80 FR 20167 - Environmental Protection Agency Acquisition Regulation (EPAAR); Source Selection and Payments

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 72 (April 15, 2015)

The Environmental Protection Agency (EPA) amends the EPA Acquisition Regulation (EPAAR) to remove source selection guidance and clauses that are not consistent with current EPA internal operating procedures for source selections. Additionally, EPA is deleting a clause for Payments--Fixed Rate Services Contracts because it is inconsistent with sections in the Federal Acquisition Regulation (FAR). EPA does not anticipate any adverse comments.

[Federal Register Volume 80, Number 72 (Wednesday, April 15, 2015)]
[Rules and Regulations]
[Pages 20167-20170]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-08665]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1515 and 1552

[EPA-HQ-OARM-2015-0182; FRL 9923-85-OARM]


Environmental Protection Agency Acquisition Regulation (EPAAR); 
Source Selection and Payments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to remove source selection guidance and 
clauses that are not consistent with current EPA internal operating 
procedures for source selections. Additionally, EPA is deleting a 
clause for Payments--Fixed Rate Services Contracts because it is 
inconsistent with sections in the Federal Acquisition Regulation (FAR). 
EPA does not anticipate any adverse comments.

DATES: This rule is effective on June 15, 2015 without further notice, 
unless adverse comment is received May 15, 2015. If adverse comment is 
received, the EPA will publish a timely withdrawal of the rule in the 
Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2015-0182 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Fax: (202) 566-1753
     Mail: EPA-HQ-OARM-2015-0182, OEI Docket, Environmental 
Protection Agency, 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

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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-
2015-0182. EPA's policy is that all 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 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 email. 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 email comment directly to EPA without 
going through http://www.regulations.gov your email 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. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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 Government 
Property--Contract Property Administration 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: Staci Ramrakha, Policy, Training, and 
Oversight Division, Acquisition Policy and Training Service Center 
(3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: 202-564-2017; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

General Information

    1. Do not submit Classified Business Information (CBI) to EPA Web 
site http://www.regulations.gov or email. 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.
    3. Make sure to submit your comments by the comment period deadline 
identified.

Background

    The EPA has recently issued new internal guidance for conducting 
source selections in accordance with Federal Acquisition Regulation 
(FAR) Part 15. As a result of the new guidance, existing EPAAR 
subsection 1515.3, Source Selection, is no longer pertinent. The new 
source selection guidance does not have a significant effect beyond the 
internal operating procedures of the agency or have a significant cost 
or administrative impact on contractors or offerors. Therefore, this 
subpart and its related clauses are being removed in their entirety. 
Additionally, the EPA is removing EPAAR 1552.232-73, Payments--Fixed 
Rate Services Contracts, because it is inconsistent with FAR 52.232-7.

Final Rule

    This final rule makes the following changes:
    1. Amend EPAAR 1515.209 to delete source selection clauses that are 
no longer applicable to EPA source selections.
    2. Remove EPAAR Subpart 15.3, Source Selection, in its entirety.
    3. Remove EPAAR 1552.215-70, EPA Source Evaluation and Selection 
Procedures--Negotiated Procurements, in its entirety.
    4. Remove EPAAR 1552.215-71, Evaluation Factors for Award, in its 
entirety.
    5. Remove EPAAR 1552.232-73, Payments--Fixed Rate Services 
Contracts, in its entirety.
    6. Amend EPAAR 1552.215-72(b)(1)(iii) to delete reference to EPAAR 
1552.232-73 which has been removed from the EPAAR.

Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory 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 12866 and 13563 (76 FR 
3821, January 21, 2011).

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. 
Burden is defined at 5 CFR 1320.3(b).

[[Page 20169]]

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 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 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; or (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. 
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. 503 
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 current EPAAR clauses and will not have a significant 
economic impact on substantial number of small entities. We continue to 
be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, and tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of Sections 202 or 205 of the UMRA. This 
action is also not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action 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, Executive Order 13132 does 
not apply to this action. 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 
action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive 
Order 13175 does not apply to this action.

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 EO 12886, and (2) concerns an 
environmental health or safety risk that may have a proportionate 
effect on children. This rule is not subject to EO 13045 because it is 
not an economically significant rule as defined by EO 12866, and 
because it does not have a proportionate effect on children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (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) 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. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
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 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 in the general public.

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, generally 
provides that before a rule may take effect, the Agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules

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of Agency organization, procedure, or practice that do not 
substantially affect the rights or obligations of non-agency parties. 5 
U.S.C. 804(3). EPA is not required to submit a rule report regarding 
today's action under section 801 because this is a rule of agency 
organization, procedure, or practice that does not substantially affect 
the rights or obligations of non-agency parties.

List of Subjects

48 CFR Part 1515

    Environmental protection, Government procurement.

48 CFR Part 1552

    Environmental protection, Government procurement, Reporting and 
recordkeeping requirements.

    Dated: April 2, 2015.
John R. Bashista,
Director, Office of Acquisition Management.
    For the reasons stated in the preamble, EPA amends 48 CFR Chapter 
15, parts 1515 and 1552 as set forth below:

PART 1515--CONTRACTING BY NEGOTATION

0
1. The authority citation for part 1515 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
2. Revise 1515.209 to read as follows:


1515.209  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 1552.215-75, 
Past Performance Information, or a clause substantially the same as 
1552.215-75, in all competitively negotiated acquisitions with an 
estimated value in excess of the simplified acquisition threshold.

Subpart 1515.3 [Removed]

0
3. Remove subpart 1515.3.

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. 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.


1552.215-70 and 1552.215-71  [Removed]

0
5. Remove 1552.215-70 and 1552.215-71.

0
6. Amend 1552.215-72 by revising paragraph (b)(1)(iii) to read as 
follows:


1552.215-72  Instructions for the Preparation of Proposals.

* * * * *
    (b) * * *
    (1) * * *
    (iii) If the contract includes the clause at FAR 52.232-7, 
``Payments Under Time and Materials and Labor-Hour Contracts,'' include 
in the cost proposal the estimated costs and burden rate to be applied 
to materials, other direct costs, or subcontracts. The Government will 
include these costs as part of its cost proposal evaluation.
* * * * *


1552.232-73  [Removed]

0
7. Remove 1552.232-73.
[FR Doc. 2015-08665 Filed 4-14-15; 8:45 am]
 BILLING CODE 6560-50-P