[Federal Register: July 29, 2005 (Volume 70, Number 145)]
[Proposed Rules]
[Page 43832-43836]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy05-39]
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DEPARTMENT OF ENERGY
48 CFR Parts 909, 913, and 970
RIN 1991-AB62
Acquisition Regulation: Technical Revisions or Amendments To
Update Clauses
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) is proposing to amend its
acquisition regulation to remove and add specified clauses, and revise
certain
[[Page 43833]]
other clauses, currently contained in the Department of Energy
Acquisition Regulation (DEAR). This rule also proposes to revise
associated regulatory coverage, as necessary.
DATES: Written comments (three copies) on the proposed rulemaking must
be received on or before August 29, 2005.
ADDRESSES: This notice of proposed rulemaking is available and comments
may be submitted online at http://www.Regulations.gov. Comments may be submitted by e-mail to Michael.fischetti@hq.doe.gov. Comments may be
mailed to: Michael P. Fischetti, ME-61, U.S. Department of Energy,
Office of Procurement and Assistance Management, 1000 Independence
Avenue, SW., Washington, DC 20585.
Comments by e-mail are encouraged.
FOR FURTHER INFORMATION CONTACT: Michael Fischetti at (202) 287-1304 or
Michael.fischetti@hq.doe.gov.
SUPPLEMENTARY INFORMATION
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Approval by the Office of the Secretary of Energy
I. Background
The purpose of this rulemaking is to update various clauses within
48 CFR chapter 9 to specify contractor responsibility in the areas of
performance, work authorization, and subcontract flow down provisions.
This rulemaking would modify current guidance contained in DEAR
clauses concerning Debarment; Fast Payment Procedures; Laws,
Regulations, and Directives; Work Authorization; Integration of
Environment, Safety, and Health into Work Planning and Execution; and
Facilities Management.
II. Section-by-Section Analysis
The Department of Energy proposes to amend the regulation as
follows:
1. DEAR 909.406, Debarment, is proposed to be revised to permit a
debarring official to debar a contractor, based upon a preponderance of
the evidence, for falsely certifying or otherwise representing itself
as a small, small disadvantaged, women- or veteran-owned, or similar
concern.
2. DEAR subpart 913.4 Fast Payment Procedure is proposed to be
deleted in its entirety. DEAR 913.402 currently prohibits the use of
fast payment procedures. Upon review of the Department's policy and the
Federal Acquisition Regulation (FAR), DOE has determined that fast
payment procedures could be used by DOE and that FAR coverage in
subpart 13.4, Fast Payment Procedure, is adequate to protect the
Department's interests. Removal of this section would permit DOE to use
fast payment procedures under FAR 13.4.
3. DEAR 970.5204-2, Laws, Regulations, and DOE Directives, is
proposed to be revised by adding the following three sentences to the
end of paragraph (e): ``Unless the contract specifically instructs the
contractor regarding subcontract flow-down, the contractor shall be
responsible for determining the appropriate implementation of the
requirements, including the extent to, and manner in which,
requirements should be reflected in subcontracts. In doing so, the
contractor retains the same responsibility for performance and cost
management that it has for all contract efforts. Specifically, the
contractor shall not unnecessarily or imprudently flow down
requirements to subcontracts and shall only incur costs that would be
incurred by a prudent person in the conduct of a competitive
business.'' This language is intended to emphasize the contractor's
responsibility in effective cost management in flowing down prime
contract requirements to its subcontractors.
4. DEAR 970.5211-1, Work Authorization, is proposed to be added,
with prescriptive language in DEAR 970.1170-1 and a contract clause
instruction in DEAR 970.1170-2. This clause incorporates requirements
that are presently located in the contractor's requirements document
attached to DOE Directive DOE O 412.1, Work Authorization System. The
DOE O 412.1 currently establishes an assignment and control process for
budget of estimated costs, description of work, and schedule of
performance for individual work activities performed by designated
contractors within the contract scope of work. The proposed clause
would eliminate the need for a contractor requirements document by
establishing the requirements as a DEAR clause.
5. DEAR 970.5223-1, Integration of Environment, Safety, and Health
(ES&H) specifies contractor requirements pertaining to ES&H. It is
proposed to be modified by making some editorial changes to paragraphs
(d) and (e) and adding the following three sentences to paragraph (h):
``Unless the contract specifically instructs the contractor regarding
subcontract flow-down, the contractor shall be responsible for
determining the appropriate implementation of the requirements,
including the extent to which, and manner in which, requirements should
be reflected in subcontracts. In doing so, the contractor retains the
same responsibility for performance and cost management that it has for
all contract efforts. Specifically, the contractor shall not
unnecessarily or imprudently flow down requirements to subcontracts and
shall only incur costs that would be incurred by a prudent person in
the conduct of a competitive business.'' This language is intended to
emphasize the contractor's responsibility in effective cost management
in flowing down prime contract requirements to its subcontractors.
6. DEAR 970.5237-2, Facilities Management, and the corresponding
instruction at DEAR 970.37, Facilities Management Contracting, are
proposed to be deleted. They currently provide guidance concerning site
development planning, design criteria, energy management, and
subcontract requirements. DOE directives, such as DOE O 430.1A, Life
Cycle Asset Management, already provide sufficient guidance.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this rulemaking is not subject to review under that
Executive Order by the Office of Information and Regulatory Affairs
(OIRA) of the Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification
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and burden reduction. With regard to the review required by section
3(a), section 3(b) of Executive Order 12988 specifically requires that
Executive agencies make every reasonable effort to ensure that the
regulation: (1) Clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the required review and determined
that, to the extent permitted by law, these proposed regulations meet
the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This rulemaking has been reviewed under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., which requires preparation of an initial
regulatory flexibility analysis for any rule that must be proposed for
public comment and that is likely to have significant economic impact
on a substantial number of small entities. The rulemaking would not
have a significant economic impact on small entities. While rule
requirements may flow down to subcontractors in certain circumstances,
the costs of compliance are not estimated to be large and, in any
event, would be reimbursable expenses under the contract or
subcontract.
Accordingly, DOE certifies that this rulemaking would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
Information collection or record keeping requirements contained in
this rulemaking have been previously cleared under Office of Management
and Budget paperwork clearance package Number 1910-0300. There are no
new burdens imposed by this rulemaking.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the amendments to the DEAR would be strictly
procedural (categorical exclusion A6). Therefore, this proposed rule
does not require an environmental impact statement or environmental
assessment pursuant to NEPA.
F. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. The Executive Order does require agencies
to have an accountability process to ensure meaningful and timely input
by state and local officials in the development of regulatory policies
that have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined today's proposed rule and has determined that
it does not preempt State law and does not have a substantial direct
effect 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. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a written assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This proposed rulemaking would only affect private sector
entities, and the impact is less than $100 million.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rulemaking or policy that may
affect family well-being. This rulemaking will have no impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 13211
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's rule is not a significant energy action. Accordingly, DOE has
not prepared a Statement of Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
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K. Approval by the Office of the Secretary of Energy
Issuance of this proposed rule has been approved by the Office of
the Secretary of Energy.
List of Subjects in 48 CFR Parts 909, 913, and 970
Government procurement.
Issued in Washington, DC on July 20, 2005.
Richard H. Hopf,
Director, Office of Procurement and Assistance Management, Office of
Management Budget and Evaluation/Chief Financial Officer.
Robert C. Braden,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
PART 909--CONTRACTOR QUALIFICATIONS
1. The authority citation for part 909 is revised to read as
follows:
Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c, 7101 et seq.; 41
U.S.C. 418(b); 50 U.S.C. 2401 et seq.
909.406 Debarment.
2. In section 909.406-2, the section heading is revised and
paragraph (e) is added to read as follows:
909.406-2 Causes for debarment. (DOE coverage--paragraphs (c) through
(e)).
* * * * *
(e) The debarring official may debar a contractor, established by a
preponderance of the evidence, such as an SBA determination, for
falsely certifying itself as a:
(1) Small Business Concern;
(2) Small Disadvantaged Business Concern;
(3) Women-Owned Small Business Concern;
(4) Veteran-Owned Small Business Concern;
(5) Service-Disabled Veteran-Owned Small Business Concern;
(6) Historically Underutilized Business Zone Concern.
PART 913--SIMPLIFIED ACQUISITION PROCEDURES
3. The authority citation for part 913 continues to read as
follows:
Authority: 42 U.S.C. 7101 et seq; 41 U.S.C. 418(b); 50 U.S.C.
2401 et seq.
Subpart 913.4--[Removed]
4. Subpart 913.4 is removed.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
5. The authority citation for part 970 continue to read as follows:
Authority: 42 U.S.C. 2201, 2282b, 2282c, 7101 et seq.; 41 U.S.C.
418b; 50 U.S.C. 2401 et seq.
Subpart 970.11--Describing Agency Needs
6. Sections 970.1170, 970.1170-1, and 970.1170-2 are added to read
as follows:
970.1170 Work authorization.
970.1170-1 Policy.
Each contract for the management and operation of a DOE site or
facility, and other contracts designated by the DOE or NNSA Procurement
Executive, must contain a scope of work section that describes, in
general terms, work planned and/or required to be performed. Work to be
performed under the contract shall be assigned through the use of a
work authorization to control individual work activities performed
within the scope of work. Work authorizations must be issued prior to
the commencement of the work and incurrence of any costs.
970.1170-2 Contract provision.
The Contracting Officer shall insert the clause at 48 CFR 970.5211-
1, Work Authorization, in each solicitation and contract for the
management and operation of a DOE site or facility and in other
contracts designated by the DOE or NNSA Procurement Executive.
Subpart 970.37--Facilities Management Contracting
970.3770-2 [Removed and Reserved]
7. Section 970.3770-2 is removed and reserved.
Subpart 970.52--Solicitation Provisions and Contract Clauses for
Management and Operating Contracts
8. Section 970.5204-2 is amended by revising the clause date and
paragraph (e) to read as follows:
970.5204-2 Laws, regulations, and DOE directives.
* * * * *
Laws, Regulations, and DOE Directives (XXX-XXXX)
* * * * *
(e) Regardless of the performer of the work, the contractor is
responsible for compliance with the requirements of this clause. The
contractor is responsible for flowing down the requirements of this
clause to subcontracts at any tier to the extent necessary to ensure
the contractor's compliance with the requirements. Unless the
contract specifically instructs the contractor regarding subcontract
flow-down, the contractor shall be responsible for determining the
appropriate implementation of the requirements, including the extent
to, and manner in which, requirements should be reflected in
subcontracts. In doing so, the contractor retains the same
responsibility for performance and cost management that it has for
all contract efforts. Specifically, the contractor shall not
unnecessarily or imprudently flow down requirements to subcontracts
and shall only incur costs that would be incurred by a prudent
person in the conduct of a competitive business.
(End of clause)
9. Section 970.5211 is added to read as follows:
970.5211-1 Work authorization.
As prescribed in 970.1170-2, insert the following clause.
WORK AUTHORIZATION (XXX-XXXX)
(a) Work Authorization Proposal. Prior to the start of each
fiscal year, the Contracting Officer (CO) or designee shall provide
the contractor with program execution guidance in sufficient detail
to enable the contractor to develop an estimated cost, scope, and
schedule. In addition, the Contracting Officer may unilaterally
assign work. The contractor shall submit to the Contracting Officer
or other designated official, a detailed description of work, a
budget of estimated costs, and a schedule of performance for the
work it recommends be undertaken during that upcoming fiscal year.
(b) Cost Estimates. The contractor and the Contracting Officer
shall establish a budget of estimated costs, description of work,
and schedule of performance for each work assignment. If agreement
cannot be reached as to scope, schedule, and estimated cost, the
Contracting Officer may issue a unilateral work authorization,
pursuant to this clause. The work authorization, whether issued
bilaterally or unilaterally shall become part of the contract. No
activities shall be authorized or costs incurred prior to
Contracting Officer issuance of a work authorization or direction
concerning continuation of activities of the contract.
(c) Performance. The contractor will perform work as specified
in the work authorization, consistent with the terms and conditions
of this contract.
(d) Modification. The Contracting Officer may at any time,
without notice, issue changes to work authorizations within the
overall scope of the contract. A proposal for adjustment in
estimated costs and schedule for performance of work, recognizing
work made unnecessary as a result, along with new work, shall be
submitted by the contractor in accordance with paragraph (a) of this
clause. Resolution shall be in accordance with paragraph (b) of this
clause.
(e) Increase in Estimated Cost. The contractor shall notify the
Contracting Officer immediately whenever the cost incurred, plus the
projected cost to complete work is projected to differ (plus or
minus) from the estimate by 10 percent. The contractor shall submit
a proposal for modification in
[[Page 43836]]
accordance with paragraph (a) of this clause. Resolution shall be in
accordance with paragraph (b) of this clause.
(f) Expenditure of Funds and Incurrence of Costs. The
expenditure of monies by the contractor in the performance of all
authorized work shall be governed by the ``Obligation of Funds'' or
equivalent clause of the contract.
(g) Responsibility to achieve Environment, Safety, Health, and
Security Compliance. Notwithstanding other provisions of the
contract, the contractor may, in the event of an emergency, take
that corrective action necessary to sustain operations consistent
with applicable environmental, safety, health, and security
statutes, regulations, and procedures. If such action is taken, the
contractor shall notify the Contracting Officer within 24 hours of
initiation and, within 30 days, submit a proposal for adjustment in
estimated costs and schedule established in accordance with
paragraphs (a) and (b) of this clause.
(End of clause)
10. The clause at section 970.5223-1 is amended by revising the
clause date, paragraphs (d), (e), and (h) to read as follows:
970.5223-1 Integration of environment, safety, and health into work
planning and execution.
* * * * *
Integration of Environment, Safety, and Health into Work Planning and
Execution (XXX-XXXX)
* * * * *
(d) The System shall describe how the contractor will establish,
document, and implement safety performance objectives, performance
measures, and commitments consistent with DOE program guidance while
maintaining the integrity of the System. The System shall also
describe how the contractor will evaluate its effectiveness as well
as maintenance and improvement processes.
(e) The contractor shall submit to the Contracting Officer
documentation of its System for review and approval. Dates for
submittal, discussions, and revisions to the System will be
established by the Contracting Officer. Guidance on the preparation,
content, review, and approval of the System will be provided by the
Contracting Officer. The contractor will evaluate System
implementation and effectiveness annually. Formal change control and
maintenance of the System is required. On an annual basis, the
contractor shall review and update, for DOE approval, its safety
performance objectives, performance measures, and commitments
consistent with DOE's program guidance and direction. Resources
shall be identified and allocated to meet the safety objectives and
performance commitments as well as maintain the integrity of the
entire System. Accordingly, the System shall be integrated with the
contractor's business processes for work planning, budgeting,
authorization, execution, and change control.
* * * * *
(h) Regardless of the performer of the work, the contractor is
responsible for compliance with the ES&H requirements applicable to
this contract. Unless the contract specifically instructs the
contractor regarding subcontract flow-down, the contractor shall be
responsible for determining the appropriate implementation of the
requirements, including the extent to which, and manner in which,
requirements should be reflected in subcontracts. In doing so, the
contractor retains the same responsibility for performance and cost
management that it has for all contract efforts. Specifically, the
contractor shall not unnecessarily or imprudently flow down
requirements to subcontracts and shall only incur costs that would
be incurred by a prudent person in the conduct of a competitive
business.
* * * * *
970.5237-2 [Removed and reserved]
11. Section 970.5237-2 is removed and reserved.
[FR Doc. 05-14810 Filed 7-28-05; 8:45 am]
BILLING CODE 6450-01-P