81 FR 31865 - Environmental Protection Agency Acquisition Regulation; Clause for Level of Effort-Cost-Reimbursement Contract
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 98 (May 20, 2016)
Federal Register Volume 81, Issue 98 (May 20, 2016)
| Page Range | 31865-31867 | |
| FR Document | 2016-11970 |
[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)] [Rules and Regulations] [Pages 31865-31867] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-11970] [[Page 31865]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1511 and 1552 [EPA-HQ-OARM-2012-0478; FRL 9946-47-OARM] Environmental Protection Agency Acquisition Regulation; Clause for Level of Effort--Cost-Reimbursement Contract AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) amends the EPA Acquisition Regulation (EPAAR) to update policy, procedures, and contract clauses. This final rule updates the EPAAR clause Level of Effort--Cost-Reimbursement Contract. DATES: This final rule is effective on June 20, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OARM-2012-0478. 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 electronically through http://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: [email protected]. SUPPLEMENTARY INFORMATION: I. Background The EPA reviewed EPAAR clause 1552.211-73, Level of Effort--Cost- Reimbursement Term Contract, to make the clause more prescriptive in describing the EPA's responsibilities when the Agency orders less level of effort (LOE) than the maximum LOE specified in the subject clause; e.g., if the clause specifies 100,000 hours for a given period of performance but the contractor only provides 70,000 hours. The clause provides that a downward equitable adjustment will be made to reduce the fixed fee by the percentage by which the total expended LOE is less than 100% of that specified in the LOE clause; e.g., the fixed fee amount will be reduced by 30% using the same 100,000/70,000 hours example. The clause title is also modified so that the clause is now applicable to EPA LOE cost-reimbursement contracts, and paragraph (a) has been revised. The EPAAR 1511.011-73 clause prescription is also being updated accordingly. On April 10, 2015 (80 FR 19257) EPA sought comments on the proposed rule and received no comments. II. Final Rule This final rule amends the EPAAR to revise the following: 1. The EPAAR 1511.011-73 clause prescription is updated. 2. The clause title is revised as follows: Level of Effort--Cost- Reimbursement Contract. 3. Paragraph (a) has been revised. 4. An expositional statement has been added to paragraph (c). 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 this 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 provision 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 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 [[Page 31866]] 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 not to use available and applicable voluntary consensus standards. This 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 (E.O.) 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 rulemaking does not involve human health or environmental effects. List of Subjects 48 CFR Part 1511 Government procurement. 48 CFR Part 1552 Government procurement, Reporting and recordkeeping requirements. Dated: May 5, 2016. John R. Bashista, Director, Office of Acquisition Management. Therefore, 48 CFR Chapter 15 is amended as set forth below: PART 1511--DESCRIBING AGENCY NEEDS 0 1. The authority citation for part 1511 continues to read as follows: Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c) 0 2. Revise section 1511.011-73 to read as follows: 1511.011-73 Level of effort. The Contracting Officer shall insert the clause at 1552.211-73, Level of Effort--Cost Reimbursement Contract, in cost-reimbursement contracts including cost contracts without fee, cost-sharing contracts, cost-plus-fixed-fee (CPFF) contracts, cost-plus-incentive-fee contracts (CPIF), and cost-plus-award-fee contracts (CPAF). 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 and 41 U.S.C. 418b. 0 4. Revise section 1552.211-73 to read as follows: 1552.211-73 Level of effort--cost-reimbursement contract. As prescribed in 1511.011-73, the contracting officer shall insert the following contract clause in cost-reimbursement contracts including cost contracts without fee, cost-sharing contracts, cost-plus-fixed-fee (CPFF) contracts, cost-plus-incentive-fee contracts (CPIF), and cost- plus-award-fee contracts (CPAF). Level of Effort--Cost-Reimbursement Contract (May 2016) (a) The Contractor shall perform all work and provide all required reports within the level of effort specified below. The Contractor shall provide up to ____ direct labor hours for the base period. The Government's best estimate of the level of effort to fulfill these requirements is provided for advisory and estimating purposes. The Government is only obligated to pay for direct labor hours ordered and corresponding fixed fee for labor hours completed. (b) Direct labor includes personnel such as engineers, scientists, draftsmen, technicians, statisticians, and programmers, and not support personnel such as company management or data entry/ word processing/accounting personnel even though such support personnel are normally treated as direct labor by the Contractor. The level of effort specified in paragraph (a) of this section includes Contractor, subcontractor, and consultant non-support labor hours. (c) If the Contractor provides less than 90 percent of the level of effort specified for the base period or any optional period exercised, an equitable downward adjustment of the fixed fee, if any, for that period will be made. The downward adjustment will reduce the fixed fee by the percentage by which the total expended level of effort is less than 100% of that specified in paragraph (a). (For instance, if a hypothetical base-period LOE of 100,000 hours is being reduced to 70,000, the fixed fee shall also be reduced by the same 30%. Using a corresponding hypothetical base- period fixed fee pool of $300,000, the reduced fixed-fee amount is calculated as: [[Page 31867]] $300,000 x (70,000 hours/100,000 hours) = $210,000.) (d) The Government may require the Contractor to provide additional effort up to 110 percent of the level of effort for any period until the estimated cost for that period has been reached. However, this additional effort shall not result in any increase in the fixed fee, if any. (e) If this is a cost-plus-incentive-fee (CPIF) contract, the term ``fee'' in paragraphs (c) and (d) of this section means ``base fee and incentive fee.'' If this is a cost-plus-award-fee (CPAF) contract, the term ``fee'' in paragraphs (c) and (d) means ``base fee and award fee.'' (f) If the level of effort specified to be ordered during a given base or option period is not ordered during that period, that level of effort may not be accumulated and ordered during a subsequent period. (g) These terms and conditions do not supersede the requirements of either the ``Limitation of Cost'' or ``Limitation of Funds'' clauses. (End of clause) [FR Doc. 2016-11970 Filed 5-19-16; 8:45 am] BILLING CODE 6560-50-P
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ENVIRONMENTAL PROTECTION Reimbursement Term Contract, to make economic impact on a substantial
AGENCY the clause more prescriptive in number of small entities. Small entities
describing the EPA’s responsibilities include small businesses, small
48 CFR Parts 1511 and 1552 when the Agency orders less level of organizations, and small governmental
[EPA–HQ–OARM–2012–0478; FRL 9946–47– effort (LOE) than the maximum LOE jurisdictions.
OARM] specified in the subject clause; e.g., if For purposes of assessing the impact
the clause specifies 100,000 hours for a of this final rule on small entities,
Environmental Protection Agency given period of performance but the ‘‘small entity’’ is defined as: (1) A small
Acquisition Regulation; Clause for contractor only provides 70,000 hours. business that meets the definition of a
Level of Effort—Cost-Reimbursement The clause provides that a downward small business found in the Small
Contract equitable adjustment will be made to Business Act and codified at 13 CFR
reduce the fixed fee by the percentage 121.201; (2) a small governmental
AGENCY: Environmental Protection by which the total expended LOE is less jurisdiction that is a government of a
Agency (EPA). than 100% of that specified in the LOE city, county, town, school district or
ACTION: Final rule. clause; e.g., the fixed fee amount will be special district with a population of less
reduced by 30% using the same than 50,000; and (3) a small
SUMMARY: The Environmental Protection 100,000/70,000 hours example. The organization that is any not-for-profit
Agency (EPA) amends the EPA clause title is also modified so that the enterprise which is independently
Acquisition Regulation (EPAAR) to clause is now applicable to EPA LOE owned and operated and is not
update policy, procedures, and contract cost-reimbursement contracts, and dominant in its field.
clauses. This final rule updates the paragraph (a) has been revised. The
EPAAR clause Level of Effort—Cost- After considering the economic
EPAAR 1511.011–73 clause prescription impacts of this rule on small entities, I
Reimbursement Contract. is also being updated accordingly. On certify that this action will not have a
DATES: This final rule is effective on April 10, 2015 (80 FR 19257) EPA significant economic impact on a
June 20, 2016. sought comments on the proposed rule substantial number of small entities.
ADDRESSES: The EPA has established a and received no comments. This action revises a current EPAAR
docket for this action under Docket ID II. Final Rule provision and does not impose
No. EPA–HQ–OARM–2012–0478. All requirements involving capital
documents in the docket are listed on This final rule amends the EPAAR to
investment, implementing procedures,
the http://www.regulations.gov Web revise the following:
1. The EPAAR 1511.011–73 clause or record keeping. This rule will not
site. Although listed in the index, some have a significant economic impact on
information is not publicly available, prescription is updated.
2. The clause title is revised as small entities.
e.g., CBI or other information whose
disclosure is restricted by statute. follows: Level of Effort—Cost- D. Unfunded Mandates Reform Act
Certain other material, such as Reimbursement Contract.
3. Paragraph (a) has been revised. Title II of the Unfunded Mandates
copyrighted material, is not placed on 4. An expositional statement has been Reform Act of 1995 (UMRA), Public
the Internet and will be publicly added to paragraph (c). Law 104–4, establishes requirements for
available only in hard copy form. Federal agencies to assess the effects of
Publicly available docket materials are III. Statutory and Executive Order their regulatory actions on State, Local,
available electronically through http:// Reviews and Tribal governments and the private
www.regulations.gov, or in hard copy at A. Executive Order 12866: Regulatory sector.
the Office of Environmental Information Planning and Review This rule contains no Federal
(OEI) Docket, EPA/DC, EPA West, Room mandates (under the regulatory
3334, 1301 Constitution Ave. NW., This action is not a ‘‘significant
regulatory action’’ under the terms of provisions of the Title II of the UMRA)
Washington, DC. The Public Reading for State, Local, and Tribal governments
Room is open from 8:30 a.m. to 4:30 Executive Order (EO)12866 (58 FR
51735, October 4, 1993) and therefore, or the private sector. The rule imposes
p.m., Monday through Friday, excluding no enforceable duty on any State, Local
legal holidays. The telephone number not subject to review under the EO.
or Tribal governments or the private
for the Public Reading Room is (202) B. Paperwork Reduction Act sector. Thus, the rule is not subject to
566–1744, and the telephone number for the requirements of Sections 202 and
This action does not impose an
the EPA Docket Center is (202) 566– 205 of the UMRA.
information collection burden under the
1752. This Docket Facility is open from
provisions of the Paperwork Reduction E. Executive Order 13132: Federalism
8:30 a.m. to 4:30 p.m. Monday through
Act, 44 U.S.C. 3501 et seq. No
Friday, excluding legal holidays. Executive Order 13132, entitled
information is collected under this
FOR FURTHER INFORMATION CONTACT: action. ‘‘Federalism’’ (64 FR 43255, August 10,
Thomas Valentino, Policy, Training, and 1999), requires EPA to develop an
Oversight Division, Office of C. Regulatory Flexibility Act (RFA), as accountable process to ensure
Acquisition Management (3802R), Amended by the Small Business ‘‘meaningful and timely input by State
Environmental Protection Agency, 1200 Regulatory Enforcement Fairness Act of and Local officials in the development
Pennsylvania Ave. NW., Washington, 1996 (SBREFA), 5 U.S.C. 601 et seq. of regulatory policies that have
DC 20460; telephone number: 202–564– The Regulatory Flexibility Act federalism implications.’’ ‘‘Policies that
mstockstill on DSK5VPTVN1PROD with RULES
4522; email address: valentino.thomas@ generally requires an agency to prepare have federalism implications’’ is
epa.gov. a regulatory flexibility analysis of any defined in the Executive Order to
SUPPLEMENTARY INFORMATION: rule subject to notice and comment include regulations that have
rulemaking requirements under the ‘‘substantial direct effects on the States,
I. Background Administrative Procedure Act or any on the relationship between the national
The EPA reviewed EPAAR clause other statute; unless the agency certifies government and the States, or on the
1552.211–73, Level of Effort—Cost- that the rule will not have a significant distribution of power and
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$300,000 × (70,000 hours/100,000 hours) = (e) If this is a cost-plus-incentive-fee (CPIF) of effort may not be accumulated and ordered
$210,000.) contract, the term ‘‘fee’’ in paragraphs (c) and during a subsequent period.
(d) The Government may require the (d) of this section means ‘‘base fee and (g) These terms and conditions do not
Contractor to provide additional effort up to incentive fee.’’ If this is a cost-plus-award-fee supersede the requirements of either the
110 percent of the level of effort for any (CPAF) contract, the term ‘‘fee’’ in paragraphs ‘‘Limitation of Cost’’ or ‘‘Limitation of
Funds’’ clauses.
period until the estimated cost for that period (c) and (d) means ‘‘base fee and award fee.’’
has been reached. However, this additional (f) If the level of effort specified to be (End of clause)
effort shall not result in any increase in the ordered during a given base or option period
[FR Doc. 2016–11970 Filed 5–19–16; 8:45 am]
fixed fee, if any. is not ordered during that period, that level
BILLING CODE 6560–50–P
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Document Created: 2016-05-20 01:59:52
Document Modified: 2016-05-20 01:59:52
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on June 20, 2016. | |
| Contact | Thomas Valentino, Policy, Training, and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., | |
| FR Citation | 81 FR 31865 | |
| CFR Citation | 48
CFR
1511 48 CFR 1552 | |
| CFR Associated | Government Procurement and Reporting and Recordkeeping Requirements |
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