
the State and Federal level require separate analysis.
    At the State level, the Council will not impose any special grant 
award

[[Page 29709]]

condition requiring a local contracting preference. Each of the five 
Gulf Coast States already has a state law or laws pertaining to local 
contracting preferences. Most of these laws do not provide for any sort 
of preference for firms local to any other State or, in some cases, 
prohibit preferences for firms local to other States. Were the Council 
to require the States to provide a preference for firms local to the 
other States, those States with prohibitions against such preferences 
would be unable to participate in the grant program. Having one or more 
of the Gulf Coast States ineligible to receive grants under the 
Comprehensive Plan component would be antithetical to the purpose of 
the RESTORE Act. As such, the Council policy for State contracting 
action using RESTORE Act funds is to have each State act in conformance 
with its State law on contracting preferences with no further 
requirements. This practice is consistent with 2 CFR part 200.319(b) 
which permits grant recipients to apply state or local geographic 
preferences in the evaluation of bids or proposals in cases only where 
a Federal statute, such as the RESTORE Act, expressly mandates or 
encourages geographical preference.
    At the Federal level a local contracting preference is permitted 
only when a statute expressly authorizes or requires it. See 41 U.S.C. 
3304(a)(5). It is the position of the Council that 33 U.S.C. 
1321(t)(2)(C)(vii)(V) provides such an express authorization. However, 
given that the Council intends that Federal agencies contracting to 
implement a program or project under the FPL have discretion to make an 
award to the offeror whose proposal provides the best value to the 
Government, the Council has decided that a minimally restrictive form 
of a local contracting preference is appropriate. Accordingly, 
contracting Federal agencies may provide a preference to Gulf Coast 
firms if proposals are determined equivalent under all other evaluation 
factors or, alternatively, may include a weighted evaluation factor 
providing a preference to Gulf Coast firm offers.
    In order to prevent a Gulf Coast firm from serving as merely a 
pass-through for a firm outside the Gulf Coast region, to be considered 
a ``local firm'' an offeror must certify that it resides, is 
headquartered or is principally engaged in business in a Gulf Coast 
State. Further, the offeror must certify that it will perform at least 
a minimum percentage of the work under the contract. The methodology 
for determining whether an offeror meets this test is based on the 
Small Business Administration's regulation found at 13 CFR 125.6.
    The text below would be included in solicitations for Comprehensive 
Plan contracts that apply a local preference, and would be incorporated 
into the award. This term requires an offeror to disclose its status as 
a Gulf Coast firm and represent that it will perform a minimum 
percentage of the cost of the contract.

    (a) The offeror represents as part of its offer that it ( ) is, 
( ) is not a firm residing, headquartered or principally engaged in 
business in a Gulf Coast state.
    (b) If the offeror represents that it is a firm residing, 
headquartered or principally engaged in business in a Gulf Coast 
state, the offeror shall furnish documentation to support the 
representation if requested by the Contracting Officer. The 
solicitation may require the offeror to submit with its offer 
documentation to support the representation.
    (c) The offeror represents that in the case of a contract for 
services (except construction), the firm will perform services 
representing at least 50 percent of the total labor costs under the 
contract with its own employees.
    (d) The offeror represents that in the case of a contract for 
supplies or products (other than procurement from a non-manufacturer 
of such supplies or products), the firm will itself manufacture such 
supplies or products representing at least 50 percent of the total 
manufacturing costs under the contract (excluding costs of 
materials).
    (e) The offeror represents that in the case of a contract for 
general construction services, the firm will perform services 
representing at least 15 percent of the total labor costs under the 
contract with its own employees.

    The text below would be included in solicitations for Comprehensive 
Plan contracts. This term notifies prospective vendors that the 
contracting agency will prefer Gulf Coast firms in making the award.

    Proposal Preparation Instructions--Each offeror shall identify 
whether it is a firm residing, headquartered or principally engaged 
in business in a Gulf Coast state.
    Evaluation Factor 1--It is the policy of [Contracting Agency] to 
encourage the participation of Gulf Coast firms in the procurement 
process. As a result, this solicitation includes a preference for 
Gulf Coast firms. If [Contracting Agency] determines all other 
factors to be equivalent, [Contracting Agency] will give preference 
to a Gulf Coast firm. [Contracting Agency] will review your Gulf 
Coast firm status at the time the solicitation closes.
    Evaluation Factor 2 [to be assigned relative weight by the 
Contracting Agency]--It is the policy of [Contracting Agency] to 
encourage the participation of Gulf Coast firms in the procurement 
process. As a result, this solicitation includes a preference for 
Gulf Coast firms. The Government will evaluate your proposal to 
determine if you are a Gulf Coast firm.

    The Council invites comments on the proposed evaluation factors.

Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem Restoration Council.
[FR Doc. 2015-12408 Filed 5-21-15; 8:45 am]
BILLING CODE 3510-EA-P