vvEPA
United States Office of
Environmental Protection Administration and
Agency Resources Management
May 1992
Contract
Recertif ication
MATERIALS FOR
ATTENDEES
Printed on Recycled Paper
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em- -•
JO
6
REGISTRATION
o
CVJ
HEADQUARTERS LIBRARY
ENVtMWMEWTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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CONTRACT MANAGERS RECERTIFICATION COURSE REGISTRATION
(Name: First, Middle Initial, and Last)
(Date)
(Title)
(Organization)
(Mail Code)
(Street Address of Organization)
(City)
(State)
Work Phone:
(Area Code and number)
(Zip Code)
Yes
No
Yes
Have you taken the Project Officer Course?
Date Completed .
Have you taken the Contract Administration Course?
_No Date Completed
Do you presently have an interim Project Officer Certification?
Yes No
Are you a Superfund employee?
Yes
No
What is your function as a Contract Manager?
Requested Topics for the Open Discussion:
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AGENDA
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SEMINAR FOR RECERTIFICATION OF CONTRACT MANAGERS
8:30 - 8:45
8:45 - 10:05
10:05 - 10:20
10:20 .- 11:20
11:20 - 11:30
11:30
12:30
1:30
2:15
2:30
4:00
4:15
12:30
1:30
2:15
2:30;
4:00
4:15
4:30
Agenda
Introductions, Purpose of Course
Discussion Topic 1 - Procurement
Integrity
Break
Discussion Topic 2 - Conflict of
Interest
Discussion Topic 3 - Procedures for
Closing Out Accounts
Lunch
Discussion Topic 4 - EPA Order 1900.2
Discussion Topic 5 - Personal Services
Break
Open Discussion.
Initiatives in Contract Management
Closing
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PROCUREMENT INTEGRITY
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Attachment A
PROCUREMENT INTEGRITY SUMMARY FOR.
PROCUREMENT OFFICIAL*
BACKGROUND
The "Procurement Integrity" provisions contained in Section 27 of
the Office of Federal Procurement Policy Act: (41 U.S. Code 423),
originally became lav on July 16, 19S9. They were amended in
November of that year by Section 814 of Public LAV 101-189 and '
later were suspended for the period froa December 1, 1989 through
November 30, 1990. The Department of Defense Authorization Act
for Fiscal Year 1991 further suspended, through May 31, 1991, the
Subsection of the law that restricts certain post-employment
activities of former Government employees who were procurement
officials. The remainder of the law, as amended, will become
effective on December 1, 1990.
CERTIFICATION REQUIREMENT
This suamary provides information concerning the procurement
integrity provisions, 41 U.S.C. 423, to enable procurement
officials to sign the attached procurement integrity
certification. The summary describes the relevant provisions of
the law and highlights changes made when the law was amended in
November 1989. The j.n_ter.ia rule implementing the law was
published in the FEDERAL REGISTER on §e,yte,mber 6. 1990 (55 FR
367821. it replaces section 3.104 of the Federal Acquisition
Regulation.' Individuals who will serve the Government as
procurement' offieiala after the lav again becomes effective on
n*<"!«jfigc it 199Q.. aua*t aiqn a certification stating that they are
faailiar with and will net engage in conduct prohibited by
Subsections (b), (c), and (e) and will report any information
concerning a violation or possible violation of Subsections
27(a), (b), (d), or (f). Because of the November 1989 amendments
to the lav, certifications signed prior to the suspension are
legally insufficient to enable an individual to serve as a
procurement official on or after December 1, 1990. A new
certification, in the form attached, is required froa each
procurement official.
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"PROCCRZMZNT OFFICIAL" AND "COMPETING CONTRACTORS"
Except for the prohibitions on unauthorized disclosure of
proprietary and source selection information that apply to
anyone, prohibitions in the law apply to those who serve as
procurement officials and to competing contractors. The tera
"procurement officials" refers to any officer or employee of an
agency who has participated personally and substantially in any
of the following with respect to a particular procurement:
(i) Drafting, or reviewing and approving, a
specification or statement of work;
(ii) Preparation or development of a procurement or
purchase request;
(iii) Preparation or issuance of a procurement
solicitation;
(iv) Evaluation of bids or proposals, or selection of
sources;
(v) Negotiations to establish the price or terms and
conditions of a contract or contract modification;
(vi) Review and approval of the award or modification
of a contract.
The definition extends to contractors, subcontractors,
consultants, experts and advisers acting on behalf of or
providing advice to an agency with respect to a procurement. The
interim regulations make it clear that one does not become a
procurement' official solely by performing clerical functions, by
general technical, engineering or scientific efforts having broad
application, or by reviewing procurement documents solely to
determine compliance with regulatory/ administrative and
budgetary requirements and procedures. The regulations also
exclude from the definition of a procurement official those who
participate solely on Federal advisory committees, agency level
boards and panels and in studies conducted under OMB Circular A-
76 procedures.
A "eoametinq contractor* is an entity that is or is reasonably
likely to become a competitor for a contract or subcontract under
the procurement and includes any other person acting on behalf of
such an entity.
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PROHIBITIONS DURING THE CONDUCT OF A PROCtTRZMZNT
Subsection 27 (b) r*i U.S. Code 423
prohibits a rocurement
official, during the conduct of an agency procurement, from
knowingly :
o Soliciting, discussing or accepting future employment or
business opportunity with a competing contractor;
o Soliciting, or accepting money, a gratuity or any other
thing of value from a competing contractor; or
a Disclosing proprietary or source selection information to
any person not authorized to receive t:«e information.
Subsection 27 (d) (41 U.S. Code 423 (d) } has the effect
of extending this particular prohibition to .anyone who
has access to proprietary or source selection
information.
Subsection 27 (a) (41 O.S. Code 423 (a)) imposes corollary
restrictions upon a competing contractor against giving
gratuities to or discussing future employment or business
opportunity with a procurement official, and from soliciting or
obtaining proprietary or source selection information. There are
civil fines for violations the three prohibitions, and criminal
and civil penalties for willfully violating the third. Federal
employees also may be subject to administrative sanctions,
including disciplinary action.
These prohibitions apply "during the conduct of a procurement."
The conduct of a procurement begins on the earliest date an
authorized official directs that a specific action be/ taken to
initiate a procurement. These actions are •
(i) Drafting a specification or a statement of worfc;
(ii) Reviewing and approving of a specification;
(iii) Computing requirements at an inventory control
point;
(iv) Developing a procurement or purchase request;
(v) Preparing or issuing a solicitation;
(vi) Evaluating bids or proposals;
(vii) Selecting sources;
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(••iii) Conducting negotiations; or
(ix) Reviewing and approving the award of a contract
or contract modification.
The conduct of a procurement ends with award of a contract or
modifieation or the cancellation of the procurement.
The phrase, "gratuity or other thing of value" la defined to
include any gift, favor, entertainment, transportation, lodgings,
meals, services, training, or other itan having monetary value.
It do«s not include: (l) any unsolicited item having a market
value of $10 or less per event or presentation; (a) loans from
banks and financial institutions; (3) discounts available to the
general public; (4) plaques and certificates having no intrinsic
value; (5) anything paid for by the Government under specific
statutory authority; or (6) training to facilitate use of its
products provided by a vendor whose products are furnished under
Government contract. This definition reflects, a change in the
law.
UCU8AL nt ORBZR to DISCUS*
Subsection 27feV f41 O.3. Code 423 fell allove aoae procurement
officials to obtain permission ta withdraw from further
participation in a procurement in order to diseuas future
employment with a competing contractor. This is a change in the
lav. An eligible procurement official may, in accordance with
specific procedures in the interim regulations, request
authorization to be recused from participation in the
procurement. A procurement official is not eligible for recusal
if, during,the period beginning with the issuance of A
procurement solicitation and ending with the award or a contract,
he or she has participated personally and substantially in the
evaluation of bids or proposals, the selection of sources, or the
conduct of negotiations. An individual may not commence
discussions with a competing contractor until he or she has
received written approval of the recusal request. Rejection of
an officer's or employee's recusal request is not an adverse
personnel action.
9O8T~KX9LOHODn U8TXZCTZOV8
Subsection 2f(t\ f*l U.S. Code 423ffM inpoaea two basic
restrictions on employees who leave Federal service. Since these
restrictions remain suspended through May 31, 1991, the effect of
the procurement officials certification regarding Subsection
27(f) is to promise to report information concerning violations
or possible violations of that subsection that occur after it
becomes effective.
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Undcr Subsection 27(f) an individual who vas a procurement
official with respect to a particular procurement may not:
o Participate in any manner on behalf of a competing
contractor in any negotiations leading to the award or
modification of a contract for such procurement; or
o Participate personally and substantially on behalf of the
competing contractor in the performance of such contract.
Both restrictions apply for a period of two years from the date
of the individual's last personal and substantial participation
in the procurement on behalf of the government. Neither applies
unless the individual was an officer or employee of the
Government at the time he or she served as a procurement
official.
These restrictions extend to post-employment activities on behalf
of some subcontractors. They generally do not apply if the
subcontract amount is less than $100,000 or it participation is
on behalf of a subcontractor belov the second'tier. However, the
restrictions apply regardless of dollar value and at any tier if
the particular subcontractor significantly assisted the prime
contractor in negotiation of the prime contract or if the
employe* recommended the particular subcontractor to the prime
contractor as a source. The exclusion for participation on
behalf of somo subcontractors is a change in the lav.
ADDITIONAL CZRTX7XCXTXOH RZQUIRZMBUTS
certification reoui
irements. in connection with contracts and
modifications in excess of $100,000:
o Any procurement official who leaves the Government
during the conduct of a specific procurement must
certify that he or she understands the. continuing
obligation not to disclose proprietary or source
selection information;
o Anyone participating personally and substantially in
the preparation or submission of the competing
contractor's offer must certify that he or she is
familiar and will comply with Subsection 27(a) and
will report any information concerning a violation or
possible violation of Subsections 27(a), (b), (d), or
(f) to the individual responsible for preparing the
offer;
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o The officer or employee of the competing contractor
responsible for its offer must certify that the above
certifications have been obtained and that he or she
has no information concerning a violation or possible
violation of Subsections 27(a), (b), (d), or (f) or has
disclosed such information to the contracting officer;
o The contracting officer responsible for the procurement
must certify that he or she has no information
concerning a violation or possible violation of
Subsections 27(a), (b), (d), or (f) or has
disclosed all information to the head of the agency;
and
o Any procurement official or competing contractor must
make such additional certifications as to violations or
possible violations of Subsections 27(a), (b), (d) , or
(f) as may be required by the head of the -agency.
APPLICABILITY
••
Section 27 originally became law on July 16, 1989. It was
amended in November, 1989, and suspended in its entirety for one
year beginning December 1, 1989 and ending November 30, 1990.
The suspension of the post-employment provisions of Subsection
27(f) was extended for an additional six-month period through May
31, 1991. Thus, except for the pest-employment restrictions, the
amended Section 27 will become effective December 1, 1990 and
will apply to conduct occurring on or after that date. The post-
employment restrictions of Subsection 27(f) will become effective
June 1, 1991.
Participation in a procurement during the period from* December 1,
1989 through November 30, 1990 does not make one a procurement
official for any purpose. Host individuals will not become
subject to any of the prohibitions or restrictions contained
in Section 27 unless they participate personally and
substantially in a procurement on or after December 1, 1990 and
thereby become procurement officials. Participation in a
procurement on or after December 1, 1990 will subject individuals
to the prohibitions of Subsection 27 (b) as of that date. As a
result of the extended suspension of Subsection 27 (f)
individuals who become procurement officials on or after
December 1, 1990 may become subject to the post-employment
restrictions on June 1, 1991.
If, however, one was a procurement official during the original
effective period of the law between July 16, 1989 and November
30, 1989, he or she may become subject to the prohibitions
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contained in Subsection 27(b) of the amended law beginning
December 1, 1990 if his or her participation in a procurement
during the original effective period 'meets the current definition
of "procurement official" and if that procurement has not
concluded. For example, if an employee participated in a source
selection on August 20, 1989 for a procurement that is still
pending on December 1, 1990, he or she again becomes subject to
the prohibitions on receipt of gratuities, employment discussions
and disclosure of proprietary or source selection information
even without participating in that procurement on or after
December 1, 1990. The prohibitions continue to apply until the
procurement is concluded by contract award or cancellation of the
procurement. Because the post•employment restrictions run for
two years from the date of last personal and substantial
participation in the procurement, the employee will become
subject to Subsection 27(f) of the amended law when those
restrictions become effective on June 1, 1991. The suspension of
Subsection 27(f) from December 1, 1989 through May 34, 1991 does
not interrupt the running of the two year period of any post
employment restriction that attached prior to December 1, 1989.
ETHICS XDVTCa
An employee or former employee who is uncertain whether specific
conduct would violate the law may request a formal advisory
opinion from his or her agency ethics official under procedures
described in the regulations. This is a change in the law.
Formal opinions may not be obtained for the purpose of
determining whether certain information is proprietary or source
selection information, whether such information may be disclosed,
or whether, prior to bid opening or receipt of proposals, a
particular entity is a competing contractor.
Questions regarding the character and disclosure of information
should be directed to the contracting officer. The regulations
provide that a procurement official, after making an appropriate
inquiry, may rely upon representations made by an entity as to
whether it is a competing contractor.
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Attachment 3
(1) I.
CONTRACTING OF7ICZR CZRTIJXCATB
OF PVOCtntZXZNT IMTZGRITY
(Name of Contracting Officer)
hereby
certify that, to the best of my knowledge and belief, with the
exception of any information described in this certificate, have
no information concerning a violation or possible violation of
subsection (a), (b), (d) , or (f) of section 27 of the Office of
Federal Procurement Policy Act * (41 U.S.C. 423), as implemented
in the FAR, occurring during the conduct of this procurement
contract/modification number
(2) Violation* or possible violations:
(Continue on plain bend paper if necessary, and label Contracting
Officer Certificate of Procurement Integrity (Continuation
Sheet). ENTER "NONE** IF NONE EXISTS.) 4
(Signature of Contracting Officer and date)
*Subsections 27 (a), (b), and (d), are effective on December i,
1990. Subsection 27(f) is effective on June 1, 1991. THIS
CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN
AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE,
FICTITIOUS, OR FRAUDULENT CERTIFICATION MAY RENDER THE MAKER
SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE,
SECTION 1001.
(End of certification)
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Attachment C
PROCUREMENT INTEGRITY CERTIFICATION
FOR PROCUREMENT OFFICIALS
As a condition of serving as a procurement official, I
. and (e) of the Office of Federal
Procurement Policy Act (41 DSC 423) as amended by section 814 of Public
Law 101-189. I further certify that I will not engage In any conduct
prohibited by such subsections and will report Immediately to the contracting
officer any information concerning a violation or possible violation of
subsections 27(a). (b). (d), or (f) of the Act and applicable implementing
regulations. A written explanation of subsections 27(a) through (f) has been
made available to me. I understand that, should I. leave the Government during
the conduct of a procurement for which I have served as a procurement
official, I have a continuing obligation under section 27 not to disclose
proprietary or source selection Information relating to that procurement and a
requirement to so certify.
SIQNATUn Of MOCURIMtNT OFMCIM.
•tFMiTMfNT &TAGINCV
0*tf
omcf HUPNONf NUMMR
TMI l«m tt Mthomta far ut* «M local
r**r»ou«tl«n tlvougn otnmntr I1. itto.
OPTIONAL FORM J39
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Procurement Integrity
A. Are WAMs and OOOs considered procurement officials and,
therefore, required to sign the certification?
3. An EPA employee speaking on behalf of EPA at a professional
meeting outside the employee's usual commuting area accepts a
ride to the meeting with another speaker from a private
company. Would this incidental transportation constitute a
gratuity?
C. An EPA employee attends a federal office automation trade
show and accepts the following items from the vendors there:
1. desk calendar
2. discount coupon for software worth $99
2. disk holder with company's name and address worth
$12
4. pen with vendor's name and address worth $4.99
5. free buffet lunch
Was this appropriate? If not, which items could the employee
accept and which ones should have been rejected?
D. An EPA employee attends an all-day briefing by an EPA
contractor at the contractor's office. The contractor provides a
buffet lunch for all attendees, both public and private. Can the
EPA employee accept this lunch?
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E. once an individual is identified as a procurement official,
what are the requirements for compliance with the Procurement
Integrity Act?
F. Must an individual recertify for administrative
modifications, incremental funding modifications, and the
exercise of options?
G. Do the requirements of the Act also apply to outside
consultants or contractor employees?
H. Should secretaries, clerical and administrative personnel be
considered to be procurement officials?
I. Employees of other agencies are sometimes requested by EPA to
participate in a procurement as members of source selection
boards or on advisory committees. Should these people
be required to sign the procurement official certification as a
condition of serving as a procurement official?
J. If local government employees are asked by EPA to serve as
procurement officials, do they have to sign the procurement
official certification?
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K. An EPA employee is involved with the preparation of a
competitive procurement. After issuance of tile solicitation,
the employee leaves EPA and joins a firm that is proposing on
the procurement, assists the firm in preparing its proposal and
appears as a member of the staff in the proposal. Is this
acceptable?
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CONFLICT OF INTEREST
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DRAW
ENVIRONKENTAL PROTECTION AGENCY
48 CPR Parts 1509, 1510, 1512, 1527 and 1S52
(FRL-3922-7)
Acquisition Regulation Concerning conflicts of Interest
AGENCY: Environmental Protection Agency (EPA) .
ACTION: Final Rule.
SUMMARY: -This final rule amends the EPA Acquisition Regulation
(EPAAR) coverage on organizational conflicts of interest for all
EPA contracts. In addition, it adds EPAAR coverage on conflicts
of interest related to contractor personnel working under EPA
Superfund contracts and conflicts of interest related to
contractors' future work which may jeopardize Superfund work.
Under this rule, contracts funded .through EPA's Superfund program
will contain clauses: requiring contractor employees working on
EPA Superfund contracts to sign confidentiality agreements;
requiring a contractor to notify the Agency immediately of any
conflicts of interest regarding contractor personnel working on
the EPA contract; and restricting a contractor's future
-i ••
contracts, outside of those with EPA, when such contracts may
conflict with the work performed for EPA. These changes .are
necessary to avoid actual or potential conflicts of interest in
work performed under EPA Superfund contracts.
EFFECTIVE DATES i This rule is effective (insert 30 days after
date of publication in the FEDERAL REGISTER.)
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PRATT FINAL
FOR FURTHER INFORMATION CONTACT: Environmental Protection
Agency, Procurement and Contracts Management Division (PM-214F),
401 M Street SW, Washington, DC 20460, attn: Ann F. Carey (202)
260-9962 or Calvin C. McWhirter (202) 260-9165.
SUPPLEMENTARY INFORMATION!
A. Background
Federal Acquisition Regulation (FAR) Section 9.501, as
amended by Federal Acquisition Circular (FAC) 90-1, October 22,
1990, defines an organizational conflict of irttrest as existing
when "because of other activities or relationships with other
persons, a person is unable or potentially unable to render
impartial assistance or advice to the Government, or the person's
objectivity in performing the contract work is or might be
otherwise impaired, or a person has an unfair competitive
advantage.11 Under EPA's Superfund program, contractors are often
asked to assist the Agency in designing remedial actions to clean
up hazardous waste sites, in identifying potentially responsible
parties (PRPs) at hazardous waste sites and in implementing
actions to effect the cleanup. After identification of PRPs for
specific sites, thi Agency will attempt to secure private party
conducted response action or to expend Superfund Trust Funds to
conduct response action and to recover costs expended for cleanup
either through consent agreements or litigation.
Under the Superfund program it is essential that contractors
not enter into outside contracts or use personnel which might
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DRAFT FINAL
result in an actual or potential conflict of interest. In'
addition, since litigation may continue for several years after a.
contractor has completed work and the contractor may be asked to
testify on the work performed for EPA, it is essential that
actual or potential conflicts of interest be avoided even after
the contract work has been completed.
In addition to organizational conflicts of interest, EPA
must ensure that contractor personnel assigned to work on EPA
contracts are free from personal conflicts of interest that might
impair their ability to perform the required work in an impartial
manner. EPAAR clauses have been developed which will require
EPA's superfund contractors to ensure that actual or potential
personal conflicts of interest regarding contractor personnel are
identified and reported to the EPA Contracting Officer.
These clauses shall b« incorporated into new solicitations
and new contracts. Clauses for contracts existing as of the
effective date of this rule shall be negotiated by the EPA
Contracting Officer, on a case by case basis, and shall be
substantially similar to the clauses required by this rule.
The Agency ha* developed a Long Tern Contracting Strategy to
more effectively manage the Superfund prograp over the next ten
years. The clauses in this rule reflect th« changing nature of
the Superfund program. Although we intend to implement the
Strategy with minimal program disruption, there may be some
changes to the form of some existing Superfund contracts.
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Therefore, we anticipate the clauses in this rule may require
updating to reflect ongoing changes to the Superfund program.
This rule was published as a proposed rule in the Federal
Register on April 26, 1990, at 55 PR 17724. Twenty-two public
comments were received. We express our appreciation to all the
interested organizations for the tine they took in studying the
proposed rule and preparing comments. As a result of these
comments, we have made a number of revisions to the rule. In
seriously considering all of the comments, we implemented
recommendations that would improve the quality of the rule and
minimize the burden to the contractor community, yet ensure that
EPA's programs are adequately protected. Part B of the preamble
summarizes the general issues raised and provides EPA's response
and Part C of the preamble addresses section-specific comments.
In addition, the numbering in EPAAR Subpart 1509.5 is being
amended to conform with numbering changes to FAR Subpart 9.5
based on FAC 90-1. These changes are made solely to conform to
the FAR numbering scheme and do not otherwise affect the existing
EPAAR.
8. S£Q&r£^.J(QBBJKD£A
1. Response to EPA conflict of interest rule. Many
commenters expressed support for an EPA rule on conflict of
interest although some recommended that EPA withdraw the proposed
rule. We welcome public support and are committed to
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DRAFT fIHfcL
implementing a conflict of interest rule that protects the
integrity of the Superfund and other EPA programs.
2. Previously issuedconflict of interest guidance. Many
commenters expressed concern that the January 1990, memorandum
Jrom the Director of the EPA's Procurement and Contracts
Management Division, which conveyed general guidance on conflict
of interest to Superfund contract staff and Superfund
contractors, was not published with the proposed rule and
formally open for public comments. Some also expressed concern
with issues it raised and requested that it be rescinded, others
mentioned that they were pleased that the proposed rule was a
considerable improvement over the January 1990, guidance. It was
EPA's intent that the proposed rule supersede the January 1990,
guidance, we would like to make it clear that this final rule
and its preamble discussion supersedes the January 1990, guidance
and the proposed rule.
3. Justification for special conflict of interest
provisions. Some commenters questioned EPA's authority to
implement a conflict of interest rule and questioned the need for
an EPA rule on conflicts of interest stating that adequate
safeguard* exist. Others contended that there is no balance
between the benefits to be achieved compared to the cost of
compliance.
We disagree. FAR Subpart 1.3 provides agencies with the
authority to implement supplemental acquisition regulations to
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satisfy specific needs of the agency. We have developed the
conflict of interest rule to address the specific requirements of
EPA's Superfund and other programs since sufficient coverage is
not provided by existing regulations*
In the past three years, the General Accounting Office (GAO)
in conducting reviews of EPA's programs, the EPA in performing
management studies of the Superfund program, and Congressional
Committees have all concluded that EPA's existing conflict of
interest procedures are inadequate to protect its programs. The
GAO in its report "Superfund Contracts: EPA's Procedures for
Preventing Conflicts of Interest Need Strengthening" (GAO/RC2D-
899-57), dated February 1989, and EPA, in the Administrator's
Management Review of the Superfund Program (1989), pointed out
the special vulnerability of the Superfund program and strongly
recommended that action be taken to strengthen EPA's existing
procedures.
EPA is responsible for leading the nation's efforts to
protect and clean up the environment. This includes the
development of environmental standards, control of toxic
substances and the cleanup of hazardous wastes, as well as
enforcement of applicable laws and regulations. Historically,
the Agency has relied heavily upon contractors to accomplish its
mission, and much of this work is highly sensitive, particularly
in the Superfund program. The Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA or
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PRATT FINAL
Superfund) 42 U.S.C. 9601-9675, consists of Public Law 96-510
(Dec. 11, 1980) and the amendments made by subsequent enactments.
It provides for liability, compensation, cleanup and emergency
response for hazardous substances released into the environment
•
and the cleanup of hazardous waste disposal sites. Because EPA
has the dual responsibility of cleanup and enforcement and
because its contractors are often involved in both activities,
and may conduct work for EPA and the private sector, it is
imperative that EPA contractors are free of conflicts so as not
to jeopardize CERCLA response and enforcement/cost recovery
actions (hereinafter referred to as enforcement).
This rule focuses primarily on performance after contract
award, unlike other regulations, such as the FAR and Office of
Federal Procurement Policy (OFPP) Policy Letter 89-1, dated
December 8, 1989, which focua on conflict of interest issues
related to contractor eligibility for award. Under Superfund
contracts, work is performed at multiple sites and new and
constantly changing cleanup priorities make it impossible for EPA
to identify, prior to contract award, all site locations where
work will be performed. In addition, it is impossible for EPA to
predict, prior to contract award, enforcement actions against
PRPs at specific sites. Moreover, such cases may take years to
resolve. Therefore, EPA must address conflicts of interest
during and after contract performance to effectively monitor
conflicts and safeguard Superfund enforcement.
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U.S. Department of Justice and EPA attorneys, enforcing
CERCLA, stress the importance of avoiding conflicts of interest
in the Superfund program. Conflicts of interest discovered after
work ha^ begun can create costly delays in cleanup of sites when
EPA must mitigate damage resulting from conflicts to safeguard
cleanup work and enforcement from further prejudice. Therefore,
it is imperative that EPA contractors do not perform work for
PRPs that conflicts with work performed for the Agency.
Conflicts arise because of differing interests of the EPA and
PRPs. EPA's primary concern is to assure that adequate
environmental protection is provided, as opposed to the primary
interests of PRPs, who are usually motivated to keep costs
minimized. Because these conflicts often arise in the context of
adversarial enforcement proceedings, such conflicts and leaks of
sensitive enforcement information not only jeopardize cases at
the litigation stage, but also weaken the Government's position
both in obtaining PRP commitment to clean up sites and in cost
recovery negotiations with PRPs. To date, EPA has sought over
$1.5 billion in cost recovery; the stakes are high.
EPA vast preserve the integrity of the Superfund program
from conflicts of interest and cannot afford to jeopardize the
success of cost recovery actions and impede PRP cleanup of
hazardous waste sites. This rule requires EPA contractors to
disclose all conflicts of interest so that EPA will have the
opportunity to consider the significance of the conflicts and to
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take appropriate measures to avoid, mitigate, or neutralize the
conflicts of interest.
One example of a serious conflict of interest is if a
contractor, who is performing or has performed remedial design
work for EPA by developing plans and specifications for a
selected cleanup remedy for a site, also works for a PRP to
assess the contamination at the same site. This may result in
not only EPA, but PRPs and the public, questioning the integrity
of the work the contractor has performed for EPA, since the
contractor's objectivity would be at issue. Moreover, EPA could
no longer rely on the contractor to support the merits of its
enforcement case for several reasons. If the PRP's counsel
called that contractor to testify on the PRP's behalf regarding
work the contractor performed for the PRP, the Government could
t
be in the absurd position of seeking to discredit its own
witness, thereby damaging its. enforcement case. In addition, if
the Government tried to use the sane contractor as a witness to,
support EPA's remedial selection decision, it would then be very
easy for the PRP's counsel to undermine the contractor's
credibility and the Government's case, where the court must rely
on information produced by the same contractor.
When such a conflict of interest 'occurs, EPA may need to
mitigate the conflict by retaining an independent contractor to
validate or redo the remedial design work so that the integrity
of the work would be assured. Taking such action would provide
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EPA with an unbiased contractor if needed to support cost
recovery against PRPs. Unfortunately, reviewing or having the
work redone may also raise issues in cost recovery litigation as
to why the duplicative work was undertaken and whether the cost
of the extra work is recoverable. The net effect would be to
delay the outcome of the litigation or jeopardize the successful
recovery of the Government's costs. This rule would establish
procedures to help prevent this type of situation from occurring.
The remedial design conflict of interest described above is
typical of conflicts that EPA must avoid in the Superfund
program. Many of the issues in Superfund litigation ultimately
are matters of expert technical opinion for which EPA relies on
contractor personnel, e.g., support of remedy selection and
findings that sites present "imminent and substantial
endangennent" to the public. For instance, if a contractor who
is performing or has performed remedial investigation/feasibility
study work for EPA evaluating alternative cleanup remedies for a
site also performed hazardous waste work related to the same site
for the PRP, the contractor would be in a conflict situation in
which EPA may face similar risks. The conflict arises from the
fact that the contractor appears to be serving opposing
interests. Whereas EPA's primary concern is to assure the
adequate cleanup of the environment, a PRP's primary interest
would likely be to limit costs. Therefore, not only would the
integrity of the contractor's work for EPA be questioned, but EPA
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may ultimately not be able to rely on the contractor for
enforcement support of the merits of EPA's remedy selection
because of the contractor's potential bias as a result of the
conflict.
Another example of how EPA's enforcement could be
jeopardized would be if a contractor, who performs technical
enforcement support for EPA, e.g., PRP searches, oversight of PRP
actions and enforcement support services, subsequently works for
the PRP on the same case. Contractors performing this and other
types of Superfund work are often privy to sensitive EPA
litigation information and case management plans. If such
information was leaked or otherwise divulged intentionally or
unintentionally, the Government's case may be damaged by
disclosure to the PRP of litigation strategy. In addition, if
documents deemed confidential and privileged were released, such
documents could then be admitted into evidence in opposition to
the Government's case.
We disagree with commenters that the Agency has not
considered the balance between the cost of the rule and the
benefits to SPA of avoiding conflicts. We believe there must be
uniform regulatory requirements to raise contractors' awareness
and understanding of conflict of interest problems and the
procedures needed to prevent them. Over the past two years, the
development of this rule with its strong conflict of interest
provisions has created a heightened sensitivity to conflict of
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interest matters throughout EPA's programs and the contractor
:
community. As a result, we are already seeing an increase in
contractors reporting of potential conflicts to the Agency.
Certainly, with the tremendous cost of cleaning up the
environment, we need to ensure the integrity of our procurement
program and cannot afford to jeopardize our enforcement actions
and impede PRP cleanup of hazardous waste sites. EPA has
seriously considered the cost of the rule and has worked to
minimize the rule's burden to the contractor community, yet
ensure adequate protection of its programs.
4. Pending PAR regulations and consistency with OFPP Policy
Letter 89-1. Some commenters expressed concern with the
publication of EPA's rule prior to the publication of the pending
FAR regulations, and some expressed concern that the proposed
rule is inconsistent with and goes beyond the existing
regulations and OFPP Policy Letter 89-1. On October 22, 1990,
the interim regulations were published as FAC 90-1, amending the
FAR Subpart 9.5 on conflicts of interest. We have carefully
reviewed our rule to ensure its harmony with OFPP Policy Letter
89-1 and FAR Subpart 9.5. The rule specifically addresses the
unique requirements of the Superfund program which are not
covered by other regulations. To safeguard our enforcement
actions and ensure the integrity of our cleanup program, it is
essential that we monitor not only conflicts of interest prior to
award, but also conflicts during and after performance. These
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special provisions are not inconsistent with FAR Subpart 9.5 or
OFPP Policy Letter 89-1.
5. Definition, of conflicts of interest. A number of
comments concerned the definition of types of conflicts of
interest. The tern "conflict of interest" in this rule has the
same definition as contained in FAR Subpart 9.5 and OFPP Policy
Letter 89-1. EPA has not adopted any unique or agency specific
definitions for types of conflicts of interest. EPA also has
included the term "personal conflicts of interest" which is not
defined in either the FAR or OFPP Policy Letter 89-1. For
clarity, we have provided a definition of personal conflict of
interest in EPAAR Clause 1552.209-73, Notification of Conflicts
of Interest Regarding Personnel. A personal conflict of
interest is "a relationship of an employee, subcontractor
employee, or consultant with an entity that may impair the
objectivity of the employee, subcontractor employee, or
consultant in performing the contract work."
6. Apparent conflict of interest. A number of commenters
objected to the expansion of conflict of interest to include the
term "apparent* and indicated that the term was too vague and was
not defined in the rule. To be consistent with FAR Subpart 9.5,
this term has been removed from the rule. Nevertheless, EPA
strongly supports the OFPP approach on this issue and will fully
comply with section 6(d) of OFPP Policy Letter 89-1, which
mandates, "Federal procurement officials shall encourage
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contractors to consider carefully the potential for conflicts of
interest in all of their activities associated with federal
procurement, and shall be sensitive to the appearance of
conflicts of interest in any contracting actions." ,\ comment was
also received which stressed that contractors that work for both
private and public parties should avoid and mitigate both actual
conflicts of interest and the appearance of conflicts in order to
protect the public interest. Accordingly, our contractors should
be sensitive to the appearance of conflicts of interest in all
contract actions.
7. Potential and actual conflicts of interest. Several
commenters took exception to EPA's inclusion of the term
"potential" to describe a particular type of conflict as being
too vague and overly restrictive, and one commenter stated that
the term "actual conflict" was undefined and contrary to the FAR.
We disagree and are retaining the terms in the rule. The concept
of potential conflicts is veil established in acquisition
regulations. It is included in both FAR Subpart 9.5 and OFPP
Policy Letter 89-1, which provide examples of situations
involving potential conflicts of interest. FAR Subpart 9.5 also
includes the term "actual* conflict of interest.
8. Significant conflict of interest. Some commenters
recommended that EPA only be concerned with the reporting of
significant conflicts of interest. We disagree. It is
unacceptable for contractors to report only conflicts which they
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consider significant. All actual and potential conflicts of
interest that are identified must be reported to the appropriate
EPA Contracting Officer. In accordance with the process set out
in FAR Section 9.504, the EPA Contracting Officer identifies and
evaluates conflicts, makes a determination of whether a conflict
is significant and determines if the conflict can be avoided,
mitigated, or neutralized.
9. Restriction of Contrasting Officer's decision making
authority. Two comments received expressed concern that the rule
will infringe upon or eliminate the Contracting Officer's
decision making authority on conflicts of interest. In
particular, the comments stressed that it is important that
Contracting Officers make decisions on a case by case basis and
that EPA is abrogating its responsibilities by placing the full
burden on contractors to disclose conflicts of interest no matter
how insignificant or immaterial.
Nothing in this rule restricts the Contracting Officer from
making decisions on conflicts of interest on a case by case
basis. In fact, Contracting Officers are required to make
decisions on a case by case basis in accordance with FAR Subpart
9.5. The existing EPAAR requires contractor disclosure of
conflicts and the rule does not change this responsibility. This
disclosure requirement does not mean that the Contracting Officer
will find that every reported conflict is significant or that it
cannot be avoided, neutralized, or effectively mitigated, but
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rather allows the Contracting Officer the opportunity to
carefully evaluate the facts of each case and make an informed
determination that protects our programs and the public interest.
clearly, both EPA and its contractors have a continuing
responsibility to identify and prevent conflicts of interest in
federal procurement. However, it is not feasible or practicable
for EPA to routinely search and review contractors' business
records to unearth conflicts. Such action would be inappropriate
and intrusive. Therefore, as a practical matter, we must require
contractors to report conflicts.
10. Limitation of disclosure. One comment er recommended
that EPA revise the rule to address disclosure of client
information regarding the sane subject matter as the -instant
solicitation, or directly relating to such subject matter as the
instant solicitation. The commenter recommended either limiting
disclosure to information connected to the solicitation or to
work performed in the same state or region where the work for EPA
will be performed.
EPA requires disclosure of conflict of interest information
related to the work performed or that will be performed for EPA.
We do not require the submission of unrelated client or other
information. All that is required is sufficient information for
the EPA Contracting Officer to make an informed conflict of
interest determination.
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11. Disclosure ofclient information. One comment raised
the concern that contractors may be unable to divulge vork
performed for clients and the dollar value, since this
information as well as client lists are routinely claimed to be
confidential.
The rule does not require the release of client lists or the
reporting of the dollar value of vork performed for clients.
Rather, we require that a contractor disclose sufficient
information to the Contracting Officer so that the Contracting
Officer can make an informed decision. In most cases, this would
involve the name of a client creating the potential conflict for
the contractor, particularly if the client is a PRP on the, site,
and information regarding the nature of the work. Each case is
different and there may be occasions where a client routinely
claims confidentiality for the release of its name and other
information concerning the conflict. If a disclosure waiver
cannot be obtained froa the client, the contractor should explore
with the Contracting Officer suitable alternatives for providing
information sufficient to permit the Contracting Officer to
render an informed decision on the conflict. We urge contractors
to identify confidential business information and stress that EPA
is committed to protecting sensitive business and other
information to the full extent permitted by law.
12. Availability of PRP listings. Commenters expressed the
concern that contractors can not identify all conflicts of
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interest unless EPA informs contractors of all of the PRPs and or
the possibility of future enforcement actions. They further
stated that contractors are unable to sign the certifications
accurat. .y unless they know these facts. Several commenters also
suggested that to avoid delays in contractor disclosure and
certifications, EPA should furnish up-to-date listings of PRPs.
EPA acknowledges the fact that PRPs are continually being
identified and that contractors will not always have sufficient
knowledge of all PRPs at the time certification is submitted. We
require contractors to certify to the best of their knowledge and
belief at the time of the certification. It is not EPA's
intention to hold a contractor accountable for information which
the contractor did not know or have reason to know at the time
the certification was executed. We wish to stress, however, that
disclosure of conflicts is a continuing obligation, and
certification is a statement that should demonstrate a contractor
has made a good faith effort to disclose all potential conflicts
of interest. In order to alleviate contractors1 concerns, the
time period for the submission of the work assignment
certification has been extended to permit a more reasonable time
period for contractors to contact EPA and obtain the moat current
information concerning PRPs and future enforcement action*
pertaining to sites identified in the work assignments or
contract. The term "work assignment" in this rule includes other
similar tasking documents such as a delivery order or a technical
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direction document. EPA is committed to providing contractors
with tha list of known PRPs for sites at the time of work
assignment issuance. EPA is currently working to make available
to all Contracting Officers the Superfund Enforcement Tracking
System (SETS) report, which tracks PRPs by site. This report is
available to the public through the National Technical
Information Service (NTIS), Springfield, Virginia.
13. Period of record for conflict of interest checks. One
cosunenter requested clarification of the period to be searched
for organizational and personal conflicts of interest. The
commenter suggested that the organizational check include all
prior work performed by the contractor but that the personal
conflict of interest check be limited to the period of time that
the individual is employed by the company or for a one year
period, whichever is greater.
In accordance with OFPP Policy Letter 89-1, EPA does not
require searches of records for conflict of interest further back
than three years. Contractors, however, are always required to
report any conflict* of which they are aware. We emphasize that
a contractor is not required to collect, maintain or search
records on personal conflicts of interest. The requirement on
the contractor is to inform its employees, performing work under
or related to EPA contracts, of their obligation to report
conflicts of interest. It is the employees' responsibility to
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review their current and past activities and to report potential
conflicts of interest to their employers.
14. Elimination of conflicts by full disclosure of
contractor roles. One commenter stated that EPA should focus on
full disclosure of roles, since where full and open disclosure of
a contractor's role exists no conflict of interest can occur. We
disagree. Although we certainly believe in openness regarding
the role of contractors in EPA's procurement program, we fail to
see how full disclosure of the role of contractors eliminates the
existence of conflicts. Rather, it is contractor disclosure of
potential conflicts to EPA that provides the opportunity to
avoid, mitigate, or neutralize conflicts.
15. Centralized deciaion making. Many comments were
received recommending the establishment of a centralized decision
making function with an administrative contracting officer at EPA
headquarters having the responsibility for decisions on all
conflict of interest requests. It was pointed out that this
would achieve consistency in conflict of interest determinations.
We have seriously considered this as an option and have
rejected it. A central administrative contracting officer would
not have the necessary background or knowledge of the individual
contracts to make well informed conflict of interest
determinations. We believe that a decentralized approach to
conflict of interest decision making, where determinations are
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made by the EPA Contracting Officer for the contract on a case by
case basis, is the more effective approach.
16. Oblective standards for determining conflicts of
interest. One commenter requested that meaningful objective
standards be adopted to evaluate significant personal and
organizational conflicts of interest.
FAR Subpart 9.5 and the OFPP Policy Letter 89-1 provide
definitions and general rules pertaining to conflict of interest,
but do not include objective standards. Conflict of interest is
a subject for which objective standards are difficult to
formulate. However/ this does not mean that conflicts cannot be
described through definitions and general rules. In addition to
the examples included in the FAR and the OFPP Policy Letter 89-1,
EPA contracting Officers receive training and assistance on
conflict of interest issues from the conflict of interest staff
within EPA's Procurement and Contracts Management Division.
Therefore, Contracting Officers will have available examples and
precedents to assist them in their conflict of interest
determinations.
17. Limited EPA resources £0 fldjijnister conflict of
interest. One commenter expressed concern that EPA would not
have the resources to efficiently administer the rule, and other
commenters recommended that EPA provide examples of conflicts of
interest to help Contracting Officers respond consistently and
wisely and prevent delays associated with these new regulations.
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We believe the Agency has sufficient staff to administer
these regulations. In the past, response times were sometimes
delayed not because of a lack of resources but because of
insufficient training and experience. EPA is committed to a
comprehensive conflict of interest training program for its
Contracting Officers and project personnel. The training will
include a collection of case studies and examples upon which to
base conflict of interest decisions.
18. Applicability of the rule to Suneriund work outside
EPA. Another commenter, expressing support for the rule,
suggested that the EPA should consider and clarify how the
provisions in the rule can be enforced equally with respect to
all Superfund contracts, whether they are let by EPA or other
Federal agencies, such as the U.S. Army Corps of Engineers, or
the States.
This rule applies only to contracts awarded by EPA. EPA can
encourage the use of similar provisions in contracts for
Superfund work awarded by other agencies or States. However, it
cannot require agencies or States to include similar provisions
in those contracts. EPA is currently exploring the possibility
of including its clauses in agreements that pertain to Superfund
work in contracts awarded by other agencies or States.
19. Applicability of the rule to contractor work for the
public sector. Some commenters suggested that the rule apply to
EPA contracts only and have no bearing on work performed for
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other Federal agencies. It was pointed out that the rule lacks a
discussion of how the restrictions in this rule bear on the
ability of contractors to seek similar work from other Federal
agencies and the States. Particular concern was raised that EPA
not restrict its contractors from working simultaneously for
other agencies such as the Department of Energy (DOE) and the
Department of Defense (DOD) since this would be contrary to the
public interest.
The EPA is committed to working closely with other agencies
and States to ensure the effective and expedited cleanup of
hazardous waste sites throughout the country and encourages the
use of the best cleanup technology available. It is not our
intention to restrict EPA contractors from working for the public
sector. We strongly encourage contractors to perform work for
other Federal agencies and States when such work does not create
a conflict of interest problem which would impair the
contractor's objectivity in performing work for EPA or damage the
integrity of the EPA's cleanup and enforcement actions* We have
intentionally made no distinction between the public and private
sector in the rule's reporting requirements. To safeguard our
programs, we must require that all actual or potential conflicts
of interest be identified, avoided, mitigated, or neutralized.
The EPA has the responsibility to ensure compliance by
Federal and State agencies with the requirements of CERCLA and
the amendments made by subsequent enactments. Because of EPA's
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enforcement responsibility, the interests of EPA and other public
organizations will not always be parallel and may at times be
distinctly at odds. For example, the interests of the EPA and
DOD or DOE may be very different regarding the terms of Federal
Facility cleanup agreements. Therefore, it is important that our
contractors are not placed in conflict situations. When an
actual or potential conflict of interest exists with work that a
contractor may wish to perform with another organization, whether
public or private, the contractor shall report it to its EPA
Contracting Officer so that an informed determination can be made
based on a careful review of the facts, the legal and program
considerations, and the best interest of the United States.
20. Qualified contractora. one commenter stated that EPA
may not attract the most qualified contractors or best expertise
as a result of implementing the conflict of interest regulations.
We disagree. EPA promotes full and open competition and attracts
the most highly qualified contractors to its procurement program.
Securing qualified contractors and eliminating conflicts of
interest are not opposing goals. In fact, most of the highly
qualified firms which compete for EPA contracts have systems
established within their organizations to identify and eliminate
conflicts of interest.
21. pipy down of the clause to subcontractors and
consultants. A number of commenters stated that the categories
of subcontractors and consultants exempted from the flow down of
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the conflict of interest clauses are too limited. They
specifically questioned why the "non-discretionary technical or
engineering services, including treatability studies," exempted
in the proposed clause, EPAAR 1552.209-74, Limitation of Future
Contracting (LOFC), are not included in the flow down exemptions
of all of the rule's conflict of interest clauses.
In developing this rule, we carefully evaluated the types
of work performed by subcontractors and consultants under EPA's
contracts, and identified certain classes of work that pose a
minimal risk of conflict of interest. They include well
drilling, fence erecting, plumbing, utility hookups, security
guard services, and electrical services. We exempted these
classes from the flow down provisions of all of the rule's EPAAR
conflict of interest clauses. In addition, for the LOFC clause
only, we also exempted subcontractors and consultants who perform
"non-discretionary technical and engineering services, including
treatability studies.1* Although we believe that non-
discretionary technical and engineering services could pose some
risk to the Agency, particularly since this category is so broad,
we were able to exaapt this work from the LOFC clause because
sufficient protection was provided through coverage by the basic
conflict of interest clauses, (EPAAR 1552.209-71 Organizational
Conflicts of Interest. EPAAR 1552.209-73 Notification of
Conflicts of Interest Regarding Personnel, and EPAAR 1552.227-76
Project Employee Confidentiality Agreement.)
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In the case of "treatability studies", we recognize that
this type of work may have a high risk of conflict of interest,
yet we believe it is in the public interest to promote innovative
technology and exempt such subcontract work from any limitations
en future contracting. However, because there may be a high risk
of conflict for this type of work, it is essential that
protection is provided by flow down of the basic conflict of
interest clauses.
22« Expansion of the class of exemptions for nmfeCflntractor
flow down. Several commenters requested that we broaden the
classes of work to be exempt from the flow down requirements
which apply to subcontractors and consultants in- all of the
conflict of interest clauses. Some provided specific suggestions
of additional categories to be exempted including: laboratory
services, industrial hygiene, selected geotechnical consulting,
medical surveillance, transportation services, and graphics
printing.
We have given serious consideration to the commenters1
recommendations and believe that categorically exempting these
types of work from flow down would pose an unacceptable risk of
conflict of interest to the Agency. For example, if a laboratory
services contractor were also providing environmental consulting
services for a specific site in support of a PRP's legal
position, it would be a conflict of interest for the same
contractor to then take or analyze samples for the EPA from the
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same site. In addition, if a transportation contractor has a
relationship with a disposal facility that is a PRP on a site, it
would be a conflict of interest for that same transportation
contractor to also perform work at or relating to the site for
EPA, or involving the disposal facility. Each of the other
recommended categories also poses such risks, and the Agency
cannot categorically exempt .them. However, we recognize there
may be special cases in which these type of activities can be
excluded and each clause allows for Contracting Officers to
authorize such exemptions.
23. Costs associated with flow down of clauses to
subcontractors. Commenters expressed concern about the costs
associated with the flow down requirements of the rule's clauses.
One commenter asked if EPA is willing to pay for the costs
associated with.the LOFC flow down provision.
The allowable and allocable costs associated with this rule
may be chargeable to EPA contracts in accordance with the
provisions of PAR Part 31. This would also apply to allowable
and allocable costs associated with this rule, which are incurred
by non-exeapt subcontractors or consultants, except that such
costs would be submitted to EPA's prime contractor rather than to
EPA. We anticipate that costs associated with future contracting
requests under an LOFC clause will be minimal and would be
performed as a part of the normal bid and proposal effort.
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24. Expansion of subcontractor flow down exemption to apply
to prime contractors. Some commenters also requested that prime
contractors be exempt from the LOFC or other conflict of interest
clauses when work to be performed under the prime contract is one
of the exemptions identified in the flow down section of the
clauses.
We disagree. EPA prime contracts include a wide variety of
tasks, many of which pose a high risk for conflict of interest.
However, in the unlikely event that an EPA prime contractor only
performed the type of work exempted in a specific subcontractor
flow down provision, the contractor could request from the
Contracting Officer an exemption from inclusion of that conflict
of interest clause.
25. Small and minority business concerns. Two commenters
raised concern that the rule conflicts with the EPA
Administrator's initiative to provide more work to small and
minority owned businesses and with Congressional intent to
promote contracting with small business. The commenters asserted
that snail firms cannot absorb the high costs of maintaining
complex conflict of interest systems. Other commenters expressed
concern that the LOFC clause will hurt small businesses that need
local market* because small businesses do not have the
operational breadth that larger firms possess to avoid regions
where conflicts may exist.
It is essential that we avoid, mitigate, or neutralize
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conflicts of interest in all EPA contracting. However, ve
recognize the importance of small and minority owned businesses
and strongly support their active participation in our
procurement programs. We recently established a new Long Term
Contracting Strategy for the Superfund program that will enhance
the competitive environment and provide greater opportunities for
small business participation by creating smaller, regionally
based contracts.
Small businesses currently participate in the Superfund and
other EPA programs primarily as subcontractors. As detailed in
our discussion of flow down exemptions, a number of categories of
subcontracts are specifically exempt from the requirements of the
entire rule and "non-discretionary technical and engineering
services11 subcontract work is exempt from all LOFC clause
provisions. This substantially minimizes cost and associated
burdens for many small businesses participating in our programs
at both the local and national level. Moreover, at anytime, a
small business operating as either a prime contractor or a
subcontractor may request waiver of clause requirements for non-
discretionary work which poses a minimal risk of conflict of
interest.
EPA does not require any special type of system to identify
and report conflicts. Each contractor determines its own
procedures for searching and identifying conflicts of interest,
and in some cases, it may already have a process in place to
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identify conflicts in its commercial business. We anticipate
that the scope of a company's procedures would be commensurate
with the company's size and complexity, and for small businesses
any system would be less complex and detailed.
Several comments were received concerning the applicability of
the rule to affiliates and other related organizations. A few
commenters encouraged EPA to publish a uniform policy regarding
the disclosure burden of contractors for work performed by parent
and affiliate corporations as well as partnerships and other
businesses. Most commenters opposed the burden of extending
disclosure to conflicts of interest associated with related
organizations, and stressed that it may be difficult to obtain
information from affiliates regardless of common ownership.
The issues regarding applicability of the rule to related
organizations are complex. The rule does not specifically
address related organizations, and it is not our intent to extend
search and certification- requirements to related organizations
and create unnecessary reporting burdens. However, we do require
our contractors to make a good faith effort to report conflicts
as they are identified. If an EPA contractor is aware of a
potential conflict or has reason to believe a related
organization may create a conflict of interest for the
contractor, checking with that organization to verify whether a
conflict exists would certainly be warranted.
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If a contractor reports a conflict of interest involving a
related organization and includes information which is designated
as sensitive or proprietary, the EPA will protect such
information from unauthorized disclosure. An opportunity to so
mark such information shall be afforded to the submitter of the
information.
27. Application of the rule to other units of a
contractor's organization which do not perform environmental
work. One commenter wanted to know the extent tj which the rule
applies to other units of a contractor's organization which do
not perform environmental work. The commenter further stated
that it is unfair to restrict service areas of a firm that are
unrelated to environmental consulting work or to the contractor
unit working on an EPA contract.
This rule applies to the corporation or other legal entity
that has entered into a contract with EPA, and makes no
distinction between separate divisions or units of the EPA
contractor's organization. The fact that a part of the
organization does not perform environmental work does not
necessarily mean it would not have a conflict of interest. EPA
only restricts its contractors from work which poses a
significant conflict of interest to the Agency. He require our
contractors to identify all potential conflicts of interest and
notify the EPA prior to entering into a contract for types of
work identified in the LOFC clause as posing a significant risk
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of conflict. This provides the EPA an opportunity to evaluate
such work and prevent conflicts that may jeopardize work
performed for EPA or ongoing enforcement actions.
28. Establishment of new organizational units to avoid
conflicts of interest. A comment was received that expressed
concern about a contractor establishing new "units" with the
purpose of allowing the contractor to perform in different
program areas where it might otherwise be precluded due to a
conflict of interest. The comment included r. sujgestion that
there should be a deterrent to allowing this type of loophole.
EPA requires that contractors report to the EPA Contracting
Officer all potential conflicts of interest with work performed
for EPA. While there Bay be instances where an organizational
conflict of interest may be mitigated effectively, all such
potential conflict situations must be reported to the EPA so that
the Contracting Officer can make an informed determination based
on a careful evaluation of the facts and program and enforcement
concerns. In evaluating such cases, we would also of course be
sensitive to the appearance- of conflicts in accordance with OFPP
Policy Letter 89-1.
29. C.QHtra.ct°r authority to decline EPA work. One comment
stated that an EPA contractor should be allowed to decline
specific work assignments because of a conflict with other work
that the contractor may have accepted after the EPA contract was
awarded. We disagree. The contractor does not have the
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discretion to reject a work assignment. The contractor must
report all conflicts of interest to the EPA Contracting Officer
who evaluates conflicts, makes a determination of whether a
conflict is significant and determines if the conflict can be
avoided, mitigated, or neutralized. Under the terms of an EPA
contract, a contractor is required to accept and perform work
issued under work assignments. Where there is an overriding
public interest to perform the work when a conflict of interest
exists, the Contracting Officer may decide that the work should
be performed despite the inability to avoid, mitigate, or
neutralize the conflict. For example, if an emergency situation
exists and immediate action is needed to stabilize a site to
prevent injury to nearby residents, the Contracting Officer may
determine that performance on the work assignment is necessary
regardless of the contractor's inability to avoid, mitigate, or
neutralize a conflict at the site.
30. Contractor's right to stop work. Commenters stated
that a contractor should have the right to atop performance if it
reasonably believes that there would not be a significant impact
upon the Agency as a result of the work stoppage. We disagree.
The contract requires performance, and work may be stopped only
by the Contracting Officer. The Government's right to control
costs incurred as a result of stopping work must be protected.
31. Tina limit for responding to conflict of interest
requests. Several commenters stated there should be a time
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limit, such as three or ten days, established for Contracting
Officers to respond to any conflict of interest notification or
LOFC request. Commenters further suggested that contractors
should be able to assume that approval, if required, has been
given if a response has not been received from EPA within ten
days. The commenters stated that contractors may not only be
placed in a position which may cause them to lose business due to
slow responses by EPA, but also may be subject to bid bond
forfeitures or other penalties for failure to accept a contract
if time limits are not included in the rule. Also, for Federal
contracts, contractors may risk having their bids found non-
responsive if the bid is conditioned upon EPA granting approval
to enter into the contract.
since each conflict of interest situation is unique and has
varying degrees of complexity and because contractors often do
not initially provide sufficient information for a Contracting
officer to make a timely decision, the establishment of an
arbitrary time limit is not appropriate. We do not agree with
the suggestion that failure to respond within ten days should
automatically be interpreted as approval. Arbitrary time limits
can result in procedural questions over submission and receipt
dates and create delays. Although set response times are not
included in the rule, EPA is committed to providing timely
responses. For those instances in which a request or
notification has not been responded to .in a reasonable period of
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time, we have clarified that a review process is available one
level up from the Contracting Officer, which can be used to help
expedite decisions and resolve disagreements. If a contractor
does not receive a timely response, either in the form of a
request for additional information or a decision, contractors are
encouraged to use this review process.
32. Review process. Several comments recommended that EPA
institute an appeal process for contractors that want a review of
an adverse conflict of interest decision made by a Contracting
Officer. The decision on any conflict of interest determination
is the responsibility of the EPA Contracting Officer. We have
clarified the review process available if a contractor disagrees
with the decision of a Contracting Officer. The contractor may
file a request with the Contracting Officer for reconsideration,
and the contractor may request that a Contracting Officer
decision be reviewed at one administrative level above the
Contracting Officer. The LOFC clause has been modified to
include the review process.
received which took exception to a unilateral placement of
conflict of interest clauses into existing contracts. EPA does
not intend to unilaterally place the new EPAAR clauses into
existing contracts. Clauses substantially similar to these
clauses shall be negotiated by the Contracting Officer for
existing contracts, on a case by case basis, as stated in the
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general prescription to the clauses. The general prescription to
the clauses, cited in the proposed rule as paragraph (c) , EPAAR
1509.508, Solicitation provision and contract clauses, is
redesignated, under the final rule, as EPAAR 1509.507-2, Contract
clause, to conform with recent numbering changes to FAR Subpart
9.5.
34 . General comments concerning improper restriction of
competition and its effects. Commenters expressed concern about
a restriction of competition on Superfund work resulting from
this rule. Commenters also stated that EPA has improperly
restricted competition by placing overly broad future contracting
limitations affecting sites, types of contracts, and parties with
whom the contractor may contract. Commenters questioned the
authority to impose "post contract" restrictions and stated that
such activity should be governed by internal guidelines and
market forces. Others stated that these clauses prevent EPA from
having access to the most qualified sources in its contracting
program. Other comments reflected an interpretation that the
restrictions apply to affiliates and to contractor clients.
we disagree with these comments. The LOFC clause and its
alternates arm not overly broad nor do they improperly restrict
competition. The LOFC clause and each alternate are focused
narrowly upon areas which have a high potential for conflict.
The authority for "post contract" restriction is recognized in
FAR Section 9.507.
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Many EPA Superfund solicitations and contracts currently
include clauses similar to those contained in this rule. EPA has
attracted qualified contractors and competition has not
dimini ed. The comment concerning the limitation of competition
based upon the flow down of restrictions to affiliates or to
clients reflects an assumption based upon a misreading of the
proposed rule. There is no flow down of restrictions to
affiliates or to clients.
35. Negotiation of specific LOFC clauses. One comment
suggested that the LOFC clause be negotiated separately for each
contract. This will occur for existing contracts. However, the
rule's EPAAR clauses are required for all solicitations and new-
contracts. The Contracting Officer may, however, consider a
deviation to the inclusion or for the modification of the clause.
.36. Assessment of the cost: and economic impacts of limiting
work on existing contracts. Commenters were concerned about the
limitation on business as a result of the inclusion of the LOFC
clauses in existing contracts. One commenter stated that an
assessment of the economic impacts of the rule has not been
performed for existing contracts. The commenter further stated
that the limitations contained in the LOFC clause, which will be
included by modification into existing contracts, will adversely
affect its future activities. The commenter>s concern is that
these effects were not envisioned by the-contractor at the time
it submitted its offer to the EPA.
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The rule states that the EPAAR clauses are to be placed in
all solicitations and new contracts unless a deviation is
obtained. For contracts existing as of the effective date of the
rule, Clauses substantially similar to those in the rule are to
be negotiated and incorporated into those contracts, on a case by
case basis. EPA will not unilaterally incorporate these new
clauses into existing contracts.
Concerning the cost and economic impacts of the rule, EPA
has performed a cost burden analysis of the rule and recognizes
that there will be some economic impact as a result of
implementing these clauses. During the formulation of the LOFC
clause for each existing contract, the negotiation process will
assure that any specific economic attributes associated with the
contract are taken into consideration.
37. Unduly burdensome and redundant certifications.
Several commenters stated that the certifications required by the
rule are unduly burdensome and redundant, and should be deleted
from the rule. Specifically, the commenters took exception to
requirements for an annual certification and to the vork
assignment and work plan certifications.
To respond to these concerns, we have made significant
reductions in the proposed rule's certification requirements.
Under the final rule, all superfund contractors are required to
submit certifications, but they are no longer required to submit
both annual and work assignment certifications. In addition, the
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requirement for work plan certifications has been eliminated, and
the number of work assignment certifications has been reduced.
Under the final rule, a work assignment certification is required
within 20 days from the time the contractor receives a work
assignment. If a subsequent work assignment is issued to the
contractor under the same contract for additional work at the
same site(s) covered by the initial work assignment, an
additional certification for the new work assignment is not
required. This is not intended to relieve the contractor from
reporting any future conflicts of interest relating to the
site(s). The contractor will still be expected to search and
report any conflicts of interest based upon new information which
has been identified. These certification changes will
significantly reduce the burden on contractors*
38. Multiple sites under work assignments, addition of
sites to a work assignment and the allocation of costs. One
commenter expressed concern that since sites and PRPs may be
added to the work,assignments during performance, contractors
cannot certify at the work assignment, acceptance phase that all
conflicts have been disclosed. This concern also applies to a
multi-site work assignment where sites are identified as the work
arises. The commenter also expressed concern about the recovery
of costs incurred for records retention pertaining to sites under
multi-site contracts.
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The work assignment clause requires that the contractor
certify to the best of its knowledge and belief that all
conflicts of interest have been reported or that no conflicts of
interest exist. We recognize that all site and PRP information
may not be available at the time of the certification, which
under the final rule is 20 days after the contractor receives the
work assignment. If a site is added to the work assignment after
the certification is submitted, a subsequent certification is not
required for the additional site. The certification includes a
statement that the contractor recognizes its continuing
obligation to identify and report any conflicts arising during
performance of the work assignment pertaining to all sites.
Allowable costs associated with work performed under the
contract, including records retention pertaining to sites, shall
be allocated consistent with the contractor's cost accounting
system. Since work assignments are so diverse, questions
concerning the proper alienability of costs on a specific work
assignment should be directed to the Contracting Officer.
39. Cost to contractors associated with requesting approval
for future work after contract performance. Several comments
were received concerning the reimbursement of costs associated
with the submission of LOFC requests, filed after the expiration
of the EPA contract. Another commenter expressed concern about
costs contractors may incur as a result of involvement in future
litigation matters.
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vim.
The LOFC clause identifies work that is high risk to the
Agency. The purpose of this clause is to avoid conflicts that
jeopardize the Superfund program and EPA's enforcement efforts.
After expiration of the contract or work assignment, contractors
only have to request approval for future contracting identified
in the LOFC clause. Costs associated with this approval process
should be minimal and would be performed as a part of the normal
bid and proposal effort.
The issue of costs associated with future involvement in
litigation matters is not within the scope of this rule.
However, generally if EPA requires expert witness or special
litigation support for a Superfund case, it would enter into a
contract for such services. For costs associated with other
witness testimony, the Federal Rules of Criminal Procedure or the
Federal Rules of Civil Procedure would apply.
40. FAR coverage of paperwork. One commenter stated that
the FAR requires detailed paperwork only when necessary to
examine "significant potential conflicts* and to determine
appropriate mitigation measures. We agree. In accordance with
FAR Section 9.505, SPA*s Contracting Officers examine each
situation on the basis of its particular facts and exercise
common sense, good judgment and sound discretion in order to
minimize the paperwork burden. Only information which is
sufficient to permit the Contracting Officer to identify and
evaluate conflicts of interest shall be requested.
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41. Paperwork requirement and EPA objectives, one
comroenter stated that the paperwork required violates the
Paperwork Reduction Act and is unnecessary to achieve EPA'a
program objectives. We do not agree. EPA has not violated the
Paperwork Reduction Act and has made every effort to minimize the
paperwork burden associated with this rule consistent with
achieving its objectives in the area of conflict of interest.
The final rule reflects a substantial reduction in the paperwork
burden to contractors participating in EPA's prccurement
program.
42. Paperwork burden concerns. Many commenters expressed
concerns about the burden the rule would impose upon contractors.
several commenters stated that EPA's burden estimate was too low.
One commenter stated that its conflict of interest review effort
required much less time than that which was estimated by EPA.
others offered suggestions on how EPA could reduce the paperwork
burden and still accomplish its objectives. These suggestions
included elimination of duplicative certifications.
EPA has considered these suggestions and has made
significant reductions to the paperwork burden associated with
this rule. Under the final rule, contractors will not be
required to submit certifications on both an annual and a work
assignment basis. In addition, the work plan certification
requirement has been eliminated from the proposed rule's
amendment to the work assignment clause. Under the final rule, a
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single certification will be submitted within twenty days from
the tine the contractor receives the work assignment, and it will
cover conflicts of interest for all effort to be performed or
related to sites under the work assignment: Furthermore, if a
subsequent work assignment is issued to the contractor under the
same contract for additional work at the same site, an additional
certification for the new work assignment is not required. The
initial certification is sufficient because it requires a
continuing obligation by the contractor to report any conflicts
associated with the site(s). The paperwork burden associated
with the LOFC clause and its alternates has been reduced because
the time frames for requesting approval commence at the
conclusion of the work assignment instead of the expiration date
of the contract. In many cases, this will reduce the LOFC
request period by several years.
43. Data base searches and cost reimbursement for paperwork
burden. Commenters stated that contractor data bases do not
contain the type of information that EPA is requesting and,
therefore, contractors would not be able to provide complete
certifications on conflicts of interest. Other commenters
expressed concern* that the development of data bases and the
other administrative costs associated with the rule will not be
recovered by the contractors and have not been included in the
total cost for conflict of interest systems. They recommended
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that EPA provide a mechanism for contractors to recoup these
costs.
EPA does not require that contractors establish any
particular kind of information retrieval system. EPA recognizes
that contractors often do not have all of the information readily
accessible upon vhich to base their certifications. Therefore,
the certifications contain the statement that the contractor is
certifying to the best of its knowledge and belief as of the date
of the certification.
Concerning the costs associated with the rule and a conflict
of interest system, the rule states that costs associated with
conflicts of interest may be chargeable to Government contracts
under the provisions of PAR Part 31. Following the expiration of
the contract, no certifications are required. For expired
contracts, which involved efforts at sites, the costs associated
with search effort associated with the LOFC clause should be
minimal. These post contract costs would normally be allocated
to the contractor's bid and proposal pool.
C. Section by flection Analysis;
The following is a description of the final rule's EPAAR
clauses and our response to comments on the specific clauses and
their prescriptions which are not addressed in the preceding
general comments section.
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EPAAR 1552.209-71. Organizational Conflicts of Interest, is
modified to specify that notification of actual or potential
organizational conflicts of interest should be made prior to
commencement of work. However, in emergency situations, work may
begin with notification being made within five work days. The
clause also identifies specific subcontracts and consultant
agreements for which this clause is not required.
As a result of public comment, the following changes have
been made to the proposed modification of this clause and its
prescription:.
— The term "apparent" has been removed from this clause and
all other clauses in the rule in response to comments that the
term is vague and difficult to define.
— The prescription to this clause, paragraph (c)(l) of
EPAAR 1509.508, Solicitation provision and contract clauses, has
been redesignated as paragraph (a), EPAAR 1509.507-2, Contract
clause. In addition, the reference to FAR 9.508-2 has been
removed fro* this paragraph since FAC 90-1 removed this section
from the FAR. These minor changes have been made to conform with
the recent numbering changes to FAR Subpart 9.5 based on FAC 90-
l, and are in accord with public comments urging that the final
rule be consistent with any changes to the FAR.
Other comments and EPA's response include:
1. Clarification of "any work". One commenter requested
that the term "any work" in paragraph (b) of the clause be
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clarified. "Any work" would generally refer to any billable
hours to the issued work assignment. The term "work assignment"
in this rule includes other similar tasking documents such as a
delivery order or a technical direction document. Our intent is
for contractors to report potential conflicts prior to beginning
work on a contract or a work assignment issued under a contract.
2. Immediate reporting of whether a conflict of interest
exists. Some commenters objected to EPA's requiring the
immediate reporting of whether or not a conflict of interest
exists and recommended that such reporting not be required until
ten days after a work assignment is issued. Some also pointed
out the difficulty in responding without knowledge of future
assignments and access to reliable data on PRPs.
We disagree, conflicts of interest must be identified
immediately so we can avoid issuing work when a conflict exists.
We recognize that contractors may not always have sufficient
information to identify all conflicts when work assignments are
issued since PRPs are continually being identified, but this
should not delay a good faith disclosure of any conflicts that
can be identified prior to beginning work. Moreover, in response
to comments, the final rule does not require contractors to
certify regarding conflicts of interest related to work
assignments until 20 days after receipt of the work assignment.
{See EPAAR 1552.212-71, Work Assignments. Alternate I.I
Additionally, it should be noted that in emergency situations
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contractors may begin work immediately with notification to
follow within five days.
3. Removal of Alternate I to paragraph (e). One commenter
recomm nded that Alternate I of paragraph (e) of the clause,
which applies to non-Superfund contracts, be removed. We
disagree. Since the types of work exempted from.flow down in
paragraph (e) are unlikely to be performed in non-Superfund
contracts, it would be confusing to include this language in such
contracts. In the event these types of work are included in the
contract, the Contracting Officer may authorize exemption.
EPAAR 1552.209-73. Notification of Conflicts of Interest
Regarding Personnel, is added for Superfund contracts to ensure
that contractors notify the Contracting Officer of actual or
potential personal conflicts of interest prior to incurring costs
for an employee where the contractor is aware that the employee
has a personal conflict of interest. The clause also identifies
specific subcontracts and consultant agreements for which this
clause is not required.
.~i' ,. %. ' .. . 4f-". ,"'",'- • '
As a result of public comment, the following changes have
been made:
— The term "apparent" has been removed in response to
comments that the term is vague and difficult to define.
— Paragraph (a) has been modified slightly to make the
language clearer that the provisions with regard to employee
: \
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personnel performing under this contract shall apply until the
earlier "of the following two dates: the termination date of the
affected employee(s) or the expiration date of this contract."
— Paragraph (b) has been rewritten to clarify that a
contractor is responsible for reporting personal conflicts of
interest regarding its subcontractor employees and consultants
when such conflicts have been reported to the contractor. This
clarification is made in response to public concern that a
contractor is unlikely to have knowledge of the personal
conflicts of interest of its subcontractors' employees and should
not be held responsible for identifying such personal conflicts
of interest unless they have been brought to its attention.
— The prescription to this clause, paragraph (c)(2) of
EPAAR 1509.508/ Solicitation provision end 'contract clauses, has
been redesignated as paragraph (b), KPAAR 1509.507-2, Contract
clause. to conform with recent numbering changes to FAR Subpart
9.5.
— The prescription language to this clause has also been
changed to be consistent with the prescription to the
Organizational Conflict of Interest Clause. The final
prescription, paragraph (b), EPAAR 1509.507-2 Contract clause.
includes a small purchase limitation threshold.
other comments and EPA's response include:
l. Personal conflict of interest certification and
disclosure. A number of commenters expressed concern that it is
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unfair and too burdensome to require contractors to certify that
all personal conflicts had been reported. They stressed that
since contractors have to rely on their employees to report such
conflicts that all* that should be required is a good faith effort
to obtain such information. Some requested that disclosure be
limited to those personal conflicts of which the contractor has
knowledge. A concern was also raised that prime contractors
should not be put in a position to certify that there are no
personal conflicts of interest regarding subcontractor employees.
He agree and have eliminated the personal conflict of
interest certification that was included as part of the annual
certification and the work plan/work assignment certification in
the proposed rule. Under the final rule, all that contractors
must certify, as part of either a work assignment or annual
conflict of interest certification, is that they have informed
their employees, working under the requirements of the work
assignment or EPA contract, of their obligation to report
organizational and personal conflicts of interest. (See EPAAR
1552.212-71, Work Assignments. Alternate I. and EPAAR 1552.210-
80, Annual Certification.V When a contractor has been informed
of a personal conflict, either by an employee or a subcontractor,
or has knowledge of such a conflict, it should then report this
to the EPA Contracting Officer.
2. Applicability of Privacy Act of 1974 and collection of
records. One commenter raised concern that this clause could
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have the effect of requiring contractors to develop and maintain
"systems of records [as defined in the Privacy Act of 1974 (5
U.S.C. 552a)] on individuals on behalf of the agency to
accomplish an agency function." Comnenters also stated that the
systems of records needed would be excessively burdensome. Some
also expressed concern about the flow down provisions of the
clause to subcontractors in terms of records and the use of this
material at the prime contractor level.
It is not EPA's intention to require contractors or their
subcontractors to keep records tracking the personal conflicts
individual employees may have, nor is it our intention that prime
contractors keep personal conflict of interest records of their
subcontractors. Such records are not necessary to comply with
our reporting requirements. EPA's intent is to minimize any
paperwork and administrative burden by having both prime
contractors and subcontractors make their employees aware of the
sensitivity and importance of conflict of interest when working
on EPA projects and to place with their employees the
responsibility for identifying conflicts. When the contractor is
informed of a personal conflict, it should then report the
conflict to BPA. When a personal conflict would arise at the
subcontractor level, the subcontractor would notify the prime
contractor of the conflict of interest, along with a description
of actions taken to avoid, mitigate, or neutralize the conflict.
The prime contractor would in turn notify EPA. If subcontractor
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information is sensitive," the prime contractor will consult with
the Contracting Officer to determine a procedure that will allow
the prime contractor to fulfill" the conditions of the contract
and simultaneously providing protection for the information.
3 . Ownership of stock and objectivity of individuals. One
commenter suggested that without criteria about ownership of
stock or the "knowledge about the 'psychology of individuals/ the
concept of personal conflict of interest is impossible to define
in practice. We recognize tHat analysis of conflict situations
may be difficult; and there are no objective criteria that can
address every situation that might arise. The critical test that
a contractor must use regarding any potential conflict is whether
a conflict exists which would impair the person's objectivity in
performing the work under an EPA contract.
4. Limit ing 'disclosure requirements to key project
personnel. Some commenters stated that the proposed clause was
too broad and should apply to key personnel and not to personnel,
such as clerical or accounting employees, who have no influence
over work on- a project. Some commenters connected this
requirement' to the system of records- issue previously addressed,
to demonstrate the prohibitive expense associated with the
notification requirement by all personnel. '•
° "- EPA 'has carefully' considered exempting certain personnel
working under an EPA contract from the requirements of the clause
and has decided not to change the clause which extends the
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notification requirements to all personnel performing vork under
an EPA contract. We do not agree that employees belov the level
of "key personnel" do not contribute to and influence work on EPA
projects. One cannot assume that personnel will always perform
tasks which are limited to their generic job categories, and that
such employees never have access to sensitive information and
never exercise discretion that may impact york performed for EPA.
The final rule simply requires that a contractor inform its
employees about their responsibility to report conflicts of
interest. This process is a significantly less burdensome
approach to managing personal conflicts of interest. The
development or maintenance of a system of records about a
contractor's employees is not necessary to comply with the
requirements of the Motifieation of Conflicts of Interest
Regarding Personnel clause. Therefore, the concern about the
expense associated with a system of records is not central to the
issue of which personnel would be subject to the provisions of
the clause.
5. conflict of interest applied to employee level. One
commenter stated that it is not clear why EPA is applying
conflict of interest rules at the individual employee level and
that the regulation should clarify how the "objectivity/bias"
rule could be compromised at this level.
Throughout this rule, we have emphasized the special nature
of Superfund work and the importance of ensuring integrity of
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work at sites so that the enforcement actions are not
jeopardized. We believe that a contractor employee with a
personal conflict of interest that impaired his objectivity in
performing work for EPA could impact Superfund work. Persons
working on our contracts must be able to render impartial
assistance so that the integrity of the work product is not
questioned. For example, if a contractor employee performed work
for EPA at a site on which the employee had performed work for a
PRP, and the individual was called upon to testify in court to
support prior actions taken by the PRP, as well as to testify to
support actions by the EPA, the credibility of the employee's
testimony may be questioned. Moreover, a contractor employee
with a conflict of interest stemming from a relationship with a
PRP at a site could pose an unacceptable risk of disclosure of
sensitive information that could impact cost recovery strategy or
other enforcement action regarding the site. All we require is
that personal conflicts of interest be reported so that we have
the opportunity to avoid, mitigate, or neutralize conflicts that
may jeopardize our programs.
6. Relationship* covered by personal conflict of interest
clause. One commenter requested a definition concerning the
types of "relationships'* that might be covered by the personal
conflict of interest clause. "Relationships" may include
personal, financial or business affiliations/connections which
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would impair a person's objectivity in performing the contract
work.
7. Individual ownership of stock and mutual funds. One
commenter pointed out that the term "relationship" in this clause
can be interpreted either narrowly or broadly, and asked how EPA
views the ownership of stock in an entity or the owning of shares
in a mutual fund which owns stock in the entity.
Since each situation is different and should be examined on
a case by case basis, it is not appropriate to establish a
position on whether certain ownership of stock in an entity would
or would not create a conflict. We would generally view
substantial ownership of stock in an entity as having a higher
conflict of interest risk than the more passive investment in a
mutual fund which normally conducts transactions without the
active participation of the shareholders. However, specialized
mutual funds may exist which invest in a very narrow group of
stocks. Therefore, each situation should be considered on its
own merits.
8. Notification to the Project Officer and to the
Contracting Officer. One commenter stated that notification to
the EPA Project Officer and to the Contracting Officer is
redundant and unnecessary and that notification to the
Contracting Officer should suffice. We have reviewed this
recommendation and have decided to retain notification to the
Project Officer. Personal conflicts can have an immediate impact
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upon work that vi»;p«rforiBed. 'Notification directly to the
Project Officer -wiilf expedite vtne EPA response time in avoiding
mitigating, or neutralizing such conflicts which would be
beneficial to both the Agency and the contractor.
9. Remedies for non-disclosure. ~0ne commenter stated that
the rule does not identify what remedies, if any, would be
available to the Government in the event that EPA concludes that
a personal conflict of interest was riot "disclosed by a
contractor. The comment er' further stated that appropriate action
referenced in the clause could only be termination for
convenience.* *We disagree. '"Remedies may include avoidance,
mitigation, and neutralization of the conflict as well as any
other 'remedies which would" be permitted under the terms and
conditions of the contract.
:-..•:, i...- v""i:*:i" '.'• - :' •'- "••'. '•• '• '-•'"'-•
EPAAft L"ft552 7209-7 4-. Ltmitat ion ; of' Future Contracting . is
added .for Superfuhd contracts i- -to > ensure that contractors do not
perform work that 'Bay conflict with work performed for EPA and
jeopardize Superfuhd enforcement actions. The clause identifies
work which poses a high risk of conflict of interest and requires
contractor* to- request4 approval from EPA prior to entering into
such cbhtracl:*^ ^ are provided that are tailored to
specific' types df Super fund contracts. The basic Limitation of
Future Contracting (LOFC) clause is for Alternative Remedial
contracting Strategy (ARCS) contracts, and alternates are for
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Time Critical Rapid Response (TCRR), Technical Assistance Team
(TAT), Environmental Services Assistant Team (ESAT), Technical
Enforcement Support (TES), Headquarters Support, and Site
Specific contracts. Depending on the type of EPA work performed,
this limitation may extend for the period of the contract or from
three to seven years after completion of a vork assignment. The
clause does not prevent contractors from submitting
bids/proposals for outside vork prior to receiving Contracting
Officer approval. However, the clause provides that any
bids/proposals are submitted at the contractor's own risk and
expense. This clause must also be placed in subcontract and
consultant agreements except for specific types of services
listed in the clause.
As a result of public comment, including recommendations
that the applicability of the LOFC clause and its alternates be
clarified, the following changes have been made:
— The prescription to this clause, paragraph (c)(3) of
•
EPAAR 1509•508, Solicitation provision and contract clauses, has
been redesignated as paragraph (c), EPAAR 1509.507-2, contract
cjLauafi, to conform with recent numbering changes to PAR Subpart
9.5.
— The prescription to this clause ham also been changed to
be consistent with the prescription for the organisational
conflict of Interest clause. The final prescription, paragraph
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(c), EPAAR 1509.507*2, Contract clause. includes a small purchase
limitation threshold.
— In the basic LOFC clause (ARCS) and all alternates, an
additional paragraph has been added to set out a review process
available.to contractors. This responds, to recommendations that
we identify a review process available for contractors who may
question an EPA Contracting Officer's, decision on an LOFC
request. .....
— In the basic LOFC clause (ARCS) and all alternates, all
references to "zone" have been changed to "assigned geographical
area.11 This adds clarity by reflecting the new terminology in
the Superfund program.
— In the basic LOFC Clause (ARCS) and all alternates, the
• • •
type of Superfund contract covered, by each clause is now added at
the top of each clause. This reduces confusion in reading the
text.
— Alternate I has been renamed "Time Critical Rapid
Response" (TCRR), and we have noted in the clause prescription
that this term includes TCRR, Emergency Response Cleanup Services
(ERCS) and other emergency type solicitations and contracts.
This change has been made to clarify the clause's applicability.
— In Alternate I (TCRR), Alternate II (TAT) and Alternate v
(Headquarters Support), all references to ERCS have been changed
to TCRR.
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— The Field Investigative Team (FIT) Alternate LOFC clause
has been removed since such work is to be included in the ARCS
Superfund contracts.
— All alternates to this clause have been renumbered to
.eflect the removal of the FIT Alternate. All further references
will be to the new numbers of the rule.
— Basic LOFC clause (ARCS) has been changed to reflect the
inclusion of FIT work in ARCS contracts. Since the proposed
rule's FIT LOFC clause is less restrictive than the basic LOFC
clause (ARCS) , language specifically tailored to FIT work in ARCS
contracts is added to minimize contractor burden.
— Basic LOFC clause (ARCS) paragraph (a) has been changed
in accordance with comments recommending it be consistent with
paragraph (a) of its alternates, which include "free to compete
for contracts on an equal basis" language. All further
references will be to the new paragraph (a) .
— Basic LOFC clause (ARCS) paragraphs have been relettered
to reflect the change in paragraph (a) and the inclusion of a
paragraph addressing FIT work. Paragraphs (a)(l) and (a) (2) are
redesignated as paragraphs (b) and (c). The new FIT paragraph is
designated as paragraph (d) . Paragraphs previously designated as
(b) , (c) and (d) have been redesignated as paragraphs (e) , (f),
and (g) . All further references will be to the new lettering of
the final clause.
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— In the basic LQFC clause .(ARCS) and all alternates,
* " ''. f! •",'*....'". *-\ '"V * "" •' A--J ^ i- --'I' •-
paragraph (a) language has.been changed from "It is agreed by the
";••- • * _• " 1 * . • 'i - '* • * *• '~'»t ' • • • * * ' ""
parties to this contract..."; to "The parties to this contract
agree..." This minor change was made so the LOFC clause language
conforms with the^use of the active voice in other EPAAR clauses.
— Basic LOFC clause (ARCS)..paragraphs (c) and (d), parallel
paragraphs (c) of Alternates I (TCRR) and.II ,(TAT) and (d) of
Alternate IV (TES), and similar paragraph.(c) of Alternate VI
(Site Specific) have been changed as follows:
(1) These paragraphs have been.rewritten to emphasize
that all that is required is that contractors obtain approval
prior to entering into a,contract with respect to the type of
work identified. This gives EPA the opportunity to evaluate such
requests on a case by case basis and limit its contractors from
performing work which would jeopardize.work performed for EPA or
ongoing enforcement actions. This change was made in response to
public concern that .this paragraph absolutely prohibited the
nature of work described.
.-. • -J . ---I- :..: U.I rr-:'.', '=• ' "^- ••-•.-'• • •' ,
(2) In further.response to public comment on these
paragraphs, "other than,EPA".has been added after "any party" to
clarify that this clause does not cover future work a contractor
may enter into for EPA.
Basic LOFC clause .(ARCS) paragraphs (c) and (d), and
parallel paragraphs (c) of Alternates I (TCRR) and II (TAT) and
(d) of Alternate IV (TES) have also been modified in response to
.-;
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comments questioning the scope of the limitation. We have
clarified that all that is required is reporting of: "(1) any
work relating to CERCLA activities which pertain to a site where
the Cor tractor previously performed work for EPA under this
contract; or (2) any work that may jeopardize CERCLA enforcement
actions which pertain to a site where the Contractor previously
performed work for the EPA under this contract.* We are
concerned with evaluating future contractor work related to
superfund work performed for EPA on a site to ensure it does not
jeopardize ongoing EPA Superfund work or enforcement action.
— Alternate vi (Site Specific) paragraph (c), which
contains similar language addressing Site Specific contracts, has
also been modified in response to comments questioning its scope.
We have clarified that all that is required is reporting of:
"(1) any work relating to CERCLA activities which pertain to the
site where the Contractor previously performed work for EPA under
this contract; or (2) any work that may jeopardize CERCLA
enforcement actions which pertain to the. site where the
contractor previously performed work for the EPA under this
contract.* We are concerned with evaluating future contractor
work related to Superfund work performed for EPA on the site
covered by its contract to ensure it does not jeopardize ongoing
EPA Superfund work or enforcement action.
— Alternate I (TCRR) paragraph (c) and parallel paragraphs
(c) of Alternate II (TAT) and (d) of Alternate IV (TBS) have
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further been revised. The language "during the life of the
contract" and "after completion of the contract* has been changed
to be consistent with the basic LOFC clause (ARCS), which tracks
by tasking document not by contract. This change is made in
response to commenters1 recommendations. It substantially
minimizes the burden to contractors by reducing the time period
for which the contractor must request approval for future work.
The new language in paragraph (c) of Alternate I (TCRR) is
"during the life of the delivery order or tasking document" and
"after the completion of the delivery order or tasking document".
The new language in paragraph (c) of Alternate II (TAT) is
"during the.life of the technical direction document11 and "after
the completion of the technical direction document". The
language in paragraph (d) of Alternate IV (TES) is now "during
the life of the work assignment" and "after completion of the
work assignment".
— Basic LOFC clause (ARCS) paragraph (f) and identical
paragraphs (f) of Alternate* I (TCRR), II( TAT), IV (TES), VI
(Site Specific), (c) of Alternate III (ESAT) and (e) of Alternate
V (Headquarters Support) have been modified. The language
"agrees not to use it to compete with such companies" is removed.
This change was made to clarify that it is not EPA*a intent to
restrict its contractors from using their experience gained in
working on EPA contracts from competing with other companies.
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— Alternate I (TCRR) paragraph (d)(3), Alternate II (TAT)
paragraph (d)(3), and Alternate VI (site Specific) paragraph
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— In Alternate IV (TES), we have retained the clause's
paragraph (b) language instead of choosing the proposed rule's
option to paragraph (b). This responds to public comment that
the initial paragraph {b) is more cost effective and that
implementing the other proposed option would be extremely
cumbersome and expensive. In addition, we have added "during the
performance period of this contract" at the beginning of the ,
paragraph in response to comments requesting we clarify the
period of applicability.
— In Alternate V (Headquarters Support), paragraph (c), we
have added "unless otherwise authorized by the Contracting
Officer." This change is made in response to public comments
expressing concern that there may be circumstances where the
nature of the work under such contracts would not pose a
significant conflict for the EPA, and this clause should not
categorically exempt contractors from performing work without
examining requests on a case by case basis. We agree that the
Contracting Officer shall make conflict of interest
determinations on a case by case basis and this change reflects
our intent. The objective of this and all of the LOFC clauses is
to identify work which we believe may pose significant risk of
conflict of interest and provide EPA the opportunity to avoid
conflicts that would damage the integrity of the Superfund
program.
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In Alternate V (Headquarters Support) paragraph (c), FIT and
Remedial Engineering Management (REM) contracts are removed from
the list of examples of contracts which include response action
work. Although FIT and REM contracts included response action
work, it is no longer appropriate to include them as examples
since these contracts are being phased out of the Superfund
program.
Other public comments and EPA's response include:
1. Applicability of LOFC clauses to types of work. One
commenter requested that the LOFC clauses should be unambiguously
keyed to types of work since the nature of work in different
contract types overlap. We disagree. The basic LOFC clause and
each alternate are identified by the Superfund program contract
type, i.e., ARCS, TCRR, TAT, ESAT, TES, Headquarters Support, and
Site Specific. These are the standard terms used in the
Superfund program to describe types of contracts by nature of
Superfund work. To key the LOFC clauses to other types of work
would be confusing, ambiguous and difficult to track both for
contractors and the EPA.
2. Different time periods for LOFC clause and alternates.
several commenters expressed concern that there was no
justification provided for the different time periods and
suggested that EPA make the reporting time frames in the LOFC
clauses consistent. Additionally, commenters stated the
reporting requirements should either be applicable after
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completion of the work assignment or reporting should be limited
to the duration of the contract. Still other commenters
suggested the reporting period should be no longer than three
years after work assignment completion. And other commenters
stated the reporting requirement after contract completion was
overly restrictive if it is to be applied to any new contracting
activity but would be less objectionable if site references were
restricted to only National Priorities List (NPL) sites.
We agree reporting requirements for work performed at a site
should be limited to a period of time after completion of the
work assignment rather than after contract completion and have
made the changes in the appropriate LOFC clauses. Each LOFC
clause has been carefully studied and specifically tailored to
fit each program with appropriate time periods based on the
nature of work performed under the contract and the risk of
conflict. Because each of the different programs requiring an
LOFC clause has a different role in Superfund cleanup and
enforcement, it is necessary for some programs to have different
reporting requirements. The establishment of each time period
was made after extensive discussion of program and enforcement
issues. Bvery attempt was made, however, to be as consistent as
possible without jeopardizing the Superfund program.
We disagree that reporting requirements should be limited to
the duration of the contract or for only three years. These time
limits would not adequately protect the. interests of the
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Superfund program. Because environmental enforcement cases are
averaging seven years from start to completion, it would be very
damaging to EPA'a enforcement cases if an EPA contractor could at
will perform related work for a PRP at or relating to the same
site after it had performed work for EPA. For example, the TES
reporting requirement of seven years is necessary to avoid the
potential for compromising highly sensitive enforcement support
information. To reduce this time frame would significantly
jeopardize our ability to enforce CERCLA. Therefore, to prevent
such occurrences, it is absolutely necessary for EPA to have
procedures in place which require contractors to request approval
before entering into future worX with PRPs that could negatively
impact the work performed for EPA.
3. Limit LOPC clause to MPL sites. Several commenters
recommended that the LOFC clause and its alternates apply only to
NPL sites. Some expressed concern whether "sites" includes
Federal Facilities and requested clarification.
He disagree that the clause should be limited to NPL sites
and stress that the rule makes no distinction between private
party site* and Federal Facilities. Restricting the clause's
applicability to work on NPL sites would provide insufficient
protection to the Super fund program. The NPL is a priority
listing of hazardous waste sites which have been identified for
possible long-term remedial cleanup action under Superfund. Most
sites are not placed on the NPL until they have been formally
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evaluated and meet a Hazard Ranking System threshold.
Contractors perform emergency Superfund work and pre-remedial
work for EPA on many hazardous waste sites that may or may not
later be placed on the NPL and also provide support for
enforcement activities at non-NPL sites. It is important to
protect such work from conflicts of interest particularly since
we may initiate cost recovery action against PRPs for cleanup
work at sites that are not yet on the NPL and may never be placed
on the NPL. Moreover, work an EPA contractor may wish to perform
for a private party on a non-NPL site may directly conflict with
work performed for EPA and jeopardize CERCLA enforcement
activities. Therefore, the LOPC clause intentionally makes no
distinction between NPL and non-NPL site work in its reporting
requirements.
4. "Any party*. Some commenters expressed concern that the
term "any party" used in the LOFC clause was too broad, and
stated that the tarn could be interpreted to include another
Federal agency. We disagree that the term is too broad and it is
our intent that it include Federal agencies. The rule makes no
distinction between private and public sector work in its
reporting requirements. Contractors must report work which is
identified as having a high risk of conflict whether it la for a
private party or a Federal agency.
5. "Jeopardize CERCLA enforcement actions'*. One comnenter
recommended that the language in paragraph (c) and (d) of the
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basic LOFC clause (ARCS) and the parallel language in the
Alternates be removed since it is difficult for contractors to
determine whether proposed actions will jeopardize CERCLA
enforcement actions. We disagree with this recommendation. The
language is included to require contractors to request approval
from the EPA Contracting Officer before entering into a contract
for work which may damage our Superfund enforcement actions so
that EPA has the opportunity to protect its enforcement actions
from prejudice. When a contractor believes that there is a risk
that work may jeopardize CERCLA enforcement actions, the
contractor shall submit a request to the EPA Contracting officer
who will make the determination.
6. Define "CERCLA activities". Several commenters
requested that we define "CERCLA activities* and one commenter
specifically requested that we exempt from the definition
activities under Sections 312 and 313 of the Superfund Amendments
and Reauthorization Act of 1986 (SARA).
The scope of CERCLA activities is set out in Section 101 of
CERCLA. "CERCLA activities" includes the terms "remov* or
removal* the terms •remedy or remedial action* and the terms
"respond or response" as defined in sections 101(23),(24) and
(25). Activities under Sections 312 and 313 of SARA are by
definition excluded from the term "CERCLA activities*. Sections
312 and 313 are reporting requirements in SARA Title III,
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"Emergency Planning and Community Right-To-Know Act of 1986",
which is not part of CERCIA.
7. LOFC and unrelated sites. Commenters stated that the
LOFC clauses should not be broadened but should only cover a site
where a contractor previously worked for EPA. One comaenter
stated that EPA had no authority to deny private contracting on
an unrelated site. Another comnenter stated that it would be
almost impossible to administer or enforce the abstract concept
of doing CERCLA work for a private client at a given site where
work had not been performed before.
The first comment refers to the LOFC clause for ARCS and its
alternates for TCRR, TAT, TBS, and Site Specific contracts. Each
of these clauses contains restrictions pertaining to sites where
the contractor previously worked for EPA and on any work that may
jeopardize CERCLA enforcement actions which pertain to a site
where the contractor previously performed work for the EPA under
the contract. This limitation is required because work on
related sites could adversely affect EPA's CERCLA enforcement
action at a site where the contractor previously performed work
for EPA. The LOFC alternates for TCRR, TAT and TES contain
limitation* for geographic areas. These limitations apply only
during the period of performance of the contract. They are
included in the TCRR and TAT clauses because these two types of
work cannot be performed by the same contractor in the same
geographic area because the risk of a conflict occurring is too
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great. Zn the TES contracts, the geographic limitation on
remedial and implementation work is necessary because of the risk
associated with extremely sensitive litigation information, the
unauthorized disclosure of which would jeopardize EPA's
enforcement actions.
The second commenter uses the term "unrelated sites" in the
comment concerning restrictions on private contracting. We are
unclear as to the commenter's definition of this term. EPA's
LOFC clause and alternates limit CERCLA work which pertains to a
site, or limit work that may jeopardize enforcement actions which
pertain to a site, where the contractor previously performed work
for EPA under the contract. The only other site limitations are
those in the TCRR, TAT and TES Alternates which pertain to sites
within the geographic area of the contract. There are no
restrictions to sites outside these limitations.
we agree with the commenter that stated that it would be
difficult to administer or enforce the limitations that pertain
to the performance of CZRCLA work or work which jeopardizes
enforcement actions at sites where a contractor has not performed
previous work for EPA. However, EPA's intent in the LOFC clause
is not to require excessive administration but rather to have
contractors rely on information of which they are aware at the
time they consider entering into a contract for work at other
sites. No extensive searches, certifications, or control systems
associated with administration are required.
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8. Basic LOFC clause (ARCS) paragraphs (a) and (b) —
Contractors right to compete. One commenter suggested the that
clause include the same "free to compete on an equal basis"
language in the alternate LOFC clauses. The commenter further
stated that the clauses require clarification that, when a
contractor has prepared the statement of work or other
solicitation package for a private party, the restriction of the
clause does not apply. Another commenter requested that the
clause be expanded to provide that any contractor that
contributes to the development of the statement of work or the
solicitation package should be ineligible to participate in
follow-on Superfund remedial action projects.
He agree with the recommendation that the clause be changed
to be consistent with its alternates, which include "free to
compete on an equal basis* language, and have made this change in
the final clause language. We also agree with the commenter's
conclusion that the restriction when a contractor has prepared a
statement of work or solicitation package under the terms and
conditions of a Government contract, as either a prime contractor
or subcontractor, would not apply to work performed for private
contractors. EPA does not generate statements of work or
solicitations for the use and benefit of a private party.
Therefore, no clarification to the clause is necessary.
The ARCS contracts provide for a contractor's involvement
with the complete cleanup of a site from the beginning to the
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end, including follow-on remedial action projects. The LOFC
clause for the ARCS contracts has been specifically written to
accommodate the special nature of the ARCS program to take
advantage of a contractor's expertise and keep the competitive
base as open as possible, especially when EPA has purchased the
technology. Therefore, we disagree with the comment that the
clause should be expanded to make any contractors, which
participate in the development of the statement of work or
solicitation package, ineligible from participating in such
activities. To make ARCS contractors ineligible would be overly
restrictive and disruptive to the Superfund program.
9. Basic LOFC clause (ARCS) paragraph (c) — Broaden
limitation. One commenter recommended that we broaden this
paragraph to exclude a contractor from working for any party on
any contract for the types of work specified. We disagree. Such
a change would be too restrictive to ARCS contractors.
10. Alternate I (TCRR) paragraph (d)(3) — Applicability of
TAT restriction. One commenter recommended that the clause be
clarified to indicate the TAT restriction in the TCRR clause only
applies to TAT type contracts offered by the Federal Government
because if it applied to both Government and the private sector
it would be overly broad and restrictive.
We disagree. The clause as written clearly requires TCRR
contractors to request approval prior to performing TAT type
activities, regardless of whether another Federal agency or a
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private party issues the contract. A TCRR contractor is required
to provide cleanup services on numerous sites within its
respective geographic area and this work often involves work
performed in "emergency" situations. It is vital that TCRR
contractors be free of conflicts to perform work for the Agency.
Therefore, it is necessary to require TCRR contractors to request
approval before performing any TAT type activities for any other
party within its respective geographic area that result from a
CERCLA administrative order, a CERCLA or RCRA co.tsent decree or a
court order.
11. Alternate II (TAT) paragraph (d)(2) — Expand
competition restriction. One commenter requested we delete the
language "Unless an individual design for the site has been
prepared by a third party". The commenter contended that any
knowledge of a site is critical and a contractor having access to
a site over a long period of time would be in a better position
to plan and price for unforeseen contingencies. Therefore, this
would be patently unfair to other contractors.
We disagree. If the clause were to be Modified as
suggested, it would have the opposite effect by making the clause
overly restrictive for contractors performing TAT work. Although
such a contractor may have gained some knowledge about a site
while working there, it would not necessarily be an unfair
competitive advantage when a third party has prepared the design.
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12. Alternate II (TAT) paragraph (d)(2) — Inability to
plan future TAT work. One commenter suggested that this
paragraph not include TAT work that a contractor plans to perform
because contractors have no role in determining future TAT work
and TAT work dealing with emergencies cannot be planned.
We disagree. In many cases, TAT work is planned and advance
site information is provided to contractors by EPA. Therefore,
the final clause includes the requirement that a contractor shall
not perform remedial construction work on a site where it has
knowledge that it will be performing TAT work for EPA, unless
otherwise authorized by the EPA contracting Officer.
13. Alternate II (TAT) paragraph (d)(3) ~ Site specific
limitations. One commenter suggested the restriction on TAT
contractors be site specific rather than a restriction covering
the entire zone. The commenter further stated that alternate
zone contractors should be used if conflicts arise.
We disagree. TAT contracts are established to provide TAT
type activities, including TCRR oversight,, on potentially, all
sites within the geographic area. If contractors perform work
for PRPs on sites within the geographic area, and if EPA vere to
require oversight on these sites, EPA's ability to plan and
promptly coanence oversight work would be significantly impaired.
Geographic crossovers are possible in a few unusual
circumstances. However, the administrative cost and additional
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time associated with this process for a number of sites pose too
large a risk to the effective operation of the TAT program.
14. Alternate III (ESAT) — LOFC applicability to ESAT.
One commenter recommended we delete this Alternate since an LOFC
clause is not appropriate for ESAT work. We disagree. This
clause contains.the limitation on future performance where the
contractor develops the specifications or statement of work under
a Superfund contract. This limitation is common to all Superfund
contracts including ESAT.
15. Alternate IV (TES) paragraph (b) — Remove or limit
restriction. One commenter suggested that the TES LOFC clause be
limited to CERCLA activities by a private party at the NPL sites
where work was performed under TES contracts. The commenter
stated that requiring future contracting requests for any work of
a remedial nature within the regions covered by a TES contract is
arbitrary and inconsistent with the requirements of actual site
work required under other EPA contracts.
It is our intent for paragraph (b) to cover the entire
geographic area covered by the contract. The TES clause coverage
is different than the other clauses because of the special
sensitivity of TBS work which includes support for enforcement
cases. We have seriously considered the recommendation to change
this language. However, because of the high sensitivity of
enforcement work, we believe this provision is necessary to best
protect the Agency's enforcement and cost recovery cases.
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Moreover, because of the sensitivity of all Superfund enforcement
work, the clause cannot just be limited to CERCLA activities at
NPL sites.
16. Alternate IV (TES) paragraph (d) — Broaden TES LOFC
restriction. One commenter recommended TES contractors should
be absolutely prohibited from working for private sector PRPs in
order to avoid the potential for compromising enforcement related
data. Although we agree that TES work is highly sensitive, we
believe the rule provides adequate measures to protect EPA's
interests. To broaden the LOFC clause would be too restrictive
to competition.
17. Alternate V (Headquarters Support) paragraph (c) —
Response action work. Several commenters expressed concern about
the vagueness of the term "response action work* and asked if it
had the same meaning as the SARA definition of "response action
contract". To clarify the term "response action work", we
included a number of examples in the proposed and the final
clause. The examples in the final.clause include ARCS, TCRR,
TAT, and TES contracts. Jt is our intention that "response
action vork" have the same definition as "response action
contract" provided in CERCLA Section 119, as amended by SARA.
However, we have included, in the prescription to this clause,
authorization for the Contracting Officer to modify this
paragraph to reflect any unique limitations applicable to the
program requirements.
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18. Alternate VI (Site Specific) — Site specific contracts
for construction or other non-discretionary work. Some
commenters assumed that this clause would primarily affect
construction contractors and recommended that EPA not apply this
clause to site specific contracts which are for construction.
Another commenter suggested that work which a contractor believes
is non-discretionary should also be exempted.
We disagree. When a solicitation, prime contract or work
assignment is issued solely for construction work or for work
that the contractor believes is non-discretionary, the offeror or
contractor can request that the LOPC clause be modified or
waived. The Contracting Officer has the authority to approve the
request if the work does not pose a high risk of conflict to the
Superfund program.
19. Alternate VI (Site Specific) paragraph (b) — Site
specifications. One commenter suggested that the words "for the
site" be inserted in paragraph (b) of the clause so that the
clause would only apply to EPA solicitations for the site, we
disagree. Specification* could be developed under a site
specific contract which may be included in other EPA
solicitations.
EPAAR 1552.210-80. Annual Certification, is added to require
all Superfund contractors that do not provide other EPA conflict
of interest certifications during contract performance to certify
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annually that all organizational conflicts of interest have been
reported to EPA, and contractor employees have been informed of
their obligation to report conflicts.
As a result of public comment, the following changes are
made to the clause and its prescription:
— The proposed annual certification requirement is changed
from applying to all Super fund contracts to only contracts where
the contract does not include the submission of other conflict of
interest certifications during contract performance. Superfund
contracts requiring annual certification include: site Specific
contracts and the Contract Laboratory Program (CLP) and the
Sample Management Office (SMO) contracts. This change is made in
response to comments that multiple certification requirements are
duplicative and overburdensome.
— To simplify the clause, the update of conflict of
interest plan requirement, which was included in the proposed
rule's clause, EPAAR 1552.210*78, Annual Certification and Update
of Conflict of Interest Plan, has been removed and, under the
final rule, is redesignated as EPAAR 1552.210-81, Update of
conflict of interest Plan, its prescription has also been
removed from the proposed rule's prescription, EPAAR 1510.011-78,
Annu e*tion and Qpdate of Conflict of Interest Plan.
and, under the final rule, is redesignated as EFAAR 1510.011-81,
Uodate of Conflict of Interest Plan.
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— The annual certification requirement in the proposed
rule's EPAAR 1552.210-78 and the prescription EPAAR 1510.011-78
is designated, under the final rule, as EPAAR 1552.210-80, Annual
Certification, and its prescription is EPAAR 1510.011-80, Annual
Certification.
— The requirement that contractors certify annually that
all personal conflicts of interest have been reported is changed
to "the Contractor shall certify that it has informed its
personnel who perform work under EPA contracts or relating to EPA
contracts of their obligation to report personal and
organizational conflicts of interest to the contractors." This
change was made in response to public comments that it is unfair
and overburdensome to require contractors to certify that
personal conflicts have been reported since contractors have to
rely on their personnel to report such conflicts.
— The term "apparent" has been removed in response to
comments that the term is vague and difficult to define.
— The prescription to this clause has been changed to be
consistent with the prescription to the Organizational Conflict
of Interest clauM. The final prescription, EPAAR 1510.011-80,
Annual Certification, includes a small purchase limitation
threshold.
Other comments and our response include:
1. Timing of submittal of annual certification. One
comment expressed concern that the timing of the annual
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certification should be changed to a date certain or tied to a
company's fiscal year calendar. We retain the requirement that
the annual certification cover a one year period from time of
award, and all subsequent certifications shall cover successive :
annual periods thereafter. Such certification must be received
by the Contracting Officer no later than 45 days after the close
of the certification period covered. However, if a contractor
has sufficient justification to change the filing date, the
contractor may submit a request to the Contracting Officer who
can consider the request for an adjustment and has the authority
to modify the contract accordingly.
1552.210-81. Update of Conflict of Interest Plan, is added
to require contractors to provide the Contracting Officer with an
annual update of any changes in the contractor's conflict of
interest plan submitted with its proposal.
As a result of public comment the following changes are
made to the clause and its prescription:
— To simplify the clauses, the Conflict of Interest Plan
requirement has been removed from the proposed rule's EPAAR
1552.210-78, Annual Certification and Update of Conflict of
interest Plan, and, under the final rule, is redesignated as
EPAAR 1552.210-81, Update of Conflict of Interest Plan. Its
prescription has also been removed from the proposed rule's
prescription, EPAAR 1510.011-78, Annual Certification and Update
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of Conflict of interest Plan, and, under the final rule, is
redesignated as EPAAR 1510.011-81, Update of Conflict of Interest
Plan.
— The prescription to this clause has been changed to be
consistent with the prescription to the Organizational Conflict
of Interest Clause. The final prescription, EPAAR 1510.011-81,
Update of Conflict of Interest Plan, includes a small purchase
limitation threshold.
Other comments and our response include:
1. Clarification of conflict of interest plan, evaluation
process and confidential data. Some commenters recommended that
we clarify what should be in a conflict of interest plan and the
evaluation process and exclude confidential data. The
requirement for update of any changes in the conflict of interest
plan is for Superfund contracts for which a conflict of interest
plan was submitted. Conflict of interest plans are only required
for solicitations in which the Contracting Officer makes a
determination that a significant potential for conflict of
interest exists. Any requirements for conflict of interest plans
and information regarding their evaluation will be included in
individual colicitations. If any confidential information is
provided, e.g., sensitive corporate structure information, the
contractor should mark it accordingly and it will be safeguarded
to the full extent of the law.
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EPAAR 1552.212-71. Work, Asaianments. is amended to add an
alternate clause to be used for all Superfund contracts which do
not require annual certifications. The alternate clause requires
contractors to certify within 20 days of receipt of a work
assignment that all actual or potential organizational conflicts
of interest have been reported to the Contracting Officer, or
that no actual, or potential organizational conflicts of interest
exist. Where work assignments are issued under a contract for
work related to a site, a contractor is only required to provide
a certification for the first work assignment issued for that
site under the contract. In addition, the clause requires a
contractor to certify that its personnel who perform work under
this work assignment or relating to this work assignment have
been informed of their obligation to report personal and
organizational conflicts of interest.
In response to public comments the following changes have
been made:
— The work assignment certification requirement under the
proposed rule has been reduced from applying to all Superfund
contracts to only Superfund contracts that are not required to
submit annual certifications in accordance with EPAAR 1552.210-
80. This change was made in response to comments that the
certification requirements were overly burdensome and
duplicative.
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— The final rule's prescription to the work assignment
clause, paragraph (b) of EPAAR 1512.104, Contract clauses.
reflects the reduction in certification requirement by stating
that the work assignment certification provision is not used for
contracts which require annual conflict of interest
certifications (e.g., Site Specific contracts and the Contract
Laboratory Program (CLP) and the Sample Management Office (SMO)
contracts) .
— The number of work assignment certifications required has
also been reduced to minimize contractor burden. Where contracts
include site work, the final clause only requires contractors to
provide a conflict of interest certification for the first work
assignment under the contract issued for that site. For all
subsequent work for that site, under the contract, the contractor
has a continuing obligation to search and report any actual or
potential conflicts but no additional conflict of interest
certifications are required. To reflect this obligation, the
certification includes a statement that the contractor recognizes
its continuing obligation to identify and report any actual or
potential conflict of interest arising during performance of this
work assignment or other work related to this site.
— The time of work assignment certification has been
extended to 20 days after receipt of work assignment. This
change was made in response to comments that five days is
insufficient time to search and certify.
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-r- Th« requirement that.a contractor certify that all
personal conflicts of interest have been reported has been
removed. The final clause requires a contractor to certify only
that it has informed its personnel who perform work under this
work assignment or relating to this work assignment of their
obligation to report personal and organizational conflicts of
interest to the contractor. This change was made in response to
public comments that it is unfair and too burdensome to require
contractors to certify that personal conflicts have been reported
since contractors have to rely on their personnel to report such
conflicts and all that should be required is a good faith effort
to obtain such information.
—The term "apparent" has been removed from this clause in
response to comments that the term is vague and difficult to
define.
EPAAR 15S2.227-76. Prtrleet Employee Confidentiality
Aaracmant. im added to ensure that EPA enforcement efforts under
the Superfund program are not damaged by contractor employees'
release of information which has either been provided to the
contractor by the Government or first generated under contract.
Employees of contractors will be prohibited from release of such
information to any parties external to EPA, the Department of
Justice or the contractor without permission of the EPA
contracting Officer. Superfund contractors will be required to
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obtain confidentiality agreements from all employees working on
requirements under the contract. The contractor must also
include the clause in all subcontracts and consultant agreements
unless specifically excluded under this clause.
As a result of public comment, the following changes have
been made:
— "Including subcontractors and consultants" is removed
from paragraph (a) in response to: (1) comments that it is
redundant because of the mandatory flow down provision; and (2)
commenters1 mistaken interpretation that the proposed clause
required contractors to maintain files for their subcontractors.
— The language in the prescription to this clause, EPAAR
1527.409 Solicitation provisions and contract clauses, has been
changed to be consistent with prescription for the Organizational
Conflict of Interest Clause. The final prescription includes a
small purchase limitation threshold.
Other comments and EPA's response include:
1. Exemption of lover level employees. Some commenters
stated that contractors' lover level employees should be exempted
from the requirement that contractors obtain confidentiality
agreements from all employees working under requirements of the
EPA contract. We disagree. Because of the sensitivity of
Superfund work and the potential for serious damage to
enforcement effort* as a result of unauthorized release of
information at any level, ve cannot exempt any employees working
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under the requirements of the EPA contract. However, it is not
our intention to impose an undue hardship on our contractors. To
comply with this clause, it would suffice for contractors to
obtain one non-disclosure agreement from its employees who work
on multiple EPA contracts.
2. Scope of information. One commenter stated that it is
unrealistic to limit discussion of information already in the
public domain and one commenter stated that this clause should
not preclude disclosure of information routinely disclosed in the
normal course of business. We disagree. This clause's
limitation is on data of a sensitive nature provided by the
Government or first generated during contract performance. Such
information should not be categorically authorized for release.
However, if a contractor believes such information may be
releasable, the contractor may, on a case by case basis, request
written permission from the EPA Contracting Officer to disclose
such information. Such requests will be carefully evaluated to
ensure adequate protection of sensitive information.
3. Liability for post-employment release of information.
One commenter expressed concern that contractors have no control
over employees after their employment and that EPA should make it
clear that contractors are not liable for employees who have left
their employment. He agree that contractors should not be held
liable for employees breaching confidentiality agreements after
they have left the firm. The intent of this clause is to have
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contractors obtain confidentiality agreements from employees to
ensure that employees are aware of their obligation not to
disclose sensitive information.
D. Executive Order 12291
OMB Bulletin No. 85-7, dated December 14, 1984, establishes
the requirements for Office of Management and Budget (OMB) review
of agency procurement regulations. This regulation does not fall
within any of the categories cited in this Bulletin requiring OMB
review.
E. Paperwork Reduction Act
The information collection requirements in this rule have
been approved by OMB under the Paperwork Reduction Act. 44 U.S.C.
3501 et sea, and have been assigned OMB control number -
Public reporting burden for this collection of information
is estimated to vary from 20 to 24 hours per response with an
average of 22 hours per response, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions
for reducing this burden to Chief, Information Policy Branch;
EPA; 401 M St., S.W. (PM-233); Washington, DC 20460; and to the
office of Information and Regulatory Affairs, Office of
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Management and Budget, Washington, DC 20530, narked "Attention:
Desk Officer for EPA."
F. Recmlatorv Flexibility Act
The rule may have moderate economic impact upon a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The following
regulatory flexibility analysis has been prepared.
Regulatory Flexibility Analysis
Conflict of Interest
1. Purpose.
The EPA is strengthening its existing Organizational
conflict of Interest EPAAR Clause and adding additional coverage
in the EPAAR to guard against conflicts of interest in work
performed under Superfund contracts. Prime contractors, non-
exempted subcontractors and consultants working under EPA
Superfund contracts will be required to have employees working on
requirements under contract sign confidentiality agreements.
Prime contractors, vill bet required to: notify EPA immediately of
any conflicts of interest regarding contractor or subcontractor
personnel working on the EPA contract; submit to EPA either a one
time per site certification for work issued under a work
assignment or an annual certification concerning disclosure of
conflicts of interest; and seek Contracting Officer approval of
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PRATT FIM1U.
other work when such work night conflict with work performed
under an EPA contract.
2. Affected Small Entities.
Saall entities awarded EPA Super fund contracts or small
entities serving as subcontractors or consultants under EPA
Superfund contracts will be affected. Presently, approximately
75 small entities are performing such contracts and subcontracts.
It is impossible to estimate the number of small businesses that
ultimately will receive EPA Superfund contracts or serve as
subcontractors or consultants under these contracts and, thereby,
be affected by this rule.
3. Description of projected reporting and recordkeeoina
requirements.
We estimate that businesses generally maintain data on the
work previously performed by the company in their normal business
practices which may also be used to prevent conflicts of
interest. For entities that maintain this data, there will be
limited additional coat* associated with reviewing, evaluating,
and reporting work previously performed and future work being
considered that may pose a conflict of interest. EPA does not
require any special type of system to identify and report
conflicts. Each contractor determines its own procedures for
searching and identifying conflicts of interest, and in some
cases, it may already have a process in place to identify
conflicts in its commercial business. An automated system to
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store and retrieve information is not required in order to
perform the functions associated with a conflict of interest
system. We anticipate that the scope of a company's procedures
would be commensurate with the company's size and complexity, and
for small businesses any system should be less complex and
detailed.
Since a significant portion of small business participation
in EPA programs occurs under subcontracts for classes of work
which are exempt under EPA's conflict of interest clauses, many
small businesses will not be affected by the provisions of this
rule. Moreover, at any time, a small business operating as
either a prime contractor or a subcontractor may request waiver
of clause requirements for non-discretionary work which poses a
minimal risk of conflict of interest. The total impact upon
small business should be significantly less than the impact upon
large business.
Depending on the specific contract, contractors will
either bo required to certify annually that all actual or
potential conflicts of interest have been reported to EPA during
the preceding year of the contract or certify on a work
assignment basis for work first performed at a site. The
significant change to the final rule, in which certifications
have been reduced from three to one, results in a substantial
reduction in the total effort required to comply with the
requirements of this rule. Because small businesses generally
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have less complex organizational structures and less data to
maintain and search, the burden associated with search and
certification requirements for small business should be
substantially less than the burden applicable to a large
business.
EPA anticipates that any cost increases experienced by these
entities may be chargeable to Government contracts under the
provisions of FAR Part 31.
In addition to concerns about data and certification burden
which have been addressed above, a comment was submitted
expressing concern that responding to the questionnaire, which
EPA included in a January 1990, memorandum regarding conflicts of
interest, would add significantly to the contractor burden. As
stated in Part B of the preamble to this rule, General Comment iff
this memorandum has been superseded, and the questionnaire is not
required. Another commenter expressed concern that the burden
associated with requests for future contracting had not been
considered in the calculation of burden. In fact, the burden
associated with request* for future contracting was considered in
this analysis and is reflected in the calculations contained in
the initial and final Information Collection Request.
4. Federal rules which may duplicate, overlap, or conflict with
- the rule.
The EPA reviewed the FAR coverage on organizational
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conflicts of interest and rights in data, which this rule
supplements.
The FAR requires contracting Officers to identify and
evaluate potential organizational conflicts of interest before
contract award and to avoid, neutralize or mitigate significant
potential conflicts. This rule fulfills and is consistent with
these requirements. In addition, this rule will address
limitations on a firm's other contracting efforts during contract
performance, and in some cases after completion of the work
assignment or other similar tasking document, or after
performance of the EPA work contract. The FAR also recognizes
that Federal agencies may restrict a contractor's right to
distribute or use data first produced in performance of a
contract when necessary in the furtherance of the agency mission
objectives. The rule's requirement for contractor employees
working under Superfund contracts to sign confidentiality
agreements restricting release of contract data and other
information generally conforms to these FAR requirements.
The EPA also reviewed the Office of Federal Procurement
Policy (OFPP) Policy Letter 89-1, dated December 8, 1989, dealing
with consultants and conflicts of interest and FAC 90-1 which
implemented the OFPP Policy Letter as well as amended FAR Subpart
9.5. The OFPP Policy Letter deals with conflict of interest
standards for advisory and assistance service contracts and
marketing consultants to contractors. The EPA rule specifically
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addresses EPA contracts and subcontracts under the Superfund
program. Although the OFPP Policy Letter, FAC 90-1 and the EPA
rule have the same general objectives of identifying, avoiding
mitigating, and neutralizing conflicts of interest, the EPA
provisions include reporting requirements to ensure that
conflicts of interest are reviewed not only prior to contract
award, but also during the period of contract performance and
after contract performance to ensure enforcement actions are not
jeopardized. It is only in this way that EPA can examine whether
a contractor's work efforts, which may be initiated during the
EPA contract performance period or in some cases thereafter, may
present an unacceptable risk to the Agency. This rule does not
duplicate, overlap, or conflict with other Federal rules.
5. Alternatives to the Rule.
EPA considered alternatives to the final rule, such as
establishing different compliance or reporting requirements or
simplifying the requirements for small entities. EPA also
considered exempting small entities from all or part of the rule.
EPA concluded that the stated objectives cannot be met under such
alternatives; An undisclosed conflict of interest poses the same
risk to EPA whether it is a conflict involving a large or small
business contractor. EPA believes the final rule, along with
other established internal controls within the Agency, will avoid
actual or potential conflicts of interest that may jeopardize
future actions by the Agency.
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Contract clauses, Contract delivery or performance,
Contractor qualifications, Copyrights, Data, Government
procurement, Patents, Purchase descriptions, Solicitation
provisions, Specifications, Standards
For the reasons set out in the preamble, Chapter 15 of Title
48 Code of Federal Regulations is amended as set forth below:
1. The authority citation for Parts 15*9, 1510, 1512, 1527,
and 1552 continues to read as follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(C).
PART 1509—CONTRACTOR QUALIFICATIONS
2. Subpart 1509.5 is amended by: redesignating section
1509.506 as 1509.505-70; redesignating section 1509.507 as
1509.506 and revising paragraph (b) by placing a period after
"Contracting Officer's decision" and removing the remainder of
the paragraph; redesignating section 1509.508 as 1509.507-1, and
renaming the section "Solicitation provisions."; revising the
reference in 1509.507-1(a)(1) to "FAR 9.507-1"; revising the
reference in parentheses in 1509.507-1(b) to "Section 1509.507-
l(a)(l)"; redesignating section 1509.508(c) as 1509.507-2
"Contract clause." and revising the paragraph by placing a second
period after "developed* and removing the remainder of the
section; and redesignating section 1509.509 as 1509.508.
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3. Section 1509.507-2 is amended to read as follows:
1509.507-2 Contract clause.
(a) The Contracting Officer shall include the clause at
1552.209-71 in all contracts in excess of the small purchase
limitation and, as appropriate, in small purchases. Contracts
for other than Superfund work shall include Alternate I in this
clause in lieu of paragraph (e).
(b) The Contracting Officer shall include the clause at
1552.209-73 in all solicitations and contracts for Superfund work
in excess of the small purchase limitation and, as appropriate,
in small purchases for Superfund work.
(c) The contracting Officer shall include the clause at
1552.209-74 or its alternates in the following solicitations and
contracts for Superfund work in excess of the small purchase
limitation and, as appropriate, in small purchases for Superfund
work. The Contracting Officer shall include the clause at
1552.209-74 in all Alternative Remedial Contracting strategy
(ARCS) and Remedial Engineering Management (REM) solicitations
and contracts, except Site Specific solicitations and contracts.
Alternate Z shall be used in all Time Critical Rapid Response
(TCRR) solicitations and contracts, except site specific
solicitations: and contracts. The term "TCRR" in the Limitation
of Future Contracting clauses includes not only TCRR
solicitations and contracts but Emergency Response Cleanup
Services (ERCS) and other eaergency type solicitations and
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contracts. TCRR pilot scale studies are included in the tern
"treatability studies". Alternate II shall be used in all
Technical Assistance Team (TAT) solicitations and contracts.
Alternate III shall be used in all Environmental Services
Assistance Team (ESAT) solicitations and contracts. Alternate IV
shall be used in all Technical Enforcement Support (TES)
solicitations and contracts. Alternate V shall be used in all
Superfund Headquarters Support solicitations and contracts. The
Contracting Officer is authorized to modify paragraph (c) of
Alternate V to reflect any unique limitations applicable to the
program requirements. Alternate VI shall be used in all Site
Specific solicitations and contracts.
(d) Clauses for incorporation into contracts existing as of
the effective date of this rule shall be negotiated by the EPA
Contracting Officer, on a case by case basis, and shall be
substantially similar to those prescribed in this section.
PART 1510—SPECIFICATIONS, STANDARDS, AND OTHER DESCRIPTIONS
4. Part 1510 is amended by adding section 1510.011-80 and
1510.011-81 to read as follows:
1510.011-80 Annual Certification.
The. Contracting Officer shall insert the clause at
1552.210-80 in Superfund solicitations and contracts in excess of
the small purchase limitation, where the solicitation or contract
does not include EPAAR 1552.212-71, Work Assignments. Alternate
I, or a similar clause requiring conflict of interest
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certifications during contract performance.
This clause requires an annual conflict of interest
certification from contractors when the contract does not require
the submission of other conflict of interest certifications
during contract performance. Contracts requiring annual
certifications include: Site Specific contracts and the Contract
Laboratory Program (CLP) and the Sample Management Office (SMO)
contracts.
The annual certification requires a contractor to certify
that all organizational conflicts of interest have been reported,
and that its personnel performing work under EPA contracts or
relating to EPA contracts have been informed of their obligation
to report personal and organizational conflicts of interest to
the Contractor. The annual certification shall cover the one-
year period from the date of contract award for the initial
certification, and a one-year period since the previous
certification for subsequent certifications. The certification
must be received by the Contracting Officer no later than 45 days
after the close of the certification period covered.
1510.011-81 Update of Conflict of Interest Plan.
The Contracting Officer shall insert the clause at
1552.210-81 in Superfund solicitations and contracts in excess of
the small purchase limitation, when the submission of a conflict
of interest plan is required by the solicitation.
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This clause requires a contractor to report annually any
changes made to the conflict of interest plan submitted with its
offer. (A requirement for an offerer to submit a conflict of
interest plan is established in individual solicitations where a
determination is made that a significant potential for conflict
of interest exists.) This update shall cover any changes to the
plan during the one-year period after the date of contract award,
and all subsequent reports of any changes shall cover successive
annual periods thereafter. This report notifying the EPA
Contracting Officer of any changes to the conflict of interest
plan must be received by the Contracting Officer no later than 45
days after the close of the annual period. If there have been no
changes to the conflict of interest plan during the annual
period, no report notifying the Contracting Officer is required.
PART 1512— CONTRACT DELIVERY OR PERFORMANCE
5. Section 1512.104 is amended by adding a sentence at the
end of 1512. 104 (b) to read as follows:
1512.104 Contract clauses.
*****
(b) * * * For Suparfund contracts, except for contracts
which require annual conflict of interest certifications (e.g.,
Site Specific contracts and the Contract Laboratory Program (CLP)
and Sample Management Office (SMO) contracts) , the Contracting
Officer shall use the clause with its Alternate I.
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PART 1527—PATENTS, DATA, AND COPYRIGHTS
6. Part 1527 is amended by adding Subpart 1527.4,
consisting of section 1527.409, to read as follows:
Subpar 1527.4—RIGHTS IN DAVA AND COPYRIGHTS
1527.409 Solicitation provisions and contract clauses.
The Contracting Officer shall insert the clause in 1552.227-
76 in all Superfund solicitations and contracts in excess of the
small purchase limitation and, as appropriate, in small
purchases. The clause may be used in other contracts if
considered necessary by the Contracting Officer.
PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Subpart 1552 is amended by: revising the reference in
the introductory sentence of 1552.209-70 to "1509.507-1(b)"?
revising the reference in the introductory sentence of 1552.209-
71 to "1509.507-2"? and revising the reference in the
introductory sentence of 1552.209-72 to "1509.507-1(b)".
8. Section 1552.209-71 is amended by removing paragraph (d)
of the clause; redesignating paragraph (c) of the clause as
paragraph (d); in newly redesignated paragraph (d) inserting the
word "it" after the vord "disclose"; revising paragraph (b) of
the clause; and adding new paragraphs (c) and (e) to the clause
to read as follows:
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1552.209-71 Organizational Conflicts of Interest.
*****
ORGANIZATIONAL CONFLICTS OF INTEREST
(XXX 1991)
*****
(b) Prior to commencement of any work, the Contractor
agrees to notify the Contracting Officer immediately that, to the
best of its knowledge and belief, no actual or potential conflict
of interest exists or to identify to the Contracting Officer any
actual or potential conflict of interest the firm may have. In
emergency situations, however, work may begin but notification
shall be made within five (5) working days.
(c) The Contractor agrees that if an actual or potential
organizational conflict of interest is identified during
performance, the Contractor will immediately make a full
disclosure in writing to the Contracting Officer. This
disclosure shall include a description of actions which the
Contractor has taken or proposes to take, after consultation with
the Contracting Officer, to avoid, mitigate, or neutralize the
actual or potential conflict of interest. The Contractor shall
continue performance until notified by the Contracting Officer of
any contrary action to be taken.
*****
(e) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
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consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical
services, provisions which shall conform substantially to the
language of this clause, including this paragraph (e) , unless
otherwise authorized by the Contracting Officer.
(End of clause)
ALTERNATE I to Paragraph (e)
(e) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder provisions which shall
conform substantially to the language of this clause, including
this paragraph (e) , unless otherwise authorized by the
contracting Officer.
9. Section 1552.209-73 is added to read as follows:
1552.209-73 Notification of Conflicts of Interest Regarding
Persopnel.
As prescribed in 1509.507-2(b) insert the following clause:
NOTIFICATION OF CONFLICTS OF INTEREST
REGARDING PERSONNEL (XXX 1991)
(a) In addition to the requirements of the contract clause
entitled "Organizational Conflicts of Interest," the following
provision* with regard to employee personnel performing under
this contract shall apply until the earlier of the following two
dates: the termination date of the affected employee(s) or the
expiration date of the contract.
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(b) The Contractor agrees to notify immediately the EPA
Project Officer and the Contracting Officer of (1) any actual or
potential personal conflict of interest with regard to any of its
employees working on or having access to information regarding
this contract, or (2) any such conflicts concerning subcontractor
employees or consultants working on or having access to
information regarding this contract, when such conflicts have
been reported to the Contractor. A personal conflict of interest
is defined as a relationship of an employee, subcontractor
employee, or consultant with an entity that may impair the
objectivity of the employee, subcontractor employee, or
consultant in performing the contract work.
(c) The Contractor agrees to notify each Project Officer and
Contracting Officer prior to incurring costs for that employee's
work when an employee may have a personal conflict of interest.
In the event that the personal conflict of interest does not
become known until after performance on the contract begins, the
Contractor shall immediately notify the Contracting Officer of
the personal conflict of interest. The Contractor shall continue
performance of this contract until notified by the Contracting
Officer of the appropriate action to be taken.
(d) The Contractor agrees to insert in any subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for well drilling, fence erecting,
plumbing, utility hookups, security guard services, or electrical
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services, provisions which shall conform substantially to the
language of this clause, including this paragraph (d), unless
otherwise authorized by the Contracting Officer.
(End of clause)
10. Section 1552.209-74 is added to read as follows:
1552.209-74 Limitation of Future Contracting.
As prescribed in 1509.507-2(c), insert the following clause
or alternate:
r
LIMITATION OF FUTURE CONTRACTING (ARCS)
(XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) The Contractor will be ineligible to enter into a
contract for remedial action projects for which the Contractor
has developed the statement of work or the solicitation package.
(c) The following applies when ARCS work is performed under
this contact and when both ARCS work and Field Investigative Team
(FIT) work are performed on the same site under this contract:
Unless prior written approval is obtained from the cognizant EPA
Contracting Officer, the Contractor, during the life of tl» work
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assignment and for a period of five (5) years after the
completion of the work assignment, agrees not to .enter into a
contract with or to represent any party, other than EPA, with
respect to: (1)- any work relating to CERCLA. activities which
pertain to a site where the Contractor previously performed work
for EPA under this contract; or (2) any work that may-jeopardize
CERCLA enforcement actions which pertain to a site where the
Contractor previously performed work for the. EPA under this
contract.
(d) The following applies to FIT work at sites under this
contract where only FIT work is performed, except for those sites
where EPA has made a determination of "no further remedial action
planned" (NFRAP): Unless prior written approval is obtained from
the cognizant EPA Contracting Officer, the Contractor, during the
life of the work assignment and for a period of three (3) years
after the completion of. the work assignment, agrees not to enter
into a contract with or to represent any party, other than EPA,
with respect to: (1) any work relating to CERCLA activities
which pertain to a site where the Contractor previously performed
work for EPA under this contract; or (2) any work that may
jeopardize to CERCLA enforcement actions which, pertain to a site
where the Contractor previously performed work for the EPA under
this contract.
(e) The Contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
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written approval of the Contracting Officer prior to entering
into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
for authorization to enter into the contract is denied or
approved.
(f) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(g) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (g) unless otherwise authorized by the Contracting
Officer.
(h) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
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Contracting Offleer's.organization. An adverse determination
resulting from a request for reconsideration by the Contracting.
Officer will not preclude the contractor from revesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
LIMITATION OF FUTURE CONTRACTING
ALTERNATE I (TCRR) (XXX 1991)
(a) The parties to this contract agree that the contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) If the Contractor, under the terms of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
work described in that solicitation as a prime Contractor or
subcontractor under .an ensuing EPA contract.
(c) Unless prior written approval is obtained from the
cognizant EPA Contracting Officer, the Contractor, during the
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life of the delivery order or tasking document and for a period
of five (5) years after the completion of the delivery order or
tasking document, agrees not to enter into a contract with or to
represent any party, other than EPA, with respect to: (1) any
work relating to CERCLA activities which pertain to a site where
the Contractor previously performed work for EPA under this
contract; or (2) any work that may jeopardize CERCLA enforcement
actions which pertain to a site where the Contractor previously
performed work for the EPA under this contract.
(d) During the life of this contract, including any
options, the Contractor agrees that unless otherwise authorized
by the Contracting Officer:
{lj It will not provide any Technical Assistance Team (TAT)
type activities (e.g., TAT contracts) to EPA within the
Contractor's Time Critical Rapid Response (TCRR) assigned
geographical area(s), either as a prime contractor,
subcontractor, or consultant.
(2) It will not provide any Technical Assistance Team (TAT)
type activities (e.g., TAT contracts) to EPA as a prime
contractor, subcontractor or consultant at a site where it has
performed or plans to perform TCRR work.
(3) It will be ineligible for award of TAT type activities
contracts for sites within its respective TCRR assigned
geographical area(s) which result from a CERCLA administrative
order, a CERCLA or RCRA consent decree or a court order.
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(e) The Contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
written approval of the Contracting Officer prior to entering
into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
for authorization to enter into the contract is denied or
approved.
(f) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(g) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (g), unless otherwise authorized by the
Contracting Officer.
(h) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
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reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
resulting from a request for reconsideration by the Contracting
Officer will not preclude the Contractor from requesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
LIMITATION OF FUTURE CONTRACTING
ALTERNATE II (TAT) (XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) If the Contractor, under the terns of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
work described in that solicitation as a prime Contractor or
subcontractor under an ensuing EPA contract.
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(c) Unless prior written approval is obtained from the
cognizant EPA Contracting Officer, the Contractor, during the
life of the technical direction document and for a period of five
(5) yesrs after the completion of the technical direction
document, agrees not to enter into a contract with or to
represent any party, other than EPA, with respect to: (1) any
work relating to CERCLA activities which pertain to a site where
the Contractor previously performed work for EPA under this
contract; or (2) any work that may jeopardize CERCLA enforcement
actions which pertain to a site where the Contractor previously
performed work for the EPA under this contract.
(d) During the life of this contract, including any
options, the Contractor agrees that unless otherwise authorized
by the Contracting Officer:
(1) It will not provide to EPA cleanup services (e.g., Time
Critical Rapid Response (TCRR) contracts) within the Contractor's
Technical Assistance Team (TAT) assigned geographical area(s),
either as a prime Contractor, subcontractor, or consultant.
(2) Unless an individual design for the site has been
prepared by a third party, it will not provide to EPA as a prime
contractor, subcontractor or consultant any remedial construction
services at a site where it has performed or plans to perform TAT
work. This clause will not preclude TAT contractors from
performing construction management services under other EPA
contracts.
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(3). It will be ineligible for award of TCRR type activities
contracts for sites within its respective TAT assigned
qeographical area(s) which result from a CERCLA administrative
order, a CERCLA or RCRA consent decree or a court order.
(e) The Contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
written approval of the Contracting officer prior to entering
into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
for authorization to enter into the contract is denied or
approved.
(f) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(g) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
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this paragraph (g), unless otherwise authorized by the
Contracting Officer.
(h) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
reconsideration to the Contracting officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
resulting from a request for reconsideration by the Contracting
Officer will not preclude the Contractor from requesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
LIMITATION OF FUTURE CONTRACTING
ALTERNATE III (ESAT) (XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) If the Contractor, under the terms of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
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specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
work described in that solicitation as a prime Contractor or
subcontractor under an ensuing EPA contract.
(c) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(d) . The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (d), unless otherwise authorized by the
Contracting Officer.
(e) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
resulting from a request for reconsideration by the Contracting
Officer will not preclude the Contractor from requesting a review
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by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
LIMITATION OF FUTURE CONTRACTING
ALTERNATE IV (TES) (XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) During the performance period of this contract, the
Contractor will be ineligible to enter into any contract for
remedial planning and/or implementation projects for sites within
the assigned geographical area(s) covered by this contract
without the prior written approval of the EPA Contracting
Officer.
(c) If the Contractor, under the terms of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
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work described in that solicitation as a prime Contractor or
subcontractor under an ensuing EPA contract.
(d) Unless prior written approval is obtained from the
cognizant EPA Contracting Officer, the Contractor, during the
life of the work assignment and for a period of seven (7) years
after the completion of the work assignment, agrees not to enter
into a contract with or to represent any party, other than EPA,
with respect to: (1) any work relating to CERCLA activities
which pertain to a site where the Contractor previously performed
work for EPA under this contract; or (2) any work that may
jeopardize CERCLA enforcement actions which pertain to a site
where the Contractor previously performed work for the EPA under
this contract.
(e) The Contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
written approval of the Contracting Officer prior to entering
into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
for authorization to enter into the contract is denied or
approved.
(f) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
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remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(g) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (g), unless otherwise authorized by the
Contracting Officer.
(h) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
resulting from a request for reconsideration by the.Contracting
Officer will not preclude the Contractor from requesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
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LIMITATION OF FUTURE CONTRACTING
ALTERNATE V (Headquarters Support)
(XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) If the Contractor, under the terms of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
work described in that solicitation as a prime Contractor or
subcontractor under an ensuing EPA contract.
(c) The Contractor, during the life of this contract, will
be ineligible to enter into a contract with EPA to perform
response action work (e.g., Alternative Remedial Contracting
Strategy (ARCS), Time Critical Rapid Response (TCRR), Technical
Assistance Team (TAT), and Technical Enforcement Support (TES)
contracts), unless otherwise authorized by the Contracting
Officer.
(d) The contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
written approval of the Contracting Officer prior to entering
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into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
ror authorization to enter into the contract is denied or
approved.
(e) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(f) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (f), unless otherwise authorized by the
Contracting Officer.
(g) A review process available to the Contractor when an
adverse determination is received shall consist of a request for
reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
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resulting from a request for reconsideration by the Contracting
Officer will not preclude the Contractor from requesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
LIMITATION OF FUTURE CONTRACTING
ALTERNATE VI (Site Specific)
(XXX 1991)
(a) The parties to this contract agree that the Contractor
will be restricted in its future contracting in the manner
described below. Except as specifically provided in this clause,
the Contractor shall be free to compete for contracts on an equal
basis with other companies.
(b) If the Contractor, under the terms of this contract, or
through the performance of work pursuant to this contract, is
required to develop specifications or statements of work and such
specifications or statements of work are incorporated into an EPA
solicitation, the Contractor shall be ineligible to perform the
work described in that solicitation as a prime Contractor or
subcontractor under an ensuing EPA contract.
(c) Unless prior written approval is obtained from the
cognizant EPA Contracting Officer, the Contractor, during the
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life of the contract and for a period of five (5) years after th.3
expiration of the contract agrees not to enter into a contract
with or to represent any party, other than EPA, with respect to:
(1) any work relating to CERCLA activities which pertain to the
site where the Contractor previously performed work for EPA under
this contract; or (2) any work that may jeopardize CERCLA
enforcement actions which pertain to the site where the
Contractor previously performed work for the EPA under this
contract.
(d) During the life of this contract, including any
options, the Contractor agrees that unless otherwise authorized
by the Contracting Officer:
(1) It will not provide any Technical Assistance Team (TAT)
type activities (e.g., TAT contracts) to EPA on the site either
as a prime contractor, subcontractor, or consultant.
(2) It will be ineligible for award of contracts pertaining
to this site which result from a CERCLA administrative order, a
CERCLA or RCRA consent decree or a court order.
(e) The Contractor agrees in advance that if any
bids/proposals are submitted for any work that would require
written approval of the Contracting Officer prior to entering
into a contract subject to the restrictions of this clause, then
the bids/proposals are submitted at the Contractor's own risk.
Therefore, no claim shall be made against the Government to
recover bid/proposal costs as a direct cost whether the request
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rim.
for authorization to enter into the contract is denied or
approved.
(f) To the extent that the work under this contract
requires access to proprietary or confidential business or
financial data of other companies, and as long as such data
remains proprietary or confidential, the Contractor shall protect
such data from unauthorized use and disclosure.
(g) The Contractor agrees to insert in each subcontract or
consultant agreement placed hereunder, except for subcontracts or
consultant agreements for nondiscretionary technical or
engineering services, including treatability studies, well
drilling, fence erecting, plumbing, utility hookups, security
guard services, or electrical services, provisions which shall
conform substantially to the language of this clause, including
this paragraph (g), unless otherwise authorized by the
Contracting Officer.
(h) A review process available to the Contractor when an
adverse determination i» received shall consist of a request for
reconsideration to the Contracting Officer or a request for
review submitted to the next administrative level within the
Contracting Officer's organization. An adverse determination
resulting from a request for reconsideration by the Contracting
Officer will not preclude the contractor from requesting a review
by the next administrative level. Either a request for review or
a request for reconsideration must be submitted to the
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appropriate level within 30 calendar days after receipt of the
initial adverse determination.
(End of clause)
11. Section 1552.210-80 is added to read as follows:
1552.210-80 Annual Certification.
As prescribed in 1510.011-80, insert the following clause:
ANNUAL CERTIFICATION
(XXX 1991)
The Contractor shall submit an annual conflict of
interest certification to the Contracting Officer. In this
certification, the contractor shall certify annually that, to the
best of the Contractor's knowledge and belief, all actual or
potential organizational conflicts of interest have been reported
to EPA. In addition, in this annual certification, the
Contractor shall certify that it has informed its personnel who
perform work under EPA contracts or relating to EPA contracts of
their obligation to report personal and organizational conflicts
of interest to the Contractor. Such certification must be signed
by a senior executive of the company and submitted in accordance
with instructions provided by the Contracting officer. The
initial certification shall cover the one-year period from the
date of contract award, and all subsequent certifications shall
cover successive annual periods thereafter, until expiration or
termination of the contract. The certification must be received
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by the Contracting Officer no later than 45 days after the close
of the certification period covered.
(End of clause)
12. Section 1552.210-81 is added to read as follows:
1552.210-81 Update of Conflict of Interest Plan
As prescribed in 1510.011-81, insert the following clause:
UPDATE OF CONFLICT OF INTEREST PLAN
(XXX 1991)
The Contractor shall submit an annual report of any changes
to the conflict of interest plan submitted with its offer. This
update shall cover any changes to the conflict of interest plan
in the one-year period after the date of contract award, and all
subsequent reports of any changes shall cover successive annual
periods thereafter, until expiration or termination of the
contract. The report notifying the EPA Contracting Officer of
any changes to the conflict of interest plan must be received by
the Contracting Officer no later than 45 days after the close of
the annual period. If there have been no changes to the conflict
of interest plan during the annual period, no report notifying
the Contracting Officer is required.
(End of Clause)
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13. Section 1552.212-71 is amended by adding Alternate I at
the end of the section:
1552.212-71 Work Assignments.
*****
Alternate I. As prescribed in 1512. 104 (b) , modify the
existing clause by adding the following paragraph (f) to the
basic clause:
(f) Within 20 days of receipt of the work assignment or
similar tasking document, the Contractor shall provide a conflict
of interest certification. Where work assignments or similar
tasking documents are issued under this contract for work on or
directly related to a site, the Contractor is only required to
provide a conflict of interest certification for the first work
assignment issued for that site. For all subsequent work on that
site under this contract, the Contractor has a continuing
obligation to search and report any actual or potential conflicts
of interest, but no additional conflict of interest
certifications are required.
In the certification, the Contractor must certify to the
best of the Contractor's knowledge and belief, that all actual or
potential organizational conflicts of interest have been reported
to the contracting Officer or that to the best of the
-.
Contractor's knowledge and belief, no actual or potential
organizational conflicts of interest exist. In addition, the
Contractor must certify that its personnel who perform work under
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this work assignment or relating to this work assignment have
been informed of their obligation to report personal and
organizational conflicts of interest to the Contractor. The
certification shall also include a statement that the Contractor
recognizes its continuing obligation to identify and report any
actual or potential conflicts of interest arising during
performance of this work assignment or other work related to this
site.
(End of clause)
14. Section 1552.227-76 is added to read as follows:
1552.227-76 Project Employee Confidentiality Agreement.
As prescribed in 1527.409, insert the following clause:
PROJECT EMPLOYEE CONFIDENTIALITY AGREEMENT
(XXX 1991)
(a) The Contractor recognizes that Contractor employees in
performing this contract may have access to data/ either provided
by the Government or first generated during contract performance,
of a sensitive nattore which should not be released to the public
without Environmental Protection Agency (EPA) approval.
Therefore, the Contractor agrees to obtain confidentiality
agreements from all of its employees working on requirements
under this contract.
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(b) Such agreements shall contain provisions which
stipulate that each employee agrees that the employee vill not
disclose, either in whole or in part, to any entity external to
EPA, the Department of Justice, or the Contractor, any
information or data (as defined in FAR Section 27.401} provided
by the Government or first generated by the Contractor under this
contract, any site-specific cost information, or any enforcement
strategy without first obtaining the written permission of the
EPA Contracting Officer. If a contractor, through an employee or
otherwise, is subpoenaed to testify or produce documents, which
could result in such disclosure, the Contractor must provide
immediate advance notification to the EPA so that the EPA can
authorize such disclosure or have the opportunity to take action
to prevent such disclosure. Such agreements shall be effective
for the life of the contract and for a period of five (5) years
after completion of the contract.
(c) The EPA nay terminate this contract for convenience, in
whole or in part, if it deems such termination necessary to
prevent the unauthorized disclosure of information to outside
entities. If such a disclosure occurs without the written
permission of the EPA Contracting Officer, the Government may
terminate the contract, for default or convenience, or pursue
other remedies as nay be permitted by law or this contract.
(d) The Contractor further agrees to insert in any
subcontract or consultant agreement placed hereunder, except for
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subcontracts or consultant agreements for well drilling, fence
erecting, plumbing, utility hookups, security guard services, or
electrical services, provisions which shall conform substantially
_> the language of this clause, including this paragraph, unless
otherwise authorized by the Contracting Officer.
(End of clause)
Date
John C. Chamber1in
Director
Office of Administration
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MINIMUM STANDARDS FOR EPA CONTRACTORS'
CONFLICT OF INTEREST PLANS
March 31, 1990
1. PURPOSE
The Environmental Protection Agency (EPA) has identified a need to
avoid, neutralize or mitigate actual, apparent, and potential contractor
Conflicts of Interest (COI). In order to avoid, neutralize or mitigate
conflicts, contractors are required to have a COI plan for identifying and
reporting actual, apparent, and potential COI. The purpose of this guide is
to set forth the minimum standards for a contractor's COI plan.
2. COI PLAN
The contractor's COI plan is a document that describes the way a
company identifies, avoids, neutralizes and mitigates COI. The, plan will
be evaluated to ensure contractor compliance with EPA's minimum
requirements for detecting and avoiding conflicts of interest.
3. MINIMUM STANDARDS FOR CONTRACTORS' COI PLANS
A. Corporate Structure
The plan shall describe any parent company relationship and list all
affiliates and subsidiaries that do environmental work. Generally, this
need not exceed three corporate tiers. The plan shall be updated annually
if there are any changes.
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B. Searching and Identifying COi
The COI plan shall include a requirement describing when a CO!
search must be performed and clearly identify the procedures to be
followed. The searching requirement shall encompass all work related to
all sites and all clients for whom work was performed over the past three
years, all current work, and any future work reflected in on-going
marketing proposals. Although OFPP Policy Letter 89-1 has limited record
searches to no more than 36 months, EPA recommends that a company
search as many years back as its records cover.
C. Data Base
The plan shall require a data base that includes all necessary
information for a contractor to review its past work, work in progress,
and work the company may be pursuing under any on-going marketing
proposals. The data base shall contain, at a minimum, the following
information and capabilities: (1) a list of the past sites a contractor has
worked on, (2) a list of the site name or names related to any work
performed, (3) a list of the company's past and current commercial and
public clients, (4) a description of the type of work that was performed
and any other pertinent information,, and (5) the ability to search and
retrieve the information in the data base. If applicable, the COI plan shall
include provisions for supplemental searches of a parent's, affiliates' or
subsidiaries' records. The plan shall also describe any crosschecks used.
by the contractor when searching COI issues.
The plan shall require that new work received by the company is
promptly added to the data base, and describe the process by which it is
entered and maintained.
D. Personal Certification
The plan shall require 3J1 employees of the company performing work
on a site, work relating to a site, or work pertaining to a CERCLA/RCRA
action or that may endanger a CERCLA enforcement action to sign a
certification. The certification shall require, at a minimum, that the
individual agrees to report to the proper authority, as identified by the
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company, any personal COI the individual may have on any work that may
result in an actual, apparent, or potential COI. It should also certify that
the individual has read and understands the company's COI plan and
procedures. The certification for each "employee shall be retained by the
company. ...•-•
E. Work Assignment fWA).' Technical Direction Document (TDD) or
Delivery Order (DO) Certification
The plan shall describe the process the company requires for
submission of its WA/TDD/DO COI certification.
F. Annual Certification
The plan shall describe the process the company requires for
submission of its annual COI certification.
G. Notification and Documentation
The plan shall clearly delineate who is the responsible official for
making COI determinations within the company. Generally, this would be
someone at a middle to upper level of management. The responsible
official shall be free of any personal conflicts for the purpose of making
COI determinations, (e.g., a program manager who receives bonuses based
on the total amount of sales may not be free of any conflicts).
The plan shall clearly identify the process that is required when
notifying the EPA of any actual, apparent, or potential COI and the actions
that the company has taken or will take to avoid, neutralize or mitigate
COI. In addition, a contractor shall document all COI searches related to
EPA work, whether or NOT an actual, apparent or potential COI has been
identified.
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H. Training '
The plan shall require all employees to receive basic COI training,
and that they receive COI awareness training at least annually. The
company's COI plan shall be available for ail employees to review. Annual
awareness training shall include, at a minimum, a review of the
certification language and any changes that may have occurred in the
company's COI plan. In addition, contractors are .encouraged to routinely
disseminate to their employees current COI information.
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CASE STUDY #1
I.
A. Work Requested bv Aqenqy
-Review of contingency plans and conduct Spill Prevention Containment, and Countermeasures
(SPCC) plan compliance inspection for Aleyeska pump station.
B. Reasons for Agency Request
-Recent Valdez Oil Spill (March 1 989) had precipitated a desire by the Agency to review all
pipeline plans in the area to prevent further oil disasters.
C. Previous Work Performed bv EPA Prime Contractor
-Contractor performed review of Trans Alaska Oil Pipeline (Aleyeska) right-of-way
contingency plan 10 years previous as a subcontractor to the prime contractor for the
Department of Interior. Also performed damage assessments and monitored restoration
programs in spill areas along right-of-way.
-Contractor was requested by British Petroleum, USA (BP) to work on its worldwide oil
contingency plan and resource mobilization at the same time as the Valdez spill. BP was a
primary member of Aleyeska.
-Contractor was not requested to perform work for other parties concerning the pump station.
D. Other Factors
-If the contractor requested by the Region could not be used, a Zone Crossover at additional
expense would be required.
-Contractor was not responsible for the spill contingency plan at the Valdez terminal nor for
the transportation through Prince William Sound.
-Exxon was the responsible party for the Valdez oil spill.
-Exxon is also a member of Aleyeska.
-Congressional interest on COI escalating at this time.
-No written Agency guidelines exist.
-FAR definition of COI states "unfair competitive advantage' or 'impairs contractor's
objectivity".
II. Questions to be Answered bv Work Group
A. Did the past work of the contractor impair its objectivity for performing the new requested
work?
B. Would the work to be performed by the contractor jeopardize any future cost
recovery/enforcement actions by the Agency?
C. Would future work to be performed by the firm be a consideration in the COI decision?
D. What would you determine? -"is this situation a conflict of interest? If so, what would you do?
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CASE STUDY *2
I.
A. Work Requested by the Agency
•REM contractor had been performing Rt/FS oversight since 1986 at SCP Carlstadt NPL site.
B. Reason for Aency Request
-Routine task under REM contract
C. Contractor Future Work Requested
-In 1988. REM contractor requested permission, in accordance with contract, to compete to
perform work for Morten Thiokol at Berry's Creek, a non-contiguous non-NPL site.
•PO approved request
-In 1990, PO discovered that the REM contractor was working for Morton Thiokol at the
Ventron Velsicoi NPL site which is linked not only by common PRPs but it is contiguous to the
SCP Carlstadt NPL site. The Ventron Vebtool site was a synonym for the Berry's Creek site
which the PO did not know in 1988. The REM contractor never informed the PO in 1988 that
these were the same sites.
D. Other Factors
-Morton Thiokol is a PflP at both Berry's Creek and the SCP Carlstadt sites.
-Morton Thiokol has initiated litigation against several other PRPs including those at the SCP
Carlstadt site.
-In performing work at Berry's Creek site for Morton Thiokol. REM contractor ^also had been
requested by Thiokol to perform project tracking for them on the SCP CarfstaoVsite.
II. Questions to be) Anawered bv the Work Group
A. Would the work being performed by the contractor jeopardtee any future cost
recovery/enforcement actions by the Agency?
B. Would work being performed for PRP be a consideration in the COI decision? Did it impair
the contractors objectivity?
C. What would you determine? Is this situation a conflict? If so. What would you do?
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CASE STUDY #3
I. Background
A. Work Requested bv Agency
-No work is currently required by the Agency.
B. Reason for Contractor contacting EPA
•The "Limitation of Future Contracting" clause in the prime contractor's contract requires
approval from the Contracting Officer before it can compete for other site work within its
Region. The contractor has submitted such a request.
C. Work to be Performed at Hardaoe /Criner NPL Sita
• The contractor requested approval to perform consulting and expert testimony services with
regard to cost recovery strategy for the PRPs on the site.
•The work to be performed would be for the Hardy/Criner site, a former industrial disposal
site in Oklahoma.
•A large PRP Steering Committee has already been formed to negotiate any settlements for the
site.
D. Other Factors
•The contractor is an existing prime ARCS contractor.
•The PRP Steering Committee membership is so large that the probability is very high that the
ARCS contractor would ultimately be performing some work for the Agency at another site(s)
involving these PRPs.
-Contractor has not had access to any Agency confidential material relating to this site.
II. Quest tons to be) Answered Bv The Work Group
A. Would the work being requested to be performed by the contractor jeopardize any future cost
recovery/enforcement actions by the Agency?
B. Would the type of work proposed to be performed for the PRPs be a consideration in the COl
decision? Would it impair the contractor's objectivity?
C. What would you determine? Is this situation a conflict or a potential COl? If so. what would
you do?
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Acronyms for COI Case Studies
COI: Conflict of Interest
FAR: Federal Acquisition Regulation
HEM: Remedial
RI/FS: Remedial Investigation/Feasibility Study
SCP: Scientific Chemical Property
NPL: National Priority List
PO: Project Officer
PRP: Potentially Responsible Party
ARCS: Alternative Remedial Contracting Strategy
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PO Checklist for COX Determinations
In determining what a recommendation should be, the PO should
answer questions similar to the following. Note: this is not an
all-inclusive list.
1. Is the contractor in a position to influence EPA
decisionmaJcing in a way which would benefit one or more of its
corporate interests? Does the contractor have the potential to
have this advantage?
2. Will the contractor perform work or oversight on a
project for which the firm is also performing design work for the
PFP(s)?
3. Could the contractor' s current or past relationship
with the PRP(s) influence any recommendations made to EPA and
decisionmaking by EPA?
4. Is there a potential for a transfer or "leak" of
sensitive information to the PRP(s)?
5. Could an otherwise acceptable work situation give an
appearance of a conflict of interest?
6. Will the recommendation prevent EPA from using the
contractor on a particular site in the future?
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7. Do diff erences in sites mitigate the conflict?
3. If the contractor has worked for the PBP(s) before, what
was the nature of that worJc? Could that impact on the worJc to be
performed for EPA?
9. Zf there is a previous relationship with the PRP(s)?
Would this impact on the enforcement strategy?
10. Is there a corporate separation between the entity
performing the work and the entity with a conflict of interest?
Does the corporate separation mitigate the conflict?
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CLOSING ACCOUNTS
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List of Cancellation Dates for Balances in Fixed Accounts
DATE
12/5/90
BALANCES
Unobligated
balances mat
expired at the end
Of FY 1988 or prior
fiscal years.
DATE
[9/30/94
BALANCES
Obligated and
unobligated
balances that
expired at the end
Of FY 1989.
13/6/91
Obligated balances
that expired at the
end of FY 1983 or
prior fiscal years.
Obligated and
unobligated
balances that
expired at the end
of FY 1990.
9/30/91 I
Obligated balances
that expired at the
end of FY 1984.
Obligated and
unobligated
balances that
will expire at the
end of FY 1991.
[9/30/92
Obligated balances
that expired at the
end of FY 1985.
Obligated and
unobligated
balances that
win expire at the
end Of FY 1992.
[9/30/93
Obligated balances
that expired at the
end of FY 1986,
FY 1987, and
FY1988.
Obligated and
unobligated
balances that
wilt expire at the
end Of FY 1993
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EPA ORDER 1900.2
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Cfassifiection No
Approval D«t«:
1900.2
October 22, 1990
CONTRACTING AT EPA
1. PURPOSE. This Order establishes Agency policy that (1)
prohibits contracting for certain activities at EPA and (2)
implements special management and control measures when contracting
for certain sensitive services.
2. BACKGROUND. EPA relies heavily on contractor support. Nearly
every EPA employee is involved with the contracting community in
one way or another. Thus, in a very real sense, most EPA
employees, including senior management, can be considered contract
managers.
Agency responsibility and accountability begin when a decision
is made to use contract support. And, having accepted a final
product from a contractor, EPA becomes responsible for its content
and for how it may be used in reaching Agency decisions.
The extent of the Agency's contracting, coupled with its
regulatory nature, create a strong potential for conflict of
interest with members of the contracting community. This problem
is .magnified when a limited number of contractors provide support
in a variety of potentially sensitive areas. EPA must consider
these facts when developing its contract requirements. It must be
judicious in: deciding the most effective ways to use its
contractors and look for ways of reducing the potentials for
conflicts of interest. And, if contract support has been used, EPA
must play a proactive role in ensuring a final Agency product that
is unbiased and represents Agency thinking. The final product
provided under a contract may assist EPA in reaching a decision;
however, a contractor should not make the decision for the Agency.
OMB Circular A-76 defines inherently governmental activities
as those "being so intimately related to the public interest as to
mandate performance only by Federal employees." Agency employees
must ensure that inherently governmental activities are performed
only by EPA employees.
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10/22/90
NOTE: For. purposes of this Order, "active contract managers"
are defined as Project Officers, Deputy Project Officers, work
Assignment Managers, Remedial Project Officers, On-Scene
Coordinators, Delivery order Officers, and Delivery Order
Project Officers. "EPA managers" consist of senior management
not directly involved in contract management.
3. . POLICY.
a. EPA vill not allow any of the following to be performed
under its contracts:
(1) The actual preparation of Congressional testimony.
Although it is permissible for a contractor to
perform basic research and retrieve factual data for the
Agency in its development of Congressional testimony, it
is the ultimate responsibility of EPA to develop and
issue it. The Agency spokesperson must present testimony
that is free from any contractor bias and any real or
potential conflicts of interest. Therefore, even if
preliminary research is performed by a contractor, it
must be carefully examined by Agency personnel for any
contractor partiality, favoritism, and conflicts of
interest, prior to its incorporation into the testimony.
The final document must be prepared by Agency personnel
to ensure that it fully represents the Agency's position.
The same rationale should be used when providing briefing
materials to congressional staffers. Finally, if work
is issued to a contractor for testimony support, it is
important that the statement of work for the assignment
reflect that these Agency limitations have been
established.
(2) The interviewing or hiring of individuals for
employment at:EPA.
BotH of these activities are inherently governmental
duties involving judgment and discretion and a legal
commitment on the part of the Government. They must
remain under the sole authority of EPA.
(3) Developing and/or writing of Position Descriptions
and Performance standards.
These activities are key to the effective staffing
and operation of EPA and are supervisory/management
responsibilities. Outside technical expertise specific
to a certain profession may sometimes be necessary but
contractors should not write our position descriptions.
Similarly, contractors should not be used to determine
how the performance of EPA employees should be evaluated.
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EPA ORDER IK;.2
' • 10/22/90
(4) The actual determination of Agency policy.
This prohibition does not preclude contractors from
providing support in the policy development process.
However, it does preclude contractors from participating
in the final phases of policy development, i.e., being
involved in the actual decision-making of what Agency
policy will be. Contractors may appropriately be used
in the stages of policy development which involve doing
background research or performing options analyses. If
such support is provided by a contractor, it must be
carefully examined by Agency personnel for partiality,
favoritism, and any contractor conflict of interest. In
all cases, there should be a clear record that the
contractor's work was reviewed and that final decisions
were made by Agency personnel.- Such a rocord could be
demonstrated through notes from reviews of draft and
final documents by EPA personnel, minutes from progress
meetings with contractors, reports from EPA peer and
board reviews, etc.
(5) Participating as a voting member on a Performance
Evaluation Board; participating in and/or attending Award Fee
meetings.
The assignment of an evaluation score and the making
of recommendations of profit/fee payments by -one
contractor for another are clearly conflicts of interest.
All functions relating to the decisions of award fees are
inherently governmental and should be performed
exclusively by Agency staff. However, contractors may
provide specialized technical expertise as input to the
Board prior to the actual evaluation meeting discussions.
The key determining factor is the nature of the support;
in all cases, it should be non-judgmental, i>e., free
from opinions regarding the quality of a contractor's
performance. For confidentiality reasons, no contractor
may be present during the Board meeting. Any opinions
expressed as the result of a Performance Evaluation Board
should be those of the Government. Additionally, due to
the subjective and confidential nature of the Board
reports, their typing should remain an in-house function.
(6) Preparing Award Fee Letters, even under typing
services contracts.
Because Award Fee Letters contain significantly
sensitive and confidential information that could
possibly have a detrimental effect on a firm's
reputation, it is inappropriate to allow outside
entities, even those contractors performing typing
services, access to such information.
HE-3
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iC/22/rC
(7) The actual preparation of Award Fee Plans.
This is an inherently governmental function that
details the discretionary and judgmental decisions behind
the process the Government will be using in its
evaluation of a contractor's performance. It would be
inappropriate for any contractor to advise the Agency on
what should be important to it. Provided that all
confidential business information has been removed, a
contractor may type award fee plans since there is no
judgment associated with the performance of that task.
(8) The preparation of documents on EPA letterhead other
than routine administrative correspondence.
In this instance, "routine" is synonymous with "non-
judgmental11 or "non-decisional." This prohibition is
designed to prevent the following situation from
occurring. A contractor is asked by EPA to perform
certain policy analysis tasks. The contractor then
performs the research and develops a position on the
policy which it prepares on EPA letterhead. EPA then
signs it, thereby making it EPA policy. Even though EPA
may have made the final decision, there is no indication
of EPA involvement up until that time. The development
of inherently governmental decision documents mandates
significant Agency involvement and this restriction
ensures the Agency's participation in the decision
process. Records should be kept demonstrating EPA's
involvement. This prohibition does not apply to
contracts which are providing typing services, on
condition that the contractor providing such typing
services was not involved in any other capacity in the
development of the decisional or judgmental document.
(9)' Reviewing vouchers and invoices for the purposes of
determining whether costs, hours, and work performed are
reasonable.
This prohibition is directed specifically at the
Project Officer's monthly review and approval of a
contractor's invoice submitted to EPA for payment
purposes. Contractors may perform non-judgmental duties,
such as checking mathematics or reviewing invoices for
administrative accuracy, but should not render opinions
in lieu of EPA on the reasonableness of professional
staffing levels and hours used to perform work. That is
an inherently governmental function generally delegated
by the Contracting Officer to the Project Officer. This
item in no way prohibits the Office of inspector General
from contracting for financial auditing and services, and
compliance auditing.
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(10) The preparation of Statements of Work, Work
Assignments,- Technical Direction Documents, Delivery Orders, or any
other work issuance document under a contract that the contractor
is performing or may perform.
Authorizing a contractor to do any of these
activities creates a clear conflict of interest situation
since they essentially allow the contractor to assign
. itself its own work. Similarly, it is inappropriate for
contractors to complete their vork issuance forms. This
prohibition does not restrict contractors from preparing
work plans which are, in fact, their own responsibility.
Additionally, EPA prime contractors should be responsible
for preparing the statements of work for their own
subcontracts.
(11) On behalf of EPA, actually preparing responses to
audit reports from the Inspector General, General Accounting
Office, or other auditing entities
and
(12) On behalf of EPA, preparing responses to
Congressional correspondence.
Both of these items are analogous to the situation
discussed under Item (1), above. Although it is
permissible for contractors to perform in a research or
fact-finding capacity-, the final document should be
produced by EPA personnel to ensure that it is free from
outside bias and that it truly represents Agency
thinking.
(13) The actual preparation of responses to Freedom of
Information Act requests, other than routine, non-judgmental
correspondence — in all cases, EPA must sign it.
The key word here is "non-judgmental," being
synonymous with "non-decisional." We do not want
contractors to decide what is releasable under FOIA since
that is an inherently governmental function, involving the
interpretation of statutes and Agency regulations.
Recognizing that some FOIA work is non-judgmental or non-
decisional, it is permissible for contractors to be used
in those areas. For example, provided all conflict of
interest, confidential business information (CBI), and
Privacy Act regulations have been followed, contractors
may be used to collect data for the Agency as long as
they are not deciding what data is releasable.
Similarly, if conflict of interest, CBI, and Privacy Act
regulations have been addressed, contractors may be used
to redact documents provided that decisions on what to
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redact are made exclusively by Agency personnel.
Questions concerning interpretation of CBI and Privacy
Act regulations should be referred to the Office of
General Counsel. Questions concerning conflicts of
interest should be referred to the Procurement and
Contracts Management Division.
(14) Any contract which authorizes a contractor to
represent itself as EPA to outside parties.
No contract may contain such an authorization.
There may be times when contractors are assumed to be EPA
personnel, but, in those situations, firms must explain
that they are Agency contractors.
(15) Conducting administrative hearings.
Administrative hearings are primarily conducted by
Administrative Law Judges (AUs) who, in accordance with
40 CFR, Part 22, hear cases involving disputes between
EPA and other parties regarding regulations, permitting,
etc. The ALJs are EPA employees performing quasi-
judicial and, therefore, inherently governmental
functions such as assessing penalties. This, is
distinguishable from contracting for professional
arbiters when the Agency requires outside, independent
judgment.
(16) Reviewing findings concerning the eligibility of
SPA employees for security clearances.
This has been included as a prohibition because it
is inherently governmental and may also involve the
disclosure of very sensitive and personal information
regarding EPA employees.
(17) The actual preparation of an office's official
budget request.
The prohibition here is very similar to Items (1),
(11), and (12). Whereas research and fact-finding of a
purely technical nature are permissible assignments under
a contract as preliminary steps to budget development,
the responsibilities of establishing Agency priorities
or determining how Agency money should be spent may not
be delegated to Agency contractors. These are inherently
governmental duti* involving judgment and discretion
and must be per for: -d by Agency staff. Prior to its use,
any support work provided by a contractor must be very
carefully reviewed by EPA staff to remove any contractor
bias and to substantiate the reliability of the data,
analyses, etc.
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iw 22/30
b. Certain other activities when performed under contracts
may place EPA in a vulnerable or sensitive position if adequate
controls are not implemented. In those cases, a. justification must
be prepared by the requesting program office which describes the
type of work to be performed under the contract, why the work
cannot be performed internally, and what will be done to ensure a
final Agency product that is unbiased and represents Agency
thinking.
If a new contract award valued at $25,000 or greater is
contemplated, the justification aust be signed by the cognizant
Assistant Administrator, Associate Administrator, or Regional
Adainistrator. For new contracts valued at less than $25,000, the
justification must be signed by a program official at least one
organizational level above the initiating office but no lower than
the Branch level, e.g., a document generated at the Section level
or lower must be approved at the Branch level, a document generated
at the Branch level must be approved at the Division level, etc.
The following are contract work areas necessitating this
justification:
(1) Budget preparation support including, but not
limited to, workload modeling, fact-finding, efficiency studies,
and should-cost analyses,
(2) Reorganization and planning support,
(3)
Support services such as analyses, feasibility
studies, etc., to b* used by EPA personnel in developing policy,
(4) Regulation development support,
(5) Any support in the in-house evaluation of another
contractor's performance,
(6) Involvement in strategic acquisition planning,
(7) Support on improving contract management,
(8) Providing specialized expertise in the contractor
selection process,
(9) Providing specialized expertise in the development
of Statements of Work, Work Assignments, and other contract-
ordered tasks,
(10) Any support involving EPA policy or regulatory
interpretation, such as staffing hotlines, attending conferences
on behalf of EPA, community relations efforts, conducting EPA
training courses, etc., and
jSL-1
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SPA CRC
(11) Independently providing technical guidance
concerning EPA policies or regulations on EPA's behalf to outside
parties.
NOTE: In no event shall any contract requiring the performance
of any legal services be entered into without the approval of
the Office of General Counsel.
c. Certain other activities if contracted for, although not
sufficiently sensitive to require justifications, do necessitate
the. establishment of special EPA control measures. If a new
procurement is contemplated involving any of the activities or
situations listed below, a special discussion detailing control
procedures to be enforced must be included within the pre-award
procurement request rationale document. This would be required in
the following instances:
. (1) Situations where contractors share office space with
EPA employees.
Control measures must be established to prevent the
performance of personal services, to ensure that
contractors do not have inappropriate access to
privileged or sensitive information, etc.
(2) Support in preparing responses to Freedom of
Information Act requests.
Control measures must be established to ensure that
contractors are in compliance with all regulations
involving FOIA, the Privacy Act, and confidential
business information.
(3) Any situation where a contractor has access to
confidential •'business information and/or any other -sensitive
information.
Control measures must be established to ensure that
contractors do not have inappropriate access to
privileged end sensitive information, to eneure that
security systems are in place preventing the release of
sensitive information to non-designated contractor
employees, etc.
(4) Any situation where it can be assumed that the
contractor is EPA, without specifically identifying itself as a
contractor.
Control measures must be established to ensure that
contractor employees are clearly identified through the
use of badges, posted signs, etc.
8
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d. In determining how best to contract for these sensitive
services, organizations must consider ways to reduce the potential
for con'lict of interest. Procurement strategies should be
considered that break the requirements into smaller components,
thereby broadening contractor resources available to a particular
office. If possible, small and minority business participation
should be considered, provided these firms do not have conflicts
of interest. The procurement request rationale document must
address how the particular procurement request fits into the
requesting office's overall procurement strategy.
e. In order to assure contract accountability at all levels
of the Agency, all EPA managers must have written into their
performance standards language emphasizing strong contract
management and controls.
f. Contract management training classes will be revised to
include discussions of the essential element* of this EPA Order.
Additionally, all active contract managers will be required to take
a one-day refresher course in contract management every three years
in order to maintain certification.
4.
RESPONSIBILITIES.
a. The Procurement and Contracts Management Division (PCMb)
is responsible for the following:
(1) Including language within all future contracts to
prohibit contractor performance of the activities listed in
Paragraph 3.a., above.
(2) Notifying all current contract holders of those
prohibitions listed in Paragraph 3.a., above. >
(3)' Revising the Contracts Management Manual'(CMM) to
incorporate the provisions of this Order, specifically
highlighting:
3.a., above.
(a) The prohibited activities listed in Paragraph
(b) The requirement for justifications for the
purchase of any of the services listed in Paragraph 3.b., above,
(c) The requirement for a control element
discussion in the procurement request rationale document if any of
the activities listed in Paragraph 3.c., above, are contemplated,
(d) The requirement for a procurement strategy
discussion element in'the procurement request rationale document,
and
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(a) The requirement to include in all EPA managers'
performance standards language emphasizing strong contract
management and control.
(4) Reviewing the justifications for the purchases of
any of the services listed in Paragraph 3.b., above, and making a
determination that adequate control measures will be employed.
(5) Revising the current contract management training
classes to include discussions of this Order.
(6) Instituting a one-day contract aanageaent refresher
course to be taken every three years by active contract managers
in order to maintain their certification.
b. EPA offices employing contract support are responsible for
the following:
(1) Preparing the justification for the purchase of any
of the services listed in Paragraph 3.b., above, and obtaining the
signature of the appropriate approving official on the
justification.
(2) Including a control element discussion within-.the
procurement rationale document if any of the activities listed in
Paragraph 3.c., above, are contemplated.
(3) Considering ways to break up requirements for the
procurement of sensitive services into smaller component*, thereby
reducing the potential for conflicts of interest. .
(4) Along with the performance standard requirements for
active contract managers discussed within the CMM, including in all
other EPA managers* performance standards language, ae> included
within the CMM, emphasizing strong contract management and control.
(5) In accordance with guidance established in the CMM,
requiring active contract managers to - attend the contract
management refresher course once every three years, in order to
maintain their certified status.
e. All Agency employees are responsible for the following:
(1) Being aware of the content of this Order and
bringing any suspected violations to the attention of the cognizant
Contracting Officer.
10
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15CC.2
1C/22/50
(2) Ensuring that the "prohibited" activities listed in
Paragraph 3.a. and the "sensitive" activities listed in Paragraphs
3.b. and 3.c. are handled in accordance with the guidance outlined
in this Order and the CMM.
Charlea^L.1 Gr
11
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EXECUTIVE OFWCS OF THE PRESIDENT
Off
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- 2 -
4. cgvagaqa. Tae provision* of this circular apply to advisor/
and assistance aervicas obtained by tha following arrangaaanta:
A. Personnel appointment;
B. Procurement contract; aad
C. Advisory coaaittie membership.
9. p«finitio«. Advisory and Assistance Services are those
services acquired from non-governmental aources by contract
or by personnel appointment to support or iaprove agency policy
development, decision-malting, management, and adminiatration, or
to aupport or iaprove the operation of management eystama.
Such, services may tafce the form of information, advice, opinions,
alternatives, conclusions, receaaendations, training, and direct
assistance. Advisory and assistance aervices include consultant
services provided by individuals, as defined in the,Federal
Personnel Manual, Chapter 304.
A. Advisory aad assistance services include activities having
any of the following characteristics:
(1) Individual Experts aad Consultants. Individual
experts and consultants are persons possessing special, current
Knowledge or aJeill which may be combined vita extensive .
operational experience. This enables them to provide
information, opinions, advice, or recommendations to enhance
understanding of complex issues or to iaprove the quality and
tiaeliness of policy davalopmant or decision-making. These named
individuals may either work independently or bo assembled into
panels, coaaissioas, or committees.
(2) Studies, Analyses, aad Evaluations, studies,
aaalyses, aad evaluations are organized, analytic assessments
needed to provide the insights necessary for understanding
complex issues or improving policy development or decision-
taxing. These analytic efforts result *ia formal, structured
documents containing data or leading to conclusions and/or
landations. This suaaary daacription is oparationally
dafinad by tha following critaria:
a. Objactiva: to anhanca undarstanding of
coaplax issuas or to iaprova tha quality and tiaolinass of agancy
policy davalopmant or dacision-maJcing by providing nav insights
into, undarstanding of, altarnativa solutions to, or
rocoaaandations on agancy policy and program iaauaa, through tha
application of fact finding, analysis, and evaluation.
32.-
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- 3 -
b. Area* of application: all aubject*, i**ues,
or problem* involving policy development or daci*ion-maJcing in
taa agoncv. Taeae may involve concept*, organization*, prograa*
and other" *y»taa«, and the application of such ay at em*.
c. output*: output* are formal, «tructur*d
Bant* containing or leading to conclusion* and/or
lendation*. Data ba*aa, nodal*, aetbodologie*, and related
•ertvar* created in tupport of a atudy, aaalyeia, or avaluation
ara to be con*idarad part of taa ovarmll study effort.
d. Sxeluaioa*
of exclusion* and
i*
and exemption*s a cemplata liat
from taa proviaion* of tni* circular
(3) Management and Professional Support Service*.
Management and professional rapport service* take the fora of
advice, training, or direct assistance for organisation* to
aaaure aora efficient or effective operation* of managerial,
administrative, or related system*. Thi* summery description i*
operationally defined in term* of taa following criteria:
a. Objective: to encore aora efficient or effective
oparation of management support or ralatad system* by providing
•rfv4^A- *v»i«tn«- AT dlp^AiR *«a4.«fe«M0A •••Afii»*Ml «H_fefe fetaA Amm\c
training, or diraet
os operation of *uch ays
b.
ralatad *ya
and raporting,
anting.
vita
daaiga
Area* of applii
•uea a* progn
data collection,
:i
agaai
projaet monitoring
logistic* aaaagaaaat, budgating,
auditing, paraonnal aanagaaaat, paparverk aanagaaant,
record* management, space maaageaent,and public relation*.
e. < output*! *erviee* ia the fora of information,
opinion*, advice, training, or diraet aaaiataaea that lead to the
improved deeign or operation of managerial, adatnistrative, or
ralatad syetema. Tni* doe* not include training which maintain*
•kill* nece**ary for normal operation*). Written report* are
normally incidental to taa performance of the service.
sin
ioaaf a complete lirft of
*ion* aad exemption* from the provision* of tai* circular 1*
(4) Engineering aad Technical Service*. Engineering and
technical service* (technical rapraaantativaa) taxa the fora of
advice, training, or under unu*u*l cl
aaaiatanea to aaatura aora efficient or effective operation or
maintenance of existing platform*, weapon aystaaa, ralatad
ayataa*, and a**ociated aoftvara. All engineering aad technical
•ervice* provided prior to final Government acceptance of a
-------
complete 'hardware system" arm p«zt of the normal development,
production, and procurement proceases and do not fall within the
meaning of this category. Znginaering and technical services
provided after final Government aeeaptanea of a complete hardware
system ere within the aeaning of this category except where they
*
•• tt« original deeign performance
capafcilitiae of exiating or new ayateaa or where they are
integral to the operational aupport of a deployed ayata* and have
been foraally reviewed and approved in the acquisition planning
lone.
. ==t—4—. - ^ attachment liat» the Government program*
end activitiee that are excluded from the proviaiona of this
circular unleae agenciee decide to include them (aee Section 8A
oelov) •
When eaaential to the miaaion of the a
gency,
fitimat
the proper
use of advisory and assistance services* is & legitimate way'tol
(1) obtain outside points of view to avoid too lim
judgment on significant issues;
(2) obtain advice regarding developments ia industry
university or foundation research;
(3) obcain the op
of noted experts whose national or interne
special teevledge, or skills
contribute to the success of important projectsi
prestige can
(4)
hance the understanding of, and develop
alternative solutions to, complex issues;
(3) support and improve the operation of/
organizations; <*
(«) ensure the more efficient or effective operation
of managerial or hardware systems; and',
(7) secure citiien advisory participation ia
developing or implementing Government programs that, by their
nature or by statutory provision, call for such participation.
B. Advisory and assistance aervices shall not bei
(1) used in performing work of a policy, decision-
making, or managerial nature which is the direct responsibility
of agency officials;
"SL-VS
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- s -
;
(2) u*ed to bypass or undermine peraonnel callings,
pay limitation*, or competitive employment procedure*;
(3) awarded on * preferential basis to former
Government employee*?
(4) u*ed under any circuaati
in influencing or enacting legislation;
specifically to aid
(9) procured through grant* and cooperative
agreement*; and
(6) obtained for professional or technical advice
which is readily available within the agency or another Federal
agency, except when the contract is entered into pursuant to the
procedures and provisions of Circular A-76.
C. Ho contracts for advisory and assistance services may
be continued longer than five years without being reviewed for
continued compliance with this circular.
s.
Mane
A.
or info
Zach agency will assure that it maintain* an accounting
itlon system which effectively monitor* and report*.
a.
Sach agency'* management'control system for advisory
shall at a minimum comply with the
and assistance services
Federal Acquisition Regulation. Agencies are encouraged to apply
the sase control system to other procurement* which in their
judgment require similar management attention, notwithstanding
the exclusion of those function* or program* from the provisions
e.
Bach agency will assure that for all advisory and
ice arrangements*
(1) the element* of the management control system
required by ^« circular have been observed, and all
procurements) under thi* circular are administered in accordance
with the requirement* of the Federal Acquisition Regulation;
»
(2) a* prescribed by the Federal Acquisition
Regulation, written approval of all advisory and assistance
services arrangement* will be required at a level above the
organization sponsoring the activity. Additionally, written
approval for all advisory and assistance service arrangements
during the fourth fiscal quarter will be required at the «*
level or higher above the organisation sponsoring the activity;
-------
(3) every requirement is appropriate and fully
justified in writing, such justification vill provide a
statement of need and will certify that such services do not
unnecessarily duplicate any previously performed worJe or
service*;
(4) vorle statements ara specific, complete, and
specify a fixed period of performance for the service to be
provided;
(5) acquisition of advisory and assistance services
conform to the Competition in Contracting Act of 1984;
(«) appropriate disclosure is required of, and warning
provisions ara given to, the performer(s) to avoid conflict of
interest;
(7) advisory and assistance service arrangements ara
properly administered and monitored to ensure that performance is
satisfactory;
(•) the service is properly evaluated at the
conclusion of the arrangement to assess its utility to the agency
aad tho performance of the contractor; and
(9) to the extent practicable, contracts for these
service* require a written report. Such reports typically would
document the services delivered and may, in part, taJcsr the form
of software packages.
0. Delegations of Authority.
(1) Bach agency head shall designate a single official
reporting directly to him or her who shall be responsible and
accountable for assuring that the acquisition of advisory and
assistance services meets the provisions contained in this
circular. The single official shall have minimum responsibility
for tho procurement of such services.
(2) Each agency vill establish specific levels of
delegatiea of authority to approve the need for advisory and
assistance services based on the policy and guidelines contained
in this circular. The senior official shall review each advisory
and assistance services request which exceeds an amount to be
determined by the agency.
2. Policy and procedures governing advisory committees and
tbair membership as veil as the procurement of advisory and
assistance services are contained in General Services
Administration regulations, 41 C7R, fart 101-4.
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- 7 -
F. TiM Federal Personnel Manual, Chapter 304, govern*
policy and procedures regarding personnel appointments.
9. Tao Federal Acquisition Regulation govern* policy and
procedure* regarding contract*.
9.
Pata Requirements.
A. Contracted advisory and assistance services shall be
reported to the Federal Procurement Data Systam (I7DS) in
accordance vitH the inatzuctiona in tna FfOS Raporting Manual.
B. Contract action* of 523,000 or laao reported on the
Siaaary Contract Action Report (923,000 or IOM) (S7 2tl) are not
covered by tMa reporting reejoireaeat.
C. The following data •yvtaaa vill continue to provide
information on advisory and aaaiatance service arrangeaents
vitain the executive branch: >,
(1) Central Peraonnel Data File (CFD7), operated by the
Office of Peraonnel Management, provide* data on personnel
appointaenta, segregating advisors, expert*, and advisory
Ittee
(2) The Federal Procurement Data System (7POS) provide*
data on contract arrangement* that are monitored by the .
management control system required by Section • of ***** circular.
(3) Advisory committee data i* provided in accordance with
Section 2 of Executive order Ho. 12024 to fulfill the
requirement* of Section «(c) of the Federal Advisory Committee
Act, a* amended (Public Lav 92-463, s U.S.C., App.).
10.
11.
This circular i* effective immediately.
e. All quaetion* or inquiries) should be submitted
to the Office of Management Budget. Telephone number (202)
395-4903.
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ATTACHMENT
EXCLCSIONS
Z. Tfca following activitiea are excluded from the purview of
Circular A-120.
1.
2.
7.
t.
9.
Activitiee that aro raviaved in accordance vith the
7« process. (such activities} muat ba reported in
accordance vita Section* 8. A and 9. A.)
A-
Architectural and engineering services of construction
and construction .management service*.
<•
3. ADF/Telecommunications may ba aaecludad if suea
function* and ralatad aarvieaa ara controllad in
accordance with. 41 C7R 201, tna 7adaral Information
Raaourca Managamant Raculationa.
» s
4. Xacaarch. on- taacratical mathamatiea and baaic madical,
5.
biological, phyaical, aocial, payenological or eth<
Sn9inaaring atudiaa ralatad to apacif ie phyaical or
partoraanca cnaractariatica of aiiating or propoaad
•Hia day-to-day oparatlon of facilitiaa (a.?., tao
johnaon Spaca Cantar and ralatad facilitiaa) and
function* (a.g., ACP oparationa, building maintananca,
ate.)-
(Sevarnmant-ovnad, contractor oparatad facilitiaa
(GOCOa) (a.g.f oak Ridga Rational Laboratory, tha
Holatan Army Aamunition Plant in Kingaport, Tannaaaaa).
Bovavar, any contract for advisory and aasiatanca
aarvieaa otaar taaa tha baaic -contract for oparation
and Banagaaant of a GOCO ahalX coma undar taa
proviaiona of taia circular.
Clinical madicina.
Taoaa aupport aarvieaa of a managarial or
adainiatrativa natora parformad aa a aisultanaoua part
of, and non-aaparabla from, epacific davalopaant,
production, or oparational support activitias. In tais
context, non-aaparabla aaans that tha managarial or
administrative systems in quaation (e.g., sub-
contractor monitoring or configuration control) cannot
'reasonably ba oparatad by anyone othar than tha
designer or producer of tha end-item hardware.
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
XX/XX/XX
2.7 ADVISORY AND ASSISTANCE SERVICES AND OTHER SENSITIVE AREAS
a. Advisory and AssistanceServices.
The management and control of contracts for advisory and
assistance services (AAS) are addressed in OMB Circular A-120
dated January 4, 1988, a copy of which is shown as Attachment A.
The Circular defines advisory and assistance services as
those services acquired from non-governmental sources by contract
or by personnel appointment to support or improve agency policy
development, decision-making, management, and administration, or
to support or improve the operation of management systems. The
Circular's complete definition is shown in Attachment A. A
special justification for AAS must be prepared by the requesting
office and approved in accordance with the management approvals
in Figure Number 2-2.
Although the format of the justification may vary, the
request must indicate that the services to be performed will NOT:
1) unnecessarily duplicate any previously performed work or
services; 2) be used in performing work of a policy
decision-making or managerial nature; 3) be used to bypass or
undermine personnel ceilings, pay limitations or competitive
employment procedures; 4) be contracted for on a preferential
basis to former Government employees; 5) be used specifically to
aid in influencing or enacting legislation; or 6) be used to
obtain professional or technical advice which is readily
available within the Agency or another Federal agency. In order
to expedite approval, a copy of the request should also be
forwarded to the Contracting Officer who will be processing the
procurement request. A sample justification is shown as
Attachment B.
After consultation with the Project Officer, the Contracting
Officer will determine if the services requested are advisory and
assistance services and are appropriate for performance by
contractors.
b. Sensitive Contracting Areas
Certain activities when performed under EPA contracts may
place EPA in a vulnerable or sensitive position if adequate
controls are not implemented. A listing of these sensitive
contracting activities is included as Attachment c to this
Chapter. These sensitive contracting areas require the same
justification and approval as advisory and assistance services
under paragraph (a) above.
2-4
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
XX/XX/XX
c. Contracts Requiring Special Control Measures.
Certain contracting situations, listed in Attachment D,
require the establishment of special control measures. When
procurement requests involve any of the areas contained in
Attachment D, the Procurement Request Rationale Checklist
requires a special discussion detailing control procedures to be
enforced. A sample of this discussion is included as Attachment
E. The Contracting Officer will review the requesting office's
discussion and determine if the control measures proposed are
adequate.
d. Prohibited Contracting Activities.
Attachment F, Prohibited Contracting Activities, contains a
list of activities considered "inherently Governmental" and,
therefore, not permitted to be performed by contractors. (See
OMB Circular A-76 for further information on inherently
Governmental functions). EPA offices should review this list to
ensure their requests do not involve prohibited contracting
activities, contracting Officers will return any requests
involving these prohibited contracting activities to the
requesting office unprocessed.
e. Procurement Strategy Discussions.
In determining how to best contract for advisory and
assistance services and the other sensitive services,
organizations must consider ways to reduce potentials for
conflict of interest. Procurement strategies should be
considered that break the requirements into smaller components,
thereby broadening contractor resources available to a particular
office. If possible, small and minority business participation
should be considered, provided these firms do not have conflicts
of interest.
The Procurement Request Rationale Checklist requires the
requesting office to address how the particular procurement
request fits into the requesting office's overall procurement
strategy.
2.8 PLANNING PURPOSE PROCUREMENT REQUESTS
Planning Purpose Procurement Requests (PPPRs) are defined in
Chapter l of this Manual, such actions shall be clearly marked
on the face of the EPA Form 1900-8 as "PLANNING PURPOSE
PROCUREMENT REQUEST" and shall contain all program and other
approvals that would be needed if the action were fully funded.
The PPPR should also indicate the estimated date when the funds
will be available.
2-5
2-1
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
ZZ/XX/XX
PROCUREMENT REQUEST RATIONALE CHECKLIST
(to be submitted with EPA Forms 1900-8 and 1900-8A)
Item 1: The title of this procurement is
Item 2: This procurement request package contains the following
documents. (Check all applicable boxes and attached documents as
appropriate.)
See Attachment if
Check
Description
EPA Form 1900-8
Procurement Abstract
Statement or Scope of Work
concise Technical Proposal
Instructions
Competitive Technical Evaluation
Criteria
Justification for Other Than Full
and open Competition (JOFOC)
D&F to provide full and open
competition after exclusion of
source (see FAR 6.2)
Justification for Advisory and
Assistance services
Justification of Need (Government
Furnished Property (6FP)/
Equipment)
Quality Assurance (QA) Review Form
Recommended Sources List
Reports Description
Government-Furnished Property
Description
Discussion of controls for
sensitive contracting
2-F1-1
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CONTRACTS MANAGEMENT MANUAL
1900 CH6 XX
XX/XX/XX
Discussion of how procurement fits
into overall contracting strategy
(if required)
Item 3: This procurement [ ] involves/ [ ] does not involve
advisory and assistance services (AAS) or sensitive contracting areas.
[If such services are involved, attach a copy of the justification
required by Chapter 2 of the Contracts Management Manual (the original
should be forwarded in accordance with Chapter 2). See Figure 2-2 for
the required approvals. For both AAS and sensitive contracting areas,
attach a discussion of how the procurement fits into your overall
contracting strategy.]
Item 4: This procurement [ ] involves/ [ ] does not involve legal
analysis. I [ Jhave/ [ ]have not discussed this procurement with the
Office of General Counsel which [ ]concurs/ [ jdoes not concur with
proceeding with this procurement
Item 5: I [ ] anticipate or have knowledge of/ [ ] do not anticipate
or have any knowledge of organizational conflict of interests issues
related to this procurement. (If affirmative, describe conflict in an
attachment.)
Item 6: Listed below are special EPA employee(s) who are or will be
participating in EPA's processing or managing of this procurement,
together with a list of their non-Government employers. Check here if
none [ ].
EPA Special Employees
Non-Government Employer
Item 7: This procurement [ ] is/ [ ] is not based on an Unsolicited
Proposal.
Item 8:
(RESERVED)
Item 9: The name of the proposed Project Officer is
______^ . He/she [ ] has/ [ ] has not been
certified as an EPA Project Officer.
Item 10: I [ ] recommend/ [ ] do not recommend prospective sources
for this procurement. (If sources are recommended, list in an
attachment.)
2-P1-2
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
XX/XX/XX
Item 11: this procurement anticipates [ ] a new contract award/
[ ] an additional work modification to existing contract
no. . It also anticipates that it will be processed as a
[ ] competitive procurement/ [ ] other than full and open
competition. [Note: If other than full and open competition is
recommended; (a) attach appropriate justification as described in Part
1506 of the EPA Acquisition Regulation. Also see sample format (Figure
4). Attach the Project Officer's Certification that the data provided
in the justification is accurate and complete.]
Item 12: This proposed procurement is appropriate for [ ] total small
business set-aside/ [ ] total small business/labor surplus area
(SB/LSA) set-aside; or [ ] partial SB/LSA set-aside; [ ] partial SB
set-aside; [ ] 8(a) set-aside; ( ] LSA set-aside; or [ ] none of the
above (check only one). Consult the Office of Small and Disadvantaged
Business Utilization for advice.
Itea 13t (a) The estimated period of performance is
after the effective date of the contract [ ] inclusive/ [
of submission of any final report which may be required.
months
"] exclusive
(b) The schedule of deliverable items (excluding reports) is as
follows. Check here if no deliverable items are required [ ].
Item No.
Delivery
Description
Quantity Date
Itea 14: This procurement anticipates the following options will be
needed. Check here if no options are anticipated [ ].
Description of Option
(Description may be indicated in a
separate attachment)
Term of Option
Itea 15: The following reports are required (describe in an
attachment). Check here if no reports are required [ ]. For each
separate report required, describe the following:
(a) Type of report (e.g., draft, final, interim, special, etc.)
(b) Descriptive title (e.g., monthly progress report)
2-F1-3
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
xx/xx/xx
(c) Minimum content requirements
(d) Number of copies required
(e) Distribution (with complete addresses of all recipients)
(f) Delivery schedule
(g) Number of days the Government will have to reviews comments
approve (disapprove) and return (as appropriate)
Where specific report formats, containing the information above, are
used repetitively, "standard" formats are established or may be
established with the servicing CO. Maximum use of such standard
formats is encouraged. Examples include monthly progress reports,
financial progress reports and final reports.
Item 16: Peer review of Contractor-generated documents [
[ ] will not be required.
] will be/
Item 17: Government property, data, or services [ ] will be
furnished/ [ 3 will not be furnished under tnis procurement. (If
furnished, describe in an attachment including quantity and date
available.)
Item 18: Budget. (An attachment may be used.)
(a) The total estimated budget for the basic effort and all options is
(b) The estimated funding for the current fiscal year is $
(c) The estimated total cost of other Direct Costs is $
(If
_
possible, indicate estimate of significant sub- items such as travel,
computer time, consultants, equipment and material.)
(d) For level of effort actions and other actions where hours, rather
than an end product, are to be purchased, indicate for the basic and
all option periods the number of hours required, by category, with
definitions for each category.
Item 19: This procurement [ ] is/ [ ] is not subject to the
requirements of OMB Circular A-76. (If A-76 applies, required
documentation must be provided with the PR.)
Item 20: This procurement [ ] requires/ [ ] does not require
priority processing (a brief priority justification may be attached) .
(To be completed by procurement office: )
t ] Approved [ ] Disapproved
Date
Chief, Contracting Office
2-P1-4
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CONTRACTS MANAGEMENT MANUAL
1900 CHG XX
XX/XX/XX
Item 21: This procurement [ ] will [ ] will not involve the testing
of human subjects in accordance with EPA Order 1000.17.
Iten 22: This procurement' ( ] does/.[ ] does not include acquisition
of membership in an'association. (If membership in an association is
included, attach a certification indicating that the primary purpose of
membership is to obtain direct benefits for EPA necessary to the
accomplishment of its functions or activities.)
Item 23: This procurement [ ] is/ [ ] .is riot for leasing of motor
vehicles. (If affirmative, attach certification per FAR 8.1102).
Item 24: This procurement [ ] is /[ ] is not to be funded from more
than one appropriation. (If affirmative, see Chapter 9 of this manual
and memorandum from the Comptroller and the Director, Office of
Administration on "Contracts Funded from Multiple Accounts—Procedures
for Identifying Contract Costs," May 14, 1985.)
Item 25: This procurement [ ] will/ [ ] will not involve statistical
surveys, data collection, using questionnaires, or statistical analysis
of survey data. (If affirmative, procurement office will include
instruction in solicitation for offerers to obtain the EPA Survey
Management Handbook).
Item 26: To the best of my knowledge, the work specified in this
procurement action does not unnecessarily duplicate any other work
previously performed, or being performed, under my authority.
Item 27s To the best of my knowledge, the work specified in this
procurement action does not involve any "prohibited contracting
activities" listed in Chapter 2 of the Contracts Management Manual.
Item 28s This procurement [ ] will/ [ j. will not involve any of the
areas requiring special contract controls listed in Chapter 2 of the
Contracts Management Manual. (If the procurement involves such areas,
a special discussion must be attached detailing proposed control
procedures to be enforced.) . . ; .
Item 29t This procurement [ ]does/ [ ]does not involve requirements
governed under the Federal Information Resources Management Regulation
(FIRMR). [Note: if the procurement involves the FIRMR, a requirements
analysis and draft Agency Procurement Request (APR) should be
attached.]
Item 30: (a) The Statement of Work/Specifications involves the use of
items subject to RCRA Procurement Guidelines (see Chapter 14 of this
manual).
(ves_
(No
2-F1-5
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CONTRACTS MANAGEMENT MANUAL
1900 CHO XX
XX/XX/XX
(b) If yes, the items are:
(c) The specifications for the item(s) complies with the
applicable RCRA Procurement Guideline.
(Yes )
(d) If no, the Project Officer must check the appropriate
box and provide an explanation why items containing recovered materials
were not used.
the price is unreasonable;
applying minimum-content standards results in
inadequate competition;
obtaining designated items results in unusual and
unreasonable delays; or
recovered items do not meet all reasonable
performance specifications.
Explanation (this may be provided in a separate attachment)
Item 31: The desired award date for this procurement is_
Date?
Signature
2-P1-6
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PERSONAL SERVICES
-------
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EPA ORDER
1900.1
10/31/85
USE OF CONTRACTOR SERVICES
1. PURPOSE. As more and more activities require contractor support to be furnished
on-site" at Government facilities, the question of whether these contracted actions
are personal or nonpersonal in nature continues to arise. The Goverraent is
normally required to obtain .its employees by hiring through personnel channels.
Therefore, the procurement of personal services by contract is prohibited unless
specifically authorized by statute. This Order is designed to assist you in
avoiding personal services arrangements in your contract activities.
2. RESPONSIBILITIES* Contracting Officers, Project Officers, Delivery Order
Officers, and all other EPA personnel are responsible for ensuring that personal
services relationships between Government and contractor employees are avoided.
3. DEFINITION. Personal services contracts exist when the nature of the
relationship between the contractor and the Government can be characterized as
an employer-employee relationship. An employer-employee relationship exists
when either by the terms of the contract itself, or because of the manner in
which the contract is managed, contractor personnel are subject to the day-to-day
supervision and control of Government personnel.
4. ASSESSING THE PERSONAL fflTORE OP A CONTRACT. While one of the most important
elements to be avoided in a contractual relationship is the supervision of
contractor employees by Government personnel (see f. below), the Federal
Acquisition Regulation (FAR 37.104(d)) provides other descriptive elements which
should be used as a guide in assessing whether or not a contract is personal in
nature. All of these elements need not be present to have an improper personal
services arrangement:
a. Performance on-site.
b. Principal tools and equipment furnished by the Government.
c. Services are applied directly to the integral effort of the Agency or an
organizational subpart in furtherance of assigned function or mission.
d. Comparable services, meeting comparable needs, are performed in the same
or similar agencies using civil service personnel.
e. The need for the type of service provided can reasonably be expected to
last beyond one year.
f. The inherent nature of the service, or the manner in which it is provided
reasonably requires, directly or indirectly, Government direction or supervision
of contract aiployees in order to:
(1) Adequately protect the Government's interest;
(2) Retain control of the function involved; or
(3) Retain full personal responsibilities for the function supported
in a duly authorized Federal officer or employee.
j~~ \
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EPA ORDER
1900.1
10/31/85
USE OF OCWnWdOR SERVICES
'5. PRINCIPLES FOR MMCKING A (XHTRPCT.
a. the contracting officer U responsible for determining prior to award,
that the contract does not involve the procurement of personal services. But,
even though supervision by Government employees is not directly required by the
terms of the contract, a personal services situation can develop through imprcpe
contract management.
b. Technical management generally relates to the manner in which work
direction is given. Interchange of information of a technical nature is not
prohibited. In managing the contract, however, the following principles should
(1) Insofar as possible, let the contract define the job. This can best
be accomplished when the contract contains a definitive statement of work.
(2) When the job scope must be changed, notify the contracting officer
imnediately so that the appropriate contract changes may be issued.
(3) When the job definition requires interpretation of the work description
or other direction which is clearly within the project officer's authority, make
sure that such direction is issued from the Project Officer to the appc • —
contractor contact person in the form of a written technical directive.
give any instructions to individual contractor employees.
03 not
(4)
telephone
Prepare
ndums for the record of all meetings, tripe and
nations relating to the contract.
(5) Ensure that all contractor and all EPA occupied space is readily
identifiable. Generally, on site contractor employees are physically located
in separate areas from Government employees. In isolated cases where a general
ariga must be occupied or intirt by both EPA and contractor employees, seme sort of
physical separation, identification of space, and scheduling of equipnent usage
should be arranged.
(6) All requests for contractor follow-up or touch-up services should be
directed from the Project Officer to the contractor's project manager. Likewise,
contractor atployees must operate through the contractor's supervisor to obtain
any information needed to complete the work product.
(7) Strictly avoid situations in which one EPA on-sita contractor provides
support to another EPA on-site contractor, except where the contract requires
such support to be furnished (e.g., janitorial services, security services,
etc.).
(8) Strictly avoid GoverncBnt intervention with respect to hiring or
firing of employees or assigning particular aiployees to specific tasks.
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EPA OPDER
1900.1
10/31/8S
USE OF CONTRACTOR SERVICES
6. ADDITIONAL GUIDANCE.
a. I have attached a comprehensive paper on the use of contractor services
which was prepared by the U*S. Department of the Navy (Attached), this
paper further illustrates proper use of contractor services.
b. As in any contract situation, you are encouraged to contact your
contracting officer for advice and guidance as required on a case-by-case basis.
'JbhnC. Ounberlin
Director
Office of Administration
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EPA ORDER
U«_S. Department of the Mavy
1900.1
Appendix
"Guide for 'Jsing-Contractor Services"
Basi-ally, we do our work in the Department of the Navy.twc< ways: "in-house"
with .nilitary and civilian personnel, or "out-of-house" by-contract. Which way
it is done is a decision based on policy, practicality, and law. Generally
speaking, it has been Government policy for a number1 of years to perform
comnercial or industrial activities by contract unless some compelling reason —•
such as military readiness, security; or economy — warrants bringing the job
•in-house." which route to follow is the subject of other Office of Management
and Budget. Department of Defense, and Department of the Navy instructions, and
is not at issue here. Our concern here is only that, if a decision is made to
let a contract involving services, we make it properly, and use the services -
properly.
Die fundamentals are these. It is perfectly proper for the Government to purchase
by contract what may be described as a finished product — a piece of hardware,
a defined piece of research, or a report. Unless Congress ha? passed a specific
statute to authorize something different, the Government may not contract out for
Che services of people who receive their assignments from Government personnel,
work under the direct supervision of Government personnel, and whose relation-
ship to the Governmer.r is thus no different from that of a Government employee.
tttere the Government wishes to procure services in this fashion, it must hire
tile people directly, in accordance with the Civil Service Laws.
A finished product versus personal services — these form the two ends of the
^ectrum. The one may be procured by contract; the other' may not. In between
are situations where the Government does not want to hire people, yet the work
it needs to have performed is essentially just labor — cleaning, painting, or
operating a radar station. In these situations, the Government may still obtain
the work by contract, providing two conditions are met: (1) the contract must
ask for the finished product only, and (2) the contract must be administered in
such a way that control and supervision over the work and discretion of the
techniques which will be used remain solely with the contractor. In other words,
if the Government wants a building painted, it defines the job, lets the
contractor paint the building as he sees fit, and then accepts it or rejects it
solely on the basis of whether the completed job meets the specifications.
This would be a perfectly legal contract for a finished product. On the otter
hand, if the contractual arrangement with the painting contractor is such that
he is really only providing us with painters whom we direct and and supervise
as we would our own military or civilian employees, then the contract would be
for personal services and would be illegal. In that case, the Government
would, in effect, be "hiring* employees without regard to the Civil Service
System. That it may not do, and that is the reason all service contracts
oust provide for a clearly defined task or job.
The Problem:
A contract may thus cross over into the forbidden area either because of the
way it is written or because of the way it is administered. The former should
not occur very often. ASPR, Armed Services Procurement Regulations, provides ,
adequate guidance and procedures which, if faithfully pursued, will insure
Chat every contract for services is in fact legal on its face. But even the
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U.S. Department of the Navy
best-written contracts can later be ruled illegal if they are not administered
properly. Good, intelligent contract administration is really the key to
avoiding personal services problems.
In essence, a forbidden personal service contract results when the Government
assumes the right to instruct, supervise, or control a contractor's employee
in how he performs his work, it is one thing, for example, to sit down in a
restaurant, order a steak medium rare, and accept it or reject it when it
arrives. It is quite another to insure that it is cooked to satisfaction by
going out to the kitchen, looking over the chef's shoulder, and telling him bow
to adjust the flame, when to turn the steak over, and how to season it. When
the Government exercises this sort of direct supervision and control over
contract personnel, it is using them as if they were its own civil service
or military personnel. Control such as this — however well-intentioned —
renders the services personal and the contract illegal.
Bow, then, can personal services problems be avoided? The answer must begin
early with contract planning, because these problems are far easier to prevent
than to cure.
Pre-Oontract Planning:
In planning the contract, the contracting officer must receive a great deal
of willing cooperation from all hands — technical personnel, legal personnel,
and especially the users — those with the requirement for the proposed services.
Ohder ASPR, before the contracting officer may enter into a service contract,
he must make a written determination that the services are nonpersonal. tb do
so, he must rely almost completely upon the users for the facts he needs, because
only ttiey can provide them. As the first step, therefore, the contracting
officer must learn the whole story — all the circumstance of what the services
are to be and how they will be used. In view of his responsibility for making
the procurement, he deserves — and has every right to receive — the users'
fullest assistance and candor.
Second, the users must provide the contracting officer with a detailed
description of the job they want done. Since the contract must be couched in
terms of providing the Government with some sort of finished product, this is
the information that will be needed to draft proper specifications, task orders,
or work assignments. Although it is the job of the contracting personnel to
reduce this information to contract format, it is the job of the users to
explain precisely what work they want performed.
Third, there must be a review of all the collateral circumstances which might
have a bearing upon whether an illegal personal services contract has been
created. Although the key factor is the degree to which the Government exercises
control and supervision over the performance of the contract, th«* Civil Service
Commission's opinion, as well as rulings of the Comptroller Gerwr.il, also look
to related circumstances which, by their very nature, go hand in hand with the
exercise of Government control over contract performance.
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U.3.. Department of the Maw
An example night be a contract under which the contractor was provided with
articles ot Government property, while it is not unusual for the Government to
furnish equipment or material for use in performing its contracts, what is
furnisned is usually specialized or otherwise difficult for the contractor to
provide tor himself. If, instead, the Government furnishes something ordinary
like office equipment, drafting tables, or typing paper — the sorts of things
any employer ordinarily provides his own employees — then, if unexplained, an
inference may be drawn that the Government is treating the contractor's employees
as its own.
Similarly, our civilian employees or military personnel generally work en-site,
whereas a contractor's employees usually do not. Thus, providing the contractor
with office space at a Government location might lend weight to an inference
that his employees are, in effect, Government employees. By the sane token, the
work should be planned to avoid a mix of Government and contractor personnel
so that they are not working side-by-side under similar conditions and
supervision. It should be cautioned, however, that a determination of personal
services would still be found in cases where these personnel - although
physically separated — were all performing the sane work and were otherwise
interchangeable. The same would be true where succeeding contracts with
different firms included provisions for orderly changeover of key personnel,
and the same contract employees were found doing the sane work at the sane
desk year after year. And personal services have even been found, in incentive
or award fee contracts, where the evaluation of contract performance was made,
not upon the whole job, but rather upon the separate performance of
individual contractor employees.
factors like these are important because each such piece of circumstantial
evidence may contribute to a later conclusion that the services concerned are
personal. All of them pertain to supervision and control, and they are weighed
according to the extent of their contributions to actual Government control over
the contractor's personnel, taken together and viewed objectively, they may
give every practical appearance that contract employees are being treated as
if they were actually Government employees.
In the planning stage, then, requirements, technical, and contracting people
should pursue every effort toward eliminating as many such factors as they can.
Nona of then alone would necessarily be fatal to the contract's legality, and
some of them might indeed be absolutely necessary and, therefore, inevitable.
It is important to realize, however, that these ancillary factors can be
critical to the result and that they can be effectively provided for only in
advance. If they are carefully considered during the planning staqe, and if
there are good reasons for "providing the contractor with tools, or working
space, or doing anything else which might imply Government supervision
or control, then the contract can provide for them, and later be administered,
in a manner which will be proper and will not be susceptible to drawing
an inference of personal services later on.
The Contract:
The sort of planning described above should provide the contracting officer
and nis staff with all they need to know about the actual requirements,
in order to reduce them to clearly defined work statements. They must,
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U.S. Department of the Havy
then, in clear, understandable language, set forth exactly what the Govern-
ment wants to have done. They must provide in the contract all the speci-
fications or instruction the contractor needs, both to undertake and co
complete the job. this will insure that the Government has the right to
expect an acceptable end product without the need for control over the way
the contractor goes about his work.
it is not enough, however, to write something like "furnish such assistance
as is or may be necessary to support the overall mission of the activity,*
or 'update and revise 40 drawings in accordance with the oral instructions
of the division supervisor or his duly authorized representative." the
contract, or the task orders or work assignments written under it, should
adequately describe the job to be done so that further informal direction
is unnecessary. This, of course, does not mean that they cannot be formally
modified or amended, if
Furthermore, the contract must avoid creating in the Government a specific
or even an implicit power to hire or fire the contractor's employees. It
is always permissible to retain the authority to require security clearances .
or. other legitimate and relevant administrative controls, but it must not
go beyond that, the contractor, for example, may be required to accommodate
himself and his working hours to our daily business routine if he is working
on-base, whereas it would be improper to impose such a schedule upon work
he performed on his own premises. And it goes without saying that the
contract must not provide for Government supervision or control over the
contractor's staff.
Nor will the inclusion of artifical procedures for contract administration
remove the Government from a situation of supervision and control if one
actually exists. It is no use, for example, to provide an elaborate
organization in the contract for the transmission of work assignments on a
supervisory level if, in practice, it is to be phoned from a Government
draftsman to bis contractor counterpart. And even where such conduits have
actually been used in contract administration, they have been viewed as
mere camouflage where the alleged supervisors or technical directors were "-..
so untrained or unskilled as to be incapable of direction and were, at best,
only figureheads. It may be helpful for the contract to make it clear that *
the contractor is providing management or judgment as well as personnel* "!*
but only if that is truly the case.' To repeat what was said earlier, writing
a legal contract is not the end of the road, the heart of most personal
services cases has been contract administration — what actually happened —
not withstanding the niceties of the written contract terms.
Contract Administration:
What, then, are the pitfalls of contract administration? Essentially, the
Government must keep "hands off the contractor's employees during the course
of contract operations, in order to avoid sliding into the area of supervision
and control. Does that mean that, after the contract is signed, there can be
no further contact with the contractor or his stafi? The answer to that is
obviously "No." In the course of almost any contract performance, there must
be some dialogue between both sides. Complete insulation from on* another is
as unnecessary as it is undesirable.
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The r«rmissible range of dialogue between the Government's representatives
anr! the contractor's representatives is whatever liaison and discussion or
explanation is necessary to carry out the traditional processes of contract
administration. We have inspectors and quality control personnel, for
example, and their war* cannot be done in a vacuum. It usually requires
contract and cormunication to be useful, and this is entirely proper.
And we usually assign personnel in a liaison capacity, not only for
surveillance and to Keep us apprised of progress, but also for a contact
through whom the contractor can relay his questions or problems. It is a
rare contract that does not involve answering questions about the
Government's specifications, and this, too, is a legitimate liaison function.
Xr addition, the Government is generally concerned about the contractor's
delivery schedule — whether he will have the work performed on tine.
Accordingly, the contract milestones are important, and insuring that they
are mat may demand prodding and reminding of many shapes and forms. Like
the liaison and inspection mentioned above, this can be done properly as
well, because it does not involve the exercise of supervision or control
over the individual employees. In all proper administration functions.
Government representatives do not dictate what or how the contractor is
to perform. The "what* is set out in the contractor's responsibility.
In their contract administration roles, cur personnel should primarily
be policing the written terms of the contract and assisting the contractor
when necessary to insure that the Government receives the job it bargained
for on tine.
Contract administration begins to run afoul when our representatives go
beyond the terms of the contract. By telling the contractor what to do,
they may be subjecting the Government to claims for changes, that is
another matter. But by directing how to do it, they are crossing the line
into a personal services situation. Then they are beginning to eiercise
supervision or control, when the inspector, liaison officer, or any otter
Government representative turns from surveillance to supervision, he begins
to use the contractor's employees as if they were Government employees,
and is well on the way to transforming the contract into one for personal
services. Often* this arises from no more than a well-intentioned but
overzealous desire upon the part of responsible Government officials to
achieve near perfection in the services obtained. Such overzealouaness
mutt be restrained.
After all, it is the contractor's privilege to do the job however he sees
fit, so long as he'stays within the terms and conditions of the contract.
(Mess the contract legitimately provides otherwise, it is not our business
whether he does the work with one computer or 200 men, which employees
work on which assignments, or whether they work nights or mornings, or
Aether they do task A before task B, or vice versa. It is the contractor's
right to hire and fire, to assign and organize the work — in short, to run
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'U.S. Department of the Navy
his own company, the moment the Government usurps that right and begins
to tell his personnel what, to do next or how to do it, then it has started
down the slippery slope toward a personal services situation. This illustrates
the rule for illegality, but it also must be understood that the greater the
technical direction to the contractor, tr,e greater the responsibility for
successful performance is assume by the Government. This situation is not
desirable because it not only compromises the Government's rights to enforce-
ment of the contract's provisions, but it also transforms an otherwise proper
contract into an illegal one.
Sonetimes it is the actions of the contractor_himself which will cause the
contract to cross over into the forbidden area. By being overzealous in
attempting to be responsive to the Navy organization with which he is working,
the contractor may initiate contacts which result in Government control or
supervision over the work being performed. In other words, where the con-
tractor himself continually asks the Government for direction on how to carry
out the various tasks required by the contract, the Government may end up, in
effect, supervising the performance of the work. This type of situation must
be guarded against.
The contractor's employees should always be looking only to their own
superiors for instructions, and they, in turn, must look back to the written
terms of the contract. This chain of responsibility must exist throughout
the performance of every contract, and it reemphasizes the need discussed
earlier for giving meticulous attention to the contract work statements,
task orders, or work assignments at the outset. And it further underlines
. the need for assuring that the contract preparation is a genuinely coordinated
effort by everyone involved — the users, technical staffs, contracting
staffs, and lawyers — so that, with the input from then, all the work to be
performed is so clearly and accurately spelled out there will be neither need
nor temptation to slide into, the easy trap of supervising any stage of the job.
Statutory Exception:
As was mentioned at the beginning, these rules of contracting must be
followed in every service contract unless there is specific authority from
Congress to proceed otherwise. There may be situations — and they do arise
from time to time — when it is desirable for the Government to have precisely
that sort of supervision and control which is generally improper, and where
the short duration of the work dictates against hiring employees under Civil
Service.
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EVALUATION
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COURSE EVALUATION FORM
Please evaluate the course according to the following rating scale:
4-Excellent, 3=Good, 2*Fair, and l»Poor. Please feel free to
annotate your ratings with comments whenever appropriate. Do not
limit remarks to the form's questions. Please use the reverse side
for any additional comments. We will use this data to improve
future courses.
General Evaluation
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INDIVIDUAL TOPICS: ^
Procurement Integrity
conflict of Interest
Procedures for Closing Out Accounts
EPA Order 1900.2
Personal Services
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