Federal Acquisition Regulation; Pollution Control and Clean Air and Water

SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council are proposing to amend the Federal

Acquisition Regulation (FAR) to remove Subpart 23.1, 52.223-1, and

52.223-2. Improvements that are being implemented by the Environmental

Protection Agency (EPA) will enable it to identify and provide more up-

to-date information on facilities that, because of their involvement in

criminal violations of the Clean Air Act (CAA) or Clean Water Act

(CWA), may not be used in the performance of Government contracts.

Although this amendment eliminates the certification burden on offerors

and bidders, the proposed changes represent no change to longstanding

Federal policy that until such time as EPA determines that the causes

giving rise to criminal CAA or CWA violations have been corrected, a

contracting officer must not award a contract to be performed by

convicted persons at ineligible facilities.

DATES: Comments should be submitted on or before July 12, 1999, to be

considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to:

General Services Administration, FAR Secretariat (MVR), Attn: Laurie

Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.

E-mail comments submitted over Internet should be addressed to:

[email protected].

Please cite FAR case 97-033 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202) 501-4755, for information

pertaining to status or publication schedules. For clarification of

content, contact Mr. Paul Linfield, Procurement Analyst, at (202) 501-

1757. Please cite FAR case 97-033.

SUPPLEMENTARY INFORMATION:

A. Background

Section 306 of the Clean Air Act (CAA), 42 U.S.C. 7606, and Section

508 of the Clean Water Act (CWA), 33 U.S.C. 1368, prohibit award of a

Federal contract to any person who has been convicted of various

violations under the Acts if the convicted person owns, leases or

supervises the facility at which the violation(s) occurred, and any

part of the contract will be performed at the violating facility. This

ineligibility begins the moment a judgment of conviction is entered.

The statutes provide that the ineligibility for contract award remains

in effect until the EPA Administrator certifies that the conditions

giving rise to the conviction have been corrected. To ensure that

awards are made only to eligible facilities, FAR Subpart 23.1 provides

at section 23.105, that an offeror must certify whether it proposes to

use a facility that is on the EPA List of Violating Facilities and that

it will notify the contracting officer before award, if it receives

from EPA notice that EPA is considering listing the facility (FAR

52.223-1, Clean Air and Water Certification).

The FAR previously has considered different methods of enforcing

the CAA and CWA ineligibility provisions. The Federal Acquisition

Streamlining Act of 1994 (Pub. L. 103-355, Section 8301(g), 42 U.S.C.

7606 note) prohibited the use, in commercial item acquisitions, of a

certification or a contract clause to implement the otherwise unchanged

ineligibility provisions of the two statutes. Section 4301(b) of the

Clinger-Cohen Act of 1996 (Pub. L. 104-106) required the Administrator

for Federal Procurement Policy to issue for public comment a proposal

to remove from the FAR those certification requirements that were not

specifically imposed by statute. The FAR published a final rule in the

Federal Register at 61 FR 233 on January 2, 1997 (FAR Case 96-312),

implementing the CAA and CWA amendments for commercial items, but

retained the certification for other acquisitions as the least

burdensome and most effective means of ensuring that Government

contracts were not awarded to a contractor proposing to use, for

contract performance, a listed facility (62 FR 233).

This proposed rule would remove FAR Subpart 23.1, the certification

at FAR 52.223-1, the contract clause at FAR 52.223-2, Clean Air and

Water, and would provide agency contracting officers with a uniform

procedure to determine a persons eligibility for award of a Government

contract or subcontract. The same procedure would apply regardless of

whether the acquisition is for a commercial item or not. FAR Subpart

9.4 requires that before awarding contracts and approving subcontracts,

agency contracting officers must check the GSA List of Parties Excluded

from Federal Procurement and Nonprocurement Programs (GSA List).

Internet access to the GSA List is available (http://www.arnet.gov/

epls). Excluded parties whose ineligibility is limited by reason of a

CAA or CWA conviction are identified by the facility and conviction

listing, the Cause and Treatment Code ``H'' annotation. The textual

content of Code H is provided to GSA by the EPA Debarring Official, the

Federal official with the delegated responsibility for determining when

CAA and CWA-ineligible parties have corrected the conditions giving

rise to their criminal convictions.

In the past, certifications served to ensure that bidders and

offerors who were convicted of violations of the CAA and CWA identified

themselves to Contracting Officers. This mechanism supplemented the GSA

List which, because of occasional delays and lapses in communicating

criminal conviction information to EPA officials, might not include an

offeror or bidder with a recent CAA or CWA conviction. The EPA plans to

improve its information systems with a view toward making the CAA and

CWA ineligibility data in the GSA List as complete and timely as

possible.

By improving its information systems and revising the Cause and

Treatment Code, EPA believes that FAR Subpart 23.1 can be removed

without having a detrimental effect on the Government's environmental

policy. Reliance on the GSA List provides an adequate mechanism for

ensuring that agency contracting officers do not award contracts to

ineligible offerors. As a result of these developments, the necessity

for a certification to achieve compliance with the CAA and CWA

ineligibility provisions has been significantly diminished, if not

eliminated.

This rule also would remove the contract clause at FAR 52.223-2.

This clause states that the contractor agrees to comply with the CAA

and CWA. Neither statute requires that such a clause be included in

Federal contracts and subcontracts. The elimination of the clause in no

way would diminish the Government's ability to enforce the CAA

[[Page 26265]]

and CWA requirements that apply to efforts performed under Federal

contracts.

This regulatory action was not subject to Office of Management and

Budget review under Executive Order 12866, dated September 30, 1993,

and is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

This proposed rule is not expected to have a significant economic

impact on a substantial number of small entities within the meaning of

the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because

generally less than 50 facilities a year are ineligible for contract

award as a result of convictions for violations of the CAA or CWA. An

Initial Regulatory Flexibility Analysis has, therefore, not been

performed. Comments from small entities concerning the affected FAR

subpart will be considered in accordance with 5 U.S.C. 610 of the Act.

Such comments must be submitted separately and should cite 5 U.S.C.

601, et seq. (FAR case 97-033), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is deemed to

apply because the proposed rule would eliminate an information

collection requirement approved under OMB Control Number 9000-0021.

Accordingly, a request to remove the requirement will be submitted to

the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1, 12, 23, and 52

Government procurement.

Dated: May 7, 1999.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 1, 12, 23, and 52 are amended as set forth

below:

1. The authority citation for 48 CFR Parts 1, 12, 23, and 52

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

1.106 [Amended]

2. Section 1.106 is amended in the introductory text by removing

the word ``ten'' and adding ``10''; and in the table following the

introductory paragraph by removing FAR segment ``52.223-1'' and its

corresponding OMB Control Number, ``9000-0021''.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

3. Section 12.503 is amended by revising the introductory text of

paragraph (b); removing paragraph (b)(1); redesignating (b)(2) and

(b)(3) as (b)(1) and (b)(2), respectively; removing paragraph (b)(4);

and redesignating paragraph (b)(5) as (b)(3).

12.503 Applicability of certain laws to Executive agency contracts

for the acquisition of commercial items.

* * * * *

(b) Certain requirements of the following laws are not applicable

to executive agency contracts for the acquisition of commercial items:

* * * * *

12.504 Applicability of certain laws to subcontracts for the

acquisition of commercial items.

4. Section 12.504 paragraph (b) is revised to read as follows:

* * * * *

(b) The requirements for a certificate and clause under the

Contract Work Hours and Safety Standards Act, 40 U.S.C. 327, et seq.,

(see Subpart 22.3) are not applicable to subcontracts at any tier for

the acquisition of commercial items or commercial components.

* * * * *

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-

FREE WORKPLACE

23.1 [Reserved]

5. Subpart 23.1 is removed and reserved.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.223-1 [Removed and Reserved]

6. Section 52.223-1 is removed and reserved.

52.223-2 [Removed and Reserved]

7. Section 52.223-2 is removed and reserved.

[FR Doc. 99-12154 Filed 5-12-99; 8:45 am]

BILLING CODE 6820-EP-P