[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5437]
[[Page Unknown]]
[Federal Register: March 10, 1994]
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DEPARTMENT OF ENERGY
48 CFR Part 903
RIN 1991-AB10
Acquisition Regulation: Procurement Integrity
AGENCY: Department of Energy (DOE).
ACTION: Final rule; technical amendments.
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SUMMARY: DOE is amending the Department of Energy Acquisition
Regulation (DEAR) to implement the requirements of the Federal
Acquisition Regulation (FAR) to identify the individuals responsible
for concurring in the contracting officer's decision regarding the
impact of a violation, or possible violation, of the procurement
integrity requirements occurring during the conduct of a procurement.
This rule falls under the exceptions stated in the Administrative
Procedure Act to the proposed rulemaking and public procedure
requirements. These changes are all technical and administrative in
nature, and none of them raises substantive issues.
EFFECTIVE DATE: This rule will be effective on May 9, 1994.
FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, Office of Policy (HR-
521.1), Office of Procurement and Assistance Management, U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585 (202) 586-8189.
SUPPLEMENTARY INFORMATION:
I. Background.
A. Discussion
B. Section-by-Section Analysis
II. Procedural Requirements.
A. Review Under Executive Order 12866
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. National Environmental Policy Act
I. Background
A. Discussion
DOE is amending the DEAR to implement the requirements of FAR
3.104-11(a) concerning the identification of the individuals within DOE
responsible for concurring in the contracting officer's decision
regarding the impact of a violation, or possible violation, of the
procurement integrity requirements occurring during the conduct of a
procurement. The specific amendments to the DEAR are described below.
B. Section-by-Section Analysis
The procedures contained in FAR 3.104-11(a)(1) require a
contracting officer who has information concerning any violation, or
possible violation, of the procurement integrity statute and
regulations and who concludes that the violation or possible violation
has no impact on the award of the contract or modification to submit
this conclusion to an individual within the agency for concurrence.
Under FAR 3.104-11(a)(2), that individual is also responsible for
notifying the Head of the Contracting Activity, or his or her designee,
if that individual does not concur in the contracting officer's
conclusion with respect to the impact of the violation or possible
violation. The FAR directs that such an individual be designated in
accordance with agency procedures.
Under this rulemaking, Subpart 903.1, entitled ``Safeguards,'' will
be amended to add a new section 903.104-11(a) to implement FAR 3.104-
11(a) by identifying the responsible individual. Within DOE, except for
Headquarters activities, the individual designated to perform the
responsibilities set forth in FAR 3.104-11(a)(1) and (2) is the legal
counsel assigned direct responsibility for providing legal advice to
the contracting office making the award of the contract or
modification. For Headquarters activities, the individual designated to
perform the responsibilities set forth in FAR 3.104-11(a)(1) and (2)
concerning questions of disclosure of proprietary or source selection
information and certification matters is the Assistant General Counsel
for Procurement and Financial Assistance. The designated individual for
other questions concerning FAR 3.104-11(a)(1) and (2) for Headquarters
activities is the Assistant General Counsel for General Law (Designated
Agency Ethics Official).
II. Procedural Requirements
A. Review Under Executive Order 12866
The Department of Energy has determined that today's regulatory
action is not a ``significant regulatory action'' under Executive Order
12866, ``Regulatory Planning and Review,'' (58 FR 51735, October 4,
1993). Accordingly, this action was not subject to review under that
Executive Order by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and 2(b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation: specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE certifies that today's rule meets the requirements of
sections 2(a) and 2(b) of Executive Order 12778.
C. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Pub. L. 96-354, which requires preparation of a regulatory
flexibility analysis for any proposed rule which is likely to have a
significant economic impact on a substantial number of small entities.
This rule will have no impact on interest rates, tax policies or
liabilities, the cost of goods or services, or other direct economic
factors. It will also not have any indirect economic consequences, such
as changed construction rates. DOE certifies that this rule will not
have a significant economic impact on a substantial number of small
entities and, therefore, no regulatory flexibility analysis has been
prepared.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required under
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on states, on the relationship between the Federal Government and the
states, or in the distribution of power and responsibilities among
various levels of government.
If there are sufficient substantial direct effects, then the
Executive Order requires preparation of a federalism assessment to be
used in all decisions involved in promulgating and implementing a
policy action. This rule will not affect states. It deals with
relations between Federal agencies.
F. National Environmental Policy Act
DOE has concluded that this rule would not represent a major
Federal action having significant impact on the human environment under
the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321,
et seq.) (1976) or the Council on Environmental Quality Regulations (40
CFR parts 1500-1508) and, therefore, does not require an environmental
impact statement or an environmental assessment pursuant to NEPA.
List of Subjects in 48 CFR Part 903
Government procurement.
Issued in Washington, DC on March 2, 1994.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, chapter 9 of title 48 of
the Code of Federal Regulations is amended as set forth below:
PART 903-IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
1. The authority citation for Part 903 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. Subpart 903.1, Safeguards, is amended by adding a new section
903.104-11 to read as follows:
903.104-11 Processing violations or possible violations under
procurement integrity.
(a) Except for Headquarters activities, the individual within DOE
responsible for fulfilling the requirements of (FAR) 48 CFR 3.104-11(a)
(1) and (2) relative to contracting officer conclusions on the impact
of a violation or possible violation of the procurement integrity
requirements shall be the legal counsel assigned direct responsibility
for providing legal advice to the contracting office making the award
or selecting the source. The legal counsel is the Chief Counsel for the
Operations Offices or the Energy Technology Centers; the Counsel, or
the Chief Counsel, for the Support Offices or the Naval Reactors
Offices; and the General Counsel for the Power Administrations. For
Headquarters activities, the individual designated to perform the
responsibilities in (FAR) 48 CFR 3.104-11(a) (1) and (2) regarding
questions of disclosure of proprietary or source selection information
and certification matters is the Assistant General Counsel for
Procurement and Financial Assistance. The designated individual for
other questions regarding (FAR) 48 CFR 3.104-11(a) (1) and (2) for
Headquarters activities is the Assistant General Counsel for General
Law (Designated Agency Ethics Official).
[FR Doc. 94-5437 Filed 3-9-94; 8:45 am]
BILLING CODE 6450-01-P
