[Federal Register Volume 64, Number 32 (Thursday, February 18, 1999)]
[Notices]
[Pages 8151-8153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3882]
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OFFICE OF MANAGEMENT AND BUDGET
Provision of Specialized or Technical Services to State and Local
Units of Government by Federal Agencies Under Title III of the
Intergovernmental Cooperation Act of 1968
AGENCY: Office of Management and Budget, Executive Office of the
President.
ACTION: Notice of proposed supplemental revisions to OMB Circular A-97.
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SUMMARY: The Office of Management and Budget (OMB) publishes a notice
of proposed supplemental revisions to OMB Circular No. A-97, ``Rules
and Regulations Permitting Federal Agencies to Provide Specialized or
Technical Services to State and Local Units of Government, Under Title
III of the Intergovernmental Cooperation Act of 1968.'' This revision
supplements OMB's proposed revisions to the Circular published in the
Federal Register on January 14, 1998 (63 FR 2288), by proposing
revisions to the certification process in paragraph 7.c. of the
Circular. The proposed new certification requirements are intended to
further the Circular's policy of ensuring that Federal agencies do not
provide commercial services to State and local governments that they
can procure reasonably and expeditiously from the private sector
through ordinary business channels.
DATES: Written comments on the proposed supplemental revisions must be
received on or before April 19, 1999.
ADDRESSES: Comments regarding the proposed changes to OMB Circular A-97
should be addressed to Mr. David Childs, Budget Analysis and Systems
Division, NEOB Room 6002, Office of Management and Budget, 725 17th
Street, N.W., Washington, D.C. 20503, FAX Number (202) 395-7230.
Comments regarding the collection of information requirements should be
addressed to: Mr. Edward Springer, OMB Desk Officer, Office of
Information and Regulatory Affairs, OMB, Room 10236, New Executive
Office Building, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Mr. David Childs, Budget Analysis and
Systems Division, NEOB Room 6002, Office of Management and Budget, 725
17th Street, N.W., Washington, D.C. 20503, Telephone Number: (202) 395-
6104.
SUPPLEMENTARY INFORMATION:
Availability
Copies of the current OMB Circular A-97 may be obtained by
contacting the Executive Office of the President, Office of
Administration, Publications Office, Washington, D.C. 20503, at (202)
395-7332, along with Circular A-76 (``Performance of Commercial
Activities'') and its March 1996 Supplemental Handbook. These Circulars
are also accessible on the OMB Home page. The online OMB Home
[[Page 8152]]
page address (URL) is http:/ www.whitehouse.gov/WH/EOP/omb.
On January 14, 1998, OMB published in the Federal Register (63 FR
2288) proposed revisions to OMB Circular A-97, ``Rules and Regulations
Permitting Federal Agencies to Provide Specialized or Technical
Services to State and Local Units of Government, under Title III of the
Intergovernmental Cooperation Act of 1968.
In response to the notice of proposed revisions, comments were
submitted to OMB by one Federal agency, two private sector
organizations, and one congressional staff person. Included within the
comments received were concerns regarding paragraph 7.c. of the
Circular. This notice responds to those comments and proposes revision
to paragraph 7.c. (As noted at the end of this notice, other comments
were received regarding the proposal. OMB will respond to those
comments when it takes final action on the January 1998 notice and on
this supplemental notice.)
Among its requirements, paragraph 7 has provided that Federal
agencies shall not provide specialized or technical commercial services
to State or local governments unless the Federal agency receives a
written request to provide the service from the State or local
government; the requesting State or local government certifies that it
cannot reasonably and expeditiously procure such services through
ordinary business channels; and the Federal agency is already providing
the service for its own use in accordance with OMB Circular A-76.
In the proposed January 1998 revisions, these requirements were
retained. However, OMB did propose to amend paragraph 7.c. so as to
clarify that, before a Federal agency can provide ``commercial''
services to a State or local government, the Federal agency must first
have conducted a cost comparison under Circular A-76 that supports the
determination by the Federal agency to provide the service for its own
use (63 FR 2289). This proposed clarification would ensure that the
Federal provider of a commercial service had itself competed with the
private sector (with respect to providing the service for its own use)
and that therefore the services to be provided to the State or local
government would be by a best value offeror.
In response to the January 1998 proposed revisions, several
concerns were expressed by commenters regarding the certification
requirement of paragraph 7.c. One concern was that a one-time
certification (as currently required by the Circular) may become
outdated over the years by changes in technology, in industry, or in
Federal, State or local procurement systems. Another concern was that
the Circular's certification requirement, in its current form, is not
sufficient to ensure that the requested services cannot be reasonably
and expeditiously procured by the State and local government through
ordinary business channels. It was suggested that the Federal agency,
upon receiving a State or local government request to provide a
service, issue its own public announcement/solicitation in the
Commercial Business Daily and the Federal Register to identify private
sector interest. Finally, one commenter suggested that the entire OMB
Circular A-97 certification process be included in the Federal
Acquisition Regulations.
These concerns have prompted OMB to conduct a further review of the
longstanding Circular A-97 certification requirement. As a result of
this review, OMB is supplementing its proposed revisions to the
Circular by proposing additional changes to paragraph 7.c. Under these
changes, State or local governments that currently obtain services from
Federal agencies would have to submit renewed certifications by
September 30, 2000, in order for the Federal agencies to be able to
continue to provide such services after that date. Thereafter, the
certifications must be renewed every five years.
Under the supplemental proposal, the certification would also
include additional information. In support of its certification, the
State or local government in its submission must outline how it
solicited private sector interest in performing the service and must
briefly explain the basis for its determination that it cannot procure
the service, reasonably and expeditiously, through ordinary business
channels. Each certification, including each five-year renewal
certification, must include updated information regarding the ability
of the State or local government to procure the requested service
through ordinary business channels. Finally, each Federal agency must
maintain an inventory of the services that it is providing to State and
local governments, and must retain copies of the certifications. The
inventories and certifications would be publicly available upon
request.
OMB believes that these proposed revisions to the certification
process will ensure that the Federal government will not provide
commercial services to State and local governments that they can
procure, reasonably and expeditiously, through ordinary business
channels.
OMB is not proposing to adopt the other suggestions that we
received concerning the certification process. In light of the existing
certification process and the revisions to it that are proposed in this
notice, it would be unnecessarily burdensome to require Federal
agencies to issue their own public solicitations and announcements
before responding to a request by a State or local government for a
service. Finally, it would not be appropriate to place Circular A-97 in
the Federal Acquisition Regulations (FAR). The FAR addresses the
procurement of goods and services by the Federal government. Under
Circular A-97, the Federal government is not procuring a service, but
instead is providing one.
In response to the January 1998 Federal Register notice, OMB
received other comments regarding Circular A-97 and the proposed
revisions to it. OMB will be responding to those comments, and to the
comments received in response to this notice, when it takes final
action on the January 1998 notice and this supplemental notice.
Regulatory Flexibility Act, Unfunded Mandates Reform Act, and
Executive Order 12866
For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the revisions to Circular A-97 that were proposed in January
1998, together with the supplemental revisions proposed in this notice,
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. The proposed revisions make
largely procedural changes to the requirements of the Circular; the
general intent and overall policy structure of the Circular would not
be substantively changed by the adoption of these proposed revisions.
For purposes of the Unfunded Mandates Reform Act of 1995 (Public Law.
104-4), as well as Executive Order No. 12866, this proposal would not
significantly or uniquely affect small governments, and would not
result in increased expenditures by State, local, and tribal
governments, or by the private sector, of $100 million or more.
Paperwork Reduction Act
This proposal contains collection of information requirements
subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). In
support of its request that a Federal agency provide a service, a State
or local government would have to submit, on a 5-year recurring basis,
a certification that is already required that it cannot procure the
service, reasonably and expeditiously, through ordinary business
channels. State or local governments that currently obtain services
from Federal agencies would
[[Page 8153]]
have to submit renewed certifications by September 30, 2000, in order
for the Federal agencies to be able to continue to provide such
authorized services after that date. Thereafter, the certifications
must be renewed every five years in order for the Federal agencies to
continue to provide the authorized services. In support of its
certification, the State or local government, in its submission to the
Federal agency, must outline how it solicited private sector interest
in performing the service and must briefly explain the basis for its
determination that it cannot procure the service, reasonably and
expeditiously, through ordinary business channels. Each certification
(including the certifications that are due by September 30, 2000,
certifications for new services, and the five-year renewal
certifications) must include up-to-date information regarding the
ability of the State or local government to procure the requested
service through ordinary business channels.
OMB estimates that it would take approximately 5 hours for a State
or local government to collect the information requested, and would
take approximately 2 hours for the State or local government to prepare
and submit the information. OMB estimates that there will be 1500
submissions regarding currently-provided services to be submitted by
September 30, 2000, and approximately 300 submissions for new services
per year. The total burden estimate for currently provided services is
10,500 hours and 2,100 hours annually thereafter.
Comments are solicited concerning the proposed collection of
information requirements to: (1) Evaluate whether the proposed
collection of information is necessary for the proper functions of
Circular A-97 including whether the information will have practical
utility; (2) Evaluate the accuracy of the estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) Enhance the quality, utility, and
clarity of the information to be collected; and (4) Minimize the burden
on those who are to respond, such as using appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. Comments should be sent to the persons
specified above (see ADDRESSES).
Jacob J. Lew,
Director.
OMB hereby proposes to further amend OMB Circular A-97, as proposed
to be revised at 63 FR 2288, January 14, 1998, by revising paragraph
7.c. to read as follows:
7. Conditions Under Which Services May Be Provided
The specialized or technical services provided under Title III of
the Act and this Circular may be provided only under the following
conditions:
* * * * *
c. Such services will not be provided unless--
1. The agency providing the services is providing similar services
for its own use and, if commercial in nature, are being provided in
accordance with a cost comparison conducted under the policies set
forth in the Office of Management and Budget's Circular No. A-76,
``Performance of Commercial Activities,'' (Revised August 3, 1983) and
its March 1996 Revised Supplemental Handbook.
2. The requesting State or local government has certified that the
requested service has been offered to private sector providers and
cannot be procured reasonably and expeditiously through ordinary
business channels. In order for a Federal agency to continue to provide
a current service to a State or local government after September 30,
2000, the Federal agency must receive a renewed certification from the
State or local government prior to that date. Thereafter, renewed
certifications must be received every five years in order for a Federal
agency to continue to provide the service. In support of its
certification, the State or local government, in its submission to the
Federal agency, must outline how it solicited private sector interest
in performing the service and must briefly explain the basis for its
determination that it cannot procure the service, reasonably and
expeditiously, through ordinary business channels. Each certification
(including the renewed certifications that are due by September 30,
2000, certifications in support of new requests, and the subsequent
five-year renewal certifications) must include up-to-date information
regarding the ability of the State or local government to procure the
requested service through ordinary business channels. Each Federal
agency must maintain an inventory of the services that it is providing
to State and local governments, and must retain copies of the
certifications. The inventories and certifications shall be publicly
available upon request.
* * * * *
[FR Doc. 99-3882 Filed 2-17-99; 8:45 am]
BILLING CODE 3110-01-P
