83 FR 46418 - Acquisition Regulation: Update to Clauses Pertaining to Release of Contractor Confidential Business Information, Submission of Invoices, and the “Authorized or Required by Statute” Exception for Other Than Full and Open Competition

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 178 (September 13, 2018)

The Environmental Protection Agency (EPA) is taking direct final action to amend the EPA Acquisition Regulation (EPAAR). The clause pertaining to ``Release of Contractor Confidential Business'' is updated to incorporate the existing class deviation and make a minor addition. The ``Submission of Invoices'' clause is revised to incorporate the existing class deviation and updated with minor administrative edits. The clause ``Authorized or Required by Statute'' is clarified regarding the applicability of written justification requirements for the exception for other than full and open competition.

[Federal Register Volume 83, Number 178 (Thursday, September 13, 2018)]
[Rules and Regulations]
[Pages 46418-46423]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-19769]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1506 and 1552

[EPA-HQ-OARM-2017-0281; FRL-9974-44-OARM]


Acquisition Regulation: Update to Clauses Pertaining to Release 
of Contractor Confidential Business Information, Submission of 
Invoices, and the ``Authorized or Required by Statute'' Exception for 
Other Than Full and Open Competition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to amend the EPA Acquisition Regulation (EPAAR). The 
clause pertaining to ``Release of Contractor Confidential Business'' is 
updated to incorporate the existing class deviation and make a minor 
addition. The ``Submission of Invoices'' clause is revised to 
incorporate the existing class deviation and updated with minor 
administrative edits. The clause ``Authorized or Required by Statute'' 
is clarified regarding the applicability of written justification 
requirements for the exception for other than full and open 
competition.

DATES: This final rule is effective on December 12, 2018 without 
further notice, unless EPA receives adverse comment by October 15, 
2018. If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2017-0281, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Holly Hubbell, Policy, Training, and 
Oversight Division, Acquisition Policy and Training Service Center 
(3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460; telephone number: 202-564-1091; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This direct final rule makes changes to the EPAAR, Federal 
Acquisition Regulation (FAR), 48 CFR parts 1506 and 1552. This rule 
includes the following content changes: (1) Under EPAAR Sec.  1506.302-
5(b)(1), adds clarifying language that the Contracting Officer need not 
provide any written justification under FAR 8.405-6 or 13.501 for use 
of other than full and open competition when acquiring expert services 
under the authority of section 109(e) of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA); (2) revises EPAAR Sec.  1552.232-70 
to add information on circumstances that may require obtaining 
subcontractor costs, makes minor administrative changes, and 
incorporates invoice preparation instructions; and (3) revises EPAAR 
Sec.  1552.235-79 to expand the possible circumstances where the EPA 
may release the Contractor's CBI.

II. General Information

A. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. Any parties interested in commenting must do so 
at this time.

B. Does this action apply to me?

    EPAAR Sec. Sec.  1552.232-70 and 1552.235-79 apply to contractors 
who hold a cost-reimbursable contract with EPA. EPAAR Sec.  1506.302-5 
applies to

[[Page 46419]]

EPA contracting personnel providing for and imposing responsibilities 
when contracting under other than full and open competition.

C. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
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.
     Make sure to submit your comments by the comment period 
deadline identified.

III. Background

    EPAAR Sec.  1552.235-79--Release of Contractor Confidential 
Business Information, was promulgated in the Federal Register (61 FR 
14267, April 1, 1996). A Determination and Findings (D&F) found that 
changes were required to this EPAAR section because complete cost 
information was vital to the Government's ability to recover federal 
funds expended for oil spill responses from the parties responsible for 
these spills. Consequently, a Class Deviation, signed on March 22, 2001 
by Judy S. Davis, Acting Director, Office of Acquisition Management to 
this EPAAR section, was developed to allow EPA to release cost 
information from the Emergency and Rapid Response Services (ERRS) and 
Superfund Technical Assessment and Response Team (START) contracts to 
federal agencies and other parties involved in oil spill cost recovery 
efforts. The rule incorporates the Class Deviation for EPAAR Sec.  
1552.235-79 into the EPAAR and makes other minor administrative 
updates.
    EPAAR Sec.  1552.232-70, Submission of Invoices, was promulgated in 
the Federal Register (61 FR 29317, June 10, 1996). The Class Deviation 
is also dated June 1996 and adds in Invoice Preparation Instructions 
for SF-1034. The rule incorporates the Class Deviation for EPAAR Sec.  
1552.232-70 into the EPAAR and makes other minor administrative 
updates.
    EPAAR Sec.  1506.302-5, Authorized or Required by Statute, was 
promulgated in the Federal Register (53 FR 31872, Aug. 22, 1988). This 
current action clarifies the applicability of the requirement for 
written justification for the use of other than full and open 
competitive procedures when acquiring expert services under the 
authority of section 109(e) of Superfund Amendments and Reauthorization 
Act of 1986 (SARA). The FAR was amended on January 2, 1997, to include 
FAR 13.501 sole source justification requirements for simplified 
acquisitions under part 13, and again on June 18, 2004, to include FAR 
8.405-6 limited source justification (LSJ) requirements for Federal 
Supply Service acquisitions under part 8. EPA never amended EPAAR Sec.  
1506.302-5 to account for the LSJ and sole source requirements of those 
FAR sections.

IV. Statutory and Executive Orders 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 
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 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. 
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

[[Page 46420]]

accountable process to ensure ``meaningful and timely input by State 
and Local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' This rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government as 
specified in Executive Order 13132.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications as specified in Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997), 
applies to any rule that: (1) Is determined to be economically 
significant as defined under Executive Order 12886, and (2) concerns an 
environmental health or safety risk that may have a proportionate 
effect on children. This rule is not subject to Executive Order 13045 
because it is not an economically significant rule as defined by 
Executive Order 12866, and because it does not involve decisions on 
environmental health or safety risks.

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

    This final rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution or 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 NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This final 
rulemaking does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 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 
rulemaking 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.

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 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 this 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 in 48 CFR Parts 1506 and 1552

    Environmental protection, Government procurement, Reporting and 
recordkeeping requirements.

    Dated: August 21, 2018.
Kimberly Patrick,
Director, Office of Acquisition Management.

    For the reasons stated in the preamble, 48 CFR parts 1506 and 1552 
are amended as set forth below:

PART 1506--COMPETITION REQUIREMENTS

0
1. The authority citation for part 1506 continues to read as follows:

    Authority:  Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).


0
2. Amend section 1506.302-5 by revising paragraph (b)(1) to read as 
follows:


1506.302-5   Authorized or required by statute.

* * * * *
    (b) Application. (1) The contracting officer may use other than 
full and open competition to acquire the services of experts for use in 
preparing or prosecuting a civil or criminal action under SARA whether 
or not the expert is expected to testify at trial. The contracting 
officer need not provide any written justification (e.g., under FAR 
6.303, 8.405-6, or 13.501) for the use of other than full and open 
competitive procedures when acquiring expert services under the 
authority of section 109(e) of SARA. The contracting officer shall 
document the official contract file when using this authority.
* * * * *

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 1552.232-70 to read as follows:


1552.232-70  Submission of invoices.

    As prescribed in 1532.908, insert the following clause:

[[Page 46421]]

Submission of Invoices (DEC 2018)

    In order to be considered properly submitted, an invoice or 
request for contract financing payment must meet the following 
contract requirements in addition to the requirements of FAR 32.905:
    (a) Unless otherwise specified in the contract, an invoice or 
request for contract financing payment shall be submitted to the 
following offices/individuals designated in the contract: one copy 
to the RTP Finance Center shown in Block 12 on the cover of the 
contract; one copy to the Contracting Officer's Representative (the 
Contracting Officer's Representative may direct a copy to a separate 
address); and one copy to the Contracting Officer.
    (b) The Contractor shall prepare its invoice or request for 
contract financing payment on the prescribed Government forms. 
Standard Form 1034, Public Voucher for Purchases and Services other 
than Personal, shall be used by contractors to show the amount 
claimed for reimbursement. Standard Form 1035, Public Voucher for 
Purchases and Services other than Personal--Continuation Sheet, 
shall be used to furnish the necessary supporting detail or 
additional information required by the Contracting Officer. The 
Contractor may submit self-designed forms which contain the required 
information.
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the 
invoice preparation instructions. If contract work is authorized by 
an individual task order or delivery order (TO/DO), the invoice or 
request for contract financing payment shall also include a summary 
of the current and cumulative amounts claimed by cost element for 
each TO/DO and for the contract total, as well as any supporting 
data for each TO/DO as identified in the instructions.
    (2) The invoice or request for contract financing payment shall 
include current and cumulative charges by major cost element such as 
direct labor, overhead, travel, equipment, and other direct costs. 
For current costs, each major cost element shall include the 
appropriate supporting schedule identified in the invoice 
preparation instructions. Cumulative charges represent the net sum 
of current charges by cost element for the contract period.
    (d)(1) The charges for subcontracts shall be further detailed in 
a supporting schedule showing the major cost elements for each 
subcontract.
    (2) On a case-by-case basis, when needed to verify the 
reasonableness of subcontractor costs, the Contracting Officer may 
require that the contractor obtain from the subcontractor cost 
information in the detail set forth in paragraph (c)(2) of this 
section. This information should be obtained through a means which 
maintains subcontractor confidentiality (for example, via sealed 
envelopes), if the subcontractor expresses Confidential Business 
Information (CBI) concerns.
    (e) Invoices or requests for contract financing payment must 
clearly indicate the period of performance for which payment is 
requested. Separate invoices or requests for contract financing 
payment are required for charges applicable to the base contract and 
each option period.
    (f)(1) Notwithstanding the provisions of the clause of this 
contract at FAR 52.216-7, Allowable Cost and Payment, invoices or 
requests for contract financing payment shall be submitted once per 
month unless there has been a demonstrated need and Contracting 
Officer approval for more frequent billings. When submitted on a 
monthly basis, the period covered by invoices or requests for 
contractor financing payments shall be the same as the period for 
monthly progress reports required under this contract.
    (2) If the Contracting Officer allows submissions more 
frequently than monthly, one submittal each month shall have the 
same ending period of performance as the monthly progress report.
    (3) Where cumulative amounts on the monthly progress report 
differ from the aggregate amounts claimed in the invoice(s) or 
request(s) for contract financing payments covering the same period, 
the contractor shall provide a reconciliation of the difference as 
part of the payment request.
    (g) EPA Invoice Preparation Instructions--SF 1034. The 
information which a contractor is required to submit in its Standard 
Form 1034 is set forth as follows:
    (1) U.S. Department, Bureau, or establishment and location--
Insert the names and address of the servicing finance office, unless 
the contract specifically provides otherwise.
    (2) Date Voucher Prepared--Insert date on which the public 
voucher is prepared and submitted.
    (3) Contract/Delivery Order Number and Date--Insert the number 
and date of the contract and task order or delivery order, if 
applicable, under which reimbursement is claimed.
    (4) Requisition Number and Date--Leave blank.
    (5) Voucher Number--Insert the appropriate serial number of the 
voucher. A separate series of consecutive numbers, beginning with 
Number 1, shall be used by the contractor for each new contract. 
When an original voucher was submitted, but not paid in full because 
of suspended costs, resubmission vouchers should be submitted in a 
separate invoice showing the original voucher number and designated 
with the letter ``R'' as the last character of the number. If there 
is more than one resubmission, use the appropriate suffix (R2, R3, 
etc.) For an adjustment invoice, put invoice number #Adj. For a 
final invoice, put invoice number F. For a completion invoice, put 
invoice number #C.
    (6) Schedule Number; Paid By; Date Invoice Received--Leave 
blank.
    (7) Discount Terms--Enter terms of discount, if applicable.
    (8) Payee's Account Number--This space may be used by the 
contractor to record the account or job number(s) assigned to the 
contract or may be left blank.
    (9) Payee's Name and Address--Show the name of the contractor 
exactly as it appears in the contract and its correct address, 
except when an assignment has been made by the contractor, or the 
right to receive payment has been restricted, as in the case of an 
advance account. When the right to receive payment is restricted, 
the type of information to be shown in this space shall be furnished 
by the Contracting Officer.
    (10) Shipped From; To; Weight Government B/L Number--Insert for 
supply contracts.
    (11) Date of Delivery or Service--Show the month, day and year, 
beginning and ending dates of incurrence of costs claimed for 
reimbursement. Adjustments to costs for prior periods should 
identify the period applicable to their incurrence, e.g., revised 
provisional or final indirect cost rates, award fee, etc.
    (12) Articles or Services--Insert the following: ``For detail, 
see Standard Form 1035 total amount claimed transferred from Page _ 
of Standard Form 1035.'' Insert ``COST REIMBURSABLE--PROVISIONAL 
PAYMENT'' or ``INDEFINITE QUANTITY/INDEFINITE DELIVERY--PROVISIONAL 
PAYMENT'' on the Interim public vouchers. Insert ``COST 
REIMBURSABLE--COMPLETION VOUCHER'' or ``INDEFINITE QUANTITY/
INDEFINITE DELIVERY--COMPLETION VOUCHER'' on the Completion public 
voucher. Insert ``COST REIMBURSABLE--FINAL VOUCHER'' or ``INDEFINITE 
QUANTITY/INDEFINITE DELIVERY--FINAL VOUCHER'' on the final public 
voucher. Insert the following certification, signed by an authorized 
official, on the face of the Standard Form 1034:
    ``I certify that all payments requested are for appropriate 
purposes and in accordance with the agreements set forth in the 
contract.''
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(Name of Official)
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(Title)

    (13) Quantity; Unit Price--Insert for supply contracts.
    (14) Amount--Insert the amount claimed for the period indicated 
in paragraph (g)(11) of this clause.
    (h) EPA Invoice Preparation Instructions--SF 1035. The 
information which a contractor is required to submit in its Standard 
Form 1035 is set forth as follows:
    (1) U.S. Department, Bureau, or Establishment--Insert the name 
and address of the servicing finance office.
    (2) Voucher Number--Insert the voucher number as shown on the 
Standard Form 1034.
    (3) Schedule Number--Leave blank.
    (4) Sheet Number--Insert the sheet number if more than one sheet 
is used in numerical sequence. Use as many sheets as necessary to 
show the information required.
    (5) Number and Date of Order--Insert payee's name and address as 
in the Standard Form 1034.
    (6) Articles or Services--Insert the contract number as in the 
Standard Form 1034.
    (7) Amount--Insert the latest estimated cost, fee (fixed, base, 
or award, as applicable), total contract value, and amount and type 
of fee payable (as applicable).
    (8) A summary of claimed current and cumulative costs and fee by 
major cost element--Include the rate(s) at which indirect costs are 
claimed and indicate the base of each by identifying the line of 
costs to which each is applied. The rates invoiced

[[Page 46422]]

should be as specified in the contract or by a rate agreement 
negotiated by EPA's Cost and Rate Negotiation Team.
    (9) Fee--The fee shall be determined in accordance with 
instructions appearing in the contract.
    Note to paragraph (h)--Amounts claimed on vouchers must be based 
on records maintained by the contractor to show by major cost 
element the amounts claimed for reimbursement for each applicable 
contract. The records must be maintained based on the contractor's 
fiscal year and should include reconciliations of any differences 
between the costs incurred and amounts claimed for reimbursement. A 
memorandum record reconciling the total indirect cost(s) claimed 
should also be maintained.
    (i) Supporting Schedules for Cost Reimbursement Contracts. The 
following backup information is required as an attachment to the 
invoice as shown by category of cost:
    (1) Direct Labor--Identify the number of hours (by contractor 
labor category and total) and the total loaded direct labor hours 
billed for the period in the invoice.
    (2) Indirect Cost Rates--Identify by cost center, the indirect 
cost rate, the period, and the cost base to which it is applied.
    (3) Subcontracts--Identify the major cost elements for each 
subcontract.
    (4) Other Direct Costs--When the cost for an individual cost 
(e.g., photocopying, material and supplies, telephone usage) exceeds 
$1,000 per the invoice period, provide a detailed explanation for 
that cost category.
    (5) Contractor Acquired Equipment (if authorized by the 
contract)--Identify by item the quantities, unit prices, and total 
dollars billed.
    (6) Contractor Acquired Software (if authorized by the 
contract)--Identify by item the quantities, unit prices, and total 
dollars billed.
    (7) Travel--When travel costs exceed $2,000 per invoice period, 
identify by trip, the number of travelers, the duration of travel, 
the point of origin, destination, purpose of trip, transportation by 
unit price, per diem rates on daily basis and total dollars billed. 
Detailed reporting is not required for local travel. The manner of 
breakdown, e.g., task order/delivery order basis with/without 
separate program management, contract period will be specified in 
the contract instructions.
    Note to paragraph (i)--Any costs requiring advance consent by 
the Contracting Officer will be considered improper and will be 
suspended, if claimed prior to receipt of Contracting Officer 
consent. Include the total cost claimed for the current and 
cumulative-to-date periods. After the total amount claimed, provide 
summary dollar amounts of cumulative costs:
    1. Suspended as of the date of the invoice; and
    2. Disallowed on the contract as of the date of the invoice.

The amount shall include costs originally suspended and later 
disallowed. Also include an explanation of the changes in cumulative 
costs suspended or disallowed by addressing each adjustment in terms 
of: voucher number, date, dollar amount, source, and reason for the 
adjustment. Disallowed costs should be identified in unallowable 
accounts in the contractor's accounting system.
    (j) Supporting Schedules for Time and Materials Contracts. The 
following backup information is required as an attachment to the 
invoice as shown by category of cost:
    (1) Direct Labor--Identify the number of hours (by contractor 
labor category and total) and the total direct labor hours billed 
for the period of the invoice.
    (2) Subcontracts--Identify the major cost elements for each 
subcontract.
    (3) Other Direct Costs--When the cost for an individual cost 
(e.g., photocopying, material and supplies, telephone usage) exceeds 
$1,000 per the invoice period, provide a detailed explanation for 
that cost category.
    (4) Indirect Cost Rates--Identify by cost center, the indirect 
cost rate, the period, and the cost base to which it is applied.
    (5) Contractor Acquired Equipment--Identify by item the 
quantities, unit prices, and total dollars billed.
    (6) Contractor Acquired Software--Identify by item the 
quantities, unit prices, and total dollars billed.
    (7) Travel--When travel costs exceed $2,000 per invoice period, 
identify by trip, the number of travelers, the duration of travel, 
the point of origin, destination, purpose of trip, transportation by 
unit price, per diem rates on daily basis and total dollars billed. 
Detailed reporting is not required for local travel. The manner of 
breakdown, e.g., task order/delivery order basis with/without 
separate program management, contract period will be specified in 
the contract instructions.
    Note to paragraph (j)--Any costs requiring advance consent by 
the Contracting Officer will be considered improper and will be 
suspended, if claimed prior to receipt of Contracting Officer 
consent. Include the total cost claimed for the current and 
cumulative-to-date periods. After the total amount claimed, provide 
summary dollar amounts of cumulative costs:
    1. Suspended as of the date of the invoice; and
    2. Disallowed on the contract as of the date of the invoice.

The amount shall include costs originally suspended and later 
disallowed. Also include an explanation of the changes in cumulative 
costs suspended or disallowed by addressing each adjustment in terms 
of: voucher number, date, dollar amount, source, and reason for the 
adjustment. Disallowed costs should be identified in unallowable 
accounts in the contractor's accounting system.
    (k) Resubmissions. When an original voucher was submitted, but 
not paid in full because of suspended costs and after receipt of a 
letter of removal of suspension, resubmissions of any previously 
claimed amounts which were suspended should be submitted in a 
separate invoice showing the original voucher number and designated 
with the letter ``R'' with the copy of the removal of suspension 
notice. The amounts should be shown under the appropriate cost 
category and include all appropriate supplemental schedules.
    Note to paragraph (k)--All disallowances must be identified as 
such in the accounting system through journal entries.
    (l) Adjustment Vouchers. Adjustment vouchers should be submitted 
if finalized indirect rates were received but the rates are not for 
the entire period of performance. For example, the base period of 
performance is for a calendar year but your indirect rates are by 
fiscal year. Hence, only part of the base period can be adjusted for 
the applicable final indirect rates. These invoices should be 
annotated with ``adj'' after the invoice number.
    (m) Final Vouchers. Final Vouchers shall be submitted if 
finalized rates have been received for the entire period of 
performance. For example, the base period of performance is for a 
calendar year but your indirect rates are by fiscal year. You have 
received finalized rates for the entire base period that encompass 
both fiscal years that cover the base period. In accordance with FAR 
52.216-7, these invoices shall be submitted within 60 days after 
settlement of final indirect cost rates. They should be annotated 
with the word ``Final'' or ``F'' after the invoice number. Due to 
system limitations, the invoice number cannot be more than 11 
characters to include spaces.
    (n) Completion Vouchers. In accordance with FAR 52.216-7(d)(5), 
a completion voucher shall be submitted within 120 days (or longer 
if approved in writing by the Contracting Officer) after settlement 
of the final annual indirect cost rates for all years of a 
physically complete contract. The voucher shall reflect the settled 
amounts and rates. It shall include settled subcontract amounts and 
rates. The prime contractor is responsible for settling 
subcontractor amounts and rates included in the completion invoice. 
Since EPA's invoices must be on a period of performance basis, the 
contractor shall have a completion invoice for each year of the 
period of performance. This voucher must be submitted to the 
Contracting Officer for review and approval before final payment can 
be made on the contract. The Contracting Officer may request an 
audit of the completion vouchers before final payment is made. In 
addition, once approved, the Contracting Officer will request the 
appropriate closeout paperwork for the contract. For contracts 
separately invoiced by delivery or task order, provide a schedule 
showing final total costs claimed by delivery or task order and in 
total for the contract. In addition to the completion voucher, the 
contractor must submit the Contractor's Release; Assignee's Release, 
if applicable; the Contractor's Assignment of Refunds, Rebates, 
Credits and other Amounts; the Assignee's Assignment of Refunds, 
Rebates, Credits and other Amounts, if applicable; and the 
Contractor's Affidavit of Waiver of Lien, when required by the 
contract.

Alternate I (DEC 2018)

    If used in a non-commercial time and materials type contract, 
substitute the following paragraphs (c)(1) and (2) for paragraphs 
(c)(1) and (2) of the basic clause:

[[Page 46423]]

    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the 
invoice preparation instructions. If contract work is authorized by 
individual task order or delivery order (TO/DO), the invoice or 
request for contract financing payment shall also include a summary 
of the current and cumulative amounts claimed by cost element for 
each TO/DO and for the contract total, as well as any supporting 
data for each TO/DO as identified in the instructions.
    (2) The invoice or request for contract financing payment that 
employs a fixed rate feature shall include current and cumulative 
charges by contract labor category and by other major cost elements 
such as travel, equipment, and other direct costs. For current 
costs, each cost element shall include the appropriate supporting 
schedules identified in the invoice preparation instructions.


(End of clause)

0
5. Revise section 1552.235-79 to read as follows:


1552.235-79  Release of contractor confidential business information.

    As prescribed in 1535.007-70(f), insert the following clause:

Release of Contractor Confidential Business Information (DEC 2018)

    (a) The Environmental Protection Agency (EPA) may find it 
necessary to release information submitted by the Contractor either 
in response to this solicitation or pursuant to the provisions of 
this contract, to individuals not employed by EPA. Business 
information that is ordinarily entitled to confidential treatment 
under existing EPA regulations (40 CFR part 2) may be included in 
the information released to these individuals. Accordingly, by 
submission of this proposal or signature on this contract or other 
contracts, the Contractor hereby consents to a limited release of 
its confidential business information (CBI). An EPA contractor may 
assert a business confidentiality claim covering part or all of the 
information submitted by the contractor in a manner that is 
consistent with 40 CFR 2.203(b). If no such CBI claim accompanies 
the information when it is received by EPA, it may be made available 
to the public by EPA without further notice to the EPA contactor, 
pursuant to 40 CFR 2.203(a), and will not require the additional 
measures set forth in this section.
    (b) Possible circumstances where the EPA may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To EPA contractors and other federal agencies and their 
contractors tasked with recovery, or assisting the Agency in the 
recovery, of Federal funds expended pursuant to the Comprehensive 
Environmental Response, Compensation, and Liability Act, 42 U.S.C. 
9607, as amended, (CERCLA or Superfund) and/or Sec. 311(c) of the 
Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 
(OPA) (33 U.S.C. 1321(c));
    (2) To the U.S. Department of Justice (DOJ) and contractors 
employed by DOJ for use in advising the EPA and representing the EPA 
or other federal agencies in procedures for the recovery of 
Superfund expenditures and costs and damages to be deposited to the 
Oil Spill Liability Trust Fund (OSLTF);
    (3) To the U.S. Department of the Treasury and contractors 
employed by that department for use in collecting costs to be 
deposited to the Superfund or the OSLTF;
    (4) To parties liable, or potentially liable, for costs under 
CERCLA Sec. 107 (42 U.S.C. 9607), OPA Sec. 1002 (33 U.S.C. 2702), or 
CWA Sec. 311 (33 U.S.C. 1321) and their insurers or guarantors 
(`Potentially Responsible Parties') for purposes of facilitating 
collection, settlement or litigation of claims against such parties;
    (5) To EPA contractors who, for purposes of performing the work 
required under the respective contracts, require access to 
information that the Agency obtained under the Clean Air Act (42 
U.S.C. 7401 et seq.); the CWA (33 U.S.C.1251 et seq.); the Safe 
Drinking Water Act (42 U.S.C. 300f et seq.); the Federal 
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); 
the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); 
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.); CERCLA 
(42 U.S.C. 9601 et seq.); or the OPA (33 U.S.C. 2701 et seq.);
    (6) To EPA contractors tasked with assisting the Agency in 
handling and processing information and documents in the 
administration of Agency contracts, such as providing both preaward 
and post award audit support and specialized technical support to 
the Agency's technical evaluation panels;
    (7) To employees of grantees working at EPA under the Senior 
Environmental Employment (SEE) Program;
    (8) To Speaker of the House, President of the Senate, or 
Chairman of a Congressional Committee or Subcommittee;
    (9) To entities such as the United States Government 
Accountability Office, boards of contract appeals, and the Courts in 
the resolution of solicitation or contract protests and disputes;
    (10) To EPA contractor employees engaged in information systems 
analysis, development, operation, and maintenance, including 
performing data processing and management functions for the EPA; and
    (11) Pursuant to a court order or court-supervised agreement.
    (c) The EPA recognizes an obligation to protect the contractor 
from competitive harm that may result from the release of such 
information to a competitor. (See also the clauses in this document 
entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, CBI shall be 
released under paragraphs (b)(1), (2), (3), (4), (5), (6), (7) or 
(10) of this clause only pursuant to a confidentiality agreement.
    (d) With respect to EPA contractors, EPAAR Sec.  1552.235-71 
will be used as the confidentiality agreement. With respect to 
contractors for other federal agencies, EPA will expect these 
agencies to enter into similar confidentiality agreements with their 
contractors. With respect to Potentially Responsible Parties, such 
confidentiality agreements may permit further disclosure to other 
entities where necessary to further settlement or litigation of 
claims under CERCLA, the CWA, or the OPA. Such entities include, but 
are not limited to, accounting firms and technical experts able to 
analyze the information, provided that they also agree to be bound 
by an appropriate confidentiality agreement.
    (e) This clause does not authorize the EPA to release the 
Contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing of confidential business 
information by the subcontractor.


(End of clause)

[FR Doc. 2018-19769 Filed 9-12-18; 8:45 am]
 BILLING CODE 6560-50-P