[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Rules and Regulations]
[Pages 31865-31867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11970]



[[Page 31865]]

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

ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1511 and 1552

[EPA-HQ-OARM-2012-0478; FRL 9946-47-OARM]


Environmental Protection Agency Acquisition Regulation; Clause 
for Level of Effort--Cost-Reimbursement Contract

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to update policy, procedures, and 
contract clauses. This final rule updates the EPAAR clause Level of 
Effort--Cost-Reimbursement Contract.

DATES: This final rule is effective on June 20, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OARM-2012-0478. All documents in the docket are 
listed on the http://www.regulations.gov Web site. 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, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://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. 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, and paragraph (a) 
has been revised. The EPAAR 1511.011-73 clause prescription is also 
being updated accordingly. On April 10, 2015 (80 FR 19257) EPA sought 
comments on the proposed rule and received no comments.

II. Final Rule

    This final 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).

III. 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 this 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

[[Page 31866]]

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 final 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 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 NTTA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This 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 (E.O.) 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 final 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 rulemaking does not involve human health or 
environmental effects.

List of Subjects

48 CFR Part 1511

    Government procurement.

48 CFR Part 1552

    Government procurement, Reporting and recordkeeping requirements.

    Dated: May 5, 2016.
John R. Bashista,
Director, Office of Acquisition Management.

    Therefore, 48 CFR Chapter 15 is 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 section 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 and 41 U.S.C. 418b.


0
4. Revise section 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 (May 2016)

    (a) The Contractor shall perform all work and provide all 
required reports within the level of effort specified below. The 
Contractor shall provide up to ____ direct labor hours for the base 
period. The Government's best estimate of the level of effort to 
fulfill these requirements is provided for advisory and estimating 
purposes. The Government is only obligated to pay for direct labor 
hours ordered 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) of this section 
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:

[[Page 31867]]

$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.
    (e) If this is a cost-plus-incentive-fee (CPIF) contract, the 
term ``fee'' in paragraphs (c) and (d) of this section means ``base 
fee and incentive fee.'' If this is a cost-plus-award-fee (CPAF) 
contract, the term ``fee'' in paragraphs (c) and (d) means ``base 
fee and award fee.''
    (f) 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.
    (g) 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. 2016-11970 Filed 5-19-16; 8:45 am]
BILLING CODE 6560-50-P