Local Contracting Preference, 47802-47805 [2016-17328]
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Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices
Report title: Savings Association
Holding Company Report.
Agency form number: FR H–(b)11.
OMB control number: 7100–0334.
Frequency: Quarterly.
Respondents: Savings and Loan
Holding Companies.
Estimated number of respondents: 15.
Estimated Average Hours per
Response: 2 hours.
Estimated Annual Burden Hours: 120
hours.
General Description of Report: The FR
H–(b)11 collects information on filings
with the Securities and Exchange
Commission (SEC), reports provided by
the nationally recognized statistical
rating organizations and securities
analysts, supplemental information for
select questions from the Quarterly
Savings and Loan Holding Company
Report (FR 2320; OMB No. 7100–0345),
financial statements, and other
materially important events and
exhibits. Respondents are (1)
grandfathered unitary SLHCs whose
assets are primarily commercial and
whose thrifts make up less than 5
percent of its consolidated assets and (2)
SLHCs whose assets are primarily
insurance-related and do not otherwise
submit financial reports with the SEC
pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. The
Federal Reserve uses the FR H–(b)11
data to analyze the overall financial
condition of SLHCs to ensure safe and
sound operations.
Legal Authorization and
Confidentiality: The Board’s Legal
Division has determined that the FR H–
(b)11 is authorized by Section 10 of the
Home Owners’ Loan Act, which
requires SLHCs to file ‘‘such reports as
may be required by the Board’’ and
provides that such reports ‘‘shall
contain such information concerning
the operations of such SLHC and its
subsidiaries as the Board may require’’
(12 U.S.C. 1467a(b)(2)(A)).
The obligation to respond to the FR
H–(b)11 is mandatory. The FR H–(b)11
covers 6 different items. Item 1 consists
of SEC filings made by the SLHC that
are not publicly traded companies and
item 2 consists of reports provided by
nationally recognized statistical rating
organizations and securities analysts on
any company in the SLHC’s
consolidated organization. The Board’s
Legal Division has determined that
neither of these items should raise any
issue of confidentiality.
Item 3 consists of supplemental
information for any questions on the FR
2320 to which the SLHC answered
‘‘yes.’’ The Board’s Legal Division has
determined that supplemental
information in response to a ‘‘yes’’
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answer for the FR 2320’s questions 24,
25, and 26 may be protected from
disclosure under exemption 4 of the
Freedom of Information Act (FOIA),
which covers ‘‘trade secrets and
commercial or financial information
obtained from a person [that is]
privileged or confidential’’ (5 U.S.C.
522(b)(4)). These questions concern any
new or changed pledges of capital stock
of any subsidiary savings association
that secures short-term or long-term
debt or other borrowings of the SLHC;
changes to any class of securities of the
SLHC or any of its subsidiaries that
would negatively impact investors; and
any default of the SLHC or any of its
subsidiaries during the quarter.
Disclosure of this type of information is
likely to cause substantial competitive
harm to the SLHC providing the
information and thus this information
may be protected from disclosure under
FOIA exemption 4 (5 U.S.C. 522(b)(4)).
With regard to the supplemental
information for other FR 2320 questions
that would be provided in item 3 of the
FR H–(b)11, as well as item 4 (Other
Materially Important Events), item 5
(Financial Statements) and item 6
(Exhibits—essentially copies not
previously filed of its charter or bylaws),
the respondent may request confidential
treatment of such information under one
or more of the exemptions in the FOIA.
The most likely case for confidential
treatment will be exemption 4 (5 U.S.C.
522(b)(4)). However, all such requests
for confidential treatment would need to
be reviewed on a case-by-case basis and
in response to a specific request for
disclosure.
Proposed Revisions: The Federal
Reserve proposes to eliminate the
requirement that a publicly-traded
SLHC submit a copy of its filings with
the SEC.
Board of Governors of the Federal Reserve
System, July 14, 2016.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2016–17358 Filed 7–21–16; 8:45 am]
BILLING CODE 6210–01–P
Notice of public availability of
GSA Fiscal Year 2015 Service Contract
Inventories.
ACTION:
In accordance with The Fiscal
Year (FY) 2010 Consolidated
Appropriations Act, GSA is publishing
this notice to advise the public of the
availability of the FY 2015 Service
Contract Inventories.
DATES: July 22, 2016.
FOR FURTHER INFORMATION CONTACT:
Questions regarding the Service
Contract Inventory should be directed to
Mr. James Tsujimoto, Office of
Acquisition Policy, at 202–206–3585, or
james.tsujimoto@gsa.gov.
SUPPLEMENTARY INFORMATION: In
accordance with section 743 of Division
C of the FY 2010 Consolidated
Appropriations Act (Pub. L. 111–117),
GSA is publishing this notice to advise
the public of the availability of the FY
2015 Service Contract Inventories.
These inventories provide information
on service contract actions over $25,000
that were made in FY 2015. The
information is organized by component
to show how contracted resources are
distributed throughout the agency. The
inventory has been developed in
accordance with the guidance issued on
December 19, 2011, by the Office of
Management and Budget’s Office of
Federal Procurement Policy (OFPP).
OFPP’s guidance is available at: https://
www.whitehouse.gov/sites/default/files/
omb/procurement/memo/servicecontract-inventory-guidance. GSA has
posted its inventory and a summary of
the inventory at the following location:
https://www.gsa.gov/gsasci.
SUMMARY:
Jeffrey A. Koses,
Director, Office of Acquisition Policy, Office
of Government-wide Policy.
[FR Doc. 2016–17347 Filed 7–21–16; 8:45 am]
BILLING CODE 6820–61–P
GULF COAST ECOSYSTEM
RESTORATION COUNCIL
[Docket Number: 107222016–1111–04]
Local Contracting Preference
Gulf Coast Ecosystem
Restoration Council.
ACTION: Notice of final policy.
AGENCY:
GENERAL SERVICES
ADMINISTRATION
[Notice–MV–2016–01; Docket No. 2016–
0002; Sequence No. 9]
Public Availability of General Services
Administration Fiscal Year 2015
Service Contract Inventory
General Services
Administration (GSA).
AGENCY:
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The Gulf Coast Ecosystem
Restoration Council (Council) hereby
issues notice of its final policy for
implementing the local contracting
preference requirement of the Resources
and Ecosystems Sustainability, Tourist
Opportunities, and Revived Economies
of the Gulf Coast States Act of 2012
(RESTORE Act).
SUMMARY:
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Federal Register / Vol. 81, No. 141 / Friday, July 22, 2016 / Notices
DATES:
Effective Date: July 22, 2016.
FOR FURTHER INFORMATION CONTACT:
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Mark Bisgeier, General Counsel, via
email at mark.bisgeier@
restorethegulf.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The RESTORE Act, Public Law 112–
141 (July 6, 2012), codified at 33 U.S.C.
1321(t) and note, makes funds available
for the restoration and protection of the
Gulf Coast Region through a new trust
fund in the Treasury of the United
States, known as the Gulf Coast
Restoration Trust Fund (Trust Fund).
The Trust Fund will contain 80 percent
of the administrative and civil penalties
paid after July 6, 2012 under the Federal
Water Pollution Control Act by
responsible parties in connection with
the Deepwater Horizon oil spill. These
funds will be invested and made
available through five components of
the RESTORE Act. On December 14,
2015, the Department of Treasury
(Treasury) issued final regulations (80
FR 77239) applicable to all five
components that generally describe the
responsibilities of the Federal and State
entities that administer RESTORE Act
programs and carry out restoration
activities in the Gulf Coast Region.
Two of the five components, the
Comprehensive Plan Component
(sometimes referred to as the CouncilSelected Restoration Component) and
the Spill Impact Component, are
administered by the Council, an
independent federal entity created by
the RESTORE Act. Under the
Comprehensive Plan Component (33
U.S.C. 1321(t)(2)), the subject of this
policy, 30 percent of the amount in the
Trust Fund will be used to fund the
operations of the Council and to carry
out projects and programs adopted in
the Council’s Comprehensive Plan. An
Initial Comprehensive Plan was adopted
by the Council in August 2013 and is
available at https://
www.restorethegulf.gov/sites/default/
files/Final%20Initial%20
Comprehensive%20Plan.pdf.
Pursuant to the RESTORE Act at 33
U.S.C. 1321(t)(2)(D)(ii)(IV)(dd), on
December 9, 2015, the Council finalized
a Funded Priorities List (FPL) to be
included as part of the Initial
Comprehensive Plan, setting forth
programs and projects to be funded and
prioritized for further review. These
programs and projects will help to
restore and protect the natural
resources, ecosystems, fisheries, marine
and wildlife habitats, beaches and
coastal wetlands of the Gulf Coast
region. The FPL is available at https://
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www.restorethegulf.gov/sites/default/
files/FPL_FINAL_Dec9Vote_EC_Library_
Links.pdf.
Programs and projects selected for
funding in the FPL will be funded either
through grants to the State members of
the Council (the Governors of the States
of Alabama, Florida, Louisiana,
Mississippi, and Texas) (State or States)
or interagency agreements with the
Federal members of the Council (the
Secretaries of the Departments of
Agriculture, the Army, Commerce, the
Interior and the Department in which
the Coast Guard is operating, and the
Administrator of the Environmental
Protection Agency). Those State and
Federal members of the Council may in
turn award grants or contracts to carry
out the funded programs and projects.
II. Discussion of This Policy and
Response to Public Comments
The RESTORE Act requires the
Council to ‘‘develop standard terms to
include in contracts for projects and
programs awarded pursuant to the
Comprehensive Plan that provide a
preference to individuals and
companies that reside in, are
headquartered in, or are principally
engaged in business in a Gulf Coast
State.’’ 33 U.S.C. 1321(t)(2)(C)(vii)(V).
On May 22, 2015, the Council published
in the Federal Register notice of its
preliminary interpretation of this local
contracting preference and described its
proposed implementation of that
interpretation (80 FR 29708). Public
comment was requested and three
public comments were received, one
each from a private individual, a nonprofit organization and a consortium of
Gulf Coast organizations and businesses.
The latter two commenters made similar
recommendations and are addressed
together.
Preliminarily, due to differing legal
requirements in the various
jurisdictions, the Council will apply the
local contracting requirement at the
Federal level (see comment topic 2
below) while permitting each State to
apply any local contracting preference
in conformity with local requirements.
The Council will therefore not impose
on the States any special grant award
conditions requiring a local contracting
preference or related contractual
certifications. Each of the States has
enacted laws pertaining to local
contracting preferences, most of which
do not address preferences for another
State’s local firms; in some cases such
laws prohibit preferences for another
State’s local firms. If the Council were
to require the States to provide
preferences for another State’s local
firms, those States with prohibitions
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against such preferences would be
unable to participate in the grant
program. Having one or more of the
States ineligible to receive grants under
the Comprehensive Plan Component
would be inconsistent with the intent
and purposes of the RESTORE Act.
Council policy for State contracting
action using RESTORE Act funds is
therefore to have each State act in
conformance with its laws with respect
to contracting preferences, with no
further requirements. This policy is
consistent with 2 CFR part 200.319(b),
which permits grant recipients to apply
state or local geographic preferences in
the evaluation of bids or proposals only
where a Federal statute, such as the
RESTORE Act, expressly mandates or
encourages geographical preference.
Comment topic 1: The private
individual recommended that any local
contracting preference not detract from
existing Federal acquisition
requirements, particularly those related
to small business programs.
Response to comment topic 1: The
Council will comply with all applicable
Federal acquisition requirements.
Comment topic 2: The two comments
from the non-profit organization and the
consortium of organizations and
businesses included arguments for a
stronger local contracting preference,
especially at the Federal level, and
recommendations for various
certifications and local workforce
development plans, training and hiring
process provisions.
Response to comment topic 2: At the
Federal level, a local contracting
preference is permitted only when a
statute expressly authorizes or requires
it. See 41 U.S.C. 3304(a)(5). The Council
has determined that 33 U.S.C.
1321(t)(2)(C)(vii)(V) provides such an
express authorization. To implement
this at the Federal level, in May 2015
the Council proposed requiring federal
agencies to either (1) provide a
preference to Gulf Coast firms if
proposals are determined equivalent
under all other evaluation factors, or (2)
include a weighted evaluation factor
providing a preference to Gulf Coast
firms (80 FR 29709). The non-profit
organization recommended revising
option (2) such that the agencies would
be required to provide an explicit
weight of 20% to the weighted
evaluation factor. The Council has
declined to do so. Assigning a specific
weight to the local contractor preference
factor unnecessarily limits the
discretion of the contracting agency to
tailor evaluation factors and their
relative weights for each procurement.
Further, contracting agencies are not
required to assign specific percentage
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weights to each evaluation factor and
doing so can result in a more
quantitative than qualitative analysis of
subjective evaluation factors. Agencies
may use a variety of rating schemes, and
requiring them to assign a specific
percentage weight to the local
contracting preference factor would be
overly prescriptive and have the effect
of restricting their ability to determine
what constitutes best value for
procurements on a case-by-case basis.
Instead of assigning a specific weight
or otherwise changing the two foregoing
options, the Council has instead
decided to provide Federal member
contracting agencies with a third option
of including in contracts a financial
incentive that rewards contractors for
specific local hiring thresholds. Because
this third option provides an explicit
financial incentive, the Council believes
that it may actually make achieving a
local hiring objective more likely than
either of the other options. The Council
thanks the commenters for encouraging
the Council to devise a more robust and
creative option to encourage local
contracting.
The two comments also included
suggestions to include various
certifications and contractual clauses to
require offerors to develop and submit
local workforce development plans and
train local workers, and various
mechanisms to process job
opportunities through state and local
hiring agencies. The Council declines to
add these additional requirements for
two reasons: First, the Council believes
that requiring local training is beyond
the scope of the RESTORE Act provision
for a local contracting preference; and
second, the Council is concerned that
adding such additional requirements
may actually discourage or inhibit local
contractors from offering to undertake
the work. It is the Federal members’
collective experience that additional
requirements can be burdensome to the
point that potential offerors are
discouraged from even participating in
the contract proposal process. This is
especially true with small, possibly
local firms. Potentially discouraging
local firms from participating would be
inconsistent with the purpose of the
local contracting preference.
The Council believes that offering the
choice of one of the three options
discussed above would provide Federal
agencies with sufficient discretion to
make an award to an offeror whose
proposal provides the best value to the
Government. Furthermore, in order to
prevent a Gulf Coast firm from serving
as merely a pass-through for a firm
outside the Gulf Coast region or other
avoidance the objective of the
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preference, to be considered a ‘‘local
firm’’ an offeror must certify that it
resides, is headquartered or is
principally engaged in business in a
State. The offeror must also agree that it
will perform at least a minimum
percentage of the work under the
contract with either local employees or
local manufacturing, as the case may be.
The method for determining whether an
offeror meets these tests is adapted from
the Small Business Administration’s
regulation found at 13 CFR 125.6.
III. Provisions in Council
Comprehensive Plan Interagency
Agreements With Federal Members
The text below will therefore be
included in all solicitations by federal
Council members for Comprehensive
Plan Component contracts, and will be
incorporated into all awards for such
contracts.
(a) The offeror represents as part of its
offer that it ( ) is, ( ) is not a firm
residing, headquartered or principally
engaged in business in a Gulf Coast
state. For purposes hereof, a ‘‘Gulf Coast
state’’ is any of the states of Alabama,
Florida, Louisiana, Mississippi or Texas.
(b) If the offeror (1) is a firm residing,
headquartered or principally engaged in
business in a Gulf Coast state and (2)
agrees to the following applicable
provisions and submits supporting
documentation with its offer, then for
purposes hereof the offeror will be
deemed a ‘‘Gulf Coast Firm’’:
(i) For a contract for services (except
construction), the offeror will perform
services representing at least fifty
percent (50%) of the total labor costs
under the contract with employees that
are residents of a Gulf Coast state;
(ii) For a contract for supplies or
products (other than procurement from
a non-manufacturer of such supplies or
products), the offeror will manufacture,
within a Gulf Coast state, such supplies
or products representing at least fifty
percent (50%) of the total
manufacturing costs under the contract
(excluding costs of materials); or
(iii) For a contract for general
construction services, the firm will
perform services representing at least
fifteen percent (15%) of the total labor
costs under the contract with employees
that are residents of a Gulf Coast state.
(c) For purposes hereof, a ‘‘resident of
a Gulf Coast state’’ means a resident as
defined by the applicable Gulf Coast
state law.
Additionally, one of the three options,
generally in the form set forth below,
will be included in all solicitations for
Comprehensive Plan Component
contracts by federal Council members.
This term notifies prospective offerors
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that the Federal member contracting
agency will either prefer Gulf Coast
Firms in awarding Comprehensive Plan
Component contracts or will include an
incentive for contractors that perform
the contracts using a certain percentage
of residents of a Gulf Coast state.
Option 1 provides a preference to Gulf
Coast Firms if proposals are determined
to be equivalent under all other
evaluation factors.
Option 2 provides a weighted
evaluation factor providing a preference
to Gulf Coast Firm offers. The
solicitation should identify the relative
weight of the local contracting
preference to the other stated evaluation
criteria.
Option 3 provides a financial
incentive to contractors that perform the
contract using a certain percentage of
residents of a Gulf Coast state.
[Option 1] It is the policy of
[contracting agency] to encourage the
participation of Gulf Coast Firms in the
procurement process. This solicitation
includes a preference for Gulf Coast
Firms. If [contracting agency]
determines all other factors to be
equivalent, [contracting agency] will
give preference to a Gulf Coast Firm.
[contracting agency] will review your
Gulf Coast Firm status at the time the
contract solicitation closes.
[Option 2—to be assigned relative
weight by the contracting agency] It is
the policy of [contracting agency] to
encourage the participation of Gulf
Coast Firms in the procurement process.
This solicitation includes a preference
for Gulf Coast Firms. The [contracting
agency] will review your Gulf Coast Firm
status at the time the contract
solicitation closes.
[Option 3—Prescription]
It is the policy of the [contracting
agency] to encourage contractors to hire
residents of Gulf Coast states in
connection with contracts for RESTORE
Act Funded Priorities List projects.
Accordingly, [contracting agency] will
include the following Local Hiring
Incentive Award provision in any
contract for which [contracting agency]
authorizes such an award.
[Option 3—Contract Provision]
(1) To qualify for the Local Hiring
Incentive Award set forth in section (2)
below, a contractor must, on or before
[deadline date], submit to the cognizant
contracting officer documentation
verifying that during the contract’s
performance period (i.e., base period,
option period), on average at least
[percent] of the [contractor’s employees
and/or consultants and/or
subcontractor employees] performing
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work on the contract were residents of
a Gulf Coast state.
(2) If the cognizant contracting officer
confirms in writing that the contractor
has satisfied the requirements of section
(1) above, then subject to any applicable
appropriations laws the contractor will
be entitled to receive an award (’’Local
Hiring Incentive Award’’) equal to
[percent] of the contract amount earned
during the contract’s performance
period.
Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem
Restoration Council.
[FR Doc. 2016–17328 Filed 7–21–16; 8:45 am]
BILLING CODE 6560–58–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
[Document Identifier: CMS–317, CMS–319,
CMS–10166, CMS–10178, and CMS–10184]
Agency Information Collection
Activities: Submission for OMB
Review; Comment Request
Centers for Medicare &
Medicaid Services, HHS.
ACTION: Notice.
The Centers for Medicare &
Medicaid Services (CMS) is announcing
an opportunity for the public to
comment on CMS’ intention to collect
information from the public. Under the
Paperwork Reduction Act of 1995
(PRA), federal agencies are required to
publish notice in the Federal Register
concerning each proposed collection of
information, including each proposed
extension or reinstatement of an existing
collection of information, and to allow
a second opportunity for public
comment on the notice. Interested
persons are invited to send comments
regarding the burden estimate or any
other aspect of this collection of
information, including any of the
following subjects: (1) The necessity and
utility of the proposed information
collection for the proper performance of
the agency’s functions; (2) the accuracy
of the estimated burden; (3) ways to
enhance the quality, utility, and clarity
of the information to be collected; and
(4) the use of automated collection
techniques or other forms of information
technology to minimize the information
collection burden.
DATES: Comments on the collection(s) of
information must be received by the
OMB desk officer by August 22, 2016.
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Under the
Paperwork Reduction Act of 1995 (PRA)
(44 U.S.C. 3501–3520), federal agencies
must obtain approval from the Office of
Management and Budget (OMB) for each
collection of information they conduct
or sponsor. The term ‘‘collection of
information’’ is defined in 44 U.S.C.
3502(3) and 5 CFR 1320.3(c) and
includes agency requests or
requirements that members of the public
submit reports, keep records, or provide
information to a third party. Section
3506(c)(2)(A) of the PRA (44 U.S.C.
3506(c)(2)(A)) requires federal agencies
to publish a 30-day notice in the
Federal Register concerning each
proposed collection of information,
including each proposed extension or
reinstatement of an existing collection
of information, before submitting the
collection to OMB for approval. To
comply with this requirement, CMS is
publishing this notice that summarizes
the following proposed collection(s) of
information for public comment:
1. Type of Information Collection
Request: Extension of a currently
approved collection; Title of
Information Collection: State Medicaid
Eligibility Quality Control Sample
Plans; Use: The Medicaid Eligibility
Quality Control (MEQC) system is based
on monthly State reviews of Medicaid
and Medicaid expansion under Title
XXI cases by States performing the
traditional sampling process identified
through statistically reliable statewide
samples of cases selected from the
SUPPLEMENTARY INFORMATION:
AGENCY:
SUMMARY:
When commenting on the
proposed information collections,
please reference the document identifier
or OMB control number. To be assured
consideration, comments and
recommendations must be received by
the OMB desk officer via one of the
following transmissions: OMB, Office of
Information and Regulatory Affairs,
Attention: CMS Desk Officer, Fax
Number: (202) 395–5806 OR Email:
OIRA_submission@omb.eop.gov.
To obtain copies of a supporting
statement and any related forms for the
proposed collection(s) summarized in
this notice, you may make your request
using one of following:
1. Access CMS’ Web site address at
https://www.cms.hhs.gov/
PaperworkReductionActof1995.
2. Email your request, including your
address, phone number, OMB number,
and CMS document identifier, to
Paperwork@cms.hhs.gov.
3. Call the Reports Clearance Office at
(410) 786–1326.
FOR FURTHER INFORMATION CONTACT:
Reports Clearance Office at (410) 786–
1326.
ADDRESSES:
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47805
eligibility files. These reviews are
conducted to determine whether or not
the sampled cases meet applicable State
Title XIX or XXI eligibility requirements
when applicable. The reviews are also
used to assess beneficiary liability, if
any, and to determine the amounts paid
to provide Medicaid services for these
cases. In the MEQC system, sampling is
the only practical method of validating
eligibility of the total caseload and
determining the dollar value of
eligibility liability errors. Any attempt
to make such validations and
determinations by reviewing every case
would be an enormous and unwieldy
undertaking. In 1993, CMS
implemented MEQC pilots in which
States could focus on special studies,
targeted populations, geographic areas
or other forms of oversight with CMS
approval. States must submit a sampling
plan, or pilot proposal to be approved
by CMS before implementing their pilot
program. The Children’s Health
Insurance Program Reauthorization Act
(CHIPRA) was enacted February 4, 2009.
Sections 203 and 601 of the CHIPRA
relate to MEQC. Section 203 of the
CHIPRA establishes an error rate
measurement with respect to the
enrollment of children under the
express lane eligibility option. The law
directs States not to include children
enrolled using the express lane
eligibility option in data or samples
used for purposes of complying with the
MEQC requirements. Section 601 of the
CHIPRA, among other things, requires a
new final rule for the Payment Error
Rate Measurement (PERM) program and
aims to harmonize the PERM and MEQC
programs and provides States with the
option to apply PERM data resulting
from its eligibility reviews for meeting
MEQC requirements and vice versa,
with certain conditions. We review,
either directly or through its contractors,
of the sampling plans helps to ensure
States are using valid statistical methods
for sample selection. The collection of
information is also necessary to
implement provisions from the
Children’s Health Insurance Program
Reauthorization Act of 2009 (CHIPRA)
(Pub. L. 111–3) with regard to the
Medicaid Eligibility Quality Control
(MEQC) and Payment Error Rate
Measurement (PERM) programs. Form
Number: CMS–317 (OMB control
number: 0938–0146); Frequency: SemiAnnually Affected Public: State, Local,
or Tribal Governments; Number of
Respondents: 10; Total Annual
Responses: 20; Total Annual Hours:
480. (For policy questions regarding this
collection contact Bridgett Rider at 410–
786–2602.)
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]]>Agencies
- GULF COAST ECOSYSTEM RESTORATION COUNCIL
[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Notices]
[Pages 47802-47805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17328]
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GULF COAST ECOSYSTEM RESTORATION COUNCIL
[Docket Number: 107222016-1111-04]
Local Contracting Preference
AGENCY: Gulf Coast Ecosystem Restoration Council.
ACTION: Notice of final policy.
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SUMMARY: The Gulf Coast Ecosystem Restoration Council (Council) hereby
issues notice of its final policy for implementing the local
contracting preference requirement of the Resources and Ecosystems
Sustainability, Tourist Opportunities, and Revived Economies of the
Gulf Coast States Act of 2012 (RESTORE Act).
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DATES: Effective Date: July 22, 2016.
FOR FURTHER INFORMATION CONTACT: Mark Bisgeier, General Counsel, via
email at mark.bisgeier@restorethegulf.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33
U.S.C. 1321(t) and note, makes funds available for the restoration and
protection of the Gulf Coast Region through a new trust fund in the
Treasury of the United States, known as the Gulf Coast Restoration
Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the
administrative and civil penalties paid after July 6, 2012 under the
Federal Water Pollution Control Act by responsible parties in
connection with the Deepwater Horizon oil spill. These funds will be
invested and made available through five components of the RESTORE Act.
On December 14, 2015, the Department of Treasury (Treasury) issued
final regulations (80 FR 77239) applicable to all five components that
generally describe the responsibilities of the Federal and State
entities that administer RESTORE Act programs and carry out restoration
activities in the Gulf Coast Region.
Two of the five components, the Comprehensive Plan Component
(sometimes referred to as the Council-Selected Restoration Component)
and the Spill Impact Component, are administered by the Council, an
independent federal entity created by the RESTORE Act. Under the
Comprehensive Plan Component (33 U.S.C. 1321(t)(2)), the subject of
this policy, 30 percent of the amount in the Trust Fund will be used to
fund the operations of the Council and to carry out projects and
programs adopted in the Council's Comprehensive Plan. An Initial
Comprehensive Plan was adopted by the Council in August 2013 and is
available at https://www.restorethegulf.gov/sites/default/files/Final%20Initial%20Comprehensive%20Plan.pdf.
Pursuant to the RESTORE Act at 33 U.S.C. 1321(t)(2)(D)(ii)(IV)(dd),
on December 9, 2015, the Council finalized a Funded Priorities List
(FPL) to be included as part of the Initial Comprehensive Plan, setting
forth programs and projects to be funded and prioritized for further
review. These programs and projects will help to restore and protect
the natural resources, ecosystems, fisheries, marine and wildlife
habitats, beaches and coastal wetlands of the Gulf Coast region. The
FPL is available at https://www.restorethegulf.gov/sites/default/files/FPL_FINAL_Dec9Vote_EC_Library_Links.pdf.
Programs and projects selected for funding in the FPL will be
funded either through grants to the State members of the Council (the
Governors of the States of Alabama, Florida, Louisiana, Mississippi,
and Texas) (State or States) or interagency agreements with the Federal
members of the Council (the Secretaries of the Departments of
Agriculture, the Army, Commerce, the Interior and the Department in
which the Coast Guard is operating, and the Administrator of the
Environmental Protection Agency). Those State and Federal members of
the Council may in turn award grants or contracts to carry out the
funded programs and projects.
II. Discussion of This Policy and Response to Public Comments
The RESTORE Act requires the Council to ``develop standard terms to
include in contracts for projects and programs awarded pursuant to the
Comprehensive Plan that provide a preference to individuals and
companies that reside in, are headquartered in, or are principally
engaged in business in a Gulf Coast State.'' 33 U.S.C.
1321(t)(2)(C)(vii)(V). On May 22, 2015, the Council published in the
Federal Register notice of its preliminary interpretation of this local
contracting preference and described its proposed implementation of
that interpretation (80 FR 29708). Public comment was requested and
three public comments were received, one each from a private
individual, a non-profit organization and a consortium of Gulf Coast
organizations and businesses. The latter two commenters made similar
recommendations and are addressed together.
Preliminarily, due to differing legal requirements in the various
jurisdictions, the Council will apply the local contracting requirement
at the Federal level (see comment topic 2 below) while permitting each
State to apply any local contracting preference in conformity with
local requirements. The Council will therefore not impose on the States
any special grant award conditions requiring a local contracting
preference or related contractual certifications. Each of the States
has enacted laws pertaining to local contracting preferences, most of
which do not address preferences for another State's local firms; in
some cases such laws prohibit preferences for another State's local
firms. If the Council were to require the States to provide preferences
for another State's local firms, those States with prohibitions against
such preferences would be unable to participate in the grant program.
Having one or more of the States ineligible to receive grants under the
Comprehensive Plan Component would be inconsistent with the intent and
purposes of the RESTORE Act. Council policy for State contracting
action using RESTORE Act funds is therefore to have each State act in
conformance with its laws with respect to contracting preferences, with
no further requirements. This policy is consistent with 2 CFR part
200.319(b), which permits grant recipients to apply state or local
geographic preferences in the evaluation of bids or proposals only
where a Federal statute, such as the RESTORE Act, expressly mandates or
encourages geographical preference.
Comment topic 1: The private individual recommended that any local
contracting preference not detract from existing Federal acquisition
requirements, particularly those related to small business programs.
Response to comment topic 1: The Council will comply with all
applicable Federal acquisition requirements.
Comment topic 2: The two comments from the non-profit organization
and the consortium of organizations and businesses included arguments
for a stronger local contracting preference, especially at the Federal
level, and recommendations for various certifications and local
workforce development plans, training and hiring process provisions.
Response to comment topic 2: At the Federal level, a local
contracting preference is permitted only when a statute expressly
authorizes or requires it. See 41 U.S.C. 3304(a)(5). The Council has
determined that 33 U.S.C. 1321(t)(2)(C)(vii)(V) provides such an
express authorization. To implement this at the Federal level, in May
2015 the Council proposed requiring federal agencies to either (1)
provide a preference to Gulf Coast firms if proposals are determined
equivalent under all other evaluation factors, or (2) include a
weighted evaluation factor providing a preference to Gulf Coast firms
(80 FR 29709). The non-profit organization recommended revising option
(2) such that the agencies would be required to provide an explicit
weight of 20% to the weighted evaluation factor. The Council has
declined to do so. Assigning a specific weight to the local contractor
preference factor unnecessarily limits the discretion of the
contracting agency to tailor evaluation factors and their relative
weights for each procurement. Further, contracting agencies are not
required to assign specific percentage
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weights to each evaluation factor and doing so can result in a more
quantitative than qualitative analysis of subjective evaluation
factors. Agencies may use a variety of rating schemes, and requiring
them to assign a specific percentage weight to the local contracting
preference factor would be overly prescriptive and have the effect of
restricting their ability to determine what constitutes best value for
procurements on a case-by-case basis.
Instead of assigning a specific weight or otherwise changing the
two foregoing options, the Council has instead decided to provide
Federal member contracting agencies with a third option of including in
contracts a financial incentive that rewards contractors for specific
local hiring thresholds. Because this third option provides an explicit
financial incentive, the Council believes that it may actually make
achieving a local hiring objective more likely than either of the other
options. The Council thanks the commenters for encouraging the Council
to devise a more robust and creative option to encourage local
contracting.
The two comments also included suggestions to include various
certifications and contractual clauses to require offerors to develop
and submit local workforce development plans and train local workers,
and various mechanisms to process job opportunities through state and
local hiring agencies. The Council declines to add these additional
requirements for two reasons: First, the Council believes that
requiring local training is beyond the scope of the RESTORE Act
provision for a local contracting preference; and second, the Council
is concerned that adding such additional requirements may actually
discourage or inhibit local contractors from offering to undertake the
work. It is the Federal members' collective experience that additional
requirements can be burdensome to the point that potential offerors are
discouraged from even participating in the contract proposal process.
This is especially true with small, possibly local firms. Potentially
discouraging local firms from participating would be inconsistent with
the purpose of the local contracting preference.
The Council believes that offering the choice of one of the three
options discussed above would provide Federal agencies with sufficient
discretion to make an award to an offeror whose proposal provides the
best value to the Government. Furthermore, in order to prevent a Gulf
Coast firm from serving as merely a pass-through for a firm outside the
Gulf Coast region or other avoidance the objective of the preference,
to be considered a ``local firm'' an offeror must certify that it
resides, is headquartered or is principally engaged in business in a
State. The offeror must also agree that it will perform at least a
minimum percentage of the work under the contract with either local
employees or local manufacturing, as the case may be. The method for
determining whether an offeror meets these tests is adapted from the
Small Business Administration's regulation found at 13 CFR 125.6.
III. Provisions in Council Comprehensive Plan Interagency Agreements
With Federal Members
The text below will therefore be included in all solicitations by
federal Council members for Comprehensive Plan Component contracts, and
will be incorporated into all awards for such contracts.
(a) The offeror represents as part of its offer that it ( ) is, ( )
is not a firm residing, headquartered or principally engaged in
business in a Gulf Coast state. For purposes hereof, a ``Gulf Coast
state'' is any of the states of Alabama, Florida, Louisiana,
Mississippi or Texas.
(b) If the offeror (1) is a firm residing, headquartered or
principally engaged in business in a Gulf Coast state and (2) agrees to
the following applicable provisions and submits supporting
documentation with its offer, then for purposes hereof the offeror will
be deemed a ``Gulf Coast Firm'':
(i) For a contract for services (except construction), the offeror
will perform services representing at least fifty percent (50%) of the
total labor costs under the contract with employees that are residents
of a Gulf Coast state;
(ii) For a contract for supplies or products (other than
procurement from a non-manufacturer of such supplies or products), the
offeror will manufacture, within a Gulf Coast state, such supplies or
products representing at least fifty percent (50%) of the total
manufacturing costs under the contract (excluding costs of materials);
or
(iii) For a contract for general construction services, the firm
will perform services representing at least fifteen percent (15%) of
the total labor costs under the contract with employees that are
residents of a Gulf Coast state.
(c) For purposes hereof, a ``resident of a Gulf Coast state'' means
a resident as defined by the applicable Gulf Coast state law.
Additionally, one of the three options, generally in the form set
forth below, will be included in all solicitations for Comprehensive
Plan Component contracts by federal Council members. This term notifies
prospective offerors that the Federal member contracting agency will
either prefer Gulf Coast Firms in awarding Comprehensive Plan Component
contracts or will include an incentive for contractors that perform the
contracts using a certain percentage of residents of a Gulf Coast
state.
Option 1 provides a preference to Gulf Coast Firms if proposals are
determined to be equivalent under all other evaluation factors.
Option 2 provides a weighted evaluation factor providing a
preference to Gulf Coast Firm offers. The solicitation should identify
the relative weight of the local contracting preference to the other
stated evaluation criteria.
Option 3 provides a financial incentive to contractors that perform
the contract using a certain percentage of residents of a Gulf Coast
state.
[Option 1] It is the policy of [contracting agency] to encourage
the participation of Gulf Coast Firms in the procurement process. This
solicitation includes a preference for Gulf Coast Firms. If
[contracting agency] determines all other factors to be equivalent,
[contracting agency] will give preference to a Gulf Coast Firm.
[contracting agency] will review your Gulf Coast Firm status at the
time the contract solicitation closes.
[Option 2--to be assigned relative weight by the contracting
agency] It is the policy of [contracting agency] to encourage the
participation of Gulf Coast Firms in the procurement process. This
solicitation includes a preference for Gulf Coast Firms. The
[contracting agency] will review your Gulf Coast Firm status at the
time the contract solicitation closes.
[Option 3--Prescription]
It is the policy of the [contracting agency] to encourage
contractors to hire residents of Gulf Coast states in connection with
contracts for RESTORE Act Funded Priorities List projects. Accordingly,
[contracting agency] will include the following Local Hiring Incentive
Award provision in any contract for which [contracting agency]
authorizes such an award.
[Option 3--Contract Provision]
(1) To qualify for the Local Hiring Incentive Award set forth in
section (2) below, a contractor must, on or before [deadline date],
submit to the cognizant contracting officer documentation verifying
that during the contract's performance period (i.e., base period,
option period), on average at least [percent] of the [contractor's
employees and/or consultants and/or subcontractor employees] performing
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work on the contract were residents of a Gulf Coast state.
(2) If the cognizant contracting officer confirms in writing that
the contractor has satisfied the requirements of section (1) above,
then subject to any applicable appropriations laws the contractor will
be entitled to receive an award (''Local Hiring Incentive Award'')
equal to [percent] of the contract amount earned during the contract's
performance period.
Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem Restoration Council.
[FR Doc. 2016-17328 Filed 7-21-16; 8:45 am]
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