Acquisition Regulation: Guidance on Use of Award Term Incentives; Administrative Amendments, 56708-56713 [E7-19632]
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56708
Federal Register / Vol. 72, No. 192 / Thursday, October 4, 2007 / Proposed Rules
automotive aftermarket products,
insecticides, coatings, and other
miscellaneous products.
Maryland adopted the consumer
products regulation based on the 2001
Ozone Transport Commission (OTC)
model rule in 2003 that was based on
the California Air Resources Board
(CARB) rule. EPA approved the
Maryland consumer products regulation
on December 9, 2003 (68 FR 68523). In
July 2005, CARB amended the 2001
OTC model rule adding 14 new
categories. In 2006, the OTC developed
an updated model rule based on the
2005 CARB amendments. Maryland
adopted the updated 2006 OTC model
rule on June 8, 2007 with an effective
date of June 18, 2007 to incorporate the
changes in the 2005 CARB rule.
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II. Summary of SIP Revision
Maryland’s amended consumer
products regulation incorporates the
changes made by CARB. These
amendments affect 18 categories of
consumer products. Fourteen categories
are new, including subcategories with
new product category definitions and
VOC limits; one previously regulated
category with a more restrictive VOC
limit, and two previously regulated
categories with additional requirements.
The compliance date for the new
standards is January 1, 2009.
The new categories are the following:
(1) Adhesive remover with four
subcategories: Floor or wall covering,
gasket or thread locking, general
purpose, and specialty; (2) anti-static
product; (3) electrical cleaner; (4)
electronic cleaner; (6) fabric refresher;
(7) footwear or leather care product; (8)
hair styling product that will
incorporate hair styling gel and include
additional forms of hair styling products
(i.e., liquid, semi-solid, and pump
spray) but does not include hair spray
product or hair mousse; (9) graffiti
remover; (10) shaving gel; (11) toilet/
urinal care product; and (12) wood
cleaner. The previously regulated
category with a more restrictive limit is
contact adhesive that has been separated
into 2 subcategories: general purpose
and special purpose. The previously
regulated categories with additional
requirements are air fresheners and
general purpose degreasers.
III. Proposed Action
EPA is proposing to approve the
Maryland SIP revision for the control of
VOC emissions from consumer products
(COMAR 26.11.32) submitted on June
18, 2007. EPA is soliciting public
comments on the issues discussed in
this document. These comments will be
considered before taking final action.
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IV. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)). This action merely proposes
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rule proposes to
approve pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). This proposed rule also
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will
it 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 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve a state rule
implementing a Federal requirement,
and does not alter the relationship or
the distribution of power and
responsibilities established in the CAA.
This proposed rule also is not subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997), because it approves a
state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
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inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. As required by section 3 of
Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this
proposed rule, EPA has taken the
necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. EPA
has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the executive
order. This proposed rule pertaining to
the amendments of Maryland’s
consumer products regulation, does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 25, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E7–19626 Filed 10–3–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
48 CFR Parts 1516, 1533, and 1552
[Docket ID No. EPA–HQ–OARM–2003–0001;
FRL–8477–9]
RIN 2030–AA89
Acquisition Regulation: Guidance on
Use of Award Term Incentives;
Administrative Amendments
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to amend the
EPA Acquisition Regulation (EPAAR) to
add policy, procedures, and contract
clauses for the use of award term
incentives. This rule makes two
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administrative changes to the EPAAR.
One change is to reflect the General
Services Board of Contract Appeals as
EPA’s new forum for appeals under the
Contract Disputes Act of 1978. The
other change corrects a numbering error
in Subpart 1516.4.
DATES: Comments must be received on
or before December 3, 2007.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OARM–2003–0001 by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: docket.oei@epa.gov.
• Fax: (202) 566–0224.
• Mail: OEI Docket, Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460. Please include a
total of three (3) copies.
• Hand Delivery: EPA Docket CenterAttention OEI Docket, EPA West, Room
B102, 1301 Constitution Ave, NW.,
Washington, DC 20004. Such 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–2003–
0001. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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 www.regulations.gov
or e-mail. The 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 e-mail
comment directly to EPA without going
through www.regulations.gov your
e-mail 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
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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 https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the 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
www.regulations.gov or in hard copy at
the OEI Docket, EPA/DC, EPA West,
Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the OEI Docket is (202) 566–
1752.
FOR FURTHER INFORMATION CONTACT:
Marilyn E. Chambers, U.S. EPA, Office
of Acquisition Management, Mail Code
(3802R), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone
number: (202) 564–4398; fax number:
(202) 565–2474; e-mail address:
chambers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
1. Submitting CBI. Do not submit this
information to EPA through
regulations.gov or e-mail. 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).
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• 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.
II. Background
Award terms are a form of incentive,
offering additional periods of
performance rather than additional
profit or fee as a reward for achieving
prescribed performance measures.
Award term incentives were introduced
by the Department of the Air Force in
1997. While they have become
increasingly popular, the Federal
Acquisition Regulation (FAR) has yet to
provide any coverage on their use.
Accordingly, in order to assist EPA
contracting officers seeking to use award
term incentives, it is necessary to amend
the EPAAR to incorporate guidance on
their use.
The administrative amendments are
necessary because of two matters. First,
the numbering of the sections under
Subpart 1516.4 of the EPAAR does not
align with the corresponding sections in
the FAR. Second, EPA has changed its
forum for appeals under the Contract
Disputes Act of 1978 from the
Department of Interior Board of Contract
Appeals to the General Services Board
of Contract Appeals. However, the
EPAAR still references the Department
of Interior Board of Contract Appeals as
this forum.
III. Proposed Rule
This proposed rule would amend the
EPAAR to add coverage on the use of
award term incentives, and to make the
administrative changes discussed above.
The award term incentives coverage
consists of a clause prescription and
three clauses, one of which includes an
alternate.
The first clause, entitled ‘‘Award
Term Incentive,’’ sets forth the overall
framework of the incentive including
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the incentive period(s) of performance
for which a contractor may become
eligible by achieving prescribed
performance measures, e.g., acceptable
quality levels. The second clause,
entitled ‘‘Award Term Incentive Plan,’’
sets forth the performance criteria and
evaluation periods which will serve as
the basis for the Government’s decision
on whether the contractor is eligible for
an award term incentive. An alternate to
this clause is provided for contracting
officers to use ratings entered into the
National Institutes of Health Contractor
Performance System for the contract at
hand as the basis for a contractor’s
eligibility for an award term incentive.
The last clause, entitled ‘‘Award Term
Availability of Funds,’’ informs
contractors that funds are not presently
available for any award term, and that
the Government’s obligation under any
award term is contingent upon the
availability of appropriated funds from
which payment can be made. The
‘‘Award Term Incentive’’ clause, and the
‘‘Award Term Incentive Plan’’ clause
including its alternate, are prescribed
for use on substantially the same basis.
In preparing this guidance, EPA was
concerned that some contractors may
believe that their achievement of
prescribed performance measures
conferred an absolute entitlement to
award term(s), notwithstanding the
absence of need or funds for such
term(s). Accordingly, the guidance
provides that any award terms are
contingent upon a need for the services
and the availability of funds.
The administrative amendments
involve the renumbering of sections
under Subpart 1516.4 of the EPAAR to
be consistent with the numbering of
their corresponding sections in the FAR,
and a change to EPAAR 1533.2 to reflect
the substitution of the General Services
Board of Contract Appeals for the
Department of the Interior Board of
Contracts Appeals as EPA’s forum for
appeals under the Contract Disputes Act
of 1978.
IV. Statutory and Executive Order
Reviews
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Executive Order 12866: Regulatory
Planning and Review
This proposed 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).
Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because this rule does not
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contain information requirements that
require the approval of OMB under the
Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.).
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 proposed 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-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s proposed 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. 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. Since award term incentives will
be available equally to large and small
entities, this rule will not have a
significant economic impact on small
entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
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Federal agencies to assess their
regulatory actions on State, local, and
Tribal governments, and the private
sector. This proposed 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, this proposed rule is not subject
to the requirements of sections 202 and
205 of the UMRA.
Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045, entitled
‘‘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.
This proposed 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.
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’’ are 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
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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 proposed 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. This proposed
rule would amend the EPAAR to
provide guidance on the use of award
term incentives and make other
administrative changes. Thus, the
requirements of section 6 of the
Executive Order do not apply to this
proposed rule.
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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 6, 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.’’ ‘‘Policies that have tribal
implications’’ are defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
Government and the Indian tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian tribes.’’
This proposed rule does not have
tribal implications. It will not have
substantial direct effects on tribal
governments, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this proposed rule.
In the spirit of Executive Order 13175,
and consistent with EPA policy to
promote communication between EPA
and tribal governments, EPA
specifically solicits additional comment
on this proposed rule from tribal
officials.
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National Technology Transfer and
Advancement Act of 1995
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),
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 proposed rule does not involve
technical standards. Therefore, EPA is
not considering use of any voluntary
consensus standards.
Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This proposed 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.
List of Subjects in 48 CFR Parts 1516,
1533 and 1552
Government procurement.
Dated: September 27, 2007.
Denise Benjamin Sirmons,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 15 is
proposed to be amended as set forth
below:
PART 1516—TYPES OF CONTRACTS
1. The authority citation for part 1516
continues 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.
2. Add section 1516.401–1 to read as
follows:
1516.401–1
General.
3. Add section 1516.401–170 to read
as follows:
1516.401–70
Award Term Incentives.
(a) Award term incentives enable a
contractor to become eligible for
additional periods of performance under
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a current contract by achieving
prescribed performance measures under
that contract.
(b) Award term incentives are
designed to motivate contractors to
superior performance. Accordingly, the
prescribed performance measures, i.e.,
acceptable quality levels (AQL) which
must be achieved by a contractor to
become eligible for an award term
typically will be in excess of the AQLs
necessary for Government acceptance of
contract deliverables.
(c) The Award Term Incentive Plan
sets forth the evaluation process,
including the evaluation criteria and
performance measures, and serves as the
basis for award term decisions. The
Award Term Incentive Plan may be
unilaterally revised by the Government.
(d) Award term incentives may be
used in conjunction with options. The
Federal Acquisition Regulation does not
prescribe a level of performance for the
exercise of options, as contrasted with
award term incentives, which should
require superior performance as
discussed in paragraph (b) of this
subsection. Award term incentive
periods will follow any option periods.
(e) (1) The Government has the
unilateral right not to grant or to cancel
award term incentive periods and the
associated award term incentive plans
if—
(i) The Contracting Officer has failed
to initiate an award term incentive
period, regardless of whether the
contractor’s performance permitted the
Contracting Officer to consider initiating
the award term incentive period; or
(ii) The contractor has failed to
achieve the performance measures for
the corresponding evaluation period, or
(iii) The Government notifies the
contractor in writing it does not have
funds available for the award term; or
(iv) The Government no longer has a
need for the award term incentive
period at or before the time an award
term incentive period is to commence.
(2) When an award term incentive
period is not granted or cancelled, any—
(i) Prior award term incentive periods
for which the contractor remains
otherwise eligible are unaffected.
(ii) Subsequent award term incentive
periods are thereby also cancelled.
(f) Award term incentives may be
appropriate for any type of service
contract.
4. Add section 1516.401–270 to read
as follows:
1516.401–270
Definition.
Acceptable quality level (AQL) as
used in this subpart means the
minimum percent of deliverables which
are compliant with a given performance
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standard that would permit a contractor
to become eligible for an award term
incentive. Because the performance
necessary for eligibility for the award
term incentive may be in excess of that
necessary for the Government
acceptance of contract deliverables, the
AQLs associated with the award term
incentive may exceed the AQLs
associated with the acceptance of
contract deliverables. For example,
under contract X, acceptable
performance is 75 percent of reports
submitted to the Government within
five days. However, to be eligible for an
award term incentive, 85 percent of
reports must be submitted to the
Government within five days.
1516.405
[Redesignated as 1516.406]
5. Redesignate section 1516.405 as
section 1516.406.
1516.404–2
[Redesignated as 1516.405–2]
6. Redesignate section 1516.404–2 as
section 1516.405–2.
1516.404–272
270]
[Redesignated as 1516.405–
7. Redesignate section 1516.404–272
as section 1516.405–270.
1516.404–273
271]
[Redesignated as 1516.405–
PART 1533—PROTESTS, DISPUTES
AND APPEALS
11. The authority citation for part
1533 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.
12. Revise section 1533.203 to read as
follows:
1533.203
Applicability.
Pursuant to an interagency agreement
between the EPA and the General
Services Board of Contract Appeals
(GSBCA), the GSBCA will hear appeals
from final decisions of EPA Contracting
Officers issued pursuant to the
Contracts Disputes Act. The rules and
regulations of the GSBCA appear in 48
CFR Chapter 61.
PART 1552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
13. 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.
14. Add section 1552.216–77 to read
as follows:
1552.216–77
Award term incentive.
8. Redesignate section 1516.404–273
as section 1516.405–271.
As prescribed in 1515.406(c), insert a
clause substantially the same as follows:
1516.404–274
272]
AWARD TERM INCENTIVE (XXX 2007)
(a) General. This contract may be extended
as set forth in paragraph (b) based on overall
contractor performance as evaluated in
accordance with the Clause entitled ‘‘Award
Term Incentive Plan,’’ provided the Agency
has a need for the effort at or before the time
an award term is to commence, and if the
contractor receives notice of the availability
of funding for an award term period pursuant
to the ‘‘Award Term Availability of Funds’’
clause. The Contracting Officer is responsible
for the overall award term evaluation and
award term decision. The Contracting Officer
will unilaterally decide whether or not the
contractor is eligible for an award term
extension, and in conjunction with the
Contracting Officer’s Representative, will
determine the need for continued
performance and funding availability.
(b) Period of performance. Provided the
contractor has achieved the performance
measures , e.g., acceptable quality levels, set
forth in the clause ‘‘Award Term Incentive
Plan,’’ the Contracting Officer may extend the
contract by exercising llll[insert the
total award term incentive periods]
additional award term incentive period(s)
ofllll[insert the award term incentive
period] months each. The total maximum
period of performance under this contract, if
the Government exercises any option periods
and all award term incentive periods
isllll [ insert the total of the base
[Redesignated as 1516.405–
9. Redesignate section 1516.404–274
as section 1516.405–272.
10. Amend newly designated section
1516.406 to add new paragraphs (c) and
(d) to read as follows:
1516.406
Contract clauses.
pwalker on PROD1PC71 with PROPOSALS
*
*
*
*
*
(c) The Contracting Officer shall insert
the clauses at 1552.216–77, Award Term
Incentive, 1552.216–78, Award Term
Incentive Plan, and 1552.216–79 Award
Term Availability of Funds in
solicitations and contracts when award
term incentives are contemplated. The
clauses at 1552.216–77 and 1552.216–78
may be used on a substantially the same
basis.
(d) If the Contracting Officer wishes to
use the ratings set forth in the National
Institutes of Health (NIH) Contractor
Performance System (CPS) on the
contract at hand as the basis for
contractor eligibility for an award term
incentive, the Contracting Officer shall
insert the clause at 1552.216–78 with its
Alternate I.
VerDate Aug<31>2005
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Sfmt 4702
period, option periods (if any), and award
term incentive periods] years.
(c) Right not to grant or cancel the award
term incentive. (1) The Government has the
unilateral right not to grant or to cancel
award term incentive periods and the
associated award term incentive plans if—
(i) The Contracting Officer has failed to
initiate an award term incentive period,
regardless of whether the contractor’s
performance permitted the Contracting
Officer to consider initiating the award term
incentive period; or
(ii) The contractor has failed to achieve the
performance measures for the corresponding
evaluation period, or
(iii) The Government notifies the
contractor in writing it does not have funds
available for the award term incentive
periods; or
(iv) The Government no longer has a need
for the award term incentive period at or
before the time an award term incentive
period is to commence.
(2) When an award term incentive period
is not granted or cancelled, any—
(i) Prior award term incentive periods for
which the contractor remains otherwise
eligible are unaffected.
(ii) Subsequent award term incentive
periods are thereby also cancelled.
(d) Cancellation of an award term incentive
period that has not yet commenced for any
of the reasons set forth in paragraph (c) of
this clause shall not be considered either a
termination for convenience or termination
for default, and shall not entitle the
contractor to any termination settlement or
any other compensation. If the award term
incentive is cancelled, a unilateral
modification will cite this clause as the
authority.
(e) Award term incentive administration.
The award term incentive evaluation(s) will
be completed in accordance with the
schedule in the Award Term Incentive Plan.
The contractor will be notified of the results
and their eligibility to be considered for the
respective award term incentive no later than
120 days after an evaluation period.
(f) Review process. The contractor may
request a review of an award term incentive
evaluation which has resulted in the
contractor being ineligible for the award term
incentive. The request shall be submitted in
writing to the Contracting Officer within 15
days after notification of the results of the
evaluation.
(end of clause)
15. Add section 1552.216–78 to read
as follows:
1552.216–78
Award Term Incentive Plan.
As prescribed in 1515.406(c), insert a
clause substantially the same as follows:
AWARD TERM INCENTIVE PLAN (XXX
2007)
(a) The Award Term Incentive Plan
provides for the evaluation of performance,
and, together with Agency need and
availability of funding, serves as the basis for
award term decisions. The Award Term
Incentive Plan may be unilaterally revised by
the Government. Any changes to the Award
E:\FR\FM\04OCP1.SGM
04OCP1
Federal Register / Vol. 72, No. 192 / Thursday, October 4, 2007 / Proposed Rules
Term Incentive Plan will be made in writing
and incorporated into the contract through a
unilateral modification citing this clause. The
Government will consult with the contractor
prior to the issuance of a revised Award
Term Incentive Plan, but is not required to
obtain the contractor’s consent to the
revisions.
(b) [describe the evaluation periods and
associated award term incentive periods, e.g.,
months 1–18 for award term incentive period
I, and months 19–36 for award term incentive
period II]
(c) [describe the evaluation schedule, e.g.,
90 days after the end of the evaluation
period]
(d) In order to be eligible for an award term
incentive period the contractor must achieve
all of the acceptable quality levels (AQL) for
the evaluated tasks, both individual and
aggregate, for that evaluation period. Failure
to achieve any AQL renders the contractor
ineligible for the associated award term
incentive period. [identify the most
significant tasks. Describe the AQL for each
task as well as an overall AQL for the
associated evaluation periods, e.g., an AQL of
90% each for tasks 1 and 3, and an AQL of
85% for task 7, and an overall AQL of 90%
for the months 1–18 evaluation period]
(e) [If the contract will contain a quality
assurance surveillance plan (QASP),
reference the QASP, e.g., attachment 2.
Typically, the performance standards and
AQLs will be defined in the QASP]
(end of clause)
Alternate 1 (XXX 2007). As prescribed
in 1516.406(d), substitute paragraphs
substantially the same as following
paragraphs (b) through (e) for
paragraphs (b) through (e) in the basic
clause:
(b) At the conclusion of each contract
year, an average contract rating shall be
determined by using the numerical
ratings entered into the National
Institutes of Health (NIH) Contractor
Performance System (CPS) for this
contract. The NIHCPS is an interactive
database located on the Internet which
EPA uses to record contractor
performance evaluations.
(c) The contract year average rating
shall be obtained by dividing the
combined ratings by the number of
ratings, for example:
Criteria
Rating
Quality of Product or Service ...................................................................
Cost Control ..............................................................................................
Timeliness of Performance .......................................................................
Business Relations ...................................................................................
(d) The contractor shall be evaluated
for performance from the start of the
contract through Year llll[identify
5.
4.
4.
5.
18 (combined rating).
÷ 4 (number of ratings).
= 4.5 contract year average rating.
the evaluation period, e.g., year three].
The average rating for each contract year
(as derived in paragraph (c) above) will
Evaluation period
pwalker on PROD1PC71 with PROPOSALS
(e) Based on the overall average rating
as determined under paragraph (d),
provided that no individual rating, i.e.,
Quality of Product or Service, Cost
Control, Timeliness of Performance, or
Business Relations is below a 3, the
contractor shall be eligible for the
following award term periods:
(1) Overall average rating of 4.6 to
5.0—Two award term incentive periods
of llll[insert the number of
months] months.
(2) Overall average rating of 4.0 to
4.6—One award term incentive period
of llll[insert the number of
months] months.
16. Add section 1552.216–79 to read
as follows:
4.5.
4.75.
4.75.
14 (combined average rating).
÷ 3 (number of evaluation periods).
= 4.66 overall average rating.
AWARD TERM AVAILABILITY OF FUNDS
(XXX 2007)
DEPARTMENT OF TRANSPORTATION
Funds are not presently available for any
award term. The Government’s obligation
under any award term is contingent upon the
availability of appropriated funds from
which payment can be made. No legal
liability on the part of the Government for
any award term payment may arise until
funds are made available to the Contracting
Officer for an award term and until the
Contractor receives notice of such
availability, to be confirmed in writing by the
Contracting Officer.
National Highway Traffic Safety
Administration
(end of clause)
[FR Doc. E7–19632 Filed 10–3–07; 8:45 am]
BILLING CODE 6560–50–P
Award Term Availability of
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49 CFR Part 571
[Docket No. NHTSA–2007–29272]
RIN 2127–AK04
Federal Motor Vehicle Safety
Standards; Controls, Telltales and
Indicators
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
SUMMARY: In an August 2005 final rule,
we updated our standard regulating
motor vehicle controls, telltales and
indicators. The standard specifies
requirements for the location,
identification, and illumination of these
items.
As prescribed in 1515.406(c), insert
the following clause:
VerDate Aug<31>2005
be combined and divided by [insert the
number of evaluation periods] to obtain
an overall average rating, for example:
Average rating
Year One ..................................................................................................
Year Two ..................................................................................................
Year Three ................................................................................................
1552.216–79
Funds.
56713
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Fmt 4702
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04OCP1
]]>Agencies
[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Proposed Rules]
[Pages 56708-56713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19632]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1516, 1533, and 1552
[Docket ID No. EPA-HQ-OARM-2003-0001; FRL-8477-9]
RIN 2030-AA89
Acquisition Regulation: Guidance on Use of Award Term Incentives;
Administrative Amendments
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the EPA Acquisition Regulation (EPAAR) to add policy, procedures,
and contract clauses for the use of award term incentives. This rule
makes two
[[Page 56709]]
administrative changes to the EPAAR. One change is to reflect the
General Services Board of Contract Appeals as EPA's new forum for
appeals under the Contract Disputes Act of 1978. The other change
corrects a numbering error in Subpart 1516.4.
DATES: Comments must be received on or before December 3, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2003-0001 by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: docket.oei@epa.gov.
Fax: (202) 566-0224.
Mail: OEI Docket, Environmental Protection Agency,
Mailcode: 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
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-
2003-0001. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 www.regulations.gov or e-mail.
The 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 e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail 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 https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
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 www.regulations.gov or in hard copy at the OEI Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the OEI
Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: Marilyn E. Chambers, U.S. EPA, Office
of Acquisition Management, Mail Code (3802R), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 564-4398; fax number: (202) 565-2474; e-mail address:
chambers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. 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.
II. Background
Award terms are a form of incentive, offering additional periods of
performance rather than additional profit or fee as a reward for
achieving prescribed performance measures. Award term incentives were
introduced by the Department of the Air Force in 1997. While they have
become increasingly popular, the Federal Acquisition Regulation (FAR)
has yet to provide any coverage on their use. Accordingly, in order to
assist EPA contracting officers seeking to use award term incentives,
it is necessary to amend the EPAAR to incorporate guidance on their
use.
The administrative amendments are necessary because of two matters.
First, the numbering of the sections under Subpart 1516.4 of the EPAAR
does not align with the corresponding sections in the FAR. Second, EPA
has changed its forum for appeals under the Contract Disputes Act of
1978 from the Department of Interior Board of Contract Appeals to the
General Services Board of Contract Appeals. However, the EPAAR still
references the Department of Interior Board of Contract Appeals as this
forum.
III. Proposed Rule
This proposed rule would amend the EPAAR to add coverage on the use
of award term incentives, and to make the administrative changes
discussed above. The award term incentives coverage consists of a
clause prescription and three clauses, one of which includes an
alternate.
The first clause, entitled ``Award Term Incentive,'' sets forth the
overall framework of the incentive including
[[Page 56710]]
the incentive period(s) of performance for which a contractor may
become eligible by achieving prescribed performance measures, e.g.,
acceptable quality levels. The second clause, entitled ``Award Term
Incentive Plan,'' sets forth the performance criteria and evaluation
periods which will serve as the basis for the Government's decision on
whether the contractor is eligible for an award term incentive. An
alternate to this clause is provided for contracting officers to use
ratings entered into the National Institutes of Health Contractor
Performance System for the contract at hand as the basis for a
contractor's eligibility for an award term incentive. The last clause,
entitled ``Award Term Availability of Funds,'' informs contractors that
funds are not presently available for any award term, and that the
Government's obligation under any award term is contingent upon the
availability of appropriated funds from which payment can be made. The
``Award Term Incentive'' clause, and the ``Award Term Incentive Plan''
clause including its alternate, are prescribed for use on substantially
the same basis.
In preparing this guidance, EPA was concerned that some contractors
may believe that their achievement of prescribed performance measures
conferred an absolute entitlement to award term(s), notwithstanding the
absence of need or funds for such term(s). Accordingly, the guidance
provides that any award terms are contingent upon a need for the
services and the availability of funds.
The administrative amendments involve the renumbering of sections
under Subpart 1516.4 of the EPAAR to be consistent with the numbering
of their corresponding sections in the FAR, and a change to EPAAR
1533.2 to reflect the substitution of the General Services Board of
Contract Appeals for the Department of the Interior Board of Contracts
Appeals as EPA's forum for appeals under the Contract Disputes Act of
1978.
IV. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
This proposed 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).
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this rule does
not contain information requirements that require the approval of OMB
under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
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 proposed 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 proposed 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. 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. Since
award term incentives will be available equally to large and small
entities, this rule will not have a significant economic impact on
small entities.
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
their regulatory actions on State, local, and Tribal governments, and
the private sector. This proposed 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, this proposed rule
is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
Executive Order 13045, entitled ``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.
This proposed 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.
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'' are
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
[[Page 56711]]
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 proposed 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. This proposed rule would amend
the EPAAR to provide guidance on the use of award term incentives and
make other administrative changes. Thus, the requirements of section 6
of the Executive Order do not apply to this proposed rule.
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 6, 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.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this proposed rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communication between EPA and tribal governments, EPA
specifically solicits additional comment on this proposed rule from
tribal officials.
National Technology Transfer and Advancement Act of 1995
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), 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 proposed rule does not involve technical standards. Therefore,
EPA is not considering use of any voluntary consensus standards.
Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This proposed 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.
List of Subjects in 48 CFR Parts 1516, 1533 and 1552
Government procurement.
Dated: September 27, 2007.
Denise Benjamin Sirmons,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth
below:
PART 1516--TYPES OF CONTRACTS
1. The authority citation for part 1516 continues 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.
2. Add section 1516.401-1 to read as follows:
1516.401-1 General.
3. Add section 1516.401-170 to read as follows:
1516.401-70 Award Term Incentives.
(a) Award term incentives enable a contractor to become eligible
for additional periods of performance under a current contract by
achieving prescribed performance measures under that contract.
(b) Award term incentives are designed to motivate contractors to
superior performance. Accordingly, the prescribed performance measures,
i.e., acceptable quality levels (AQL) which must be achieved by a
contractor to become eligible for an award term typically will be in
excess of the AQLs necessary for Government acceptance of contract
deliverables.
(c) The Award Term Incentive Plan sets forth the evaluation
process, including the evaluation criteria and performance measures,
and serves as the basis for award term decisions. The Award Term
Incentive Plan may be unilaterally revised by the Government.
(d) Award term incentives may be used in conjunction with options.
The Federal Acquisition Regulation does not prescribe a level of
performance for the exercise of options, as contrasted with award term
incentives, which should require superior performance as discussed in
paragraph (b) of this subsection. Award term incentive periods will
follow any option periods.
(e) (1) The Government has the unilateral right not to grant or to
cancel award term incentive periods and the associated award term
incentive plans if--
(i) The Contracting Officer has failed to initiate an award term
incentive period, regardless of whether the contractor's performance
permitted the Contracting Officer to consider initiating the award term
incentive period; or
(ii) The contractor has failed to achieve the performance measures
for the corresponding evaluation period, or
(iii) The Government notifies the contractor in writing it does not
have funds available for the award term; or
(iv) The Government no longer has a need for the award term
incentive period at or before the time an award term incentive period
is to commence.
(2) When an award term incentive period is not granted or
cancelled, any--
(i) Prior award term incentive periods for which the contractor
remains otherwise eligible are unaffected.
(ii) Subsequent award term incentive periods are thereby also
cancelled.
(f) Award term incentives may be appropriate for any type of
service contract.
4. Add section 1516.401-270 to read as follows:
1516.401-270 Definition.
Acceptable quality level (AQL) as used in this subpart means the
minimum percent of deliverables which are compliant with a given
performance
[[Page 56712]]
standard that would permit a contractor to become eligible for an award
term incentive. Because the performance necessary for eligibility for
the award term incentive may be in excess of that necessary for the
Government acceptance of contract deliverables, the AQLs associated
with the award term incentive may exceed the AQLs associated with the
acceptance of contract deliverables. For example, under contract X,
acceptable performance is 75 percent of reports submitted to the
Government within five days. However, to be eligible for an award term
incentive, 85 percent of reports must be submitted to the Government
within five days.
1516.405 [Redesignated as 1516.406]
5. Redesignate section 1516.405 as section 1516.406.
1516.404-2 [Redesignated as 1516.405-2]
6. Redesignate section 1516.404-2 as section 1516.405-2.
1516.404-272 [Redesignated as 1516.405-270]
7. Redesignate section 1516.404-272 as section 1516.405-270.
1516.404-273 [Redesignated as 1516.405-271]
8. Redesignate section 1516.404-273 as section 1516.405-271.
1516.404-274 [Redesignated as 1516.405-272]
9. Redesignate section 1516.404-274 as section 1516.405-272.
10. Amend newly designated section 1516.406 to add new paragraphs
(c) and (d) to read as follows:
1516.406 Contract clauses.
* * * * *
(c) The Contracting Officer shall insert the clauses at 1552.216-
77, Award Term Incentive, 1552.216-78, Award Term Incentive Plan, and
1552.216-79 Award Term Availability of Funds in solicitations and
contracts when award term incentives are contemplated. The clauses at
1552.216-77 and 1552.216-78 may be used on a substantially the same
basis.
(d) If the Contracting Officer wishes to use the ratings set forth
in the National Institutes of Health (NIH) Contractor Performance
System (CPS) on the contract at hand as the basis for contractor
eligibility for an award term incentive, the Contracting Officer shall
insert the clause at 1552.216-78 with its Alternate I.
PART 1533--PROTESTS, DISPUTES AND APPEALS
11. The authority citation for part 1533 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.
12. Revise section 1533.203 to read as follows:
1533.203 Applicability.
Pursuant to an interagency agreement between the EPA and the
General Services Board of Contract Appeals (GSBCA), the GSBCA will hear
appeals from final decisions of EPA Contracting Officers issued
pursuant to the Contracts Disputes Act. The rules and regulations of
the GSBCA appear in 48 CFR Chapter 61.
PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
13. 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.
14. Add section 1552.216-77 to read as follows:
1552.216-77 Award term incentive.
As prescribed in 1515.406(c), insert a clause substantially the
same as follows:
AWARD TERM INCENTIVE (XXX 2007)
(a) General. This contract may be extended as set forth in
paragraph (b) based on overall contractor performance as evaluated
in accordance with the Clause entitled ``Award Term Incentive
Plan,'' provided the Agency has a need for the effort at or before
the time an award term is to commence, and if the contractor
receives notice of the availability of funding for an award term
period pursuant to the ``Award Term Availability of Funds'' clause.
The Contracting Officer is responsible for the overall award term
evaluation and award term decision. The Contracting Officer will
unilaterally decide whether or not the contractor is eligible for an
award term extension, and in conjunction with the Contracting
Officer's Representative, will determine the need for continued
performance and funding availability.
(b) Period of performance. Provided the contractor has achieved
the performance measures , e.g., acceptable quality levels, set
forth in the clause ``Award Term Incentive Plan,'' the Contracting
Officer may extend the contract by exercising --------[insert the
total award term incentive periods] additional award term incentive
period(s) of--------[insert the award term incentive period] months
each. The total maximum period of performance under this contract,
if the Government exercises any option periods and all award term
incentive periods is-------- [ insert the total of the base period,
option periods (if any), and award term incentive periods] years.
(c) Right not to grant or cancel the award term incentive. (1)
The Government has the unilateral right not to grant or to cancel
award term incentive periods and the associated award term incentive
plans if--
(i) The Contracting Officer has failed to initiate an award term
incentive period, regardless of whether the contractor's performance
permitted the Contracting Officer to consider initiating the award
term incentive period; or
(ii) The contractor has failed to achieve the performance
measures for the corresponding evaluation period, or
(iii) The Government notifies the contractor in writing it does
not have funds available for the award term incentive periods; or
(iv) The Government no longer has a need for the award term
incentive period at or before the time an award term incentive
period is to commence.
(2) When an award term incentive period is not granted or
cancelled, any--
(i) Prior award term incentive periods for which the contractor
remains otherwise eligible are unaffected.
(ii) Subsequent award term incentive periods are thereby also
cancelled.
(d) Cancellation of an award term incentive period that has not
yet commenced for any of the reasons set forth in paragraph (c) of
this clause shall not be considered either a termination for
convenience or termination for default, and shall not entitle the
contractor to any termination settlement or any other compensation.
If the award term incentive is cancelled, a unilateral modification
will cite this clause as the authority.
(e) Award term incentive administration. The award term
incentive evaluation(s) will be completed in accordance with the
schedule in the Award Term Incentive Plan. The contractor will be
notified of the results and their eligibility to be considered for
the respective award term incentive no later than 120 days after an
evaluation period.
(f) Review process. The contractor may request a review of an
award term incentive evaluation which has resulted in the contractor
being ineligible for the award term incentive. The request shall be
submitted in writing to the Contracting Officer within 15 days after
notification of the results of the evaluation.
(end of clause)
15. Add section 1552.216-78 to read as follows:
1552.216-78 Award Term Incentive Plan.
As prescribed in 1515.406(c), insert a clause substantially the
same as follows:
AWARD TERM INCENTIVE PLAN (XXX 2007)
(a) The Award Term Incentive Plan provides for the evaluation of
performance, and, together with Agency need and availability of
funding, serves as the basis for award term decisions. The Award
Term Incentive Plan may be unilaterally revised by the Government.
Any changes to the Award
[[Page 56713]]
Term Incentive Plan will be made in writing and incorporated into
the contract through a unilateral modification citing this clause.
The Government will consult with the contractor prior to the
issuance of a revised Award Term Incentive Plan, but is not required
to obtain the contractor's consent to the revisions.
(b) [describe the evaluation periods and associated award term
incentive periods, e.g., months 1-18 for award term incentive period
I, and months 19-36 for award term incentive period II]
(c) [describe the evaluation schedule, e.g., 90 days after the
end of the evaluation period]
(d) In order to be eligible for an award term incentive period
the contractor must achieve all of the acceptable quality levels
(AQL) for the evaluated tasks, both individual and aggregate, for
that evaluation period. Failure to achieve any AQL renders the
contractor ineligible for the associated award term incentive
period. [identify the most significant tasks. Describe the AQL for
each task as well as an overall AQL for the associated evaluation
periods, e.g., an AQL of 90% each for tasks 1 and 3, and an AQL of
85% for task 7, and an overall AQL of 90% for the months 1-18
evaluation period]
(e) [If the contract will contain a quality assurance
surveillance plan (QASP), reference the QASP, e.g., attachment 2.
Typically, the performance standards and AQLs will be defined in the
QASP]
(end of clause)
Alternate 1 (XXX 2007). As prescribed in 1516.406(d), substitute
paragraphs substantially the same as following paragraphs (b) through
(e) for paragraphs (b) through (e) in the basic clause:
(b) At the conclusion of each contract year, an average contract
rating shall be determined by using the numerical ratings entered into
the National Institutes of Health (NIH) Contractor Performance System
(CPS) for this contract. The NIHCPS is an interactive database located
on the Internet which EPA uses to record contractor performance
evaluations.
(c) The contract year average rating shall be obtained by dividing
the combined ratings by the number of ratings, for example:
------------------------------------------------------------------------
Criteria Rating
------------------------------------------------------------------------
Quality of Product or Service.......... 5.
Cost Control........................... 4.
Timeliness of Performance.............. 4.
Business Relations..................... 5.
18 (combined rating).
/ 4 (number of ratings).
= 4.5 contract year average
rating.
------------------------------------------------------------------------
(d) The contractor shall be evaluated for performance from the
start of the contract through Year --------[identify the evaluation
period, e.g., year three]. The average rating for each contract year
(as derived in paragraph (c) above) will be combined and divided by
[insert the number of evaluation periods] to obtain an overall average
rating, for example:
------------------------------------------------------------------------
Evaluation period Average rating
------------------------------------------------------------------------
Year One............................... 4.5.
Year Two............................... 4.75.
Year Three............................. 4.75.
14 (combined average rating).
/ 3 (number of evaluation
periods).
= 4.66 overall average rating.
------------------------------------------------------------------------
(e) Based on the overall average rating as determined under
paragraph (d), provided that no individual rating, i.e., Quality of
Product or Service, Cost Control, Timeliness of Performance, or
Business Relations is below a 3, the contractor shall be eligible for
the following award term periods:
(1) Overall average rating of 4.6 to 5.0--Two award term incentive
periods of --------[insert the number of months] months.
(2) Overall average rating of 4.0 to 4.6--One award term incentive
period of --------[insert the number of months] months.
16. Add section 1552.216-79 to read as follows:
1552.216-79 Award Term Availability of Funds.
As prescribed in 1515.406(c), insert the following clause:
AWARD TERM AVAILABILITY OF FUNDS (XXX 2007)
Funds are not presently available for any award term. The
Government's obligation under any award term is contingent upon the
availability of appropriated funds from which payment can be made.
No legal liability on the part of the Government for any award term
payment may arise until funds are made available to the Contracting
Officer for an award term and until the Contractor receives notice
of such availability, to be confirmed in writing by the Contracting
Officer.
(end of clause)
[FR Doc. E7-19632 Filed 10-3-07; 8:45 am]
BILLING CODE 6560-50-P
