Acquisition Regulation: Guidance on Use of Award Term Incentives; Administrative Amendments, 1978-1982 [E8-356]

Download as PDF 1978 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to 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). V. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Pesticide Chemical Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register. This final rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). 148–79–8 1. The authority citation for part 180 continues to read as follows: I Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.2010 is amended by adding text to read as follows: I List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. § 180.2010 Threshold of regulation determinations. The following pesticide chemical uses on food or feed, or food or feed crops, do not need a tolerance or exemption from the requirement of a tolerance, and may be registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., without obtaining such tolerance or exemption, based on EPA’s determination that the uses are below the threshold of regulation. Dated: December 31, 2007. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: I CAS Reg. No. Thiabendazole ................. PART 180—[AMENDED] Use/Limits Analytical Method As a seed treatment for dry pea (including field pea, pigeon pea, chickpea or lentil), using a maximum application rate of 0.075 pounds of active ingredient per 100 pounds of seed. Vines or hay grown from treated seed may not be fed to livestock.. High Performance Liquid Chromatography/Florescence Detector method1; Modification of IonPairing Liquid Chromatographic Determination of Benzimidazole Fungicides in Foods, Gilvydis and Walters, JAOAC, vol. 73, no. 5, 1990. 1Available from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; e-mail address: residuemethods@epa.gov BILLING CODE 6560–50–S ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1516, 1533, and 1552 [Docket ID No. EPA–HQ–OARM–2003–0001; FRL–8515–8] RIN 2030–AA89 Acquisition Regulation: Guidance on Use of Award Term Incentives; Administrative Amendments Environmental Protection Agency. ACTION: Final rule. ebenthall on PRODPC61 with RULES AGENCY: SUMMARY: The Environmental Protection Agency (EPA) amends the EPA Acquisition Regulation (EPAAR) to add policy, procedures, and contract clauses for the use of award term incentives. This rule makes two administrative changes to the EPAAR. One change is to reflect the Civilian 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: This final rule is effective on February 11, 2008. VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 EPA has established a docket for this action under Docket ID No. EPA–HQ–OARM–2003–0001. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at EPA Docket Center, OEI Docket, EPA/ DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the OEI Docket is (202) 566–1752. ADDRESSES: [FR Doc. E8–267 Filed 1–10–08; 8:45 am] 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: PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 (202) 565–2474; e-mail address: chambers.marilyn@epa.gov. I. Supplementary Information A. Background EPA published a proposed rule in the Federal Register at 72 FR 56708, October 4, 2007 to add guidance to the EPAAR on the use of award term contracts and make two administrative changes. The comment period closed on December 3, 2007. One comment was received. The respondent pointed out, effective January 6, 2007, the Board of Contract Appeals that existed at the General Services Administration was terminated and the cases were transferred to the Civilian Board of Contract Appeals. Our proposed rule stated 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 Administration Board of Contract Appeals. The rule should have stated 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 Civilian Board of Contract Appeals. The final rule is revised to substitute the Civilian Board of Contract Appeals for the General Services Administration Board of Contract Appeals in section E:\FR\FM\11JAR1.SGM 11JAR1 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations 1533.203. No other changes were made to the proposed rule. II. Statutory and Executive Order Reviews A. 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). B. 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.). ebenthall on PRODPC61 with RULES C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601, et seq. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today’s 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 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 VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 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. 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 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 rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. 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 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. F. Executive Order 13132: Federalism Executive Order 13132, entitled, ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 1979 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 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 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 rule amends 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 rule. G. 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.’’ E:\FR\FM\11JAR1.SGM 11JAR1 1980 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations This rule does not have tribal implications. It does 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. EPA has determined that this rule does 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 rule does not involve human health or environmental effects. H. National Technology Transfer and Advancement Act of 1995 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective on February 11, 2008. 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 rule does not involve technical standards. Therefore, EPA is not considering use of any voluntary consensus standards. This 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. ebenthall on PRODPC61 with RULES J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Jkt 214001 Government procurement. Therefore, 48 CFR Chapter 15 is amended as set forth below: I PART 1516—TYPES OF CONTRACTS 1. The authority citation for part 1516 continues to read as follows: I 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: I Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. 14:32 Jan 10, 2008 List of Subjects in 48 CFR Parts 1516, 1533 and 1552 Dated: December 26, 2007. John C. Gherardini, Acting Director, Office of Acquisition Management. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use VerDate Aug<31>2005 K. Submission to Congress and the Government Accountability Office 1516.401–1 General. 3. Add section 1516.401–170 to read as follows: I 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 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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. I 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 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 E:\FR\FM\11JAR1.SGM 11JAR1 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations 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. I 1516.404–2 [Redesignated as 1516.405–2] [Redesignated as 1516.405– I 7. Redesignate section 1516.404–272 as section 1516.405–270. [Redesignated as 1516.405– [Redesignated as 1516.405– I 9. Redesignate section 1516.404–274 as section 1516.405–272. I 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 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. ebenthall on PRODPC61 with RULES PART 1533—PROTESTS, DISPUTES AND APPEALS 11. The authority citation for part 1533 continues to read as follows: I 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. VerDate Aug<31>2005 PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 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: I 1552.216–77 Award term incentive. As prescribed in 1515.406(c), insert a clause substantially the same as follows: Award Term Incentive (FEB 2008) 8. Redesignate section 1516.404–273 as section 1516.405–271. I 1516.404–274 272] Applicability. The Civilian Board of Contract Appeals (CBCA) will hear appeals from final decisions of EPA Contracting Officers issued pursuant to the Contracts Disputes Act. The rules and regulations of the CBCA appear in 48 CFR Chapter 61. 13. The authority citation for part 1552 continues to read as follows: 6. Redesignate section 1516.404–2 as section 1516.405–2. 1516.404–273 271] 1533.203 I I 1516.404–272 270] 12. Revise section 1533.203 to read as follows: I 14:32 Jan 10, 2008 Jkt 214001 (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) of llll [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 llll [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 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 1981 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) I 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 (FEB 2008) (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 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 E:\FR\FM\11JAR1.SGM 11JAR1 1982 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations 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 (FEB 2008) ebenthall on PRODPC61 with RULES 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. VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 (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 ... 5. 4. 4. 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 ll [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 Year One ................... Year Two ................... Year Three ................ PO 00000 Average rating 4.5. 4.75. 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 ll [insert the number of months] months. (2) Overall average rating of 4.0 to 4.6— One award term incentive period of ll [insert the number of months] months. 16. Add section 1552.216–79 to read as follows: I 1552.216–79 Funds. Award Term Availability of As prescribed in 1515.406(c), insert the following clause: Award Term Availability of Funds (FEB 2008) 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. E8–356 Filed 1–10–08; 8:45 am] BILLING CODE 6560–50–P Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\11JAR1.SGM 11JAR1

Agencies

[Federal Register Volume 73, Number 8 (Friday, January 11, 2008)]
[Rules and Regulations]
[Pages 1978-1982]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-356]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1516, 1533, and 1552

[Docket ID No. EPA-HQ-OARM-2003-0001; FRL-8515-8]
RIN 2030-AA89


Acquisition Regulation: Guidance on Use of Award Term Incentives; 
Administrative Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to add policy, procedures, and contract 
clauses for the use of award term incentives. This rule makes two 
administrative changes to the EPAAR. One change is to reflect the 
Civilian 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: This final rule is effective on February 11, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OARM-2003-0001. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at EPA Docket Center, OEI Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
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.

I. Supplementary Information

A. Background

    EPA published a proposed rule in the Federal Register at 72 FR 
56708, October 4, 2007 to add guidance to the EPAAR on the use of award 
term contracts and make two administrative changes. The comment period 
closed on December 3, 2007. One comment was received. The respondent 
pointed out, effective January 6, 2007, the Board of Contract Appeals 
that existed at the General Services Administration was terminated and 
the cases were transferred to the Civilian Board of Contract Appeals. 
Our proposed rule stated 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 Administration Board of 
Contract Appeals. The rule should have stated 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 Civilian Board of Contract 
Appeals. The final rule is revised to substitute the Civilian Board of 
Contract Appeals for the General Services Administration Board of 
Contract Appeals in section

[[Page 1979]]

1533.203. No other changes were made to the proposed rule.

II. Statutory and Executive Order Reviews

A. 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).

B. 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.).

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601, et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impact of today's 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 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.

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 
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 rule is not 
subject to the requirements of sections 202 and 205 of the UMRA.

E. 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 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.

F. 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 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 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 rule amends 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 rule.

G. 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.''

[[Page 1980]]

    This rule does not have tribal implications. It does 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.

H. 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 rule does not involve technical standards. Therefore, EPA is 
not considering use of any voluntary consensus standards.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This 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.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this rule does 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 rule does 
not involve human health or environmental effects.

K. Submission to Congress and the Government Accountability Office

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on February 11, 2008.

List of Subjects in 48 CFR Parts 1516, 1533 and 1552

    Government procurement.

    Dated: December 26, 2007.
John C. Gherardini,
Acting Director, Office of Acquisition Management.

0
Therefore, 48 CFR Chapter 15 is amended as set forth below:

PART 1516--TYPES OF CONTRACTS

0
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.


0
2. Add section 1516.401-1 to read as follows:


1516.401-1  General.

0
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.

0
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 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

[[Page 1981]]

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]

0
5. Redesignate section 1516.405 as section 1516.406.


1516.404-2  [Redesignated as 1516.405-2]

0
6. Redesignate section 1516.404-2 as section 1516.405-2.


1516.404-272  [Redesignated as 1516.405-270]

0
7. Redesignate section 1516.404-272 as section 1516.405-270.


1516.404-273  [Redesignated as 1516.405-271]

0
8. Redesignate section 1516.404-273 as section 1516.405-271.


1516.404-274  [Redesignated as 1516.405-272]

0
9. Redesignate section 1516.404-274 as section 1516.405-272.

0
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 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

0
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.


0
12. Revise section 1533.203 to read as follows:


1533.203  Applicability.

    The Civilian Board of Contract Appeals (CBCA) will hear appeals 
from final decisions of EPA Contracting Officers issued pursuant to the 
Contracts Disputes Act. The rules and regulations of the CBCA appear in 
48 CFR Chapter 61.

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
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.


0
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 (FEB 2008)

    (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)

0
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 (FEB 2008)

    (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 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

[[Page 1982]]

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 (FEB 2008)

    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.


0
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 (FEB 2008)

    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. E8-356 Filed 1-10-08; 8:45 am]
BILLING CODE 6560-50-P