[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: <a href="/cdn-cgi/l/email-protection#77151b1619131e19105913181919163712071659101801"><span class="__cf_email__" data-cfemail="bfddd3ded1dbd6d1d891dbd0d1d1deffdacfde91d8d0c9">[email protected]</span></a>.

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.

[[Page 37176]]

    (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]
BILLING CODE 6560-50-P


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