[Federal Register Volume 73, Number 43 (Tuesday, March 4, 2008)]
[Proposed Rules]
[Pages 11602-11606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4153]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1537 and 1552
[Docket ID No. EPA-HQ-OARM-2007-1115; FRL-8536-8]
RIN 2030-AA96
Acquisition Regulation: Guidance on Technical Direction
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the EPA Acquisition Regulation (EPAAR) to revise the prescription
for and the content of a clause that addresses issuing technical
direction in contracts. This revision incorporates and supersedes
several class deviations to the EPAAR and updates terminology and
procedures related to issuing technical direction.
DATES: Comments must be received on or before April 3, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2007-1115, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (202) 566-0224.
Mail: OEI Docket, Environmental Protection Agency,
Mailcode: 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-
2007-1115. EPA's policy is that all timely comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other
[[Page 11603]]
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA
without going through http://www.regulations.gov your e-mail 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
Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the 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
OEI Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: Valen D. Wade, Policy, Training, and
Oversight Division, Office of Acquisition Management (3802R),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-564-2284; fax number: 202-
565-2474; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this proposed action include firms
that are performing or will perform under contract to the EPA. This
includes firms in all industry groups.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. 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
Under certain contracts the contracting officer authorizes a
designated individual, e.g., the contracting officer technical
representative or COTR, to issue technical direction to the contractor.
The technical direction clause in the contract defines what constitutes
technical direction, which officials are authorized to issue technical
direction, and procedures for issuing technical direction.
Since the EPAAR technical direction guidance was originally issued,
several class deviations to the clause have been approved. (A class
deviation is a change to the EPAAR necessary to meet specific contract
requirements.) This proposed revision would incorporate and supersede
the class deviations and make additional revisions to the technical
direction guidance as specified below.
III. Proposed Rule
This proposed rule would amend the EPAAR to revise the prescription
for using the Technical Direction clause and the wording of the clause
itself. The current prescription states the clause is used in cost
reimbursement type solicitations and contracts. The revised
prescription would allow contracting officers to use the clause, or a
clause substantially the same, in solicitations and contracts where the
contracting officer will delegate authority to issue technical
direction to the contracting officer technical representative.
The EPAAR clause entitled ``Technical Direction'' is revised in
several ways. First, two new terms are added and defined: ``contracting
officer technical representative'' and ``task order.'' The reason for
adding these terms is to standardize titles and terminology used at EPA
with terms used in the Federal Acquisition Regulation (FAR) and other
Federal procurement policy. For example, the current clause refers to
the ``project officer'' as the individual who may be authorized to
issue technical direction. Other terms, such as task order project
officer, work assignment manger, and delivery order project officer are
also used at EPA. The revised clause will standardize these terms under
the title ``contracting officer technical representative.''
Instead of merely stating technical direction is direction which
assists the contractor in accomplishing the statement of work, the
revised clause provides more detail in describing technical direction
as authorized instruction to the contractor which approves approaches,
solutions, designs, or refinements; fills in details; completes the
general description of work; or shifts emphasis among work areas or
tasks.
The technical direction clause specifically states the contracting
officer technical representative cannot request a change outside the
scope of the contract, i.e., a cardinal change. The clause also
protects against constructive changes by requiring the contractor to
contact the contracting officer if
[[Page 11604]]
direction given by the contracting officer technical representative:
(1) Institutes additional work outside the scope of the contract or
work request; (2) Constitutes a change as defined in the ``Changes''
clause; (3) Causes an increase or decrease in the estimated cost of the
contract or task order; (4) Alters the period of performance of the
contract or task order; or (5) Changes any of the other terms or
conditions of the contract or task order. The contractor is reminded
that following any direction given by any person other than the
contracting officer or the contracting officer technical representative
shall be at the contractor's risk.
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
is 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.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes: the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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 proposed 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 today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, because the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. This
action revises a current EPAAR clause 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. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for: notifying potentially affected small governments; enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates; and, informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. The rule imposes no
enforceable duty on any State, local or tribal governments or the
private sector. Thus, today's 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 proposed 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
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distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Today's proposed
rule on technical direction provides guidance on the interaction
between contracting officials and contractors only. Thus, Executive
Order 13132 does not apply to this rule. In the spirit of Executive
Order 13132, and consistent with EPA policy to promote communications
between EPA and State and local governments, EPA specifically solicits
comment on this proposed rule from State and local officials.
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 proposed rule does not
have tribal implications, as specified in Executive Order 13175.
Today's proposed rule on technical direction provides guidance on the
interaction between contracting officials and contractors only. Thus,
Executive Order 13175 does not apply to this rule. EPA specifically
solicits additional comment on this proposed rule from tribal
officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks 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 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed 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 (Energy Effects)
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272
note), 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 NTTAA 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 1537 and 1552
Government procurement.
Dated: February 21, 2008.
Denise Benjamin Sirmons,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth
below:
PART 1537--SERVICE CONTRACTING
1. The authority citation for part 1537 continues to read as
follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(c).
2. Amend Sec. 1537.110 by revising paragraph (b) to read as
follows:
1537.110 Solicitation provisions and contract clauses.
* * * * *
(b) The contracting officer shall insert a clause substantially the
same as the clause in 1552.237-71, Technical Direction, in
solicitations and contracts where the contracting officer intends to
delegate authority to issue technical direction to the contracting
officer technical representative(s).
* * * * *
PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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.
4. Revise Sec. 1552.237-71 to read as follows:
1552.237-71 Technical Direction.
As prescribed in 1537.110, insert a clause substantially the same
as the following:
Technical Direction (XXX 2008)
(a) Definitions.
Contracting officer technical representative (COTR), means an
individual appointed by the contracting officer in accordance with
Agency procedures to perform specific technical and administrative
functions.
Task order, as used in this clause, means work assignment, delivery
order, or any other document issued by the contracting officer to order
work under a service contract.
(b) The contracting officer technical representative(s) may provide
technical direction on contract or work request performance. Technical
direction includes:
(1) Instruction to the contractor that approves approaches,
solutions, designs, or refinements; fills in details; completes the
general description of
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work; shifts emphasis among work areas or tasks; and
(2) Evaluation and acceptance of reports or other deliverables.
(c) Technical direction must be within the scope of work of the
contract and any task order thereunder. The contracting officer
technical representative(s) does not have the authority to issue
technical direction which:
(1) Requires additional work outside the scope of the contract or
task order;
(2) Constitutes a change as defined in the ``Changes'' clause;
(3) Causes an increase or decrease in the estimated cost of the
contract or task order;
(4) Alters the period of performance of the contract or task order;
or
(5) Changes any of the other terms or conditions of the contract or
task order.
(d) Technical direction will be issued in writing or confirmed in
writing within five (5) days after oral issuance. The contracting
officer will be copied on any technical direction issued by the
contracting officer technical representative.
(e) If, in the contractor's opinion, any instruction or direction
by the contracting officer technical representative(s) falls within any
of the categories defined in paragraph (c) of this clause, the
contractor shall not proceed but shall notify the contracting officer
in writing within 3 days after receiving it and shall request that the
contracting officer take appropriate action as described in this
paragraph. Upon receiving this notification, the contracting officer
shall:
(1) Advise the contractor in writing as soon as practicable, but no
later than 30 days after receipt of the contractor's notification, that
the technical direction is within the scope of the contract effort and
does not constitute a change under the ``Changes'' clause of the
contract;
(2) Advise the contractor within a reasonable time that the
government will issue a written modification to the contract; or
(3) Advise the contractor that the technical direction is outside
the scope of the contract and is thereby rescinded.
(f) A failure of the contractor and contracting officer to agree as
to whether the technical direction is within the scope of the contract,
or a failure to agree upon the contract action to be taken with respect
thereto, shall be subject to the provisions of the clause entitled
``Disputes'' in this contract.
(g) Any action(s) taken by the contractor, in response to any
direction given by any person acting on behalf of the government or any
government official other than the contracting officer or the
contracting officer technical representative, shall be at the
contractor's risk.(End of clause)
[FR Doc. E8-4153 Filed 3-3-08; 8:45 am]
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