[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Proposed Rules]
[Pages 5888-5889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2334]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1516 and 1552
[FRL-5147-4]
Acquisition Regulation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the EPA Acquisition Regulation
(EPAAR) coverage on cost-plus-award fee (CPAF) contracts. The proposed
rule is necessary to update and clarify EPA policy regarding CPAF
contracts, and to give Contracting Officers greater flexibility in
tailoring award fee plans to individual contracts.
DATES: Written comments on this proposed rule must be received on or
before March 2, 1995.
FOR FURTHER INFORMATION CONTACT: Environmental Protection Agency,
Office of Acquisition Management (3802F), 401 M Street SW, Washington,
DC 20460, Attn: Louise Senzel (202) 260-6204.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule replaces sections 1516.404-270 through 1516.404-
274 and deletes 1516.404-275 through 1516.404-2710 of the EPAAR. EPA
has determined that codification of the Agency's procedures for the
award fee process is unnecessary since these procedures are internal to
EPA. Consequently, EPA will include these internal procedures in an
Agency Directive. Internal procedures are those which encompass any
aspect of preparing, establishing, modifying, and administering the
award fee plan. The revised EPAAR will only state the Agency's general
policy and objectives in using award fee contracts.
Award fee may be earned only when the contractor's performance is
rated above satisfactory or excellent. No award fee may be earned if
performance is rated satisfactory or unsatisfactory. This approach to
cost-plus-award-fee contracts is designed to motivate contractors to
achieve excellent performance and to improve cost-plus-award-fee
contracting at EPA.
Section 1516.405 is revised and Sec. 1552.216-75 is added to
address base and award fee limitations in accordance with the FAR.
Section 1552.216-70 is revised to clarify EPA's policy on the payment
of fee under CPAF contracts.
B. Executive Order 12866
This is not a major rule as defined in Executive Order 12866;
therefore, no review is required by the Office of Management and Budget
(OMB).
C. Paperwork Reduction Act
The proposed rule does not contain any recordkeeping or information
collection requirements that require the approval of OMB under 44
U.S.C. 3501 et seq.
D. Regulatory Flexibility Act
The proposed rule will not have an impact on small entities within
the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
since it does not impose any new requirements on contractors, large or
small. The EPA certifies that this rule will not impact small entities.
Therefore, no regulatory flexibility analysis has been prepared.
List of Subjects in 48 CFR Parts 1516 and 1552
Government procurement.
For the reasons set out in the preamble, parts 1516 and 1552 of
title 48 of the Code of Federal Regulations are proposed to be amended
as set forth below:
1. The authority citation for parts 1516 and 1552 continues to read
as follows:
Authority: Sec 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(c).
PART 1516--TYPES OF CONTRACTS
2. Subpart 1516.4 is amended by revising sections 1516.404-270
through 1516.404-274 to read as follows and by removing sections
1516.404-275 through 1516.404-2710.
1516.404-270 Scope.
This subsection establishes the EPA policy for cost-plus-award-fee
(CPAF) type contracts.
1516.404-271 Applicability.
Contracting Officers shall consider all contract actions conforming
to the limitations of FAR 16.404-2(c) as candidates for award as a CPAF
contract.
1516.404-272 Definitions.
(a) Performance Evaluation Board (PEB). Group of Government
officials responsible for assessing the quality of
[[Page 5889]] contract performance and recommending the appropriate
fee.
(b) Fee Determination Official. Individual responsible for
reviewing the recommendations of the PEB and making the final
determination of the amount of award fee to be awarded to the
contractor.
1516.404-273 Limitations.
(a) No award fee may be earned if the Fee Determination Official
determines that contractor performance has been satisfactory or less
than satisfactory. A contractor may earn award fee only for performance
rated above satisfactory or excellent. All award fee plans shall
disclose to offerors the numerical rating necessary to be deemed
``above satisfactory'' or ``excellent'' for award fee purposes.
(b) The base fee shall not exceed three percent of the estimated
cost of the contract, exclusive of the fee.
(c) Unearned award fee may not be carried forward from one
performance period into a subsequent performance period unless approved
by the FDO.
(d) The payment of award fee on a provisional basis is not
authorized.
1516.404-274 Waiver.
The Chief of the Contracting Office may waive the limitations in
paragraphs (a), (b), and (c) of 1516.404-273 on a case-by-case basis
when unusual or compelling circumstances exist. The waiver shall be
supported by a justification and coordinated with the Procurement
Policy Branch in the Office of Acquisition Management.
3. Section 1516.405 is revised to read as follows:
1516.405 Contract clauses.
(a) The Contracting Officer shall insert the clause at 1552.216-70,
Award Fee, in solicitations and contracts when a cost-plus-award-fee
contract is contemplated.
(b) The Contracting Officer shall insert the clause at 1552.216-75,
Base Fee and Award Fee Proposal (XXX 1994), in all solicitations which
contemplate the award of cost-plus-award-fee contracts. The Contracting
Officer shall insert the appropriate percentages in accordance with FAR
15.903(d).
PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 1552.216-70 is revised to read as follows:
1552.216-70 Award fee.
As prescribed in 1516.405(a), insert the following clause:
AWARD FEE (XXX 1994)
(a) The Government shall pay the contractor a base fee, if any, and
such additional fee as may be earned, as provided in the award fee plan
incorporated into the Schedule.
(b) Award fee determinations made by the Government under this
contract are unilaterally determined by the Fee Determination Official
(FDO) and are not subject to appeal under the Disputes clause.
(c) The Government may unilaterally change the award fee plan at
any time, via contract modification, at least thirty (30) calendar days
prior to the beginning of the applicable evaluation period. Changes
issued in a unilateral modification are not subject to equitable
adjustments, consideration, or any other renegotiation of the contract.
(End of Clause)
5. Section 1552.216-75 is added to read as follows:
1552.216-75 Base fee and award fee proposal
As prescribed in 1516.405(b), insert the following clause:
BASE FEE AND AWARD FEE PROPOSAL (XXX 1994)
For the purpose of this solicitation, offerors shall propose a
combination of base fee and award fee within the maximum fee limitation
of ________% as stated in FAR 15.903(d). Base fee shall not exceed 3%
of the estimated cost, excluding fee, and the award fee shall not be
less than ________% of the total estimated cost, excluding fee. The
combined percentage of base and award fee does not exceed ________% of
the total estimated cost, excluding fee.
(End of Clause)
Dated: January 6, 1995.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 95-2334 Filed 1-30-95; 8:45 am]
BILLING CODE 6560-50-P
