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[Federal Register Volume 79, Number 128 (Thursday, July 3, 2014)]
[Rules and Regulations]
[Pages 37958-37960]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15688]

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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1516 and 1552

[EPA-HQ-OARM-2013-0149; FRL-9913-36-OARM]

EPAAR Clause for Ordering by Designated Ordering Officers

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to update policy, procedures, and 
contract clauses. The final rule updates the Ordering--By Designated 
Ordering Officers clause and a corresponding prescription.

DATES: This final rule is effective on July 3, 2014.

ADDRESSES: Docket: All documents in the docket are listed in the 
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 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: 
valentino.thomas@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The subject clause is currently codified in the EPAAR as the April 
1984 basic clause without any alternates. The basic clause only 
contemplates order issuance prior to receiving formal input from the 
contractor. On December 21, 1989, a class deviation was issued to 
prescribe an alternate to the clause that provides for negotiating the 
terms and conditions of a task/delivery order prior to order issuance. 
There are several benefits to negotiation prior to order issuance: The 
Government is not charged directly for the time involved in 
negotiations and the associated costs are part of bid and proposal 
costs which are indirect charges spread across all Government 
contracts; it allows for more accurate pricing for the order, and it 
enables the Government to hold the Contractor to negotiated 
requirements as soon as the order is issued. As a result, the subject 
clause and corresponding prescription are being updated to add the 1989 
class deviation. Because the class deviation provides several benefits 
that the basic clause does not, it will be designated as the basic form 
of the Ordering clause, and the previous basic form is being re-
designated as Alternate

[[Page 37959]]

I. In addition, the EPAAR 1516.505(a) subject clause prescription is 
being updated accordingly. On April 7, 2014 (79 FR 19039) EPA sought 
comments on the proposed rule and received no comments.

II. Final Rule

    This final rule updates the EPAAR 1516.505(a) clause prescription, 
and amends EPAAR 1552.216-72 to add an alternate version to the 
Ordering--By Designated Ordering Officers clause. It also provides 
additional information in Section (III)(C) below relating to the 
Regulatory Flexibility Act as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996.

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 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. The previous basic form of the clause (which is now Alternate 
I) is already codified in the EPAAR, and the form that is being re-
designated as the basic form has already been in wide use as an EPA 
clause deviation since 1989. Depending on procurement specifics, EPA 
uses the basic form of the clause about twice as often as the alternate 
form, because the basic form provides several benefits to negotiation 
prior to order issuance, as discussed in the Background section above. 
Therefore 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 
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

[[Page 37960]]

not to use available and applicable voluntary consensus standards.
    This final 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 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 final rulemaking does not involve human health or 
environmental effects.

List of Subjects

48 CFR Part 1516

    Government procurement.

48 CFR Part 1522

    Equal employment opportunity, Government procurement, Individuals 
with disabilities, Labor, Veterans.

    Dated: June 11, 2014.
John R. Bashista,
Director, Office of Acquisition Management.

    Therefore, 48 CFR Chapter 15 is amended as set forth below:

0
1. The authority citation for 48 CFR parts 1516 and 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.

PART 1516--TYPES OF CONTRACTS

0
2. Revise 1516.505(a) as follows:

1516.505  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-72, 
Ordering--By Designated Ordering Officers, or a clause substantially 
similar to the subject clause, in indefinite delivery/indefinite 
quantity type solicitations and contracts. The Contracting Officer 
shall insert Alternate I when formal input from the Contractor will not 
be obtained prior to order issuance.
* * * * *

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Revise 1552.216-72 to read as follows:

1552.216-72  Ordering--by designated ordering officers.

    As prescribed in 1516.505(a), insert the subject clause, or a 
clause substantially similar to the subject clause, in indefinite 
delivery/indefinite quantity type solicitations and contracts.

ORDERING--BY DESIGNATED ORDERING OFFICERS (----2014)

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing task/delivery orders on 
Optional Form 347, or an agency prescribed form, from ------ through 
------. In addition to the Contracting Officer, the following 
individuals are authorized ordering officers.
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    (b) A Standard Form 30 will be the method of amending task/
delivery orders.
    (c) The Contractor shall acknowledge receipt of each order by 
having an authorized company officer sign either a copy of a 
transmittal letter or signature block on page 3 of the task/delivery 
order, depending upon which is provided, within ---- calendar days 
of receipt.
    (d) Prior to the placement of any task/delivery order, the 
Contractor will be provided with a proposed Performance Work 
Statement/Statement of Work and will be asked to respond with 
detailed technical and cost proposals within ---- calendar days or 
less. The technical proposal will delineate the Contractor's 
interpretation for the execution of the PWS/SOW, and the pricing 
proposal will be the Contractor's best estimate for the hours, labor 
categories and all costs associated with the execution. The 
proposals are subject to negotiation. The Ordering Officer and the 
Contractor shall reach agreement on all the material terms of each 
order prior to the order being issued.
    (e) Each task/delivery order issued will incorporate the 
Contractor's technical and cost proposals as negotiated with the 
Government, and will have a ceiling price which the contractor shall 
not exceed. When the Contractor has reason to believe that the labor 
payment and support costs for the order which will accrue in the 
next thirty (30) days will bring total cost to over 85 percent of 
the ceiling price specified in the order, the Contractor shall 
notify the Ordering Officer.
    (f) Under no circumstances will the Contractor start work prior 
to the issue date of the task/delivery order unless specifically 
authorized to do so by the Ordering Officer. Any verbal 
authorization will be confirmed in writing by the Ordering Officer 
or Contracting Officer within ---- calendar days.

(End of clause)

    Alternate I. As prescribed in 1516.505(a), insert the subject 
clause, or a clause substantially similar to the subject clause, in 
indefinite delivery/indefinite quantity contracts when formal input 
from the Contractor will not be obtained prior to order issuance.
    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing task/delivery orders on 
Optional Form 347, or any agency prescribed form, from ---- through 
----. In addition to the Contracting Officer, the following 
individuals are authorized ordering officers:
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    (b) A Standard Form 30 will be the method of amending task/
delivery orders.
    (c) The Contractor shall acknowledge receipt of each order and 
shall prepare and forward to the Ordering Officer within ---- 
calendar days the proposed staffing plan for accomplishing the 
assigned task within the period specified.
    (d) If the Contractor considers the estimated labor hours or 
specified work completion date to be unreasonable, the Contractor 
shall promptly notify the Ordering Officer and Contracting Officer 
in writing within ---- calendar days, stating why the estimated 
labor hours or specified completion date is considered unreasonable.
    (e) Each task/delivery order will have a ceiling price, which 
the Contractor may not exceed. When the Contractor has reason to 
believe that the labor payment and support costs for the order, 
which will accrue in the next thirty (30) days, will bring total 
cost to over 85 percent of the ceiling price specified in the order, 
the Contractor shall notify the Ordering Officer.
    (f) Paragraphs (c), (d), and (e) of this clause apply only when 
services are being ordered.

(End of clause)

[FR Doc. 2014-15688 Filed 7-2-14; 8:45 am]
BILLING CODE 6560-50-P
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