[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Rules and Regulations]
[Pages 37173-37176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17938]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1537 and 1552
[EPA-HQ-OARM-2007-1115; FRL-8935-6]
RIN 2030-AA96
Acquisition Regulation: Guidance on Technical Direction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is amending 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: This final rule is effective August 12, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OARM-2007-1115. 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 either electronically through
http://www.regulations.gov or in hard copy at the Office of
Environmental (OEI) Information 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: Donna S. Blanding, Policy, Training,
and Oversight Division, Office of Acquisition Management (3802R),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-564-1130; fax number: 202-
565-2475; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this action include firms that are
performing
[[Page 37174]]
or will perform under contract for the EPA. This includes firms in all
industry groups.
II. Background
Under certain contracts the Contracting Officer authorizes a
designated individual, e.g., the Contracting Officer Technical
Representative (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 revision incorporates and supersedes the class
deviations and makes additional revisions to the technical direction
guidance as specified below.
III. Final Rule
This rule amends 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 allows COs
to use the clause, or a clause substantially the same, in solicitations
and contracts where the CO will delegate authority to issue technical
direction to the COTR.
The EPAAR clause entitled ``Technical Direction'' adds and defines
these two new terms ``contracting officer technical representative''
and ``task order''. These two terms will standardize titles and
terminology used at EPA with terms used in the Federal Acquisition
Regulation (FAR) and other Federal procurement policy.
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 12866 (58 FR 51735, October 4, 1993);
therefore, no review is required by the Office of Information and
Regulatory Affairs within the Office of Management and Budget (OMB).
Order.
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 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.
This rule contains no Federal mandates (under the regulatory
provisions of 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. Today's 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 solicited comments from State and Local
officials on this rule and no comments were received.
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. This rule
on technical direction provides guidance on the interaction between
contracting officials and contractors only. This Executive Order 13175
does not apply to this rule. EPA specifically solicited additional
comments on this rule from tribal officials and no comments were
received.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children From
[[Page 37175]]
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 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.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 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 effects.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
List of Subjects in 48 CFR Parts 1537 and 1552
Environmental protection, Government procurement.
Dated: July 10, 2009.
John C. Gherardini III,
Acting Director, Office of Acquisition Management.
0
Therefore, 48 CFR Chapter 15 is amended as set forth below:
PART 1537--SERVICE CONTRACTING
0
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).
0
2. Amend 1537.110 by revising paragraph (b) to read as follows:
Sec. 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
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 1552.237-71 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 (AUG 2009)
(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 descriptions of 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 there under. 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 the
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.
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(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. E9-17938 Filed 7-27-09; 8:45 am]
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