[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Proposed Rules]
[Pages 26264-26265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12154]
[[Page 26263]]
_______________________________________________________________________
Part XI
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 1, 12, 23, and 52
Federal Acquisition Regulation; Pollution Control and Clean Air and
Water; Proposed Rule
Federal Register / Vol. 64, No. 92 / Thursday, May 13, 1999 /
Proposed Rules
[[Page 26264]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 12, 23, and 52
[FAR Case 97-033]
RIN 9000-AI19
Federal Acquisition Regulation; Pollution Control and Clean Air
and Water
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to remove Subpart 23.1, 52.223-1, and
52.223-2. Improvements that are being implemented by the Environmental
Protection Agency (EPA) will enable it to identify and provide more up-
to-date information on facilities that, because of their involvement in
criminal violations of the Clean Air Act (CAA) or Clean Water Act
(CWA), may not be used in the performance of Government contracts.
Although this amendment eliminates the certification burden on offerors
and bidders, the proposed changes represent no change to longstanding
Federal policy that until such time as EPA determines that the causes
giving rise to criminal CAA or CWA violations have been corrected, a
contracting officer must not award a contract to be performed by
convicted persons at ineligible facilities.
DATES: Comments should be submitted on or before July 12, 1999, to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVR), Attn: Laurie
Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.
E-mail comments submitted over Internet should be addressed to:
farcase.97-033@gsa.gov.
Please cite FAR case 97-033 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Paul Linfield, Procurement Analyst, at (202) 501-
1757. Please cite FAR case 97-033.
SUPPLEMENTARY INFORMATION:
A. Background
Section 306 of the Clean Air Act (CAA), 42 U.S.C. 7606, and Section
508 of the Clean Water Act (CWA), 33 U.S.C. 1368, prohibit award of a
Federal contract to any person who has been convicted of various
violations under the Acts if the convicted person owns, leases or
supervises the facility at which the violation(s) occurred, and any
part of the contract will be performed at the violating facility. This
ineligibility begins the moment a judgment of conviction is entered.
The statutes provide that the ineligibility for contract award remains
in effect until the EPA Administrator certifies that the conditions
giving rise to the conviction have been corrected. To ensure that
awards are made only to eligible facilities, FAR Subpart 23.1 provides
at section 23.105, that an offeror must certify whether it proposes to
use a facility that is on the EPA List of Violating Facilities and that
it will notify the contracting officer before award, if it receives
from EPA notice that EPA is considering listing the facility (FAR
52.223-1, Clean Air and Water Certification).
The FAR previously has considered different methods of enforcing
the CAA and CWA ineligibility provisions. The Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355, Section 8301(g), 42 U.S.C.
7606 note) prohibited the use, in commercial item acquisitions, of a
certification or a contract clause to implement the otherwise unchanged
ineligibility provisions of the two statutes. Section 4301(b) of the
Clinger-Cohen Act of 1996 (Pub. L. 104-106) required the Administrator
for Federal Procurement Policy to issue for public comment a proposal
to remove from the FAR those certification requirements that were not
specifically imposed by statute. The FAR published a final rule in the
Federal Register at 61 FR 233 on January 2, 1997 (FAR Case 96-312),
implementing the CAA and CWA amendments for commercial items, but
retained the certification for other acquisitions as the least
burdensome and most effective means of ensuring that Government
contracts were not awarded to a contractor proposing to use, for
contract performance, a listed facility (62 FR 233).
This proposed rule would remove FAR Subpart 23.1, the certification
at FAR 52.223-1, the contract clause at FAR 52.223-2, Clean Air and
Water, and would provide agency contracting officers with a uniform
procedure to determine a persons eligibility for award of a Government
contract or subcontract. The same procedure would apply regardless of
whether the acquisition is for a commercial item or not. FAR Subpart
9.4 requires that before awarding contracts and approving subcontracts,
agency contracting officers must check the GSA List of Parties Excluded
from Federal Procurement and Nonprocurement Programs (GSA List).
Internet access to the GSA List is available (http://www.arnet.gov/
epls). Excluded parties whose ineligibility is limited by reason of a
CAA or CWA conviction are identified by the facility and conviction
listing, the Cause and Treatment Code ``H'' annotation. The textual
content of Code H is provided to GSA by the EPA Debarring Official, the
Federal official with the delegated responsibility for determining when
CAA and CWA-ineligible parties have corrected the conditions giving
rise to their criminal convictions.
In the past, certifications served to ensure that bidders and
offerors who were convicted of violations of the CAA and CWA identified
themselves to Contracting Officers. This mechanism supplemented the GSA
List which, because of occasional delays and lapses in communicating
criminal conviction information to EPA officials, might not include an
offeror or bidder with a recent CAA or CWA conviction. The EPA plans to
improve its information systems with a view toward making the CAA and
CWA ineligibility data in the GSA List as complete and timely as
possible.
By improving its information systems and revising the Cause and
Treatment Code, EPA believes that FAR Subpart 23.1 can be removed
without having a detrimental effect on the Government's environmental
policy. Reliance on the GSA List provides an adequate mechanism for
ensuring that agency contracting officers do not award contracts to
ineligible offerors. As a result of these developments, the necessity
for a certification to achieve compliance with the CAA and CWA
ineligibility provisions has been significantly diminished, if not
eliminated.
This rule also would remove the contract clause at FAR 52.223-2.
This clause states that the contractor agrees to comply with the CAA
and CWA. Neither statute requires that such a clause be included in
Federal contracts and subcontracts. The elimination of the clause in no
way would diminish the Government's ability to enforce the CAA
[[Page 26265]]
and CWA requirements that apply to efforts performed under Federal
contracts.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because
generally less than 50 facilities a year are ineligible for contract
award as a result of convictions for violations of the CAA or CWA. An
Initial Regulatory Flexibility Analysis has, therefore, not been
performed. Comments from small entities concerning the affected FAR
subpart will be considered in accordance with 5 U.S.C. 610 of the Act.
Such comments must be submitted separately and should cite 5 U.S.C.
601, et seq. (FAR case 97-033), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is deemed to
apply because the proposed rule would eliminate an information
collection requirement approved under OMB Control Number 9000-0021.
Accordingly, a request to remove the requirement will be submitted to
the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1, 12, 23, and 52
Government procurement.
Dated: May 7, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 1, 12, 23, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR Parts 1, 12, 23, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
2. Section 1.106 is amended in the introductory text by removing
the word ``ten'' and adding ``10''; and in the table following the
introductory paragraph by removing FAR segment ``52.223-1'' and its
corresponding OMB Control Number, ``9000-0021''.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
3. Section 12.503 is amended by revising the introductory text of
paragraph (b); removing paragraph (b)(1); redesignating (b)(2) and
(b)(3) as (b)(1) and (b)(2), respectively; removing paragraph (b)(4);
and redesignating paragraph (b)(5) as (b)(3).
12.503 Applicability of certain laws to Executive agency contracts
for the acquisition of commercial items.
* * * * *
(b) Certain requirements of the following laws are not applicable
to executive agency contracts for the acquisition of commercial items:
* * * * *
12.504 Applicability of certain laws to subcontracts for the
acquisition of commercial items.
4. Section 12.504 paragraph (b) is revised to read as follows:
* * * * *
(b) The requirements for a certificate and clause under the
Contract Work Hours and Safety Standards Act, 40 U.S.C. 327, et seq.,
(see Subpart 22.3) are not applicable to subcontracts at any tier for
the acquisition of commercial items or commercial components.
* * * * *
PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
23.1 [Reserved]
5. Subpart 23.1 is removed and reserved.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.223-1 [Removed and Reserved]
6. Section 52.223-1 is removed and reserved.
52.223-2 [Removed and Reserved]
7. Section 52.223-2 is removed and reserved.
[FR Doc. 99-12154 Filed 5-12-99; 8:45 am]
BILLING CODE 6820-EP-P
