Revision of Department of Homeland Security Acquisition Regulation; Limitations on Subcontracting in Emergency Acquisitions (HSAR Case 2009-005), 32723-32727 [2010-13801]
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Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules
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indicated in the left column, remove the
word indicated in the right column from
where it appears in the section:
Section
970.2201–1–2(a)(1)(ii)
970.2671–2
970.2672–3
970.2673–2
970.5226–1 introductory text
970.5226–2 introductory text
970.5226–3 introductory text
970.5232–5(b) in two places
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‘‘48 CFR’’
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BILLING CODE 6450–01–P
DEPARTMENT OF HOMELAND
SECURITY
48 CFR Parts 3015, 3016, and 3052
[Docket No. DHS–2010–0045]
RIN 1601–AA43
Revision of Department of Homeland
Security Acquisition Regulation;
Limitations on Subcontracting in
Emergency Acquisitions (HSAR Case
2009–005)
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AGENCY: Office of the Chief Procurement
Officer, DHS.
ACTION: Proposed rule with requests for
comments.
SUMMARY: The Department of Homeland
Security (DHS) is proposing to amend
its Homeland Security Acquisition
Regulation (HSAR) to implement a
statutory requirement limiting the use of
subcontractors on cost-reimbursement
type contracts entered into by the
Department to facilitate the response to
or recovery from a natural disaster or act
of terrorism or other man-made disaster.
DATES: Comments and related material
submitted electronically must be
submitted to the Federal eRulemaking
Portal https://www.regulations.gov. on or
before August 9, 2010. Comments and
related material submitted by mail must
reach the Department of Homeland
Security, Office of the Chief
Procurement Officer, Acquisition Policy
and Legislation Branch at the address
shown below on or before August 9,
2010 to be considered in the formation
of the final rule.
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Add
‘‘contractor’’
‘‘Clause __,’’
‘‘Penalties for Unallowable costs;’’
970.5232–2(e)(2)(iv)(B) in the last sentence
970.5232–3(d) in the second sentence
970.5232–3(j) in the last sentence
You may submit comments
identified by DHS docket number DHS–
2010–0045, using any one of the
following methods:
(1) Via the internet at Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments
and use docket number DHS–2010–
0045.
(2) By mail to the Department of
Homeland Security, Office of the Chief
Procurement Officer, Acquisition Policy
and Legislation Branch, Attn: Jeremy
Olson, 245 Murray Drive, Bldg. 410
(RDS), Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT:
Jeremy Olson, Department of Homeland
Security, Office of the Chief
Procurement Officer, Acquisition Policy
and Legislation Branch, (202) 447–5197.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Request for Comments
II. Background
III. Discussion of Proposed Rule
IV. Regulatory Requirements
A. Executive Order 12866 (Regulatory
Planning and Review)
B. Small Entities
C. Collection of Information
I. Request for Comments
Interested persons are invited to
participate in this rulemaking by
submitting comments and related
materials. Comments and related
materials should be organized by HSAR
Part, and indicate the specific section
that is being commented on. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided. See
ADDRESSES above for information on
how to submit comments. If you submit
comments by mail, please submit them
in an unbound format, no larger than
81⁄2 by 11 inches, suitable for copying
and electronic filing. You may submit
comments either by mail or via the
internet as identified in the ADDRESSES
section above; but to avoid duplication
DHS requests that you submit comments
and materials by only one method. If
you would like DHS to acknowledge
receipt of comments submitted by mail,
please enclose a self-addressed, stamped
postcard or envelope. DHS will consider
all comments and material received
during the comment period.
Viewing comments and documents:
To view comments and read background
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32723
‘‘Contractor’’
‘‘Clause 970.5204–3,’’
‘‘Penalties for Unallowable Costs;’’
documents related to this rulemaking,
go to https://www.regulations.gov, which
contains relevant instructions under the
FAQs tab on the home page.
II. Background
Section 692 of the Post-Katrina
Emergency Management Reform Act of
2006 (PKEMRA), Public Law 109–295,
120 Stat. 1394, 1409 (Oct. 4, 2006),
establishes a limitation on
subcontracting for cost-reimbursement
type contracts above the simplified
acquisition threshold entered into to
facilitate the response to or recovery
from a natural disaster or act of
terrorism or other man-made disaster.
Congress enacted this limitation based
on findings that excessive tiering of
subcontractors under disaster recovery
cost-reimbursement type contracts leads
to inflated overhead charges and poor
prime contractor oversight over
subcontractor work. In order to
implement the statutory requirement,
DHS proposes to amend the Homeland
Security Acquisition Regulation (HSAR)
to add implementing policy.
III. Discussion of Proposed Rule
The proposed rule would revise 48
CFR part 3015, Contracting by
Negotiation; part 3016, Types of
Contracts; and part 3052, Solicitation
Provisions and Contract Clauses, to
limit the use of subcontractors by prime
contractors on certain DHS acquisitions
above the simplified acquisition
threshold (as defined by section 4 of the
Office of Federal Procurement Policy
Act (41 U.S.C. 403) (currently
$100,000)), unless DHS determines that
such requirements are not feasible or
practicable. The authority to determine
whether or not the subcontracting
requirements are not feasible or
practicable rests one level above the
contracting officer. This determination
may be made on the basis of analysis of
information provided by an offeror
seeking a DHS contract or the
contracting officer may prepare a
recommended Determination & Finding
for review and approval by the deciding
official.
Contracts to be covered by the
proposed regulation are those awarded
in response to or recovery from: (1) A
major disaster or emergency declared by
the President under Title IV or Title V
of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, as
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amended (42 U.S.C. 5121–5207) (see
https://www.fema.gov/news/
disasters.fema#sev2 for a list of
declarations); (2) An uncontrolled fire or
fire complex, threatening such
destruction as would constitute a major
disaster, and for which the Federal
Emergency Management Agency has
approved a fire management assistance
declaration in accordance with
regulatory criteria at 44 CFR 204.21 (see
https://www.fema.gov/news/
disasters.fema#sev2 for a list of
declarations); or (3) An incident for
which the National Operations Center
(NOC), through the National Response
Coordination Center (NRCC),
coordinates the activation of the
appropriate Emergency Support
Functions and the Secretary of
Homeland Security has designated a
Federal Resource Coordinator (FRC) to
manage Federal resource support. Each
of these three types of declarations is
discussed below.
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Stafford Act Major Disaster or
Emergency Declaration
The Robert T. Stafford Disaster Relief
and Emergency Assistance Act, 42
U.S.C. 5121 through 5207 (The Stafford
Act), and its implementing regulations
at 44 CFR part 206, set forth a process
for a Governor to request the President
to declare a major disaster or
emergency. Key points of the process are
set forth below:
• If an event is beyond the combined
response capabilities of the State and
affected local governments; and
• If, based on the findings of a joint
Federal-State-local Preliminary Damage
Assessment (PDA), the damage is of
sufficient severity and magnitude to
warrant assistance under the Stafford
Act. In a particularly fast-moving or
clearly devastating disaster, there may
be an expedited declaration, and the
PDA may be deferred until after the
declaration.
• The President may direct
emergency assistance without a
Governor’s request if an incident occurs
that involves a subject area that is
exclusively or preeminently the
responsibility of the United States. The
President will consult the Governor of
any affected State, if practicable.
• FEMA may provide accelerated
Federal assistance and support where
necessary to save lives, prevent human
suffering, or mitigate severe damage,
even in the absence of a specific request.
(The Governor of the affected State will
be consulted if practicable, but this
consultation shall not delay or impede
the provision of such rapid assistance.)
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Fire Management Assistance
Declarations
A request for a fire management
assistance declaration is made by the
Governor of a State to FEMA while a fire
is burning uncontrolled. FEMA
develops a Regional summary and
approves or denies the State’s request
based on:
• The conditions that existed at the
time of the State’s request;
• Whether or not the fire or fire
complex threatens such destruction as
would constitute a major disaster.
There are four criteria FEMA uses to
evaluate the threat posed by a fire or fire
complex:
• Threat to lives and improved
property, including threats to critical
facilities/infrastructure, and critical
watershed areas;
• Availability of State and local
firefighting resources;
• High fire danger conditions, as
indicated by nationally accepted indices
such as the National Fire Danger Ratings
System; and
• Potential major economic impact.
After rendering a determination,
FEMA notifies the State.
Designation of Federal Resource
Coordinator in Non-Stafford Act
Situations
The Department of Homeland
Security (DHS) sometimes takes action
to support a Federal department or
agency that has requested DHS
assistance in handling a disaster that
falls under the requesting department or
agency’s jurisdiction. Key operational
units that may be activated include the
National Response Coordination Center
(NRCC), Regional Response
Coordination Center (RRCC), and Joint
Field Office (JFO).
Federal departments and agencies
routinely manage the response to
incidents under their statutory or
executive authority that do not require
the assistance of other Federal agencies.
When a Federal entity with primary
responsibility and authority for
handling an incident requires
assistance, that agency may request DHS
coordination of Federal multiagency
assistance. In such cases, DHS
coordinates assistance using the
procedures and structures within the
National Response Framework.
Generally, the requesting agency funds
the participation of other Federal
departments and agencies in accordance
with provisions of the Economy Act
unless other pertinent authorities exist.
To initiate Federal-to-Federal support,
the requesting agency submits a request
for assistance to the DHS Executive
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Secretary via the National Operations
Center (NOC). Requests include a
summary of the situation, types and
amount of resources needed, financial
information, and any other appropriate
details.
Upon approval of the request, the
Secretary of Homeland Security issues
an operations order to the NOC. The
NOC, through the NRCC, coordinates
the activation of the appropriate
Emergency Support Functions. The
Secretary of Homeland Security
designates a Federal Resource
Coordinator (FRC) to manage Federal
resource support. In circumstances
requiring extraordinary coordination,
the Secretary may appoint a Principal
Federal Official to serve as his or her
representative in the field.
The requesting agency designates a
senior official to work in coordination
with the FRC as part of the Unified
Coordination Group to identify and
define specific support requirements.
The requesting agency also provides
comptrollers to the NRCC, RRCC, and
JFO, as appropriate, to oversee financial
management activities. An RRCC may
be fully or partially activated to
facilitate the deployment of resources
until a JFO is established. Facilities,
such as mobilization centers, may be
established to accommodate personnel,
equipment, and supplies. Federal
agencies provide resources under
interagency reimbursable agreements or
their own authorities.
Although the Department considered
establishment of separate disaster
declaration standards applicable only to
section 692, it was determined not to be
feasible or practicable. Declaration of a
disaster under such separate 692
standards would likely confuse the
public in the circumstance where the
President or other recognized officials
did not make a declaration for the same
incident under the Stafford Act or other
pre-existing authority.
The limitations proposed for this
amendment to the HSAR are in addition
to, and do not replace, the Federal
Acquisition Regulation (FAR)
limitations on pass-through charges at
FAR 15.408(n).
IV. Regulatory Requirements
A. Executive Order 12866 (Regulatory
Planning and Review)
This proposed rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866. The Office of
Management and Budget has not
reviewed it under that Order. This
proposed rule is not a major rule under
5 U.S.C. 804.
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B. Small Entities
Under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601–612), we have
considered whether this proposed rule
would have a significant economic
impact on a substantial number of small
entities. The term ‘‘small entities’’
comprises small businesses, not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. This
rule does not duplicate, overlap, or
conflict with other federal rules.
We do not expect this proposed rule
to have a significant economic impact
on a substantial number of small entities
within the meaning of the RFA because
the rule is limited to cost
reimbursement acquisitions in support
of response to or recovery from declared
disasters. During FY 2008, although
there were 141 declared disasters, the
Federal Procurement Data System
(FPDS) indicates that only 73 cost-type
contract actions were awarded by DHS
in response to declared disasters. Only
31 separate contractors received these
awards with 10 of these being small
entities. We reviewed the NAICS (North
American Industry Classification
System) codes for these 10 small entities
and found these small entities are not
concentrated in any one industry and
represent a relatively diverse cross
section of the economy. For example,
these small entities operate within
NAICS code 541611 ‘‘Administrative
Management and General Management
Consulting Services,’’ NAICS code
721211 ‘‘RV (Recreational Vehicle) Parks
and Campgrounds,’’ NAICS code 423210
‘‘Furniture Merchant Wholesalers,’’ and
NAICS code 221122 ‘‘Electric Power
Distribution.’’ The number of actions
and the number of impacted contractors
are very small proportions of the
contracts awarded by the federal
government and of the number of
federal contractors. It is not anticipated
that the rule would significantly affect
the total number of cost reimbursement
acquisitions awarded to small entities.
When considering the economic
impact of rulemakings, the RFA requires
consideration of only the direct costs of
a regulation on small entities that are
required to comply with the regulation.
Because the requirements of the clause
promulgated by this rule includes
requirements only for prime contractors,
we believe the primary direct cost of
this rule is the proposed requirement for
submittal of information to DHS
regarding the extent of subcontracting
that is anticipated under a prime
contract. We acknowledge that the
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limitation on subcontracting imposed by
Section 692 of PKEMRA could have a
distributional effect of shifting some of
the work from subcontractors to prime
contractors. However, distributional
impacts of a rule across the economy are
not considered an ‘‘economic impact’’
for the purposes of the RFA. For these
reasons, DHS certifies under 5 U.S.C.
605(b) that this proposed rule will not
have a significant economic impact on
a substantial number of small entities.
DHS invites comments from small
entities and other interested parties
concerning the affected HSAR Parts
3015, 3016 and 3052. Such comments
should be submitted separately and
should cite 5 U.S.C. 601, et seq. (HSAR
Case 2009–005). Commenters should
note that section 692 of PKEMRA was
explicit in describing what types of
contracts are within the scope of this
rule and the maximum amount of
subcontracting that would be allowed in
these circumstances once this rule
becomes effective. Consequently, there
are no alternatives to the requirements
of this rule that accomplish the stated
objectives of section 692 of PKEMRA.
C. Collection of Information
The Paperwork Reduction Act (Pub.
L. 104–13) applies to this proposed rule
because the proposed rule contains
information collection requirements.
Accordingly, the Department will
submit a change request reflecting the
amended estimate for the affected
burdens concerning this proposed rule
to the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
Annual Reporting Burden:
Public reporting burden for this
collection of information is estimated to
average 4.20 hours per response,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
The annual reporting burden is
estimated as follows:
Respondents: 219.
Responses per respondent: 1.67.
Total annual responses: 365.
Preparation hours per response: 4.2.
Total response burden hours: 1,533.
Request for Comments Regarding
Paperwork Burden
Submit comments, including
suggestions for reducing this burden,
not later than August 9, 2010. See
ADDRESSES above for information on
how to submit comments. If you submit
comments by mail, please submit them
in an unbound format, no larger than
81⁄2; by 11 inches, suitable for copying
and electronic filing. You may submit
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comments either by mail or via the
Internet as identified in the ADDRESSES
section above; but to avoid duplication
DHS requests that you submit comments
and materials by only one method. If
you would like DHS to acknowledge
receipt of comments submitted by mail,
please enclose a self-addressed, stamped
postcard or envelope. DHS will consider
all comments and material received
during the comment period. We may
change this proposed rule in view of
comments submitted. Public comments
are particularly invited on: Whether this
collection of information is necessary
for the proper performance of functions
of the HSAR, and will have practical
utility; whether our estimate of the
public burden of this collection of
information is accurate, and based on
valid assumptions and methodology;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways in which we can
minimize the burden of the collection of
information on those who are to
respond, through the use of appropriate
technological collection techniques or
other forms of information technology.
Requester may obtain a copy of the
justification from the Department of
Homeland Security, Office of the Chief
Procurement Officer, Acquisition Policy
and Legislation Branch, Attn: Jeremy
Olson, 245 Murray Drive, Bldg. 410
(RDS), Washington, DC 20528. Please
cite OMB Control Numbers 1600–0005,
Offeror submissions and 1600–0003,
Contractor submissions, HSAR Case
2009–005, Limitations on
Subcontracting in Emergency
Acquisitions, in all correspondence.
List of Subjects in 48 CFR Parts 3015,
3016, and 3052
Government procurement.
Richard K. Gunderson,
Acting Chief Procurement Officer,
Department of Homeland Security.
Accordingly, DHS proposes to amend
(HSAR) 48 CFR parts 3015, 3016 and
3052 as follows:
1. The authority citation for 48 CFR
parts 3015, 3016 and 3052 is revised to
read as follows:
Authority: 5 U.S.C. 301–302, 41 U.S.C.
418b (a) and (b), 41 U.S.C. 414, 48 CFR part
1, subpart 1.3, and DHS Delegation Number
0700.
PART 3015—CONTRACTING BY
NEGOTIATION
2. Add subpart 3015.4 consisting of
section 3015.404–3 to read as follows:
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Subpart 3015.4—Contract Pricing
3015.404–3 Subcontracting pricing
considerations.
(d) For proposal submissions subject
to limitations on subcontracting in
accordance with (HSAR) 48 CFR
3016.370, Limitations on subcontracting
in emergency acquisitions, the
contracting officer shall require offerors
to submit sufficient evidence to permit
a determination that the offeror will or
will not award subcontracts that exceed
65 percent of the cost (excluding
indirect costs and fee) of the contract or
the cost of any individual task or
delivery order in accordance with
(HSAR) 48 CFR 3016.370 and 3052.216–
75.
PART 3016—TYPES OF CONTRACTS
3. Add subpart 3016.3 consisting of
sections 3016.307 and 3016.370 to read
as follows:
Subpart 3016.3—Cost-Reimbursement
Contracts
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3016.307 Contract clauses and solicitation
provisions.
(a) The contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.216–
75, Limitations on Subcontracting in
Emergency Acquisitions, in
solicitations, contracts, task orders, and
delivery orders that are cost
reimbursement and exceed the
simplified acquisition threshold if the
action is entered into to facilitate
response to or recovery from:
(1) A major disaster or emergency
declared by the President under Title IV
or Title V of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended (42 U.S.C.
5121–5207) (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations);
(2) An uncontrolled fire or fire
complex, threatening such destruction
as would constitute a major disaster,
and for which the Federal Emergency
Management Agency has approved a fire
management assistance declaration in
accordance with regulatory criteria at 44
CFR 204.21 (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations); or
(3) An incident for which the National
Operations Center (NOC), through the
National Response Coordination Center
(NRCC), coordinates the activation of
the appropriate Emergency Support
Functions and the Secretary of
Homeland Security has designated a
Federal Resource Coordinator (FRC) to
manage Federal resource support.
(b) The contracting officer shall insert
the provision at (HSAR) 48 CFR
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3052.216–76, Proposal Information on
Limitations on Subcontracting in
Emergency Acquisitions, in solicitations
for cost reimbursement contracts, task
orders, and delivery orders expected to
exceed the simplified acquisition
threshold if the action will be entered
into to facilitate response to or recovery
from:
(1) A major disaster or emergency
declared by the President under Title IV
or Title V of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended (42 U.S.C.
5121–5207) (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations);
(2) An uncontrolled fire or fire
complex, threatening such destruction
as would constitute a major disaster,
and for which the Federal Emergency
Management Agency has approved a fire
management assistance declaration in
accordance with regulatory criteria at 44
CFR 204.21 (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations); or
(3) An incident for which the National
Operations Center (NOC), through the
National Response Coordination Center
(NRCC), coordinates the activation of
the appropriate Emergency Support
Functions and the Secretary of
Homeland Security has designated a
Federal Resource Coordinator (FRC) to
manage Federal resource support.
3016.370 Limitations on subcontracting in
emergency acquisitions.
(a) A prime contractor under a cost
reimbursement contract or a task or
delivery order shall not subcontract
more than 65 percent of the cost
(exclusive of indirect costs and fee) of
the action except as provided in
paragraph (b) of this subsection, if the
dollar value of the action is above the
simplified acquisition threshold and if
the action is entered into to facilitate
response to or recovery from:
(1) A major disaster or emergency
declared by the President under Title IV
or Title V of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended (42 U.S.C.
5121–5207) (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations);
(2) An uncontrolled fire or fire
complex, threatening such destruction
as would constitute a major disaster,
and for which the Federal Emergency
Management Agency has approved a fire
management assistance declaration in
accordance with regulatory criteria at 44
CFR 204.21 (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations); or
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(3) An incident for which the National
Operations Center (NOC), through the
National Response Coordination Center
(NRCC), coordinates the activation of
the appropriate Emergency Support
Functions and the Secretary of
Homeland Security has designated a
Federal Resource Coordinator (FRC) to
manage Federal resource support.
(b) The prohibition on subcontracting
in paragraph (a) of this subsection does
not apply if a determination is made
that it is not feasible or practicable to
apply it to a contract action or class of
contract actions. The contracting officer
shall prepare this determination and
findings (D&F) using the format found
in 48 CFR 3001.704. Review and
approval of the D&F shall be one-level
above the contracting officer unless a
higher authority is established by the
HCA.
(c) For purposes of establishing the
percent of cost of work of the contract
or task or deliver order, see 48 CFR
3052.216–75.
PART 3052—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Add sections 3052.216–75 and
3052.216–76 to subpart 3052.2 to read
as follows:
3052.216–75 Limitations on
subcontracting in emergency acquisitions.
As prescribed in (HSAR) 48 CFR
3016.307(a) insert the following clause
in solicitations, orders and contracts:
LIMITATIONS ON SUBCONTRACTING IN
EMERGENCY ACQUISITIONS
(TBD 2010)
Section 692 of the Department of
Homeland Security Appropriations Act,
Fiscal Year 2007, limits the use of
subcontractors by prime contractors on
certain cost reimbursement acquisitions
entered into with the Department of
Homeland Security and its Components.
(a) This acquisition is a cost
reimbursement action subject to the
limitations of section 692 for a requirement
to facilitate the response to or recovery from:
(1) A major disaster or emergency declared
by the President under Title IV or Title V of
the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42
U.S.C. 5121–5207) (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations);
(2) An uncontrolled fire or fire complex,
threatening such destruction as would
constitute a major disaster, and for which the
Federal Emergency Management Agency has
approved a fire management assistance
declaration in accordance with regulatory
criteria at 44 CFR 204.21 (see https://
www.fema.gov/news/disasters.fema#sev2 for
a list of declarations); or
(3) An incident for which the National
Operations Center (NOC), through the
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National Response Coordination Center
(NRCC), coordinates the activation of the
appropriate Emergency Support Functions
and the Secretary of Homeland Security has
designated a Federal Resource Coordinator
(FRC) to manage Federal resource support.
(b) The Contractor agrees that in
performance of the contract, no more than 65
percent of the contract cost, excluding
indirect costs incurred by the Contractor and
fee paid to the Contractor, will be
subcontracted. If this clause is included only
in an individual task or delivery order or is
made applicable only to certain task or
delivery orders, this limit applies only to
such task or delivery order(s) and not to the
entire contract.
(c) For purposes of this clause, the
percentage of cost shall be calculated by
determining all costs exclusive of indirect
costs and fee being incurred by the
Contractor, and comparing this value to the
total dollars the Contractor allocates to
subcontractors.
(d) The Contractor shall notify the
Contracting Officer in writing annually, on
the anniversary date of contract award, the
total cost (less indirect costs and fee) it has
incurred for the previous 12-month period
and the total subcontracted cost during the
same period. If the percentage of costs
incurred by its subcontractors exceeds 65
percent, the Contractor’s notification shall
include a description of the reason(s) the
percentage of subcontracted cost exceeded 65
percent and a plan for becoming compliant
with the requirements of this clause.
(e) If the Contractor expects at any time
that compliance with these limits is not
practicable or feasible, it shall submit a
written request for waiver to the Contracting
Officer with supporting rationale.
(f) The requirements of this clause remain
in effect unless the Contracting Officer
provides notification to the Contractor that
compliance with these limits has been
excused in accordance with (HSAR) 48 CFR
3016.370(b), or until the Contracting Officer
provides notification that the requirements of
this clause are no longer in force.
(g) In addition to any other remedy
available to the government, the Contractor’s
ability to remain complaint with the terms of
this clause may be included in past
performance evaluations performed by
Government personnel and considered by the
Government when making future award
decisions and failure to comply with its
terms may result in disallowance of certain
incurred costs.
(h) Nothing in this clause shall be
construed as superseding or nullifying other
terms or conditions of the contract including
those associated with socioeconomic goals
and consent to subcontract requirements.
(End of Clause)
3052.216–76 Proposal information on
limitations on subcontracting in emergency
acquisitions.
As prescribed in (HSAR) 48 CFR
3016.307(b) insert the following
provision in solicitations:
VerDate Mar<15>2010
14:46 Jun 08, 2010
Jkt 220001
PROPOSAL INFORMATION ON
LIMITATIONS ON SUBCONTRACTING IN
EMERGENCY ACQUISITIONS
(TBD 2010)
(a) The contract or order that is expected
to be awarded based on this solicitation will
include the clause at (HSAR) 48 CFR
3052.216–75, in which the Contractor agrees
that in performance of that contract or order,
no more than 65 percent of the cost,
excluding indirect costs and fee, will be
subcontracted.
(b) The proposal shall include acceptable
evidence of the offeror’s ability to satisfy this
requirement. For purposes of this evidence,
the percentage of cost shall be calculated by
determining all costs, exclusive of indirect
costs and fee, being proposed by the offeror
and comparing this value to the total cost the
offeror plans to subcontract. Upon contract
award and during contract performance, this
percentage of costs shall be calculated
similarly based on costs incurred by the
Contractor and amounts awarded to its
subcontractors.
(c) If the offeror expects that compliance
with these limits is not practicable or
feasible, it shall include a written request for
waiver in its offer along with supporting
rationale. Offerors are hereby notified that an
offer conditioned on acceptance of the waiver
may not be considered for award, at the
discretion of the Contracting Officer.
(End of Provision)
[FR Doc. 2010–13801 Filed 6–8–10; 8:45 am]
BILLING CODE 4910–9B–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R2–ES–2009–0077;
92220–1113–0000; ABC Code: C3]
RIN 1018–AW63
Endangered and Threatened Wildlife
and Plants; Establishment of a
Nonessential Experimental Population
of Sonoran Pronghorn in
Southwestern Arizona
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule: reopening of the
public comment period.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the public comment period
on our February 4, 2010, proposed rule
to reestablish the Sonoran pronghorn
(Antilocapra americana sonoriensis) in
southwestern Arizona. We proposed to
reestablish the Sonoran pronghorn
under section 10(j) of the Endangered
Species Act of 1973, as amended (Act),
and to classify that reestablished
population as a nonessential
experimental population (NEP). The
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
32727
proposed rule provided a plan for
establishing the NEP and provided for
allowable legal incidental taking of
Sonoran pronghorn within the defined
NEP area. A draft environmental
assessment (EA) on this proposed action
was also made available for comment.
This action will provide all interested
parties with an additional opportunity
to submit comments on the proposed
rule to reestablish Sonoran pronghorn
into southwest Arizona and its
accompanying draft EA. Information
previously submitted need not be
resubmitted as it has already been
incorporated into the public record and
will be fully considered in the final rule.
DATES: To allow us adequate time to
consider and incorporate submitted
information into our review, comments
and information must be submitted on
or before July 9, 2010.
ADDRESSES: You may submit comments
by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R2–
ES–2009–0077; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
FOR FURTHER INFORMATION CONTACT:
Curtis McCasland, Refuge Manager,
Cabeza Prieta National Wildlife Refuge,
1611 North Second Avenue, Ajo, AZ
85321; by telephone (520–387–6483) or
by facsimile (520–387–5359). If you use
a telecommunications device for the
deaf (TDD), please call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
On February 4, 2010, we published a
proposed rule to reestablish the Sonoran
pronghorn, a federally listed endangered
mammal, into its historical habitat in
King Valley, Kofa National Wildlife
Refuge (Kofa NWR), in Yuma County,
and to the Barry M. Goldwater Range—
East (BMGR–E), in Maricopa County, in
southwestern Arizona (75 FR 5732). At
this time, we are reopening the public
comment period for the proposed NEP
and draft EA for a period of 30 days. For
more information on the biology,
habitat, and range of the Sonoran
pronghorn, please refer to our previous
proposed rule published in the Federal
Register on February 4, 2010 (75 FR
5732).
Public Comments
We, the U.S. Fish and Wildlife
Service (Service), published a proposed
E:\FR\FM\09JNP1.SGM
09JNP1
]]>Agencies
[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Proposed Rules]
[Pages 32723-32727]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13801]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
48 CFR Parts 3015, 3016, and 3052
[Docket No. DHS-2010-0045]
RIN 1601-AA43
Revision of Department of Homeland Security Acquisition
Regulation; Limitations on Subcontracting in Emergency Acquisitions
(HSAR Case 2009-005)
AGENCY: Office of the Chief Procurement Officer, DHS.
ACTION: Proposed rule with requests for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is proposing to
amend its Homeland Security Acquisition Regulation (HSAR) to implement
a statutory requirement limiting the use of subcontractors on cost-
reimbursement type contracts entered into by the Department to
facilitate the response to or recovery from a natural disaster or act
of terrorism or other man-made disaster.
DATES: Comments and related material submitted electronically must be
submitted to the Federal eRulemaking Portal https://www.regulations.gov.
on or before August 9, 2010. Comments and related material submitted by
mail must reach the Department of Homeland Security, Office of the
Chief Procurement Officer, Acquisition Policy and Legislation Branch at
the address shown below on or before August 9, 2010 to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments identified by DHS docket number DHS-
2010-0045, using any one of the following methods:
(1) Via the internet at Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments
and use docket number DHS-2010-0045.
(2) By mail to the Department of Homeland Security, Office of the
Chief Procurement Officer, Acquisition Policy and Legislation Branch,
Attn: Jeremy Olson, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC
20528.
FOR FURTHER INFORMATION CONTACT: Jeremy Olson, Department of Homeland
Security, Office of the Chief Procurement Officer, Acquisition Policy
and Legislation Branch, (202) 447-5197.
SUPPLEMENTARY INFORMATION:
I. Request for Comments
II. Background
III. Discussion of Proposed Rule
IV. Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review)
B. Small Entities
C. Collection of Information
I. Request for Comments
Interested persons are invited to participate in this rulemaking by
submitting comments and related materials. Comments and related
materials should be organized by HSAR Part, and indicate the specific
section that is being commented on. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. See ADDRESSES above for information on
how to submit comments. If you submit comments by mail, please submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. You may submit comments either by
mail or via the internet as identified in the ADDRESSES section above;
but to avoid duplication DHS requests that you submit comments and
materials by only one method. If you would like DHS to acknowledge
receipt of comments submitted by mail, please enclose a self-addressed,
stamped postcard or envelope. DHS will consider all comments and
material received during the comment period.
Viewing comments and documents: To view comments and read
background documents related to this rulemaking, go to https://www.regulations.gov, which contains relevant instructions under the
FAQs tab on the home page.
II. Background
Section 692 of the Post-Katrina Emergency Management Reform Act of
2006 (PKEMRA), Public Law 109-295, 120 Stat. 1394, 1409 (Oct. 4, 2006),
establishes a limitation on subcontracting for cost-reimbursement type
contracts above the simplified acquisition threshold entered into to
facilitate the response to or recovery from a natural disaster or act
of terrorism or other man-made disaster. Congress enacted this
limitation based on findings that excessive tiering of subcontractors
under disaster recovery cost-reimbursement type contracts leads to
inflated overhead charges and poor prime contractor oversight over
subcontractor work. In order to implement the statutory requirement,
DHS proposes to amend the Homeland Security Acquisition Regulation
(HSAR) to add implementing policy.
III. Discussion of Proposed Rule
The proposed rule would revise 48 CFR part 3015, Contracting by
Negotiation; part 3016, Types of Contracts; and part 3052, Solicitation
Provisions and Contract Clauses, to limit the use of subcontractors by
prime contractors on certain DHS acquisitions above the simplified
acquisition threshold (as defined by section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403) (currently $100,000)), unless
DHS determines that such requirements are not feasible or practicable.
The authority to determine whether or not the subcontracting
requirements are not feasible or practicable rests one level above the
contracting officer. This determination may be made on the basis of
analysis of information provided by an offeror seeking a DHS contract
or the contracting officer may prepare a recommended Determination &
Finding for review and approval by the deciding official.
Contracts to be covered by the proposed regulation are those
awarded in response to or recovery from: (1) A major disaster or
emergency declared by the President under Title IV or Title V of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act, as
[[Page 32724]]
amended (42 U.S.C. 5121-5207) (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations); (2) An uncontrolled
fire or fire complex, threatening such destruction as would constitute
a major disaster, and for which the Federal Emergency Management Agency
has approved a fire management assistance declaration in accordance
with regulatory criteria at 44 CFR 204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations); or (3) An
incident for which the National Operations Center (NOC), through the
National Response Coordination Center (NRCC), coordinates the
activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support. Each of these
three types of declarations is discussed below.
Stafford Act Major Disaster or Emergency Declaration
The Robert T. Stafford Disaster Relief and Emergency Assistance
Act, 42 U.S.C. 5121 through 5207 (The Stafford Act), and its
implementing regulations at 44 CFR part 206, set forth a process for a
Governor to request the President to declare a major disaster or
emergency. Key points of the process are set forth below:
If an event is beyond the combined response capabilities
of the State and affected local governments; and
If, based on the findings of a joint Federal-State-local
Preliminary Damage Assessment (PDA), the damage is of sufficient
severity and magnitude to warrant assistance under the Stafford Act. In
a particularly fast-moving or clearly devastating disaster, there may
be an expedited declaration, and the PDA may be deferred until after
the declaration.
The President may direct emergency assistance without a
Governor's request if an incident occurs that involves a subject area
that is exclusively or preeminently the responsibility of the United
States. The President will consult the Governor of any affected State,
if practicable.
FEMA may provide accelerated Federal assistance and
support where necessary to save lives, prevent human suffering, or
mitigate severe damage, even in the absence of a specific request. (The
Governor of the affected State will be consulted if practicable, but
this consultation shall not delay or impede the provision of such rapid
assistance.)
Fire Management Assistance Declarations
A request for a fire management assistance declaration is made by
the Governor of a State to FEMA while a fire is burning uncontrolled.
FEMA develops a Regional summary and approves or denies the State's
request based on:
The conditions that existed at the time of the State's
request;
Whether or not the fire or fire complex threatens such
destruction as would constitute a major disaster.
There are four criteria FEMA uses to evaluate the threat posed by a
fire or fire complex:
Threat to lives and improved property, including threats
to critical facilities/infrastructure, and critical watershed areas;
Availability of State and local firefighting resources;
High fire danger conditions, as indicated by nationally
accepted indices such as the National Fire Danger Ratings System; and
Potential major economic impact.
After rendering a determination, FEMA notifies the State.
Designation of Federal Resource Coordinator in Non-Stafford Act
Situations
The Department of Homeland Security (DHS) sometimes takes action to
support a Federal department or agency that has requested DHS
assistance in handling a disaster that falls under the requesting
department or agency's jurisdiction. Key operational units that may be
activated include the National Response Coordination Center (NRCC),
Regional Response Coordination Center (RRCC), and Joint Field Office
(JFO).
Federal departments and agencies routinely manage the response to
incidents under their statutory or executive authority that do not
require the assistance of other Federal agencies. When a Federal entity
with primary responsibility and authority for handling an incident
requires assistance, that agency may request DHS coordination of
Federal multiagency assistance. In such cases, DHS coordinates
assistance using the procedures and structures within the National
Response Framework. Generally, the requesting agency funds the
participation of other Federal departments and agencies in accordance
with provisions of the Economy Act unless other pertinent authorities
exist. To initiate Federal-to-Federal support, the requesting agency
submits a request for assistance to the DHS Executive Secretary via the
National Operations Center (NOC). Requests include a summary of the
situation, types and amount of resources needed, financial information,
and any other appropriate details.
Upon approval of the request, the Secretary of Homeland Security
issues an operations order to the NOC. The NOC, through the NRCC,
coordinates the activation of the appropriate Emergency Support
Functions. The Secretary of Homeland Security designates a Federal
Resource Coordinator (FRC) to manage Federal resource support. In
circumstances requiring extraordinary coordination, the Secretary may
appoint a Principal Federal Official to serve as his or her
representative in the field.
The requesting agency designates a senior official to work in
coordination with the FRC as part of the Unified Coordination Group to
identify and define specific support requirements. The requesting
agency also provides comptrollers to the NRCC, RRCC, and JFO, as
appropriate, to oversee financial management activities. An RRCC may be
fully or partially activated to facilitate the deployment of resources
until a JFO is established. Facilities, such as mobilization centers,
may be established to accommodate personnel, equipment, and supplies.
Federal agencies provide resources under interagency reimbursable
agreements or their own authorities.
Although the Department considered establishment of separate
disaster declaration standards applicable only to section 692, it was
determined not to be feasible or practicable. Declaration of a disaster
under such separate 692 standards would likely confuse the public in
the circumstance where the President or other recognized officials did
not make a declaration for the same incident under the Stafford Act or
other pre-existing authority.
The limitations proposed for this amendment to the HSAR are in
addition to, and do not replace, the Federal Acquisition Regulation
(FAR) limitations on pass-through charges at FAR 15.408(n).
IV. Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review)
This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866. The Office of Management and
Budget has not reviewed it under that Order. This proposed rule is not
a major rule under 5 U.S.C. 804.
[[Page 32725]]
B. Small Entities
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), we
have considered whether this proposed rule would have a significant
economic impact on a substantial number of small entities. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. This rule does not duplicate, overlap,
or conflict with other federal rules.
We do not expect this proposed rule to have a significant economic
impact on a substantial number of small entities within the meaning of
the RFA because the rule is limited to cost reimbursement acquisitions
in support of response to or recovery from declared disasters. During
FY 2008, although there were 141 declared disasters, the Federal
Procurement Data System (FPDS) indicates that only 73 cost-type
contract actions were awarded by DHS in response to declared disasters.
Only 31 separate contractors received these awards with 10 of these
being small entities. We reviewed the NAICS (North American Industry
Classification System) codes for these 10 small entities and found
these small entities are not concentrated in any one industry and
represent a relatively diverse cross section of the economy. For
example, these small entities operate within NAICS code 541611
``Administrative Management and General Management Consulting
Services,'' NAICS code 721211 ``RV (Recreational Vehicle) Parks and
Campgrounds,'' NAICS code 423210 ``Furniture Merchant Wholesalers,''
and NAICS code 221122 ``Electric Power Distribution.'' The number of
actions and the number of impacted contractors are very small
proportions of the contracts awarded by the federal government and of
the number of federal contractors. It is not anticipated that the rule
would significantly affect the total number of cost reimbursement
acquisitions awarded to small entities.
When considering the economic impact of rulemakings, the RFA
requires consideration of only the direct costs of a regulation on
small entities that are required to comply with the regulation. Because
the requirements of the clause promulgated by this rule includes
requirements only for prime contractors, we believe the primary direct
cost of this rule is the proposed requirement for submittal of
information to DHS regarding the extent of subcontracting that is
anticipated under a prime contract. We acknowledge that the limitation
on subcontracting imposed by Section 692 of PKEMRA could have a
distributional effect of shifting some of the work from subcontractors
to prime contractors. However, distributional impacts of a rule across
the economy are not considered an ``economic impact'' for the purposes
of the RFA. For these reasons, DHS certifies under 5 U.S.C. 605(b) that
this proposed rule will not have a significant economic impact on a
substantial number of small entities. DHS invites comments from small
entities and other interested parties concerning the affected HSAR
Parts 3015, 3016 and 3052. Such comments should be submitted separately
and should cite 5 U.S.C. 601, et seq. (HSAR Case 2009-005). Commenters
should note that section 692 of PKEMRA was explicit in describing what
types of contracts are within the scope of this rule and the maximum
amount of subcontracting that would be allowed in these circumstances
once this rule becomes effective. Consequently, there are no
alternatives to the requirements of this rule that accomplish the
stated objectives of section 692 of PKEMRA.
C. Collection of Information
The Paperwork Reduction Act (Pub. L. 104-13) applies to this
proposed rule because the proposed rule contains information collection
requirements. Accordingly, the Department will submit a change request
reflecting the amended estimate for the affected burdens concerning
this proposed rule to the Office of Management and Budget under 44
U.S.C. 3501, et seq.
Annual Reporting Burden:
Public reporting burden for this collection of information is
estimated to average 4.20 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 219.
Responses per respondent: 1.67.
Total annual responses: 365.
Preparation hours per response: 4.2.
Total response burden hours: 1,533.
Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than August 9, 2010. See ADDRESSES above for information on
how to submit comments. If you submit comments by mail, please submit
them in an unbound format, no larger than 8\1/2\; by 11 inches,
suitable for copying and electronic filing. You may submit comments
either by mail or via the Internet as identified in the ADDRESSES
section above; but to avoid duplication DHS requests that you submit
comments and materials by only one method. If you would like DHS to
acknowledge receipt of comments submitted by mail, please enclose a
self-addressed, stamped postcard or envelope. DHS will consider all
comments and material received during the comment period. We may change
this proposed rule in view of comments submitted. Public comments are
particularly invited on: Whether this collection of information is
necessary for the proper performance of functions of the HSAR, and will
have practical utility; whether our estimate of the public burden of
this collection of information is accurate, and based on valid
assumptions and methodology; ways to enhance the quality, utility, and
clarity of the information to be collected; and ways in which we can
minimize the burden of the collection of information on those who are
to respond, through the use of appropriate technological collection
techniques or other forms of information technology.
Requester may obtain a copy of the justification from the
Department of Homeland Security, Office of the Chief Procurement
Officer, Acquisition Policy and Legislation Branch, Attn: Jeremy Olson,
245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528. Please cite
OMB Control Numbers 1600-0005, Offeror submissions and 1600-0003,
Contractor submissions, HSAR Case 2009-005, Limitations on
Subcontracting in Emergency Acquisitions, in all correspondence.
List of Subjects in 48 CFR Parts 3015, 3016, and 3052
Government procurement.
Richard K. Gunderson,
Acting Chief Procurement Officer, Department of Homeland Security.
Accordingly, DHS proposes to amend (HSAR) 48 CFR parts 3015, 3016
and 3052 as follows:
1. The authority citation for 48 CFR parts 3015, 3016 and 3052 is
revised to read as follows:
Authority: 5 U.S.C. 301-302, 41 U.S.C. 418b (a) and (b), 41
U.S.C. 414, 48 CFR part 1, subpart 1.3, and DHS Delegation Number
0700.
PART 3015--CONTRACTING BY NEGOTIATION
2. Add subpart 3015.4 consisting of section 3015.404-3 to read as
follows:
[[Page 32726]]
Subpart 3015.4--Contract Pricing
3015.404-3 Subcontracting pricing considerations.
(d) For proposal submissions subject to limitations on
subcontracting in accordance with (HSAR) 48 CFR 3016.370, Limitations
on subcontracting in emergency acquisitions, the contracting officer
shall require offerors to submit sufficient evidence to permit a
determination that the offeror will or will not award subcontracts that
exceed 65 percent of the cost (excluding indirect costs and fee) of the
contract or the cost of any individual task or delivery order in
accordance with (HSAR) 48 CFR 3016.370 and 3052.216-75.
PART 3016--TYPES OF CONTRACTS
3. Add subpart 3016.3 consisting of sections 3016.307 and 3016.370
to read as follows:
Subpart 3016.3--Cost-Reimbursement Contracts
3016.307 Contract clauses and solicitation provisions.
(a) The contracting officer shall insert the clause at (HSAR) 48
CFR 3052.216-75, Limitations on Subcontracting in Emergency
Acquisitions, in solicitations, contracts, task orders, and delivery
orders that are cost reimbursement and exceed the simplified
acquisition threshold if the action is entered into to facilitate
response to or recovery from:
(1) A major disaster or emergency declared by the President under
Title IV or Title V of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
(2) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44 CFR
204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations); or
(3) An incident for which the National Operations Center (NOC),
through the National Response Coordination Center (NRCC), coordinates
the activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
(b) The contracting officer shall insert the provision at (HSAR) 48
CFR 3052.216-76, Proposal Information on Limitations on Subcontracting
in Emergency Acquisitions, in solicitations for cost reimbursement
contracts, task orders, and delivery orders expected to exceed the
simplified acquisition threshold if the action will be entered into to
facilitate response to or recovery from:
(1) A major disaster or emergency declared by the President under
Title IV or Title V of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
(2) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44 CFR
204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations); or
(3) An incident for which the National Operations Center (NOC),
through the National Response Coordination Center (NRCC), coordinates
the activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
3016.370 Limitations on subcontracting in emergency acquisitions.
(a) A prime contractor under a cost reimbursement contract or a
task or delivery order shall not subcontract more than 65 percent of
the cost (exclusive of indirect costs and fee) of the action except as
provided in paragraph (b) of this subsection, if the dollar value of
the action is above the simplified acquisition threshold and if the
action is entered into to facilitate response to or recovery from:
(1) A major disaster or emergency declared by the President under
Title IV or Title V of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
(2) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44 CFR
204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations); or
(3) An incident for which the National Operations Center (NOC),
through the National Response Coordination Center (NRCC), coordinates
the activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
(b) The prohibition on subcontracting in paragraph (a) of this
subsection does not apply if a determination is made that it is not
feasible or practicable to apply it to a contract action or class of
contract actions. The contracting officer shall prepare this
determination and findings (D&F) using the format found in 48 CFR
3001.704. Review and approval of the D&F shall be one-level above the
contracting officer unless a higher authority is established by the
HCA.
(c) For purposes of establishing the percent of cost of work of the
contract or task or deliver order, see 48 CFR 3052.216-75.
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Add sections 3052.216-75 and 3052.216-76 to subpart 3052.2 to
read as follows:
3052.216-75 Limitations on subcontracting in emergency acquisitions.
As prescribed in (HSAR) 48 CFR 3016.307(a) insert the following
clause in solicitations, orders and contracts:
LIMITATIONS ON SUBCONTRACTING IN EMERGENCY ACQUISITIONS
(TBD 2010)
Section 692 of the Department of Homeland Security
Appropriations Act, Fiscal Year 2007, limits the use of
subcontractors by prime contractors on certain cost reimbursement
acquisitions entered into with the Department of Homeland Security
and its Components.
(a) This acquisition is a cost reimbursement action subject to
the limitations of section 692 for a requirement to facilitate the
response to or recovery from:
(1) A major disaster or emergency declared by the President
under Title IV or Title V of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see
https://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations);
(2) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44
CFR 204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a
list of declarations); or
(3) An incident for which the National Operations Center (NOC),
through the
[[Page 32727]]
National Response Coordination Center (NRCC), coordinates the
activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
(b) The Contractor agrees that in performance of the contract,
no more than 65 percent of the contract cost, excluding indirect
costs incurred by the Contractor and fee paid to the Contractor,
will be subcontracted. If this clause is included only in an
individual task or delivery order or is made applicable only to
certain task or delivery orders, this limit applies only to such
task or delivery order(s) and not to the entire contract.
(c) For purposes of this clause, the percentage of cost shall be
calculated by determining all costs exclusive of indirect costs and
fee being incurred by the Contractor, and comparing this value to
the total dollars the Contractor allocates to subcontractors.
(d) The Contractor shall notify the Contracting Officer in
writing annually, on the anniversary date of contract award, the
total cost (less indirect costs and fee) it has incurred for the
previous 12-month period and the total subcontracted cost during the
same period. If the percentage of costs incurred by its
subcontractors exceeds 65 percent, the Contractor's notification
shall include a description of the reason(s) the percentage of
subcontracted cost exceeded 65 percent and a plan for becoming
compliant with the requirements of this clause.
(e) If the Contractor expects at any time that compliance with
these limits is not practicable or feasible, it shall submit a
written request for waiver to the Contracting Officer with
supporting rationale.
(f) The requirements of this clause remain in effect unless the
Contracting Officer provides notification to the Contractor that
compliance with these limits has been excused in accordance with
(HSAR) 48 CFR 3016.370(b), or until the Contracting Officer provides
notification that the requirements of this clause are no longer in
force.
(g) In addition to any other remedy available to the government,
the Contractor's ability to remain complaint with the terms of this
clause may be included in past performance evaluations performed by
Government personnel and considered by the Government when making
future award decisions and failure to comply with its terms may
result in disallowance of certain incurred costs.
(h) Nothing in this clause shall be construed as superseding or
nullifying other terms or conditions of the contract including those
associated with socioeconomic goals and consent to subcontract
requirements.
(End of Clause)
3052.216-76 Proposal information on limitations on subcontracting in
emergency acquisitions.
As prescribed in (HSAR) 48 CFR 3016.307(b) insert the following
provision in solicitations:
PROPOSAL INFORMATION ON LIMITATIONS ON SUBCONTRACTING IN EMERGENCY
ACQUISITIONS
(TBD 2010)
(a) The contract or order that is expected to be awarded based
on this solicitation will include the clause at (HSAR) 48 CFR
3052.216-75, in which the Contractor agrees that in performance of
that contract or order, no more than 65 percent of the cost,
excluding indirect costs and fee, will be subcontracted.
(b) The proposal shall include acceptable evidence of the
offeror's ability to satisfy this requirement. For purposes of this
evidence, the percentage of cost shall be calculated by determining
all costs, exclusive of indirect costs and fee, being proposed by
the offeror and comparing this value to the total cost the offeror
plans to subcontract. Upon contract award and during contract
performance, this percentage of costs shall be calculated similarly
based on costs incurred by the Contractor and amounts awarded to its
subcontractors.
(c) If the offeror expects that compliance with these limits is
not practicable or feasible, it shall include a written request for
waiver in its offer along with supporting rationale. Offerors are
hereby notified that an offer conditioned on acceptance of the
waiver may not be considered for award, at the discretion of the
Contracting Officer.
(End of Provision)
[FR Doc. 2010-13801 Filed 6-8-10; 8:45 am]
BILLING CODE 4910-9B-P
