[Federal Register Volume 66, Number 41 (Thursday, March 1, 2001)]
[Rules and Regulations]
[Pages 12897-12902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4978]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Part 1516

[FRL-6932-7]


Acquisition Regulation: Type of Contracts

AGENCY: Environmental Protection Agency.

ACTION: Interim rule with request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the EPA 
Acquisition Regulation (EPAAR) to provide for the use, in certain 
circumstances and under certain conditions, of a letter contract known 
as a Notice to Proceed (NTP), to carry out emergency response actions 
as authorized under sections 104(a)(1) and (h) of the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980 
(CERCLA), as amended by the Superfund Amendments and Reauthorization 
Act of 1986; sections 311 (c)(2) and (e)(1)(B) of the Clean Water Act, 
as amended by the Oil Pollution Act of 1990; and the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP).

DATES: This interim rule is effective on March 1, 2001. Interested 
parties should submit comments on this interim rule not later than 
April 30, 2001 to be considered in the formulation of the final rule.

ADDRESSES: Please submit written comments to Larry Wyborski at the 
following address: U.S. Environmental Protection Agency, Office of 
Acquisition Management, Mail Code 3802R, 1200 Pennsylvania Ave, N.W., 
Ariel Rios Building, Washington, D.C. 20460. Commenters may submit 
comments and data electronically by sending electronic mail (e-mail) 
to: <a href="/cdn-cgi/l/email-protection#63341a010c1110080a4d2f0211111a230613020e020a0f4d0613024d040c15"><span class="__cf_email__" data-cfemail="1f48667d706d6c747631537e6d6d665f7a6f7e727e7673317a6f7e31787069">[email protected]</span></a>. You must submit electronic comments 
as an ASCII file avoiding the use of special characters and any form of 
encryption. You may also submit disks in Corel Word Perfect format or 
ASCII file format. Do not submit confidential business information 
through e-mail. You may also file electronic comments on line at 
Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT: Larry Wyborski, U.S. Environmental

[[Page 12898]]

Protection Agency, Office of Acquisition Management, Mail Code 3802R, 
1200 Pennsylvania Avenue, N.W., Ariel Rios Building, Washington, D.C. 
20460. Telephone: (202) 564-4369.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule amends EPAAR Subpart 1516.6 to provide for 
issuance, by an EPA Federal Classification Series (FCS) 1102 
contracting officer or duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, of a letter contract known as a 
Notice to Proceed to undertake certain emergency response actions as 
authorized under, and consistent with, CERCLA sections 104 (a)(1) and 
(h) (42 U.S.C. 9604(a)(1) and (h)), sections 311 (c)(2) and (e)(1)(B) 
of the Clean Water Act (33 U.S.C. 1321(c)(2) and (e)(1)(B)), and the 
National Oil and Hazardous Substances Pollution Contingency Plan (40 
CFR part 300)(1999). Under CERCLA section 104 (a)(1), the EPA (as 
delegated by the President under Executive Order 12580) is authorized 
to take certain response actions, consistent with the NCP, to protect 
the public health, welfare or the environment whenever any hazardous 
substance is released or there is a substantial threat of such a 
release into the environment, or there is a release or substantial 
threat of release into the environment of any pollutant or contaminant 
which may present an imminent and substantial danger to the public 
health or welfare. Similarly, pursuant to sections 311 (c)(2) and 
(e)(1)(B) of the Clean Water Act, the EPA (as delegated by the 
President under Executive Order 12777) is authorized to take certain 
actions if a discharge, or a substantial threat of a discharge (to or 
upon navigable waters, adjoining shorelines, the contiguous zone, or 
natural resources belonging to, appertaining to, or under the exclusive 
management of the United States) of oil or a hazardous substance from a 
vessel, offshore facility, or onshore facility is of such a nature as 
to be a substantial threat to the public health or welfare. In 
addition, CERCLA Section 104(h), 42 U.S.C. 9604(h), and Clean Water Act 
sections 311 (c)(2)(B) and (d), 33 U.S.C. 1321 (c)(2)(B) and (d), 
generally provide that procurement procedures may be developed to 
effectuate the purposes of these sections. Accordingly, this interim 
rule identifies the circumstances and conditions under which an EPA FCS 
1102 contracting officer or a duly authorized EPA on-scene coordinator 
with a delegation of procurement authority may award an NTP to carry 
out the EPA's obligations under CERCLA section 104(a)(1) and the Clean 
Water Act sections 311 (c)(2) and (e)(1)(B). In addition, the 
procedures provided for by this rule in EPAAR 1516.6 may also be used, 
as appropriate and authorized, for any actions that EPA may be directed 
to take by the Federal Emergency Management Agency under the authority 
of the Stafford Act, 42 U.S.C. 5121, et seq.

B. Executive Order 12866

    This interim rule is not a significant regulatory action for the 
purposes of Executive Order 12866; therefore, no review is required by 
the Office of Information and Regulatory Affairs within the Office of 
Management and Budget (OMB).

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this interim 
rule does not contain information collection requirements that require 
the approval of OMB under the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

D. 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 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 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 interim 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, since 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. Based 
on a review of EPA's historical experience, over the last three fiscal 
years EPA entered into only two letter contracts for the type of work 
contemplated by this interim rule, each of less than $10,000.00. 
Consequently, because of the emergency nature of an NTP, and the strict 
conditions on its use, and based on its limited historical utilization, 
it is believed that the authority provided by this interim rule will be 
used on a very limited basis so that it will have little, if any, 
impact on small businesses. This interim rule, therefore, will have no 
adverse and no significant impact on small entities.

E. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess 
their regulatory actions on State, local, and Tribal governments, and 
the private sector. This interim rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in one year. Any private sector costs for this action relate to 
paperwork requirements and associated expenditures that are far below 
the level established for UMRA applicability. Thus, the rule is not 
subject to the requirements of sections 202 and 205 of the UMRA.

F. Executive Order 13045

    Executive Order 13045, 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.

[[Page 12899]]

    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.

G. Executive Order 13132

    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.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This interim 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. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

H. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by Tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the OMB, in a separately identified section 
of the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected Tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian Tribal government ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian Tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act of 1995

    EPA will use voluntary consensus standards, as directed by section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), in its 
procurement activities. The NTTAA 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 interim rulemaking does not involve technical standards. 
Therefore, EPA is not considering use of any voluntary consensus 
standards. EPA welcomes comments on this aspect of the interim 
rulemaking, and, specifically, invites the public to identify 
potentially applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.

J. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rules report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

K. Determination To Issue an Interim Rule

    Under the Office of Federal Procurement Policy Act, 41 U.S.C. 418b, 
and Federal Acquisition Regulation (FAR) 1.501-3(b), a procurement 
regulation may take effect on a temporary basis prior to notice and 
comment when there are urgent and compelling circumstances that make 
compliance with prior notice and comment impracticable, the notice of 
the procurement regulation is published in the Federal Register and 
includes a statement that the procurement regulation is temporary 
pending completion of the public comment period, and provision is made 
for a public comment period of at least 30 days. For the reasons set 
forth below, a determination has been made by the authorized official 
that such conditions exist justifying the promulgation of this interim 
rule without prior opportunity for public comment. Pursuant to the 
Office of Federal Procurement Policy Act, 41 U.S.C. 418b(d), the EPA 
will consider public comments received in response to this interim rule 
in the formation of the final rule.
    Immediate effectiveness of this interim rule is essential to ensure 
that the EPA, if necessary, will be able to obtain the services 
required to respond to certain environmental emergency situations as 
authorized by and consistent with CERCLA sections 104(a)(1) and (h) (42 
U.S.C. 9604(a)(1) and (h)), the Clean Water Act sections 311(c)(2) and 
(e)(1)(B) (33 U.S.C. 1321(c)(2) and (e)(1)(B), and the National Oil and 
Hazardous Substances Pollution Contingency Plan (40 CFR part 300). 
Under these statutes and regulations, the EPA is authorized to take 
certain actions to protect the public health, welfare or the 
environment.
    Although EPA has contracted on a competitive basis with a number of 
firms to provide emergency response cleanup services, certain types of 
emergencies may be so acute, and the threat to human health or the 
environment so severe, that cleanup actions must be commenced prior to 
the required response times of these contracts. Some examples of these 
types

[[Page 12900]]

of emergencies include: a train derailment in a remote area with 
leakage of highly toxic chemicals into the ground or nearby water 
source; an oil or hazardous chemical spill into a river, lake, or 
stream that may affect wildlife or the public health or welfare; and a 
fire or explosion at a petrochemical facility or a chemical 
distributors warehouse that may release toxic chemicals into the air, 
water, or land endangering the public and the environment. Furthermore, 
emerging threats that the EPA may be tasked to address include releases 
caused by terrorists/weapons of mass destruction, which are events 
which could threaten first responders, the public and the environment.
    In such emergencies, the standard contract response time may be too 
long to wait to begin cleanup services or for some reason the 
contracted cleanup contractor may not be able to respond in time and no 
other alternate existing contractor is available. Consequently, the 
urgent and compelling circumstances attendant to this interim rule stem 
from the concern that unforeseen and unpredictable situations could 
materialize where existing contractual vehicles in place to deal with 
an emergency environmental problem are not capable, for any reason, to 
timely respond to the situation thereby exposing the public and the 
environment to the risk of harm or injury. Although the EPA does not 
anticipate many situations where the existing contractual coverage will 
be insufficient to timely and adequately respond to an environmental 
emergency demanding immediate attention, in order to fulfill its 
responsibilities to protect the public health, welfare and the 
environment, the Agency needs a contractual mechanism to obtain 
immediate services to respond to environmental releases, discharges or 
threats that cannot be adequately and timely addressed by existing 
contractual coverage.
    The Agency therefore intends to use a letter contract called an NTP 
in those limited situations where the existing contractual coverage is 
not available in a timely manner to respond to certain environmental 
discharges, releases or threats as described in CERCLA section 
104(a)(1) (42 U.S.C. 9604(a)(1)), Clean Water Act sections 311(c)(2) 
and (e)(1)(B) (33 U.S.C. 1321(c)(2) and (e)(1)(B)), and the National 
Oil and Hazardous Substances Pollution Contingency Plan (40 CFR part 
300). The use of the NTP letter contract will be governed by the 
applicable procedures mandated by the FAR and the additional 
requirements set forth in this rule.
    Accordingly, because of the urgent and compelling nature of this 
action, and the potential danger and damage that could materialize if 
there were no adequate contractual coverage available to timely respond 
to an environmental emergency, pursuant to 41 U.S.C. 418b(d) and FAR 
1.501-3(b), EPA is promulgating this interim rule on a temporary basis 
and providing for a public comment period of 60 days from the date of 
publication of this interim rule. After considering the comments 
received, EPA may issue a final rule. In accordance with 41 U.S.C. 
418b(d), this interim rule will be in effect on a temporary basis 
during the public comment period and while EPA considers any comments 
received.
    Further, consistent with the urgent and compelling nature of this 
action, the Agency will execute a class Justification For Other Than 
Full And Open Competition as required by FAR 6.302-2 and 6.303-1(c) to 
allow for the award, under the conditions consistent with this rule, of 
an NTP letter contract on a non-competitive basis, and the EPA will 
also prepare and execute any additional determinations and/or 
deviations necessary to effectuate the purposes of this rule.

List of Subjects in 48 CFR Part 1516

    Government procurement.

    Therefore, 48 CFR chapter 15 is amended as set forth below:
    1. The authority citation for part 1516 is to read as follows:

    Authority: The provisions of this regulation are issued under 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--[AMENDED]

    2. Sections 1516.603-1 and 1516.603-2 are added to read as follows:


1516.603-1:  What is a Notice to Proceed?

    (a) A Notice to Proceed (NTP) is a type of letter contract issued 
pursuant to FAR 16.603 under which an EPA Federal Classification Series 
1102 (FCS) contracting officer or a duly authorized EPA on-scene 
coordinator with delegated procurement authority may initiate, in 
certain defined situations and subject to certain limitations and 
conditions, contracting actions to respond to certain situations as 
described in CERCLA section 104(a)(1) (42 U.S.C. 9604(a)(1)) and the 
Clean Water Act sections 311(c)(2) and (e)(1)(B) (33 U.S.C. 1321(c)(2) 
and (e)(1)(B)). An NTP may be utilized as a contractual instrument for 
certain--
    (1) Actions that EPA is authorized to undertake under CERCLA 
section 104(a)(1), 42 U.S.C. 9604(a)(1), and the National Oil and 
Hazardous Substances Pollution Contingency Plan (40 CFR part 300), to 
respond to situations where any hazardous substance has been released 
or there is a substantial threat of such a release into the 
environment, or there is a release or substantial threat of release 
into the environment of any pollutant or contaminant which may present 
an imminent and substantial danger to the public health or welfare, and
    (2) Actions that EPA is authorized to undertake under sections 
311(c)(2) and (e)(1)(B) of the Clean Water Act, 33 U.S.C. 1321(c)(2) 
and (e)(1)(B), and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR part 300), to respond when there is a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, onshore 
facility, or offshore facility that is a substantial threat to the 
public health or welfare. Pursuant to a class Justification For Other 
Than Full and Open Competition executed under the authority of FAR 
6.302-2 and 6.303-1(c), an NTP may be issued on a non-competitive 
basis.
    (b) What do subsections 1516.603-1 and 1516.603-2 cover? EPAAR 
1516.603-1 and 1516.603-2 contain information and procedures relating 
to issuance and definitization of an NTP. An NTP is subject to, and 
must comply with, the applicable requirements for letter contracts in 
FAR 16.603 and the requirements in this section, and be definitized by 
an EPA FCS 1102 contracting officer.


1516.603-2  What are the requirements for use of an NTP?

    (a) An EPA FCS 1102 contracting officer or a duly authorized EPA 
on-scene coordinator with a delegation of procurement authority may 
issue an NTP so long as it does not exceed the limits of his or her 
procurement authority and only when all of the following conditions 
have been met:
    (1) A written determination has been made by the Federal on-scene 
coordinator that--
    (i) As authorized by and consistent with CERCLA section 104(a)(1), 
42 U.S.C. 9604(a)(1), and the National Oil and Hazardous Substances 
Pollution Contingency Plan (40 CFR part 300), the EPA must take action 
to respond to a hazardous substance release or

[[Page 12901]]

substantial threat of such a release into the environment, or a release 
or substantial threat of a release into the environment of any 
pollutant or contaminant which may present an imminent and substantial 
danger to the public health or welfare, or
    (ii) As authorized by and consistent with the Clean Water Act 
sections 311(c)(2) and (e)(1)(B), 33 U.S.C. 1321(c)(2) and (e)(1)(B), 
and the National Oil and Hazardous Substances Pollution Contingency 
Plan (40 CFR part 300), the EPA must take action to respond to a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, offshore 
facility, or onshore facility that is of such a size and character as 
to pose a substantial threat to the public health or welfare of the 
United States; and
    (2) Before a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority may issue an NTP, he or she must 
confirm that an EPA FCS 1102 contracting officer is not available to 
provide the required contracting support by the time the Federal on-
scene coordinator requires the response action to be undertaken; and
    (3) A written determination is made by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority that there is no other existing contracting 
mechanism available to provide the required contracting support by the 
time required, including the inability of an existing emergency 
response contractor or other existing contract vehicle to respond in 
the required time frame. These conditions, as well as any other 
requirements applicable to NTPs or letter contracts contained in the 
FAR or EPAAR , must be met before an NTP can be issued by an EPA FCS 
1102 contracting officer or a duly authorized EPA on-scene coordinator 
with a delegation of procurement authority.
    (b) What should be included in an NTP? (1) Since an NTP is a type 
of letter contract, it is subject to the requirements of FAR 16.603. 
All of the relevant requirements of FAR 16.603 apply to NTP's including 
FAR 16.603-2, 16.603-3, and 16.603-4, and an NTP will include all 
appropriate FAR and EPAAR contract clauses. An NTP should also include 
an overall price ceiling and be as complete and definite as possible 
under the circumstances. To the extent NTPs require modification of any 
FAR or EPAAR prescribed procedures or clauses, an appropriate FAR or 
EPAAR deviation will be prepared.
    (2) The EPA FCS 1102 contracting officer or duly authorized EPA on-
scene coordinator with a delegation of procurement authority shall 
include in each NTP the clauses required by the FAR or EPAAR for the 
type of definitive contract contemplated and any additional clauses 
known to be appropriate for it. In addition, the following clauses must 
be inserted in the solicitation (if one is issued) and the NTP when an 
NTP is used:
    (i) The clause at FAR 52.216-23, Execution and Commencement of 
Work, except that the term on-scene coordinator may be used in place of 
the term contracting officer;
    (ii) The clause at FAR 52.216-24, Limitation of Government 
Liability, with dollar amounts completed in a manner consistent with 
FAR 16.603-2(d); and
    (iii) The clause at FAR 52.216-25, Contract Definitization, with 
its paragraph (b) completed in a manner consistent with FAR 16.603-2(c) 
or any applicable FAR deviation. The clause at FAR 52.216-26, Payment 
of Allowable Costs Before Definitization, shall also be included in a 
solicitation (if one is issued) and NTPs if a cost-reimbursement 
definitive contract is contemplated.
    (3) Each NTP shall, as required by the clause at FAR 52.216-25, 
Contract Definitization, contain a negotiated definitization schedule 
that includes:
    (i) Dates for submission of the contractor's price proposal, 
required cost and pricing data, and if required, make-or-buy and 
subcontracting plans;
    (ii) The date for the start of negotiations; and
    (iii) A target date for definitization which shall be the earliest 
practicable date for definitization (an NTP must be definitized by an 
EPA FCS 1102 contracting officer). The schedule will provide for 
definitization of the NTP within 90 calendar days after the date of the 
NTP award. However, the EPA FCS 1102 contracting officer may, in 
extreme cases and according to agency procedures, authorize an 
additional period. If, after exhausting all reasonable efforts, the EPA 
FCS 1102 contracting officer and the contractor cannot negotiate a 
definitive contract because of failure to reach agreement as to price 
or fee, the clause at 52.216-25 requires the contractor to proceed with 
the work and provides that the contracting officer may, with the 
approval of the head of the contracting activity, determine a 
reasonable price or fee in accordance with subpart 15.4 and part 31 of 
the FAR, subject to appeal as provided in the Disputes clause.
    (4) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall, as approved by 
the official who authorized the NTP, be the estimated amount necessary 
to cover the contractor's requirements for funds to complete the work 
to be performed under the NTP. However, it shall not exceed the 
estimated cost of the definitive contract.
    (c) Are there any financial or monetary limitations on the use of 
an NTP? In addition to the requirements for issuance of an NTP set 
forth elsewhere in this subpart--
    (1) The total definitized dollar value of an individual NTP shall 
not exceed $200,000.00, and
    (2) The applicable Program Office must commit and make available 
appropriate funding for the emergency response action taken under the 
NTP prior to NTP issuance.
    (d) Are there any other procedural requirements for issuance of an 
NTP? An NTP must be issued in writing by the EPA FCS 1102 contracting 
officer or the duly authorized EPA on-scene coordinator with a 
delegation of procurement authority using a Standard Form 33. In 
addition, the EPA FCS 1102 contracting officer or the EPA on-scene 
coordinator awarding the NTP must ensure that the NTP complies with all 
applicable requirements for letter contracts set forth in the FAR and 
the requirements of this section, includes all relevant provisions and 
clauses, and that all actual or potential conflict of interest or other 
contracting issues are identified and resolved prior to NTP issuance. 
To assist the EPA on-scene coordinator and EPA FCS 1102 contracting 
officer in their responsibilities regarding NTP award, an NTP checklist 
will be completed by the EPA FCS 1102 contracting officer or EPA on-
scene coordinator prior to issuance of the NTP.
    (e) What happens after an NTP is awarded to a contractor? (1) If an 
NTP is issued by a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, he or she must notify the 
cognizant EPA FCS 1102 contracting officer of the NTP award, and 
provide the NTP checklist to the contracting officer, as soon as 
possible but in no event later than the next working day after NTP 
issuance.
    (2) Within 5 working days of the EPA on-scene coordinator's award 
of an NTP, the on-scene coordinator shall provide to the cognizant EPA 
FCS 1102 contracting officer all NTP documents,

[[Page 12902]]

materials, and information necessary for the contracting officer to 
definitize the contract, and should retain a copy for his/her records. 
An EPA FCS 1102 contracting officer will be responsible for 
definitization of the NTP consistent with the definitization procedures 
set forth in this subpart. During the process of definitizing the NTP, 
the EPA FCS 1102 contracting officer will send the contractor the 
``Representations, Certifications, and Other Statements of Offerors'' 
for completion. The contractor will complete this information, and any 
other required information, and submit it to the EPA FCS 1102 
contracting officer prior to definitization of the NTP.
    (f) The CCO, who is authorized by EPAAR 1516.603-3 to make the 
determination to use a letter contract, shall make a class 
determination and findings authorizing EPA FCS 1102 contracting 
officers and duly authorized EPA on-scene coordinators with delegations 
of procurement authority to award NTPs pursuant to the conditions set 
forth in this subpart.

    Dated: December 27, 2000.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 01-4978 Filed 2-28-01; 8:45 am]
BILLING CODE 6560-50-P


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